Tuesday, January 31, 2012

Military justice in the US

"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.   In those so-called 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 last 10 years, the Army has court-martialed 43 people on murder or manslaughter charges in cases that occurred in Iraq or 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 offer a detailed breakdown of 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.  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."