Saturday, June 21, 2008

How to Start a Commentariat #$%*storm: Haditha

I removed a comment I made on one of CAAFlog's posts about the Wuterich and Chessani cases because I was worried about politicizing CAAFlog. But, on second thought, as a minority shareholder in CAAFlog, I am going to re-post the comment--with some additional food for thought--as a post.

I find this whole Haditha issue an interesting play on the politics of America. The primary source of my fascination is the reaction of self professed "law and order" advocates to the courts-martial of Marines involved in the killings that occurred in Haditha, Iraq.

In my experience, a lot of law and order advocates believe that the justice system is the place to determine guilt or innocence. While I consider myself a law and order person, it disturbs me that there are people that call themselves advocates of law and order yet lambaste the prosecution of what, in initial investigations/reports, looked like a potential war crime and cover up in Haditha. These same critics then go on to blast people like Rep. Murtha for calling for the accused Marines to be prosecuted. While I agree that Rep. Murtha went way over the top on the rhetoric, and think he should be rightfully criticized for his over the top rhetoric, I don't disagree with his underlying premise of prosecuting (not pre-judging) the suspects in the case based on what initial investigations showed were potentially criminal actions. If the facts were just slightly different, the law and order types would be calling for the heads of the suspects based on the same facts. We would see L&O advocates saying, well if these Marines really are innocent, the justice system will work its course.

Amazingly, that is exactly what is happening with the Haditha cases, though much to the chagrin of the international audience. Once the Wuterich trial is resolved, and I guess the final chapter in the Chessani one as well, we will know exactly what the justice system has said on the whole Haditha incident. Do we know all the facts? No, of course not. Until then, I think the information I have seen includes enough facts to let the system run its course and validates commanders' decisions to refer charges. I grant the critics/cynics/and everyone else that will post a comment, that I don't know all the facts, but neither do the commanders. They are relying on professionals and professional investigators, just like they do in every other case. Those same investigators don't suddenly now have an agenda just because someone doesn't like the kind of crime they are investigating. Maybe I am nutty, but I thought this process was what being a law and order person and a fan of the military justice system meant.


Bill Buckner said...

No Man,

Your observations seem reasonable enough. Politics is inevitably mixed-in with these cases. This is both good and bad. Good, because it means that people care - and in this context, want to give soldiers/Marines great latitude in a war zone. Bad, because, as Madison said, "political parties are the places that we organize our animosities." So, we will get some hate and discontent from these cases.

I did not follow your "law-and-order" argument. To me, the "law-and-order" types, in a caricature, place the highest value on detering and punishing crimes. This value, to them, outweighs other concerns, such as individual rights, limited government, and such a tight focus on "prejudice" at the appellate level, that bad government acts are both permitted and excused. L&O people are not stupid; they constitute the majority of the American people. I respect them and agree with them 80% of the time. Its only when, like in Spinal Tap, they try to turn the volume up to 11, that I must cringe. And the L&O types often post, usually anonymously, on CAAFlog, with terse, rude, dismissive, "defense-is-stupid-unpatriotic-anarchist-doesn't care about victim" drive-by comments. Thats fine. They chose the right profession to vinidicate their passion. Read Samual Huntington's famous essay on "The Military Ethic" (and the military mind) to deconstruct what that's all about.

But it is irnonic that most conservatives purportedly support limited government and defer to the military and to soldiers. So the cognitive dissonance in a case like Haditha would be almost amusing to watch, if not for the tragedy. The amen corner of the "L&O" types, bolstered by the Parker v Levy "military is a special society" crowd, who normally enjoy squashing military miscreants like bugs, are now "supporting our troops." Wow. I wish I could have gotten that kind of support for my client who went UA to be with his dying mother, after his command said, "no." Or I wish I could have gotten that kind of support for my client went UA after his supervisor beat him up. But, no, "good order and discipline" and "law and order" dictated no.

Finally, I do not believe in the detached view of prosecution implied in your post. According to this view, criminal trials are somewhat like hypothesis-testing experiments. The stakes are too high and the costs too great for this view. I believe that both the command and the prosecutors must themselves believe that the accused is 100% guilty and deserving of punishment before pressing charges. No "let the members decide" mumbo-jumbo. No "send a message" mumbo-jumbo (at least not as a primary concern). The decision must include a reasonable anticipation of the defense and the liklihood of conviction. This component may have been lacking in the decision to go forward with the Haditha prosecutions.

Cloudesley Shovell said...

There are those whose view of the law is shaped by the "big book-little book" theory. Smack other people with the big book, but when it comes to me and my buddies, use only the little book. This includes those that justify all sorts of law- and rule-breaking if it benefits the prosecution of some presumably guilty person, because, you know, it's OK if it's done to get a "bad guy".

This attitude is rather universal; it has nothing to do with politics, as far as I can see. People across the political spectrum succumb to the lust to punish others they perceive to be guilty of some wrong, differing only in the view of how bad, or not, the wrong is.

With regard to the Haditha allegations, and to other war crimes allegations generally, I have made my opinions previously known. There are those who see a war crime lurking behind every dead civilian, and call lustily for some heads to roll. The reality of war, and the reality of the law of war, is not so clear cut. That is particularly true where the enemy routinely violates the law of war. The whole point of requiring uniforms, command structure, carrying arms openly, etc., is to protect non-combatants and civilians, because once the enemy looks like a civilian, every civilian is at risk. The law of war, of course, puts the liability for civilian deaths in these situations on the unlawful combatant, not the shooter.

Given the initial facts of Haditha, it could have been either a war crime, or an unfortunate result of fighting an enemy that does not respect the laws of war. It's too bad that people were and are all too willing to assume the worst of our own troops, especially when its common knowledge the enemy routinely violates the laws of war. Why don't we hear more about the enemy's perfidy?

One final comment on your statement that "the justice system is the place to determine guilt or innocence." I'll borrow Vincent Bugliosi's rant on this subject. Under our system of justice, it is never ever the role of the justice system to determine innocence. Ever. The accused is presumed innocent. The only role of the criminal justice system is to determine whether the prosecution has proven its case beyond a reasonable doubt. It only determines guilt, not innocence.

No Man said...

Either Bill Buckner's comments went . . . between my legs . . . or he is advocating a re-write of the preferral and referral standard. RCM 601(d), as we all know, says that when the CA finds or has been informed that there are "reasonable grounds to believe that an offense triable by a court-martial has been committed and that the accused committed it, and that the specification alleges
an offense, the convening authority may refer it."

That's discretionary and a lower standard. The potential success at trial is obviously a consideration in the discretionary element. However, as CAAFlog would note, the anti-truth seeking rules at a court-martial may place the CA in a better place to know whether the offenses occurred. Thus, there is a bit of hypothesis testing going on. It must be a reasonable hypothesis, but it need not be a certainty.

Furhtermore, Cloudesley confuses me with his presumption shifting. If one is presumed innocent and the government doesn'r rebut the presumption then the presumption remains? Thus, hasn't the MilJus system determined guilt or innocence. It's a small point but one that always confused me. The jury may only vote guilty/not guilty. But, the system determines guilt or innocence. See Art. 51.

Cloudesley Shovell said...

Perhaps I did not clearly state my thoughts . . .
A factfinder at a criminal trial never determines innocence. An accused is already presumed innocent (it would be better to say presumed not guilty), right up until the moment the factfinder announces a finding of guilt. Thus, a criminal justice system never determines innocence. By that I mean that no factfinder is never asked to decide whether someone is innocent, because to do so would shift the presumptions and burdens of proof. Innocence is never at issue.

Defense counsel should always object to any comment in the courtroom that suggests that the factfinder determines guilt or innocence. Once it is presented as an either-or scenario, the factfinder might lapse into thinking, "well, he's not entirely innocent, so he must be guilty."

Also, a not guilty verdict means just that--the prosecution did not prove guilt beyond a reasonable doubt. It does not mean the accused is innocent. Thus, our criminal justice system does not determine innocence. If it did, nobody could ever be found civilly liable after a not guilty finding.

Hope that makes sense. Vincent Bugliosi explains the issue much better than I can in his book "Outrage" (which out to be required reading for any criminal trial lawyer).

Bill Buckner said...

No Man,

In 1980, when I played for the Cubs, I won the batting title with a .324 average. My legal arguments should fare as well.

I believe you are partially correct in law, but completely wrong in practice.

The constitutional standard to determine guilt in criminal cases is "beyond a reasonable doubt." This is the pink elephant in the room. But I can't force anybody to look at it.

RCM 601, is not of statutory or constitutional signficance in regard to the legal standard for conviction. You are free to separate the legal standard for bringing charges from the legal standard to gain a conviction - and the law permits this distinction - but I just think this is confusing the issue of legal authority with the sound administration of justice.

The purpose of RCM 601 is to establish the legal authority for referals, not a legal standard. United States v. King, 28 M.J. 397(C.M.A. 1989).

Referals are not self-executing mindless exercises (act, rumor, suspicion, charge-sheet). Under your suggested RCM 601 standard, I heartily agree that its all CA discretion. All discretion and no law, that is. But lawyers are paid to provide their commanders with advice to inform that discretion. What kind of lawyer would say, "Gee, I'm not real sure if he committed the crime. I recommend we let the members decide"? Thats just bad lawyering.

I stick to my argument that the SJA (and prosecutor) should actually - themselves - believe the accused is guilty beyond a reasonable doubt. (If my "100% belief" comment distracted from this point, I apologize) I do not think this is a radical view at all. And I do not believe that RCM 601 has any practical effect on this standard.

The limits on "truth-seeking" are policy-driven, are probably not substantial enough to tip the balance in most cases, and anyways should be taken into account in the recommendation to go forward. I also think that a good prosecutor will anticipate defenses and calculate that in to the decision to prosecute.

That being said, I know that, for example, Model Rule 3.8 Special Responsibilities Of A Prosecutor states that the prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(and probable cause is the lower standard you are talking about; but again, I am trying to distinguish between legal authority and sound legal advice)

(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

By the way, is my suggestion really a problem? Are lots of military prosecutors really losing sleep worrying about whether the guy they are prosecuting is really guilty or not? I don't think so.

But if they are wondering, then I think we have a problem, and RCM 601 is too weak a pill to ameliorate that sickness.