Afghanistan killing case leads to questions on military justice

"It's a travesty," said Eric S. Montalvo, a former prosecutor and defense counsel in the Marine Corps who is now in private practice specializing in military law. "I don't believe that justice was served."

The 2005 massacre, which came after a roadside bombing of a Marine convoy, killed 24 Iraqis, including women, children and a man in a wheelchair.

People who followed the case say it collapsed largely because of prosecutors' errors -- including giving immunity to squad mates whose credibility as witnesses came into question, and tactical decisions that led to a lengthy delay before the trial got under way.

By the time of the trial last week, charges against six Marines had been dropped, and a seventh Marine had been acquitted in a civilian court. After several days of spotty testimony about the last remaining defendant, Staff Sgt. Frank Wuterich, 31, who admitted telling his men to "shoot first and ask questions later" after the bombing, the military agreed to a plea deal allowing him to avoid prison time.

"It was a series of missteps, errors built upon mistakes, until the case was just untriable," said Lt. Col. Gary D. Solis, a retired Marine Corps judge who now teaches military law at Georgetown University.

DIFFICULTIES WITH EVIDENCE

The Marine Corps rejected any claim of incompetence in the prosecution of the Haditha case.

"The case was handled in strict accordance with the Uniform Code of Military Justice," said Lt. Col. Joseph Kloppel, a spokesman.

Some of the challenges the prosecution faced dovetailed with the difficulties often encountered in efforts to prosecute troops for unlawful killings in combat zones. Collecting physical evidence and finding witnesses can be difficult because the killings often occur in unstable and dangerous areas, and the cases often come to light only after time has passed.

The Haditha case also fits another pattern: Many cases involving civilian deaths arise during the chaos of combat or shortly afterward, when fighters' emotions are running high; they can later argue that they feared they were still under attack and shot in self-defense.

FOG-OF-WAR CASES

In those fog-of-war cases, the military and its justice system have repeatedly shown an unwillingness to second-guess the decisions made by fighters who said they believed they were in danger, specialists say.

"There is a surprising pattern of acquittals," said Eugene R. Fidell, who teaches military justice at Yale Law School. "I think there is an unwillingness in some cases of military personnel to convict their fellow soldiers in the battle space."

The limited data available suggests that even when the military has tried to prosecute troops for murder or manslaughter in a combat zone, the acquittal rate has been significantly higher than it is in the civilian context.

Over the past 10 years, the Army has court-martialed 43 people on murder or manslaughter charges in cases that occurred in Iraq and Afghanistan and that included both civilian victims and detainees. Twenty-eight were convicted and 15 acquitted.

That acquittal rate is more than twice as high as it is in civilian criminal cases, said Stephen A. Saltzburg, a law professor at George Washington University. But, he said, the gap is not surprising, given the chaos of combat.

"Those considerations mean there's more likely to be a reasonable doubt, when you're trying to figure out what happened," he said.

The Marine Corps did not provide its court-martial numbers, and even the numbers provided by the Army offer only a limited window into unlawful killings in the war zones. For example, they do not cover cases involving a lesser charge like negligent homicide, or those punished with administrative reprimands.

SOMETIMES, NO CHARGES

Some cases that have received prominent attention have never led to charges.

For example, in 2008 the military did not bring charges against two Marines who commanded a unit accused of firing indiscriminately at cars and bystanders along a 10-mile stretch in Afghanistan, killing 19 people and wounding 50. The shootings began after a suicide bomber attacked the unit, and the Marines said they were being shot at and had fired to defend themselves as their convoy fled.

By contrast, the justice system has been more likely to hand down convictions and lengthy sentences for killings detached from the chaos of combat.

One soldier was sentenced to life in prison -- and another who testified against him received 24 years -- in the "kill team" case in Afghanistan in 2010. In that case, the defendants were part of a drug-addicted platoon and were accused of deliberately going out with the goal of killing civilians at random -- and collecting body parts as trophies.

Similarly, in 2006 an Army unit from a checkpoint in Mahmudiya, Iraq, gang-raped a 14-year-old girl, killed her and her family and blamed the deaths on insurgents -- another premeditated crime that was not connected to combat. One soldier who had left the service by the time the case came to light was prosecuted in civilian court and sentenced to life, while three other soldiers received sentences of 90 to 110 years in a court-martial.

Solis also said that in the early years of the Afghanistan and Iraq wars, the military appeared to be particularly unwilling to hand out convictions to troops who killed civilians. But notwithstanding the Haditha case, he said, that generally changed over time, with more convictions and lengthier sentences in later years, including several involving the shooting of Iraqi prisoners.