New York Times
March 26, 2005
By Douglas Jehl

Despite recommendations by Army investigators, commanders have decided not to prosecute 17 American soldiers implicated in the deaths of three prisoners in Iraq and Afghanistan in 2003 and 2004, according to a new accounting released Friday by the Army. Investigators had recommended that all 17 soldiers be charged in the cases, according to the accounting by the Army Criminal Investigation Command. The charges included murder, conspiracy and negligent homicide. While none of the 17 will face any prosecution, one received a letter of reprimand and another was discharged after the investigations.

To date, the military has taken steps toward prosecuting some three dozen soldiers in connection with a total of 28 confirmed or suspected homicides of detainees. The total number of such deaths is believed to be between 28 and 31. In one of the three cases in which no charges are to be filed, the commanders determined the death to be "a result of a series of lawful applications of force." In the second, the commanders decided not to prosecute because of a lack of evidence. In the third, they determined the soldier involved had not been well informed of the rules of engagement.

A spokesman for the Army Criminal Investigation Command, Chris Grey, said in a statement: "We take each and every death very seriously and are committed and sworn to investigating each case with the utmost professionalism and thoroughness. We are equally determined to get to the truth wherever the evidence may lead us and regardless of how long it takes."

Human rights groups and others have criticized the military for not pursuing prosecution more aggressively.

The accounting was the most detailed the military has yet made public of the deaths of prisoners in American custody in Iraq and Afghanistan. Of the 28 deaths investigated, 13 occurred in American detention centers in those countries and 15 occurred at the point where prisoners were captured. Only one occurred in Abu Ghraib prison in Iraq, which has been known until now as the site of the most extensive abuses by American military personnel. The 28 deaths include two cases involving members of the Navy Seals, which are still being investigated by the Navy, according to military officials. They also include a prisoner in Marine Corps custody whose death resulted in the conviction of two marines on charges including assault and dereliction of duty, according to a Marine spokesman. Not included in the 28 are three other deaths of prisoners involving marines but under investigation by the Navy.

With the disposition of the three cases involving the 17 soldiers not prosecuted, the Army now has 21 soldiers listed as subjects for prosecution on criminal charges including, among others, murder, negligent homicide and assault. Of those 21 soldiers, at least 3 have been convicted in general courts-martial, and at least 3 others are awaiting trial, the Army accounting showed.

The Army said one of the three deaths for which soldiers would not be prosecuted was that of a former Iraqi lieutenant colonel determined by investigators to have died of "blunt force injuries and asphyxia" at an American Forward Operating Base in Al Asad, Iraq, in January 2004. In that case, Army investigators had recommended that 11 soldiers from the Fifth Special Forces Group and the Third Armored Cavalry Regiment face charges. The decision not to prosecute in that case, as well as one other, was made by the Army Special Forces Command at Fort Bragg, N.C., the Army said. A senior Army legal official acknowledged that the Iraqi colonel had at one point been lifted to his feet by a baton held to his throat, and that that action had caused a throat injury that contributed to his death. The Army accounting said the Special Forces Command had determined that the use of force had been lawful "in response to repeated aggression and misconduct by the detainee."

The former Iraqi colonel was not identified but has been named in other reports as Jameel. The senior Army legal official said the prisoner's resistance to his captors' instructions had caused them to gag him and to lift him to his feet with the baton, actions that contributed to the death. The Army Special Forces case that commanders decided to drop for lack of evidence involved the shooting death of a prisoner in Afghanistan in August 2002, the Army said.

The case not prosecuted because the soldier involved was not well informed of the rules of engagement, involved the Fourth Infantry Division. The detainee, who died in September 2003, was an Iraqi prisoner at an American detention center.

The Army said it has now closed its investigations into 16 of the deaths, and referred five of them to the Navy, the Justice Department or foreign governments for possible prosecution.

Some of the deaths described in the Army accounting have already been widely reported, including two deaths at Bagram in Afghanistan in December 2002; the death at Abu Ghraib in November 2003 of an Iraqi who was being questioned by a Central Intelligence Agency officer; and the death the same month of an Iraqi major general who had been stuffed head-first into a sleeping bag.

An Army spokesman, Lt. Col. Jeremy Martin, said the prisoners who died represented a tiny fraction of what he said had been some 70,000 detainees held by American forces in Iraq and Afghanistan since 2001. Altogether, more than a million American soldiers have taken part in those operations, Colonel Martin said.

A spokesman for the Army Special Operations Forces Command, Maj. Robert E. Gowan, said a "careful review of the facts" surrounding each of the two incidents involving that command indicated that "no U.S. Army Special Forces Command soldiers were found to have participated in any misconduct or detainee abuse."

"U.S. Army Special Forces Command takes all allegations of detainee abuse and homicide very seriously," Major Gowan said in an e-mail statement in response to an inquiry. "As with any case, U.S. Army Special Forces Command will consider all relevant evidence and facts. This command will make appropriate disposition of such cases as warranted by the facts and evidence derived from the investigations."

Copyright 2005 The New York Times Company

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