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July 08, 2004

If this story is true on it's face...

...and the 'back story' isn't fairly extraordinary, then something stinks at Fort Carson.

Anybody know why this Captain, Major, and Lieutenant Colonel get off with Article 15's for Obstruction and Conspiracy, while the junior troops are being charged for Courts Martial? I'd really like to know what the little details are that made Major General Odierno believe this was an appropriate response to the event and actions. I agree with the Courts, I have heartburn with the Art. 15's.

So, if ya know anything (don't break any laws, though) I'd love to hear. For publication or not, as you wish.

But right now, this stinks, and looks bad.

Colorado Springs Gazette July 7, 2004

By Tom Roeder, The Gazette

Soldiers could face prison in the drowning death of an Iraqi civilian and the alleged cover-up of the incident, but the Fort Carson commanders who helped keep it secret were punished privately, the Army said Tuesday.

In papers charging lowerranking soldiers in the death of Zaidoun Fadel Hassoun, the Army says three senior officers from the 3rd Brigade Combat Team conspired to impede its homicide investigation.

Capt. Matthew Cunningham, Maj. Robert Gwinner and Lt. Col. Nathan Sassaman got “nonjudicial punishment” under the military’s Article 15, which allows commanders to punish soldiers without a court proceeding or a public record of the wrongdoing.

The Army won’t disclose their punishments, citing privacy laws, but the action isn’t a criminal conviction and doesn’t bring prison time.

The Article 15s were issued this spring by Maj. Gen. Raymond Odierno, former 4th Infantry Division commander.

This story has been told in the blogosphere, by an Iraqi blogger who is a cousin of one of the victims, and the media. (ed. note: thanks to the Commissar for reminding me *which* blogger)

The different treatment for commanders drew congressional fire.

“I don’t see the justice in that,” said U.S. Rep. Joel Hefley, R-Colorado Springs, a member of the House Armed Services Committee.

“If the higher-ups were involved in a cover-up, they should face the same kind of jeopardy as their subordinates.”

Hefley said he’s going to ask Army brass why the commanders weren’t charged.

“That’s something everyone in Congress is concerned about,” he said.

Not just you guys in Congress, Mr. Hefley. Some of us soldiers and former soldiers are concerned, too.

The Army says 1st Lt. Jack M. Saville ordered Sgt. 1st Class Tracy E. Perkins and Sgt. Reggie Martinez to shove Zaidoun into the river. Saville, Perkins and Martinez are charged with manslaughter in Zaidoun’s death and could face more than a decade in prison on that charge.

Another soldier, Spc. Terry Bowman Jr., is charged with pushing another Iraqi off the bridge.

After the death, officials allege, Saville and Perkins conspired with Sassaman, Gwinner and Cunningham to mislead investigators by denying that the Iraqis were shoved into the river.

Saville and Perkins face charges of conspiracy, making a false statement and obstruction of justice for the cover-up.

And the others don't? As I said, absent better information, I'm confused here. I wish I'd been a fly on the wall of MG Odierno's decision-making process and JAG advice. I'm inclined to give the benefit of the doubt to senior leaders, who I assume have better information than I do. But this one is tough to swallow.

More in the Flash Traffic.

A conviction in the cover-up could bring a maximum of 15 years in prison — more time than the manslaughter charge.

Retired Coast Guard Capt. Kevin Barry, a Virginia lawyer who specializes in military law, said the different consequences for senior leaders illustrate big problems in the military justice system.

Commanders are given wide discretion on how they punish crimes. They can let senior leaders off and hammer underlings, and it’s legal, Barry said.

“This puts the commander in a position where there is a conflict of interest,” Barry said.

And doing that, in cases like this and Abu Ghraib, will put that latitude in jeopardy. And it's a latitude I believe commanders should have. Oddly enough, in my career, I was always harder on the senior guy than the junior - but I did take into account the effect of UCMJ action on careers. The UCMJ hammer is not always appropriate for senior people because it can have a really disparate impact. But that is a distinction more appropriate to "offenses against good order and discipline" the more purely military part of the Uniform Code. Felonies are felonies. Give 'em a trial and let the chips fall where they may. If these guys are guilty of obstruction (and they are, if that's what the Art. 15s are for) I fail to see where an Art. 15 is appropriate vice a Courts Martial. Anyone who can illuminate, please do - if for my eyes only.

The Army could still bring charges against Sassaman, Gwinner and Cunningham, but that’s not anticipated, Cephus said.

Barry said charges are unlikely to follow an Article 15.

Surely there was at least a 15-6 investigation here. And it sounds like there should have been an Art. 32. If there was, the only conclusion I can reach is that the Art. 32/15-6 process failed to yield enough direct evidence that the JAG felt he could take to trial, and MG Odierno settled on this as the only way to get some sort of justice.

If so, that's a better story, but one we're not going to hear officially, either. It sounds like these guys are essentially going to get away with it. Which chaps me. Yeah, their careers are over, but their underlings are potentially going to jail, with federal felony conviction, which is appropriate, it they are guilty. And so should their seniors.

That brings up the question of whether the Army is going too easy on senior leaders in cases involving prisoner abuse, said Susan Rice, a senior fellow who researches defense issues at the Brookings Institution, a nonpartisan think tank.

“I don’t think it sends a good message,” she said.

Rice said she questions why no senior officers have been charged for the abuses at Abu Ghraib prison, which have landed several enlisted soldiers before courts-martial.

Hefley said he’s worried about the role senior leaders have played in every abuse case.

“Most of us expect the people who were involved in wrongdoing, regardless of their rank, to face punishment for their wrongdoing.”

I'm with you on that, brother.

Full story is here.