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Homicide Charges Rare in Iraq War

Chief Warrant Officer Lewis E. Welshofer Jr., an interrogator, was found guilty of negligent homicide in the 2003 death of an Iraqi former general.
Chief Warrant Officer Lewis E. Welshofer Jr., an interrogator, was found guilty of negligent homicide in the 2003 death of an Iraqi former general. (By Mark Reis -- Colorado Springs Gazette Via Associated Press)

Hina Shamsi, senior counsel at Human Rights First, a New York-based nonprofit organization that monitors the military justice system, is a supporter of such changes. Nevertheless, she said: "The system is adequate. When properly followed, it works extremely well."

When criminal proceedings are authorized, there is no grand jury to hear testimony from witnesses called by a prosecutor. Instead, a proceeding called an Article 32 hearing takes place before a single officer. The defense is allowed to present evidence and cross-examine prosecution witnesses. Charges sometimes fail at this stage.

That happened in the case of Marine 2nd Lt. Ilario Pantano, who was charged with murder in the deaths of two Iraqis he had detained at a roadblock in April 2004. He shot the men 60 times and left a sign on their bodies warning insurgents not to risk similar treatment. But he said he fired only after they made threatening moves in his direction.

The Article 32 hearing officer agreed and dropped the charges, partly because forensic evidence showed that the men were shot in the chest, supporting Pantano's story that they were moving toward him when he fired.

Court-martial juries are made up exclusively of fellow service members, all of whom must outrank the accused, though enlisted personnel are entitled to a jury composed of at least one-third enlisted troops. Service members now frequently face juries that include members with battlefield experience in Iraq and Afghanistan.

Frequently, soldiers say they fired because they perceived a threat, or because they believed that their actions were authorized by the rules of engagement or other orders.

"It's not an easy call to make. It requires getting into the head of a serviceman," said retired Rear Adm. John D. Hutson, a former Navy judge advocate general who is now dean of the Franklin Pierce Law Center in Concord, N.H. "Rape is pretty clear, but death of civilians can be a part of the fog of war, or it can be the result of inexperience or misjudgment."

When Abed Hamed Mowhoush, a captured former general in Hussein's army, died in November 2003 after interrogation by U.S. intelligence officers, Iraqi agents and U.S. soldiers, Chief Warrant Officer Lewis E. Welshofer Jr., a military interrogator, was found guilty of negligent homicide, not murder.

Welshofer had stuffed the general headfirst into a sleeping bag and straddled his chest while questioning him. The jury that convicted him rejected the prosecution's claims that Welshofer intended to kill. Welshofer had sought approval for the sleeping bag method at a time when U.S. policy on interrogations of resistant Iraqi insurgents was, at best, unclear.

The jury gave him a formal reprimand, fined him $6,000 and said he should be confined to his home, office and church for 60 days.

Welshofer defended his actions in a February 2004 letter to the commander of the 82nd Airborne Division, citing his "moral obligation to do everything I can to protect the lives of my fellow soldiers."

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