TCS Daily

Judging Haditha

By Pejman Yousefzadeh - June 16, 2006 12:00 AM

John Dickerson and Dahlia Lithwick have a piece in Slate arguing that the Marines accused of perpetrating the Haditha massacre should be turned over to Iraqi courts for trial. Dickerson and Lithwick argue such based on the perceived need for America to diplomatically ingratiate itself to the Iraqis, and the need to give Iraqi institutions legitimacy. While these goals are worthy, they can be pursued and implemented via other means. Meanwhile, jurisdiction over American troops should remain with American courts.

First off, let's address the institutional arguments. Contrary to assertions made by Dickerson and Lithwick, the idea that American courts must retain jurisdiction over the issue doesn't reflect a lack of confidence in Iraqi institutions. It merely respects the fact that there are certain matters that are formally limited to American military jurisdiction -- matters like the conduct of US troops. Dickerson and Lithwick ignore the fact that one could turn their arguments regarding institutional confidence on its head; that is: it could just as easily be maintained that turning jurisdiction over to Iraqi courts reflects a lack of confidence in the dispensation of justice by the American military.

Dickerson and Lithwick admit that their proposal is probably "legally impossible" and they cite Coalition Provisional Authority 17 as a potentially insurmountable bar to the implementation of their proposal. CPA 17, as Dickerson and Lithwick point out, states that "U.S. military and civilian governmental personnel, as well as U.S. contractors, are exempt from the Iraqi legal process." But they argue that the order may potentially be waived and that there is legal precedent for their proposal:

"In July 2001, U.S. officials turned over an American serviceman to face trial in a foreign court for crimes committed in a foreign land. When Staff Sgt. Timothy Woodland was accused of raping a Japanese woman, he was tried in the Japanese judicial system. In that case, U.S. officials put the strength of U.S.-Japanese relations ahead of military and legal constraints. Woodland was handed over despite the express wording of a U.S.-Japan agreement providing that U.S. commanders do not have to relinquish troops until they are indicted.

"Now, Iraq is not Japan, although President Bush never tires of using the occupation of Japan after World War II as a model for the democratic development of Iraq. And we were obviously not engaged in open hostilities on Japanese soil when the incident occurred, nor is there any way to justify a rape as part of a military action. But the object in both cases is the same: Whatever legal barriers existed were deemed less urgent than the political and diplomatic message sent. The idea that we can bolster a shaky trust by subjecting Americans to the criminal justice system of an ally applies in this case as well."

Of course, there are crucial differences between these situations. The first difference -- alluded to by Dickerson and Lithwick -- is that reconstruction in Japan was complete at the time that Staff Sgt. Woodland was turned over to Japanese justice while Iraqi reconstruction is continuing. But even if we ignore this difference, we are left a whole host of procedural and substantive questions surrounding Dickerson's and Lithwick's proposal.

Dickerson and Lithwick do nothing to inform us about the current state of administrative efficiency and efficacy in Iraqi courts. We have no idea whether American service personnel would receive a speedy trial, whether comparable constitutional protections are present, and to degree the process would or could be fair, given that these acts may have been committed by an occupying force during wartime. Indeed, no effort whatsoever is made to educate the reader as to the nature of Iraqi courts. All we are told is that for the sake of bilateral comity between the United States and Iraq, we ought to turn over the suspects for the Haditha massacre to Iraqi justice.

Even if bilateral comity could be improved, at bottom, Dickerson and Lithwick argue that the American justice system should fob off responsibility for trying American service personnel onto others for the sake of PR. This is hardly the stand-up thing to do; the allegations concerning Haditha are serious enough that the American justice system should be deeply involved in sorting out what might have happened and taking care to punish any wrongdoing. Instead, Dickerson and Lithwick demand that precisely the reverse policy take place -- that the American justice system essentially wash its hands of the entire affair. Do Dickerson and Lithwick not think that instead of showing bilateral comity and respect for Iraqi institutions, the implementation of their policy might instead serve to show a lack of seriousness on the part of the United States regarding investigating the allegations and punishing the violators?

To be clear, I am not arguing that the Iraqis should have nothing to do with the process. On the contrary, I believe that the United States should ensure that there is sufficient Iraqi observation and participation in as many stages of the investigation and trial process as possible. Additionally, the U.S. can work closely with Iraqi police forces to get to the bottom of what might have happened at Haditha. This will serve to show confidence in Iraqi security institutions while at the same time ensuring that the United States is not seen as shirking its responsibilities. Finally, Washington should instruct Ambassador Zalmay Khalilzad to give his Iraqi counterparts and the upper echelons of the Iraqi leadership regular status reports concerning any investigation and prosecution of American service personnel. No one denies that the Iraqis have a stake in the process and no one denies that their stake should be respected.

But in the end, the prosecution of American service personnel is a matter for the US justice system to handle. Dickerson and Lithwick try to paint opponents of their positions as lacking respect for Iraqi judicial institutions, but they repeatedly elide the fact that one can respect Iraqi judicial institutions while at the same time not engaging in a wholesale abandonment of American jurisprudential responsibilities. Given the general fairness and sensibility of the American jurisprudential process and the many other ways in which bilateral comity between the United States and Iraq can be fostered and improved; and given the lack of information we have regarding the efficiency, substantive makeup and procedural structure of Iraqi courts, it is best that jurisdiction over any and all Americans who may have been involved in the Haditha massacre remain with the United States.

No one would assert that this reflects or should reflect a lack of confidence in the Iraqi justice system; the Iraqis are trusted, after all, to try Saddam Hussein and his cohorts for their many crimes. But a combination of legal reasons, alternative diplomatic approaches to the fostering of closer Iraqi-American ties and the need for the American justice system to take responsibility for any wrongdoing done by Americans makes Dickerson's and Lithwick's argument unpalatable, indeed, unsupportable.

Pejman Yousefzadeh is a lawyer and contributing writer.



The alleged Japanese precedent
The Japanese incident mentioned came after a very long history of problems with US forces on Okinawa which were the occasion (or excuse, take your pick) for a great deal of political agitation demanding the removal of US forces from the island. The situation was made worse by the suspicion that some consensual sexual encounters with US troops became rapes when the women discovered they were pregnant since miscegenation (whether with blacks or whites) is looked upon with great horror in Japan as in many other oriental cultures.

The situation in Iraq is comparable only in the sense that there are some who will make political hay of such things use to make the unwarranted connection that isolated acts by individual members of the US armed forces constitute an argument for the immediate withdrawal of all US forces.
Whether those involved in the Haditha incident are ultimately found guilty or innocent, this is not the time to add to the worries of all our troops in Iraq that they may face the vagaries of foreign courts.

I've recently heard from two firearms experts. It seems that the shell casings on the floor in the massacre photo, are from AK-47s, not M-16s.

Has to be the dumbest thing I've ever heard
And stupid for too many reasons to count.

Iraqi justice?
I suggest that prior to allowing Marines to be judged by the Iraqis both of the proponents of this be sent to Iraq to be study Iraqi judicial methods, without the bbenefits of US security for a year. Any bets what their response might be?

I am sick of the endless drumbeat of the Left against our troops. Frankly given the nature of the enemy I could care if an "unarmed citizen" was a victim dueing the fire fight. Did this unarmed citizen see the jihaddies position this IED? Did he warn the US about it? Or did he serve as a guard while they were laying it or perhaps carry it? Unarmed perhaps, innocent my ass.

People who quote the law at knife fights at night are usually found there the next morning.

Before we agree to this
Iraq would have to agree that any Iraqi who kills an American would have to face American justice. Any talk of an amnesty would be history.

Jurisdiction Over Deployed Military Members
In general, international law makes a nation responsible to investigate, prosecute and punish the criminal acts of its military service members during foreign deployments in armed conflict. The Uniform Code of Military Justice is designed to operate in an environment where the location of the trial and other pretrial hearings may be totally unrelated to the location of the alleged crime. A trial can be held in North Carolina for an offense committed in Iraq, with all relevant witnesses being transported at Government expense to the place of trial, including expert witnesses for the defense who are paid by the Government, and defense counsel (who are outside the chain of command of the convening authority and thus immune from direct retaliation) provided free to the accused. Criminal cases in the US military use the Military Rules of Evidence (adopted by Congress) which track almost 100% the Federal rules of evidence. Military courts can adjudge confinement, which will be served in US military prisons.

In nations that are not at war, and where the US military presence is in a peacetime environment, the US has negotiated Status of Forces (SOFA) Agreements, which generally state that, if the service member is accused of committing a crime against the host nation, outside the installation, or against a citizen of the host nation, he will be subject to trial by the host nation legal system. Judge Advocates for the US services are assigned to observe the trials to ensure that each US service member is accorded the basic rights to "due process of law" agreed to in the SOFA treaty, and to provide (at US expense) a local defense counsel for the service member.

Thus, in the case of military members charged with sexual assault in Okinawa, it is inevitable that they will be turned over to the Japanese police for confinement awaiting trial, and be tried in Japanese courts, and if convicted serve time in a special Japanese prison that is dedicated to custody of American servicemen. It is not in fact customary in Japan for an American serviceman accused but not formally indicted to be retained in US custody pending indictment. The Japanese criminal system allows police to hold a suspect in custody for up to 21 days without formal charges, while the police conduct interrogations, without the presence of legal counsel. Japan, since it does not have juries, has another twist in its criminal courts. All trial courts have panels of a chief judge and two assistant judges. They schedule a particular defendant's case for one hour each month. If the defendant pleads guilty, he can proceed to the nice prison and get out of the rotten pretrial confinement cells. If he wants a full trial, however, it will stretch out at one hour per month, during which he rots in the pretrial continement detention building with almost no amenities.

It is the epitome of justice to treat everyone the same. To even suggest making an exception for a particular defendant, sacrificing him in the name of political expediency, is the essence of injustice and denial of equal protection of the law, and would provide a basis for an immediate filing with a US District Court seeking a writ of habeas corpus releasing the accused from US custody, so long as the US intended to deny him the right to a US court-martial in English.

US military trials are open to the public and can be covered by the news media like any other US Federal trial. The Iraqi government can be provided a full opportunity to observe the process and provide evidence to the prosecutors, including assistance with procuring witnesses. Because of intense Iraqi interest, it would not be out of order to provide a translation from English for Iraqi observers and reporters in a separate room.

This is so dumb I laughed and laughed and laughed
In a time of war in Iraq, I cannot believe anyone would even think of something like this. It sounds like lawyers again trying to make a name for themselves with dumbness. This takes the cake and to believe the article was published by TCS.

Ignorance, stupidity, or malice?
The "precendence" in Japan is not really a precedence. Off-duty crimes are routinely tried in civilian courts in the United States.

I don't believe there has ever been a case of a U.S. military member being tried in a civilian court for something that allegedly happened while on patrol.

For anyone to suggest such a thing shows either ignorance, stupidity, or malice, or a treasonous heart. Which is it?

I would say...
Probably a viscous combo of ignorance/stupidity & malice. Not really toward the Marines themselves - though I'm sure these leftists fell sickened whenever they see a US soldier - but more toward the US & GWB. Irrational hatred of the President & disdain of US ideals & our position in the world.

Before any one responds to this post with
some schmarmy "how can you tell from the photographs?" tripe - it's the size & shape. Different calibers.

More background
With respect to non-duty related offenses committed in the US, if there is a sufficient military nexus, the cases can be tried under the UCMJ, but do not preclude prosecution by civilian authorities with jurisdiction.

The military nexus depends on several factors, such as (1) Was the crime committed on the military base? (2) Was the victim a military member, a family member, a DOD employee, or the government itself (e.g. theft of government property)? (3) Is the crime one that is perceived as threatening to military good order and discipline (such as drug abuse)? (4) If committed on the installation, was it in an area of exclusive Federal jurisdiction where the State lacks authority to prosecute crimes? Older (pre WWII) bases often have such exclusive jurisdiction for portions of the base, including cases where posts were established when the area was a Federal territory and the bases were retained as Federal territory when the states were created.

This doesn't apply in a war zone
I am unaware of any case in American history where a member of the military was turned over to the jurisdiction of a civilian court in a land that was an active warzone. Crimes committed in wartime France were handled by US military courts not French courts. The same applies to South Korea and Vietnam. Can you cite an example that would demonstrate a civilian court trying a member of the military in a combat zone?

Repeatedly elide the fact
Dickerson and Lithwick try to paint opponents of their positions as lacking respect for Iraqi judicial institutions, but they repeatedly elide the fact that THEY DON’T KNOW WHAT THE HELL THEY’RE TALKING ABOUT.
Why didn’t these liberal authors DO A LITTLE RESEARCH first. As “coltakashi” has pointed out in this thread, the suspected Marines cannot be turned over to the Iraqi courts BECAUSE THERE IS NO STATUS OF FORCES AGREEMENT (SOFA, BETWEEN THE US AND IRAQ, yet. Since there is no authority to turn them over, doing so would be a violation of their civil rights. Even if there were such an agreement, this type of case would be reserved for the US military authorities, since it is alleged to have occurred in combat. Cases that are turned over to the host authorities are usually those in which the American service member has been accused of committing some civil crime. Even then, there are sometimes concerns that the host country laws do not give the accused the same protections as US laws do.

And you never will
Find evidence of it happening in an active war zone. The premise is ludicris and could only come from a liberal mind.

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