Global Policy Forum

Few Troops Tried For Killing Civilians

By Josh White, Charles Lane and Julie Tate

The majority of U.S. service members charged in the unlawful deaths of Iraqi civilians have been acquitted, found guilty of relatively minor offenses or given administrative punishments without trials, according to a Washington Post review of concluded military cases. Charges against some of the troops were dropped completely.

Though experts estimate that thousands of Iraqi civilians have died at the hands of U.S. forces, only 39 service members were formally accused in connection with the deaths of 20 Iraqis from 2003 to early this year. Twenty-six of the 39 troops were initially charged with murder, negligent homicide or manslaughter; 12 of them ultimately served prison time for any offense.

Some military officials and analysts say the small numbers reflect the caution and professionalism exercised by U.S. forces on an urban battlefield where it is often difficult to distinguish combatants from civilians. Others argue the statistics illustrate commanders' reluctance to investigate and hold troops accountable when they take the lives of civilians. "I think there are a number of cases that never make it to the reporting stage, and in some that do make it to the reporting stage, there has been a reluctance to pursue them vigorously," said Gary D. Solis, a law professor at Georgetown University and a former Marine prosecutor. "There have been fewer prosecutions in Iraq than one might expect." "But we should not forget that so many of our soldiers and Marines are performing not only honorably, but heroically, in very difficult circumstances," he added. "Their contributions should not be tarnished by the acts of a very, very few."

Top military officers, military lawyers, experts and troops say the number of homicide cases prosecuted probably represents only a small portion of the incidents in which Iraqi citizens were killed under questionable circumstances. Officials also say privately that some cases have not been investigated thoroughly because there has been a tendency to consider Iraqi civilian deaths an unintended consequence of combat operations. "I think there were many other engagements that should have been investigated, definitely," said an Army major who served in Iraq in 2004, speaking anonymously because he fears retribution. "But no one wanted to look at them or report them higher. . . . It was just the way things worked."

Others contend, however, that civilian deaths are inevitable in war and that the close combat environment in Iraq frequently puts civilians in the line of U.S. and insurgent fire. The cases highlight the sometimes fine line between a criminal allegation and the bloodshed that is a part of war. Spec. Nathan Lynn, a Pennsylvania National Guardsman, shot and killed a man in the darkness of a Ramadi neighborhood in February. Lynn said he considered the man a threat and believes he did nothing wrong. The man was not armed, and Lynn was charged with voluntary manslaughter. But a military investigator agreed that Lynn acted properly in a difficult situation, and the charges were dropped. "I was extremely surprised when I was charged because it was clear the shooting fell within the guidelines of my rules of engagement," Lynn said. "This is a war. It's not a police action."

A Look at the Numbers

The Post undertook the review after allegations surfaced in recent months that U.S. forces had killed significant numbers of civilians in places such as Haditha, Hamdaniya and Mahmudiyah, with many of the victims women and children. The review included the military justice system's disposition of incidents that occurred from June 2003 to February 2006. It did not include cases from Afghanistan. Also excluded was the killing of 24 civilians by Marines in Haditha in November 2005, which is under investigation.

There is no accurate count of the number of Iraqi civilians killed by U.S. forces. Iraq Body Count, an independent group that advocates more extensive investigation of civilian deaths, estimates that 40,000 to 45,000 civilians have been killed by insurgents, terrorists and U.S. personnel. Military officials say they do not track overall civilian casualties. But recently, the military said that an average of one Iraqi civilian was killed by U.S. troops each day in 2005 in "escalation of force" incidents alone. These include, for example, shootings of drivers who did not heed instructions at checkpoints and appeared to be threats.

The harshest penalty, meted out to two soldiers in separate murder cases in 2004, was 25 years in prison -- one of the convicted shot an Iraqi soldier, and the other shot an Iraqi man in his house. Two others convicted in what was called a mercy killing of an Iraqi each received one year in jail. Solis, who has studied civilian homicides from the Vietnam War, said there were 27 Marines and 95 Army soldiers convicted of murder and manslaughter in that conflict, which lasted much longer and produced many more casualties than the Iraq war has so far.

According to The Post's review of publicly reported cases from Iraq, 39 U.S. service members were charged with crimes in connection with the deaths of Iraqi civilians or for allegedly covering them up, from the start of the war in March 2003 through early 2006. Twenty-four Army personnel were charged in connection with civilian deaths. Twelve were convicted of crimes and received jail sentences that ranged from 45 days to 25 years. Four others were tried at courts-martial, resulting in one acquittal and three convictions with no confinement. Charges against two others were dropped. Six received administrative punishments, including four who cooperated with government prosecutions of their superiors. In administrative cases, no trial is held and the charges and penalties are not made public. "Each case was evaluated independently, and appropriate action was taken in each case," Paul Boyce, an Army spokesman, said Friday after officials examined The Post's data. "Conviction and confinement is not always the measure of a correct result."

Five Marines were involved in homicide cases. One officer was convicted of dereliction of duty and maltreatment for strangling an Iraqi prisoner in 2003 and was dismissed from the Corps; one was acquitted; and charges against three others were dropped. One naval officer was charged and acquitted in a case related to the death of a detainee at Abu Ghraib prison, and eight Navy SEALS and one sailor received administrative punishments in the same case. Army and Marine officials confirmed that The Post's compilation of criminal homicide cases is comprehensive. The Naval Criminal Investigative Service, which handles Navy and Marine cases, did not respond to requests for comments on the data.

Since March, an additional 17 U.S. troops have been charged with murder in three separate incidents. The increase in the rate of charges is in part because Lt. Gen. Peter W. Chiarelli, commander of Multinational Corps-Iraq, ordered officers in April to look at every escalation-of-force incident that led to civilian casualties. That effort began after the killings in Haditha came to light and it was alleged that officers in the chain of command ignored the case or covered it up. "Part of our mission success depends on not creating additional enemies because of our actions," said Lt. Col. Michelle Martin-Hing, a spokeswoman for Chiarelli. The number of civilians killed has declined from an average of seven per week last year and four per week in January to about one per week in August, she said.

No homicide prosecutions have arisen from shootings at U.S.-manned checkpoints, where troops sometimes kill approaching drivers if they appear to be suicide bombers or insurgents. But officials have been focusing on eliminating such deaths. Standardized signs warning that U.S. troops can use deadly force are displayed, and Chiarelli is trying to buy green warning lasers to use to get drivers' attention without firing warning shots.

Too Few Convictions?

The homicide data have caused concern among some human rights advocates and experts on military law, who say the low conviction rate and seemingly lenient punishments may be sending the wrong signal, both to U.S. troops and to the Iraqi people. "We are indeed having trouble getting convictions and accountability, and so are other countries," said Eugene R. Fidell, president of the National Institute of Military Justice. "It has struck me that the sentences are kind of modest."

But several experts on military justice said that the convictions and penalties so far are a reasonable outcome for a system designed to give soldiers fair trials in which the special circumstances of the battlefield are taken into account. "Military justice is a two-edged sword," said Michael A. Newton, a former Army lawyer who teaches at Vanderbilt University law school and advises the judges supervising Saddam Hussein's trial. "It is a tool for discipline and military efficiency, but it is also a tool for preserving fairness and the rights of soldiers."

Some incidents clearly took place outside of combat and without provocation. Army Pvt. Federico Daniel Merida, for example, killed an Iraqi soldier in May 2004 by shooting him 11 times after the two had sex. He was later sentenced to 25 years in prison and given a dishonorable discharge. In October 2004, Army Sgt. 1st Class Jorge Diaz shot a detainee in the face after searching a suspected insurgent's house. He was sentenced to seven years and given a dishonorable discharge.

A series of incidents involving the 1st Battalion, 41st Infantry Regiment in August 2004 highlighted the stresses of battle in the heavily contested Sadr City section of Baghdad and led to four soldiers serving sentences in the deaths of three Iraqi civilians. One of the civilians was shot to death after soldiers attacked a trash truck they believed was dropping roadside bombs. Two soldiers told authorities that the man was in such bad shape, they shot him to put him out of his misery. In the days that followed, two different soldiers from the same unit, Sgt. Michael P. Williams and Spec. Brent May of the 3rd Platoon, went into two houses in Sadr City during a routine security sweep and shot two unarmed men, later arguing that they felt threatened. Williams and May were investigated for murder only after Lt. Erick Anderson, their platoon leader, forced the battalion's officers to start a probe.

Shortly after filing a report, Anderson was charged with murder. "In the very beginning, no one wanted to do anything about it," said Anderson, 27, who has left active duty and is living in Kansas. "I think the officers didn't want to have the possibility of having themselves brought into it. They didn't want to go through the whole process." Charges against Anderson ultimately were dropped, and he was promoted. He said that during his tour there were many cases of slain Iraqi civilians that never drew scrutiny. "I think once people started seeing the reality of what can happen, when something did happen, they wanted to bury it," he said. Williams pleaded guilty and was initially sentenced to life in prison, a sentence later reduced to 25 years. May was sentenced to five years.

Retired Maj. Gen. John Batiste, who commanded the 1st Infantry Division in northern Iraq, said he always sought to address crimes as quickly as possible in order to maintain the trust of Iraqis. "We created more enemies in Iraq than there were insurgents, and that's a geometric equation," Batiste said.

How Military Courts Work

To win a murder conviction, military prosecutors must prove beyond a reasonable doubt that the accused killed "without justification or excuse." But that is not always easy in a war zone. The Uniform Code of Military Justice was enacted by Congress in 1950 partly to help make military trials more like civilian trials, with more procedural protections for the accused. But there are key differences between a military criminal case and a civilian one. One of the most fundamental is that the initial decision to start a criminal investigation ultimately rests with the commander of the service member in question, who can order administrative or non-judicial punishments instead of courts-martial. Critics of the military's processes in Iraq say the performance so far shows a need to change the decentralized decision-making structure. They argue that it creates the potential for improper "command influence" in favor of defendants by officers who don't want the embarrassment of criminal investigations of their subordinates. Hina Shamsi, senior counsel at Human Rights First, a New York-based nonprofit organization that monitors the military justice system, is a supporter of such changes. Nevertheless, she said: "The system is adequate. When properly followed, it works extremely well." When criminal proceedings are authorized, there is no grand jury to hear testimony from witnesses called by a prosecutor. Instead, a proceeding called an Article 32 hearing takes place before a single officer. The defense is allowed to present evidence and cross-examine prosecution witnesses. Charges sometimes fail at this stage.

That happened in the case of Marine 2nd Lt. Ilario Pantano, who was charged with murder in the deaths of two Iraqis he had detained at a roadblock in April 2004. He shot the men 60 times and left a sign on their bodies warning insurgents not to risk similar treatment. But he said he fired only after they made threatening moves in his direction. The Article 32 hearing officer agreed and dropped the charges, partly because forensic evidence showed that the men were shot in the chest, supporting Pantano's story that they were moving toward him when he fired.

Court-martial juries are made up exclusively of fellow service members, all of whom must outrank the accused, though enlisted personnel are entitled to a jury composed of at least one-third enlisted troops. Service members now frequently face juries that include members with battlefield experience in Iraq and Afghanistan. Frequently, soldiers say they fired because they perceived a threat, or because they believed that their actions were authorized by the rules of engagement or other orders. "It's not an easy call to make. It requires getting into the head of a serviceman," said retired Rear Adm. John D. Hutson, a former Navy judge advocate general who is now dean of the Franklin Pierce Law Center in Concord, N.H. "Rape is pretty clear, but death of civilians can be a part of the fog of war, or it can be the result of inexperience or misjudgment."

When Abed Hamed Mowhoush, a captured former general in Hussein's army, died in November 2003 after interrogation by U.S. intelligence officers, Iraqi agents and U.S. soldiers, Chief Warrant Officer Lewis E. Welshofer Jr., a military interrogator, was found guilty of negligent homicide, not murder. Welshofer had stuffed the general headfirst into a sleeping bag and straddled his chest while questioning him. The jury that convicted him rejected the prosecution's claims that Welshofer intended to kill. Welshofer had sought approval for the sleeping bag method at a time when U.S. policy on interrogations of resistant Iraqi insurgents was, at best, unclear. The jury gave him a formal reprimand, fined him $6,000 and said he should be confined to his home, office and church for 60 days. Welshofer defended his actions in a February 2004 letter to the commander of the 82nd Airborne Division, citing his "moral obligation to do everything I can to protect the lives of my fellow soldiers."