Should Politics and Foreign Policy Affect Our Military Justice System?

January 16th, 2012

By Dan Miller

The military justice system demands justice for our troops, not revenge upon them to curry favor with others.

U.S. Marines in Afghanistan

The video of U.S. Marines who apparently urinated on Taliban corpses has gone viral and not only the Islamic world is watching.

Ranking Government officials have condemned the suspect Marines. “Secretary of State Hillary Clinton said the incident was ‘incompatible with American values,’ while Leon Panetta, the defence secretary, said it was ‘utterly deplorable.’”  A NATO spokesman characterized their actions as despicable and said that “those responsible will be held accountable.” (Emphasis added.)  Pondered a bit, those statements are themselves “incompatible with American values,” “utterly deplorable” and “despicable.”

Norman Pattis contends here that

Odds are the young men in this film will be strung up by military authorities. They will be treated like political road kill. Expect them to stuck in a military brig right next to Bradley Manning, and to be presumed guilty by the commanders who told them to run headlong into the arms of death. We will sacrifice them to make ourselves feel better. …

The soldiers will be prosecuted. Their trial should be public. A key question at trial will be the matter of selective prosecution. Were these men prosecuted for what they did, or because there is a public record of what took place? I suspect it is the latter, and that we hypocrites don’t mind a little desecration in the service of military necessity. We just don’t want to be forced to watch it. Open the records. Tell us this never happened before; that it is unprecedented. We all know better. We know war is hell, and those who survive are singed forever by hellfire.

Do we really think Miss Manners should serve as a drill instructor?

Eric, at Unwashed Advocate, disagrees that the Marines will be “strung up” by military authorities, even symbolically:

Many people are calling for blood. They want the President and Secretary Panetta to summarily sentence the Marines to life in prison for war crimes or try them at the Hague.

None of that will happen.

I hope and think that Eric is right and that it won’t happen for the reasons stated below.  If tried by courts martial the courts will be composed of Marines, many of whom have been in combat, wounded and seen their comrades fall. They likely know what combat and its immediate aftermath are like and will judge accordingly.  That things could possibly turn out differently doesn’t worry me much because I don’t think they will.  The political motivations and passions now becoming evident do bother me.

Although the pictured actions of the Marines are understandable, they behaved immaturely — particularly in allowing themselves to be videotaped.  Here’s what Allen West, a retired Army lieutenant colonel and now a freshman member of Congress, had to say:

“I have sat back and assessed the incident with the video of our Marines urinating on Taliban corpses. I do not recall any self-righteous indignation when our Delta snipers Shugart and Gordon had their bodies dragged through Mogadishu. Neither do I recall media outrage and condemnation of our Blackwater security contractors being killed, their bodies burned, and hung from a bridge in Fallujah.

“All these over-emotional pundits and armchair quarterbacks need to chill. Does anyone remember the two Soldiers from the 101st Airborne Division who were beheaded and gutted in Iraq?

“The Marines were wrong. Give them a maximum punishment under field grade level Article 15 (non-judicial punishment), place a General Officer level letter of reprimand in their personnel file, and have them in full dress uniform stand before their Battalion, each personally apologize to God, Country, and Corps videotaped and conclude by singing the full US Marine Corps Hymn without a teleprompter.

“As for everyone else, unless you have been shot at by the Taliban, shut your mouth, war is hell.”

I agree with Colonel West.  Article 15 punishment imposed by a field grade officer could include, at most, the following:

(ii)  correctional custody for not more than 30 consecutive days;

(iii)  forfeiture of not more than one-half of one month’s pay per month for two months;

(iv)  reduction to the lowest or any intermediate pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction, by an enlisted member in a pay grade above E-4 may not be reduced more than two pay grades;

(v)  extra duties, including fatigue or other duties, for not more than 45 consecutive days;

(vi)  restriction to certain specified limits, with or without suspension from duty, for not more than 60 consecutive days;

(vii) detention of not more than one-half of one month’s pay per month for three months.

That, or less, seems adequate and punishment under Article 15 does not carry the often life-long stigma of conviction of a federal offense by general or special court martial.

The only “logical” basis I can imagine for proceeding differently against these Marines than a sensible commander of Colonel West’s caliber would might be a perceived need to demonstrate to our enemies — who do far more reprehensible things to convert living Americans into corpses and in the process or shortly thereafter to “desecrate” their bodies horribly — that the United States is “exceptional” and therefore entitled to their respect and approbation. That tactic has been successful during recent years in appeasing some Liberals Libruls at home, but far less successful in mollifying our enemies abroad. It has encouraged what seems to be an increasingly justified sense that we are weak.  Nor is it likely to work in our best interests any better now than in the past.  As I observed here, our foreign policy often leaves much to be desired.

How should our military justice system respond?

I have long been proud of our military criminal justice system, probably because I was privileged to be a very small part of it as a young Army JAG captain between 1966 and 1970.  In retrospect, that was the most professionally satisfying part of the legal career from which I retired in 1996.

After serving as a prosecutor for the command in Seoul, Korea exercising general court jurisdiction, and prosecuting enough cases well enough to be deemed reasonably competent in trial work, I was assigned to do defense work.  Later, since I was by then the senior captain in the office, I became the chief of military justice for that command when an unanticipated vacancy occurred.  During my next tour of duty, I was one of many JAG counsel appearing before the Army Court of Military Review (later the Army Court of Criminal Appeals) and U.S. Court of Military Appeals (later the U.S. Court of Appeals for the Armed Forces) in Washington. When the Congress amended the Uniform Code of Military Justice (UCMJ) to make special courts martial more closely resemble general courts martial, I was sent to the Army JAG school in Charlottesville, Virginia to study and then to become among the first special court martial military judges.  Upon graduation, I was again assigned to Korea where I presided over approximately three hundred special courts martial.

Many things caused me to respect the military justice system highly. One was the prohibition, about as absolute as it could be, against the exercise of command influence. That prohibition was stressed at the JAG school, possibly because there was a concern that we young captains-become-judges might be cowed by far more senior officers. The Manual for Courts Martial (MCM), an Executive Order supplementing and consistent with the UCMJ, provides:

Rule 104. Unlawful command influence

(a) General prohibitions.

(1) Convening authorities and commanders. No convening authority or commander may censure, reprimand, or admonish a court-martial or other military tribunal or any member, military judge, or  counsel thereof, with respect to the findings or sentence adjudged by the court-martial or tribunal, or with respect to any other exercise of the functions of the court-martial or tribunal or such persons in the conduct of the proceedings.

(2) All persons subject to the code. No person subject to the code may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case or the action of any convening, approving, or reviewing authority with respect to such authority’s judicial acts.

We were told at the JAG School that high ranking officers, including some of flag rank, had been relieved of their commands for exercising command influence.  Although some of my decisions very probably irked some commanders, none of them made any effort to communicate their displeasure to me or otherwise to suggest that I had screwed up, that I should change my ways or anything else.

Although not themselves subject to the UCMJ, the Commander in Chief, Secretary of State and Secretary of Defense should respect the intent of the MCM, an Executive Order. They should not take actions which, if taken by a commander, would amount to command influence.  Leaving aside all other considerations, they should refrain because defense counsel in a military trial would likely raise what they had done — possibly by analogy to command influence and at least in the context of pre-trial publicity. Counsel’s failure to do so could and probably would be cited as incompetence in any subsequent appeal.

In sensitive cases, justice has become politicized.

Major Nidal Malik HasanKhalid Sheikh MohammedThe Obama Administration referred to the November 5, 2009 attack by Major Hasan at Fort Hood, Texas as workplace violence rather than as terrorism or any other species of Islamic Jihad.  Presumably, the administration deemed that appropriate as a matter of foreign policy, to avoid giving offense to Islamic countries. The administration should have remained silent.  Fortunately, Major Hasan has finally been scheduled for trial by general court martial commencing in March of this year and could be sentenced to death; he should be. Khalid Sheikh Mohammed (KSM), the alleged “principal architect” of the September 11, 2001 massacres at the World Trade Center and elsewhere, captured on March 1, 2003, has yet to be tried.

On 1 February 2010 White House spokesman Robert Gibbs told CNN that “Khalid Sheikh Mohammed is going to meet justice and he’s going to meet his maker. He will be brought to justice and he’s likely to be executed for the heinous crimes he committed”. The White House spokesperson’s statement has been criticized as violating the principle of the presumption of innocence and has been characterized as egregious by an attorney of Guantanamo Bay detainees.

On 7 January 2011 US President Barack Obama signed National Defense Authorization Act which explicitly prohibits the use of US Defense Department funds to transfer detainees from Guantanamo Bay to the United States or other countries. It also bars Pentagon funds from being used to build facilities in the United States to house detainees, as the president originally suggested. The move essentially barred the administration from trying detainees in civilian courts. The president objected to the provision in the bill before signing it, calling it “a dangerous and unprecedented challenge to critical executive branch authority” but also said his team would work with the US Congress to “seek repeal of these restrictions.”

On 4 April 2011 Attorney General Eric Holder announced that Khalid Sheikh Mohammed and four other 9/11 terror suspects will face a military trial at the Guantanamo Bay detention facility. In announcing his decision, Holder was highly critical of Congress for imposing restrictions on the Justice Department’s ability to bring the men to New York for civilian trials.

My views concerning a civilian trial of KSM and others like him are expressed here and here. Such trials would very likely become publicity circuses; that happened before and it seems reasonable to expect the same for future such trials. The same should not happen for military trials.

The manner in which the offenses of Major Hasan and KSM were initially treated is relevant to how the unfortunately absurd videotaped actions of the Marines have been and conceivably might in the future be treated.  The offenses of Major Hasan and KSM were in many respect treated as political matters, to garner favor (or at least to minimize disfavor) with some in the United States and in foreign countries. That’s bad. To subject the Marines to different forms of prosecution than would have been used if they had not stupidly gained international notice by calling attention to themselves would deviate perversely from the sort of military justice we have generally had and to which we should still aspire.

Justice has no proper function of demonstrating to our enemies, or even to the rest of the world, how “exceptionally” interested we are in appeasing and being loved by our enemies — and by doing so how perverse our systems of justice can become. I have faith based on my own experiences with military justice that that will not happen here, and certainly hope that it won’t.

(This article was also posted at Dan Miller’s Blog.)

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5 Responses to “Should Politics and Foreign Policy Affect Our Military Justice System?”

  1. Tom Carter |

    I’ve been watching the media coverage of this incident (coverage of the video, actually) with a certain amount of disgust. My general reaction is similar to that of Allen West.

    Those who are highly critical and outraged by incidents like this, most on the left but some on the right, are generally not qualified to pass judgment. Those who have never been in combat, or even in the military, don’t have a clue what it feels like or how it changes people. When you’re engaged in kill-or-be-killed actions, it’s impossible to maintain a civilized point of view toward those who are doing their very best to take your life. Inflicting a final indignity on the body of a vanquished enemy is as old as combat itself, and it has often taken much more grisly forms that pissing on the bad guys.

    And think of the hypocrisy of the outraged, comfortable citizens denigrating Marines from their cocoons of safety and comfort — they know full well that our soldiers are trained and equipped to kill. They blow heads apart, scattering brains and skull all over; they turn human beings into grisly masses of meat with explosive weapons of all kinds; and they sometimes inadvertently kill noncombatants, which distresses no one more than the soldiers themselves. Don’t like all that, you say? Well, bring them home and be more selective the next time you send them into combat. Otherwise, as Rep. West said, “shut your mouth, war is hell.”

    Perhaps the most absurd reaction of U.S. officials to this incident was the telephone call from Secretary of Defense Panetta to Afghanistan President Hamid Karzai in which he apologized for the Marines’ behavior. The U.S. apologizing to the president who would be much worse abused while still alive if the Taliban could get their hands on him….

    I agree with you, Dan, that the military justice system will most likely do the right thing. Article 15, at most, is appropriate for these Marines, mostly for being stupid enough to video themselves.

  2. Dan Miller |

    Thanks, Tom

    You were in combat and I never got near it. I’m glad to understand that our views about this pretty much coincide.

  3. larry |

    One of those rare occasions when I’m in total agreement with Mr. Tom.

  4. Tom Carter |

    Here’s an article that puts it all in perspective, written by an American Muslim woman who’s a journalist and knew Danny Pearl. Well worth reading!

  5. Dan Miller |

    Tom, I read it. That does rather put it into perspective.

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