The arrest of a former U.S. Army soldier on charges of rape and four counts of murder while serving in Iraq raises some very troubling and interesting issues.
Why is former Army Pfc. Steven D. Green being prosecuted in federal criminal court for crimes committed while in the military?
Professor Scott Silliman, law professor at Duke University and an Air Force lawyer for 25 years, provides an explanation:
"The Supreme Court established, over 50 years ago, that jurisdiction of the military courts martial system applies only to those on active duty."
Silliman points out that there is one rarely invoked exception: the military can return a retired service member to active duty for the purpose of facing charges in a military court.
The accused, Steven Green, was already separated, but not retired, from the military when the charges against him were filed, which should put him beyond the reach of a military court.
Professor Silliman notes that in the past, federal courts had no jurisdiction over crimes committed by a soldier overseas, if the soldier left the military before the crime was uncovered. Silliman says Congress filled the loophole with the Military Extraterritorial Jurisdiction Act (PDF format). It says that if an offense committed in such a case would constitute an offense under U.S. law that could be punished by more than one year in prison, then the U.S. federal criminal courts would have jurisdiction. In Green's case the rape and multiple murder charges certainly would meet that test.
Since the charges were filed, the Iraqi government has been calling for a review of the immunity granted to U.S. led forces in Iraq. That immunity shields U.S. soldiers from prosecution under Iraqi law. It will be very interesting to see how that issue plays out, as the United States historically has been extremely protective of American servicemen and women stationed overseas. That principle of protecting them against prosecution in local courts has been sorely tested in Japan. In recent years, as Japanese public sentiment against the presence of U.S. forces intensified, the U.S. actually allowed two of its servicemen to be prosecuted for rape under Japanese law.