DOJ urged to refile charges in 2007 deaths of Iraqi boys
By CARL PRINE | The Pittsburgh Tribune-Review | Published: December 3, 2012
AS SADAH, Iraq — The Department of Justice has legal authority to review criminal charges the military declines to prosecute, as in the case of two unarmed Iraqi boys shot to death by an Army Small Kill Team leader in 2007.
The slayings were the focus of “Rules of Engagement,” a special investigative section in Sunday’s Tribune-Review.
The Justice Department rarely gets involved in military cases, and spokesman Dean Boyd declined to comment.
But the former chief prosecutor of suspected terrorists at Guantanamo Bay in Cuba said, “It’s important to hold people accountable.”
Retired Col. Morris Davis, former Guantanamo prosecutor and former head of the Air Force Judiciary, said few uniformed personnel have been prosecuted for civilian deaths after more than a decade of war in Iraq and Afghanistan.
Too often, he said, the lack of prosecution boils down to “failures of leadership.”
“We don’t want the battlefield to become the Wild West, where anything goes,” said Davis, a professor at Howard University’s School of Law in Washington. “Leaders must ensure that there are consequences to doing things that are wrong.”
In the slayings of the Iraqi boys, Army investigators thought they had a strong case to charge then-Staff Sgt. Michael Barbera with two counts of murder and more.
Five members of an Army Small Kill Team from the 5-73 Cavalry out of Fort Bragg, N.C., stated under oath that they witnessed Barbera kill the two unarmed brothers, Ahmad Khalid al-Timmimi, 15, and, Abbas, 14, both of whom were deaf.
The Army scouts said Barbera lied to superiors about the March 6, 2007, slayings by reporting that insurgents attacked the team.
The Army later promoted him to sergeant 1st class.
Barbera, 30, declined to speak with the Trib.
The Army’s Criminal Investigation Command reported in his case file that Barbera received a written General Officer Memorandum of Reprimand for the shootings. It carries no jail time, loss of rank or privileges.
The Trib tried to talk to commanding generals of the 82nd Airborne Division at Fort Bragg and the larger XVIII Airborne Corps to learn why they decided not to prosecute Barbera. Military justice is unique in that senior commanders decide whether to file charges.
Neither Army Maj. Gen. James L. Huggins nor his boss, Lt. Gen. Frank Helmick, returned the Trib’s messages. Army spokesman Col. Gary Kolb said in a statement that the generals reached their decision after “thoroughly investigating” the matter. Eyewitnesses who brought the case to military investigators dismiss that contention.
“They made it go away,” said Ken Katter, one whistle-blower in the Barbera case. A former Marine and police officer who joined the Army after the 9/11 attacks, Katter and other members of Barbera’s team want the Justice Department to review the matter and refile charges.
Retired Maj. Gen. Tom Romig, the Army’s former top lawyer and now dean of Washburn School of Law in Topeka, and retired Navy Rear Adm. Don Guter, a former dean of the Duquesne University School of Law and now dean of Southern Texas School of Law in Houston, said the Barbera case might not be as clear-cut as Katter and other cavalry scouts imagine.
“About 99 percent of cases, the commanding general will follow the lead of (Criminal Investigation Command), but there are those 1 percent of cases,” Romig said. “Way up the chain of command, they had to weigh some facts. It was an old case. Maybe the prosecutor didn’t have all the forensic evidence that you would like to have.”
Guter said commanders might have balked because a court-martial panel composed of combat veterans could be reluctant to imprison a young leader who cracked under pressure or made a mistake in the “fog of war.”
Yet Romig said it “still sticks out that you have a (reprimand) for what (investigators) said was two murders, and the only people who can tell you why they did that is the commanding general and the division (judge advocate general) — and they don’t have to tell you.”
Carl Prine is a staff writerfor Trib Total Media. He can be reached at 412-320-7826 or firstname.lastname@example.org.