Allen: Speculation About Bales Case ‘Serves No Purpose’

By Karen Parrish

American Forces Press Service

WASHINGTON, March 26, 2012 – Criminal and administrative investigations continue following charges announced March 23 against Army Staff Sgt. Robert Bales, the NATO International Security Assistance Force commander said here today.

Bales, who is being held at Fort Leavenworth, Kan., is charged with killing 17 Afghan civilians and trying to kill six others March 11.

U.S. officials have paid compensation to the victims’ families, Marine Corps Gen. John R. Allen confirmed to reporters during a Pentagon news conference, noting that such payments are according to Afghan cultural norms.

“I extend once again my sincere condolences to the loved ones, family members and friends of those who were killed and injured in that senseless act of violence,” Allen said. “I also extend my deepest sympathies to the Bales family, who are going through a great deal right now. They, too, deserve our support as they come to grips with the inevitable and drastic changes … in their lives.”

Allen said because investigations continue and jurisdiction rests with officials at Joint Base Lewis-McChord, Wash., he could not to go into more detail about the case. He added that investigators “have and will retain my full support to let the facts take them where they may.”

Investigative and judicial processes will proceed according to military regulations, Allen said.

“Speculation in the media and through anonymous commentary serves no one's purpose in our interest and in our earnest desire to see justice done here,” he added.

The special court-martial convening authority at Joint Base Lewis-McChord must next decide whether to direct an investigation of the charges under Article 32 of the Uniform Code of Military Justice. No case can proceed to a general court-martial unless a command first conducts an Article 32 investigation.

Under the UCMJ, the maximum possible punishment for a premeditated murder conviction is dishonorable discharge from the armed forces, reduction to the lowest enlisted grade, forfeiture of pay and allowances, and death. The minimum sentence is life imprisonment with eligibility for parole.

Panel Chosen for Sentencing Portion of Detainee Trial

By Cheryl Pellerin

American Forces Press Service

NAVAL STATION GUANTANAMO BAY, Cuba, Feb. 16, 2011 – A military commission panel of officers made up of nine men and three women will determine the sentence detainee Noor Uthman Muhammed will serve after pleading guilty yesterday to charges of conspiracy and supporting international terrorist groups, including al-Qaida.

Fifteen potential panel members arrived here from military bases around the world, and Noor’s defense team objected to six of them, whittling their number to nine. The panel must contain at least five members.

The members, whose identities the court protects, include a male Army colonel who will act as panel president, a male Navy captain, a female Air Force colonel, a male Air Force colonel, a male Air Force lieutenant colonel, a female Air Force captain, a male Navy chief warrant officer, a male Army major and a male Army lieutenant colonel.

These service members will hear testimony over the next day or so before deliberating and conferring a sentence in the sixth conviction produced here by the commission since 2002.

“All six of our cases have been foreign fighters who violated the laws of war overseas in or near an operational background … where we have armed forces,” Navy Capt. David Iglesias, a spokesman for the military commission prosecutors, told American Forces Press Service.

Military commissions have had narrow jurisdiction, addressing only foreign nationals -– called alien enemy unprivileged belligerents -- who violate the laws of war, said Iglesias, himself a prosecutor and a former U.S. attorney. Because of their limited scope, he added, the military commission is “looking only at a small universe of 60 possible cases among the 172 detainees” now being held at the detention facility here.

Unlike U.S. courts, the military commission convened to prosecute the government’s cases against some of the detainees held here has roots dating back to the American Revolution and long experience dealing with war crimes, Iglesias said.

“The Justice Department has a 35-year history of trying terrorism cases, going back to the mid-1980s. It does not have a long history of prosecuting war crimes,” he said. “The U.S. military has a history of prosecuting war crimes going back to the Revolutionary War in the 1770s.”

Such laws have been codified over time in documents such as the Hague Conventions of 1899 and 1907, among the first formal statements of the laws of war and war crimes in international law, and in the Geneva Convention of 1949, Iglesias said.

Among the centuries-old concepts are that fighters engage only with other fighters and not with civilians or the sick or wounded, and that churches, mosques, schools, hospitals and cultural centers are protected places.

Terrorists don’t wear uniforms that make them recognizable from a fixed distance, Iglesias noted, and they don’t have a command structure in which one person is in charge of the duties of his or her men. “They don’t recognize the laws of war,” he added.

The last time the United States convened military commissions was at the end of World War II, he said.

“We set up many commissions to try war criminals in the European theater, most of whom were Nazi soldiers, and in the Pacific theater. And then there was 60 years of silence, until 9/11,” Iglesias said.

Some critics of military commissions complain that their legal requirements didn’t stand up to those observed by civilian courts or the Uniform Code of Military Justice. That changed in 2009, Iglesias said.

“There was a Military Commissions Act of 2006 that our leadership thought did not represent the type of due process that we have historically recognized in this country,” he acknowledged. The act was reformed and signed by President Barack Obama in 2009. Defense Secretary Robert M. Gates signed the foreword to the revised rules.

The new act “gives greater rights to detainees and makes it more difficult for either side to use hearsay evidence,” Iglesias noted, but the new rules don’t make military commissions identical to trying a criminal case, he added.

In many cases, he explained, the government’s burden is much more difficult because of the enormous amount of classified information that’s used in cases against war criminals. “There may be witnesses overseas that foreign governments don’t want to produce,” he said, “so there has to be a way for the government to introduce evidence that in a normal court would be prohibited.”

With that exception, he added, there’s very little difference between a court-martial case and a military commissions case. “How the cases are put together and presented in court are virtually identical,” he said.

The revision also reduced the time required to resolve cases, he said. The Noor case marks three cases resolved in six months. Under previous versions of the law, only three cases were resolved from 2001 to 2008.

As a former state prosecutor, federal prosecutor and military defense counsel, Iglesias said, he believes “the Military Commissions Act of 2009 represents the rule of law, it represents due process, and it is a fair system that protects the rights of the accused.”

Detainee Pleads Guilty at Military Commission Hearing

The Department of Defense announced that Omar Khadr pleaded guilty today in a military commission.  In accordance with a pre-trial agreement, Khadr admitted, in open court, to committing murder in violation of the law of war, attempted murder in violation of the law of war, providing material support to terrorism, conspiracy, and spying.  His sentence will be determined at a hearing that begins Oct. 26.

Khadr admitted to throwing a grenade on July 27, 2002, that killed Sgt. 1st Class Christopher Speer after the conclusion of a four-hour firefight between al Qaeda affiliated forces and U.S. military forces, and that he threw the grenade with the intent of killing American or coalition forces.  Khadr also admitted that in the months prior to his murder of Speer, he converted landmines to improvised explosive devices (IEDs) and assisted in the planting of ten IEDs with the intent of killing American forces.

In all cases tried by a military commission, the military judge has the duty to ensure the guilty plea is both supported by the facts and voluntarily made before accepting the guilty plea.  In this case, Military Judge Col. Patrick Parrish, questioned Khadr at length about his actions and his understanding of his plea.  Parrish then indicated that he was satisfied that Khadr understood his rights, the plea was voluntary, and that Khadr did in fact commit the acts that constitute the offenses as charged.  This requirement for questioning the underlying facts and voluntariness of the plea safeguards the rights of the accused and guarantees the legitimacy of the plea.  Khadr was assisted by two appointed military defense counsel, at no cost to him.

In all military commissions, a panel of military officers known as “members” determines the sentence, regardless of whether the plea was guilty or not guilty.  At a hearing scheduled to begin tomorrow, the defense and prosecution will each have an opportunity to present evidence and argument to the members to aid them in determining a sentence.

Under the pre-trial agreement, Khadr agreed to waive his right to trial and plead guilty to the charged offenses in exchange for a limitation on his sentence.  Parrish questioned Khadr and determined that he entered into the agreement voluntarily and believed it was in his best interests.  In order to preserve the integrity of the sentencing deliberations, the terms of the agreement are not disclosed to the members until after the sentence is announced.