The murder of 16 civilians by an American soldier in Afghanistan is essentially an intractable problem that will get worse before it gets better. This isn’t like the burning of the Quran that recently inflamed tensions – clearly no one on the US side is going to do anything to justify the actions in any way whatsoever, and the individual involved will be proscuted with everything the Army can throw at him.

The hope is that the back lash against American and NATO forces will not be as severe as the riots surrounding the Quran burning- while it seems (and in fact, is) strange that the accidental destruction of a book might be less serious than the deliberate murder of 16 people, my sense is that this will be seen more as an isolated incident as opposed to a systematic attack on the Afghan culture/religion.

The real problem is that while I’m confident the Army justice system will treat and punish the soldier fairly, I don’t think that’s how it will play in Afghanistan. This MSNBC article does a great job of laying out the legal future of this case given the dearth of actual facts available, but the key takeaway is that a) The Army is going to try him (and not Afghans) b) the trial is going to take a long time and c) it will almost certainly involve psychological testimony and a plea of “Lack of mental responsibility,” the UCMJ’s equivalent of the insanity defense.

(a) will be upsetting to the Afghans, but won’t be a deal-breaker – and it’s pretty much mandated by the UCMJ, so no real questions there. (b) won’t make Afghanistan happy either, but again, there’s really no way around it, and I doubt it will be a deal-breaker.

(c) is where the problems set in. The real facts of the case are thin on the ground, so it’s way too early to speculate on what the actual psychological facts are, but for the purposes of argument, let’s say that he was, in fact, suffering from a “severe mental disease or defect and was unable to appreciate the nature…of his acts.” At that point, we’ve reached a nearly impassable moral quandry – on one hand, the law would mandate an acquittal on the grounds of insanity. On the other, I suspect that anything short of a life sentence will cause a huge uproar in Afghanistan and across the Muslim world.

It’s a difficult problem, and I pray that I am wrong in my analysis; that a path will be found that fulfills the needs of individual justice for the accused, the victims and the future of Afghanistan.


About thinklikeafox

I'm a Naval Officer living in Southern California. I hope to be attending law school in the next year or two, and I started writing this blog out of a desire to improve my writing and critical thinking skills after a couple years outside of academia.
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