Sunday, November 30, 2003

Standing on the SOFA 
A lot of folks would beat the Guardian over the head for the slanted reporting in this piece from the UK Guardian.

There’s a lot of ways to skin the cat. There’s no use in crying over ‘liberal-media-bias’ or ‘conservative-media-bias.’ The Guardian is what it is. So is the Wall Street Journal and the Washington Times.

I’m glad someone is looking at the way wrongful death claims are made. Rather than gripe about the unbalanced nature of the piece, I just wanted to add a bit of perspective to the reporting.

Iraqi courts, because of an order issued by the US-led authority in Baghdad in June, are forbidden from hearing cases against American soldiers or any other foreign troops or foreign officials in Iraq.

Those of you who are veterans or up on the basics of international law may remember something called the SOFA, or Status of Forces Agreement. In a nutshell, it’s a common practice for the U.S. to negotiate a treaty with the host nation to restrict their courts from hearing cases against American servicemen about acts committed in the line of duty. The idea is not to foster a climate of lawlessness among American servicemen, but to protect them from frivolous or politically motivated charges, and to ensure that our servicemembers receive the due process protections that defendants are entitled to under the American justice system, including the Uniform Code of Military Justice.

The order the reporter refers to, in effect, acts as a proxy for a SOFA agreement—which could not be negotiated in June, obviously, because there was no Iraqi authority to negotiate it with. But in practice, the restrictions placed on Iraqi courts from trying Americans are not dissimilar to SOFA agreements the U.S. has with governments such as Korea, Japan, the Philippines, and Turkey.

Protections are not as strong, obviously, for alleged crimes committed while off duty. If you’re an American and you’re out partying in Japan or Turkey off duty and you commit rape or murder, chances are you’re on your own. But there’s really no such thing as “off-duty and out on the town” in Iraq yet, so the ‘off-duty’ exception wouldn’t apply.

Nevertheless, the way this reporter frames it, you’d think this was some grand conspiracy to place American troops beyond the reach of the law. But consider the matter in light of the long precedent of Status of Forces Agreements, and you can see that protecting coalition soldiers from the excesses of a court system with no presumption of innocence, no tradition of due process, and no track record of preserving the rights of the accused, and no reliable prohibitions against torture, does not compromise the rule of law. It preserves it.

No American soldier has been prosecuted for illegally killing an Iraqi civilian and commanders refuse even to count the number of civilians killed or injured by their soldiers.

True as far as it goes. There are good reasons not to get wrapped up in counting the number of civilians killed or injured by Coalition soldiers. (I refer readers to my 20 November post "The Rhetoric of Body Counts" for more on that subject) But consider the burden of proof in a murder or manslaughter claim in an environment such as this. How hard could it be to establish ‘reasonable doubt’ about whether a soldier commits murder? How much vision and insight do they think a scared 20 year-old has in the electric rending of a second? I mean, even with the aid of computer technology, regression analysis, and Modern Portfolio Theory, and the luxury of oodles of time, Americans can’t even reliably select an index-beating mutual fund manager!

Looked at another way, Private Snuffy is doing a better job selecting his targets under fire than your overpaid broker is doing managing your money.

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