Military Shooter Trial to Test the Patience of Afghans

President Barack Obama has vowed that the U.S. will apply the “the full force of the law” in the case of the soldier who allegedly killed at least 16 civilians in Afghanistan, and Defense Secretary Leon Panetta has said the suspect could get the death penalty.

The standards, speeds and venues of Afghan and American justice are very different, though, so the full force of U.S. military law may be too slow, temperate and distant to satisfy Afghans demanding speedy punishment and accountability.

“The way the military defines justice and the way Afghan civilians define justice are very, very different, and they’re unlikely to be reconciled in the near term,” said Christopher Swift, a fellow at the University of Virginia School of Law’s Center for National Security Law.

While Panetta has said the death penalty “could be a consideration” in the case, the American military hasn’t executed one of its own since 1961, said Morris Davis, a former director of the Air Force Judiciary and a former chief prosecutor for terrorism trials at Guantanamo Bay, Cuba.

In a previous case of civilian killings in Afghanistan, a soldier was convicted last year of leading a rogue Army unit based at Joint Base Lewis-McChord in Washington state -- where the suspect in the new case is based -- that killed three Afghan civilians for sport. That soldier, Staff Sergeant Calvin Gibbs, was sentenced to life in prison.

Conviction Rate

The Army has prosecuted 44 soldiers for murder or manslaughter of civilians in Iraq and Afghanistan from 2001 through last year, according to Army spokesman George Wright.

Of those cases, 30 were convicted of some form of homicide, six were convicted of other offenses and eight were acquitted, Wright said. That conviction rate “is significantly less than the normal courts-martial conviction rate” for all military cases, Davis said.

Subjecting U.S. soldiers to the death penalty is rare. A “handful” of troops now sit on the military equivalent of Death Row, according to Davis, who teaches at the Howard University School of Law in Washington.

Prosecutors might seek the death penalty in this case “given the egregious nature of the facts and the importance of symbolically showing the world, and particularly the Afghans, that we take this case seriously,” said Victor Hansen, a retired Army lawyer who’s now a professor at the New England Law Boston, in an interview.

Afghans and others who are demanding that the shooter’s superiors be held accountable may be disappointed, too. Davis said he could think of no cases in which commanders had been held legally liable for crimes committed by their troops in Iraq and Afghanistan.

Source of Frustration

“To me, that’s been frustrating,” he said. Citing the Geneva Conventions and the laws of war, Davis said in an interview, “There’s been impunity for people who turn their backs and shun the Geneva Conventions.”

In the Afghan case, prosecutors would have to prove that commanders were aware the defendant was mentally unstable, knew or should have known he was liable to take violent action, and didn’t act, said Gary Solis, an adjunct professor at the Georgetown University Law Center in Washington and a retired Marine Corps lawyer.

“That would be a pretty tough bar to surmount,” Solis said in an interview.

The different notions of appropriate punishments and accountability aren’t the only issues separating Afghan and American justice.

While Afghan officials and protesters are demanding immediate action in the shooting case, U.S. military judicial proceedings can take years, and the U.S. has yet to file charges against the soldier, a 38-year-old Army staff sergeant.

Speedy Trial

“Afghans are going to be very frustrated at the idea of a U.S. military trial that might take a long time,” said Amin Saikal, an Afghan political scientist who directs the Center for Arab and Islamic Studies at the Australian National University in Canberra.

“Afghan people will want a quick trial and quick punishment, as traditionally has been done in Afghanistan,” Saikal said in a phone interview.

What’s more, Afghan justice is usually dispensed by tribal or religious councils or judges appointed by local communities, and Afghan politicians and protesters have demanded that the suspect in the killings be turned over for prosecution in their country’s courts.

That’s unlikely because the U.S. retains legal jurisdiction under a U.S.-Afghan accord, according to a Jan. 5, 2011 report by the Congressional Research Service, and in any event the Pentagon said yesterday that the suspect had been flown out of Afghanistan.

Change of Venue

“The Afghan public would resent any decision to move a U.S. military trial outside their country, said Qamar-Ul Huda, a scholar of Islam at the U.S. Institute of Peace in Washington.

‘‘A basic form of justice in Islam is it has to be very local and very transparent,’’ he said in an interview. ‘‘They would want families to have a chance to speak.’’

Further complicating the case is an issue that might become the suspect’s chief line of defense: that he was mentally impaired, perhaps by a traumatic brain injury or by post-traumatic stress disorder from his four deployments.

The suspect was deployed to Afghanistan after three previous tours of duty in Iraq, according to a U.S. defense official who commented on condition of anonymity because charges hadn’t been filed. The soldier suffered a head injury in a vehicle rollover in Iraq that wasn’t related to combat, the official said.

Insanity Defense

‘‘The circumstances suggest there’s some mental-capacity issues,” Davis said. “The U.S. military hasn’t had a particularly good track record with these kind of cases,” Davis said.

The defendant is “very likely” to raise an insanity defense, which is permitted under military law, according to Hansen.

The U.S. Manual for Courts-Martial, the guidebook for military justice, says mental impairment may be used as an “affirmative defense” if “the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his or her acts.”

Raj Bhala, a scholar on Islamic law at the University of Kansas School of Law in Lawrence, said Sharia law also recognizes mental impairment as a legitimate defense.

Whether the Afghan public would accept such a defense in this case “really depends on how clearly and comprehensively this would be presented to them,” he said in an interview.

‘Blood Money’

One way to reconcile U.S. and Afghan expectations in the latest killings may lie outside the military justice system: compensation to families of the victims in southern Afghanistan, said Noah Coburn, a socio-cultural anthropologist who focuses on dispute resolution in Afghanistan.

Islamic law encourages family of murder victims to forgive their killers by accepting such “blood money” instead of seeking revenge, Bhala said.

“The payment of compensation in the case of homicides like these would be typical in a case resolved in the south of the country,” Coburn, a senior adviser with the U.S. Institute of Peace, said in an e-mail.

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