Iraq GIs allowed to avoid trials

Data: Practice routine in human-rights cases

By Miles Moffeit and Arthur Kane

Four Army police officers faced criminal charges last year for kicking and punching seven Iraqi prisoners at Camp Bucca, assaults that resulted in broken bones. Instead of sending them to trial, however, commanders booted them from the service.

Army Spec. Juba Martino-Poole avoided trial on a manslaughter charge for fatally shooting an Iraqi prisoner, also in 2003. His punishment was the same: Turn in the uniform. Another specialist accused of raping a fellow soldier in Iraq last year was discharged without being prosecuted.

Such outcomes are routine for soldiers accused of human-rights crimes - even some who have admitted guilt, The Denver Post has found.

By more than a 2-to-1 ratio, military officials have handed down administrative discipline rather than pursue criminal punishments for service members accused of prisoner abuse or sexual-assault crimes in war zones, according to records obtained through the Freedom of Information Act and a Pentagon source.

From the start of the Iraq war in February 2003 through the middle of this year, 66 service members accused of prisoner abuse or sex assault were given administrative punishments, including fines and reprimands, compared with 29 sent to courts-martial.

The common link in these case rulings stretches back to the Revolutionary War: Commanders rather than prosecutors pull the levers of the military’s justice system. They decide how and whether cases are investigated. They decide whether soldiers are, ultimately, prosecuted.

Pentagon officials declined to comment in detail on the records. But spokesman Maj. Michael Shavers said many of the nonjudicial disciplines given by commanders should not be considered lenient.

"These should not be viewed as less punitive than a court-martial," Shavers said. "After all, the punishment can be career ending" for soldiers.

But some legal experts say the punishment trends show that the military can give alleged criminals a free pass.

"The questions this data raise is whether the decision to prosecute ought to be vested in professional prosecutors instead of commanders, and that is a gigantic issue," said Eugene Fidell, president of the Washington- based National Institute of Military Justice.

Retired Rear Adm. Donald Guter said criminal actions deserve criminal punishments, not administrative disciplines.

"There’s something wrong," said Guter, the Navy’s top lawyer from 2000 to 2002. "If this is a pattern, it should get another look, not just by the media but by (Congress)."

Some members of Congress have raised concerns about the prevalence of sexual assault and prisoner abuse in Iraq and whether the military is properly investigating and prosecuting both types of cases. U.S. Rep. Joel Hefley of Colorado has requested a hearing before the House Armed Services Committee to explore possible discrepancies in punishments.

Historically, Pentagon officials and military lawyers, known as staff judge advocates, or JAGs, have fiercely defended commanders’ discretion over justice issues, saying those who lead troops into war must be able to make decisions balancing national security with any allegations their soldiers face.

Even prosecutors who say they have been shocked by commanders’ decisions not to prosecute certain soldiers are loyal to the concept of commanders calling the shots.

Ralph Sabatino, a military prosecutor who served as a Geneva Conventions liaison to Army forces in Iraq, said he was "livid" when he discovered that commanders had declined to prosecute four soldiers with the 320th Military Police Battalion. The soldiers beat seven prisoners last May at the Camp Bucca detention facility.

"I was surprised," said Sabatino, who had worked on the case. "Do I agree with that sentence? No. But this is war, and you have to give wide latitude to commanders on the ground."

Commanders have used a mixed bag of administrative actions to punish soldiers in abuse cases, according to Pentagon documents.

They included reprimands, fines, rank reductions, bars on Internet use and "Chapter 10" agreements, which allow some soldiers who admit guilt to leave the military under less-than-honorable conditions but without being prosecuted.

Army officials granted a Chapter 10 request in May 2003 to a specialist with the 190th Military Police Battalion accused of raping two fellow soldiers, despite an investigation that found probable cause to prosecute one case, records show.

Even in prisoner-death cases, commanders have opted for administrative action.

Martino-Poole, a specialist with the 4th Infantry Division, submitted a Chapter 10 request after he was charged with manslaughter for fatally shooting an Iraqi prisoner at the Forward Operating Base Packhorse detention facility last September. Martino-Poole was guarding two detainees held behind coils of razor wire because the detention facility wasn’t complete. When one detainee moved near the wire, "Martino-Poole fired his weapon," killing the prisoner, according to an investigative report.

His bosses, Martino-Poole said, wanted to cover up security problems at the prison that a trial might have exposed. He added that he fired in self-defense but was afraid he wouldn’t be treated fairly in court.

"I wanted to go through the (discharge) because people were getting shafted" in courts-martial, he said. "And I didn’t want to be one of them."

While avoiding a maximum sentence of 15 years, he lost all his veterans benefits, including mortgage assistance and $40,000 in college tuition.

Martino-Poole said his resignation was approved by Maj. Gen. Ray Odierno, commander of the 4th Infantry Division.

Odierno, who has declined interview requests, also approved an administrative punishment for Lt. Col. Allen West, who was fined $5,000 and stripped of his command for leading the brutal interrogation of an Iraqi police officer taken prisoner in August 2003.

According to an investigative report, "West was present during the interrogation when the soldiers were punching the detainee and threatened the detainee that (West) would kill him. ... West took the detainee outside to the nearest clearing barrel and, after shooting a warning shot, placed his 9mm weapon near the detainee’s head and fired off a round."

West was headed for a court-martial. He defended his tactics during a hearing, saying he thought the prisoner had information about plots against U.S. troops. He added that he would "walk through hell with a gasoline can" to protect his soldiers.

"The discipline was absolutely appropriate, given the circumstances, given that his primary motive was to prevent what intelligence told him was a planned ambush," said Neal Puckett, West’s lawyer.

Though Puckett defended the decision not to prosecute West, he acknowledged that penalties for soldiers can careen from one end of the spectrum to the other.

"I would agree that the system needs a hard look," said Puckett, a retired military judge. "One of the defects in the military system is that, although all services operate under the same rules, punishments can vary widely based on command climate and the individual command. Minor drug use might get administrative treatment under one commander and a felony under another commander. There is a ridiculous gap between the two."

Lenient punishments for soldiers accused of abuse crimes can have a chilling effect on troop morale and world perceptions, said Deborah Pearlstein, a lawyer with New York-based Human Rights First.

"You look at these two crimes - sex assaults and prisoner abuses - taken together, and you see across the board a failure to secure accountability for crimes," Pearlstein said. "The Defense Department, and the command structure in particular, is sending a really dangerous message."

Staff librarian Monnie Nilsson contributed research to this report.

Staff writer Miles Moffeit can be reached at 303 820-1415 or mmoffeit@denverpost.com .

Staff writer Arthur Kane can be reached at 303-820-1626 or akane@denverpost.com .

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