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The War Profiteers - War Crimes,
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August 28th,
2006 - Homicide Charges Rare in Iraq War |
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Homicide Charges Rare in
Iraq War Few Troops Tried For Killing Civilians By Josh White, Charles Lane and Julie Tate Washington Post August 28, 2006 The majority of U.S. service
members charged in the unlawful deaths of Iraqi civilians have been
acquitted, found guilty of relatively minor offenses or given administrative
punishments without trials, according to a Washington Post review of
concluded military cases. Charges against some of the troops were dropped
completely. Though experts estimate that
thousands of Iraqi civilians have died at the hands of U.S. forces, only 39
service members were formally accused in connection with the deaths of 20
Iraqis from 2003 to early this year. Twenty-six of the 39 troops were
initially charged with murder, negligent homicide or manslaughter; 12 of them
ultimately served prison time for any offense. Some military officials and
analysts say the small numbers reflect the caution and professionalism
exercised by U.S. forces on an urban battlefield where it is often difficult
to distinguish combatants from civilians. Others argue the statistics
illustrate commanders' reluctance to investigate and hold troops accountable
when they take the lives of civilians. "I think there are a
number of cases that never make it to the reporting stage, and in some that
do make it to the reporting stage, there has been a reluctance to pursue them
vigorously," said Gary D. Solis, a law professor at Georgetown
University and a former Marine prosecutor. "There have been fewer
prosecutions in Iraq than one might expect." "But we should not
forget that so many of our soldiers and Marines are performing not only
honorably, but heroically, in very difficult circumstances," he added.
"Their contributions should not be tarnished by the acts of a very, very
few." Top military officers,
military lawyers, experts and troops say the number of homicide cases
prosecuted probably represents only a small portion of the incidents in which
Iraqi citizens were killed under questionable circumstances. Officials also
say privately that some cases have not been investigated thoroughly because
there has been a tendency to consider Iraqi civilian deaths an unintended
consequence of combat operations. "I think there were
many other engagements that should have been investigated, definitely,"
said an Army major who served in Iraq in 2004, speaking anonymously because
he fears retribution. "But no one wanted to look at them or report them
higher. ... It was just the way things worked." Others contend, however,
that civilian deaths are inevitable in war and that the close combat
environment in Iraq frequently puts civilians in the line of U.S. and
insurgent fire. The cases highlight the
sometimes fine line between a criminal allegation and the bloodshed that is a
part of war. Spec. Nathan Lynn, a Pennsylvania National Guardsman, shot and
killed a man in the darkness of a Ramadi neighborhood in February. Lynn said
he considered the man a threat and believes he did nothing wrong. The man was not armed, and
Lynn was charged with voluntary manslaughter. But a military investigator
agreed that Lynn acted properly in a difficult situation, and the charges
were dropped. "I was extremely
surprised when I was charged because it was clear the shooting fell within
the guidelines of my rules of engagement," Lynn said. "This is a
war. It's not a police action." A Look at the Numbers The Post undertook the
review after allegations surfaced in recent months that U.S. forces had
killed significant numbers of civilians in places such as Haditha, Hamdaniya
and Mahmudiyah, with many of the victims women and children. The review
included the military justice system's disposition of incidents that occurred
from June 2003 to February 2006. It did not include cases from Afghanistan. Also excluded was the
killing of 24 civilians by Marines in Haditha in November 2005, which is
under investigation. There is no accurate count
of the number of Iraqi civilians killed by U.S. forces. Iraq Body Count, an
independent group that advocates more extensive investigation of civilian
deaths, estimates that 40,000 to 45,000 civilians have been killed by
insurgents, terrorists and U.S. personnel. Military officials say they
do not track overall civilian casualties. But recently, the military said
that an average of one Iraqi civilian was killed by U.S. troops each day in
2005 in "escalation of force" incidents alone. These include, for
example, shootings of drivers who did not heed instructions at checkpoints
and appeared to be threats. The harshest penalty, meted
out to two soldiers in separate murder cases in 2004, was 25 years in prison -
one of the convicted shot an Iraqi soldier, and the other shot an Iraqi man
in his house. Two others convicted in what was called a mercy killing of an
Iraqi each received one year in jail. Solis, who has studied
civilian homicides from the Vietnam War, said there were 27 Marines and 95
Army soldiers convicted of murder and manslaughter in that conflict, which
lasted much longer and produced many more casualties than the Iraq war has so
far. According to The Post's
review of publicly reported cases from Iraq, 39 U.S. service members were
charged with crimes in connection with the deaths of Iraqi civilians or for
allegedly covering them up, from the start of the war in March 2003 through
early 2006. Twenty-four Army personnel
were charged in connection with civilian deaths. Twelve were convicted of
crimes and received jail sentences that ranged from 45 days to 25 years. Four
others were tried at courts-martial, resulting in one acquittal and three
convictions with no confinement. Charges against two others
were dropped. Six received administrative punishments, including four who
cooperated with government prosecutions of their superiors. In administrative
cases, no trial is held and the charges and penalties are not made public. "Each case was
evaluated independently, and appropriate action was taken in each case,"
Paul Boyce, an Army spokesman, said Friday after officials examined The
Post's data. "Conviction and confinement is not always the measure of a
correct result." Five Marines were involved
in homicide cases. One officer was convicted of dereliction of duty and
maltreatment for strangling an Iraqi prisoner in 2003 and was dismissed from
the Corps; one was acquitted; and charges against three others were dropped. One naval officer was
charged and acquitted in a case related to the death of a detainee at Abu
Ghraib prison, and eight Navy SEALS and one sailor received administrative
punishments in the same case. Army and Marine officials
confirmed that The Post's compilation of criminal homicide cases is
comprehensive. The Naval Criminal Investigative Service, which handles Navy
and Marine cases, did not respond to requests for comments on the data. Since March, an additional
17 U.S. troops have been charged with murder in three separate incidents. The
increase in the rate of charges is in part because Lt. Gen. Peter W.
Chiarelli, commander of Multinational Corps-Iraq, ordered officers in April
to look at every escalation-of-force incident that led to civilian
casualties. That effort began after the killings in Haditha came to light and
it was alleged that officers in the chain of command ignored the case or
covered it up. "Part of our mission
success depends on not creating additional enemies because of our
actions," said Lt. Col. Michelle Martin-Hing, a spokeswoman for
Chiarelli. The number of civilians
killed has declined from an average of seven per week last year and four per
week in January to about one per week in August, she said. No homicide prosecutions
have arisen from shootings at U.S.-manned checkpoints, where troops sometimes
kill approaching drivers if they appear to be suicide bombers or insurgents.
But officials have been focusing on eliminating such deaths. Standardized signs warning
that U.S. troops can use deadly force are displayed, and Chiarelli is trying
to buy green warning lasers to use to get drivers' attention without firing
warning shots. Too Few Convictions? The homicide data have
caused concern among some human rights advocates and experts on military law,
who say the low conviction rate and seemingly lenient punishments may be
sending the wrong signal, both to U.S. troops and to the Iraqi people. "We are indeed having
trouble getting convictions and accountability, and so are other
countries," said Eugene R. Fidell, president of the National Institute
of Military Justice. "It has struck me that the sentences are kind of
modest." But several experts on
military justice said that the convictions and penalties so far are a
reasonable outcome for a system designed to give soldiers fair trials in
which the special circumstances of the battlefield are taken into account. "Military justice is a
two-edged sword," said Michael A. Newton, a former Army lawyer who
teaches at Vanderbilt University law school and advises the judges
supervising Saddam Hussein's trial. "It is a tool for discipline and
military efficiency, but it is also a tool for preserving fairness and the
rights of soldiers." Some incidents clearly took
place outside of combat and without provocation. Army Pvt. Federico Daniel
Merida, for example, killed an Iraqi soldier in May 2004 by shooting him 11
times after the two had sex. He was later sentenced to 25 years in prison and
given a dishonorable discharge. In October 2004, Army Sgt. 1st Class Jorge
Diaz shot a detainee in the face after searching a suspected insurgent's
house. He was sentenced to seven years and given a dishonorable discharge. A series of incidents
involving the 1st Battalion, 41st Infantry Regiment in August 2004
highlighted the stresses of battle in the heavily contested Sadr City section
of Baghdad and led to four soldiers serving sentences in the deaths of three
Iraqi civilians. One of the civilians was shot to death after soldiers
attacked a trash truck they believed was dropping roadside bombs. Two
soldiers told authorities that the man was in such bad shape, they shot him
to put him out of his misery. In the days that followed,
two different soldiers from the same unit, Sgt. Michael P. Williams and Spec.
Brent May of the 3rd Platoon, went into two houses in Sadr City during a
routine security sweep and shot two unarmed men, later arguing that they felt
threatened. Williams and May were investigated for murder only after Lt.
Erick Anderson, their platoon leader, forced the battalion's officers to
start a probe. Shortly after filing a
report, Anderson was charged with murder. "In the very beginning,
no one wanted to do anything about it," said Anderson, 27, who has left
active duty and is living in Kansas. "I think the officers didn't want
to have the possibility of having themselves brought into it. They didn't
want to go through the whole process." Charges against Anderson
ultimately were dropped, and he was promoted. He said that during his tour
there were many cases of slain Iraqi civilians that never drew scrutiny.
"I think once people started seeing the reality of what can happen, when
something did happen, they wanted to bury it," he said. Williams pleaded guilty and
was initially sentenced to life in prison, a sentence later reduced to 25
years. May was sentenced to five years. Retired Maj. Gen. John
Batiste, who commanded the 1st Infantry Division in northern Iraq, said he
always sought to address crimes as quickly as possible in order to maintain
the trust of Iraqis. "We created more
enemies in Iraq than there were insurgents, and that's a geometric
equation," Batiste said. How Military Courts Work To win a murder conviction,
military prosecutors must prove beyond a reasonable doubt that the accused
killed "without justification or excuse." But that is not always
easy in a war zone. The Uniform Code of Military
Justice was enacted by Congress in 1950 partly to help make military trials
more like civilian trials, with more procedural protections for the accused. But there are key
differences between a military criminal case and a civilian one. One of the
most fundamental is that the initial decision to start a criminal
investigation ultimately rests with the commander of the service member in
question, who can order administrative or non-judicial punishments instead of
courts-martial. Critics of the military's
processes in Iraq say the performance so far shows a need to change the
decentralized decision-making structure. They argue that it creates the
potential for improper "command influence" in favor of defendants
by officers who don't want the embarrassment of criminal investigations of
their subordinates. Hina Shamsi, senior counsel
at Human Rights First, a New York-based nonprofit organization that monitors
the military justice system, is a supporter of such changes. Nevertheless, she
said: "The system is adequate. When properly followed, it works
extremely well." When criminal proceedings
are authorized, there is no grand jury to hear testimony from witnesses
called by a prosecutor. Instead, a proceeding called an Article 32 hearing
takes place before a single officer. The defense is allowed to present
evidence and cross-examine prosecution witnesses. Charges sometimes fail at
this stage. That happened in the case of
Marine 2nd Lt. Ilario Pantano, who was charged with murder in the deaths of
two Iraqis he had detained at a roadblock in April 2004. He shot the men 60
times and left a sign on their bodies warning insurgents not to risk similar
treatment. But he said he fired only after they made threatening moves in his
direction. The Article 32 hearing
officer agreed and dropped the charges, partly because forensic evidence
showed that the men were shot in the chest, supporting Pantano's story that
they were moving toward him when he fired. Court-martial juries are
made up exclusively of fellow service members, all of whom must outrank the
accused, though enlisted personnel are entitled to a jury composed of at
least one-third enlisted troops. Service members now frequently face juries
that include members with battlefield experience in Iraq and Afghanistan. Frequently, soldiers say
they fired because they perceived a threat, or because they believed that
their actions were authorized by the rules of engagement or other orders. "It's not an easy call
to make. It requires getting into the head of a serviceman," said
retired Rear Adm. John D. Hutson, a former Navy judge advocate general who is
now dean of the Franklin Pierce Law Center in Concord, N.H. "Rape is
pretty clear, but death of civilians can be a part of the fog of war, or it
can be the result of inexperience or misjudgment." When Abed Hamed Mowhoush, a
captured former general in Hussein's army, died in November 2003 after
interrogation by U.S. intelligence officers, Iraqi agents and U.S. soldiers,
Chief Warrant Officer Lewis E. Welshofer Jr., a military interrogator, was
found guilty of negligent homicide, not murder. Welshofer had stuffed the
general headfirst into a sleeping bag and straddled his chest while
questioning him. The jury that convicted him rejected the prosecution's
claims that Welshofer intended to kill. Welshofer had sought approval for the
sleeping bag method at a time when U.S. policy on interrogations of resistant
Iraqi insurgents was, at best, unclear. The jury gave him a formal
reprimand, fined him $6,000 and said he should be confined to his home,
office and church for 60 days. Welshofer defended his
actions in a February 2004 letter to the commander of the 82nd Airborne
Division, citing his "moral obligation to do everything I can to protect
the lives of my fellow soldiers." © 2006 The Washington Post
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