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The War Profiteers - War Crimes,
Kidnappings & Torture |
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March 25th,
2009 - The Media, Military and Murder - Part 2 |
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The Media, Military and
Murder - Part 2 By Marcia Drezon-Tepler Middle East Times March 25, 2009 (This is the second of a
two-part series.) - Rules of engagement often require fighters to remember
what is permitted outside in the field, in an air attack, or inside a
building or house, for the rules, and acceptable collateral damage, among
those situations differ. Sometimes the subtleties are lost on soldiers, who
then pay the price of prosecution. For instance, an aerial
assault on a house in an area declared hostile might permit killing,
theoretically, up to 45 women and children in order to eliminate one bad guy,
McDermott said. But on the ground, a soldier must discriminate between bad
guys and civilians. McDermott argues that tolerance for civilian deaths in
both situations should be the same. Similarly, when soldiers
approach a house, they may use a Shoulder-Launched Multipurpose Assault
Weapon, or SMAW, which blows a hole through the house and does damage without
discriminating between insurgents and civilians. "Confusion
occurs," Faraj said, because "soldiers can stand back and shoot and
bring heavy force" to bear on a building without knowing whether
civilians are inside or not, but "when inside, they have to discriminate
between civilians and combatants." Such distinctions as well as
the treatment of detainees informed an incident for a scout platoon at
Kirkuk, Iraq, in June 2007, that led to courts-martial of Sgt. 1st Class Trey
A. Corrales and Spc. Christopher P. Shore. As related in court
documents and by their respective defense attorneys, Frank Spinner and
Michael Waddington, the scout platoon answered a call to help take down an
IED-planting terrorist cell that had fled to a house. Some scouts stationed
themselves on a rooftop opposite the targeted house, while others positioned
themselves outside. Versions of the raid differ among the soldiers. Shore and
others said that Corrales, the platoon's leader, ordered killing all
military-age males in the house, but they ignored the order because it
contradicted their rules of engagement. Shore said that he saw civilians
through the window. After a SMAW was fired from
the rooftop, hitting a surrounding wall, the soldiers ran in and secured the
house, gathered suspected terrorists in one room, and began testing their
hands for explosives. According to Shore and
others, Corrales allegedly said he would shoot the first one who tested
positive and indeed took a man who showed positive to the backyard. After
hearing shots, Shore went out and saw a wounded man on the ground. He said
Corrales ordered him to finish the man off, and he shot in order to satisfy
Corrales, whom he feared, but he intentionally missed. Shore was charged with
murder. Corrales denied this
account, according to Spinner, and testified in his own defense from a charge
of premeditated murder. He said that after a call from his commander,
questioning whether the backyard was secure, he went outside and surprised
the detainee. Corrales believed the detainee to be a threat and shot him.
Corrales' defense further argued that the fatal shots were Shore's. Shore was found guilty of
aggravated assault in February 2008 and Corrales was acquitted in April.
After Corrales' acquittal, Shore's conviction was reduced to assault, and he
was released. Shore remains in the army today. The military would agree
that Corrales' alleged order to kill military-age males contradicted the ROE:
"Once those … individuals entered the house, and the Soldiers lost
positive identification of the fleeing men, the Soldiers were not authorized
to 'kill all the males in the house.' The Soldiers could not identify or
distinguish those individuals that had fled to the house from the other
civilians in the house," the brigade public affairs officer for Shore's
court-martial, Maj. Derrick Cheng, wrote in an e-mail. One situation on the ground
that may permit designating a house as hostile without requiring positive
identification of insurgents is when troops take fire from a building. Then,
Myers said, troops can enter and clear the house, even if there are civilians
inside. Although that occurred at
Haditha, the military is prosecuting Wuterich, Myers said, for not making
positive identification. As the military reasons, he said, the house could
not have been hostile because only civilians were killed. There were good military
reasons for the Marines' actions, said McDermott, who represented a commander
charged in the incident. They received intelligence on the spot that
"gangs … were using sedans as mobile armory," he said. And they
found cell phones in the car and knew the IED had been radio-activated.
Moreover, the rules of engagement for Haditha considered military-age men
running from a bomb site as threats, added Faraj. When they entered the
houses, McDermott said, they were responding, as trained, to a "complex
attack," a bomb explosion followed by small-arms fire. "If we are going to
fight insurgency warfare, we have to be morally and practically ready to kill
civilians," Myers said. "Positive identification is a nice idea,
but it doesn't work … where decisions have to be made instantaneously because
the soldiers will be dead," he said. "There's fear on the
ground to pull the trigger," said a defense attorney for Vela, James
Culp. The military disagrees with
Myers and Culp. Marines are trained to distinguish civilians from insurgents
in a hostile environment, said a Marine judge advocate involved in the
Haditha investigation, Col. John Ewers, on a PBS "Frontline"
program of Feb. 19, 2008: "We know how to defend
ourselves. We know how to aggressively take people down. And to suggest that
we can't do the shades of gray in-between is a cop out." The soldiers'
inherent right of self-defense coupled with their training on the rules of
engagement and the laws of armed conflict should enable them to pull the
trigger when necessary, according to Cheng. "No one in my personal
experience ever hesitated to shoot because he feared prosecution," said
Coakley, who served twice in Iraq. "Positive identification is not a 'no
doubt' standard," he said. A soldier who is "reasonably certain
that he is being confronted by a threat may use force in self-defense, and if
he makes a mistake or unintentionally kills civilians, he is not criminally
responsible for causing that death." An inquiry - perhaps only a
phone call - at a low level and when memories are fresh serves to resolve any
questions of compliance with the rules of engagement, Coakley said. In most
cases, the inquiry finds that the soldier reasonably perceived a threat and
acted appropriately. Only in the unusual case where questions remain would
there be further formal investigation or, perhaps, a court-martial. That such
an inquiry was not done immediately following the Haditha incident was a
lapse, he said, which led to the ensuing difficulties in reconstructing exactly
what happened there. When decisions were made not
to kill civilians, Coakley said, considerations other than the ROE were at
play, such as reluctance to kill a young person. Luttrell writes about his
"Christian soul." Rarely, said Coakley, do
cases go as far as court-martial, which shows that "the rules of
engagement work." At court-martial, Coakley is confident that a panel of
experienced military people will see the situation through the eyes of a
service member and make the appropriate decision. To the contrary, writes
David M. Brahms, a former judge advocate general for the Marine Corps, in the
North County Times of March 15, 2008, "The suspicion is that an
international 'Nielsen' rating is driving preferral of criminal charges and
the decisions to send accusations to court-martial," which is eroding
"the time-honored belief of military men that their seniors will stand
with them." Luttrell and his team made a
moral decision, Myers said. They had positive identification; they knew they
were not combatants. And since "there is no justification for killing a
noncombatant under our law or the Geneva Convention," he said, they
decided to let them go. Myers and Luttrell might be
surprised to learn that that decision may not have been the only possible
moral decision. "If a war is
permissible in the first place," said Rabbi J. David Bleich, professor
of Talmud at Yeshiva University, "then collateral damage is
acceptable." And even if a particular war is not permissible, "once
hostilities have begun and a person is endangered, that person is allowed to
eliminate an aggressor. It's like self-defense," said Bleich, also a
professor of law at Benjamin N. Cardozo School of Law. "The SEALs knew they
were at risk," he said, "and if they were reasonably certain that
those persons [the shepherds] will inform, then … it is permissible, even a
mandate, to eliminate them." Under the Catholic principle
of noncombatant immunity, it would not have been permissible for the SEALs to
kill the shepherds because there was no way to define those shepherds as
combatants, said an assistant professor of Christian ethics at Xavier
University, John Sniegocki. Protestant thought runs from
pure pacifism through just war and realism to a third way of negotiations,
said a professor of biblical studies and director of The Center for Church
Life at Auburn Theological Seminary, the Rev. Dr. Frederick Weidmann. The realist view accepts that,
while pacifism is the ideal, there is evil in the world and sometimes
"you have to do war." It should be a "just war," in
planning and, so far as possible, execution, considering proportionality -
how many people may be killed in order to save others - and chances for
success. So "there are Protestant theologians who would accept the
necessity of killing civilians in extreme circumstances," he said. Indicative of
Protestantism's wide umbrella, Herman Keizer Jr., director of chaplaincy
ministries for the Christian Reformed Church of North America, a Calvinist
body, said the just war theorists have maintained the concept of civilian
immunity. If the SEALs could not have detained the shepherds, they had to let
them go, the retired army chaplain and colonel said. The moral teachings of Islam
do not allow touching an unarmed person in the battlefield, said Sheikh
Shamsi Ali of the Islamic Cultural Center of New York. "We do not know
what the connection was between the shepherds and the Taliban," he added. Despite problems with rules
of engagement, Marcinko would not change the way they are set because the
grayness offers flexibility. Forces that are nation-building need rules that
differ from those required by special operations forces targeting one person.
And smaller units with insufficient manpower to hold a detainee require more
flexible rules. Reform is needed, defense
attorneys said, in the military justice system. Culp suggests amending the
UCMJ to include a combat defense, by which a fighter makes the best decision
under the circumstances, to deal with today's warfare, where enemy and
civilian populations look alike. Stevens said the code should more precisely
reflect the exigencies of combat and allow for more nuanced charges than just
murder. Waddington would eliminate the mandatory sentence for murder. Myers suggests qualified
combat immunity, permitting a soldier to file a motion to dismiss, and not go
to trial, on the basis that his conduct was reasonable. Faraj disagrees with
that idea, for "when a situation like Haditha happens," for
example, "it helps us to show that we have a system that deals with
this, and because the system is just, you could rely on the outcome."
But prosecutors, Faraj said, should move more slowly in deciding to prosecute,
ensuring that charges are based on "genuine facts," and they should
be more cautious in granting immunity to witnesses. At Vela's trial, the
prosecutor said Vela could have made the "hard right" decision,
probably meaning, Culp said, "to risk your life." The hard right
decision, according to Culp, was for our "military to tell the Iraqi
government that sometimes there are hard choices that have to be made"
and civilians sometimes will be killed. External link: http://www.metimes.com/Opinion/2009/03/25/the_media_military_and_murder_-_2/1699/ |