U.S. Sniper Cleared Of Murder Charges

Staff Sergeant Found Guilty Of Planting Evidence On Dead Iraqi But Avoids Life Sentence

By CBS News producer Steve Berriman in Baghdad.

BAGHDAD, Nov. 10, 2007

Compared to the grandiose architecture usually associated with Western judiciaries, the Sergeant Major Cornell W. Gilmore Courthouse is an unassuming building. Set on a small peninsula jutting out onto a lake rimmed with reeds, you reach its modest frontage via a gently sloping ramp.

There are no suited attorneys laden with case-files and Starbucks coffee to be found here. You will see no frenzied journalists jostling for position on sweeping steps.

Insulated from the whoop and clatter of the city center to its east, the Cornell W. Gilmore Courthouse is anonymity incarnate.

Which is a good thing - for the U.S. military at least.

For when some of its most professional and disciplined soldiers are accused of murder and of planting evidence to justify murder, the need for discretion is paramount.

When one of these soldiers claims in his defense that a 'baiting' program originating from the higher echelons of the U.S. military is integral to these accusations, the less that is said the better.

And when the existence of this program is denied outright from above and then deemed irrelevant by the judge, you better hope this hornets' nest is someplace far away. Someplace like Iraq.

Late Thursday night, in the small courthouse by the lake in Camp Victory, Baghdad, a U.S. army sniper was staring down the barrel of a life sentence.

Staff Sgt. Michael A. Hensley, the head of a sniper section of the 1st Battalion, 501st Infantry Regiment, was accused of three counts of murder, of laying command wire and an AK-47 to 'justify kills' and of disrespecting his superior officers.

Hensley, 27, had headed the 'Painted Demons', a squad so named for its tiger-stripe use of camouflage face-paint, since spring of this year. He had led his 12-man team on numerous operations through the palm groves and marshes of the 'triangle of death' south of Baghdad, an area widely recognized as the most hostile territory in Iraq.

The arguments both for and against the sergeant were as compelling as the charges were serious.

Here was a soldier who had employed alleged operational practices - such as the laying of command wire, AK-47 magazines and C-4 explosives on the ground to lure in potential insurgents - which were sanctioned by superior officers. Such practices, whose existence is not being addressed by the military, clearly became blurred on the battle-field.

He was accused of shooting on April 14 an unarmed Iraqi man and then leaving command wire, sometimes used to detonate roadside bombs, on his body.

The prosecution alleged that on April 27 he told a junior officer, for whom he was acting as spotter, to shoot a man who might have been a member of the Mahdi Army or could have simply been a gardener. The junior officer, then-Spc. Jorge G. Sandoval Jr, was acquitted of murder charges in September. He was found guilty of planting bomb wiring on the body, however, and received a 44-day detention sentence.

On May 11, it was claimed, Hensley "assisted, advised and encouraged" his deputy to shoot in the head an Iraqi, Genei Nesir Khudair Al Janabi, who had stumbled on their position by accident. Al-Janabi had his hands tied and a poncho over his head when he was shot. Hensley then placed an AK-47 on the body to make the shooting appear legitimate.

It could be argued that the evidence for each offered no clear indication as to the staff sergeant's guilt or innocence.

In the April 14 case, for instance, the defense argued Hensley had fired only when the man had bent down, possibly to pick up a weapon.

The prosecution's argument that the dead Iraqi of April 27 was merely cutting grass was countered by the claim that no one locally could name him. "The scene with the cut-grass and sickle was recognized by the soldiers as a cover," said the defense counsel Capt. Daniel Kricza.

The May 11 shooting, which involved Sgt. Evan Vela, who testified in Hensley's trial and who faces murder charges for the shooting himself, was made all the more complex given the vulnerable position sniper squads routinely find themselves in.

Al-Janabi was said to have been making noises that could have given away their position, a serious problem for a small team of soldiers who do not have the means to wage a pitched battle with large numbers of insurgents, and who may be many miles away from support.

Whatever the evidence, there was an important omission to the proceedings.

Amid the thrust and parry of the opposing counsels' arguments, the white elephant of the 'baiting' program sat squarely in the room, its trunk firmly pegged. As the lake outside the courthouse shimmered to black and evening became night, the seven-person military panel was not being told the whole story.

Capt. Kricza had asked the court in a pre-trial hearing if the defense could present unspecified classified materials related to the baiting program.

This followed a sworn statement by former platoon leader Lt. Matthew Didier who said in June that officers from the Pentagon's Asymmetrical Warfare Group had visited the unit in January.

Lt. Didier - now promoted to captain - claimed that later his unit was given boxes containing "drop items" such as fake detonation cord and C-4 explosives to be used to lure in insurgents.

He said: "If someone found the item, picked it up and attempted to leave with the item, we would engage the individual as I saw this as a sign they would use the item against the U.S. forces."

But Capt. Madeline Yanford, who is a lawyer with the military court in Baghdad, said that the judge in Hensley's case had "ruled the classified information was neither relevant or necessary".

Indeed, senior military officials in Washington have yet to talk directly about allegations of baiting.

So the important issue of whether superior officers had encouraged the snipers to use bait to bring in insurgents - or what could easily turn out to be innocent civilians - and the implicit assertion that there was pressure from above to "get more kills", was not discussed.

It was past 10 p.m. by the time the military panel was ready to pass its verdict. The fidgeting and stifled yawns of those gathered in the courthouse were swiftly replaced by a tense silence.

The members re-entered the room for the umpteenth time that day, sat down and waited. The judge asked them if they had reached a conclusion. They said they had.

By the judge's request, Staff Sergeant Hensley stood to hear his fate, ramrod straight and flanked by his two defense attorneys.

The head of the panel was about to issue the decree ... then the technological mastery that has characterized the U.S.'s war in Iraq swiftly deserted this judicial battle-space.

As when General David Petraeus and Ambassador Ryan Crocker's seminal testimony to Congress on the progress of Iraq was sabotaged by a faulty microphone this summer, so was this moment.

The court reporter in the corner motioned to the judge, and then spent five minutes on his hands and knees wrestling with wires and tapping mikes.

Hensley, who had already spent 135 days imprisoned in Kuwait waiting for this moment, was asked to sit down.

The reporter then resumed his seat, consulted his laptop and nodded to the judge.

Again, Hensley stood to face his future. Life behind bars? Dishonorable discharge? Demotion? Acquittal?

The court held its breath. Somewhere past the lake, a chopper thumped into the blackness over Camp Victory. The panel-head begun again: "On the charges of…"

And the court reporter again motioned to the judge, who rolled his eyes, stopped the verdict and asked once more for Hensley to sit down.

The court exhaled as one and would have been forgiven for thinking this was actually a scene from a bad movie.

Finally, after more tapping of recalcitrant hardware, the verdict was read out: Not guilty on the charges of murder. Guilty on one count of placing an AK-47 on the body of a shot Iraqi and on two counts of disrespecting a superior commissioned officer.

The relief from the defense was palpable. Hensley hugged his brother, Jonathan, who had traveled a great distance to offer support. Capt. Kricza laid his head on the desk and may have shed a tear.

Outside the courtroom, by the lake, stood Al-Janabi's son, and his brother Fadil.

Yesterday, they returned to the courtroom to find that Hensley had been sentenced to time-served, demoted from staff sergeant to sergeant and given a general letter of reprimand.

Before sentence was passed, Hensley told the courtroom: "To place an AK-47 on a body was a bad decision. What I did was wrong and by doing so I have tarnished the name of the section. I deserve whatever the court deems necessary."

Some would say the court deemed 'not very much'. Either way, this case and the upcoming case of Sgt. Evan Vela have done little to answer important questions about a classified program that clearly goes to the top, but whose consequences are being felt, by Iraqis and U.S. soldiers alike, only at the bottom.