United States of America v. Steven D. Green

Court	Court of Appeals for the Sixth Circuit, United States
Case number	09-6108/6123
Decision title	Opinion
Decision date	16 August 2011
Parties	United States of America Steven D. Green
Other names	Al-Mahmudiyah massacre Al-Janabi massacre
Categories	War crimes
Keywords	murder, Iraq, rape/sexual violence, war crimes
Links	Opinion, US Court of Appeals

Summary

Al-Mahmudiyah (Iraq), 12 March 2006: in the afternoon, US Army Sergeant Steven Green and members of his unit Paul Edward Cortez, James Paul Barker, Jesse Von-Hess Spielman and Bryan Lee Howard were playing cards and drinking whiskey at a traffic checkpoint, when Green stated that he wanted to kill some Iraqi civilians because of the deaths of several fellow infantrymen. After Green persisted, Barker eventually agreed to go along with Green’s plan, and he told Green that he knew a nearby house where an Iraqi man and three females (his wife and two daughters of 6 and 14 years old) lived. Barker also suggested that they have sex with one of those females. Green and Barker persuaded Cortez and Spielman to accompany them (pp. 2-3). They secretly left the compound, approached the house of the Al-Janabi family, killed the father, mother and youngest dauther and proceeded to gang-rape the other daughter, Abeer Qassim Hamsa. After this, they killed her as well and lit her body on fire.

The fire was discovered the next morning by civilians; it was reported to the US army compound and investigations were initiated. Although the initial outcome was that the perpetrators had probably been Iraqi counterinsurgents, rumours started spreading that US soldiers had raped and killed Iraqi civilians. Eventually, suspician fell on Green and consorts. barker, Cortez and Howard were tried by court martial where they pleaded guilty; they received prison sentences. Green, however, had been discharged from the army on 28 March 2006 due to a personality disorder. Hence he had to be tried by a civil court. The US District Court for the Western District of Kentucky sentenced him to life imprisonment. In appeal, this decision was upheld.

Procedural history

Steven Green had been discharged from the army for a psychiatric disorder before the charges were brought. As he was not a member of the armed forces, he appeared before a civilian court, the US District Court for the Western District of Kentucky, Paducah Division.

On 7 May 2009, the jury found him guilty of rape and murder (see also Jury Instructions). On 21 May 2009, Steven Green was spared the death penalty as the jury could not reach an unanimous agreement on the necessary penalty (see also Jury Instructions). As a result, Green received a life sentence without parole at formal sentencing on 4 September 2009.

Concerning the four other soldiers involved in the crimes, three pleaded guilty in court-martial proceedings: Spc. James P. Barker and Sgt. Paul E. Cortez were sentenced to 90 and 100 years respectively, while Pfc. Bryan L. Howard, who had prior knowledge of the plans, was sentenced to 27 months in jail. The fourth, Pfc. Jesse V. Spielman, was convicted by a military jury and sentenced to 110 years.

On 30 November 2009, Green filed an appeal with the US Court of Appeals for the Sixth Circuit, challenging the jurisdiction of the civilian district court (alleging he was never validly discharged from the Army) and the law used to convict him. See also:

US District Court Western District of Kentucky (Paducah) Criminal Docket
US District Court Western District of Kentucky (Paducah) Criminal Complaint, 30 June 2006; Memorandum opinion (jurisdiction), 26 August 2008; Proposed Penalty Phase Instructions for Capital Counts, 23 March 2009;
US Court of Appeals for the Sixth Circuit Brief of Appeal of the US, 25 February 2010; Reply Brief for Appellant, 15 March 2010

Related developments

On 18 February 2014, Green was found dead in his prison. He presumably committed suicide.

Legally relevant facts

In March 2006, four US soldiers gang-raped a young Iraqi girl and consequently killed her and her family in their house near the village of Al-Mahmudiyah, in the south of Baghdad, Iraq.

Core legal questions

Did the district court have jurisdiction to try Green?
Is the Military Extraterritorial Jurisdiction Act (MEJA) constitutional or does it violate the separation of powers and due process principles?

Specific legal rules and provisions

Paragraph 3261 of Title 18 of the US Code: Military Extraterritorial Jurisdiction Act.
Fifth and Fourteenth Amendment of the US Consititution.

Court's holding and analysis

The Court commenced with explaining the MEJA's purpose: due to court martial jurisdiction extending only to armed service members, "there was a “jurisdictional gap” that allowed exservicemembers to escape prosecution for crimes committed on foreign soil while a member of the Armed Forces"; "Congress passed MEJA to “close this gap"" (p. 8). The MEJA provides that for an exserviceman to be subject to prosecution, he must: (1) engage in conduct outside the United States; (2) that would constitute an offense punishable by imprisonment for more than one year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States; (3) while a member of the Armed Forces. Additionally, exservicemen cannot be prosecuted under the MEJA while being prosecuted by military prosecutors. Considering this issue, the Court noted that jurisdiction over a military person is (in principle) lost upon his discharge from the service. And in the case of Green, his discharge due to personality disorders "interfering with [his] ability to perform [his] duties and be a productive soldier" (p. 5) was valid since (1) he had received a valid discharge certificate; (2) he was provided with a final accounting of pay; and (3) a clearing process was conducted (p. 15).

On a sidenote, the Court remarked that Green could not have been tried by an Iraqi court due to a Coalition Provisional Authority order providing all coalition forces (US and UK) full immunity before them.

Concerning the constitutionality of the MEJA, the Court noted that - taking into account a tradition of judicial restraint - Green's separation of powers-argument required no in-depth decision since the Executive had no discretion whatsoever regarding the forum in which to prosecute a former member of the Armed Forces (p. 16). Green's argument that the government’s decision to prosecute him under MEJA in the civilian justice system while prosecuting his coconspirators under UCMJ in the military justice system deprived him of equal protection was correctly dismissed by the District Court, the Court found, since prosecutorial discretion to prosecute him before a federal instead of a state court did not offend equal protection (p. 17): he was treated neither intentionally differently from others similarly situated nor without rational basis (p. 18). And with regard to the argument that his right to due process had been violated, the Court found that Green had failed to demonstrate that his discharge from the army and prosecution under the MEJA "shocks the conscience or interferes with rights implicit in the concept of ordered liberty" (p. 21).

In conclusion, the Court held that the District Court had had jurisdiction to try Green indeed, and that the law on which Green’s conviction was based, was not unconstitutional. The earlier decision of the District Court was affirmed