Why We Prosecute Wartime Misconduct

by Lt. Col. (ret.) Jay Morse, JustSecurity, March 10, 2021

See the source imageIn the early morning hours of March 11, 2012, U.S. Army infantryman Robert Bales walked off his outpost near the Afghan village of Belambai. Over the next five hours, Bales murdered 16 men, women, and children, and injured at least six others in the now-infamous Kandahar Massacre. Despite Bales’ defense attorney’s early statements otherwise, Bales’ complicity was never in question. In addition to what was surely an attempt to zealously represent their client, Bales’ attorneys were also likely hedging their bets that the prosecution would have difficulty gathering inculpatory evidence, let alone successfully prosecuting a multiple homicide in a combat zone.

There is no doubt that investigating and prosecuting wartime misconduct is difficult. Remote battlefields, great geographical distances, resource constraints, cultural differences, access to victims, reluctant witnesses, and security risks all contribute to making war crime investigations and prosecutions a daunting affair. Yet, the U.S. military has done so, quite capably, on several occasions over the last 20 years.

Grave stones of some of the sixteen Afghan villagers who were killed in the March massacre are pictured in the grave-yard in Panjwai district of Kandahar province on November 4, 2012.  A US soldier accused of killing 16 Afghan villagers is due in court Monday for the first time since the March massacre, in a pre-trial hearing to decide if he should face a full court martial.  Staff Sergeant Robert Bales is expected to attend throughout the Nov 5-16 Article 32 hearing at Fort Lewis-McChord in the western state of Washington, base spokesman Gary Dangerfield told AFP.   AFP PHOTO/ Mamoon Durrani        (Photo credit should read Mamoon Durrani/AFP/Getty Images)

I was fortunate to lead the team that prosecuted Bales, and was immeasurably relieved that former President Donald Trump did not grant him post-conviction relief, notwithstanding a concerted effort from Bales’ appellate attorneys. A pardon or any clemency would have resulted in manifest injustice to not just Bales’ victims, but to the tens of thousands of service members who have deployed and served honorably in conflict zones, as well as to the U.S. military justice system as a whole. Despite the vocal protestations of a very limited few, U.S. war criminals have been regularly and fairly prosecuted without political influence or senior-leader pressure, with dedication and adherence to integrity, due process, and fundamental fairness, and with appropriate sentences when convicted. These service members have been prosecuted in the interests of justice, good order and discipline, national security, and – perhaps most importantly – simply because it is the right thing to do.

I first learned of Bales’ crimes while stationed in Washington, D.C., where I was the director of the Army’s Trial Counsel Assistance Program. Our office of nearly 30 military attorneys was responsible for investigating and prosecuting special victim crimes around the world, as well as providing prosecutorial training and advice to all of the Army’s prosecutors. In addition, we had three Highly Qualified Expert (HQE) attorneys, each with nearly 30 years of prosecutorial experience, and one of whom just happened to be in Afghanistan on a training trip to Kandahar Airfield at the time of Bales’ murders. That we had an expert on the ground was not merely lucky timing – our attorneys spent between one and three weeks of every month on the road, directly assisting with training, investigating, and criminal trials. And though Afghanistan wasn’t a regular stop, it wasn’t unusual for attorneys from our office to be in a combat zone. Prosecutors and commanders alike recognized (as they still do) the importance of investigating and prosecuting misconduct, whether at home base or in a conflict zone.

Despite distance and time difference, I was in near constant communications (via the dreaded but ubiquitous U.S. government Blackberry) with our civilian HQE, Sandy Tullius, as well as the brigade prosecutor, Cara Hamaguchi (here luck did play a part: though a junior judge advocate at the time, Cara epitomized the mantra of “get s*@t done,” and we fully leveraged her abilities through the end of the trial). Within just a few hours of learning of the murders, we were able to triage our tasks, ensure local military commanders were taking steps to preserve evidence and segregate witnesses, coordinate with U.S. Criminal Investigative Division (CID) personnel in Afghanistan, begin to coordinate with Afghan government personnel, and identify the number and genders of the victims – all necessary information to prepare an accurate as possible charging document.

Once I learned I would be lead prosecutor, I conducted my own internal triage: What was the most important thing I could do as a leader, and that would endure throughout the trial, whether it lasted a few months or several years? After being given near carte blanche to select my team of co-prosecutors (I was rewarded with Rob Stelle, a veteran of high-profile war crime cases, and John Riesenberg, in my mind the smartest attorney in the Army), I determined our focus would be guided by three principles: a) achieve a conviction, while b) committing no insurmountable mistakes, and c) ensuring the victims understood our judicial process. Though I did not think the first two tasks would be easy, they were nearly second nature to our team. Indeed, we conducted all prosecutions with an eye toward conviction while committing the least amount of mistakes possible (which requires, of course, adherence to procedure, due process, and the rules for trial).

By contrast, how we might stay true to that last guiding principle was a great unknown, but of no less significance. Unwritten was an additional goal: I wanted our victims to understand how our process worked, but I also wanted them – along with the international justice community, the media, and to the extent they were paying attention, the American people – to understand how important the victims were to us. Though the U.S. military has had success prosecuting war crimes without victim participation, I wanted this trial to be different. I did not want to give the small-but-vocal contingent of war crimes apologists an opportunity to falsely portray the victims as Taliban members, or children of terrorists, or simple casualties of war; or – for that matter – as nondescript foreigners who dressed differently than Americans and had unfamiliar customs. I did not want the victims seen as anything less than what they were: human beings who were brutally murdered or survived to face terrible suffering. We wanted the court, and anyone else watching the process unfold, to know that Bales murdered a day laborer who was sleeping; murdered old women defending their grandchildren; murdered a young girl by shooting her in the head. And his murder victims surely should have numbered 17 rather than 16, as he shot another young girl in the head at close range. Zardana survived, and would turn out to embody the indomitable human spirit people make movies about. But at the time we simply wanted people to know all of them as who they were: victims who deserved a voice, who deserved justice, who deserved a day in court.

I found, time and again, that we rarely needed to advocate this position to those from whom we needed assistance. Despite a real security risk – one Afghan National Police officer was killed trying to access one of the crime scenes – the regional U.S. military commander eventually provided a significant security team to escort criminal investigators to each of the four homes where Bales committed his murders. As a result, the government was able to obtain DNA and other physical evidence that tied Bales to several of the victims. As the prosecution team, we were provided physical space at Kandahar Airfield where we could base our operations. I asked for and received experts who could help not only with language translation, but with cultural translations as well. During preliminary hearings, we were able to present testimony via videoconferencing between the United States and Kandahar, allowing the victims to testify during their day, while we stayed up late into the night. And, once Bales chose to plead guilty to all 16 murders and six attempted murders, we were able to bring the victims from Belambai, Afghanistan to Ft. Lewis, Washington, where they could testify in person at Bales’ sentencing hearing.

Bales, too, benefitted from the U.S. military justice system. Though patterned on American civilian criminal systems, the military’s Uniform Code of Military Justice differs in one important, and sometimes controversial, way – the government provides an accused not only defense attorneys (though an accused is welcome to hire an attorney using their own funds), but grants reasonable requests for expert assistance as well (and a judge makes the ultimate determination when “reasonable” is in dispute). Bales, for example, requested no fewer than nine experts in various fields to assist in his defense. As the government representative, we objected to none, and all were provided to him, free of charge.

For some of the victims and their families, Bales’ sentence of life without eligibility for parole (“L-WOP,” in military parlance) was not entirely satisfactory. As a reminder, one head of household, a man named Haji Wazir, lost his wife, six of his seven children (four of them less than six years old), his brother, his sister-in-law, a nephew, and his mother (her head literally stomped in by Bales). Yet, despite the grotesqueness of these crimes, two months ago I was deeply concerned that Bales might be granted some form of clemency. In the end, President Trump left office without pardoning him. My hope is that it wasn’t just the horrific facts of Bales’ case that ensured he remains behind bars today, but the greater truth of the power of the military justice system in pursuing and prosecuting war criminals, and the dedication and integrity of those who manage it.

Image: Grave stones of some of the sixteen Afghan villagers who were killed in the March massacre are pictured in the grave-yard in Panjwai district of Kandahar province on November 4, 2012. Photo by Mamoon Durrani/AFP via Getty Images

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