Saturday, March 17, 2012
An expert's view on Staff Sgt. Robert Bales
A comment was just posted to last Thursday's post that was so good it deserves a post of its own- this reflection by Razorite Campbell, who just returned from a one-year tour of duty in Afghanistan:
Understand I'm speaking personally, not on behalf of the Army, so this isn't for wider attribution.
Based on what I know about the case (thanks to CNN), I think it was a good idea to take the sergeant out of Afghanistan for prosecution. No way on earth were we going to turn him over to the Afghan courts for prosecution. As far as trying him in Afghanistan under the Uniform Code of Military Justice...it's theoretically and logistically possible, but practically speaking, it's a no-go with a big, complicated case like this.
Without getting too much in the weeds, pretrial confinement alone is a logistical nightmare in the States. So is a contested court-martial. I've dealt with both situations several times in the U.S., and they're difficult. Take those logistical challenges and apply them in a combat zone. Trust me, it's not practical to try this case in Afghanistan or Kuwait.
Additionally, you'd likely have to extend your witnesses, prosecutors, and defense attorneys in theatre for a long, long time if the case was tried in Afghanistan - if this case is anything like the cases against the Fort Hood shooter or Wikileaks soldier, it'll take months, if not over a year, to get to trial. Extending deployed soldiers for a few additional days or weeks is one thing. Extending them for months and months is something else entirely.
The one big issue I see right now is evidence. Under the Military Rules of Evidence, a confession alone is insufficient evidence to convict. There has to be evidence to corroborate the confession (and it appears that some sort of incriminating statement was made). If the only other evidence is the testimony from the surviving Afghan villagers, then trying the case in the States just got more complicated. We can bring those villagers to the U.S. to testify, but that brings its own set of challenges (assuming we can even convince them to come). I'm sure that's already been considered, though - the decision to bring the sergeant back to the States was not made lightly, I'm sure.
In the end, though, I think it was the right call.
Understand I'm speaking personally, not on behalf of the Army, so this isn't for wider attribution.
Based on what I know about the case (thanks to CNN), I think it was a good idea to take the sergeant out of Afghanistan for prosecution. No way on earth were we going to turn him over to the Afghan courts for prosecution. As far as trying him in Afghanistan under the Uniform Code of Military Justice...it's theoretically and logistically possible, but practically speaking, it's a no-go with a big, complicated case like this.
Without getting too much in the weeds, pretrial confinement alone is a logistical nightmare in the States. So is a contested court-martial. I've dealt with both situations several times in the U.S., and they're difficult. Take those logistical challenges and apply them in a combat zone. Trust me, it's not practical to try this case in Afghanistan or Kuwait.
Additionally, you'd likely have to extend your witnesses, prosecutors, and defense attorneys in theatre for a long, long time if the case was tried in Afghanistan - if this case is anything like the cases against the Fort Hood shooter or Wikileaks soldier, it'll take months, if not over a year, to get to trial. Extending deployed soldiers for a few additional days or weeks is one thing. Extending them for months and months is something else entirely.
The one big issue I see right now is evidence. Under the Military Rules of Evidence, a confession alone is insufficient evidence to convict. There has to be evidence to corroborate the confession (and it appears that some sort of incriminating statement was made). If the only other evidence is the testimony from the surviving Afghan villagers, then trying the case in the States just got more complicated. We can bring those villagers to the U.S. to testify, but that brings its own set of challenges (assuming we can even convince them to come). I'm sure that's already been considered, though - the decision to bring the sergeant back to the States was not made lightly, I'm sure.
In the end, though, I think it was the right call.
Comments:
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I don't know if you get tired of hearing it, but thank you for your service. Most of us lack the understanding you have, gained by experiences which must have been challenging. Thank you. Now, what should happen to this soldier? I hear the words "death penalty" being spoken and cannot believe that is the solution.
# posted by 
: 1:59 PM
: 1:59 PM
Forgive me if this is naive of me, but why exactly can't he be tried in Afghan courts? It sounds to me like he sort of "went rogue" and committed a horrible crime, but he did so on the soil of another sovereign government. If this happened in the US, there's no way we would not allow him to be tried in the U.S. as opposed to his home country. I guess what I don't get is why the law of Afghanistan wouldn't apply to his prosecution, as unfortunate as it may be. My experience working with the state department taught me that if you screw up in another country, you are generally subject to that country's laws, however different they may be from ours. Does this not apply to military servicemembers?
No justification at all for what he did - none.. but FOUR DEPLOYMENTS.... And the Fourth was after he was promised he was done. Then you add the traumatic brain injury he suffered a while ago...
We have a neighbor who was the nicest guy... He woudl often help everyone out in the neighborhood with any project you were doing, funny, friendly such a nice guy. He and his wife were from michigan and Bob Seger played at their High School Prom and we talked often about Michigan. He currently has a Red WIngs Flag up..
About 6 years ago this guy got into a HORRIBLE Car Crash It was a teenager Driver in a little car and he was in a fully loaded U Haul helping his daughter move. He suffered a traumatic rain injury in the crash and he has never been the same since. his personality completely changed He started doing stuff like yelling at people, Throwing yard tools around Playing loud weird music all day, Calling the police on 4 year olds in his yard... Bizarre WEIRD stuff. I mean just ODD ODD behavior... he is a completely different person now. He called Canby Code Enforcement EVERY SINGLE DAY starting about a week after the explosion asking them when our house would be torn down. It was not up to us...
He does stuff like You go over to talk to his wife, and she is like STANDING in the garage and he is on the driveway... You tell him you came to see his wife, he will insist she is NOT home.. Shoos you away - She is not home yelling yelling...
COMPLETELY DIFFERENT PERSON today. It's just SAD we all remember who he was - we see flashes of it...occasionally, but you never ever know which "Name withheld" you re going to get. Ever. Right now he says he hates everyone in this neighborhood and wants to move. He has had his house on the market for the past four years. He will not lower the price which is like a PRE 2007 Price - like 100K over the market value. Houses were not selling here for a while but they have started to again... But his just sits there....
I cannot see him going on a shooting spree any time soon but honestly? If it did happen and it turned out to be him... I would be a lot LESS SURPRISING than other people...
We have a neighbor who was the nicest guy... He woudl often help everyone out in the neighborhood with any project you were doing, funny, friendly such a nice guy. He and his wife were from michigan and Bob Seger played at their High School Prom and we talked often about Michigan. He currently has a Red WIngs Flag up..
About 6 years ago this guy got into a HORRIBLE Car Crash It was a teenager Driver in a little car and he was in a fully loaded U Haul helping his daughter move. He suffered a traumatic rain injury in the crash and he has never been the same since. his personality completely changed He started doing stuff like yelling at people, Throwing yard tools around Playing loud weird music all day, Calling the police on 4 year olds in his yard... Bizarre WEIRD stuff. I mean just ODD ODD behavior... he is a completely different person now. He called Canby Code Enforcement EVERY SINGLE DAY starting about a week after the explosion asking them when our house would be torn down. It was not up to us...
He does stuff like You go over to talk to his wife, and she is like STANDING in the garage and he is on the driveway... You tell him you came to see his wife, he will insist she is NOT home.. Shoos you away - She is not home yelling yelling...
COMPLETELY DIFFERENT PERSON today. It's just SAD we all remember who he was - we see flashes of it...occasionally, but you never ever know which "Name withheld" you re going to get. Ever. Right now he says he hates everyone in this neighborhood and wants to move. He has had his house on the market for the past four years. He will not lower the price which is like a PRE 2007 Price - like 100K over the market value. Houses were not selling here for a while but they have started to again... But his just sits there....
I cannot see him going on a shooting spree any time soon but honestly? If it did happen and it turned out to be him... I would be a lot LESS SURPRISING than other people...
So much to respond to...here we go.
Anon 1:59 - Legally, this can be a capital case if premeditated murder is charged. It's the decision of the convening authority (the commanding general) whether the case will be capital or not. I'm guessing it'll go capital, but I could see a plea negotiation for life without parole. I am personally opposed to the death penalty (I wasn't always), so I agree with you that more death is not the answer.
Justin - I didn't say he couldn't be tried. I just said there's no way we'd turn him over. Afghan courts do not have anything near the due process rights we have in the U.S., and human rights and humane treatment is a foreign concept in much of the Afghan prison system.
When our military is present in another country with that country's consent, we will have a status of forces or similar agreement (for example, we have them with Germany and South Korea) detailing when we or the host nation get to prosecute American servicemembers. I don't know what our status of forces agreement or similar agreement is with the Afghan government.
If a foreign servicemember present in the U.S. did something like this, we'd have to look to our status of forces agreement to determine who prosecutes.
Anon 1:59 - Legally, this can be a capital case if premeditated murder is charged. It's the decision of the convening authority (the commanding general) whether the case will be capital or not. I'm guessing it'll go capital, but I could see a plea negotiation for life without parole. I am personally opposed to the death penalty (I wasn't always), so I agree with you that more death is not the answer.
Justin - I didn't say he couldn't be tried. I just said there's no way we'd turn him over. Afghan courts do not have anything near the due process rights we have in the U.S., and human rights and humane treatment is a foreign concept in much of the Afghan prison system.
When our military is present in another country with that country's consent, we will have a status of forces or similar agreement (for example, we have them with Germany and South Korea) detailing when we or the host nation get to prosecute American servicemembers. I don't know what our status of forces agreement or similar agreement is with the Afghan government.
If a foreign servicemember present in the U.S. did something like this, we'd have to look to our status of forces agreement to determine who prosecutes.
# posted by : 3:51 PM
: 3:51 PM
Tyd - you're exactly right. One combat deployment is enough to mess somebody up. You can only imagine what four combat deployments can do to somebody.
Having said that, it's not an excuse. I've prosecuted servicemembers with PTSD and repeated deployments before. One had three nasty combat deployments. His PTSD contributed to his crime (and I argued for a very light sentence based in part on that), but in the end, it was not an excuse or legal defense.
I'm not sure how a military jury will view the "multiple deployments" defense - most of the people on it will be officers or senior enlisted with multiple deployments themselves. At least some of them will have engaged in combat. Many of our servicemembers have deployed repeatedly, and many of them have been shot at repeatedly. None of them have done anything like this. I don't know if that's the best defense to take, honestly.
Having said that, it's not an excuse. I've prosecuted servicemembers with PTSD and repeated deployments before. One had three nasty combat deployments. His PTSD contributed to his crime (and I argued for a very light sentence based in part on that), but in the end, it was not an excuse or legal defense.
I'm not sure how a military jury will view the "multiple deployments" defense - most of the people on it will be officers or senior enlisted with multiple deployments themselves. At least some of them will have engaged in combat. Many of our servicemembers have deployed repeatedly, and many of them have been shot at repeatedly. None of them have done anything like this. I don't know if that's the best defense to take, honestly.
# posted by : 3:57 PM
: 3:57 PM
If you have time to read it, Timothy Egan wrote an article in the NY Times called “The Other 1 Percent” (http://opinionator.blogs.nytimes.com/2012/03/15/the-other-1-percent/). It was prompted not just by Sgt. Bales case, but a number of other cases attributed to PTSD. The bottom line lies with being at war, a war put in the context of the social ratio percentages much quoted these days. Most of the comments to this article are fairly informed and interesting, but given the comments on the Razor today I thought I'd bring one up not as another quasi excuse, because not all traumatized soldiers turn into mass murderers. What I learned was that many years ago a well-known professor of psychiatry wrote that a therapist leading a group therapy with psychotic patients needs to have another reality oriented person in attendance in order to keep connected to the reality of the world at large, this way preventing a distorted perception of reality within the group. An experience in environments that many of us have no familiarity with such as that of the wars in the Middle East, multiplied by a variety of extreme factors, just as with psychosis, have effects that are not even imaginable. Reality becomes distorted and the anchor lost, because when these veterans return their ability for a test reality is completely off. And if we are to judge from the experience of many of the Vietnam veterans they may never reconnect with the reality of the world they returned to. The appalling thing is that these are facts well known by those who make the decisions to go into war.
Campbell - thank you for your insight.
It was tragic. I heard this morning about the four deployments; a partially lost foot (I think) and also a recent promotion attempt that was declined.
I am also glad to read that the Army got his family moved (assuming to a base) prior to releasing his name to the media - protecting them from the ensuing media circus.
It was tragic. I heard this morning about the four deployments; a partially lost foot (I think) and also a recent promotion attempt that was declined.
I am also glad to read that the Army got his family moved (assuming to a base) prior to releasing his name to the media - protecting them from the ensuing media circus.
It is not an excuse,but clearly is a mitigating factor. He will never claim it as an excuse,I'm betting,and every single remaining day of his life as long as it lasts will be torture unimaginable,regardless of the location of the prison.This would be my description of the lowest rung of Hell. He will never forget what he did,no one would ever let him forget.Torture upon torture upon torture and he will never forgive himself,no matter how much psychoanalysis or pills he has. I do not believe in the death penalty either,even in this case...but he might wish for it for himself.Unbearable pain for everyone concerned. I can not even go to the place of the Afghans and that horrific pain.Tragedy,the definition of. Thank you,Campbell.
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