Charges in Afghan Shooting Will Be Start of Long Legal Journey

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The army's prosecution of Staff Sgt. Robert Bales will last long after U.S. troops are withdrawn.

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Staff Sgt. Robert Bales (left) / AP Photo/DVIDS, Spc. Ryan Hallock

The Army's decision to formally charge Staff Sgt. Robert Bales with 17 counts of homicide for his alleged role in a mass shooting in southern Afghanistan will mark the start of a long legal process that is virtually certain to continue long after U.S. troops have withdrawn from the country.

Army prosecutors will charge Bales with the 17 counts of homicide on Friday, according to a U.S. official. The full charge sheet is virtually certain to also include an array of other charges, including attempted murder, assault, and dereliction of duty. Bales is the sole suspect in the crime; if convicted, he could face the death penalty.

The charges begin what is likely to be a long and complex trial. Military officials believe they have a strong case, pointing to surveillance videotape which they say shows Bales leaving the base shortly before the shootings and returning not long afterwards. Senior military officials say Bales turned himself in after returning to the base and surrendered his weapon. They believe, in the words of one military official, that he simply "snapped."

Bales's family is fighting back hard. They've hired a high-profile criminal defense attorney, John Henry Browne, who has said he plans to mount an aggressive defense. Browne has challenged the military's account of what took place that bloody night and argued that there may not be forensic evidence definitively linking his client to the crime. He has also indicated that he might mount an insanity defense tied to a brain injury Bales is said to have received during an earlier tour in Iraq. A spokeswoman for the attorney said they have not yet received any formal notification of the pending charges as of Thursday evening.

Afghans have demanded Bales be tried in Afghanistan, but the military has already made clear that the suspect -- currently being held at the maximum-security facility at Kansas's Fort Leavenworth -- is virtually certain to be tried here.

The legal proceedings to come will be largely governed by the Uniform Code of Military Justice. After the charges are "preferred" on Friday, the military will hold an Article 32 pretrial hearing designed to convince a higher-ranking officer to recommend a full court martial. If such a recommendation is made, military lawyers will also lay out whether or not they want to seek the death penalty. The court-martial trial itself -- which could take anywhere from several months to several years -- will first determine Bales's guilt or innocence and then decide on his sentence.

Any verdict could be appealed within both the military legal system and the civilian one, a process that could add additional years of wrangling. Browne could argue that Bales was insane or that the trial was tainted by "undue command influence" or remarks from higher-ranking officials like Defense Secretary Leon Panetta that could have influenced the proceedings. Those defenses may not be enough to earn a non-guilty verdict, but they could preclude Bales from receiving the death penalty.

Either way, the case will take years to unwind. Browne has said he may travel to Afghanistan to interview witnesses and family members of the dead. He may also move to have them brought to the U.S. to testify at the eventual trial. Sgt. Hasan Akbar, who was convicted of the murders of two fellow troops and sentenced to death in 2006, is still languishing on death row. The last soldier executed was put to death in 1961, a half-century ago.

Bales's trial may be just getting under way as tens of thousands of U.S. troops begin streaming out of Afghanistan. That would make the case an unwelcome and unwanted coda to a long and unpopular war.

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Yochi J. Dreazen

Yochi Dreazen is writer-in-residence at the Center for a New American Security and a contributing editor for The Atlantic.

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