- The Washington Times - Monday, June 12, 2006

Early in the film “Blazing Saddles,” Jim, the Gene Wilder character, explains to Sheriff Bart, played by Cleavon Little, why he is no longer the Waco Kid, fastest gun in the West. Like all classic gunfighters of the screen, Jim found himself dogged by other gunmen eager to make a reputation by defeating him.

Then one day he heard a voice behind him say “Draw, mister!” Jim drew his pistols and found himself facing a 6-year-old boy. In shock, the erstwhile Waco Kid threw his guns down, turned and walked away. At that point, the little boy shot Jim in the lower back. The incident reduced Jim to a shiftless inebriate. The viewer can readily understand Jim’s reaction: The thought of shooting a child would be devastating to most of us.

So what are we to make of the allegations about the killings in Haditha, Iraq? Of course, the investigation of the incident is just beginning and in many ways it is correct to withhold all judgment until the process is complete. But as the Pentagon has seen fit to require renewed ethics and morality training for coalition forces, the inescapable conclusion is that the intentional killing of civilians is incompatible with the values we are fighting for — that we have always fought for.

Unlike many of our adversaries, past and present, we have never endorsed the taking and execution of civilian hostages or the wanton slaughter of noncombatants. We cannot claim to be the shining light of the world if such conduct is tolerated. We must therefore determine the facts and proceed accordingly.

There are two observations which, I believe, are appropriate at this point. First, even assuming that the Marines involved committed the alleged acts, what is the proper charge? There has been considerable mention of murder as a possibility. Apart from treason, murder is the most heinous crime a member of our armed forces can commit. I am not an expert in military law, but in all likelihood the definition of murder under the Uniform Code of Military Justice is much like that under civil law. This I know a bit about.

Like all crimes, murder has a physical aspect or actus reas — the unlawful killing of a human being — and a mental aspect or mens rea — malice aforethought, a complex term which applies to a number of different situations. The simplest form of malice aforethought is simply the intent to kill. More serious is an escalated form of intentional murder — willful, deliberate, premeditated murder — which presupposes a well-thought out intent to kill, and if proven, results in first-degree rather than second-degree murder.

On the other hand, certain mitigating factors — like an unreasonable but sincere belief on the defendant’s part that he was acting in self-defense or the existence of extreme emotional distress, such as being struck a stunning blow — reduce intentional murder to voluntary manslaughter.

When I was a temporary Los Angeles County deputy district attorney trying juvenile cases, there was an extremely bright and competent judge who would never convict a minor of willful, deliberate, premeditated murder. His rationale was simple: Juveniles are too immature to deliberately premeditate.

It would be difficult to deny that the conditions in Iraq amount to an ongoing if not continuous state of extreme emotional stress for combat troops. This is not to justify or ignore the events suggested by the reports. We cannot condone or allow such conduct. But even if the allegations are true, murder would seem to be a stretch under the circumstances.

A second consideration is the effect that the severe punishment of those involved would have on the rest of those deployed. In the August issue of Combat Handguns, a magazine aimed at law enforcement, Massad Ayoob, a well-known lawman and gun expert, analyzed 22 cases in which police hesitated before firing their weapons — often resulting in dead cops. Such hesitation in life-threatening situations was due, in large measure, to officers’ fear of lawsuits or departmental discipline. As Mr. Ayoob noted: “When facing otherwise unstoppable humans intent on killing…hesitation in the use of deadly force will cause the death of the innocent, and the death of the protectors themselves.”

Again, we cannot and must not condone criminal actions on the part of our military. But in the extremely difficult conflict we now face, our pursuit of justice should include an attempt to comprehend the stresses our troops endure, and that pursuit must not add unnecessarily to that stress. It could result in hesitation, giving all of us a pain in the lower back.

Frederick Grab is a former California deputy attorney general.

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