RUTHFULLY YOURS

Six years ago, in Haditha, Iraq, in the wake of a deadly insurgent attack on their convoy, a Marine quick reaction force raided several houses from which they were taking fire.  At the conclusion of the action it became clear that a number of Iraqi civilians had been killed, which was duly reported up the Marine Corps chain of command.  The command determined that while the deaths were unfortunate, the engaged Marines had not violated the laws of war.

Then, early in 2006, a reporter from Time Magazine got wind of the incident, and all hell broke loose.  An Army report condemned the Marines, Democrat Congressman John Murtha announced that Marines had killed Iraqi civilians in “cold blood,” and the press in general had a field day.  Under this new assault, the Marine Corps changed its tune and preferred court-martial charges against eight Marines, from enlisted men to battalion commander.  These unfortunate men were accused of everything from obstruction of justice to murder.

Over the next two years the Haditha cases fell apart.  One after another, the eight accused Marines were exonerated in Article 32 hearings, saw charges dropped in return for immunity, or were acquitted at trial.  By 2008, only a single remaining Marine, Staff Sergeant Frank Wuterich, stood accused of unpremeditated murder in the case.  His case lingered until last week, when it too died with a whimper.  Wuterich pled guilty to a much-reduced charge of dereliction of duty.  What did the military justice system finally determine was Wuterich’s crime?  He told his men to “shoot first and ask questions later.”  After all, his men were Marines, not policemen.

Wuterich received no jail time and no loss of pay, but he saw his rank reduced to private.

The Haditha incident’s quiet denouement demonstrates what is right and wrong with America’s military justice system, and the dangers of turning combat troops into a heavily armed constabulary.

Clearly Marine commanders’ early instincts in the case were correct, but the Corps subsequently allowed itself to be bulldozed into a Dickensian legal farce.  This was a function not only of bad publicity and political pressure, but of the increasingly legalistic nature of the armed forces in general.  Like other areas of American society, the military is over-lawyered and increasingly hamstrung by its own rules and regulations.

Through most of American history the primary function of JAG officers was implementing commonplace military justice.  JAGs prosecuted or defended soldiers, sailors, and Marines over the usual array of misbehavior endemic in any organization made up largely of aggressive young men.  But after Vietnam, with the introduction of the all-volunteer military and correspondingly increasingly qualified enlistees, common criminal conduct declined.  That might have led to a decline in JAG billets, but of course, just the opposite happened.  Military lawyers, like their civilian counterparts, were quick to find other pressing needs for their services, until today, almost every military function is subject to some degree of legal review, including combat.

Beginning in the 1980s, during my own service as an Army JAG, the military introduced the concept of “operational law.”  Now JAGs would ensure that “all U.S. military operations complied strictly with the laws of war.”  Select JAGs moved from their offices into the TOCs (Tactical Operation Centers) of every unit from corps to battalion.

Perhaps there has been some positive benefit in placing JAGs close to the sharp end, but it’s not very evident.  Rather, at least anecdotally, it appears that the profusion of legal expertise in (or at least near) the trenches has led to increasingly complex rules of engagement, and the occasional suspension of otherwise necessary operations.  Can a JAG viewing a video feed of a potential drone strike determine any better than the operational commander whether civilians would be put at risk?

Still, commanders in the field don’t seem to mind having the JAGs around, because JAGs provide a level of insulation against legal jeopardy — the same way corporate lawyers insulate executives.  But is this really the way to fight wars?

The Haditha legal fiasco might help answer the question.  The battalion involved in the Haditha incident had its own operational lawyer on hand, Marine Captain Randy Stone.  While it appears that he was not consulted before the Marines launched their assault, in the wake of the incident, he vetted their accounts and determined that the laws of war had not been violated.   For this Captain Stone found himself among the eight Marines initially charged!  Stone endured an Article 32 investigatory hearing (the military equivalent of a grand jury), but eventually charges against him were dropped.

When the operational lawyers are being charged along with the soldiers and Marines they are supposed to be operationally advising, something indeed is wrong with the system.

The real problem is that one person’s legitimate military operation is another’s war crime, and the so-called “laws of war” have little to do with it.  We saw this most compellingly in the idiotic and corrupt Goldstone investigation of Israel’s 2008 Cast Lead Operation.  There Israeli forces, which also operate in close consultation with their attorneys, were castigated for dozens of alleged war crimes, when, in fact, the Israelis acted with almost unprecedented care and forbearance during the conflict.  Ultimately Judge Goldstone repudiated his own report, and even Hamas admitted that its own military losses were almost exactly what the IDF had claimed, but the damage had already been done.  Israel’s JAGs, no more than America’s, did not make much of a difference.

America’s conflicts in Iraq and Afghanistan (as with Israel’s in Gaza) have been wars of relatively low intensity, against generally incompetent adversaries, which has allowed our forces to play around with operational law concepts without catastrophic consequences.  Almost certainly soldiers and Marines have died or been unnecessarily maimed due to adherence to complex and unrealistic rules of engagement.  But those are small tragedies that would be difficult to prove.