America’s Record for Prosecuting Allegations of War Crimes Is Spotty, Death Penalty Very Rare
Defense Secretary Leon Panetta says the death penalty is possible if a U.S. military court finds an Army staff sergeant guilty of gunning down Afghan children and family members. But it isn’t likely.
History shows that the U.S. military system is slow to convict Americans, particularly service members, of alleged war crimes. And when a punishment is imposed, it can range anywhere from life in prison all the way down to house arrest. Other factors can seem to play more of a role than the crime itself.
In the case of Army Staff Sgt. Robert Bales, the suspect in the March 11 Kandahar shootings, legal experts say the 38-year-old married father of two young children could face a lengthy prison sentence if convicted of the crime, which has threatened U.S.-Afghan relations. But on his fourth combat tour and with a head injury on his record — the sergeant remembers little about that night, Bales’ lawyer says — he might well be shown some leniency by the military jury, even if convicted.
“Political pressure is going to drive the push for the death penalty. Doesn’t mean they’re going to get it,” said Charles Gittins, a Virginia-based defense attorney who represents service members and has handled capital cases.
Of the long list of alleged U.S. atrocities — from prison massacres in World War II to the slaughter of civilians at My Lai in Vietnam — relatively few high-profile war crimes believed to involve Americans in the past century have resulted in convictions, let alone the death penalty.
In the case of My Lai, President Richard Nixon reduced the only prison sentence given to three years of house arrest. In the 2005 Haditha shooting of Iraqi civilians, eight Marines were charged but plea deals and promises of immunity in exchange for testimony meant no prison sentences.
Prosecution against Blackwater employees in the 2007 shootings in Baghdad’s Nisoor Square similarly floundered as civilian prosecutors tried to assemble the case. Charges eventually were thrown out on the grounds that prosecutors mishandled evidence, although a federal appeals court last year resurrected the case.
Legal experts say a big part of the challenge is assembling forensic evidence and eyewitness testimony from remote, often dangerous parts of the battlefield thousands of miles away from the United States. And there’s an emotional component, too, in prosecuting U.S. citizens who have risked their lives in combat.
“Terms like ‘fog of war’ mean nothing legally,” said Eugene Fidell, who teaches military law at Yale University. “But there’s a reluctance to invoke the full moral sanction of criminal justice in these cases.”