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Spilling Blood: Two Sentences

by CHRISTOPHER BRAUCHLI

It’s no good comparing one criminal sentence with another criminal sentence. After all, there are different facts and circumstances involved in each case and what may appear to be quite a serious offense when viewed in the abstract is not so serious when viewed within the particulars of a given situation. And the fact that two widely disparate sentences were imposed simultaneously in two courts separated by thousands of miles does not prove much of anything.

On January 23 Thomas McAvoy, a judge of the United States District Court in New York State sentenced Daniel J. Burns to 6 months in jail and imposed a $958 fine for destruction of government property and a $250 fine for contempt of court. Mr. Burns and three others known as the “St. Patrick’s Day Four” had broken the law by entering a military recruiting center in upper New York state in 2003 to protest the impending invasion of Iraq. Their protest consisted of spilling vials of their own blood on the American flag and the walls and windows of the recruiting center. No one was killed or wounded in the invasion. There was minor property damage.

In sentencing Mr. Burns to six months in jail the judge said: “You have obvious contempt for the laws of the U.S. and it bothers me.” (It is a lucky thing for George Bush that it wasn’t he in front of the judge charged with breaking the law by spying on U.S. citizens in violation of the law. The judge might have imposed a sentence even longer than six months for that behavior which is undeniably worse than what the St. Patrick’s Day Four did.)

On the same day Mr. Burns was sentenced, another sentencing was taking place at Fort Carson near Colorado Springs, Colorado. Like Mr. Burns, Chief Warrant Officer Lewis Welshofer Jr. was charged with spilling blood. In his case it was figurative rather than literal.

Mr. Welshofer was an army interrogator in Iraq. Entrusted to his custody for interrogation was Iraqi Maj. Gen. Abed Hamed Mowhoush who had reportedly turned himself in to the occupying forces in hopes of securing the release of or at least seeing, his four sons. Neither happened. Instead, 16 days later he was accidentally dead.

While in captivity he was interrogated by the Americans. One of the interrogators was Mr. Welshofer. In the course of the interrogation Mr. Welshofer thought it might be helpful if the General were placed in a sleeping bag head first and the bag then tied with electrical tape. He proceeded to stuff the general into the bag. Having accomplished that and in need of rest after his exertion, Mr. Welshofer sat on the sleeping bag and placed his hand over the general’s mouth. The general, already weakened from 16 days of aggressive questioning, found that treatment unbearable. He died.

Mr. Welshofer was probably distressed since once the general was dead he could no longer be questioned. Mr. Welshofer’s superiors were distressed because they knew that when word got out that an Iraqi general had been killed, albeit inadvertently and therefore innocently, it would nonetheless look to the outside world as if George Bush sponsored murder. To fend off any accusations that that sort of conduct was approved by the military, the military courageously charged Mr. Welshofer with murder, assault and willful dereliction of duty.

Those charges probably made Mr. Welshofer very nervous. He probably remembered the sentences that were imposed on Pfc. Lynndie England and Charles Graner of Abu Ghraib fame, who received long prison terms for treating prisoners in a manner that, though degrading, was not fatal to those entrusted to their care. He needn’t have been nervous.

A military jury in Ft. Carson found Mr. Welshofer guilty of negligent homicide and negligent dereliction of duty. That was not the best news. The best news was that unlike England and Graner, he received no prison time. Instead he was fined $6000 and restricted to his workplace, barracks and church for 60 days.

CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be reached at: Brauchli.56@post.harvard.edu. Visit his website: http://hraos.com/

 

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