JBLM MIGHT BE IN FOR 2nd MAJOR WAR-CRIMES CASE IN SHORT PERIOD
By Christian Hill
** The soldier suspected in Sunday’s killing spree in Afghanistan was flown out of Afghanistan Wednesday, the first major move in a legal process that will be closely watched around the world. **
News Tribune (Tacoma, WA)
March 14, 2012
TACOMA -- The soldier suspected in Sunday’s killing spree in Afghanistan was flown out of Afghanistan Wednesday, the first major move in a legal process that will be closely watched around the world.
There’s a fair chance he will be detained and tried at his home station of Joint Base Lewis-McChord, military law experts said. For the base, it would be the second sensational war crimes case in the last few years. If it plays out as a death penalty case, it would be the first time Lewis-McChord has hosted one of those in memory.
But the experts noted the military justice system gives the Army broad latitude to prosecute the 38-year-old combat veteran elsewhere, and leaders may choose to do so for various reasons, including Afghan cries for justice on their soil.
Wherever it happens, it will likely take several months to hold a pretrial hearing after he’s charged and at least another year for a court-martial to start due to legal motions and other wrangling.
“It’s going to be a long, long haul before it gets to trial,” said Victor Hansen, a retired Army prosecutor and professor at the New England School of Law in Boston.
The unidentified soldier stands accused of killing 16 Afghan civilians, including nine children, during a rampage Sunday that has drawn international condemnation and complicated negotiations toward a long-term U.S. presence in Afghanistan. Unnamed sources have identified him as a staff sergeant assigned to the 3rd Brigade, 2nd Infantry Division, which left Lewis-McChord in December.
A Pentagon spokesman said the soldier was flown out of Afghanistan Wednesday night “based on a legal recommendation.” An unnamed U.S. military official said the soldier was flown to another country aboard a U.S. military aircraft but declined to say where it was headed.
An I Corps spokesman at Lewis-McChord said Wednesday he was unaware of any plans to detain the soldier at the local base, and that it’s too soon to know where he ultimately will be tried.
The experts interviewed by the News Tribune said this case is unique for the wars in Afghanistan and Iraq and perhaps for earlier wars because a soldier acted alone to methodically gun down several civilians outside combat. Other high-profile cases, including the Afghan “kill team” case tried at Lewis-Chord in 2010 and 2011, involved several soldiers accused of killing three civilians over a period of months and carefully disguising the deaths as legitimate combat engagements.
“We’re breaking new ground here in a very, very tragic and explosive way,” said Eugene Fidell, a noted military lawyer who teaches military justice at Yale Law School.
Fidell said prosecuting a solder at his home station is the “default position” for the military. But he noted the system isn’t bound by constitutional restraints that limit where trials can be held, unlike federal criminal cases. And he said the court-martial could be moved elsewhere if the Army decides another location is more convenient or determines it’s easier to seat an impartial jury.
Hansen said what makes Lewis-McChord a good candidate is it has its own courtrooms and a detention center. Also, two military judges are based here and wouldn’t have to travel to preside over what’s anticipated to be a lengthy case. Lewis-McChord also has a large number of potential jurors; it is the largest military installation on the West Coast with more than 40,000 soldiers and airmen.
“Given the size of the military base and the number of military members there, that provides a larger pool in which to draw those names from,” Hansen said.
On the other hand, Fort Bragg in North Carolina has “got the system down” because it’s handled a number of capital case and recently modernized its courtrooms, Hansen said
Afghan authorities are barred from prosecuting U.S. service members under an agreement reached between the U.S. and Afghanistan’s former government following the overthrow of the Taliban regime, Fidell said.
But Afghan lawmakers have demanded that the soldier be publicly tried in their country. They have called on President Hamid Karzai to suspend all talks with the U.S. until that happens.
The Pentagon spokesman said the soldier’s removal Wednesday did not necessarily mean the trial would be held outside Afghanistan, but the other military official said legal proceedings would continue in another country.
Military law experts told the News Tribune nothing prevents the soldier from being tried in Afghanistan but they consider that unlikely. Fidell said such a trial is “certain to be a flashpoint” for further unrest. Hansen said trying this case in the middle of an ongoing combat mission would be a “huge distraction.”
Elizabeth Hillman, law professor at the University of California-Hastings and president of the National Institute for Military Justice, said flying expert witnesses and other resources to try the case overseas “would be unusual.”
Given that the bulk of a trial would focus on the soldier’s mental state and culpability, she said, “there’s no strong reason to do that in Afghanistan.”
But a decision to remove the soldier from the country may complicate the prosecution, said Michael Waddington, an American military defense lawyer who represented a ringleader of the 2010 kill team. The prosecutors won’t be able to use statements from Afghan witnesses unless the defense is able to cross-examine them, he told the AP.
Waddington said the decision to remove the suspect was likely a security call.
“His presence in the country would put himself and other service members in jeopardy,” he said.
The Associated Press contributed to this report.
Christian Hill: 253-274-7390
DAYS AFTER AFGHANISTAN MASSACRE, SUSPECT UNNAMED
By Gene Johnson
March 14, 2012
OLYMPIA, Wash. -- The U.S. serviceman suspected in the massacre of more than a dozen Afghan civilians is a 38-year-old father of two who served three tours in Iraq and is based in Washington State. Still, days after the slayings, the military has kept under wraps one of the most salient details -- his name.
Military officials said it was military policy not to release the name until charges are filed. But military experts said this case seems unusual.
"This is unprecedented in my experience," said Eugene Fidell, who teaches military law at Yale University. "It's very strange."
Fidell speculated that the military was focused on ensuring the safety of the soldier's family.
Information has also been limited inside the military. Jill Barber, a wife of a staff sergeant in the same battalion as the suspect, said she learned of the Sunday shooting only from news coverage. She said her husband wasn't allowed to call her for more than a day after the shooting and that soldiers can get in trouble for talking about it.
"They shut everything down over there," Barber, of Yelm, about 60 miles south of Seattle, said Monday. "I didn't even find out about it from him. They're not allowed to say anything."
It's typical for the military to put stringent controls on communication in the aftermath of deaths or injuries, including the shutdown of Internet and telephone access on a combat zone base, often for 24 hours. If a soldier is wounded but his injuries are not life-threatening, military officials will allow him or her to call next of kin on a satellite phone, but they are instructed not to mention others having been hurt or killed -- and an officer or an NCO stands at the bedside to make sure that rule is followed.
Jeffrey Addicott, who previously served as the senior legal adviser to the U.S. Army's Special Forces, said the military has increasingly used the shutdown of communications to control information. He said soldiers who are aware of the identity of the suspect likely have orders from superiors not to speak about it and have probably had their electronic devices confiscated so nothing leaks out.
Addicott said he can't think of any other case where a name has been held back for this long, but he thinks it may be necessary in this case to help contain any backlash. He fears that extremists may try to seek revenge for the killings, perhaps by targeting the soldier's family.
"I think it's probably a good thing that we don't have to release his name," Addicott said.
In this instance, military officials haven't even officially confirmed that the soldier was based at Joint Base Lewis-McChord near Seattle. That information came from sources who spoke to the Associated Press and other media organizations and spoke only on condition of anonymity. Base spokesman Joe Piek referred any questions to military leaders in Afghanistan.
The suspect was flown out of Afghanistan on Wednesday evening to what officials describe as a pretrial confinement facility. Military leaders haven't publicly discussed details about the suspect, though officials have anonymously described him as a 38-year-old father of two who has been in the military for 11 years. He's served three tours in Iraq and began his first deployment to Afghanistan in December.
The soldier is with the 3rd Stryker Brigade Combat Team, 2nd Infantry Division. He was attached to Camp Belambai, home to a village stability force that pairs special operations troops with villagers to help provide neighborhood security.
Authorities said the suspect attacked two small villages close to his base in southern Kandahar province. An Afghan official said he was shown a surveillance video of the soldier returning to his base, laying down his weapon and raising his arms in surrender.
There have been other circumstances where military officials have taken their time in releasing information about soldier suspects, such as in the deliberate thrill killings of three Afghan civilians during patrols by another Lewis-McChord based unit in 2010.
Just after the last of those killings, in May of that year, a whistleblower told Army investigators about the unjustified killings. The officers quickly identified which killings the whistleblower was talking about, and within days they had arrested a dozen soldiers -- five for potential involvement in the deaths, and the rest for a series of other misdeeds, including taking body parts from the dead and drug use.
Vague word of the arrests leaked out about two weeks later. The Army released the name of one of the central figures in the case, Jeremy Morlock, in early June after he had been charged with murder. It did not release the other names and charges until mid-June.
While that case was largely unknown until the military released information, this week's case was immediately known across the globe.
--Associated Press writers Manuel Valdes near Joint Base Lewis-McChord, Shannon Dininny in Yakima and Robert Reid in Cairo, Egypt, contributed to this report.
--Baker can be reached at https://twitter.com/MikeBakerAP
--Johnson reported from Seattle and can be reached at https://twitter.com/GeneAPseattle
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