JOINT BASE LEWIS-McCHORD, Wash. (AP) — The Army already looked into allegations that Sgt. 1st Class Michael Barbera killed two unarmed Iraqi boys in 2007. Commanders gave him a letter of reprimand.
But now, years later, military prosecutors are trying to convince an investigating officer that Barbera should face a court martial after all.
Barbera, 31, was a staff sergeant when fellow soldiers say he shot and killed the teenage brothers in Diyala Province. The case was the subject of a 2012 story in a Pittsburgh paper, The Tribune-Review, which described how some of Barbera's comrades remained troubled that he was never prosecuted. It prompted calls from Congress for the Army to review the shooting.
The Army charged Barbera last fall with two counts of premeditated murder, which carry a mandatory life sentence. A preliminary hearing opened in his case Wednesday at Joint Base Lewis-McChord, south of Seattle, where Barbera was transferred from Alaska's Joint Base Elmendorff-Richardson to face charges.
One soldier who said he witnessed the March 2007 shootings, former Spc. John Lotempio, testified that the boys appeared to be just 10 or 11 and posed no threat as they herded cattle in a palm grove where an eight-man U.S. Army reconnaissance team was hidden one day seven years ago.
But Barbera, the leader of the recon team, took a knee, leveled his rifle and killed them from nearly 200 yards away, Lotempio said.
"Oh my God — why?" he said when a prosecutor asked him to describe his reaction. "They didn't see us."
Barbera's attorney, David Coombs, called the allegations baseless and highlighted the lingering questions about why it has taken so long to bring the case to court. An investigating officer, Lt. Col. Charles N. Floyd, is to recommend whether Barbera should face a court martial.
Coombs alleged that the newspaper's "hit piece," which won an investigative reporting award, and congressional pressure had improperly influenced the Army's decision to file charges.
Barbera's fellow soldiers didn't begin to come forward to report concerns about the shooting until 2009, and a criminal investigation was conducted then. The matter was "somehow put to bed by administrative action," Capt. Ben Hillner, an Army prosecutor, said in his opening statement.
Hillner did not elaborate on that decision by commanders at Fort Bragg, N.C., where Barbera was then based, but the investigating officer clarified that Barbera received a letter of reprimand.
Lotempio said he didn't report the killings at the time because "I don't think I knew the proper way to go about it. I didn't want to think about it." He has suffered from nightmares about the killings, he said, and he felt guilty because he was the one who first noticed the boys and woke up Barbera, who promptly shot them.
"If I didn't wake him up, they'd still be alive," he said.
He said "absolutely not" when asked if the boys posed a threat
After Barbera killed the first boy with a single shot to the head, the second waved to them with one hand and yelled, "Hello, mister! Hello!" Lotempio said. Barbera fired a second shot that killed him.
Lotempio said the shootings contravened the rules of engagement for the mission, which was not to fight unless the enemy had the means, opportunity and intent to cause harm.
Coombs, who represented Chelsea Manning, the Army private convicted of leaking a massive trove of information to Wikileaks, argued in his opening statement that even though the soldiers' rules of engagement required them to report violations, it was two years before any raised concerns.
Further, he said, the reporter who wrote the stories, a former Marine named Carl Prine, was too ready to believe what Barbera's former comrades told him.
Prine was called as a witness Wednesday to testify about an allegation that Barbera threatened his wife in 2011, saying words to the effect of: "For your own personal safety, you need to tell your husband to back off the story," Hillner said Wednesday.
That's the basis of another charge against Barbera, conduct prejudicial to good order and discipline. He's also accused of trying to get a soldier in 2009 to tell investigators that the dead boys might have been wearing suicide vests.
Prine told the investigating officer that he did not expect his newspaper would be willing to turn over videotapes of interviews conducted for the story, in particular interviews of the boys' relatives he conducted in Iraq.
The shootings were near the village of As Sadah. The reconnaissance team had planned to remain secreted in the grove for two to three days monitoring possible enemy activity.
After the brothers were killed, Barbera's group also killed their cousin, who approached the scene along a footpath. No charges were filed in that shooting. The first witness to testify Wednesday, former Army medic Andrew Harriman, fired the shot that killed the cousin and said it appeared the man had been reaching for a weapon.
Contrary to Lotempio's story, Harriman testified that Barbera fired five or six shots at the boys. Harriman didn't see where Barbera was shooting, and he said he only learned after the fact from another soldier, Pfc. Dary Fink, that Barbera had killed two unarmed boys.
Harriman said he believed he urged Fink to report the shootings. Nevertheless, Harriman also testified that he believed his immediate commanders would have swept the matter under the rug.
The victims were identified as Ahmad Khalid al-Timmimi, 15; his brother Abbas, 14; and their cousin, Muhamed Khaleel Kareem al-Galyani.
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