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Critics at war with military justice

Some say serious charges are too easily filed;
others say sentences given by fellow GIs are too lenient

CHICAGO TRIBUNE, January 20, 2008

Critics at war with military justice

By AAMER MADHANI, Chicago Tribune
 

OCEANSIDE, CALIF. Soon after Lance Cpl. Delano Holmes, a young Marine reservist from Indiana, was ordered to sentry duty on New Year's Eve 2006, the Iraqi soldier he was partnered with opened a cell phone that illuminated their area, then lit a cigarette.

Holmes, 22, terrified that an enemy sniper could use the red ember to zero in on their location, told the Iraqi to put out the cigarette. The Iraqi soldier, Muther Jasem Muhammed Hassin, laughed at him, Holmes said, so he knocked the cigarette out of Hassin's mouth.

That prompted Hassin to attack him, Holmes said; he tried to push Hassin away, but he saw the Iraqi going for his weapon and Holmes reached for his own bayonet.

An autopsy later revealed that Hassin suffered 17 stab wounds and 26 other gashes.

"There was no other option," explained Holmes late last month, in his first interview since his military trial, which led to a conviction for negligent homicide and making a false official statement. "It was a step-by-step escalation of force. The whole situation was, he does something and I had to respond. This was not a case of me going out in some kind of rage and killing this man."

The case has reignited a debate about how hard the U.S. military is going after its own troops, and how willing military jurors are to punish a fellow warrior.

Some believe military officials came down hard on Holmes, and on other troops involved in the killings of Iraqis, to show Iraq that the U.S. is willing to punish its own. Others say juries have chosen to punish Holmes and others found guilty of serious crimes in Iraq leniently.

Throughout the war, military juries have shown leniency to their convicted brothers-in-arms, according to military law experts. It's a tacit acknowledgment that in a complicated battlefield, right and wrong is rarely black and white.

Dozens of blogs and Web sites have sprouted to argue the case of U.S. service members, including Holmes.

David Allender, a New York book editor who has taken up the cause of eight Marines charged in the November 2005 killings of 24 Iraqi civilians in Haditha, said he understands that "military justice is an instrument of military discipline, and undisciplined troops can defeat a nation's purpose."

But, he added, "Right now, I think there is a lot of overzealousness on the part of [military] prosecutors and investigators who want to show the chain of command they are doing their part in the war on terrorism rather than searching for the truth."

At a court-martial last month, a panel of five enlisted men and three officers -- all Iraq war veterans -- found Holmes guilty of negligent homicide and providing a false official statement to investigators.

Prosecutors said Holmes fired Hassin's AK-47 in the air and moved his body to help cover his tracks. Holmes told Navy investigators he had fired the weapon, but later said that admission was made under duress and with the promise it would help wrap up the investigation.

Effects from Haditha

About 10 days before Hassin's death, official charges had been proffered against several Marines implicated in the Haditha killings and suspected cover-up. Marine commanders were criticized for not gathering evidence in Haditha until months after the incident.

"The political situation following Haditha and some of the other investigations seems to have really affected Del's case," said Holmes' foster mother, Jenni Crowley, who launched an Internet campaign that generated hundreds of letters supporting Holmes. "It felt like they were trying to make an example of him, even though the evidence showed this clearly wasn't murder."

Gary Solis, a former Marine Corps judge advocate and an adjunct professor at Georgetown Law School, said he has noticed the Marine Corps has been more aggressive over the past two years in prosecuting service members.

But the same jury of Marines that found Holmes guilty sentenced him to no confinement with a bad conduct discharge -- far short of the murder conviction that prosecutors sought, which would have come with a maximum sentence of life in the brig.

Charges vs. sentences

As the wars in Afghanistan and Iraq drag on, Solis said, military juries seem less willing to mete out long sentences to peers. It is easier to bring heavy charges, Solis added, than to prove them in a time of war.

In the Haditha incident, four enlisted Marines were charged with murder. Not one will face a court-martial on those charges.

In the brig at Camp Pendleton for nearly 10 months before his court-martial, Holmes shared living space with three Marines who were among the eight service members charged in the April 2006 shooting death of an unarmed Iraqi civilian in the western city of Hamdania.

Sgt. Lawrence Hutchins III, one of Holmes' brig mates, received a 15-year sentence. Of the eight servicemen charged in the Hamdania case, only Hutchins remains confined. Three Marines in that case had their sentences commuted by the commander of Marine forces in the Middle East after 15 months.

"I think our recent experience raises serious doubts about whether military justice is able to punish U.S. war crimes," said Elizabeth Hillman, who teaches military law at Rutgers University School of Law.

Holmes' supporters say his case is dissimilar to those high-profile incidents, and he remains steadfast that he was simply defending himself. "After the sentencing, the jury told the lawyers it wasn't even close [to murder]," said Steve Cook, Holmes' civilian attorney.

Holmes said he had turned to the Marines, joining an Indiana reserve unit in 2004, in part to find his own family. He became a ward of the state his senior year in high school, and his assistant speech coach, Jenni Crowley, successfully petitioned to become his foster parent. Crowley was among those who testified on Holmes' behalf at his court-martial.

He did not realize he could face serious charges until he was arrested upon returning stateside in February 2007. As he got off the plane, he was greeted by military police officers who took him to the brig.

Holmes said that he feels he was treated unfairly, but he still wants to be a Marine. His conviction and bad conduct discharge are under appeal, and he said he would go back to Iraq if permitted.