Can the military effectively investigate itself?
Two investigations into Iraqi deaths are nearing completion.
For the second time since the war in Iraq began, the United States is awaiting a military investigation into sensational allegations of its troops' misconduct.
Two years ago it was Abu Ghraib. American alarm at the pictures of depravity was accompanied by questions about whether the military would be able to honestly investigate itself. Now, as the military looks into allegations that marines murdered as many as two dozen innocent civilians in Haditha last year, its justice system is again under the public microscope.
For Americans weaned on the openness of the O.J. Simpson trial, military justice can seem remote and impenetrable. For their part, experts dismiss the notion that the military system is any more corrupt or ineffective than its civilian counterpart.
But they acknowledge that it faces its own unique challenges - from the culture of silence that can pervade the most tight-knit military units to the lack of any department "district attorney" to follow up on leads. The concerns are longstanding, but with citizens getting a fuller picture of the mechanics of warfare - both on the battlefield and off - there is pressure to ensure that Americans have confidence in their military's means of justice.
"The system is a very good one once it is up and running," says William Banks, director of the Institute for National Security and Counterterrorism at Syracuse University College of Law in New York. "It is getting things launched that is the issue."
In the Haditha case, it has been a primary issue. Though the military is currently conducting two investigations into the incident, both followed independent investigations by an Iraqi journalism student and Time magazine.
Initially, the marines insisted that 15 civilians and eight insurgents had been killed by a bomb blast and subsequent firefight. But video footage of the bodies taken by the journalism student showed that the Iraqis had been killed by shots to the head and chest - wounds inconsistent with a bomb blast or crossfire. A Time investigation suggested that the civilians - including women and children - might have been killed as a reprisal for the original bomb attack, which killed a marine.
It was only after these accounts that the military took public action, fostering a perception of a military loath to police itself. But experts draw a different conclusion.
"Once [allegations are] revealed, American citizens should have absolute confidence in the military-justice system to investigate and prosecute," says Walter Huffman, judge advocate general of the Army from 1997 to 2001. "But there is a camaraderie among small military units that conceivably can lead to atrocities being committed by that unit and never revealed."
"Do we know every one of the incidents that ever occurred?" he asks. "Probably not, and we don't know what we don't know."
He says this not to suggest that the Haditha allegations point to rampant lawlessness. To the contrary, he and others believe that instances of murder are rare. But just as American police forces have their so-called "wall of silence," military units can be insular and fiercely loyal.
Moreover, with America engaged in a war that has no fixed battle lines, civilians are at greater risk. "To go and kill civilians is damnably unusual," says William Eckhardt, a prosecutor in the My Lai case, where a soldier was convicted of murdering civilians during the Vietnam War. "But this is in a changing environment.... You can almost expect this to happen periodically."
As of yet, they are rare enough that the only obvious parallel to the current allegations in the history of military law is My Lai itself. There, Mr. Eckhardt says the military-justice system proved its worth - pressing forward against the wishes of Congress, the president, and some elements of the military. In others, however, experts see the pressures of the day impacting the proceedings.
After the Korean War, an American soldier freed from a Korean prisoner of war camp was prosecuted for being a communist sympathizer. "During the cold war, we didn't want soldiers to look like communists," says Elizabeth Hillman, a military-justice expert at Rutgers School of Law in Camden, N.J. "Today, we don't want our soldiers to look like terrorists."
The danger, she says, is in proceedings that become less about justice and more about the broader culture wars: "It's very hard for a justice system - civilian or military - to work when it is under so much pressure."
Though neither military investigation has been released yet, there are indications that they will take a hard line. Two weeks ago, Rep. John Murtha (D) of Pennsylvania, a critic of the war in Iraq, said one report would claim that marines had killed the civilians "in cold blood." Since then, several media reports have indicated that the probe will include at least one murder charge.
To some, the whole process has been an example of the system working correctly. Though the media accounts provided a catalyst for the investigations, "these things are helpful," says former judge advocate general Mr. Huffman. "We can't be everywhere."
"The onus is on the military to act quickly" once the allegations surface, he says.
Others, however, see the need for reform. There is no position in the Department of Defense akin to an attorney general - someone whose job it is solely to follow up on credible allegations. Under the current system, investigations are convened by local commanders, who have many other duties - and perhaps conflicts of interest.
Says Eugene Fidell, president of the National Institute for Military Justice: "The bar has been raised for the public's expectation of transparency."