Even so, it's hard to write off the killing of a
76-year-old man in a wheelchair or the calm execution of six children huddled
in a room as "the fog of war." No, it was a war crime, pure and simple.
But this wasn't ultimately a case of Marines protecting
their own and disregarding the lives of slain Iraqis. While some commanders in
Iraq were indeed callous about the attack early in the investigation, there was
eventually a real investigation and the filing of formal charges against eight
of the leaders and perpetrators.
Even though we now have a pretty good idea what happened
that day, it's incredibly hard to prove it in court without the active
cooperation of reliable witnesses. Alas, as the Associated
Press reports, "The prosecution was also hampered by squad mates who
acknowledged they had lied to investigators initially and later testified in
exchange for having their cases dropped, bringing into question their
credibility." And the few Iraqi survivors declined to testify, fearing for
While Wuterich admits to telling his men to "shoot first
and ask questions later," he claims "the intent wasn't that they would shoot
civilians, it was that they would not hesitate in the face of the enemy." While
that strains credulity, it opens room for reasonable doubt.
Sergeant Sanick Dela Cruz testified that Wuterich shot
people at close range and told him, "if anyone asks, the Iraqis were running
away from the car and the Iraqi army shot them." But, again, the fact that Cruz
himself admitted to taking part in the killings -- and urinated on the skull of
one of the dead Iraqis -- but was given immunity in exchange for his testimony
could surely have diminished his credibility.
In the end, then, prosecutors apparently reckoned that a
plea bargain to a relatively minor crime, but one that would end Wuterich's
Marine career in disgrace, was the best they could do.
Awis Fahmi Hussein, who survived the attacks, lamented, "I
was expecting that the American judiciary would sentence this person to life in
prison and that he would appear and confess in front of the whole world that he
committed this crime, so that America could show itself as democratic and
Unsatisfying as it seems, a democratic outcome is exactly
what we got. In an authoritarian society -- probably even in today's post-Saddam
Iraq -- governments will happily sentence citizens to jail to slake the public
thirst for justice. In a liberal democracy, however, we put a very high burden
on the state in taking away the liberty of a citizen accused of a crime.
Wuterich and several of his squad mates are almost
certainly guilty of war crimes. That he got such a light sentence and the
others got off Scot free will doubtless rub salt in the wounds of families who
sought justice, And this outcome may well harm America's image in a part of the
world where it is already poor. But, ultimately, preserving the fairness and
impartiality of the American legal system is more important, and we should be
glad that it won out. That's a painful and difficult compromise to make, but
the fact that it's difficult and it happened anyway is exactly why we should be
glad we live in a liberal democracy. If we were to lower the bar to make it
easier to convict those we "know" are guilty, we would also make it easier to
unjustly imprison the innocent.
From O.J. Simpson to Casey Anthony to the hundreds of
cases that don't garner national attention, the America court system routinely
exonerates people that "everyone knows" are guilty of murder. Even more
frequently, people accused of major crimes are allowed to plea down to lesser
ones when prosecutors fear they won't be able to convict or otherwise don't
want to risk going to trial.
That's not satisfying. It's probably not even justice. But
it beats the alternative.