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Iraq charges raise rare specter

Several new cases may bring the death penalty for U.S. soldiers, a punishment not carried out since 1961.

By TIMES WIRES
Published June 29, 2006

The charges are startling - an Iraqi man was dragged from his home, tied up and shot to death by five Marines. And the potential punishment is the harshest possible: death.

But alleging a wartime killing is far different from proving it. And even when a conviction is won, the penalties vary greatly.

Not since World War II have members of the U.S. military faced murder charges for killing prisoners. Not since the My Lai massacre during the Vietnam War have U.S. soldiers formally been accused of indiscriminately slaughtering innocent civilians.

Several new cases have emerged from the wars in Iraq and Afghanistan that could bring up a punishment the military seldom imposes and rarely carries out.

The Defense Department's modern-day criminal justice system has little experience with the death penalty and allegations such as the war crime charges that have surfaced in Iraq. There are just six men on the military's death row at Fort Leavenworth, Kan.; no one has been executed since 1961.

Just bringing charges can be difficult, because it can be exceedingly hard to gather clues from the scene where bullets may be flying, evidence can easily be doctored or destroyed, and witnesses may have dramatically different accounts of what happened - particularly if the death occurred during the chaos of battle.

Soldiers also often are unwilling to turn on their comrades-in-arms and assist military investigators, who themselves recognize "that things can be wild on the battlefield and the hazards and unfairness of Monday-morning quarterbacking," said Eugene R. Fidell, a civilian defense attorney and president of the National Institute of Military Justice.

Recent weeks have brought a flurry of activity on the legal front.

Eleven other soldiers in Iraq and Afghanistan already have been tried in connection with the death of someone in their custody, but none received a death sentence. The one convicted of the most serious charge - premeditated murder - was sentenced to 25 years. Several others were convicted of, or pleaded guilty to, lesser charges.

The new cases present a challenge to the military judicial system because they involve murder charges "in a place where the whole idea is to kill people" said Charles Gittins, a military law expert who has defended service members in a variety of cases. "The defense is going to show that the killing was within the rules of engagement they had been provided."

The jury, he said, will consider the circumstances of combat, the day-in, day-out fear the soldiers live with, and the fact that the defendants lost friends in the war.

Gittins said it is likely that all of the jurors would have likely served at least one tour in Iraq and would be sympathetic to the conditions there.

The jurors, all members of the military, are selected by the commander.

If a commander recommends the death sentence in any case, the final decision on its imposition would require presidential approval.

Such a choice could present a political dilemma for the commander in chief, who might face conflicting pressures to show support for troops yet not condone atrocities.

[Last modified June 29, 2006, 05:42:44]