Any many of you already know, the Pentagon has been investigating the deaths of 28 detainees from our wars.  13 prisoners died while in our custody and another 15 while being captured.

This morning’s NY times reveals that we will not be prosecuting 17 of about three dozen G.I.s who are thought to be responsible.

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.

This is a blatant failure to account for abuses which occurred on our watch.
It can have further political implications, in the Iraqi and beyond.  Likely it is an attempt to avoid highlighting the fact that responsibility for these deaths lie higher up in the command structure due to poor training and systemic problems with our military.

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.

The first reason implies that “lawful applications of force” are excessive and that the law should be narrowed to prevent soldiers from killing our prisoners.  This sounds like it might not even pass the “Gonzales test” for torture as the prisoner did suffer permanent physical harm.  This lies at the feet of the people ordering such force, and those who designed the laws.

Soldiers who are not “well informed of the rules of engagement” should not be allowed near the prisoners and probably should not be in the war zone at all if such ignorance extends to other areas.  This is the fault of the pentagon who sent him into danger without adequate training.

I don’t like involving politics in criminal trials, and I tend to err on the side of the accused, but when we fail to prosecute people involved in the death of prisoners of war (acknowledged or not) it is a political issue.  In part because these investigations are internal military matters and it appears that we don’t concern ourselves with the lives of non-Americans.

More importantly, there is significant potential for abuse.  If it appears that the trial would expose fact that are inconvenient to the Pentagon or the administration then the trial can be stopped before it is started with minimal consequences.

Those cases which have been dismissed for anything other than lack of evidence should provoke an investigation into Pentagon policy.  Who assigned untrained troops to watch our prisoners, those people are guilty of murder.  Who wrote the rules that allow us to kill prisoners with legal applications of force?  Those rules need to be changed.  The accused G.I.s should now be witnesses against their superiors.  Those investigations should not be closed.

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