Nine children among 16 dead after US serviceman attacks villagers

[carl]

Should we turn him over to the Afghans? Should we have left Ray Davis and his incompetent QRF to the Pakistanis? The pilots who killed nine Afghan children last year? The precedent set would be disastrous.

Mostly for the sake of argument, one incident was partly self defense, one was a stupid mistake (part of a continuing pattern), but this last appears to be plain old criminal murder. It might be good to set a precedent that if you commit criminal murder, the locals handle you.

If a soldier did the same thing in Japan, walked off the base, murdered 16 Japanese, then walked back onto the base and turned himself in; who would handle the case? I don't know which is why I ask.

Do you know what the outcome of the investigation into the killing of those children by the helos last year was?

[tequila]

Mostly for the sake of argument, one incident was partly self defense, one was a stupid mistake (part of a continuing pattern), but this last appears to be plain old criminal murder. It might be good to set a precedent that if you commit criminal murder, the locals handle you.

If a soldier did the same thing in Japan, walked off the base, murdered 16 Japanese, then walked back onto the base and turned himself in; who would handle the case? I don't know which is why I ask.

Do you know what the outcome of the investigation into the killing of those children by the helos last year was?

I agree with you that in reality the helo incident was NOT murder.

But most Afghans likely disagree with you on that. The point of the Foust link was that these murders and the accidental killing of the children earlier this year are not much different in the view of most Afghans. If the point of handing this guy over is to assuage Afghan rage, you might as well do the same with the helo pilots or the AF guys who burned the Qurans.

The precedent that would set means it will not happen.

We have a SOFA with Japan which governs what happens with U.S. military personnel charged with crimes against Japanese civilians. We don't have on with Afghanistan - more to the point, Japan has a functioning justice system, which Afghanistan does not.

[carl]

Tequila:

If it were to be done, the point of handing him over to the locals would not be to assuage Afghan rage, the points would be condign (another first in word use, two in one night!) punishment for the individual and the dissuasive effect it would have on anybody else who felt like having fun with the locals, the Black Heart and Kill Team types. A well functioning local justice system is not needed to accomplish those two purposes.

I can see how Afghans no longer distinguish between murder and other mistaken or not so mistaken killings. If it isn't that helo incident it is another, if not that it is the Marine spec ops unit shooting up the countryside for who knows why, or it is a night raid gone bad faking evidence etc etc etc for years and years. And nothing much happens beyond the standard apology and money paid. This is just another in the string. I think it was Kilcullen who said that each one of these incidents should be treated as a friendly fire incident and handled with the same rigor and seriousness. They aren't. If we had done that or at least made a good try, the Afghans may have been willing to cut us some slack. It is probably too late now though.

[jmm99]

that the death penalty should apply to murderers under special circumstances are preaching to the choir of Brooks Patterson and John McCarthy. Of course, it should apply; even though, as Brooks said, despite the system being closer to fool-proof (DNA evidence), mistakes can be made.

But, if you are one who propounds the death penalty, then you damn well should answer my basic proposition, which is (so I am crystal clear):

The basic proposition is very simple: Based on the evidence you have before you now, is there enough evidence for you to decide whether you would personally execute "S.Sgt. X" [or murderer of your choice] now ?

even if you only answer that question to yourself.

If your bitch is with the criminal law system, then instead of griping, find a non-party group (all groups are partisan) that pushes your agenda. You will find one to suit you because they are spread across the ideological spectrum.

My personal agenda over the years has been the NRA and Second Amendment Foundation (which accept the death penalty and strict enforcement of existing criminal laws as an added bonus). I really don't see "reform" of the criminal justice system happening; nor do I see the death penalty making much of a difference in general deterrence (obviously it is the ultimate specific deterrent).

Thus, my goal is enhancing the rights of the "Armed Citizen" in his or her own defense and the defense of others. It is much better to preemp the would be murderer than to punish the actual murderer. I kill him rather than he kill me. In saying that I realize that the average "Armed Citizen" (including me) is not going to stand up against someone well-trained and experienced in CQB. But, at least there is a chance. End my "political" plug.

Culpepper: If I were the decider personally (no external constraints - think Tony Waller and Arthur Day combined), I would require the informal equivalents of a good AR15-6 report and of a good forensic psychiatric. Then, I would give the guy the opportunity to speak or remain silent. If after that, the "evidence" (note the absence of formal rules) flipped my switch by showing sane commission of the acts, without some other plausible defense, I would find the guy guilty. Then, I'd have to execute him because that's what I've said I'd do. Inject an excellent service record and plausible evidence of diminished capacity driving the acts, for example, and I probably wouldn't reach the death penalty. As I've said, the evidence presently before me is insufficient for me to decide anything.

Warning - in legal opinion mode (what the present constraints are) for the next five paragraphs. In his Son Thang book (1997), Gary Solis noted that the last military execution was in 1961 (the last Marine was executed in the early 1800s). Of course, Gary was correct when he wrote that - in detail, see Number of military executions in the UCMJ era (2008).

I think that's still the case - e.g, the Ronald Gray case. SIGNIFICANT MILITARY JUSTICE DEVELOPMENT: President approves Gray's death sentence (2008) (interesting comment by Gray's roommate at very end). Ronald A. Gray was still alive in Feb 2012 (Wiki and Fayetteville Observer). If I've missed a military execution, please advise.

So, the UCMJ does provide for the death penalty in premeditated murder cases - not only for the shooter, but for aiders and abetters also. In all death penalty cases, notice of intent to seek the death penalty must be given by the Convening Authority. Your Manual for Courts-Martial has all that stuff.

Warning - still in legal opinion mode. "S.Sgt. X" has apparently muled up - anyone who has followed Haditha and read about Son Thang knows that is the only smart thing to do. So, we don't know what (if anything) he will say at trial. By that time, he may be catatonic (makes an easy defense - the case can't be tried - been there, once), but not likely. The accused's testimony at trial (without prior statements) can be very outcome determinative - not saying it would be in this case.

Warning - still in legal opinion mode. We can expect two issues to be raised by the defense: (1) undue command influence (our National Command Authorities, POTUS and SecDef, have probably been talking too much); and (2) contamination of the forensics and "crime scenes" (villagers and Taliban). Not saying they are winners either, but they will be raised.

I'm not going to get involved in the SOFA discussion - have fun, guys. BTW: Carl's question:

If a soldier did the same thing in Japan, walked off the base, murdered 16 Japanese, then walked back onto the base and turned himself in; who would handle the case?

is a good one. I just don't want to talk about that now. So I won't.

Regards

Mike

PS: A "SOFA" with the Astan Gov't was mentioned in a footnote to the USG Brief or Appendix in the Bagram habeas case (either District or Circuit phase) as being contained in "diplomatic notes". I don't know if that "agreement" (a type of executive-executive agreement) has been published. Right now, I'm not going to find out. I didn't think there was a US-Afghanistan agreement on Governance, Economics and Security until Ken White wised me up to the 2005 Strategic Partnership Agreement (still in effect) signed by Pres. Bush and Karzai. That has been published. Warning: Astan is a minefield of "memoranda of understanding" - Take care.

[Dayuhan]

From the perspective of controlling the negative impact of the incident on the war effort, the only way out its a quick determination of guilt in the simplest sense - did he do it - and if guilty, turn over to the Afghans for disposal. "Diminished capacity" or American ideas about the rights of the accused are going to carry no weight at all with Afghans.

We won't do that of course, because the rules don't allow it. People who care about the war effort and the lives that will likely be lost if we follow the rules will wish we could avoid the rules, but wishing won't make that happen.

Not much left but to do what we do by our rules, and prepare to eat the consequences. It might not be the worst time to start thinking about an accelerated timetable for withdrawal.

[carl]

Mike:

In the Foust opinion piece Tequila referenced, it is reported that the villagers didn't resist the thing because they thought it was a night raid. Foust finds that a little dark and so do I. I am still mulling this over in my head but it seems that in a way we are training Afghans to be passive in the face of aggression, almost the way it seems sometimes American police expect Americans to be passive in the face of no-knock raids.

I remember in the past giving traffic tickets to people from the L.A. area. I would walk up to the car and often they would be staring straight ahead with their hands held stiffly on the wheel or in some odd position where they were visible. Their apprehension was clearly evident. They were afraid of me and were doing what they thought it took not to set me off. I only remember people from L.A. doing this and it really bothered me. I wondered what was going over there in Southern California that had turned average motorists into fearful sheep. It disturbed me because I had signed up to do a police job amongst free people, not to be a jailer in a vast open air facility. If that phenomena is carrying over into our conduct of affairs overseas, it is a very bad thing.