Haven’t had time to post much, but I wanted to share this, from the WSJ - Very interesting. I would also like to point out the standards to which our forces are being held - I wonder what standards are applied on the other side of the conflict?
Mercy or Murder?:
A Death in Sadr City
By ELIZABETH WEINSTEIN
THE WALL STREET JOURNAL ONLINE
December 14, 2004 2:27 p.m.
A handful of so-called mercy killings of Iraqis by U.S. soldiers have brought renewed focus to the rules of engagement in an unconventional war where the U.S. is struggling to win support among Iraqis and defeat a rampant insurgency.
In the latest case, Staff Sgt. Johnny M. Horne from North Carolina pleaded guilty Friday to killing a severely wounded Iraqi teenager. Staff Sgt. Horne was among several soldiers who found the 16 year-old in a burning truck with severe abdominal wounds and burns he sustained during a fight in Baghdad’s restive Sadr City in August. According to investigators and accounts given by witnesses at previous hearings, Staff Sgt. Horne and another soldier tried to rescue the victim, but killed him after concluding his wounds were too severe.
The Wall Street Journal Online discussed the case with retired Rear Adm. John D. Hutson, who served as the Navy’s judge advocate general (JAG), or chief lawyer, from 1997 to 2000. He is now dean of the Franklin Pierce Law Center in Concord, N.H. Some questions and answers have been edited for clarity.
Q: What would you do if you were confronted with the same situation as Staff Sgt. Horne? Is killing the wounded Iraqi murder?
A: Killing him is murder – it’s just a question of whether you’re willing to assume that responsibility, and there are just so many aspects to it that it’s a particularly hard hypothetical to answer. I’d like to think I wouldn’t do it, but I don’t know that I wouldn’t. It’s not only illegal, it runs into theological issues. But thank goodness, I’ve never been faced with that situation, so I don’t know how I’d respond. How sure are you that he’s going to die? If you’re absolutely sure he’s going to die, he’ll probably die pretty quickly. It’s the close cases that are tough.
Q: What does military law say about mercy killing in its rules of engagement?
A: Military law is part of the Uniform Code of Military Justice, which is federal law. It contains a provision which prohibits murder, including premeditated murder. The rules of engagement that U.S. forces operate under vary according to the situation: The rules of engagement in the desert are going to be different from the rules of engagement in an urban-war scenario, but they are not ever going to account for so-called mercy killing. It’s always going to be prohibited – not necessarily in explicit words, but by relying on the prohibition against intentionally, premeditatedly taking another person’s life.
Q: So a lot of times it’s just soldiers acting from their gut in the heat of combat, even though they know it’s against the law?
AA: bsolutely. They’re acting from their gut, and you hope from their head.
And it’s not just in the heat of combat. You read in the papers every week about some old guy who killed his wife because she was an Alzheimer’s patient or she was terminally ill. Those are mercy killings. There’s not a lot of difference between this and the son and daughter deciding to pull the plug on dad with the advice of the doctor and ethicists. Except this is often done in the heat of battle and it’s not somebody you love – it’s somebody you hate. It’s the enemy.
There are lots of those aspects that make this a much more complicated choice. If this had been his buddy who he’d gone through boot camp with, and they’d been through battles together, would he have pulled the trigger? I don’t know. It makes the whole scenario a lot more tenuous and difficult.
Q: How does the military address these kinds of situations when training soldiers? Are commanders supposed to instruct soldiers, or are soldiers on their own?
A: There may be differences in who does it and whether it’s addressed, but as a general proposition, there’s no scenario in which you’re going to tell somebody that they can commit a murder. It’s an unjustified killing. You’re having a hard enough time explaining to them what the justified killings are, because there’s a lot of death going on in a war. But to then say “When you’ve got someone in your control – a prisoner – here are the times you can kill them”? It just isn’t going to happen.
Q: Are there any unwritten rules about mercy killings during war?
A: I would say there are not – any more than there are unwritten rules for mercy killing for your elderly spouse or parent. That’s not to say it doesn’t happen.
Q: What about the chain of command in the field? Do many cases like this slip through the cracks if commanders or fellow soldiers decide not to report these incidents? Or do they slip through if the killings implicate the commanders?
A: The commander as a legal matter is not going to be responsible unless he condoned it or set up an atmosphere in which it was condoned, if not encouraged. Then he could be held legally responsible for dereliction of duty, perhaps. But as a practical matter, these kinds of things happen so infrequently and are typically kind of spur-of-the-moment, that he won’t be legally or morally responsible.
Q: Do you think the military-justice system needs to address the question of mercy killing?
A: I would say not. I don’t want to overlawyer this, but the military-justice system does address mercy killing: It’s prohibited. It’s kind of like torture. You can’t say, “Well, under these circumstances torture’s OK.” You just have to say no. So you have the prohibition there and leave it to the judges and the convening authorities and to the courts to decide when the cases come before them.
The military is never going to debate it other than in the context of a court-martial where the accused may want to debate that. But it’s a Pandora’s box and not something the military is going to want to open up.
Q: In this case, the staff sergeant had originally been charged with the more serious offenses of premeditated murder, conspiracy to commit premeditated murder and soliciting another soldier to commit premeditated murder. In the end, he pleaded guilty to unpremeditated murder and soliciting another soldier to commit unpremeditated murder. How does a change like that happen?
A: As in civilian life, the prosecution always has the authority to reduce charges. The request has to originate with the defense, but the government has the option to enter into that agreement and limit that sentence. They negotiate it – it’s lawyers sitting around a table with the commanding general as the decision maker. It’s not a decision made by the judge in the military, but by what’s called the convening authority, who is a line officer. What sometimes happens in the military, as also happens in the civilian community, is in the process of doing that you can end up with charges and a conviction that don’t make sense under the circumstances. How do you have an unpremeditated murder in this kind of situation? What happens, basically, is you just go ahead and do it even though it doesn’t fit facts.
It works to the advantage of the accused, and there’s really no one to complain about it, other than the public. So the facts may not exactly fit what the ultimate conviction is for, but under the circumstances it turns out to be OK.
Q: Speaking generally, does the military-justice system need to adjust to meet the changing battlefield conditions?
A: I don’t think so. Congress looks at the military-justice system periodically. There’s criticism right now in some quarters about the role of the convening authority – this non-lawyer person who makes a lot of legal decisions. It’s kind of like having the mayor make decisions about searches and seizures and what cases go to court, rather than having the district attorney do it.
But remember that the military-justice system has to work in war and peace, has to work here in the U.S. and overseas, it has to accommodate the kinds of things we’ve been talking about here. So it’s under pressure and has to adapt to situations that the civilian system never has to adapt to. In the civilian system you have a nice courthouse with marble and walnut, you’ve got judges who’ve been there for years. The military has none of that, and they have to be capable of doing it on the fly.
The U.S. military said Saturday that Staff Sgt. Horne had been sentenced to three years in prison. As part of his sentence, he was reduced in rank to private, given a dishonorable discharge and hit with forfeiture of wages. The other soldier charged in the case is awaiting court-martial.
Write to Elizabeth Weinstein at Elizabeth.Weinstein@wsj.com