Published March 23, 2012
Charges filed Friday against Army Staff Sgt. Robert Bales reflect the horror of the crime: 17 counts of premeditated murder, more than half of them children, during a shooting rampage in southern Afghanistan. But while Afghans are calling for swift and severe punishment, it probably will be months, even years, before the public ever gets to see Bales in a courtroom.
One only has to look at two recent and similarly high-profile cases to see that the wheels of military justice turn slowly.
It has been nearly 29 months since an Army psychiatrist, Maj. Nidal Hasan, allegedly killed 13 and injured two dozen more at Fort Hood, Texas. His trial is scheduled to begin in June. And it has been 21 months since the military charged intelligence analyst Bradley Manning with leaking hundreds of thousands of pages of classified information. It took nine months before he was deemed competent to stand trial.
The Bales case probably will be equally complex, involving questions of his mental state and the role that the stresses of war and possible previous head injuries may have played in his alleged actions. Most of the eyewitnesses are the Afghan villagers and survivors who may be brought in for the trial.
The military charged Bales Friday with 17 counts of murder, six counts of attempted murder and six counts of assault in the March 11 pre-dawn massacre in two southern Afghanistan villages near his base. The father of two from Lake Tapps, Washington, was officially informed of the 29 charges just before noon at the U.S. military prison at Fort Leavenworth, Kansas, where he is confined.
The maximum punishment for a premeditated murder conviction is death, dishonorable discharge from the armed forces, reduction to the lowest enlisted grade and total forfeiture of pay and allowances, according to Col. Gary Kolb, a spokesman for U.S. forces in Afghanistan. The mandatory minimum sentence is life imprisonment with the chance of parole.
The charges offered few details of what happened that night. But the 38-year-old soldier is accused of walking off his base with his 9mm pistol and M-4 rifle, which was outfitted with a grenade launcher, killing four men, four women, two boys and seven girls and burning some of the bodies. The ages of the children were not disclosed.
In the most detailed descriptions of the shootings to date, the charges say Bales shot a young girl in the head, a young boy in the thigh, a man in the neck and a woman in the chest and groin. The documents also say that he "shot at" another girl and boy, but apparently did not hit them.
The attack occurred in the Panjwai district of Kandahar Province, the spiritual birthplace of the Taliban. The dead bodies were found in Balandi and Alkozai villages, one north and one south of the base.
Members of the Afghan delegation investigating the killings said one Afghan guard working from midnight to 2 a.m. saw a U.S. soldier return to the base around 1:30 a.m. Another Afghan soldier who replaced the first and worked until 4 a.m. said he saw a U.S. soldier leaving the base at 2:30 a.m. It is unknown whether the Afghan guards saw the same U.S. soldier. If the gunman acted alone, information from the Afghan guards would suggest that he returned to base in between the shooting rampages.
It also is not known whether the suspect used grenades, Kolb said. The grenade launcher attachment is added to the standard issue M-4 rifle for some soldiers but not all, he said. Bales was assigned to provide force protection at the base.
The case against him is the worst allegation of killing of civilians by an American in Afghanistan and has severely strained U.S.-Afghan ties at a critical time in the decade-old war.
Not addressed in the charges are suggestions that Bales may have been drinking. On Friday, a senior U.S. defense official said Bales was drinking in the hours before the attack on Afghan villagers, violating a U.S. military order banning alcohol in war zones. The official spoke on condition of anonymity to discuss the charges before they were filed.
U.S. officials, however, have said that additional charges could be filed as time goes on. Bales' civilian attorney, John Henry Browne, said Friday the government will have a hard time proving its case, and his client's mental state will be an important issue. Bales was on his fourth tour of duty, having served three tours in Iraq, where he suffered head and foot injuries.
The charges set in motion what is likely to be a lengthy military justice process.
"Usually in military and civilian criminal cases, delay accrues to the benefit of the accused. So there will be some maneuvering to put it off a while," said Gary Solis, retired Marine prosecutor and adjunct law professor at Georgetown University. "I think it's many months before we're going to see this thing go to trial, if it ever goes to trial."
Bales may face what the military calls a "sanity board," to determine his mental state at the time, and whether he is competent to stand trial.
Since Bales was assigned to a unit based at Joint Base Lewis-McChord in Washington state -- 2nd Battalion, 3rd Infantry Regiment of the 3rd Stryker Brigade Combat Team of the 2nd Infantry Division, the charges were sent Friday to a special court-martial convening authority, the 17th Fires Brigade, an artillery unit at the post. Lewis-McChord spokesman Lt. Col. Gary Dangerfield said officials at the post will have the legal responsibility of trying and managing the case against Bales, but it was not clear where the proceedings would take place.
Maj. Christopher Ophardt at Lewis-McChord said the preliminary hearing may not take place for a few months and it probably would be several more months after that before a trial would begin, perhaps two years from now depending on motions and other pretrial actions.
Jeffrey Addicott, who previously served as the senior legal adviser to the U.S. Army's Special Forces, said the military justice system typically moves faster than civilian courts. But he said the international political implications may cause this case to drag on for years.
"When we have these high-publicity cases, the military becomes like a deer in the headlights. They have just one speed: extremely slow," Addicott said, adding that he expects the defense team to use all tactics to slow the process.
According to military lawyers and experts, now that the charges have been filed, the next step is for the military is to decide whether there is enough evidence to refer the charges to a preliminary hearing. That hearing, what the military calls an Article 32, would determine whether there is probable cause to believe a crime was committed and that the person charged did it.
Once the Article 32 is over, the hearing officer recommends to a general officer whether the case should go to trial. That general officer then decides whether the case should go to a court-martial in front of a military judge.
Throughout the proceedings, the lawyers will be able to file a wide range of motions, including requests for more time to review evidence.
Browne said he thinks the U.S. government will have difficulty proving its case against Bales because "there is no crime scene" and a lack of important physical evidence like fingerprints. Browne also has said he wants to visit Afghanistan.
Prosecutors, meanwhile, will rely on evidence collected from the villages, including any statements by witnesses and Afghan civilians who were injured that night, as well as any observations by other soldiers about Bales' conduct and his movement on or off the base.
Two military defense attorneys also have been assigned to his case.
Ophardt said Bales' family is still living on base but has the option of moving off at any time.