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Vocabulary > Justice > USA > Military justice
After Bales' arrest, military
tried to delete him from Web
McClatchy
March 21, 2012
http://www.mcclatchydc.com/2012/03/21/142710/after-bales-arrest-military-tried.html
http://www.mcclatchydc.com/2012/03/21/142710/after-bales-arrest-military-tried.html#storylink=cpy
war crime
war criminal
Naval Criminal Investigative Service
military investigator
military hearing
an Article 32 investigation > the military's
equivalent to a grand jury proceeding
military court
http://www.guardian.co.uk/Iraq/Story/0,,1839522,00.html
military appeals court
http://www.nytimes.com/aponline/2010/04/23/us/AP-US-Marines-Iraq-Shootings.html
in a military courtroom
http://www.nytimes.com/2011/12/21/us/governments-last-witness-takes-stand-at-bradley-manning-hearing.html
military judge
military prosecutor
http://www.nytimes.com/2013/03/02/us/manning-to-face-more-serious-charges-in-leak.html
http://www.reuters.com/article/2012/11/06/us-usa-afghanistan-trial-idUSBRE8A407T20121106
seek death
http://www.reuters.com/article/2012/11/06/us-usa-afghanistan-trial-idUSBRE8A407T20121106
military commission
http://www.guardian.co.uk/commentisfree/cifamerica/2011/apr/06/guantanamo-bay-torture
charge sheet
http://www.nytimes.com/2012/03/24/us/staff-sgt-robert-bales-faces-murder-charges-in-afghan-killings.html
be charged with...
http://www.nytimes.com/2012/03/24/us/staff-sgt-robert-bales-faces-murder-charges-in-afghan-killings.html
arraignment
http://www.nytimes.com/2012/05/06/us/9-11-defendants-face-arraignment-in-military-court.html
defendant
http://www.nytimes.com/2012/05/06/us/9-11-defendants-face-arraignment-in-military-court.html
judge
http://www.nytimes.com/2012/05/06/us/9-11-defendants-face-arraignment-in-military-court.html
lawyer
http://www.nytimes.com/2012/05/06/us/9-11-defendants-face-arraignment-in-military-court.html
Robert Bales
is the Army sergeant accused of killing 16
Afghan civilians,
including 9 children, during a methodical rampage on March 11, 2012,
that threatened to undermine the American military mission in Afghanistan.
Staff Sgt. Bales, a 38-year-old Army veteran,
was said to have walked more than a mile from his base
in a rural stretch of southern Afghanistan
before going from house to house,
firing at or stabbing unarmed civilians he met.
Afterward, he walked back to the base and turned himself in.
He was charged on March 23 with 17 counts of premeditated murder
and six counts of assault and attempted murder,
American forces in Afghanistan said.
Updated: March 23, 2012
http://topics.nytimes.com/top/reference/timestopics/people/b/robert_bales/index.html
http://topics.nytimes.com/top/reference/timestopics/people/b/robert_bales/index.html
cartoons > Cagle > Robnert Bales / Afghan
shootings March 2012
http://www.cagle.com/news/afghan-shootings/
court-martial
http://www.nytimes.com/2012/01/13/us/politics/court-martial-recommended-for-private-manning-in-wikileaks-case.html
http://www.nytimes.com/2011/11/11/us/calvin-gibbs-convicted-of-killing-civilians-in-afghanistan.html
http://www.nytimes.com/2011/11/01/us/trial-opens-in-court-martial-of-soldier-tied-to-afghan-killings.html
http://www.nytimes.com/2010/02/12/us/12awolmom.html
http://www.usatoday.com/news/nation/2007-10-19-marines-haditha_N.htm
http://www.usatoday.com/news/nation/2007-02-07-watanda_x.htm
http://www.timesonline.co.uk/article/0,,7374-2411238,00.html
http://www.guardian.co.uk/Iraq/Story/0,,1925753,00.html
the court martial of Pfc. Lynndie R. England
http://www.nytimes.com/2005/05/05/national/05abuse.html
be court-martialled
http://www.guardian.co.uk/world/2010/dec/01/us-soldier-accused-killing-taliban-prisoner
http://www.timesonline.co.uk/article/0,,7374-2411238,00.html
trial
http://www.nytimes.com/2011/11/01/us/trial-opens-in-court-martial-of-soldier-tied-to-afghan-killings.html
mistrial
http://www.usatoday.com/news/nation/2007-02-07-watanda_x.htm
declare a mistrial
in the case of ...
be charged with 12
counts of violations of
the Uniform Code of Military Justice for seven separate
offenses
http://www.usatoday.com/news/washington/2006-04-28-army-charges_x.htm
plea deal
http://www.usatoday.com/news/nation/2006-10-20-marines-shooting_x.htm
military jury
http://www.nytimes.com/2012/07/31/nyregion/
army-jury-acquits-sergeant-of-driving-pvt-danny-chen-to-suicide-in-afghanistan.html
Army Seeks Death Penalty in Afghan Massacre
November 13, 2012
The New York Times
By KIRK JOHNSON
JOINT BASE LEWIS-MCCHORD, Wash. — A military prosecutor on
Tuesday said the evidence against Staff Sgt. Robert Bales, presented over the
last week here in a pretrial inquiry into the killings of 16 Afghan civilians,
was so damning that the case should go forward as a capital crime.
“Terrible, terrible things happened — that is clear,” said the
prosecutor, Maj. Rob Stelle. “The second thing that is clear,” he added, “is
that Sergeant Bales did it.”
But a lawyer for Sergeant Bales, Emma Scanlan, making the defense team’s final
argument, said the lingering questions about the crime, and especially the
defendant’s mental and physical state, were far too great to proceed with
anything but caution.
“Alcohol, steroids and sleeping aids,” Ms. Scanlan said, citing the
prosecution’s own evidence about what Sergeant Bales, an 11-year Army veteran,
may have had in his system in the early morning hours of March 11 when two
villages in Kandahar Province were attacked. What would a cocktail of substances
like that do to a man’s mind, Ms. Scanlan asked the court, in the “kinetic and
high-pressure” environment of a combat zone?
“We don’t know,” she said.
The Army has charged that Sergeant Bales, 39, who was serving his fourth combat
tour, walked away from his remote outpost in southern Afghanistan and shot and
stabbed members of several families in a nighttime ambush in the villages. At
least nine of the people he is accused of killing were children. In the decade
of military conflict since the terrorist attacks of Sept. 11 2001, it was the
deadliest war crime attributed to a single American soldier, with consequences
that rippled through relations between the American and Afghan governments.
The hearings here, called an Article 32 investigation, beyond offering the first
open-court airing of the evidence, are also intended to provide a sort of road
map for where prosecutors might go from here in seeking a military trial. The
investigating officer who presided over the inquiry, Col. Lee Deneke, said on
Tuesday that he would have a written opinion by the end of the week. Higher-ups
in the Army, in making a final determination, are not bound by the colonel’s
findings, however. The military has not executed a service member since 1961.
In the end, Sergeant Bales, who did not testify, and has not entered a formal
plea, remained enigmatic. His own words, as reported by other soldiers who
testified about what he said on the night of the killings — that he had “shot up
some people,” as one witness recounted — were used against him. And he had blood
from at least four people on his clothes when taken into custody, a lab examiner
testified.
“It’s bad, it’s bad, it’s real bad,” Cpl. David Godwin, testifying for the
prosecution, quoted Sergeant Bales as saying after he returned to the base.
Statements like that, Major Stelle said in his closing remarks, “demonstrate a
clear memory of what happened and consciousness of guilt.” He said that the
“heinous, brutal, methodical, despicable” nature of the crimes, especially the
murder of small children, elevated the case to death-penalty significance.
But some of the most damning evidence, including the “real bad” quote, came from
soldiers who Ms. Scanlan suggested in her final remarks were not particularly
believable. Two men who reported hearing Sergeant Bales make incriminating
comments, including Corporal Godwin, also admitted drinking with him earlier in
the evening on the base, in violation of Army rules, and testified under
immunity from prosecution. Ms. Scanlan urged Colonel Deneke to evaluate that
testimony carefully.
“They drank a ton and they were all drunk,” she said.
A spokeswoman for the Bales family, Stephanie Tandberg, the sergeant’s
sister-in-law, read a statement urging people who have followed the case in the
news not to “rush to judgment.”
“We want to make sure this American soldier, citizen, husband and father has a
fair trial with the due process that is guaranteed to all Americans,” she said.
“We in Bob’s family are proud to stand by him.”
A claim before the hearings by another lawyer for Sergeant Bale, John Henry
Browne, that his client suffers from post-traumatic stress disorder, went
largely unexplored in the proceeding, and Ms. Scanlan, in comments to reporters
after Tuesday’s adjournment, said the defense was still investigating those
issues. Before the hearings began, she entered into the record a formal
objection that the defense had been given insufficient time to prepare.
Major Stelle said the evidence revealed a man who knew exactly what he was doing
when he left the base intent on mayhem. Eyewitnesses and victims who testified
through a video link from Afghanistan over the weekend, in extraordinary night
sessions here at the base where Sergeant Bales was stationed, about an hour
south of Seattle, described a figure in the dark, illuminating his victims with
a bright light before shooting them.
Ms. Scanlan said the prosecution’s portrait of a steely-cool killer conflicted
with the strange and anything-but-standard item of clothing that witnesses said
Sergeant Bales was wearing when he returned to the base early on the morning of
March 11: a cape.
“Why in the world is somebody who is supposedly so lucid wearing a cape?” she
said.
Army Seeks Death Penalty in Afghan
Massacre, NYT, 13.11.2012,
http://www.nytimes.com/2012/11/14/us/army-seeks-death-penalty-for-robert-bales-in-massacre.html
Pretrial Hearing Starts
for Soldier Accused of Murdering 16 Afghan Civilians
November 5, 2012
The New York Times
By KIRK JOHNSON
JOINT BASE LEWIS-McCHORD, Wash. — A military prosecutor on
Monday laid out a chillingly flat recitation of the government’s case against
Staff Sgt. Robert Bales, the Army officer who is accused of murdering 16
civilians this year in Afghanistan, as a pretrial hearing began in one of the
nation’s worst war crimes cases in decades.
“He was lucid, coherent and responsive,” Lt. Col. Joseph Morse, the Army
prosecutor, told the court in describing Sergeant Bales’s demeanor on arriving
back at an Army post in Kandahar Province with blood on his clothes that, the
prosecutor said, had seeped all the way through to the sergeant’s underwear.
Local families in a poor area with no electricity, Colonel Morse said, awoke
early on March 11 to find a figure cloaked in darkness inside their homes,
firing a weapon with apparent intent to kill. Children were shot through the
thighs or in the head, he said. In one place, 11 bodies — mostly women and
children, the prosecutor said — were “put in a pile and put on fire.”
Sergeant Bales, 39, an 11-year-military veteran, could face the death penalty if
found guilty of the most serious charges, and the decision is specifically made
to advance the case as a capital crime.
The hearing that began Monday, here at the base where Sergeant Bales was
stationed, about an hour south of Seattle, was the first step in the military
justice process. An Article 32 Investigation, as it is called, is roughly the
equivalent of a grand jury inquiry in civilian law, aimed at determining whether
sufficient evidence exists to continue to a full court-martial.
At least 35 witnesses are expected to testify, some through live video uplink
from Afghanistan, over the investigation, which could last two weeks or more.
The presiding officer, Col. Lee Deneke, will then make his recommendation to
superiors as to the next steps, including the question of whether the death
penalty should be considered, as the prosecution has requested.
Sergeant Bales’s defense lawyers on Monday reserved their opening comment for
later.
If the Kandahar killings sent a shudder through U.S.-Afghan relations and
through the military itself this spring as the horror of the case emerged, it
seemed clear from the day’s opening testimony — and the sharp cross-examination
by Sergeant Bales’s defense team — that the Article 32 hearing itself could
continue the aftershocks.
One of the first witnesses, for example, Cpl. David Godwin, testifying under
immunity from prosecution, told the court he had violated Army rules on the
night of the killings by drinking alcohol with Sergeant Bales and another
soldier.
Under direct examination by prosecutors, Corporal Godwin said the three had a
couple of drinks — Jack Daniel’s, concealed in a water bottle — in one of the
soldier’s rooms while watching a movie, “Man on Fire,” about a former
intelligence operative who seeks violent revenge after a girl’s kidnapping.
Using a word that Colonel Morse had used in outlining the case, Corporal Godwin
repeatedly said that Sergeant Bales was “coherent,” and that neither Sergeant
Bales nor the other soldier, as far as Corporal Godwin could tell, was
intoxicated.
One of Sergeant Bales’s defense lawyers, Emma Scanlan, suggested in her
cross-examination that Corporal Godwin underestimated the alcohol use and
misread Sergeant Bales’s state of mind when the sergeant returned to camp in
bloody clothes just before 5 a.m. Under her questioning, Corporal Godwin
admitted that he had exchanged perhaps five or six sentences with Sergeant Bales
outside the camp gate at the sergeant’s return, as the unit hurried to respond
to reports of civilian casualties and a missing soldier.
That brief exchange, she said, is the “basis of saying he was coherent.”
Sergeant Bales was also wearing a cape when he returned to the unit, and Ms.
Scanlan’s questions suggested that this also indicated something odd.
“Is that normal behavior?” she asked the witness.
“No,” Corporal Godwin said.
“Do you wear a cape?” she asked.
“No,” he said.
Another of Sergeant Bales’s lawyers, John Henry Browne, has said Sergeant Bales
suffered post-traumatic stress. Mr. Browne, who was en route to Afghanistan to
be there for witness testimony this week, said in an interview over the weekend
that issues of Sergeant Bales’s hospitalizations, for a foot wound and a head
wound, and his previous deployments — three in Iraq, the fourth in Afghanistan —
would also be explored in the Article 32 inquiry.
In the charge sheet that is the basis for the hearing, Sergeant Bales faces 16
counts of murder with premeditation, six counts of attempted murder with
premeditation, six counts of assault, as well as other charges of impeding the
investigation, use and possession of steroids and the consumption of alcohol,
which is forbidden to Army soldiers in Afghanistan.
Colonel Morse, the prosecutor, said in his remarks that the blood on Sergeant
Bales’s clothes forensically matched the blood of some of the victims, and
Sergeant Bales’s own words, documented at the time, would show a “chilling
premeditation.”
But witnesses talked about the strangeness they saw that night.
One of them, a soldier in the unit, Sgt. First Class Clayton Blackshear,
described Sergeant Bales at one point in the evening as “ghostlike.” Then he
shrugged. “There’s no word in the English language,” he said.
Pretrial Hearing Starts for Soldier Accused
of Murdering 16 Afghan Civilians, NYT, 5.11.2012,
http://www.nytimes.com/2012/11/06/us/hearing-begins-for-robert-bales-accused-in-afghan-murders.html
Sergeant Acquitted of Driving a Suicide
July 30, 2012
The New York Times
By KIRK SEMPLE
FORT BRAGG, N.C. — A military jury on Monday acquitted a
sergeant on the most serious charges in the death of Pvt. Danny Chen, a
Chinese-American from Manhattan who killed himself last year while deployed in
Afghanistan, but found him guilty on lesser charges.
The jury determined that the sergeant, Adam M. Holcomb, was not guilty of
negligent homicide, reckless endangerment, communicating a threat and hazing.
Sergeant Holcomb was convicted on two counts of maltreatment and one count of
assault consummated by battery.
Prosecutors had sought to convince the jury that Sergeant Holcomb’s treatment of
Private Chen, which the prosecutors said included hazing and racial taunts, led
directly to his suicide.
The 10-member jury of Army officers and enlisted soldiers reached its verdict
after about two hours of deliberations on Monday afternoon. The court-martial
began last Tuesday. Sergeant Holcomb was one of eight soldiers charged in the
case and the first to be tried.
After the verdict was announced, the court-martial moved into the sentencing
phase. The jury heard arguments from both sides and was expected to begin
sentencing deliberations on Tuesday. He faces up to two years in prison,
officials said.
In testimony during the sentencing hearing, Sergeant Holcomb expressed regret
and said he was suffering from symptoms that resembled post-traumatic stress
disorder after three deployments to war zones.
He said he had not had a brain scan, but added, “I know there’s issues up
there.” Private Chen’s suicide resonated deeply in the Chinese population in New
York City and around the country and became a rallying cause for activists and
others who have pressed the Army to improve conditions for Asians.
More than a dozen supporters of the Chen family traveled here from New York for
the court-martial, which was covered by numerous local and national reporters,
including correspondents for at least four Chinese-language media organizations.
Margaret Chin, a New York City councilwoman who attended three days of testimony
last week, said Monday that she was “very disappointed” by the mixed verdict.
Private Chen’s death, she said, had called into question the military’s
relationship with the country’s Asian population.
“How can we in good faith encourage our young people to join the military,” she
said in an interview, “to serve our country when they’re not being protected?”
Private Chen’s mother and father, both working-class Chinese immigrants who
testified at the trial, declined to comment.
The trial revolved around what caused Private Chen to take his own life.
Military prosecutors have asserted that Private Chen’s motivations for killing
himself took shape after his arrival in Afghanistan last August. Sergeant
Holcomb, they said, made Private Chen miserable by subjecting him to racial
harassment and hazing.
“You’ve seen the last six weeks of Danny’s life,” Maj. Steve Berlin, one of the
prosecutors, told the jury on Monday during closing arguments. “No wonder death
seemed like the only option.”
Sergeant Holcomb’s lawyers, however, contended that Private Chen was despondent
because of his failures as a soldier and because he had a fraught relationship
with his parents.
“Private Chen killed Private Chen,” said Capt. Anthony Osborne, one of Sergeant
Holcomb’s lawyers, during closing arguments.
Defense lawyers said Private Chen’s personal troubles were evident before he
went to Afghanistan.
Pvt. Bryan Johnson, a soldier in Private Chen’s unit who became a close friend,
testified last week that Private Chen was excited to deploy. But he also
described an incident in which he found him curled up in the fetal position on
his bunk.
Private Chen told his friend that his parents had disowned him because he was
about to deploy to Afghanistan. Defense lawyers said Private Chen told at least
four other soldiers the same thing.
Though Private Johnson said his friend had rebounded by the next day, defense
lawyers argued that this episode revealed that Private Chen’s relationship with
his parents was undermining his duties.
Private Chen’s parents testified at the trial that they had never disowned him.
In Afghanistan, Private Chen was “ostracized,” the prosecutor, Major Berlin,
declared on Monday.
He was so weak and inexperienced that he was not allowed to go out on patrol,
fellow soldiers testified.
He also made frequent mistakes, soldiers said, and was repeatedly subjected to
“corrective training.”
Prosecutors argued, however, that Private Chen’s inexperience was normal for
someone new and that the problem lay with the way superiors were addressing his
deficiencies.
In a pivotal episode several days before Private Chen’s death, Sergeant Holcomb,
angry with him, yanked him from his bunk and dragged him across the outpost,
soldiers testified. Private Chen’s offense was leaving the shower’s water pump
on. The assault count and one count of maltreatment related to the dragging
episode. The other maltreatment count related to Sergeant Holcomb’s use of
racially disparaging terms.
Several days before his death, Private Chen told a fellow soldier that he was so
fed up with the treatment he was receiving at the hands of Sergeant Holcomb and
other superiors that he was contemplating suicide, according to testimony.
On Oct. 3, he shot himself while on guard duty in a tower.
According to the doctor who performed the autopsy, a message was scrawled in
black on his forearm: “Tell my parents I’m sorry.”
Sergeant Acquitted of Driving a Suicide,
NYT, 30.7.2012,
http://www.nytimes.com/2012/07/31/nyregion/
army-jury-acquits-sergeant-of-driving-pvt-danny-chen-to-suicide-in-afghanistan.html
Defendants in 9/11 Disrupt Hearing at Guantánamo
May 5, 2012
The New York Times
By MATT FLEGENHEIMER
An
arraignment for the self-described architect of the attacks on Sept. 11, 2001,
and four other detainees descended quickly into a chaotic scene Saturday, as the
defendants refused to answer — or even listen to — the judge’s questions, and
their lawyers sought to cast doubt on whether a fair hearing was possible given
their clients’ treatment at Guantánamo Bay.
The rocky beginning comes as the United States chases dual goals at the restart
of the tribunal: to prosecute, and ultimately execute, the five detainees; and
to demonstrate to the world that the tribunal system is legitimate.
According to news reports on Saturday, the lead defendant, Khalid Shaikh
Mohammed , removed the headphones intended to provide Arabic-English
translations of the judge’s questions. The other defendants did the same,
forcing the judge, Army Col. James L. Pohl , to recess briefly. The hearing
resumed after an interpreter began providing a translation that could be heard
by the whole court.
But news reports depict a day filled with other interruptions. A co-defendant,
Walid bin Attash , was strapped to a chair after refusing to come to court
voluntarily. He was freed from the chair after pledging to behave inside the
courtroom.
At one point, another detainee, Ramzi bin al-Shibh , rose suddenly, then knelt
on the floor of the courtroom to pray. A team of guards in camouflage uniforms
watched closely, but did not intervene.
As the case is restarted, Brig. Gen. Mark S. Martins, the chief prosecutor in
the military commissions system, has sought to rebrand the system by
highlighting changes that Congress made in 2009. These included a higher bar for
“hearsay” evidence and a prohibition against using statements made during cruel
or degrading treatment. Obama administration officials have cited these changes
in arguing that the current tribunals are fair, unlike those in place during the
Bush administration.
But lawyers for the defendants say that the improvements are exaggerated. During
the hearing, Cheryl Bormann , a civilian lawyer for Mr. Attash, told the court
that her client’s treatment at Guantánamo had impeded his ability to take part
in the proceedings. “These men have been mistreated,” Ms. Bormann said,
according to Reuters.
The judge said the defendants’ participation in the tribunal was not a matter of
choice. As he questioned each defendant, he noted for the record, “The accused
refuses to answer,” according to The Associated Press. He ruled that the
defendants would be represented by the lawyers assigned to them.
Several family members of victims came to the naval base to watch the new
arraignment. Others watched via satellite at military bases in the United
States.
Mr. Mohammed wore a white turban. His flowing beard, which appeared to be
graying in previous hearings, was tinged with red, according to news reports.
Tara Henwood-Butzbaugh of Manhattan, whose brother, John Henwood , died in the
attacks, traveled to Guantánamo to watch.
“It’s been a long time coming,” she said before the hearing, “and I do think
it’s in the right place because it was an act of war.”
In 2008, Mr. Mohammed was among the defendants who sent a note to a military
judge at Guantánamo, asking to confess and to plead guilty. Almost a year later,
Attorney General Eric H. Holder Jr. announced that the men would be tried in
civilian court in Manhattan, rather than by a military tribunal. But faced with
a political uproar, led by Republicans and some Democrats, the administration
backpedaled, moving the trial out of New York. No other location was ever
secured, and Mr. Holder announced last year that he had cleared military
prosecutors at Guantánamo Bay to file war-crimes charges against the five
detainees.
Defendants in 9/11 Disrupt Hearing at Guantánamo, NYT, 5.5.2012,
http://www.nytimes.com/2012/05/06/us/9-11-defendants-face-arraignment-in-military-court.html
Guantánamo Trials Should Be Open
April 18,
2012
The New York Times
By DAVID A. SCHULZ
LAST week I
stood before a military judge at Guantánamo Bay to argue that the press and
public had a constitutional right to observe the proceedings of military
commissions. It is an argument I’ve made scores of times on behalf of news
organizations objecting to closed proceedings in criminal and civil trials, but
this was the first time that a military commission — part of a system of
tribunals created in 2006 to try terrorism suspects — agreed to hear such
arguments from the press.
Whether this marks a new openness, or is another in a long line of false starts,
remains to be seen. But the government has a real opportunity to show its
commitment to the rule of law by acknowledging that the public’s First Amendment
rights apply at Guantánamo. The values served by open criminal proceedings —
public acceptance of the verdict, accountability for lawyers and judges, and
democratic oversight of our government institutions — apply there with
particular urgency.
The controversy over public access to the Guantánamo trials has come to a head
in the prosecution of Abd al-Rahim al-Nashiri, accused of masterminding the 2000
attack on the Navy destroyer Cole. Mr. Nashiri’s lawyers want to meet with him
unshackled, asserting that shackling brings back memories of torture and
interferes with his ability to assist in preparing his defense. They proposed to
call both Mr. Nashiri and a psychologist to testify in support of their request.
The government still considers its interrogation techniques “classified
information.” Under this logic, Mr. Nashiri’s own testimony about his own
treatment must be kept secret.
But so much is already known about Mr. Nashiri’s interrogation that a secret
proceeding on its psychological impact is unwarranted. A report, prepared in
2004 by the inspector general for the Central Intelligence Agency and partly
released in 2009, disclosed that Mr. Nashiri had been waterboarded twice,
threatened with use of a handgun and a power drill, and held in stress positions
that could have dislocated his arms from his shoulders. What real threat would
justify preventing the public from hearing his first-person account of this
interrogation?
In May 2010, four journalists were expelled from Guantánamo for reporting the
name of the chief interrogator of a terrorism suspect, Omar Khadr — even though
the interrogator had sought out the press years earlier to tell his story. After
an uproar, the Pentagon’s top lawyer, Jeh C. Johnson, facilitated the
reinstatement of the reporters on their promise that they would abide by rules
governing the commissions, and then set out to revise the rules. Under new rules
announced in September, reporters may now make their objections to secrecy to
the presiding judge in writing. The decision to hear my argument in person by
the top judge in the Nashiri case, Col. James L. Pohl, was an important step
forward.
The motion for access, which was filed by 10 news organizations (including The
New York Times, a client of mine), argues that the First Amendment obliges that
Mr. Nashiri’s testimony be taken in an open courtroom. Under the Constitution,
the fact that a specific piece of information might technically be “classified”
should not be sufficient to close a hearing if the information is already known
to the public (and easily found on the Internet).
On April 11, Colonel Pohl granted Mr. Nashiri’s motion for unshackled visits
without taking testimony, so he sidestepped, for now, a decision on the standard
that will govern requests to close proceedings at the Guantánamo trials. But the
issue will undoubtedly return, and the military’s commitment to openness will
again be tested.
In recent weeks the lead prosecutor for the military commissions, Brig. Gen.
Mark S. Martins, has made the case that military tribunals are uniquely suited
for the prosecution of a narrow class of terrorism suspects and that the use of
these tribunals should be recognized as consistent with commitment to the rule
of law. But the world will never accept the Guantánamo verdicts if significant
testimony is closed for fear of embarrassment over detainee mistreatment.
The thought of a Guantánamo defendant taking the stand to testify about his
treatment, in his own words, may not be appealing for many reasons. But we must
be prepared to lay out all the facts, wherever they lead, if we are to
demonstrate to the world that the verdicts ultimately rendered at Guantánamo are
justifiable, however they turn out.
As Chief Justice Warren E. Burger observed in 1980, on the importance of the
Constitution’s protection of public access to the courts: “People in an open
society do not demand infallibility from their institutions, but it is difficult
for them to accept what they are prohibited from observing.”
David A.
Schulz is a First Amendment lawyer and a lecturer at Yale Law School.
Guantánamo Trials Should Be Open, NYT, 18.4.2012,
http://www.nytimes.com/2012/04/19/opinion/open-proceedings-at-guantanamo.html
U.S. Sergeant
Charged
With 17 Counts of Murder in Afghan Killings
March 23,
2012
The New York Times
By MATTHEW ROSENBERG and WILLIAM YARDLEY
Staff Sgt.
Robert Bales was charged on Friday with 17 counts of premeditated murder and six
counts of assault and attempted murder in connection with a March 11 attack on
Afghan civilians, American forces in Afghanistan said.
If convicted of premeditated murder, Sergeant Bales could face the death
penalty, according to the announcement, which was made by American officials in
Kabul.
Afghan and American officials have said that Sergeant Bales, a 38-year-old
soldier from Joint Base Lewis-McChord in Washington State serving his fourth
combat tour overseas, walked away from his remote outpost in southern
Afghanistan and shot and stabbed members of several families in a nighttime
ambush. Many officials initially said that 16 people were killed in the rampage;
at least 9 were children and others were women. But the military said Friday
that Sergeant Bales was accused of killing 17 Afghan civilians.
Afghan officials on Friday, however, stuck to the initial death toll. None of
the six people whom Sergeant Bales is accused of assaulting and attempting to
murder had died from wounds sustained in the attack, though three remain
hospitalized, said Zalmai Ayoubi, a spokesman for the government of Kandahar
Province, where the killings took place.
The deaths were listed individually in a spare charge sheet that redacted the
names of victims and provided no narrative description of how the attack took
place other than to locate the alleged crimes “at or near Belambay, Afghanistan,
on or about 11 March 2012.” In two cases, no victim name appears to have been
listed.
Multiple reports have said that Sergeant Bales also stabbed and set fire to some
victims, but the charge sheet says only that the dead were killed by a firearm.
It also does not specify which of the murder victims were children.
Eric S. Montalvo, a private lawyer involved in many military cases, including
the recent defense of one of the “kill team” defendants at Lewis-McChord, said
the brevity of the charge sheet does not necessarily mean the Army does not
believe other crimes were committed.
“What they’ve been getting in trouble with is overcharging the case and having
to backpedal,” said Mr. Montalvo, whose client in the kill team case was charged
with murder but pleaded guilty to manslaughter in the 2010 killings of Afghan
civilians. “There’s no rush to pack the charge sheet at this point. They can let
the Article 32 investigation come up with additional facts.”
The completion of an Article 32, in which the Army broadens its investigation
and formally decides on charges, could be several months away. Sergeant Bales is
being held at Fort Leavenworth, Kan., but the Army said Friday that future legal
proceedings would take place at Lewis-McChord.
The charge sheet did not address how the Army concluded Sergeant Bales acted
with premeditation. John Henry Browne, a lawyer for Sergeant Bales, has said his
client cannot remember some of the events at the time of the attack. Mr. Browne
said in interviews this week that the sergeant had not sought or received
treatment for a concussion he apparently suffered during a vehicle rollover in
Iraq in a previous deployment.
“There’s definitely brain injury, no question about it,” Mr. Browne said.
Jawad
Sukhanyar contributed reporting.
U.S. Sergeant Charged With 17 Counts of Murder in Afghan Killings, NYT,
23.3.2012,
http://www.nytimes.com/2012/03/24/us/staff-sgt-robert-bales-faces-murder-charges-in-afghan-killings.html
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