Iraq murder charges raise specter of rarely used military death sentence

By: LOLITA C. BALDOR - Associated Press | Wednesday, June 28, 2006 11:39 PM PDT ∞

WASHINGTON -- A string of alleged atrocities by U.S. troops in Iraq and Afghanistan is testing the military justice system and raising the possibility that American soldiers may face the death penalty for acts in countries where every street can be a battlefield.

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.

If a commander recommends the death sentence in any of the cases, 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.

In recent days, seven Marines and one sailor have been charged with the April murder of an Iraqi civilian in Hamdania, while four Army soldiers face premeditated murder charges for the deaths of three Iraqi detainees at Iraq's Thar Thar canal.

The military also is looking into allegations that several Marines massacred up to two dozen civilians in Haditha, Iraq, in November.

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.

Eugene Fidell, a lawyer who specializes in military cases and teaches at American University's Washington College of Law, said criminal charges should be determined by lawyers, not the commanders. He said he was concerned that defendants will be treated differently, particularly in death penalty cases.

"The danger there is you could have tremendously divergent treatment of cases that were essentially the same," he said. "That is certainly worrisome to a person on death row."

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. The defense is going to show that the killing was within the rules of engagement they had been provided," said Charles Gittins, a military law expert who has defended service members in a variety of cases.

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.

The trials will come at a time when the U.S. is struggling to improve relations with the Muslim world and needs to demonstrate it takes the deaths of the Iraqi civilians and detainees seriously. At the same time, many nations, particularly those in Europe, staunchly oppose the death penalty and have condemned America's use of it.

The Uniform Code of Military Justice lists 15 offenses that carry the death sentence. They include murder and rape, as well as desertion or assaulting a superior officer during wartime.

The last person executed at the military's maximum security prison at Fort Leavenworth was Pvt. John A. Bennett of Virginia. Convicted of rape and attempted murder, he was hanged in April 1961 after President Kennedy confirmed the sentence.

The Armed Forces Court of Appeals struck down the military's capital sentencing procedures in 1983. A year later, the death sentence was reinstated after the procedures were changed. Since then, no president has authorized the death sentence in any military case.

The manner of execution also has changed.

Documents discovered in the Pentagon in 2003 listed about 200 military executions between 1942 and 1961, including many who were hanged and several who were shot. Since Bennett's hanging, the military brought in an electric chair, which it never used, and more recently built a facility where prisoners can be executed by lethal injection.

The My Lai massacre involved the deaths of hundreds of unarmed civilians in Vietnam in March 1968 and led to the conviction of Army Lt. William Calley Jr. Calley was sentenced to life in prison, and his sentence was reduced by President Nixon. Calley served three years of house arrest.

On the Net:

Military executions, according to the Death Penalty Information Center: http://www.deathpenaltyinfo.org/article.php?scid32&did988

A look at criminal cases stemming from the deaths of Iraqis since the war began in 2003:

CONVICTIONS:

--Staff Sgt. Cardenas J. Alban, convicted of killing a severely wounded 16-year-old Iraqi during fighting in Baghdad's Sadr City neighborhood. He was sentenced to one year's confinement, demoted to private and given a bad-conduct discharge.

--Staff Sgt. Johnny Horne Jr., pleaded guilty to unpremeditated murder in the same case as Alban. He was sentenced to three years in prison, had his rank reduced to private, forfeited wages and was given a dishonorable discharge. His prison sentence was later reduced to one year.

--Cpl. Dustin Berg of the Indiana National Guard, convicted and sentenced to serve 18 months in prison for the shooting death of an Iraqi police officer.

--Spc. Rami Dajani, convicted of making a false statement following the fatal shooting of an Iraqi translator. He was sentenced to 18 months' confinement and given a reduction in rank and bad-conduct discharge.

--Spc. Charley L. Hooser, convicted of involuntary manslaughter in the same case involving Dajani. Hooser was sentenced to three years in prison and given a reduction in rank and bad-conduct discharge.

--Capt. Rogelio "Roger" Maynulet, convicted of assault with intent to commit voluntary manslaughter in the shooting death of a wounded Iraqi. He got no prison time but was dismissed from the armed forces.

--Pvt. Federico Daniel Merida of the North Carolina National Guard, pleaded guilty to killing a 17-year-old Iraqi soldier after the two had consensual sex. He was sentenced to 25 years in prison, given a reduction in rank and dishonorably discharged.

--Marine Maj. Clarke Paulus, convicted of dereliction of duty and maltreatment in a case stemming from the death of an Iraqi prisoner who was dragged out of his holding cell by the neck, stripped naked and left outside for seven hours in 2003. Paulus, who commanded a Marine detention camp in Iraq, was dismissed from the service but received no prison time.

--Sgt. 1st Class Tracy Perkins, acquitted of involuntary manslaughter in the alleged drowning of an Iraqi man but convicted of assault for forcing the man and his cousin into the Tigris River. He was sentenced to six months in prison.

--1st Lt. Jack Saville, pleaded guilty to assault and other crimes in the same incident as Perkins and was sentenced to 45 days in prison.

--Pfc. Edward Richmond, convicted of voluntary manslaughter for shooting an Iraqi in the back of the head. He received three years in prison.

--Sgt. Michael P. Williams, convicted one premeditated murder and unpremeditated murder in the deaths of unarmed civilians during operations near Sadr City. He was sentenced to life in prison and given a reduction in rank. His sentence was later reduced to 25 years.

--Spc. Brent May, convicted of unpremeditated murder in the same incident as Williams. He was sentenced to five years.

--Chief Warrant Officer Lewis Welshofer of the 3rd Armored Cavalry Regiment, found guilty of negligent homicide and negligent dereliction of duty in the death of Iraqi Maj. Gen. Abed Hamed Mowhoush after interrogation at a detention camp. A military jury ordered a reprimand and forfeiture of $6,000 of his salary, and restricted him to his home, office and church for two months.

CLEARED/ACQUITTED:

--Marine 2nd Lt. Ilario Pantano, cleared of murder charges in the shooting deaths of two Iraqi civilians. Pantano had been accused of riddling the two with bullets and hanging a warning sign on their corpses as a grisly example to insurgents.

--Staff Sgt. Shane Werst, acquitted of premeditated murder in the shooting death of an unarmed Iraqi. Werst said he fired to save a fellow soldier.

PENDING CASES:

--Hospitalman Third Class Melson J. Bacos, Sgt. Lawrence G. Hutchins III, Lance Cpl. Tyler A. Jackson, Pfc. John J. Jodka, Cpl. Marshall L. Magincalda, Lance Cpl. Robert B. Pennington, Lance Cpl. Jerry E. Shumate, Jr. and Marine Cpl. Trent D. Thomas are charged with premeditated murder in the shooting death of an Iraqi man in Hamdania. All eight are also charged with kidnapping, conspiracy and other offenses.

--Pfc. Corey R. Clagett, Spc. Juston R. Graber, Staff Sgt. Raymond L. Girouard, and Spc. William B. Hunsaker are charged with the premeditated murder of three male detainees. Clagett, Girouard and Hunsaker are also charged with obstructing justice for allegedly threatening to kill another soldier who was a witness in the case.

--National Guard Sgt. Milton Ortiz, Jr. and Spc. Nathan B. Lynn are charged in the shooting death of an unarmed Iraqi man near Ramadi. Lynn is charged with voluntary manslaughter. Both he and Ortiz are also charged with obstructing justice. Ortiz also faces charges of assault and communicating a threat in a separate incident involving another Iraqi man.

--Chief Warrant Officer Jefferson L. Williams, Sgt. First Class William Sommer and Spc. Jerry Loper are charged with murder and dereliction of duty along with Welshofer in the incident resulting in the death of Maj. Gen. Mowhoush. The Army dropped the murder charges against Jefferson Williams and Loper in exchange for their testimony against Welshofer. The murder charge against Sommer was also dropped. Both Sommer and Williams face possible administrative discipline.

-- Compiled by Associated Press news researchers Monika Mather and Judy Ausuebel