U.S. military braces for flurry of capital crime cases in Iraq


No American serviceman has been executed since 1961. But in the past month, new cases in Iraq have led to charges against 12 American servicemen who could face the death penalty in connection with the killing of Iraqi civilians.

Military officials caution against seeing the cases as part of any broader pattern, noting that the incidents in question are isolated and rare. But the new charges represent an extraordinary flurry in a conflict that has had relatively few serious criminal cases so far.

As investigators complete their work, military officials say, the total of American servicemen charged with capital crimes in the new cases could grow substantially, perhaps exceeding the total of at least 16 other Marines and soldiers charged with murdering Iraqis throughout the first three years of the war.

Some military officials and experts say the new crop of cases appears to arise from a confluence of two factors: an increasingly chaotic and violent war with no clear end in sight, and a newly vigilant attitude among U.S. commanders about civilian deaths.

At least five separate incidents involving the deaths of Iraqis are under investigation, setting off the greatest outcry against U.S. military actions since the Abu Ghraib prisoner abuse scandal. By far the best-known of the cases is the one in Haditha, where Marines are being investigated in the killings of 24 Iraqi civilians in November. No charges have been filed in that case, but some say news of the incident may have helped bring some later cases to light.

"Unusual criminal acts raise the level of concern, whether in the military or among civilians, and with increased concern comes increased reporting," said Gary Solis, a former Marine who teaches the law of war at Georgetown University.

In April, Lt. Gen. Peter W. Chiarelli, the No. 2 U.S. commander in Iraq, issued an order that specified for the first time that U.S. forces must investigate any use of force against Iraqis that resulted in death, injury or property damage greater than $10,000. Maj. Todd Breasseale, a spokesman for the U.S. military command, said he knew of no clear link between Chiarelli's order and the recent homicide investigations.

But Breasseale said that Chiarelli, who took over day-to-day military operations in Iraq in January, has made clear to subordinates that he puts a priority on avoiding and scrupulously reporting civilian casualties. U.S. commanders in Iraq will be scrutinizing civilian deaths more intensely as the United States moves toward transferring security to Iraqis, Breasseale said. Details about the five incidents under investigation are still emerging, and none of those charged has yet had an Article 32 hearing, the military's equivalent of a grand jury proceeding.

The incidents are far from the only ones in which U.S. forces killed Iraqis. But serious criminal charges in such cases have been rare until now. In many earlier cases, the killings have been found to be justifiable, and the soldiers or Marines in question have often been subject to administrative or nonjudicial processes.

The last soldier to be executed was John A. Bennett, hanged in 1961 after being convicted of the rape and attempted murder of an 11-year-old Austrian girl.

In the Iraq war, when soldiers or Marines have been charged, convictions - and harsh sentences - have been rare. Of the 16 American servicemen known to have been previously charged with murder, only six were convicted or pleaded guilty to that charge, and none received the death penalty. In all, 14 service members have been convicted of any charge in connection with the deaths of Iraqis and have received sentences ranging from life in prison to dismissal from the service.

In Vietnam, a much longer conflict, 95 U.S. soldiers and 27 Marines were convicted of killing noncombatants.

Some of the men under investigation in Iraq had done multiple tours in Iraq, and that, too, may have played a role.

"They can become almost numb to the killing," said Charles W. Gittins, a former Marine and a lawyer who has represented Marines accused of murder in Iraq. "The more you're in it, the more you want to live through it. You think more about preserving your own life than about what's the right thing to do."

The flurry of new cases has taken on a high profile in the news media and public discussion. The barriers to conviction, though, will be formidable. Recovering credible evidence in Iraq's chaos can be difficult, and Iraqi witnesses are open to challenge.

Some members of the military juries are likely to have served in Iraq, and are familiar with the chaotic atmosphere surrounding any decision to use force. "The presumption of innocence is going to reign supreme," Gittins said.

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