Here I am again in the U.S. Court of Appeals for the Armed Forces in Washington, D.C., the highest appeals court for the U.S. military. Last month, I was here to cover Army 1st Lt. Michael Behenna's final appeal. Now I am waiting for Army Sgt. Evan Vela's final appeal to begin. I glance over at Evan's father, Curtis Carnahan, and Evan's wife, Alyssa, sitting together in the otherwise empty first row, and I can't believe it's been more than four years since Curtis first emailed me:
"I am Sgt. Evan Vela's father. I do not know if you have followed my son's case, but some people have drawn similarities between the Luttrell situation and Evan's."
Curtis was referring to Marcus Luttrell, whose 2007 best-seller "Lone Survivor" tells of four Navy SEALs, Luttrell among them, whose 2005 mission in Afghanistan was compromised when two unarmed Afghan goatherds discovered the SEALs hiding deep in Taliban territory. I had written a column discussing the excruciating fact that the thought of being brought up on legal charges in a military court back home weighed so heavily on these young Americans' minds that they decided not to save their own lives and their mission by killing the two Afghans, but rather to take their chances against the veritable Taliban army the pair would summon against them.
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"It was the stupidest, most Southern-fried, lame-brain decision I ever made in my life," Luttrell later wrote of his decisive vote to let the two Afghans go. As a result of the decision the SEALs made on an Afghan mountaintop far from any courthouse, 19 Americans – Luttrell's three SEAL teammates and 16 more Special Forces – would be killed that same day.
But no one went to court.
In Evan's case, the leader of his elite sniper squad chose the other path. It was May 2007, in insurgent-controlled Iskandariyah, Iraq. When an unarmed Iraqi man compromised the team's "hide" and refused to cooperate quietly, the team leader chose not to risk drawing local insurgents to their position, but instead ordered Evan to kill the man. As a result of this decision, all of our soldiers came home that day.
But then they went to court. Long saga short, Evan Vela became the only soldier convicted of the killing. He was sentenced to 10 years at Fort Leavenworth military prison – the shortest sentence of the so-called Leavenworth 10, as Curtis reminded me this week, using the nickname for a group of veterans who are incarcerated for a variety of desperate, blurry, fog-of-war shootings.
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Listening to the procedural review of Evan's case, I am struck again by the ghastly surrealism of their plight – the penalties the U.S. government has forced on its most dutiful sons for not committing, in effect, suicide as the Navy SEALs did in choosing to escape prison rather than death.
Meanwhile, literally thousands of incarcerated terrorists in Iraq and Afghanistan have been granted clemency or otherwise found their freedom. Recently, Ali Musa Daqduq, a Hezbollah mastermind who confessed to kidnapping, torturing and killing five American soldiers in 2007, walked free in Iraq. In December 2011, President Obama turned over Daqduq to an Iraqi court, which released him this month. According to the most basic moral calculus, this is neither fair nor right. As Republican Rep. Allen West of Florida recently wrote to President Obama, it's an "utter betrayal."
I steal another glance at the Carnahans, now focused on the court proceedings. Like the other Leavenworth families, they have been counting off the years by trials, appeals, clemency boards and pleas for congressional support. Back in early 2009, there were flutters in the news about a possible pardon for Evan from outgoing President Bush. Then nothing. No pardon. Which was, to my mind, unpardonable. George W. Bush should have pardoned Evan and the other soldiers, now prisoners, whom he ordered into a confusing, rules-restricted war against an army without uniforms on a battlefield without lines.
And so, the Leavenworth 10 sit in prison: Michael Behenna, Corey Clagett, John Hatley, William Hunsaker, Larry Hutchins, Michael Leahy, Joseph Mayo, Michael Williams, Evan Vela. Newcomer Derrick Miller has joined them. Miller last year drew a life sentence after unsuccessfully claiming self-defense in the killing of a suspected Afghan insurgent who had penetrated his defensive perimeter.
Memorial Day – the day we mourn our war dead – is coming. President Obama, give these men another chance at life. Pardon them.