TACOMA, Wash. — Two high-profile attorneys will clash on Wednesday when a military hearing begins to determine whether Sgt. 1st Class Michael Barbera should face court-martial in the shooting deaths of two deaf, unarmed Iraqi youths in March 2007.
The so-called Article 32 hearing, similar in ways to a preliminary hearing and a grand jury proceeding in civilian courts, will be held at Joint Base Lewis-McChord near here.
Then-Staff Sgt. Barbera, an Army paratrooper who was leading a Small Kill team on a reconnaissance mission for suspected insurgents, is accused of fatally shooting Ahmed Khalid al-Timmimi, 15, and his brother, Abbas, 14, on March 6, 2007, as they tended to cattle in a palm grove near As Sadah, Iraq.
The village is about 50 miles northeast of Baghdad and just a few miles from a forward operating base of the 5-73rd Calvary, 82nd Airborne, in Diyala province.
Barbera, a New York native, is charged with two counts of murder, lying to his commanders, directing fellow soldiers to lie to military investigators, and threatening a civilian in a telephone call.
The charges were filed after the Tribune-Review published an investigative report, “Rules of Engagement,” about the killings and the aftermath in December 2012. The Department of Defense reopened the case in response to demands from members of Congress who read the newspaper's eight-page special section, which won a national Investigative Reporters and Editors Award and other honors.
On opposite sides of the aisle at the hearing before the investigating officer, Lt. Col. Charles Floyd, will be two attorneys who have handled some prominent cases.
Lt. Col. Robert Stelle, the military prosecutor, won a conviction in 2012 in a case with similar charges and circumstances. Staff Sgt. Calvin Gibbs, the leader of a Small Kill team, was convicted for the 2010 murders of civilians in Afghanistan and attempting to cover it up.
Stelle successfully prosecuted Staff Sgt. Robert Bales last year for the 2012 murder of 16 Afghan civilians and Sgt. John Russell in 2009 for shooting five service members at a mental health clinic in Iraq. Both cases received extensive national attention.
Barbera will be defended by attorney David Coombs, who specializes in court-martial cases and won praise for his representation of Pfc. Bradley Manning in the infamous Wikileaks case. Manning pleaded guilty and was convicted of some charges of giving classified war documents to Wikileaks and received 35 years in prison. Treason and espionage charges were deflected in litigation.
“If I was in the military and I was in trouble, I'd want David Coombs,” said retired Col. Morris D. “Moe” Davis, who was in the Judge Advocate General, or JAG, corps for 25 years and was director of Air Force judiciary when he retired in October 2008.
Davis was one of several military personnel called as witnesses for Manning's defense because Davis served from September 2005 to October 2007 as chief prosecutor of Guantanamo detainees. At Coombs' request, Davis checked to see how many of the documents Manning leaked actually were classified, versus “open source” documents available online “to any 13-year-old kid looking around on Google.”
Davis said he later testified that more than 90 percent of the documents were “open source” and posed no harm to national security.
Though most of Barbera's Small Kill team members who witnessed the shootings told superiors what occurred, no action was taken, and the soldiers took heat about it from others in the 5-73rd Cavalry, which was honored for heroism in combat near Turki Village in Iraq in 2007 with the Presidential Unit Citation.
The men came forward, in part, because they initially believed that two truck bombings at their forward operating base a short time later were reprisals for the killings of the two youths and their deaf cousin, on Barbera's orders, as they fled the area. Ten soldiers were killed in the truck bomb attacks at the outpost, the unit's largest loss since the Vietnam War.
Even after Army criminal investigators at Fort Bragg, N.C., recommended Barbera be prosecuted for two murders and lying to officials about what happened, generals at the 82nd Airborne at Fort Bragg chose not to put him on trial. Instead, they gave Barbera a light reprimand, promoted him to Sergeant 1st Class and placed him in charge of a larger unit at Alaska's Fort Richardson.
After the Trib published its investigative report and members of Congress expressed outrage, the military brought charges against Barbera for the murders, falsely telling superiors the Small Kill team came under insurgent attack and for allegedly making a threatening cellphone call to the wife of Trib investigative reporter Carl Prine.
“I think the military has kind of viewed this as an embarrassment and hoped they could make it go away,” Davis said of this case and other civilian casualty cases in the Iraq and Afghanistan wars. “Only if it gets a significant amount of attention around it, then they were forced to press on.”