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Shared Mission to Pardon U.S. Soldiers Who Killed Civilians

An unusual coalition of largely older and conservative former military men and younger, left-leaning law students are waging a joint campaign for one of the most unlikely causes: clemency for troops convicted of killing civilians in Iraq and Afghanistan.

They want to push President Obama to reduce sentences and grant pardons for seven convicted war criminals, ranging from a private who followed an order to shoot unarmed detainees, to the more well-known case of Robert Bales, an Army staff sergeant sentenced to life in prison without parole for the murder of 16 Afghan civilians in 2012.

The campaign started with Herbert Donahue, a retired Marine Corps major, and his tiny organization called United American Patriots, tucked in a quiet office park here.

Mr. Donahue says he was called to his work by his own war experience. In 44 months in Vietnam as a Marine rifleman, he was shot twice, bloodied by a mortar shell and had most of his teeth smashed out in a helicopter crash. But he declined three Purple Hearts because anyone formally recognized for being wounded that often was sent home from the war zone.

"I know what combat is, I've seen the beast a thousand times," Mr. Donahue, 72, said as he looked at the Silver Star, Bronze Star and other military honors on his office wall. "It can be real murky. Sometimes, you don't have the luxury of making a moral decision."

Recently, he gained an unexpected ally. A team of University of Chicago Law School students formed a group focused on helping convicted troops, called the Combat Clemency Project.

"I don't pretend to know anything about the military; for me it is about mercy," said Eamonn Hart, 29, a third-year law student who was raised by what he called "lefty, '60s activist parents" who took him to protests of the invasion of Iraq. The students are focusing on the mental health conditions of those convicted and other mitigating circumstances.

For 10 years, Mr. Donahue had become accustomed to working largely alone. United American Patriots has paid for lawyers, family visits and other support, arguing that troops under intense pressure in combat zones are often unfairly judged and given harsh sentences because the public has sanitized and unrealistic expectations of war.

Few military colleagues have backed Mr. Donahue and some have openly called him a traitor. The public response to donation requests had been so cool that at one point Mr. Donahue mortgaged his house to keep the operation going. But in 2015 the lawyer of one of the soldiers contacted the University of Chicago, and sparked the interest of students in the legal aid clinic, who then reached out to Mr. Donahue. "I didn't think much of it when they first called me, because they are just a bunch of damn liberals," he said. "But I have to commend the students, they have gone above and beyond."

This spring, one of the students, Mr. Hart, submitted a clemency petition for Corey Clagett, a former Army private who pleaded guilty to shooting two unarmed detainees in Iraq in 2006 -- killings that an Army investigation found were ordered by Mr. Clagett's staff sergeant. The staff sergeant, Raymond Girouard, was also convicted in the killings, but his case was dismissed on appeal. He was given back pay and discharged under honorable conditions after serving three and a half years in prison. Mr. Clagett was sentenced to 18 years.

As part of the project, United American Patriots paid for Mr. Hart and other students to fly to Fort Leavenworth, Kan., to interview the prisoners. "Before that, I didn't understand how confusing things were on the ground in Iraq, how arbitrary the brutality was," Mr. Hart said.

The students and United American Patriots approach the issue differently. United American Patriots says troops sometimes are held to unfair standards by senior officers who know little about combat.

"In Vietnam I was supposed to radio in to ask permission every time I opened fire, but there wasn't time," Mr. Donahue said. "So after my second patrol, I never called back to request permission until I was sitting on a mountain of bodies. Today, you couldn't do that. It's gotten so a guy has to have a lawyer in the foxhole next to him. If I had it the way guys do today, I'd have been court-martialed a thousand times."

The law school group, led by Mark Heyrman of the school's legal aid clinic, is reluctant to embrace that argument and is looking instead toward issues like mental health. "We agree on the bottom line, that soldiers are being excessively punished," Mr. Heyrman said. "The concern is that United American Patriots are trying to say we should go back to the way we did it in Vietnam. I don't know if that is a winning public message." Mr. Heyrman, who worked with Mr. Obama when he was a law professor at the University of Chicago, said he doubted that argument would work with the president.

For both groups mercy has its limits. They chose not to be advocates of troops convicted of premeditated crimes that combined rape and murder. But after some debate they decided to urge leniency for Mr. Bales despite his guilty plea to 16 killings in a small village.

"Friends of mine pushed back saying, 'How can you represent this guy when there are innocent people who could use your help?' I have honestly questioned my own involvement," said Michael Lockman, 31, a law student who wrote the clemency petition for Mr. Bales. "But when you really start to learn about some of these cases, there is a clear case for mercy. The man had clear mental health issues the Army knew about but chose to ignore. There is shared responsibility for his crime."

The Army determined the sergeant had post-traumatic stress disorder and a traumatic brain injury after his third combat deployment in 2010, then deployed him to Afghanistan where his symptoms worsened and he massacred villagers he suspected of harboring insurgents. Mr. Lockman is asking the president to reduce Mr. Bales's sentence to 100 years, which would make him eligible for parole in 2023.

Both Mr. Donahue and the students admit the push is a long shot. Few in the public appear to support revisiting cases in which troops killed unarmed civilians. A petition the students created seeking 100,000 signatures has so far garnered only about 2,100. And Mr. Obama has given no indication he considers the sentences unjust.

Even so, there is some precedent for reducing military sentences. After World War II, the War Department set up a clemency board that commuted sentences in 85 percent of thousands of serious cases it reviewed from the war. During Vietnam, a number of young men sentenced to life in prison for killings later had their sentences reduced to only a few years by similar boards.

Even the most notorious massacre of Vietnam, in the village of My Lai, prompted calls for forgiveness from the American public for Lt. William Calley, the 24-year-old who was sentenced to life in prison for ordering the killings (the only one of the 26 soldiers and officers charged who was convicted). Telegrams sent to the White House urging clemency outnumbered those opposing it by a ratio of 100 to 1, and supporters on both sides of the debate over the war staged sympathy marches and other protests across the country.

"It's too bad that one man is being made to pay for the brutality of the whole war," Benjamin Spock, the famous pediatrician turned war protester, said at the time.

In response, President Richard M. Nixon moved the lieutenant from prison to house arrest pending a review of the case. The secretary of the Army reduced Lieutenant Calley's sentence to 10 years, and he was paroled after three. In all, he spent only a few weeks behind bars.

That there is not the same broad outcry for the release of troops convicted of murder today is in part a mark of progress, said Gary Solis, a former Marine Corps prosecutor who teaches the law of military conflict at George Washington University. "The public doesn't see it as an issue because we don't have the number of crimes we did in Vietnam, and the crimes aren't as bad," he said. "We have much better training and a much better force."

Though the Pentagon does not keep count of cases that could be considered war crimes, he said, Iraq and Afghanistan produced only a few dozen cases that might qualify, while Vietnam led to hundreds.

Even so, the vexing nature of a war in which the enemy is hard to identify can turn snap misjudgments of well-trained troops into harsh sentences, the students said. Sgt. Derrick Miller, a National Guard soldier with exemplary performance reviews, has served four years of a life sentence for shooting an Afghan civilian he believed was an insurgent. During his third combat deployment, Sergeant Miller became suspicious of a civilian who entered his base saying he was there to do repairs. Fearing an attack, he interrogated the man. Sergeant Miller was convicted of putting a gun to the man's head when he considered his story to be inconsistent, telling him to tell the truth, then shooting him.

"He killed someone. I don't want to minimize that; what he did was wrong," said Kayla Gamin, 29, a third-year law student who wrote a clemency petition asking that the soldier's premeditated murder conviction be reduced to voluntary manslaughter, which would make him eligible for parole. "But given the confusion, maybe his actions were understandable. I think he was sincerely trying to protect his men. Should that kind of person spend his life in prison?"

In March, Mr. Clagett, the former Army private, was released on parole after 10 years, in large part because United American Patriots paid for a private lawyer. The day he got out of prison, United American Patriots offered him a job. "I do mostly outreach, tell my story," Mr. Clagett said on a recent afternoon as he moved into his new office. "I let people know these things aren't always clear-cut, and often it's the lowest-ranking guy who gets blamed."

[Source: By Dave Philipps, The New York Times, Kernersville, N.C., 19May16]

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small logoThis document has been published on 23May16 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.