The U.S. Military and Due Process in Afghanistan

By Matthew Weybrecht
Tuesday, September 29, 2015, 7:54 AM

In August, Fox News reported that two Army soldiers, Captain Daniel Quinn and Sergeant First Class Charles Martland, faced repercussions for allegedly beating up an Afghan police commander accused of raping a boy and beating the boy’s mother in 2011. This past week, the New York Times ran a story describing the incident and citing sources who believe that the U.S. military encouraged troops to look the other way when confronted with allegations of sexual abuse by local police and military leaders. The Pentagon denied that any such policy existed.

While there are several political, moral, and legal issues here, I will focus on one—the extent to which U.S. troops should be permitted to take matters into their own hands in dealing with such allegations. Much of the reporting has centered on the two soldiers accused of beating up the Afghan commander, and the repercussions they faced as a result. The implication seems to be that because they were acting in defense of values we hold dear, the Army was wrong to punish them. Should the United States permit two of its soldiers to administer non-judicial physical punishment against an Afghan?

Through its investigation and subsequent punishment, the Army appears to have determined that the soldiers’ actions were impermissible, though it does not appear that either was subject to a court martial for assault. The commander of the soldiers’ unit said that U.S. forces have only the power to “report and…encourage [Afghans],” but not to use physical force to try to compel them. That is, since neither the United States nor NATO has any criminal jurisdiction in Afghanistan, troops are to rely on the Afghan government to prosecute and punish crimes. The soldiers accordingly received a reprimand from their commanding general, which took them to task for “behavior [that] is inexcusable and incompatible with the high standards of performance, military discipline and operational readiness of Special Forces.”

Many rationalize the soldiers’ actions by noting that the Afghan judicial system may not always administer justice. This is hardly a new or unique problem. Most U.S. military personnel who have spent any time in Iraq or Afghanistan can recall countless instances of detaining individuals who were accused of exploding car bombs in markets, killing U.S. troops, or conducting horrific sectarian killings. Almost all eventually had to be turned over to local authorities, where many were subsequently released either for lack of evidence or for political reasons. This lamentable reality did not give U.S. forces the right to beat detainees. (Currently, U.S. troops have no legal authority to arrest Afghan nationals under either the new NATO Status of Forces Agreement or the Afghanistan-United States Bilateral Security Agreement, both of which entered into force in January 2015.)

No doubt most Americans—especially those who have been deployed to Iraq or Afghanistan—can sympathize with Captain Quinn and Sergeant Martland. They were put in a vexing moral quandary, and they acted according to what they believed was right. Perhaps that is why they received only a reprimand and not a court martial for their alleged assault.

But it is worth noting that they were given the benefit of a full Army investigation before being reprimanded, i.e. they were given due process. The Army seems to be saying that its soldiers must also provide due process to Afghans accused of rape, even if that must be done in Afghan courts with dubious prospects for justice.