Service members involved in the bombing of a Doctors Without Borders hospital in Kunduz, Afghanistan, probably won’t serve jail time, military legal experts predict, though career-ending administrative punishment is possible.
The airstrike, involving a U.S. AC-130 gunship, killed 22 medical staff and patients, including three children. U.S. forces conducted the attack to protect Afghan personnel under enemy fire, despite the fact that the medical aid group said it had provided the GPS coordinates of the hospital to U.S. and Afghan military personnel.
While the U.S. has already publicly accepted responsibility and apologized for the bombing, an official report to confirm civilian casualties and assign blame to the U.S. is expected this week. A more detailed report, which will look at who specifically should be held accountable, is expected in a couple weeks, Capt. Jeff Davis, Pentagon spokesman, said Monday.
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That longer report will include recommendations on possible punishments for those involved, though any final decision on nonjudicial punishment or bringing formal charges is made by a convening authority, said Gary Solis, an adjunct professor at Georgetown Law School and a retired Marine Corps judge.
Daniel Conway, a New Hampshire-based military lawyer and former Marine, said the bombing was likely a result of “a horrible mistake, probably a negligent mistake” that could have troops facing administrative actions ranging from nonjudicial punishment to paying fines to having to defend why they still belong in the military at a “show cause” board. Usually, leaders are also relieved of command in incidents like this, he said.
“This to me seems certain to end some careers,” he told the Washington Examiner.
Any administrative punishment in this case could fall under dereliction of duty, or not doing something a service member should have known enough to do, such as following up on what was at the target location or double-checking the coordinates, Conway said.
Solis said an officer could also be charged with failure to obey a lawful order, such as the militarywide one to not bomb buildings like churches and hospitals. Despite Doctors Without Borders calling the strikes a war crime, Solis said U.S. troops are charged with articles of the Uniform Code of Military Justice, not war crimes.
In the worst-case scenario, someone found responsible for the bombing could be charged with negligent manslaughter, Solis said, which carries a maximum punishment of a dishonorable discharge, forfeiture of all pay and three years’ confinement.
But Solis said it’s unlikely anyone will be charged. In fact, he predicted no one would even be forced out of the military over the strikes.
“I don’t think anyone is going to be relieved or kicked out. I think the report is going to conclude it was all a very tragic accident, which I think it was,” he said.
Solis said that, if a decision had to be made today on whether to bring charges, the military may be eager to make an example to quell the public outcry, just as he said officers are doing in recent sexual assault cases as it becomes a hot-button issue for the country.
“But it’s going to come up in a year, nobody will remember 22 dead patients and doctors,” he said. “Time is going to blunt the public anger over this incident.”
The high number of people involved in approving and carrying out targeting decisions could also make it difficult to blame a single person and hold him or her accountable, Conway said.
Both experts said they do not expect the incident to result in any jail time or a court-martial, another name for a military trial.
Any legal implications will look not at the outcome, which everyone agrees is a tragic, regrettable mistake, but at the information and thought process used by those who ordered the strike, Conway said.
“The bottom line is somebody exercised terrible judgment, we need to know who and why,” he said. “Sometimes there’s a temptation to be an armchair quarterback and to second-guess judgment after the fact, but that’s not always how the law analyzes it. You want to look at if decision-making process was sound rather than second-guess the outcome.”
Two cases from the 1990s may offer some precedent, the lawyers said. In both cases, the officers faced charges, but were acquitted at court-martial.
In the first, Marine Capt. Richard Ashby was found not guilty after being charged with 20 counts of involuntary manslaughter in addition to other charges after his aircraft cut the cable to an Italian ski gondola during a training flight, killing 20 people. While prosecutors argued he was flying recklessly, his defense said the military’s map did not show the ski lift and that some equipment in the jet wasn’t working properly, according to a Washington Post report.
The second case saw Air Force Capt. Jim Wong go free after playing a role in the friendly fire on two Army helicopters over Iraq that killed 26 people, according to the New York Times. Wang was in charge of a radar system, called the Airborne Warning and Control System, and failed to let two U.S. F-15C pilots know they had misidentified the two U.S. helos as Iraqi aircraft.
