As Iraq rape trial begins, attorneys attack law

Tuesday, April 7, 2009
This photo provided by the Mecklenburg County Sheriff's Office, shows Steven Dale Green in a booking mug shot at the Mecklenburg County jail in Charlotte, N.C., July 3, 2006. Jury selection has begun in Kentucky for the trial of the former Fort Campbell soldier charged with crimes that include killing a family in Iraq and raping a teenage girl who was among those killed. (AP Photo/Mecklenburg County Sheriff's Office)

PADUCAH, Ky. -- The first former Army soldier to be charged as a civilian under a 2000 law that allows him to be prosecuted for alleged crimes committed overseas faces a trial of his peers -- in a federal courtroom in Kentucky.

Steven Dale Green, a former member of the 101st Airborne Division, was accused along with four fellow soldiers of raping a 14-year-old girl and killing her and her family in Mahmoudiya, Iraq, but he won't face an Iraqi or military jury.

Instead, Green will face jurors in Paducah, more than 6,700 miles away, under the Military Extraterritorial Jurisdiction Act. Jury selection started Monday morning.

Congress passed the law in 2000 to allow U.S. authorities to prosecute former military personnel for crimes committed overseas. The law specifically cites a "jurisdictional gap" that leaves perpetrators unpunished for crimes by Americans occurring in countries that won't prosecute them or that the U.S. is unable to investigate or prosecute.

Law draws fire

The use of the law against Green, who faces 17 charges including murder and sexual assault, has drawn fire from his attorneys as well as the attorney for a former Marine who was tried under the law.

They argue the law wasn't intended for defendants like Green, who left the Army before his co-defendants faced courts-martial.

"The law wasn't designed to do what it's doing to Green," said Darren Wolff, a former military lawyer who represents Green.

But one proponent of the law disagrees and said the law is functioning as it should.

"Congress seems to have envisioned someone just like him," said Scott Silliman, Executive Director of the Center on Law, Ethics and National Security at Duke University in Durham, N.C.

Opening arguments in the case are scheduled to begin April 27. During jury selection Monday, U.S. District Judge Thomas B. Russell told potential jurors the trial is expected to last three to six weeks. Russell also told jurors the alleged crime took place in Iraq and explained the circumstances of Green's arrest.

Green, with a military-style crew cut but dressed in civilian clothes, appeared in court Monday, but left before the first prospective jurors entered the room.

As attorneys questioned jurors in Paducah, some Mahmoudiya residents were reading the London-based Al-Sharq Al-Awsat daily newspaper, which carried news of the case.

"A US soldier faces death penalty," said one headline.

"We don't want only this American soldier to be hanged," said Shihab Ahmed, a relative of the raped girl. "We want more than him to be executed. And any American soldier who abuses any Iraqi citizen should be hanged and executed."

Green, 22, of Midland, Texas, and four other soldiers with the 1st Battalion, 502nd Infantry Regiment based at Fort Campbell, Ky., were investigated after an Iraqi girl, Abeer Qassim al-Janabi, was raped and her body set afire. Her family was also killed on March 12, 2006.

By the time the Army pressed charges in June 2006, Green had been honorably discharged with a personality disorder and returned to the U.S. The other four soldiers were charged under the Uniform Code of Military Justice and each faced a court martial. Three pleaded guilty and a jury convicted one. They received sentences ranging from five years to 110 based on their acknowledged roles in the attack.

Assistant U.S. Attorney Marisa Ford, who is prosecuting the case, said at least three of those soldiers as well as members of the slain girl's surviving family may be called as witnesses in the case.

But, because Green had been discharged -- and the military refused to allow him to re-enlist -- federal prosecutors filed an indictment against Green, charging him with conspiracy, murder and sexual assault.

Wolff said the law as written treats Green differently from his alleged co-conspirators, all of whom faced military juries and none of whom faced the death penalty.

Most civilian juries do not consist of people who have seen combat and can assess a soldier's actions based in part on their own experience, Wolff said.

That issue, said attorney Joe Preis, was central to the case of his client, former Marine Jose Luis Nazario Jr.

Nazario was charged under the law after Green, but went to trial first.

A civilian jury in Riverside, Calif., acquitted Nazario of voluntary manslaughter, assault with a deadly weapon and discharging a firearm during a crime of violence. Prosecutors said he was part of a group of Marines who killed an unarmed detainee after a group of men was captured in a house in Fallujah during a lull in a fierce battle.

Preis said jurors seemed to be uneasy with second-guessing battlefield decisions. Preis, one of three attorneys who represented Nazario, said the law needs to be changed.

"This type of prosecution isn't what the law was intended to do," Preis said.

It's a concern Wolff has in Green's case.

"There's so much more that goes into understanding the situation," Wolff said. "How can they accurately get the impression of a battlefield in Paducah?"

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