Five questions might prove critical as Staff Sgt. Robert Bales’ pretrial hearing unfolds over the next two weeks:
1) What happened on the night of the killings, and what was Bales’ state of mind?
The murders in Kandahar’s Panjwai district cannot be called a “fog of war” situation in which innocents are killed because of battlefield confusion.
But witnesses might be able to give a fuller picture of the stresses and threats Bales faced at Combat Outpost Belambay. He was supporting Special Operation Forces while living near civilian villages in the Panjwai district of southern Afghanistan.
Last spring, defense attorney John Henry Browne described a variety of conditions that could have influenced his client’s behavior during his last deployment. Bales previously had suffered a head injury and possibly dealt with post-traumatic stress, for example.
His behavior also could have been altered by an anti-malaria drug soldiers often take. The Army accuses him of using steroids and drinking alcohol in Kandahar – two substances that can affect a person’s mood.
Defense attorneys said Browne can use the upcoming hearing to argue that Bales did not have control over his own actions on the night of the killings. That defense has been used in the past to limit punishment against soldiers convicted of crimes committed in war zones.
“If he had PTSD and one of the symptoms was he’s having delusions about what’s going on, then it can certainly be a defense,” said Colby Vokey, a retired Marines prosecutor.
2) How will the Afghan testimony play out?
Afghans testifying from Kandahar Air Field could appear in court at Joint Base Lewis-McChord through a live video feed with their faces obscured to protect their identities. Attorneys, reporters and the Army judicial officer overseeing the case likely will notice delays for interpreters and possible inconsistencies in translations.
So far, some witnesses to the Panjwai killings have told international media they saw multiple soldiers that night.
“It was not one person who did this. Other U.S forces were guarding outside our homes during the shooting,” one man who identified himself as a relative of the victims told Iran’s state-run Press TV in April.
Similar accounts have appeared in news stories by other organizations, but official Afghan and Army investigators have rejected the multiple-soldier description.
The confusion could play to the advantage of Bales’ defense team.
Vokey thinks the Army wants to obtain powerful testimony it can use at a court-martial if the Afghans are unavailable to travel to U.S. soil for the final part of Bales’ trial. In that case, Vokey said, Bales’ defense team would try to bar the Afghan testimony from being submitted at the soldier’s court-martial based on Bales’ Sixth Amendment right to confront witnesses against him in court.
Vokey has rarely seen Iraqi or Afghan witnesses appear at courts-martial.
Foreign witnesses “only become available when the government really, really, really wants them,” he said.
Dan Conway, a former Marine and now a veteran military defense attorney, sees a major opportunity for Bales’ team in speaking with the Afghans.
“You’re going to have witnesses who A) have credibility issues, and B) there are going to be language barriers that are going to create inconsistencies,” he said.
Potential credibility problems for an Afghan testifying in an American court-martial include a possible bias against American forces or a relationship with the U.S. government.
For instance, families of the massacre victims reportedly received $50,000 payments from the U.S. government, a financial relationship that could compromise their testimony.
3) Will Bales face the death penalty?
Recent history suggests the Army will not pursue capital punishment for crimes committed against foreign nationals in a war zone.
Today, six service members are on death row at Fort Leavenworth, Kan. All were convicted of killing other Americans.
By contrast, two soldiers convicted of notorious war crimes in Iraq and Afghanistan received life sentences.
One, former Pfc. Steven Dale Green, received a life sentence without parole for raping and killing a 14-year-old Iraqi girl, then leading a group of soldiers in killing her family, in 2006.
The other was former Staff Sgt. Calvin Gibbs of Lewis-McChord’s 5th Brigade, 2nd Infantry Division. He received a life sentence with an opportunity for parole last year when he was convicted of orchestrating the murders of three Afghan civilians in the Stryker “kill team” cases.
The military jury in that case did not believe Gibbs when he testified that the killings took place in combat, or sympathize with him when he said he had dehumanized Afghans in the war zone.
Bales’ prosecutors might return to their “kill team” playbook when they try Bales.
Gibbs “betrayed his oath. He betrayed his unit. And, with the flag of his nation blazoned across his chest thousands of miles from home, he betrayed his nation,” Maj. Robert Stelle said at Gibbs’ court-martial. Stelle is part of the Army’s prosecution team on the Bales case.
4) How did the Army gather evidence against Bales?
Browne has complained that the Army has been slow to provide physical evidence. He’ll have opportunities to question Army investigators over the next two weeks, raising questions about their work in a hostile part of Afghanistan and cross-examining them about their discussions with Bales.
He might be able to probe weaknesses in the government’s case that the defense could then use when and if Bales’ case appears before an Army judge at a court-martial.
“It’s tough to beat the house in these cases that are political, and this case is without question a political case,” Conway said. “Still, the (pretrial hearing) is a great chance for the defense to strike a blow.”
5) Will the lack of military experience among Bales’ lead defense attorneys help or hurt his case?
Bales hired Browne, a high-profile civilian lawyer from Seattle, rather than seek a defense attorney with more extensive experience working in the military justice system.
Browne brings certain advantages, such as a media-savvy personality that can shape perceptions about Bales and extensive experience defending clients in cases that attracted national attention. He also has experience in homicide cases in which the death penalty was on the line.
However, he does not have much experience in military courtrooms, a cultural difference that became evident in April when emails between Browne and Bales’ first military-appointed defense counsel were published by the Reuters news agency. The emails show Browne firing the well-regarded Army defense attorney over a rift in strategy.
Browne also does not have a security clearance, meaning he cannot view classified information. There could be significant classified information in this case because Bales was operating out of a Special Forces outpost when the massacre took place, and the Army could seek to shield secret surveillance tactics.
Browne can rely on members of his team, including a military-appointed defense attorney, who will be able to review the classified evidence.