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Military law advocates support disclosing photos in Afghan killings case

Post by Adam Ashton / The News Tribune on Dec. 21, 2010 at 1:01 pm |
December 21, 2010 1:01 pm

Military law advocates on Monday filed a brief to support a Joint Base Lewis-McChord soldier’s push to force the Army to disclose photographs of an Afghan he allegedly killed in January.

Pfc. Andrew Holmes of Boise, Idaho, is one of five Stryker soldiers in the 5th Brigade, 2nd Infantry Division who are accused of murdering Afghan civilians during their deployment earlier this year.

His attorney wants the Army to release images of Afghan casualties Holmes and his platoon mates took during their patrols.

Those images have been ordered to remain concealed at Lewis-McChord’s Criminal Investigations Division out of concern that could reflect negatively on the Army and incite violence against American soldiers.

At least one image is believed to show Holmes holding up the head of the Afghan who was killed during a January patrol, according to testimony at his Article 32 hearing last month.

The Army Court of Criminal Appeals halted proceedings against Holmes late last month when his attorney filed a motion arguing that the order to conceal photos prevented Holmes from submitting evidence that would have showed his bullets did not kill the Afghan.

At least two other soldiers fired weapons at the Afghan, according to testimony in court.

The National Institute for Military Justice this week lent its weight behind Holmes’ argument that the photos should be disclosed.

It took issue with the Army’s argument that he photos could tarnish the military.

“The argument proves too much: if the risk of harm to the armed forces’ reputation sufficed, practically every court-martial would be closed,” wrote attorneys from the National Institute for Military Justice.

The group’s attorneys joined Holmes’ argument that he could not present an adequate defense at his Article 32 hearing when an Army criminal investigator briefly described the image of Holmes posing with the Afghan casualty.

“The Limitation Order made it all but impossible for the defense to challenge the (Criminal Investigations Division) agent’s characterization of the photographs through cross-examination,” the NIMJ attorneys wrote.

“Without having the photographs in hand, the defense would have been limited to a dry series of questions and answers regarding the contents of the photographs. But that hardly is an adequate substitute for the pictures themselves.”

Army prosecutors last week submitted an argument to the appeals court contending that Holmes received a fair Article 32 hearing in compliance with the Uniform Code of Military Justice. The prosecutors said Holmes would have an opportunity to appeal the order concealing the photos at a later date, such as at a court-martial trial or at a subsequent appeal.

Holmes’ attorney, Dan Conway, is preparing a response to the prosecutors’ brief.

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