This first appeared in The Havok Journal on December 8, 2015. The topic discussed remains just as relevant today.
The tragic events in Kunduz, Afghanistan where a Médecins Sans Frontières (MSF) clinic was struck by an American AC-130 aircraft killing thirty innocent people brought to light just how little is known by the public, media, and humanitarian organizations about the law of armed conflict, and how states respond to alleged violations of the law of armed conflict. Specifically, many people, international organizations, and non-governmental organizations criticized the process whereby the U.S. Department of Defense (DoD) would investigate itself, claiming that the investigation could not be fair, impartial, and transparent. Whether the DoD can properly investigate itself is almost beside the point, when critics of the investigation process know almost nothing about this process. This article is intended to shed some light on what goes on in a DoD investigation.
1) The DoD is the only organization with criminal jurisdiction under some circumstances. Unlike most of the armed forces of the world, U.S. forces on active duty who are suspected of military-related crimes fall under the exclusive criminal jurisdiction of its own code called the Uniform Code of Military Justice. In fact, in Afghanistan, the UCMJ is the exclusive jurisdiction for all crimes committed by U.S. forces. Another entity investigating an incident such as the Kunduz attack may produce interesting results, but those results could not form the basis of punishing those guilty of a criminal offense.
2) Administrative investigations are almost always the starting point for combat accidents. The investigation currently underway in Afghanistan is a DoD Administrative Investigation that is used to create a historical record and obtain facts for internal DoD use. The DoD investigates every credible allegation of civilian death in combat zones. In high-profile cases, some or all of the investigation is sometimes released to the public. Since the investigation will necessarily include elements of combat operations, tactics, targeting methods, and possibly even intelligence source information, parts of the investigation may not be releasable to the public.
These types of administrative investigations are sometimes criticized for several reasons. First, the appointing authority is usually the higher headquarters of the alleged offending party, and the investigator is usually in the chain of command of the investigation approval authority. Some critics may say that if a deficiency if found, then the approval authority has an interest in covering up the deficiency. Procedurally, there is protection against this scenario. The senior commander to the approval authority will almost always see the investigation. Second, the investigator, by regulation, is supposed to be free of influence from any source, including her own commander. Finally, the investigator not only has a legal advisor, but the investigation will usually go through two and sometimes three layers of legal review.
3) Administrative investigations are not the end. Administrative investigations may trigger two other forms of investigations. If the investigation provides evidence that the law of armed conflict was intentionally violated, or that criminal homicide had been committed, then an independent law enforcement agency, like the U.S. Army Criminal Investigation Division (CID), may open its own investigation. Unlike administrative investigations, this is a law enforcement investigation conducted by certified federal law enforcement agents. CID, Naval Criminal Investigations Service (NCIS), and the Air Force Office of Special Investigations (OSI) are independent of the chain of command and are free of any type of influence to arrive at a particular result. If CID finds that a crime has been committed, then the suspect’s name gets placed in a federal database, a process called titling. This is the military equivalent of being arrested.
4) The Grand Jury. If the alleged criminal misconduct is serious enough, then senior commanders can appoint an Article 32 Investigation. Article 32 is the military equivalent of a grand jury investigation. It is adversarial in nature with the accused being afforded defense counsel representation, and the government’s case being argued by a military prosecutor. The Article 32 investigator will also have his own legal advisor who is independent of the prosecutor or defense counsel. This investigation is required to make findings based on a probable cause standard and will make recommendations as to whether charges should be dropped or go forward.
5) The Court Martial. The U.S. Military has its own judicial system which is open to the public. The fact that most military installations are closed does not prevent the public from attending these trials and hearings. A recent claim was made in media that although open to the public, the trial cannot be attended by non-DoD identification cardholders. This is simply not true. With some advance planning, anyone wanting to attend a U.S. military trial can contact the installation public affairs office and obtain a temporary pass to attend the trial. The court-martial is an adversarial proceeding that has an independent judge and an independent defense counsel. The prosecutor works for the chain of command. Military courts will make a finding of guilt or innocence and then proceed to a sentencing phase. One criticism of the court-martial process is that an accused is allowed to put on evidence that he or she has an excellent service record.
Over the course of the last fourteen years, the DoD has conducted thousands of investigations into the conduct of American combat forces in Iraq, Afghanistan, and elsewhere. The framework for these procedures is open source and can be found on the Internet. The public has sometimes seen the results of these investigations and sometimes has not simply because most of these are uninteresting. This process has produced the court-martial of David Petraeus, a life sentence for Robert Bales, a death sentence for Nidal Hassan, and lengthy prison sentences for crimes committed in places like Hamdania, Mahmudiya, Abu Graib, and Maiwand. The U.S. military investigations process is one of the most thorough in the world, and the court-martial process can produce sentences that would make some human rights advocates cringe while simultaneously afforded more protections than are even required under the U.S. Constitution.
With such a thorough system, why would some organizations still exhibit mistrust of the military system? The answer is simple. Like every system, despite the number of legal experts involved and the regulatory and legal protections in place, the U.S. military investigations process does not always get it right. The same processes have also produced the false results found in cases like the Jessica Lynch case, the Pat Tillman case, and others. Although no system is perfect, an ill-timed failure can shake the foundations of trust in that system despite the overwhelming amount of success, fairness, and transparency. As we all know, climb a thousand mountains and you’ll be known as a mountain climber. But, if you screw one goat, you’ll be known as, well, you know…