Lawfare Daily: A New Database of Possible U.S. War Crimes, with Madeleine Baran and Parker Yesko

[Intro]

Madeleine Baran: It's an all-military jury, and the prosecution is making decisions that you could never conceive of in a civilian context. Striking the names, the prosecution, striking the names of the people who were killed. So that the jury never hears the names of the people whose deaths are the reason why we're in the courtroom.

Tyler McBrien: It's the Lawfare Podcast. I'm Tyler McBrien, Managing Editor of Lawfare, with Madeleine Baran and Parker Yesko, investigative reporters for the New Yorker's podcast, In the Dark.

Parker Yesko: These are serious crimes, right? These are murders. These are assaults. A lot of them are charged with cruelty and maltreatment. It's sort of, like, what we think of as detainee abuse. Median sentence across all 572 perpetrators was eight months in confinement.

Tyler McBrien: Today we're talking about In the Dark: Season Three, which tells the story of a small group of marines who killed 24 civilians in Haditha, Iraq on November 19th, 2005, as well as a new database of possible American war crimes committed in Iraq and Afghanistan, which Madeleine and Parker compiled over the course of their four-year investigation.

[Main Podcast]

So for anyone out there listening right now who has not yet listened to In the Dark season three, this may be the only time I encourage you to pause the Lawfare Podcast and go listen to it because it's a remarkable investigation. We're about to dig into that as well as a companion project of sorts, a database.

But I think the best way to set it up is just to give an overview of the season. What story were you telling? Madeline, we can start with you.

Madeleine Baran: Sure. So this season was about a notorious killing that happened in Haditha, Iraq in November of 2005, where U.S. marines who were in a convoy going through the town were hit by an IED, which killed one of the marines and injured a few others. And the marines responded by going into the neighborhood and killing men, women, and children.

This killing went on for some time, and by the time it was done, more than 20 people were killed. The youngest person killed was a child who was three years old. The oldest was a grandfather in his seventies. And at the time when this happened, you know, this was the height of the Iraq War. And this killing eventually got a lot of attention, and politicians including George W. Bush weighed in. They said, look, we're going to take this seriously. There's going to be transparency here. We are going to hold anybody who's engaged in any wrongdoing accountable. And then what happened, as so often is the case in these types of stories, people just moved on.

And quietly over years, actually, after those killings, the cases, the prosecutions fell apart. And so at the point where we picked up this story four years ago, we were interested in how did it happen that nobody was punished for what happened that day in Haditha. And maybe a related question, which we'll maybe get into a little bit later in the podcast today, which is how often does the military justice system really hold its own service members accountable?

And so what we tried to do in the Haditha story is both figure out what really happened that day in Haditha, because remarkably, people to this day, a lot of the details of what happened that day are unclear. And then look at this military justice system, which was a system that prosecuted the marines accused of the killings, and try to look at, you know, how in the world did they both bring all of these cases and then also have all of these cases collapse?

Tyler McBrien: Yeah, as Madeleine just mentioned, this was a big case. There was a big TIME magazine story at the time. The president at the time, President Bush, commented on it. There was a lot of press and as you said, though, yet it faded.

But I want to also put on the table why you picked this up as an investigative project. So where did your investigation start?

Parker Yesko: You know, we started this project in very early 2020, honestly, probably late 2019, we started thinking about this. At the time, the Eddie Gallagher case was in the news. He was a Navy SEAL who went to trial for committing several war crimes and that piqued our interest. And I think very early on, I did a bunch of Googling. I was curious about war crimes in general and did a bunch of Googling, like, you know, how many cases like Gallagher's are out there? What happened in those cases?

And realized that such reporting didn't exist or such a database didn't exist. And then started kind of looking for other instances of war crimes, like the ones we were interested in. And then I think Haditha caught our eye because I mean, it's such a huge number of victims and it was such a high-profile prosecution and it was such a, sort of, spectacular demise of those prosecutions.

And like, we look for stories that have an interesting, sort of, like, story elements in their center, interesting characters, interesting narrative, but also that say something bigger, help us ask a bigger question about the systems that the story is a part of. And this seemed like a clear sort of incident to do some of that digging inside of.

Madeleine Baran: Yeah, I mean, I had always been, for years now, interested in war crimes cases and how they're prosecuted. You know, we hear a lot in the news about, well, that's a war crime, or that might be a war crime, or these people should be tried and convicted as war criminals. And these terms get thrown around a lot.

But I think that if you ask most of us like three basic follow up questions about how you might go about prosecuting a war crimes case. We can't answer them. Like, generally the public just, we just don't know enough about this system or systems that exist to prosecute some of the most important crimes that you could prosecute. You know, crimes committed by American service members working for the U.S. government. And in some cases, very horrific crimes.

And so I think that, you know, that whole system has always interested me. And the Haditha case was really an opportunity for us to delve into this case and then meet on the other, you know, a lot of the reporting as people would hear if they listen to the podcast, is taking place in Iraq present-day.

You know, with people whose family members were killed that day in Haditha, who have been engaged in their own efforts for years to try to seek justice for their family members, and have come up against a lot of the same kind of structural issues and problems that we are exploring as investigative journalists.

And so for us, it was important to both tell this story, about the failure of the prosecution, but also to tell the story of these family members who are crime victims. You know, in the United States, we think about crime victims in a certain way, you know, they get a say at the table, they get to do all these, you know, they get to be a part of the process. And in the Haditha case, you know, these victims of a crime, they were really left out. They described feeling very left out. And so the story also elevates their own experience and shows them as, you know, complex people like we all are, who are trying to make their way through this. And they, you know, many of the people whose family members were killed that day have really been on a mission to seek justice ever since that day.

Tyler McBrien: Yeah, and that's exactly how the podcast opens. I want to dig into the Haditha case as a vehicle, which you do so well on the podcast, to shed light on such an opaque process of investigating allegations of war crimes within the military. The podcast is also a story of your, both of your tenacity over the many years. I think at one point you said that you were jammed up in an epic bureaucracy, which I think even that is an understatement of the lengths at which the military either blocked your efforts or just didn't even have their own ducks in a row when it comes to keeping records, etc.

So could you take me through your experience investigating, just trying to figure out how the military even goes about doing their own investigation? What did you learn? What did it shine light on for you? Parker, we can go back to you to start.

Parker Yesko: I mean, our investigation had a few different threads, and it also had a few different, sort of, stylistic chapters, you know, there were, we were in big field reporting phases where we're going out and we're all knocking on doors in various states and various countries.

I was sort of the lead on the public records thread of stuff, and that started very early on. Like, we love a big records project on the In the Dark team, and we knew these would be difficult to get. And I had two, sort of, things I was after. One was records about Haditha, and then one was records about the whole universe of war crimes outside of Haditha so we could understand Haditha in the context of the military justice system.

And we filed FOIAs very early on. We knew we wanted the investigative file, which as Madeleine has already said, like Bush very publicly said, he would release and that it would be seen by everyone and of course, this never happened.

And then we wanted the prosecution records. We wanted the trial record of the Wuterich, he's the only one that actually went to a full blown trial. We wanted that whole trial record. And ideally we wanted, you know, the charging documents and basic adjudicative, you know, court records for the other marines who were charged. There were eight marines charged at the outset of the prosecutions. Four were charged for shooting the people that died, and four were charged with kind of obstruction-y type crimes. They were officers who were charged with not acting legally in the aftermath. Yeah, so that was a big part of my life in this investigation. Madeleine, maybe you can talk about our process.

Madeleine Baran: I mean, more on the records, you know, in our previous story, which was about a death penalty case in Mississippi, you know, we literally, and Parker did a lot of this, walked into a courtroom, said, you know, where's the clerk's office, talk to a human being and went from there. And when you're reporting on the military justice system, you cannot do any of those things.

I mean, yes, in theory, you could credential yourself to get onto a base and this and that, but even getting the trial transcript. And I think your audience could really understand how maddening this might be in particular, the transcript of a public trial. We had to sue the U.S. military to get a trial transcript.

And then when we got the transcript and we don't go into this in the podcast, because at a certain point, there are so many things that were frustrating to us that we do not need to, like, illuminate each one of them in the podcast, but the names of many of the people who testified in that trial are redacted from the trial transcript.

So even if they testified in open court and there were reporters there at the time and all of that, and there was, this was not, you know, something that was sealed or anything like that, after the fact redacted.

And so, there are just so many things that make reporting on the military justice system complicated, and those are some of them. And, you know, we worked with a great law firm Loevy and Loevy out of Chicago that has a division of their law firm that specializes in FOIA work. And so a lawyer there by the name of Matt Topic was really important to us and his whole team, in suing the U.S. military multiple times to try to eventually successfully compel them to start to turn over some of this stuff.

So there was this whole FOIA thread. And then of course there was reporting that happened in Iraq, which involved Samara and I, Samara Freemark, the managing producer of In the Dark, traveling to Iraq. We also worked with a BBC filmmaker,

and interpreters and other people, producers in Iraq who conducted additional reporting. And then we had reporting that Parker mentioned, which was going across the United States, our whole team, door knocking marines who served in Haditha and were there the day of the killings. These were marines who themselves weren't involved in the shootings, but played really key roles in seeing important aspects of the aftermath.

These are marines who, as you hear in the podcast, move the bodies, for example, out of the houses after they'd been killed or photographed the bodies, things like that. So it was all kinds of reporting, and this whole project took, you know, we've said four years. I think it might even be a little more than four years, start to finish, to get all of this done.

And what we're trying to figure out, you know, is again, what really happened that day in Haditha in detail, not just this idea that a lot of people were killed or something like that. You know, when a killing happens in the United States, we, recount in painstaking detail where each shell casing lay, like, in the school, you know, and this is considered an act of caring, that if we really care about what happened, we're going to document it and that's one way that we show that we care.

And so in the Haditha case, we thought it's important to document exactly what happened. And really significantly, if we're going to be looking at the prosecutions, what is the evidence against each particular marine, not just an idea that marines engaged in some shooting that was perhaps not lawful. So there's that whole reporting, that also involved a whole forensic thread.

And then there's this whole question of, you know, why, after a very exhaustive investigation, because our reporting did find that the NCIS investigation was quite thorough. You know, what happened once it passed from investigation to prosecution, and that sort of takes us on to the second half of the story.

So there was reporting throughout. There was everything from, you know, what is a bullet trajectory in a certain kind of situation to, you know, what are immunity, how do immunity deals work in the Marine Corps? I mean, there were so many aspects that explain why this thing took as long as it did.

Tyler McBrien: First, I'll just say, if you ever decide to make a podcast where the two of you just complain about all of the places where the military, you know, stonewalled you to find records, then I would listen to that, at least, because there were so many scenes. I mean, the scene in which you both, or maybe one of you go to the archive, for example, early on in the season, and there's this fascinating archivist, and there are all these the word Kafkaesque gets thrown around a lot, but it was truly Kafkaesque the way that you couldn't record some things and doing something would trigger all of these other considerations. But it illustrates really well the difficulties, also the absurdity sometimes. But what were the, at least stated reasons that the military would give it every turn? Interest of national security, protecting marines’ identities, and how did they sit with you? Were they satisfactory or not?

Parker Yesko: Wow, I was trying earlier not to go on like a FOIA rant. I'm still gonna try and, like, withhold a little. But I mean, no, I, rarely was it national security. It was usually a personal privacy claim that they would make. And it's usually the privacy of the service members.

And it's really interesting as a team that's done a lot of reporting on the civilian court system, like transparency in the civilian court system is sort of like a bedrock principle, like you can access basically any record. It is part of the protections afforded to the defendant that like they're, the proceedings against them are open to the public and, you know, can be seen later and appealed and it is not viewed as, as an infringement on their privacy rights that those records are accessible and yet like everything at every turn the military sort of flips it on its head.

So I mean, if you are, again, trying not to launch into a rant, but if you're like, if you're charged with a crime in the military, that record is very hard to obtain. If your case ends short of a conviction at trial, the record is not only hard to obtain, it's often like not memorialized or it is, but then it's destroyed. It's like a retention schedule, is very truncated and the record is, you know, stored at some installation, some military installation somewhere and ultimately destroyed.

Madeleine Baran: You've got to talk about acquittals, Parker.

Parker Yesko: If you're, if you go to trial and you're acquitted, the record's just private.

Madeleine Baran: Yeah. I mean, imagine that for a second. I mean, that to me is just wild. You know, if you're trying to, if the role of a journalist is to try to evaluate, you know, a justice system, and you take all the acquittals off the table, you can't ever see those trial transcripts. The only way you’re to know what happened would to be physically there.

Parker Yesko: Well, I mean, and if you think about just knowing, even if you know very little about the civilian court system, like the vast majority of cases in the civilian court system are disposed of somewhere prior to trial, right? Like either the charges get dropped or somebody gets pleaded out, you know, they agree to a plea deal. Things happen. Like, you know, some very small minority of cases go to trial and then end in a conviction. And so all that stuff, which is the everyday, like, workings of this system, is processing these cases through.

And in the military, I think there's even more ways that your case can be disposed of short of trial, because it's the military justice system sort of combines what we see in the civilian court system, the cops and the lawyers, which, plus what everyone sees in their daily life in their HR system, the bosses and the HR department. It all gets, like, tangled up in a single system and you can be punished in a sort of personnel-type way or in a sort of cops-type way. And all those options, you know, are very, very opaque. Whatever happens to you if it's short of, sort of, the biggest possible trial guilt, is just, kind of, disappeared.

It's like the hardest to examine, certainly the hardest-to-examine court system I've ever could conceive of.

Tyler McBrien: This is exactly why I think the season is so valuable, it not only puts on the record what happened that day when it previously had, was not known, but also because it pulls the cover off of this opaque process by following this case through the very winding, circuitous military justice system.

So can you just complete that thread, if you will? So you mentioned that eight marines were charged. What happened then? And what did it reveal to you about impunity, accountability, how the military handles allegations, investigations, and trials of potential war crimes?

Parker Yesko: I mean on the eight people, I mean the military has this fun bifurcated charging process where you get, kind of, need to get charged twice in order to get really charged. There's something called preferral which is like a preliminary charge, and then the defendant has the right to an evidentiary hearing. That is often compared to a grand jury proceeding, where both sides put on evidence and then the investigating officer, the judge-type character, will actually make a recommendation to the convening authority, which is just the boss. It's the commander of the unit that the service members are part of. Sometimes a very high up commander.

And you hear in the podcast that in, for at least a period of the years long prosecutions that commander was Mattis, Jim Mattis, who obviously went on to become very famous. So, in the Haditha cases, I mean, we see these eight people who are charged in December 2006, you know, the government holds a press conference at Camp Pendleton, they announce the charges being filed, and very quickly, the cases start to sort of disappear. A couple of the cases, certainly Dela Cruz and McConnell, who was the company commander, their cases don't even make it to Article 32 hearings. They're dismissed just post, kind of, initial charging.

I think the rest of them go to Article 32s. The rest of them get charged coming out of the Article 32s. And then quite a few of those cases do not go to trial. They get dismissed post-charging and then two of them go to trial. One guy got acquitted, Grayson, one of the officers, and so we could never get his record. We don't know what happened in his trial. And then Wuterich was the only one that actually went to trial. And it took years. I mean, he was charged in 2006. His trial didn't happen until early 2012. And we were able to get all the pretrial and trial records for him, but not the audio, that seems to be just disappeared, as well, missing forever.

Madeleine Baran: And I mean, the strategy seemed to have been to, at a certain point at least, to take all of these individual marines who had been charged in the shootings and sort of roll them all into the case against the squad leader. Squad leader, you know, say squad leader. If you're not familiar with the military, it might sound like that's like a big position, very high up. It's like the lowest level position. I mean, technically team leader is lower, but squad leader, I mean, this is like a group of like 12 guys he was in charge of.

And so at Wuterich's trial, a lot of people were testifying who had the charges against them dropped. But then interestingly, in the middle of Wuterich's trial, the squad leader, who was himself in the houses when the shootings were happening. And according to the prosecution, very much involved in those shootings. Both sides agreed to a plea deal and to a very minor charge, negligent dereliction of duty that resulted in no prison sentence. And so then the whole thing was dismissed.

So some of these charges ended up getting dropped early on. Like Parker mentioned, General Mattis personally intervened in one of the cases to drop the charges. He wrote a glowing letter to one of the marines in the case saying that he was, in his eyes, innocent.

In other cases, they fell apart because of an acquittal. Or in the case of one of the commanders because of a very arcane thing that we do, definitely, probably, do not want to get into called unlawful command influence that destroyed that case. And so there's all kinds of ways. I mean, a lot of times when you talk about the military justice system, what people will talk about is how it is the reverse of the civilian justice system, where we might argue that it's very hard for a defendant to exist in the civilian criminal justice system because a lot of things are stacked against them.

You could argue, and people have argued, that in the military justice system it's actually the reverse. Like, it's a very hard climate for a prosecutor to exist in. So anyways, so, and we see some of that in these cases.

Parker Yesko: You can see the cases, like, erode kind of slowly over time, right? Like, the charges start very severe and very plentiful, and just through the phases of charging, the charges get slowly reduced. Murder morphs into manslaughter, the number of victims, you know, like, the number of actual counts charged starts to shrink.

And by the time, like, Wuterich’s case goes to trial, the charges he's even facing are much less severe than the ones he started out in 2006 as being subject to. And actually, I spent all of last month on a criminal jury in civilian court, and it's wild. We spent like a week doing jury selection, and I watched as anyone that seemed even remotely similar usually because of their profession, to the people who are testifying, who are mostly cops, any of those people got struck from the jury.

And in military court, it's the opposite. You must be similar, at a professional level to the defendant and to many of the witnesses who are service members. And jurors are drawn from a pool of members of the military. It's, like, completely counter to the way that we do things in the civilian justice system. It's wild.

Tyler McBrien: To pick up on that last point, you mentioned quite a few legal, technical reasons why these cases fall apart, whether it's baked into the system or whatever.

But to your last point, I was struck by the just cultural atmosphere of protection of heavily weighing the benefit of the doubt toward members of the military. Not all of course, but so many interviews you hear, well, fog of war. They were just kids out there, these marines, the most beloved guy in the squadron had just been killed by an IED. It's just this extension of grace that is completely mirrored by a lack towards survivors, Iraqi survivors.

There's that one interview. I believe it was the investigator who said that you just don't understand the, these Iraqis, they are just interested in the condolence payments. So I'm wondering, I'm loading up the question here, but I'm wondering to what extent you found that this permeating culture of protection attributed to this, to cases falling off, and then ultimately lack of accountability.

Madeleine Baran: I think it goes throughout all of these cases. I mean, you know, as we explore in the podcast at trial, as Parker mentioned, so it's an all-military jury. And the prosecution is making decisions that you could never conceive of in a civilian context, striking the names, the prosecution striking the names of the people who were killed so that the jury never hears the names of the people whose deaths are the reason why we're in the courtroom.

Never hearing from the eyewitness testimony of survivors who were, of course, all Iraqi, whose family members were killed, who witnessed it and gave depositions, you know, like a hundred percent, could-use-at-trial depositions taken to be used at trial, never used.

You know, and then even in voir dire, you know, there's questions like, you know, this is not exact, because I don't have it right in front of me, but basically, you know, are you more inclined to believe marine or an Iraqi, you know. And people are unapologetically like, I'm more inclined to believe a marine, I am biased in favor of marines, and then that doesn't result in you getting struck from the jury.

So it also puts the prosecution in a very strange strategy. The prosecutors never talked to us, unfortunately, for this story, but you can only imagine what kind of strategies might be required if that's your jury.

You know, and then also just the fact that, you know, big decisions like to drop charges against someone who's charged with, in some cases, murder, typically in a civilian context and a high profile case would be made with some consultation, not, you know, you don't need to get approval, but some consultation or informing of the family members of those killed. And that does not, according to the survivors, happen here at all. Like they found out what happened in these cases, including the trial with the plea deal and all of that, in the news, if they found out about it at all, or from a friend or something like that. They just described no one telling them what was going on.

And so I think, you know, all of those things, that whole sort of dehumanizing of the Iraqi civilians is part of this story from obviously what happened that day, but then all the way through to the end.

Parker Yesko: It's also interesting and worth talking about the role of the commander. I mean, we talked about Mattis in this case, but like, there's many things that set the system apart from the civilian justice system.

But the role of the commander is really a distinguishing trait. And like, the commander is, his role, or her role, is to ensure the good order and discipline of their unit. And like, justice is sort of a part of what they're trying to accomplish in their role as the convening authority of a court martial, but their considerations are certainly broader than the average judge in a civilian criminal proceeding and one could make the argument that the goals of maintaining good order and discipline across their whole unit do not always align with the goal of justice in a particular case.

Tyler McBrien: Yeah, I think a good example of that is when we heard from the, I believe the commander of the squadron who basically was saying, to keep morale up, he didn't want to press the marines about the incident, didn't report it, wanted to give them space to grieve their friend and comrade who would, who had just been killed, which, on the one hand, is understandable. But again, these are completely misaligned incentives that makes you question whether certain authorities should be separate from who have them.

Parker Yesko: I think it's really clear in the Mattis letter, the letter that he writes to dismiss the case against Justin Sharratt, who's one of the shooters, and then which he publishes in his autobiography, it talks very little about the facts of the case, and it talks a lot about the messages he wants to send to his troops, kind of, writ large and how their job is tough and he sees them and he understands the complexity of their task and he admires, like a ferocious fighter. And it's just apparent like reading the letter that what he seems to see his role as here is not simply reading the evidence in this case and litigating the facts before him.

Madeleine Baran: And of course, that's not his job. I mean, that's not his only job. It's in the middle of the war. Job is to win the war, whatever that might mean in the context of Iraq. And so, you know, troop morale is a huge part of that. And so it's absolutely easy to see how these things could turn out to be at cross purposes.

Tyler McBrien: Unfortunately, Haditha is not the only case of justice deferred or allegations of war crimes committed by the U.S. military. So I want to widen the aperture to this pretty amazing database that you put together. Parker, I think you hinted early on in the conversation that the season and the investigation was developed alongside the database. If that's right, I'm curious where the idea to actually put this together in a database came from and also what's in it.

What is in the database? And then in a bit, we'll get into the process of putting it together cause I think that's one of the most fascinating questions.

Parker Yesko: Yeah. Well, I'm like a compulsive spreadsheet maker slash Airtable user. Free ad for Airtable, the best. And I just, like, could not believe early on, like, I'm just Googling, like, list of war crimes perpetrated by American service members, and it just, like, doesn't exist. And I'm like, how does that not exist?

And then I'm just doing research, ad hoc kind of, wild research. This was at the very beginning of when we're looking for a new story, and we had the freedom to just kind of, like, dig around. And I start keeping track of some incidents I'm coming across, and then it turns into a little Excel spreadsheet.

And it did not take very long for me to have an Excel spreadsheet, like, just a month or two, probably, that I was nearly certain was already, like, the biggest list of alleged war crimes committed by American service members post-2001. And even that in and of itself seemed significant. It's like, how do we already have more info than has ever been aggregated in any one place?

And then it was, I think, kind of like dog with bone. It's like, you know, let's keep going. Let's see how much more there is.

Madeleine Baran: What we were trying to look at specifically was this question of what happens to, not just in the Haditha case, but all these other cases, what happens to them once they're prosecuted.

And, you know, although there are great nonprofits and groups that are doing work to describe and catalog American atrocities and drone strikes and everything like that, the, like, laser focus on the prosecution side, that had not been done before. And so we wanted to know, you know, was Haditha an anomaly, not the killing part, but the failure to get any convictions that resulted in punishment part?

And so that's really what motivated us to keep going and trying to answer this question that was kind of, was very surprising to us. No one had the answer to. I mean, when we started this, we thought, well, you just call around to some experts and someone will tell you there's like, like four main academic studies on this that you're going to want to read, or something like that. And that never happened. It was clear that we had to make it ourselves.

Tyler McBrien: Does the military have the answer on this? Did you, what did you find when you asked the military if they had their own database?

Parker Yesko: Definitely not. They do not have the answer. So they, since 1974, post My Lai, which of course was a massive atrocity and war crime, and which was prosecuted and resulted in very little punishment.

Just after My Lai, the DOD created something called the Law of War Program. A bunch of lawyers created it, and it was aimed at preventing future atrocities and also creating some training standards and accountability and transparency around war crimes committed by American service members and, I think, against American service members. It was sort of like all-around transparency.

So that's 50 years ago, and for 50 years, that program and the directive that the DOD issued has required the branches of the military to keep a central collection of these types of allegations, and allegations of investigations into war crimes. And so I discovered that that existed and I was like, this is awesome. I'm just going to FOIA this central collection, and I'll get the list back that I want and I'm not inventing any list.

I'm just going to like put FOIA the four branches. We never really FOIA’d the Coast Guard, which is the fifth branch, and then I'll just like put all those together and ta-da, we'll have it.

I mean, but even then, like, that would have only been step one. And actually in season two, we did something similar, which is like, we were trying to analyze a whole set of trials in a district in Mississippi. And like, the first step is just, knowing how many trials there are. Like, this was just the first step of, like, how many war crimes are there?

And then for each of them, if the question is, was anyone held accountable? Like, how is this adjudicated? We need some, like, really basic documents. We don't need, like, the whole investigative file. We don't need the whole court transcript. We need to know, like, who the suspects were, that were identified by investigators, whether they were charged, if so, what the charges were, and whether they were convicted.

And at every step, it was just so challenging. We ultimately filed four lawsuits related to just this data project. We filed two, two other lawsuits related to the Haditha records. And I just, like, kept adding to the Airtable. Very early, it like grew out of the Excel spreadsheet. And we had this database where I was tracking incidents and then connected to each incident. I was tracking perpetrators and victims and trying to track the outcomes per perpetrator for each human involved in this investigation. Like what happened to them?

And it just kept growing. And I think at some point we realized though it would be difficult that we would be able to get enough information to say something about the system and what we found. And there's a lot we still don't know, but we found, ultimately 781 possible war crimes. It’s like, we're scouring the internet. I'm scouring other databases of documents, human rights reports.

Tyler McBrien: Yeah, that's exactly what I was about to ask. Because as anyone who's FOIA'd before knows, you'll be more successful if you know something already exists, and so you can FOIA it.

Madeleine Baran: Well, here's like the chicken and the egg game.

Parker Yesko: We would, sort of, do both, right? It was like an iterative process.

Madeleine Baran: And the frustrating part about this was that, of course, the military ultimately was sitting on all these records, whether they were in a central collection or whether they were just scattered throughout wherever they were.

But the sort of, is what we describe, I think, in the podcast as a not very fun guessing game, became, you know, okay. Like basically the military would say, okay, we will give you this stuff if you can tell us what it is. So we would have to go find war crimes that they definitely already knew about, alleged war crimes, then say, I found one. Here's the information I found in a Reuters story or in a Human Rights Watch report or something. And now can you give me this information? And they would say, we're not going to respond to you or something, and then we sued them.

And so, you know, it was just, like, at every stage, it was so frustrating because that information did exist, like, on their side. But we had to go through this very convoluted way of trying to, like, one-by-one pry these cases out of their files.

Parker Yesko: Yeah, I skipped something, which is, like, our first lawsuit was eight. So I filed all these FOIAs seeking the contents of each of the branches central collections, and the Navy told us that they'd found their central collection, and it was empty. This is the Navy speaking on behalf of the Navy and the Marines.

And then we initially didn't get responses, I think, from the other services. We had to sue the services just to get them to respond to this first sort of round of FOIAs and then to get their like unsatisfactory responses. The Army and the Air Force sent us some spreadsheets that were pretty hard to decipher.

And then subsequently we did the thing that Madeleine's talking about. We're like, okay, if you aren't going to give us the lists, we're going to make the list ourselves. And then we're going to send our list essentially back to you and say, give us more investigative findings on these incidents. Give us more court records on these perpetrators and, like, you're going to send us stuff back and we're going to extract, I would extract names and dates and locations out of them. And then I would like re-FOIA. You know, if you're going to claim that we haven't provided enough information for you to conduct a search, I'm going to like just strip more, like whatever little kernels are in here and send it back to you guys and request it again.

And then we're going to sue you and you're going to look harder, which they often did once we sued them. And you're going to look faster. Like, in most cases, like, we were suing on a production violation, like just the simple fact that we had filed the FOIA and they just hadn't responded at all. They hadn't done like the sort of basic top line, you know, measurable part of FOIA, which is like respond within 20 days. And so at that point, it's like, we can file a suit and we know we're going to win because you just, you've failed, just off the top. And then, you know, it becomes a little harder to litigate over the stuff that they're acknowledging they have, but refusing to release, or are redacting, stuff like that.

Tyler McBrien: So how granular were you able to get with these over 700 incidents or allegations of war crimes that you were able to find? Were you able to follow them all the way through the process to acquittal, to trial, to dismissal? Where did the trail end and where did it keep going for most of these incidents?

Parker Yesko: In most cases, the case sort of ended with the investigative agency. What we found, so, like, for us to take interest in an incident, it had to meet some basic parameters to begin with. It had to be post-9/11. It had to have happened in Iraq and Afghanistan. It had to have centered around a violent offense. There are nonviolent types of war crimes and we sort of decided early on not to look at those.

And so if it was an incident that met those basic criteria, we would push as hard as we could to get records. In at least 65 percent of cases, the case didn't make it beyond investigation. And a lot of those told a really interesting story. We wrote a little bit about them in the introduction to the database, but we saw many instances where a service member would come back from deployment and confess to someone that they'd committed a violent crime while they were overseas. And the final report of the investigation would say something like, you know, we couldn't substantiate the confession.

And these were like, you know, we know false confessions happen, people make false confessions, but these were confessions that weren't extracted under duress or anything. They were voluntary confessions made by service members trying to impress women, or like to a rehab specialist, or something like that.

There were also loads and loads of reports of shootings at checkpoints. It seems like driving a car near a checkpoint was maybe the most dangerous thing you could be doing if you're a resident of Iraq at a certain point. And those, you know, you'd see an investigative record that just said, listen, they didn't heed whatever signal was given to them by the soldiers. And, you know, this is not a crime. This was an acceptable escalation of force. So a huge chunk of the cases we looked at ended at investigation. They just like never were pushed into the court system.

And then, we ultimately published the sort of subset of cases. There were 151 cases where the investigation found, like, a crime did happen, right? The investigators looked at this, they conducted an investigation, and they said, this is not justifiable. We can substantiate it. This is, you know, something here. And that's at the point at which, you know, we started tracking, well, was, were charges filed and what happened with those charges. And I think at every turn it was hard to get the data points.

We've published a lot of incidents in our database where we actually don't know the outcome. It's unknown to us. Because the court system could not retrieve the records for one reason or another. And then there are a lot of them that we do know what happened. And what we found is that of those 151 incidents, we were able to identify almost 600 perpetrators connected to those, and roughly a fifth of those perpetrators were convicted. And fewer than a fifth were sentenced to any time in confinement. And the median sentence in confinement, and, like, it's worth stopping here and saying, like, these are serious crimes, right? These are murders, these are assaults, a lot of them are charges of cruelty and maltreatment, it's what we think of as detainee abuse. Median sentence across all 572 perpetrators was eight months in confinement.

Madeleine Baran: In the rare event that you would get convicted.

Parker Yesko: Right.

Tyler McBrien:  I keep thinking about what you said earlier, how it's so often a mirror image of the civilian justice system where there is this adage in criminal defense or criminal justice in the civilian system that juries convict, you know, and it just seems like you said the complete flip side in the military justice system.

I'm curious the military's response to what you compiled, whether you sent your findings to the respective branches, to the Department of Defense, in general, and what kind of response you got, if anything.

Parker Yesko: Basically none. I sent an email to each of the branches, telling them sort of a top line finding and offering to sit down with each of their highest ranking officers to share our findings and none of them took us up on that offer. And the Marine Corps never responded at all.

Tyler McBrien: Now that it's out there, of course, the military is not the only audience. This is now out there for the public, for civil society, researchers. What is your hope for the database now that it's out there in the public?

And I'm also curious what you would have done if this did exist at the very beginning of your journey. How it would have been made easier, what you would have used it for right at the beginning.

Parker Yesko: I might've never had to file a FOIA, if it was just there. I mean, I would be like thrilled. We've published all the raw data. It's up there, as well as all of the documents that we got. So any researcher who is interested in this system or in sort of the issue of war crimes or any little facet of it, like our stuff is there for you to take and look at and dissect however you want it. I would love for people to file more FOIAs.

We still have some outstanding litigation. I would love to see what comes back from that. And I would love to see if any, you know, anything changes based on all of that.

Madeleine Baran: I mean, what we were really trying to do was, what unfortunately seemed like it was the first time this attempt had been made to do this, is to do an analysis of what is happening inside the military justice system when it comes to alleged war crimes.

And so this marks a starting point, perhaps, to better understanding what is actually happening within this very opaque justice system. And, you know, there are others with far greater resources than us, you know, be it Congress, be it the military itself, to conduct an even more exhaustive analysis of its own system or the military system.

So, but, you know, I think so much of our work as journalists is let's compile this information so that we can at least start to understand what is going on so we can start to have an informed discussion about it. That's not just some platitudes or something like that. And the fact that, you know, you could sort of maybe imagine there might be leniency is very different, I think, from being told, no, objectively, there is leniency here.

Parker Yesko: I mean, I joked that I wouldn't have had to have filed any FOIAs if this existed. And what I hope is that if you look at this database, you can ask smarter questions, you can ask more targeted questions, and you know, that asking questions makes it possible, you know, that it is possible you'll get some answers, like it just advances the starting point a lot.

You're not going to have to recreate this list of the 781 cases. If you want to look at adjudication of these cases you can start there. And I think there's a lot of questions still worth asking.

Madeleine Baran: And this was so hard to get these documents that, for us as a team, there was never a question that we wanted the public to have this stuff. I mean, why in the world would we want the public to have to redo what we just did?

Tyler McBrien: So there was one other sort of spinoff project, or reporting that accompanies the podcast, which is the first ever publication of photos of the crime scenes, which had been hidden for a long time. In fact, there was a clip early on in the podcast of a commander almost bragging about his ability to keep them hidden for the protection of the Marine Corps’ reputation and this PR crisis that was happening as stories of Haditha were reaching Western media, but you were able to not only obtain them, but also publish them.

So Madeline, I wonder if you could, first of all, just talk about the photos, what were in them and then your process of getting them and why it was important for you to publish them.

Madeleine Baran: So these were photos that were taken by, not the marines involved in the shootings, but marines who came into the, came to the killing sites later that day and photographed the bodies where they laid. So they were really full of a lot of information, forensic information about exactly how these killings were conducted and they were tremendously valuable for that reason.

You know, they also were a document of this horrific day in Haditha that had great historic value as well. And so, you know, and some of these photos here and there had gotten out in different ways, but never the full set of the photos. And so we knew that these photos were important for us to see, to understand what happened that day and also understand, you know, this was the evidence that the investigators had that they turned over to prosecutors to sort of fully understand what the prosecutors were working with.

To get them we did something kind of unusual, which is we anticipated that, so we had sued over the photos, we had not gotten the photos. We anticipated that the government might claim privacy concern for the surviving family members in Iraq. And so to sort of head that off, we actually talked to surviving family members in Iraq and ended up talking to two men, in particular, both of whom had lost family members that day and who wanted us to have these photos.

And they went door to door, house-to-house in Haditha, gathering signatures on a form that our lawyers prepared saying that they wanted us to have these photos, which we then filed in court. And so we filed that in court and this was a big surprise to me that this was, we actually got the photos.

Honestly, it was maybe the, it was to me the most surprising thing that happened in the reporting. A couple of months after we sent that, I believe it was, we got the photos. And so, and the photos showed, you know, we sent them to a forensic expert who concluded that several of the photos in particular showed that a four year old boy was shot in his view, execution-style, in the corner of a living room.

The photos are devastating, and they leave no question that the people who were killed were not doing anything threatening, that these were, you know, people who were in defenseless positions who were shot from relatively close range. And then we had this decision as a reporting team and as a news organization about what to do, you know, should we publish these photos or not?

And ultimately, where we landed with that was that there were some photos in there that were incredibly graphic and were not illuminating. You know, they didn't tell the public anything. They were just, and so there's a line you're walking with, you know, not wanting to dehumanize people further. And so we talked about that and we also got the, you know, we talked to some of the surviving family members as well.

And ultimately we decided to publish a selection of, I believe we published ten photos. And every photo that we publish with the permission of the surviving family members of the people depicted in that photo, which is not to say that you always need to do it that way, but just given the involvement of the survivors in this story and given everything that happened to them both that day and in the years since, that was important to us.

So we published those photos and, you know, those photos, I think were quite shocking to people. But it was important to us that people really see what, what exactly happened, because it's one thing to hear it described, but it is an entirely other thing, as we all know, to see it.

Tyler McBrien: Well, I think the story of just the lengths at which you went to get the photos and the care and the thought that went into publishing them really illustrates the care and the thought with which you approached the entire investigation. So I want to thank you both for this, the culmination of this multi-year effort. It's ongoing as you mentioned, but it's a pretty remarkable project and thank you both for taking the time to speak with me about it.

Parker Yesko: Thanks, Tyler.

Madeleine Baran: Yeah, glad to do it.

Tyler McBrien: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad-free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter through our website, lawfaremedia.org/support. You also get access to special events and other content available only to our supporters.

Please rate and review us wherever you get your podcasts. Look out for other shows including Rational Security, Chatter, Allies, and The Aftermath, our latest Lawfare Presents podcast series on the government's response to January 6th. Check out our written work at lawfaremedia.org. The podcast is edited by Jen Patja and your audio engineer this episode was me, Tyler McBrien of Lawfare. Our theme song is from Alibi Music. As always, thanks for listening.