March 17, 2012

Try an American soldier in an Afghan court - seriously?

Staff Sergeant Robert Bales, U.S. Army

I was contacted yesterday (March 16) by Canadian radio station Newstalk 1010 in Toronto - I have done interviews for them in the past. They wanted to talk to me about the case of Staff Sergeant Robert Bales, the U.S. Army soldier assigned to the 3rd Stryker Brigade Combat Team (2nd Infantry Division) in Afghanistan accused of the murder of 16 Afghan civilians.

When the booking producer called, he asked if I was available to talk about the Sergeant Bales case. I initially replied that I had no special knowledge of the case and that it appeared to be pretty straightforward. The sergeant did it, he confessed, was on his way to Fort Leavenworth where he will be tried by court-martial. That's how we do things in the American military.

The producer said the two show hosts were interested in my thoughts on why the U.S. does not agree to transferring the soldier to Afghan custody for trial in the Afghan justice system under Islamic law. Since the crimes were committed in Afghanistan against Afghan nationals, why doesn't the accused face trial there?

After my scoff at the concept of "Afghan justice," I explained the concept of Status of Forces agreements, usually called SOFAs, that define how these matters are handled in each country where the United States has forces deployed. I asked him if the Canadian forces would allow one of their soldiers to be tried in an Afghan court. He conceded that I had a point and scheduled the interview.

I think the interview went well, although I did not listen to the discussion prior to my segment. I understand that the Canadians are more liberal, some would say even naive, about these things. While it sounds all "kumbaya" to want soldiers accused of crimes to be tried by the host nation, turning over an American (or Canadian or other NATO nation) soldier to a country that has no functioning government is not sound policy. How many young men and women would serve in the armed forces if they were subject to what would become arbitrary arrest, trial and punishment by any third world country in which they happen to be fighting?

In this case, the hosts are being a bit hypocritical. In December 2008, a Canadian officer was accused of murdering an Afghan detainee. He was tried by court-martial in Canada. If the Canadians don't turn their soldiers over to the Afghans, why would they expect us to do otherwise?

For those who are not aware of SOFAs, here are the current rules in effect in Afghanistan, agreed to by both governments:

U.S. military personnel are to be accorded "a status equivalent to that accorded to the administrative and technical staff" of the U.S. Embassy under the Vienna Convention on Diplomatic Relations of 1961. Thus, U.S. military and DOD civilian personnel are immune from criminal prosecution by Afghan authorities. Further, they are immune from civil and administrative jurisdiction except with respect to acts performed outside the course of their duties. The Government of Afghanistan explicitly authorized the U.S. government to exercise criminal jurisdiction over U.S. personnel, and the Government of Afghanistan is not permitted to surrender U.S. personnel to the custody of another State, international tribunal, or any other entity without consent of the U.S. government.

The immunity clauses are fairly standard, although they vary by country. In other countries, such as Europe and Japan where we have longstanding troop presence, the SOFAs also address tax liability, drivers licenses, ownership of property, importation of personal goods, employment of family members, etc. There are cases in which American military personnel have been tried for criminal violations of local laws. This is especially true in Japan where members of the Marine Corps and Air Force have been tried and imprisoned in Japan. There are also American servicemembers serving sentences in South Korean and German jails.

The hosts also asked about the soldier's defense. Sergeant Bales is being represented by a high-profile and high-priced attorney - I am not sure who is footing the bill. It is pretty apparent that there will be a mitigating circumstances defense - Sergeant Bales has been wounded twice, having lost part of his foot in Iraq and suffering a head injury. He also witnessed a comrade having his leg blown off the day before the incident.

You can listen to my remarks on the Newstalk 1010 website at

Go to the Podcasts section and either download the podcast or listen on the site. The countdown time code for my segment is from 28:10 to 23:50.