'Atrocity' cases test US military justice

In Iraq and Afghanistan, most incidents involving civilian deaths caused illegally by US forces have resulted in far lighter punishment, Solis finds.

For example, an Army chief warrant officer charged with negligent homicide in the 2003 death of an Iraqi detainee received a letter of reprimand, a fine of $6,000, and two months' restriction to Fort Carson, Colo. A sergeant involved in the beating death of an Afghan detainee in 2005 was reprimanded, given a one-grade demotion, and fined $1,000. In the Abu Ghraib prison scandal, the most senior officer punished was Army Reserve Brig. Gen. Janis Karpinski, demoted to colonel.

But dealing with detainees is very different from fighting in the heat and fog of battle, especially when the enemy emerges from or blends into the civilian populace. That situation, which troops face routinely in Iraq and Afghanistan, can lead to a difficult and potentially deadly paradox.

"Because Army personnel are trained for conventional warfare, they naturally want to kill the enemy," says national security analyst Ivan Eland of the Independent Institute, a nonpartisan think tank. "But in counterinsurgency warfare, a premium must be put on providing security for the population without killing civilians.

"This unfortunately means tighter rules of engagement, which increases US casualties," says Dr. Eland.

In Haditha, the death of one marine and injuries to two others while traveling in a convoy preceded the attacks on Iraqi civilians. The squad leader that day faces the most serious charges – murdering 12 people and ordering other marines to kill six people. His attorney said the charges carry a maximum penalty of life in prison.

Other recent cases of civilian deaths at the hands of US troops point to murderous intent.

In the Hamdaniyah case, seven marines and a Navy corpsman have been charged in the kidnap and murder of an Iraqi man, and then making it look as if he had planted an IED. So far, four have pleaded guilty to lesser charges in return for prison terms of less than two years.

In the Mahmudiya case, five Army soldiers have been charged in the rape and premeditated murder in April of a 14-year-old Iraqi girl and the murder of her parents and 5-year-old sister. One soldier pleaded guilty to avoid the death penalty. Another, a sergeant charged with dereliction of duty for failing to report the crimes, accepted an "other than honorable" discharge from the Army. Cases against the others are pending.

As with civilian trials, the nature of the evidence may lead military prosecutors to conclude that negligent homicide – not premeditated murder – is the most serious case they can make.

"Even with negligent homicide, the starched and pressed judge advocate who's not been in combat has to convince a jury that the young [marines] who daily risked their lives in Iraq are unworthy of belief," says Solis, the former Marine Corps judge advocate. "That could be a hard sell, and acquittals would not surprise me."

Some experts attribute such atrocities to the stress of enduring multiple tours of duty in Iraq, as well as the very difficult circumstances of fighting an unconventional war.

"It seems to me the main point is that these incidents are symptoms of combat stress," says John Pike, director of globalsecurity.org. "The question is whether the combat stress management system is doing a good job because there are so few incidents or a bad job because these incidents happened."

• Material from wire services was used in this report.

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