Something odd is happening in courts-martial involving allegations of detainee abuse by American Soldiers and Marines. One takes no pleasure in noting that courts-martial in Iraq and Afghanistan seem to be acquitting individuals with unusual frequency. In courts that do convict, military juries sometimes appear unwilling to impose sentences commensurate with the crimes of which Soldiers and Marines have been convicted. "[D]espite strong evidence and convictions in some cases, only a small percentage resulted in punishments nearing those that civilian justice systems routinely impose for such crimes," the Palm Beach Post reported in October 2005.

By no means is it suggested that just because someone is charged they must be guilty. Every judge advocate has participated in courts-martial in which acquittal was probably the just result. And every conviction does not necessarily merit a heavy sentence. Nor should there be cookie-cutter sentencing. So one may presume that in each detainee abuse acquittal in Iraq and Afghanistan (and the United States), the accused was indeed not guilty. Perhaps the convictions and sentences that raise concern are isolated anomalies. But anomalous cases do turn up in press reports with some frequency. For example, near Qaim, Iraq, in November 2003, Army Chief Warrant Officer Lewis Welshofer forced a badly beaten detainee with seven broken ribs—an Iraqi general—head-first into a sleeping bag, then sat on him and covered his mouth until the Iraqi was dead. (A defense witness, a pathologist, testified that the victim probably died of heart failure.) The homicide of a captive is a war crime—a violation of the law of armed conflict that, in the case of U.S. armed forces, is charged under the Uniform Code of Military Justice. CWO Welshofer was charged with murder and court-martialed. He was convicted of negligent homicide but sentenced to a surprisingly lenient letter of reprimand, a fine of $6,000, and two months restriction to Fort Carson, Colorado.No discharge, no brig time.

A co-accused chief warrant officer was also charged with murder. His charges were dropped in exchange for testimony against CWO Welshofer. CWO Welshofer's immediate superior, Major Jessica Voss, was granted immunity, as well. In March 2005, Army 1st Lieutenant Jack Saville pleaded guilty to manslaughter after he and a sergeant first class forced three Iraqis to jump from a bridge into the Tigris River. One of the three allegedly drowned. Lieutenant Saville was convicted at court-martial and sentenced to a $12,000 fine and 45 days confinement.

Army Private First Class Willie V. Brand, 377th Military Police Company, was charged with the assault, maltreatment, and maiming of an Afghan detainee killed while in U.S. custody in Bagram. The victim was one of two Iraqis found in the same cell, hanging with their hands chained above their heads, both beaten to death, according to their military death certificates. In August 2005, PFC Brand was convicted of all charges and sentenced to reduction in rank to private. No brig time, no discharge. A female co-accused, Sergeant Selena M. Salcedo, pleaded guilty to lesser charges and testified that before the victim died she repeatedly kicked him and repeatedly pulled him upright by his ears. She was sentenced to a one-grade demotion, a written reprimand, and a $1,000 fine.

In August 2004, Sergeant James P. Boland, from the same unit, was charged with assaulting one of the two murdered Afghanis just mentioned, "by shackling him in a standing position with hands suspended above shoulder level for a prolonged period of time." In June 2005, the sergeant received a letter of reprimand and was honorably discharged, without trial.

In September 2005, another soldier from the 377th Military Police Company, Sergeant Darin Broady, was tried for aggravated assault, maltreatment, and making a false official statement in the case of one of the two Afghani detainees he allegedly kicked to death. He was acquitted. In June 2006, Private First Class Damien M. Corsetti, also charged with kicking and beating one of the two detainees, was acquitted.

Brig a Sometime Thing

These court-martial results notwithstanding, a dead body usually means substantial brig time for someone. But that often has not been the case. The troubled history of the Army Reserve's 377th Military Police Company includes 11 soldiers charged with prisoner abuse. Two homicides of detainees have never been charged. Of the 11 377th soldiers charged with abusing other prisoners, five courts-martial resulted in acquittals (one military panel deliberated for 15 minutes before returning a not guilty verdict), charges were dropped in three cases, one soldier was convicted but spared brig time, and two soldiers pleaded guilty. The unit's operations officer in charge of questioning the victims, Captain Carolyn M. Wood, was granted immunity and returned to Fort Bragg with the unit where she was awarded a Bronze Star. One might respond that it does not take long to acquit when there is no evidence. But there apparently was sufficient evidence for Army prosecutors and staff judge advocates—experienced senior military lawyers—to take these cases to trial. Perhaps the prosecutions were botched. Nine times.

In April 2005, in an unrelated case, Army Captain Roger Maynulet claimed his point-blank shooting of a badly wounded Iraqi who had attempted to run his roadblock was a “mercy killing.” The captain was convicted of assault with intent to commit voluntary manslaughter. His sentence? Dismissal from the Army. No confinement was adjudged. Meanwhile, at Fort Campbell, Kentucky, at an April 2006 court-martial, Army Private Nicholas D. Mikel was sentenced to 25 years on conviction of attempted murder for shooting at a group of 22 fellow soldiers.

Vietnam Was Different

Sometimes, no charges at all are made. The Army investigated a special operations unit that, continuously for seven days, kept detainees "in cells so small that they could neither stand nor lie down, while interrogators played loud music" so they could not sleep. Some detainees were stripped, soaked, and then interrogated in air-conditioned rooms. One detainee apparently died from such treatment, the investigation found. The report recommended no disciplinary action, saying what was done was wrong but not deliberate abuse. In the case of the two Afghani detainees chained to the ceiling and beaten to death, Army investigators recommended that the NCO in charge of the interrogators, Staff Sergeant Steven W. Loring, be charged with assault, maltreatment, and dereliction. Instead, the staff sergeant left the Army, no charges ever having been filed.

"Well," one might argue, "we may not be seeing perfect justice in Iraq and Afghanistan but, hey, that's the way it's always been when our own guys are charged with war crimes." That would be incorrect. In Vietnam, 95 Soldiers and 27 Marines were convicted of the murder or manslaughter of Vietnamese noncombatants. The sentences imposed by Marine Corps court-martial panels were substantial, ranging from 10 to 50 years confinement and, in 15 of the 27 cases, confinement for life. Army sentences in Vietnam have not been researched but there is no reason to believe they were any less severe. But military panels in Iraq and Afghanistan sometimes take a different view.

In Iraq it is not only Army cases. Marine 2nd Lieutenant Ilario Pantano was charged with the April 2004 premeditated murder of two Iraqis apprehended at the scene of insurgent activity. At Lieutenant Pantano's pre-general court-martial Article 32 investigation ("the legal bullshit," as he put it) the lieutenant reportedly testified that he feared the two victims were about to attack him, so he shot them—up to 50 times, having to reload to do so. In his book, the lieutenant quotes his own interview on NBC's Dateline: "I shot them until they stopped moving." He then left a hand-written sign on the car against which the bodies lay: "No better friend, no worse enemy."The Article 32 investigating officer recommended charges not be preferred, and the case went no further.

When, on court-martial conviction, the punishment for killing a prisoner is restriction, a one-grade reduction, or 45 days confinement, what does that suggest about the attitudes military panels hold regarding the victims? What does it say about our commitment to military justice? Particularly when juxtaposed with 25 years for shooting at but not hitting American soldiers? No one would suggest that Iraqis and Afghanis are beneath the law's consideration because they are also insurgents. No one would contend that supporting our troops extends to insulating them from the consequences of battlefield criminal acts.

To be sure, in numerous cases the mistreatment or homicide of detainees have resulted in court-martial convictions and harsher sentences. Two soldiers convicted of the homicide of a female Iraqi interpreter received bad-conduct discharges and confinement for 18 months and three years respectively. An Army staff sergeant was sentenced to three years confinement for the unpremeditated murder of a wounded 16-year-old Iraqi. A Marine received a year's confinement for using an electric transformer to make a detainee "dance." An Army private was sentenced to 25 years on conviction of killing a 17-year-old Iraqi male soldier after consensual sex. A specialist was sentenced to five years upon conviction of the unpremeditated murder of an Iraqi civilian noncombatant. Sentences to 25 years confinement, the longest imposed in Iraq, were handed down in two separate Army murder cases. The list of convictions, with sentences that might be anticipated, is considerable. But the cases that call into question the quality of military justice also constitute a disturbingly lengthy roster.

Command Responsibility

In the view of some, there is another problem as well. In March 2005, government reports released through the Freedom of Information Act (FOIA) said that eight prisoners who died in U.S. custody in Iraq and Afghanistan were homicide victims, fatally abused by their captors. Another Pentagon report, also released through FOIA in March 2005, said that 18 prisoners have died in American custody in Iraq and Afghanistan, apparent homicide victims. In February 2006, the Philadelphia Inquirer reported 34 suspected or confirmed detainee homicides since August 2002. Retired Army Brigadier General David R. Irvine said that U.S. military officers were ultimately responsible for the actions of the soldiers under their command but that almost none had been held accountable, the New York Times reported in March 2005. As the general's statement suggests, the homicide of detainees too often raises the question of command responsibility. Every officer knows that the commander is responsible for everything that happens, or fails to happen, on his or her watch. But to rise to criminal culpability, the UCMJ adds that there must be some degree of personal knowledge or involvement on the part of the superior officer. In Iraq, the axiom of command responsibility has been conspicuous by its sometimes being disregarded. FM 27-10, The Law of Land Warfare, paragraph 501, lays out the leader's responsibility:

The commander is . . . responsible if he has actual knowledge, or should have knowledge . . . that troops . . . subject to his control are about to commit or have committed a war crime and he fails to take the necessary and reasonable steps to insure compliance with the law of war or to punish the violators.

Examples of command responsibility overlooked: ten enlisted Soldiers have been convicted by courts-martial for their acts at Abu Ghraib. What officers have been court-martialed? Where were the watch officers? What was the commanding officer of Abu Ghraib doing all those nights? Who was the duty officer? Where was the adult supervision?

Army Lieutenant Colonel Steven L. Jordan, the ranking officer present at Abu Ghraib, has not been tried, and was only recently charged. Colonel Thomas M. Pappas, Lieutenant Colonel Jordan's Abu Ghraib superior and the commander of the interrogation task force, will never be court-martialed. At a non-judicial hearing, he received a letter of reprimand and an $8,000 fine. No court-martial, no possibility of brig time, no possibility of dismissal from the Army.

Brigadier General Janis Karpinski, who was in charge of Abu Ghraib when the mistreatment of detainees occurred, will never be tried. She was administratively reduced to the grade of colonel and given a letter of reprimand. But not court-martialed, not faced with the possibility of dismissal or confinement adjudged by a panel of her peers.

In an unrelated case, Captain Christopher M. Beiring commanded the Army's 377th Military Police Company in Bagram, Afghanistan. In December 2002, his soldiers, several of whom are referred to above, beat to death two Afghani detainees while they were chained to the ceilings of their cell. Captain Beiring, who trained and led the responsible soldiers, was charged with dereliction of duty and lying to investigators about his involvement. All charges were dropped; he received a letter of reprimand, and was released from active duty. (As already alluded to, four enlisted men in Captain Beiring's company were tried for the deaths of the two detainees. A sergeant and another soldier were acquitted; two pleaded guilty and were convicted of assault and maiming, not murder or manslaughter.)

Most of us are familiar with the grisly photo of the iced and plastic-wrapped dead body of Manadel al-Jamadi, who died at Abu Ghraib prison in November 2003, after allegedly being beaten by Navy SEALS. In May 2005, a SEAL, Lieutenant Andrew K. Ledford, was acquitted of beating Jamadi and also acquitted of failing to restrain his men from doing so.

Owning Up to Wrongdoing

In November 2004, Marine Major Clarke Paulus, who commanded Camp Whitehorse, Afghanistan, when a detainee was beaten to death there, pleaded guilty to dereliction of duty. At a general court-martial, he was found guilty and discharged from the Marine Corps, a Marine who did accept responsibility. Of the seven enlisted Marines involved in the actual homicide, only one went to trial. Sergeant Gary P. Pittman, charged with murder, was convicted of lesser charges and sentenced to reduction to private and 60 days restriction. No brig time, no discharge. Pentagon statements that an officer's career is effectively ended by administrative punishment do not impress. The administratively punished officer does not face the specter of conviction by court-martial, hasn't the possibility of the dishonor of a federal conviction. He or she walks free while enlisted men and women for whom they were responsible sit in the brig and the duty they failed to execute goes unmarked. And one could do worse than ending one's career as a colonel. No commander is responsible for the unanticipated wrongful acts of subordinates. That is as it should be. But, as FM 27-10 specifies, if they knew or should have known of that misconduct, they bear responsibility for the wrongful acts of their subordinates. Former U.S. Ambassador for War Crimes David Scheffer writes that cases like those mentioned

reveal . . . disturbing weaknesses in the United States military justice system, including delayed investigations and remarkably light sentences. The deepest flaw is the failure to investigate and prosecute up the chain of command. . . . In recent years, our military courts pale in comparison with standards of compliance with the laws of war set by international criminal tribunals.

It has not always been so with military justice.