JAGged Justice

The Army needs an independent prosecutor.

Maliya Abdul Hamid Hassan Ali believes her father was killed in the raid

It took the military four months to launch a formal criminal investigation of the killings at Haditha—and it came only after Time magazine started raising questions. The delay is going to make the case that much harder to prosecute. “The fact that it wasn’t initially investigated, the fact that there’s been plenty of time for witnesses to play with stories,” one former military lawyer told the Washington Post, “there’s a lot of wiggle room in there.”

Consider another recent incident. In March, about a dozen Iraqis were killed in the small village of Ishaqi. The Pentagon has concluded the killings were legit, the result of a firefight and airstrike against insurgents. But two videos raise questions. One, filmed by an Associated Press Television cameraman, “shows at least five children dead, several with obvious bullet wounds to the head.”

I don’t know what happened in Ishaqi either. But it gets you thinking: How good is the military’s system for investigating itself? And can it be improved?

The first question is, unfortunately, easy to answer. Just look at the detainee abuse scandal. In case after case, low-level soldiers have been marched into a court martial as higher-ups get off scot-free—while those same higher-ups have usually faced nothing worse than a promotion.

So, how can the system be improved? Fortunately, there’s a simple answer to that, too.

As it stands, there is no independent prosecutor’s office in the military. There’s nothing like the Department of Justice or an attorney general. Prosecutions only happen when a commander decides to have them. If an officer believes somebody under his command might have done wrong, then the commander can go after him and bring charges. Or not. It’s all up to his discretion.

“Lord Nelson would recognize the system we have,” says Eugene Fidell, head of the National Institute of Military Justice. “It’s based on the British system, and on the notion that commanders have an almost mystical role to play.” Fidell says the system is “decentralized and fractionalized, where each command is essentially a jurisdiction itself and the likelihood of getting standardized treatment is very slim.”

What we need is an independent prosecutor’s office, a place where a Patrick Fitzgerald-type can hang his hat and go after wrongdoing wherever it may be in the chain of command.

One of the problems with leaving the punishment of soldiers to the whim of their commanders is that investigations always look downward. By military law, investigations can only pursue officers lower in rank than the commander who initiated it. Somehow, as in  case after case of detainee abuse, it’s not officers a grade or two below that get caught, it’s those lowest in rank. After all, what are the chances investigations started and overseen by a commander are going to point up the ladder—potentially implicating, directly or indirectly, the commander?

John Sifton, the researcher at Human Rights Watch who got me thinking about the need to change the system, points out another problem caused by the absence of a central prosecutor’s office: There’s no ability for cases to be played off each other—Enron-style—where prosecutors flip the smaller fry and aim for the biggest fish.

If prosecutors can’t focus on the big picture and put cases together, the low-level guys get nailed. And then everybody goes home. “The same crappy military justice system gets geared up,” says Sifton, “and has the same crappy results—corporals gets their asses handed to them.”

There are checks and balances in the current system. The Army and other services have criminal investigative agencies and inspectors general offices, all of which can probe potential wrongdoing and then … make recommendations. What they can’t do, however, is bring charges; that’s left solely to the potential wrongdoer’s commanders.

Don’t think commanders are too shy about using, or abusing, that power. Last year, the military investigated FBI reports of abusive interrogations at Guantanamo Bay. The report concluded that some interrogations were indeed “abusive” and “degrading” (though, oddly, still “humane”). The investigation also recommended that the head of Gitmo at the time, Major Gen. Geoffrey Miller, be reprimanded. So, what did Miller’s commander do with the recommendation? He nixed it, and Miller went on his way.

It would take an act of Congress to create an attorney general-like office for the military. It would tick off plenty of generals. After all, it’s nice to have the exclusive power to decide who does and doesn’t merit charges, and to have the system stacked in your favor. But if Congress is smart—I said, if—they’ll push past those parochial concerns.

The stench of a cover-up, coupled with the sense that higher-ups keep evading responsibility, does nothing for the United States’ image. It reinforces a sense of hypocrisy and that can only hurt the United States in trying to win hearts and minds in Iraq and elsewhere.

Our system might be based on the same one Lord Nelson used. But his progeny have tossed it overboard. The British military now has an independent prosecutor-type system. So does South Africa and others. With the news coming out of Iraq these days, let’s hope we make the change, too—and soon.