US Unlikely to Sentence Soldiers to Death in Wartime

The final month of 2006 will be one to remember because of the first two – of perhaps many – U.S. Army servicemen will face charges that can carry the death penalty for crimes committed in Iraq.

Yet 2007 may well be the year the U.S. military decides instead to spare their lives and sentence them to life in prison.

Both Sgt. Paul Cortez and Private First Class Jesse Spielman are scheduled to appear separately in military court in mid-December. Together with three other defendants – Pfc. Bryan Howard, Spc. James Barker, and discharged former Pvt. Steven Green – the men are accused of raping a 14-year-old girl and murdering her and her family last March near the Iraqi city of al-Mahmudiyah.

Cortez, Spielman, and Howard face court-martial proceedings at Fort Campbell, Ky., headquarters for the 101st Airborne Division where they served. Green has pleaded not guilty to murder and sexual assault and is facing federal charges.

Barker pleaded guilty to numerous charges, including premeditated murder, to avoid the death penalty. He received a 90-year prison sentence in late November.

Those airmen are not the only military personnel who could face charges for war crimes that carry possible death sentences.

A U.S. sailor and seven Marines are accused of killing an Iraqi man in Hamdaniya on April 26. Another six to eight Marines, who allegedly killed 24 Iraqi civilians in November 2005 in Haditha, could also face execution.

An investigation into the Haditha incident by the Naval Criminal Investigative Service (NCIS) is ongoing to determine if charges against the Marines should be filed. The Marines currently are restricted to the base-grounds of Camp Pendleton, Calif., pending the findings of the investigation.

While Barker avoided execution, his maneuver raises the question of whether military personnel could be sentenced to death, even if the crimes for which they are found guilty were committed in wartime.

Although the law clearly states they can, politically such a sentence would not be possible, said Lee D. Schinasi, a retired Army Judge Advocate General’s Corps (JAG) colonel who is now an associate professor of law at Barry University in Orlando, Fla.

"I don’t think that you will see it [the death penalty] applied these days in relation to all of these alleged cases, because the average civilian American is aware of the tremendous pressures that soldiers are under during wartime," Schinasi told IPS. "To carry out the killing of a soldier who has been found guilty of a crime committed during wartime has tremendous ramifications."

There is a loyalty between the U.S. public and its soldiers, said Schinasi, who likened the relationship to a social contract. "If capital punishment was carried out on a soldier convicted of a crime committed during wartime, that would be perceived as a violation of that social contract," Schinasi said.

Put simply: The public supports its soldiers because the military protects the public, Schinasi said.

Military services in other countries deal with the situation differently. Soldiers found guilty of war crimes in Europe, for instance, would face life imprisonment, said Diane Amann, a specialist on the subject, who is also a professor at the University of California-Davis law school.

Even in international tribunals that dealt with wartime crimes committed in Rwanda and the former Yugoslavia, former military officers found guilty of some horrific crimes received life imprisonment, she told IPS.

The United Nations will not allow war crimes to be tried in Rwanda until that African nation agrees to abolish the death penalty. In contrast, although the U.S. stated it would introduce a more modern constitution in Iraq when it toppled Saddam Hussein, it still has allowed that nascent nation to maintain capital punishment. In November, Hussein, along with some military officers, was sentenced to hang. That verdict is on appeal.

U.S. soldiers have been executed during wartime before, but these incidents are rare and sometimes controversial. During the U.S. Civil War, Confederate army Capt. Henry Wirz, commander of the notorious Andersonville prison, was hung in November 1865, after the end of the war, on charges of "impairing the health and destroying the lives of prisoners." The prison, built to hold captured Union soldiers and in existence for only 14 months, housed 45,000 soldiers – nearly one-third of whom died in captivity.

Pvt. Eddie Slovik was executed for desertion in 1945, the final year of World War II. He was the only soldier of the 49 who had been sentenced to die who actually was shot. The last execution of a soldier in the U.S. military justice system occurred in April 1961, for charges of rape and murder.

As of January 2006, the Department of Defense states that executions would be conducted not via firing squad but through lethal injection.

Kathleen Duignan, executive director of the National Institute of Military Justice in Washington, D.C., told IPS the four-step process in the U.S. military justice system that is required to impose a death sentence ensures that the military judge and a panel of military officers must agree that a capital offense exists, and that the decision to execute must be unanimous.

"Ultimately, after all levels of review, the case would go to the president of the United States for approval. The president must personally approve execution of the sentence and even then the sentence can be delayed on federal habeas review," said Duignan.

Though it is not used often, the United States apparently feels the need to maintain the death penalty among its military ranks, agreed Amann and Schinasi.

"The reason why the death penalty isn’t taken off of the [U.S. military justice] system," Schinasi said, "is for the same reason that it stays on the civilian law books – to show society that there are certain crimes that people wouldn’t put up with."