The Court-Martial of Ricky Burke

by Sydney J Freedberg Jr

Sat. Oct 13, 2007


Sydney J. Freedberg Jr.

In civilian life, a wide gulf separates commendable behavior from the crime of murder. In the military, some acts of killing earn a medal, while others lead to a court-martial. The difference often comes down to context -- and in the fog of war, proving guilt beyond a reasonable doubt is often difficult.

One of the few cases in which both the central figures and the key records are accessible is that of Ricky Allen Burke. The 27-year-old National Guard sergeant comes from the small Kentucky town of Monticello -- "If you blink when you come through here, you're going to miss it," he told National Journal. Trained as artillerymen, Burke and his unit deployed to Iraq in early 2005, when there were no more big targets for their rapid-firing rocket launchers. But coalition forces had a desperate need for military police. And that, for all practical purposes, is what they became.

"It was totally different," Burke said. "We had basically a crash course in convoy operations, totally starting from scratch other than our basic training." An Army investigating officer later reported that Burke's unit had a "general lack of understanding, knowledge, and training on the treatment of enemy prisoners, Rules of Engagement (ROE), and use of force."

On March 20, 2005 -- Palm Sunday -- Burke's squad left its base south of Baghdad to escort a convoy. It had three Humvees and nine soldiers to protect 30 tractor-trailers driven by foreign contractors (few of them English speakers), plus a bus and two sport-utility vehicles. "We were the last convoy to leave our base that day, because we got held up due to incoming fire," Burke recalled. "[Was I] worried about it? No; it was just the inconvenience of being mortared."

Burke was used to insurgents lobbing inaccurate rounds, a routine and rarely lethal occurrence at bases across Iraq. He had even survived "three or four" roadside bomb strikes on his vehicle unscathed. The day before, however, a soldier from his unit had been killed in an escalating series of attacks. And that Sunday, just as Burke's convoy passed another heading in the opposite direction, a force of 50 insurgents opened fire from prepared positions along the road. Damaged vehicles from the two convoys soon blocked both lanes; the truck drivers abandoned their vehicles.

"I dropped my Humvee's window and started firing," Burke said, "but I'm a fairly large individual, and with body armor on, it's a tight fit." Unable to get a good shot, he left the protection of his uparmored Humvee to better engage the enemy. As he fired, a second Kentucky National Guard squad that been shadowing the convoy -- from a unit actually trained as military police -- raced past the wreckage and Burke's unit to drive straight into the insurgents' position, a headlong attack against 5-to-1 odds that earned three of the MPs Silver Stars for valor. (See NJ, 1/13/2007, p. 24.) Burke initially stayed with the stricken convoy, but after trying in vain to put out the fires on one of the convoy's trucks, he decided to move forward. Burke and his men pulled their Humvee up behind the MP unit just in time to see the battered MP squad's medic silence an insurgent position with a portable rocket launcher. Burke helped load two of the U.S. wounded into his Humvee and sent it off toward medical care. Then, as the shooting died down, the MP squad leader, Staff Sgt. Timothy Nein, grabbed Burke to help him search the battlefield for surviving insurgents.

At this point, Burke made a comment that remains in dispute. "He said that it was 'payback time,' " Nein wrote in his sworn statement about the incident. When the two men came across a wounded insurgent lying on the ground, Nein wrote, "[Burke] said, 'Let me shoot him, I got payback coming.' " Nein wrote that he ordered Burke not to. Another soldier in Nein's squad, Sgt. Dustin Morris, stated that Burke "did say, 'It's time for payback' ... after he kicked the [insurgent] down into the ditch." Burke told National Journal that more than two years later, he could not recall his exact words. But at the time he told investigators, "I said something like, 'You can never get paid back for our loss.' I meant that we can never feel any better about losing a soldier, no matter how many enemy were killed."

Nein left Burke alone with the wounded Iraqi. "I'm limited in my Iraqi phrases to the word 'stop' and hand motions," Burke told National Journal. "I was telling the insurgent to be still, to keep his hands up, and he just wasn'tcompliant. There was a weapon down on the side of the ditch. He had rolled over toward the weapon and his arm was extended. I fired once, and he continued to move, and I shot again." Afterward, when pressed, he acknowledged to investigators that he "probably could have" prevented the Iraqi from grabbing the weapon without using lethal force.

Nein and his squad did not see the insurgent moving, only the aftermath, and they later disputed Burke's assertion that any weapons were within reach. At the time, however, "nobody said anything," Burke recalled. "They noticed the shots, and I told them what happened, and they proceeded to clear the rest of the field."

Burke's unit put him in for a medal for his defense of the convoy. Then, three weeks after the fight, a special agent from the Army's Criminal Investigation Division came to interview him about the shooting. After that, Burke was confined to base for months, relegated to support jobs while his comrades went out into danger day after day without him. On one of his few trips "outside the wire," to hear the charges against him read at a larger base in Baghdad, Burke's convoy was hit by a roadside bomb, severely injuring a fellow soldier; his military attorney's appeal for a change of venue was denied. Meanwhile, back in the States, Burke's wife filed for divorce.

Burke's court-martial finally convened in August 2005 to try him on charges of attempted murder. Although shot in the head, the insurgent had survived, thanks to another U.S. soldier who noticed he was still breathing and got him evacuated to an American military hospital. Burke's jury, a panel of fellow soldiers, found him not guilty after two and a half days of deliberation. "It was like the weight of the world had been lifted off your shoulders," Burke told National Journal.

Retired Army Col. Michael Pheneger, an intelligence officer (but not a lawyer) who reviewed the case for the ACLU, said, "It's different reading the documentation than actually hearing testimony in court. But I don't think I would have hesitated to vote Sergeant Burke guilty as charged. [The acquittal] appeared to have an aspect of jury nullification" -- that is, a willful refusal by jurors to convict despite overwhelming evidence.

An Army lawyer familiar with the case, who asked not to be identified, declined to dispute the verdict. "If the [victim] had been a civilian, I think that Sergeant Burke would have been convicted," the lawyer told National Journal. "But everyone knew that was a guy who just a few minutes before had been engaging our forces. Did he objectively pose a threat to Sergeant Burke? Did Sergeant Burke act reasonably? The panel thought that perhaps he did."

Despite his legal ordeal -- which he said was worse than any firefight -- Burke went on to re-enlist. "It worked out in the end," he said. "I still hold the military very dear in my heart. I truly love serving my country." His current duty is as a recruiter, persuading young men and women to join the National Guard. On his full-dress uniform, he wears the Army Commendation for Valor that he was ultimately awarded for his actions that Palm Sunday in Iraq.

  •  
  •