Who’s to blame when an injured soldier kills civilians?
“It would probably be best for the military if they could execute Bales right now and send his pieces to Afghanistan.” That’s what National Veterans Foundation founder Floyd Meshad told me this week while we were talking about Staff Sergeant Robert Bales and the insanity or diminished-capacity defense Bales’s attorney apparently intends to use. Bales was formally charged today with slaughtering 17 Afghan civilians earlier this month in Kandahar.
With the politics, with the foreign relations involved, with the exceptionally high bar for proving lack of mental responsibility in military courts, it’s likely Bales is going to end up taking sole responsibility for his actions in the upcoming trial. Which is too bad. Does this case involve war crimes of the highest and most horrific order? Absolutely. But was it all Bales’s fault? Probably not so much. Not given the chain of command that put him in a position to suffer such extreme levels of post-traumatic stress.
There’s something of a frenzy of PTSD-research stories in the media this week. Did Bales have PTSD? Can PTSD make you act “insane”? What is the link between PTSD and traumatic brain injury (TBI)? How strong is the link between PTSD, traumatic brain injuries, and violence? Is it strong enough?
Of course, there’s no totally definitive extent to which any of these tricky neurological and psychological queries can be “proved.” What we do know: that Bales served four tours of duty; that Bales was treated for TBI; and that traumatically injured brains do not operate like regular brains — because of altered cognitive functions, inconsistent memories, and the ease with which they’re overwhelmed, irritated and angered.
A lot of service members overcome their injuries and disorders, and reintegrate into their lives — bless their outstanding resilience. And very, very few have ever done something so abhorrent. But “as far as soldiers with PTSD going off the deep end, there’s no doubt that there’s a correlation,” says Meshad, who was a mental health officer with experience extracting soldiers who’d “snapped” in Vietnam. After decades of treating, and being consulted for criminal trials involving, veterans with PTSD, he literally wrote the book on defending them. Obviously, most veterans with PTSD don’t commit a crime. But attorney Brockton Hunter, who specializes in PTSD defense and co-wrote the Attorney’s Guide to Defending Veterans in Criminal Court with Meshad, says that “historical research confirms waves of veteran-committed crimes after every major conflict.” The U.S. Army’s own 2009 study of a rash of violent crimes at Ft. Carson, Colorado, found a correlation between the number and intensity of soldiers’ deployments and “negative behavioral outcomes.” Hunter says: “In other words, the more you see, and do, in combat, the more likely you are to be affected by it and to act out in bad ways.”
Any doubts that many soldiers of the recent wars are suffering psychological disorders and that those disorders can profoundly affect behavior are based on too narrow a definition of “violence.” Kyndra Rotunda, an associate professor of military and international law and executive director of the Military Law and Policy Institute and AMVETS Legal Clinic at Chapman University, bristles at the debate over whether PTSD might be unrelated to violence. Eighteen vets commits suicide every day, according to the Center for New American Security, one every hour and 20 minutes. “That’s violence!” Rotunda says.
But whatever specific evidence about his breakdown, or about breakdowns in general, is unearthed and displayed at Bales’s trial, it might not matter. In general, Rotunda says, “the military is not always willing to accept that PTSD was the reason someone acted.” The defense will have to demonstrate that PTSD made Bales’s brain so defective that he couldn’t understand the wrongness of what he was doing. And while, legally, “lack of mental responsibility,” which PTSD (as well as other mental diseases or defects) could precipitate, is an allowable defense in military court, “the politics are another question.” President Obama publicly ordered prosecutors in Bales’s case to be aggressive. Secretary of Defense Leon Panetta said the death penalty was a possibility — before Bales had even been charged.
“There’s a concern that a military jury will see President Obama’s and Secretary Panetta’s comments as a call to action,” Rotunda says. “And that’s a problem.” Especially in a court that’s already more reluctant to accept a trauma defense. “Civilian courts are on the whole much more willing to go that route.” Hundreds of veterans after the Vietnam War and through the ’80s who committed crimes — some of them as serious as taking hostages or opening fire on a police station — were acquitted or received lesser sentences from civilian juries. Same for Iraq vet Jessie Bratcher, who was found not guilty by reason of temporary insanity in his 2009 murder trial.
Not that it always shakes out like that in the civilian world. Take the case of Joseph Patrick Lamoureux, who’s currently serving 10 years in prison for injuring a cop on a wild shooting spree in 2008. His wife, who is admittedly biased, said he was screaming and having nightmare flashbacks of a suicide-bomber attack that day. Reports from the sheriff’s office, which are probably less biased, state that he was being prescribed at least 14 medications in his PTSD treatment. Consider also how he said at his trial, as Bales is saying now, that he remembered little of the incident. And like Bales’s wife and acquaintances, who claim to be just dumbstruck over his alleged crimes, Lamoureux himself sounds a little bewildered in a statement at his trial: “I am extremely remorseful for causing the horrible incident that morning, and I thank God for protecting deputy Murphy [who survived his wounds] and the other officers involved. My combat experiences in Iraq impact me deeply. You do not understand unless you have lived it.”
Did his PTSD defense “lack credibility,” as the judge in his case said? Is there a more credible reason for a man with no criminal record, whose sergeant said at his hearing that he was a good, order-following soldier, firing 61 rounds from two handguns while hiding behind some rocks in a trailer park for no apparent purpose? Lamoureux could be playing me for the sympathy-prone sucker that I am. The similarities in the rare instances when soldiers go blank and then go violently crazy could be a conspiracy to cover up the intentional actions of a bunch of veterans who got together and formed some kind of secret, insidious Murder Club. Or it could be that an extreme combat trauma disorder is not an excuse, but an explanation, one that in some cases does relieve the actors of culpability.
Whether that’s true for Bales will depend on the facts of the investigation. “The defense council is potentially going to put the military on trial here,” Rotunda says. “And I think they should. What role did the military play? Did they know that this soldier had problems? He’d been twice injured, including TBI. Did they offer treatment, are they properly identifying disorders” — at a base that’s under investigation for undertreating soldiers — “could this have been stopped earlier?” Should they have sent a soldier back to war after he suffered a traumatic brain injury? Should anyone send a human to war for years and years and years on four deployments, ever?
When the trial is over, maybe it will turn out that Bales really is just a bloodthirsty monster. More likely, he’s not. But if the outcomes of trials about, say, the atrocities at Abu Ghraib are any indication, it won’t matter either way. “The military doesn’t want to take any responsibility, and neither does the leadership,” Meshad says. “They always sacrifice the soldier for the whole. That’s just the way the military is.”
PHOTO: Staff Sgt. Robert Bales (L) is seen during a training exercise at the National Training Center in Fort Irwin, California, in this August 23, 2011 DVIDS handout photo. REUTERS/Department of Defense/Spc. Ryan Hallock/Handout