Crimes by Soldiers: Military v. Civilian Prosecutions

In a highly-publicized case, United States v. Green, (available here), a former U.S. Army infantryman was convicted by a jury and given five consecutive life sentences for a number of crimes, including murder and sexual assault. Four co-defendants were convicted by the U.S. Army, court-martialed, given much lower sentences, and will be up for parole in a few years.

The Army had no authority to prosecute Green because he was no longer a soldier, and the general federal criminal statutes do not extend to his conduct overseas. Thus, civilian prosecutors charged him under the Military Extraterritorial Jurisdiction Act (18 U.S.C. § 3261) for his role in the crimes committed against an Iraqi family. “For many years there was a “jurisdictional gap” that allowed ex-servicemembers to escape prosecution for crimes committed on foreign soil while a member of the Armed Forces. In 2000, Congress passed MEJA to close this gap.”

The Sixth Circuit found the district court had jurisdiction to try Green under MEJA because he had been validly discharged from the Army, and that MEJA is constitutional because it does not violate the separation-of- powers principle or the nondelegation doctrine, equal protection, or due process. The Sixth Circuit partly places blame for this crime onto military leadership:
"We will never know the whole story of why Green and his fellow infantrymen went crazy on the afternoon of March 12, 2006. These events are, in part, a leadership failure but nonetheless a blot on the storied honor of the famed Screaming Eagles of World War II, Vietnam, and the first days of the invasion of Iraq and the one million men and women who have served in the 101st [Airborne]."

Concurring Judge Thapar took issue with this commentary, stating, “I concur in majority’s thorough opinion with one exception. Having never served in the military, I do no feel qualified to criticize the Army’s recruitment and leadership practices.”

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