War entails unspeakable violence, much of it entirely legal. And yet some violence is so abhorrent that it falls outside the bounds of law. When the perpetrators are U.S. service members, the American military is supposed to hold them to account. It is also supposed to keep records of wrongdoing in a systematic manner. But the military has failed to do so, leaving the public unable to determine whether the military brings its members to justice for the atrocities they have committed. To remedy this failing, the reporting team of the In the Dark podcast has assembled the largest known collection of investigations of possible war crimes committed in Iraq and Afghanistan since 9/11—nearly eight hundred incidents in all. Much of the time, the reporting concluded, the military delivers neither transparency nor justice.
The database makes it possible, for the first time, to see hundreds of allegations of war crimes—the kinds that stain a nation—in one place, along with the findings of investigations and the results of prosecutions. The picture that emerges is disheartening. The majority of allegations listed in the database were simply dismissed by investigators. Those which weren’t were usually dealt with later, by commanders, in a justice system that can be deferential to defendants and disbelieving of victims.
This project is supported by the Pulitzer Center.
The database began with In the Dark’s reporting on the killings of civilians in Haditha, Iraq, on November 19, 2005. That morning, a squad of Marines, led by Sergeant Frank Wuterich, was hit by an improvised explosive device, which killed a beloved lance corporal. In the hours that followed, Marines killed men, women, and children on the street and in nearby houses. Four of those Marines, including Wuterich, were charged with murder. Three of their cases were later thrown out, and, when Wuterich went to trial, he was allowed to plead guilty to a single count of negligent dereliction of duty. A judge demoted Wuterich in rank. “Essentially a parking ticket,” Wuterich’s lawyer, Haytham Faraj, said of the sentence. “It’s meaningless.” We wanted to understand how such a large and well-publicized war-crimes prosecution had reached a conclusion of such little consequence. Was this an anomaly or was it typical of the military-justice system?
We began by filing requests with the military under the Freedom of Information Act (FOIA). In 1974, following the massacre of hundreds of civilians in My Lai, Vietnam, and the failed prosecutions of some two dozen Army service members for the killings, the Department of Defense began requiring each branch of the military to maintain a “central collection of reports and investigations” of allegations of war crimes by its members. However, when we filed public-records requests for the contents of each branch’s collection, we got little in return. The Department of the Navy, which includes the Marine Corps, sent us a letter saying that it had located its “depository” but that “the depository did not contain any records.”
With no other option, we started combing through archived news articles, human-rights reports, legal and medical journals, and a staggering repository of records about torture and detainee abuse that the A.C.L.U. had obtained during fourteen years of litigation. We looked for incidents such as the indiscriminate shooting of civilians, the killing or torturing of wounded enemies, and the abuse or willful neglect of detainees, all textbook examples of war crimes. We limited our search to events that were broadly comparable to Haditha: allegations of violence perpetrated by U.S. service members or deaths in U.S. custody that happened in Iraq and Afghanistan after September 11, 2001. We excluded nonviolent incidents, such as thefts of artifacts, and killings by drone strikes, which aren’t typically treated as crimes.
As we unearthed information about new incidents, we filed FOIA requests for related records. In response, we were often told that, unless we could provide names, especially those of the perpetrators, agencies couldn’t carry out searches for documents. When we provided names, some departments refused to release records, citing the privacy rights of the people we had identified. We learned that many cases were handled nonjudicially—essentially as personnel matters—and that those records were exempt from FOIA. Cases that ended in acquittal or dismissal were also exempt from FOIA, and the files often destroyed. Many of the most basic records that would be easily obtained in any civilian courthouse in America are beyond reach in the military-justice system.
With the assistance of an experienced FOIA litigation team, we repeatedly sued the military. Over four years, the agencies released enough documentation to us that, assisted by other source materials, we were able to put together a collection of seven hundred and eighty-one possible war crimes, perpetrated against more than eighteen hundred alleged victims, that the U.S. military took seriously enough to investigate.
To analyze the database, we consulted John Roman, a researcher at NORC at the University of Chicago, who specializes in quantitative analysis of the civilian criminal-justice system. He was dismayed by the results. “It’s to the point where you have to question a little bit whether justice is a priority here or if something else is a bigger priority than justice,” Roman said.
Of the seven hundred and eighty-one cases we found, at least sixty-five per cent had been dismissed by investigators who didn’t believe that a crime had even taken place. Soldiers would return to the United States and confess—to women, health-care workers, job interviewers—that they’d murdered civilians or prisoners, but military investigators would find that the allegations couldn’t be substantiated. Detainees at Abu Ghraib prison reported abuse by their guards, but investigators did not find sufficient evidence to confirm that it had happened. Civilians driving distractedly or too fast were shot dead approaching traffic checkpoints, and investigators deemed these killings acceptable escalations of force. Young men were found unresponsive at Camp Bucca prison, and their deaths were attributed to natural causes.
In a hundred and fifty-one cases, however, investigators did find probable cause to believe that a crime had occurred, that the rules of engagement had been violated, or that a use of force hadn’t been justified. These include the case of soldiers raping a fourteen-year-old girl and subsequently murdering her and her family; the alleged killing of a man by a Green Beret who cut off his victim’s ear and kept it; and cruelty toward detainees at Abu Ghraib prison and at the Bagram Air Base detention facility. They were offenses that even a military-justice system vexed by the difficulty of collecting evidence in war zones and forgiving of deadly errors in judgment had identified as warranting prosecution or punishment. Yet, even in these cases, meaningful accountability was rare.
We identified five hundred and seventy-two alleged perpetrators associated with these hundred and fifty-one criminal cases. Only a hundred and thirty of them were convicted. The records show that they rarely received lengthy prison terms. Much more often, their cases were dealt with by commanders, who have broad discretion to punish their troops with extra duty, demotions, or reprimands, circumventing formal prosecution altogether. (The commanders themselves almost never seemed to face consequences for the misdeeds of their subordinates.) Fewer than one in five alleged perpetrators appear to have been sentenced to any type of confinement, and the median sentence was just eight months. “The conviction rates and the rate of sentencing for these kinds of very serious person crimes is just far below what you would see in the civilian system,” Roman said.
We sent summaries of our findings to the Army, the Navy, the Marine Corps, and the Air Force, and requested an opportunity to present their leaders with the details of our analysis. None took us up on the offer. The Army replied that it “holds Soldiers and Army Civilians to the highest standards of personal conduct.” The Marine Corps didn’t respond.
What we’re publishing is not a complete record of the atrocities committed by the military since 9/11; it would be impossible to know them all. This is a repository of the seven hundred and eighty-one possible war crimes investigated by the U.S. military that we were able to identify. You can explore an index of information about the incidents, investigative findings, adjudicative outcomes, and our source materials.
Below, we’ve displayed detailed accounts of the hundred and fifty-one cases that investigators determined to be criminal. Each has its own story, but many start and end the same way: with a horrific act perpetrated by members of the military which was then punished lightly or not at all.
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