Lewis-McChord could host Afghan massacre suspect's trial

The (Tacoma) News TribuneMarch 15, 2012 

The soldier suspected in Sunday’s killing spree in Afghanistan was flown out of Afghanistan Wednesday, the first major move in a legal process that will be closely watched around the world.

There’s a fair chance he will be detained and tried at his home station of Joint Base Lewis-McChord, military law experts said. For the base, it would be the second sensational war crimes case in the last few years. If it plays out as a death penalty case, it would be the first time Lewis-McChord has hosted one of those in memory.

But the experts noted the military justice system gives the Army broad latitude to prosecute the 38-year-old combat veteran elsewhere, and leaders may choose to do so for various reasons, including Afghan cries for justice on their soil.

Wherever it happens, it will likely take several months to hold a pretrial hearing after he’s charged and at least another year for a court-martial to start due to legal motions and other wrangling.

“It’s going to be a long, long haul before it gets to trial,” said Victor Hansen, a retired Army prosecutor and professor at the New England School of Law in Boston.

The unidentified soldier stands accused of killing 16 Afghan civilians, including nine children, during a rampage Sunday that has drawn international condemnation and complicated negotiations toward a long-term U.S. presence in Afghanistan. Unnamed sources have identified him as a staff sergeant assigned to the 3rd Brigade, 2nd Infantry Division, which left Lewis-McChord in December.

A Pentagon spokesman said the soldier was flown out of Afghanistan Wednesday night “based on a legal recommendation.” An unnamed U.S. military official said the soldier was flown to another country aboard a U.S. military aircraft but declined to say where it was headed.

An I Corps spokesman at Lewis-McChord said Wednesday he was unaware of any plans to detain the soldier at the local base, and that it’s too soon to know where he ultimately will be tried.

The experts interviewed by The News Tribune said this case is unique for the wars in Afghanistan and Iraq and perhaps for earlier wars because a soldier acted alone to methodically gun down several civilians outside combat. Other high-profile cases, including the Afghan “kill team” case tried at Lewis-Chord in 2010 and 2011, involved several soldiers accused of killing three civilians over a period of months and carefully disguising the deaths as legitimate combat engagements.

“We’re breaking new ground here in a very, very tragic and explosive way,” said Eugene Fidell, a noted military lawyer who teaches military justice at Yale Law School.

Fidell said prosecuting a solder at his home station is the “default position” for the military. But he noted the system isn’t bound by constitutional restraints that limit where trials can be held, unlike federal criminal cases. And he said the court-martial could be moved elsewhere if the Army decides another location is more convenient or determines it’s easier to seat an impartial jury.

Hansen said what makes Lewis-McChord a good candidate is it has its own courtrooms and a detention center. Also, two military judges are based here and wouldn’t have to travel to preside over what’s anticipated to be a lengthy case. Lewis-McChord also has a large number of potential jurors; it is the largest military installation on the West Coast with more than 40,000 soldiers and airmen.

“Given the size of the military base and the number of military members there, that provides a larger pool in which to draw those names from,” Hansen said.

On the other hand, Fort Bragg in North Carolina has “got the system down” because it’s handled a number of capital case and recently modernized its courtrooms, Hansen said

Afghan authorities are barred from prosecuting U.S. service members under an agreement reached between the U.S. and Afghanistan’s former government following the overthrow of the Taliban regime, Fidell said.

But Afghan lawmakers have demanded that the soldier be publicly tried in their country. They have called on President Hamid Karzai to suspend all talks with the U.S. until that happens.

The Pentagon spokesman said the soldier’s removal Wednesday did not necessarily mean the trial would be held outside Afghanistan, but the other military official said legal proceedings would continue in another country.

Military law experts told The News Tribune nothing prevents the soldier from being tried in Afghanistan but they consider that unlikely. Fidell said such a trial is “certain to be a flashpoint” for further unrest. Hansen said trying this case in the middle of an ongoing combat mission would be a “huge distraction.”

Elizabeth Hillman, law professor at the University of California-Hastings and president of the National Institute for Military Justice, said flying expert witnesses and other resources to try the case overseas “would be unusual.”

Given that the bulk of a trial would focus on the soldier’s mental state and culpability, she said, “there’s no strong reason to do that in Afghanistan.”

But a decision to remove the soldier from the country may complicate the prosecution, said Michael Waddington, an American military defense lawyer who represented a ringleader of the 2010 kill team. The prosecutors won’t be able to use statements from Afghan witnesses unless the defense is able to cross-examine them, he told the AP.

Waddington said the decision to remove the suspect was likely a security call.

“His presence in the country would put himself and other service members in jeopardy,” he said.

The Associated Press contributed to this report.

To read more, visit www.thenewstribune.com.

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