TACOMA, Wash. — The charges stacked up against five soldiers from Joint Base Lewis-McChord sound as if they rank among the worst war crimes in the past nine years of combat in the Middle East: killing Afghan civilians and keeping gruesome souvenirs from the attacks.
The soldiers could face life in prison. Hearings that would determine whether they’ll stand trial are set to begin Monday, and the Stryker brigade soldiers already have been the subject of national media accounts highlighting allegations that they comprised a “kill team” intent on harming Afghans.
A look at other notorious cases of alleged misconduct in Iraq and Afghanistan shows the Defense Department has achieved mixed results in prosecuting service members.
Cases such as these can be especially challenging for prosecutors with evidence thousands of miles away in a war zone, soldiers trying to maintain loyalty to each other and some sympathy in the public for actions taken in combat, said defense attorneys and others who follow the cases.
“There’s not a lot of stomach for holding soldiers accountable, even when the charges are this appalling,” said Elizabeth Hillman, a former Air Force officer who teaches law at the University of California, Hastings, and is the vice president of the National Institute for Military Justice.
“It’s crucial that we reckon with what these sorts of trials mean. We’re putting young people in combat, and this is what can happen,” she said.
The Lewis-McChord soldiers accused of murdering civilians belonged to a platoon in the 5th Brigade, 2nd Infantry Division. The unit kept a grueling pace after deploying to southern Afghanistan in July 2009, carrying out two missions a day at times, according to documents filed with the magistrate overseeing the cases.
Staff Sgt. Calvin Gibbs, the highest-ranking soldier accused of the murders, joined the platoon in November as a squad leader. By December, Gibbs allegedly began joking about how easy it would be to “toss a grenade at someone and kill them.”
That scenario allegedly played out three times between January and May, according to charges filed against the soldiers.
Army officials have said little on the record about the accusations, aside from pledging to investigate them.
‘SUPPORT OF OTHERS’
Attorneys representing the five soldiers are putting forth two main arguments to defend their clients, all of whom remain in military custody.
One group of attorneys argues that the killings took place in combat and that they were appropriate engagements.
Spc. Michael Wagnon “was firing in support of others in the field, and he knows nothing about anybody’s intent to murder anyone,” said Colby Vokey, a retired Marine lawyer and Wagnon’s attorney.
Wagnon, 30, is accused of helping commit the second murder by firing at a civilian and of trying to destroy evidence once investigators began looking into his platoon.
“As far as Wagnon knows, that was a combat engagement,” Vokey said.
The other set of attorneys contends the attacks were devised by Gibbs, who attorneys say bullied others and involved as many people as possible in his schemes so his collaborators wouldn’t speak up.
“He’s an inspired leader,” said attorney Eric Montalvo, a retired Marine lawyer who’s representing Spc. Adam Winfield, 22, a soldier accused of helping commit the last murder. Gibbs is “a Manson-esque type figure. He’s inspired other young soldiers who all have sworn to uphold the Constitution to engage in behavior that is just reprehensible.”
Gibbs’ attorney has said the killings were legitimate engagements.
Dan Conway, a former Marine representing Pfc. Andrew Holmes, 19, says his client is innocent in the January killing of Gul Mudin, an Afghan civilian. Conway further says that Holmes did not know about a conspiracy to kill civilians.
Spc. Jeremy Morlock, 22, is alleged to be another ringleader in the group. He initially confessed to the crimes to Army investigators, but his attorney has since disavowed those statements.
Morlock is the first of the five soldiers to go to a legal hearing.
Two infamous alleged war crimes in the Iraq War suggest the case against the 5th Brigade soldiers could unfold in different ways.
One is Haditha, where Marines in November 2005 killed 24 people, including women and children, by going house to house and throwing grenades in rooms.
The Defense Department brought charges against eight Marines in 2006, but in 2007 and 2008 dropped charges against five of them as their lawyers argued the Marines were responding to an attack on their unit. One Marine was found not guilty at trial, and a lieutenant colonel who faced charges that he should have investigated more thoroughly was allowed to retire at his rank. The last defendant continues to wait for a trial.
The other case is Mahmudiyah, where U.S. soldiers in March 2006 dressed up in costumes, raped a 14-year-old Iraqi girl and executed her family. Five soldiers were convicted or pled guilty to charges stemming from that crime. Pfc. Steven Green received a life sentence for his role as the instigator.
“Green is more of an anomaly,” said Vokey, who has defended about a dozen soldiers and Marines accused of misconduct in Iraq and Afghanistan. “That was an act of evil. More frequently you see guys who are pushed to the edge in stressful situations or who might have done things that just go a little too far.”
In between are less well-known cases in which the Defense Department prosecuted soldiers for killing detainees or people who could not defend themselves.
Attorney James Culp, a former infantry sergeant and Army lawyer who has defended several soldiers accused of crimes in Iraq, said the government learned from the Haditha hearings and has been more thorough in investigating misconduct before bringing charges against service members.
“Haditha was the watershed case that hit the front pages, and then in the end it just putters and putters,” he said. “Reporters are more careful because of Haditha, prosecutors are more careful because of Haditha. Everybody’s more careful now.”
In Culp’s experience, accused soldiers have been more successful when they’ve convinced jurors that they were engaged in combat situations.
The defense that a soldier committed a war crime under a superior’s orders hasn’t worked as well, he said.
Examples include Army Sgt. Evan Vela of Idaho, who is serving a 10-year sentence at Fort Leavenworth in Kansas for killing an unarmed Iraqi detainee in a sniper hideout. Staff Sgt. Michael Hensley, who ordered the killing, was acquitted of murder charges.
“‘He told me (to defend soldiers following orders) is less tenable than the fog of war. You don’t follow blatantly illegal orders,” said Culp, who represented Vela and one of the Haditha Marines.
Cases like Vela’s and those of the Lewis-McChord Stryker soldiers often evoke strong reactions from military supporters who contend that service members in combat should be given the benefit of the doubt. Some soldiers accused of crimes in war zones have websites where their families raise funds for their legal defense. Holmes, Morlock and Wagnon each has one.
“I don’t think many people understand the quality of soldiers who have been incarcerated in this war,” said Vicki Behenna, an Oklahoma prosecutor whose son was convicted of killing a detainee in Iraq. He is serving a 25-year sentence at Fort Leavenworth.
Army Lt. Michael Behenna contends the detainee reached for his weapon, which prompted the soldier to shoot the Iraqi. He’s appealing the verdict, arguing that the government withheld forensic evidence that supported his defense.
“We assume if you’re charged and you’re found guilty you must be a bad person,” Vicki Behenna said. “But these people are different because many of them are just trying to survive in a combat zone.”