Court-Martial Trial Practice Blog
You’ll have seen various reports about the pending prosecution of CPT Bjork for allegedly ordering some Iraqi officers to shoot two Iraqi civilians (I have few here, and here). There is a report in The US Report.
[T]he accusers are 3 former Iraqi police and a former Iraqi intel officer who are currently detainees in Iraq.
Reports have also surfaced that the detainees were allowed to speak with each other about their claims.
It’s also feasible to conclude the detainees have ample motive to fabricate in order to deflect blame from themselves.
In addition when an interpreter must relay testimony there is added room for error and inaccuracy.
There appear to be some ROE issues in the case, because of this reference:
Herschel Smith, writing about Rules of Engagement for Afghanistan at The Captain’s Journal, said, “Our problems with the existing ROE and RUF are legendary, and include the insurmountable initial problem that they are constructed around defensive operations and personal and unit self defense and include no discussion or guidance for offensive operations. This is why General Kearney wanted to charge two Army snipers with murder for targeting a Taliban commander who didn’t happen to be holding a weapon.”
The charges appear to be: two charges of premeditated murder and one of reckless endangerment.
Article 118, UCMJ.
Any person subject to this chapter whom without justification or excuse, unlawfully kills a human being, when he- –
(1) has a premeditated design to kill;
(2) intends to kill or inflict great bodily harm;
(3) is engaged in an act which is inherently dangerous to others and evinces a wanton disregard of human life; or
(4) is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, robbery, or aggravated arson;
is guilty of murder, and shall suffer such punishment as a court-martial may direct, except that if found guilty under clause (1) or (4), he shall suffer death or imprisonment for life as a court-martial may direct.
There’s no indication in the reports that the case is referred capital. Therefore, if convicted of at least one of the two premeditated murder specifications the punishment is either confinement for life or confinement for life without the possibility of parole. The reckless endangerment charge carries a one year confinement and a BCD as the potential maximum. The military has a unitary sentence so the maximum exposure would be one Life/LWOP, even if convicted of all of the charges. This is different to the civilian community where the potential maximum would be two life sentences and one year total.
Article 134, UCMJ (Reckless endangerment).
(1) That the accused did engage in conduct;
(2) That the conduct was wrongful and reckless or wanton;
(3) That the conduct was likely to produce death or grievous bodily harm to another person; and
(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
Here is a link to a Facebook page set up in support of CPT Bjork.