Proving Murder in War Difficult, Even Among Detainees There has been a spate of high-profile cases of U.S. soldiers and Marines being acquitted of abusing and killing detainees in Iraq and Afghanistan. Military officials say the rights extended to the accused are huge -- and the notion of self-defense in a combat situation is critical to determining the outcomes.
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Proving Murder in War Difficult, Even Among Detainees

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Proving Murder in War Difficult, Even Among Detainees

Proving Murder in War Difficult, Even Among Detainees

Proving Murder in War Difficult, Even Among Detainees

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  • <iframe src="https://www.npr.org/player/embed/4703281/4703282" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
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There has been a spate of high-profile cases of U.S. soldiers and Marines being acquitted of abusing and killing detainees in Iraq and Afghanistan. Military officials say the rights extended to the accused are huge — and the notion of self-defense in a combat situation is critical to determining the outcomes.

MELISSA BLOCK, host:

This is ALL THINGS CONSIDERED from NPR News. I'm Melissa Block.

ROBERT SIEGEL, host:

And I'm Robert Siegel.

To date, the State Department says it has substantiated 190 cases of detainee abuse at the hands of US troops in Iraq and Afghanistan. Scores of military personnel have faced courts-martial and other punishments, but dozens of others have been acquitted or given light sentences for abusing and killing detainees. Defenders say their actions are understandable at a time of war; critics say the military justice system is too lenient. More from NPR's national security correspondent Jackie Northam.

JACKIE NORTHAM reporting:

On April 5th, 2004, a group of Marines carried out a raid on a suspected terrorist hideout in the town of Al Mahmudiyah, Iraq. As they approached the house, two Iraqi men quickly got in a car and tried to drive away. The Marines stopped the car. According to an Article 32 hearing, which is similar to a grand jury hearing, Lieutenant Ilario Pantano, the squad leader, thought the vehicle may have been booby-trapped and so ordered the Iraqis to search their vehicle. Pantano says the two Iraqis began talking in Arabic and he told them to stop. Major Douglas Powell, a spokesman for the Marine Corps, says that's when the situation turned deadly.

Major DOUGLAS POWELL (Spokesperson, US Marine Corps): And according to Lieutenant Pantano, these two men turned on him and did something in an offensive manner, and he shot them.

NORTHAM: Pantano emptied one magazine, reloaded and continued shooting. In all, he fired 60 bullets into the two Iraqis. He then hung a sign above them saying, `No better friend, no worse enemy.'

Pantano was charged with premeditated murder. Last month, the Marine Corps dropped all charges, saying that autopsies bolstered Pantano's claim that he had fired in self-defense. Major Powell says in combat, decisions often have to be made in a split second.

Maj. POWELL: It's very difficult for the Marines over there. They are faced with life-and-death decisions, decisions to take another life and, of course, decisions to protect their own life and to protect the life of their fellow Marines.

NORTHAM: The Pantano case is just one of several recent high-profile cases involving the abuse or death of Iraqis. Since the Iraq War began just over two years ago, at least 12 US service members have been convicted on charges involving the death of Iraqis. Only three of those sentences has exceeded three years, including an Army sergeant who was sentenced to 25 years for murder. Some have been acquitted. Marine spokesman Powell says in one case, a prisoner died after being dragged by the neck from his cell.

Maj. POWELL: There was an officer that was convicted at a court-martial of dereliction of duty and, I believe, a sergeant of other charges, as well.

NORTHAM: The officer was dismissed from the military; the sergeant was sentenced to 60 days' hard labor without confinement.

Gary Solis is a former military lawyer and judge and is currently a professor at the US Military Academy at West Point. He says under the Uniform Code of Military Justice, or UCMJ, the rights given the accused are enormous. But Solis says many of the recent cases haven't even made it into a courtroom.

Professor GARY SOLIS (US Military Academy at West Point): When it's close to the line, they simply are not tried. The cases that we see are cases where a reasonable person would believe that there is evidence to believe that the accused committed a crime, and they're getting off.

NORTHAM: Solis says he's a firm believer in military justice, but wonders if the military is being too lenient. Solis points to the case of Army First Lieutenant Jack Saville, who was accused of ordering two Iraqis who had been picked up for breaking curfew into a river at gunpoint near Samarra in January 2004. Military prosecutors said one of the Iraqis drowned. Charges against Saville included involuntary manslaughter. He faced more than nine years in prison. A plea deal was worked out; Saville pled guilty to aggravated assault and other charges. Solis says in this case, the punishment doesn't quite fit the crime.

Prof. SOLIS: He was sentenced to 45 days' confinement. Now I wonder how 45 days stacks up against a dead body. I was not there, but I have enough experience in the system to know that that's an unusually light sentence.

NORTHAM: Colonel Mike Childe(ph), the chief of the Criminal Law Division for the Army, says he understands the perception that soldiers and Marines are getting off easy. But Childe says that's simply not so and points to the numbers.

Colonel MIKE CHILDE (Chief of Criminal Law Division, US Army): One million military personnel, 70,000 detainees, 370 alleged incidents of detainee abuse. And to date, there are 55 courts-martial that are in a process of completion or pending and there are 103 administrative disciplinary actions that have been taken.

NORTHAM: Under the UCMJ, the decision whether to even initiate an investigation lies with a commanding officer, usually a general. An investigator is assigned to determine what happened. After that, the commander can, if necessary, convene an Article 32 investigation, which in turn can lead to a military court-martial. Unlike civilian courts, there are no federal guidelines for sentencing in the military justice system, but there is a recommended maximum punishment. Army Colonel Childe says the accused faces a military jury, or a panel, that understands what happens on the battlefield.

Col. CHILDE: In the military, in the case of Iraq, you're going to have panels that are facing the same conditions as the accused. And so it would seem certainly natural that they will consider the combat environment in which the events take place.

NORTHAM: An investigation found that combat environment influenced the outcome of a case that involved a shooting in a mosque in Fallujah in November, when a Marine corporal was videotaped by an NBC cameraman shooting an apparently injured and unarmed Iraqi lying on the floor of the mosque. A Marine can be heard saying one of the wounded Iraqis is pretending he's dead.

(Soundbite of videotape)

Unidentified Man: He's faking he's (censored) dead!

NORTHAM: Then there's a sound of gunfire.

(Soundbite of gunfire)

NORTHAM: The cameraman, Kevin Sites, told NPR's "Day to Day" program that the Marine raised his M-16 and fired point-blank into the Iraqi's head. Then the Marine says, `He's dead now.'

The case never even made it to an Article 32 hearing. Investigators reviewed the videotape and determined that the Iraqi was concealing his left arm behind his head and that the corporal could have thought the man was feigning death only to attack later.

But aborting a case such as the mosque shooting before there's been a full airing in a courtroom can sometimes erode public confidence in the military system, says Gene Fidell, the president of the National Institute of Military Justice.

Mr. GENE FIDELL (President, National Institute of Military Justice): There is an important interest served by sending cases to trial. Of course, it has a certain chilling effect on the conduct of our GIs, but it also sends a message to the local population and to people around the world, as well as in this country, about our unwillingness to sweep things under the rug.

NORTHAM: Fidell says he's surprised at the outcome of some of the most recent cases against US service members, but that soldiers still have to be given the benefit of the doubt. Fidell says the last thing troops on the ground or pilots in the sky need is a defense counsel at their elbows at all times. Jackie Northam, NPR News, Washington.

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