Monday, December 08, 2008

TWIMJ Supplemental - Warner/Behenna to Be Arraigned

Forgot to pass this on to CAAFlog, so I'll supplement This Week in Military Justice. The Tulsa World (I am sorry, but the paper's name is . . . something) reports here that Staff Sgt. Hal M. Warner and 1st Lt. Michael C. Behenna will be arraigned at Ft. Campbell, Kentucky today on charges including premeditated murder, false official statements, and obstruction of justice. The report states that the soldiers face a maximum punishment of LWOP, but I don't exactly have a lot of faith in the news media in getting that one correct--we'll track it down. If you recall the charges are that, as The World reports, "Behenna of stripp[ed a] detainee naked, [shot] him in the head and chest and watch[ed] as Warner set fire to the body with a grenade." Neither soldier is in pre-trial confinement, according to the story.


Anonymous said...

What do you not understand? You have no faith that a murder of a haji equals non-capital referral? You either are a dim bulb or you've never been deployed. This soldier will face LWOP at worst. If I were on the panel, he'd face a silver star...

Anonymous said...

Wow. Just... wow. With comments like Anon 1726, it can be hard to tell who the real terrorists are.

Anonymous said...

I hate to partially agree with Anon 1726, but the commentary of the legal community about acts that have taken place in a war with no front lines, especially when many of those commenting have never been there are a bit arrogant.

Now I’m not putting anyone in for an award, but is it any surprise that some of this happens over there? Many of these prosecutions are political in nature and I can only hope that the members either acquit or lightly punish. If I was on the defense team I would move that all members of the panel must have served at least one combat tour in country. Without such a tour, it isn’t a panel of the accused’s peers.

I know the international law issues and I know that that some have opined that the foreign fighters have arrived in country because of the abuses by Americans, but unless you have walked in the accused’s shoes and repeatedly received small arms fire, IED attacks, and IDF from the very people you are there to help, then your comments about the right and wrong of a particular action carry little weight. As many have previously indicated, this war has complexities facing grunts that have never been faced previously, and I say that with all due respect for Vietnam vets. We are expecting absurdly high standards from junior troops and we are seemingly giving passes to the senior folks responsible.

I’ll be the first to admit that I know little of the actual case, but knowing what I know of Iraq, I’d be leaning to reasonable doubt of in favor of some affirmative defense.

John D Murphy said...

While there may be cases out there involving our troops having to interpret rules of engagement in the face of an uncertain environment and deserving of more sympathy, this is not the one to hang your hat on. The facts just don't bear out. This was the type of scenario where, when you read the facts, you say to yourself, "Wow, this dude committed a war crime." Yes, that's right. Violation of Geneva Conventions. War crime. Not "what's the definition of personal dignity" namby-pamby liberal human rights organization stuff, but hard core, cold-blooded murder of a protected person type of war crime.

Cap'n Crunch said...

Stripping a detainee naked, that is, someone who is clearly secured and not a threat -- even if he's the worst al queda guy out there, and then putting a round in the back of his head, if true, needs to be referred capital. That is some cold blooded, bad bad juju.

Why? Because, if we say what these two did is OK -- if we condone it, if we reward it by turning our heads the other way, then we are no better -- and no different -- than Al Queda. Because what these guys did is on par with chopping the head off of an American detainee and putting it on Al Jazeera. Its terrorism.

If America and the American way of life is to be protected, then punishing these cold blooded murderers with the most serious punishment possible, or at least pursuing it, must be done.

This isn't a fog of war deal, or a nicety of ROI/Law of war question. This isn't anything but terrorism and murder perpetrated by two individuals who wore the U.S. uniform.

The Cat said...

I take STRONG issue with this comment from Anon 19:32:

"I hate to partially agree with Anon 1726, but the commentary of the legal community about acts that have taken place in a war with no front lines, especially when many of those commenting have never been there are a bit arrogant."

Excuse me, you mean I needed to have served in WWII before I can comment on the holocaust? You mean I needed to have served in Vietnam before I can comment on a soldier ordering women and children into a ditch and then just mowing them down? And if I do, I am some how arrogant? That is patently ridiculous.

The charges alleged here, if true and proven true, would no doubt show these soldiers committed one of the worst war crimes imaginable. Taking a detainee, who at that moment is captured, defenseless, and out of the fight and stripping him naked, shooting him, and then burning his body is and should be patently offensive to anyone who takes pride in the uniform they wear. AND BELIEVE ME, IF THAT DETAINEE WAS AL QAEDA OR AN INSURGENT, MY HEART DOES NOT BLEED FOR THAT PERSON!!

Now, I dare not pass any judgment on whether the CA should have referred such offense as capital. I do not, at this time, because I am unaware of what the CA had before him to consider when deciding how to dispose of the alleged charges. Without such knowledge, it is unfair for me to make any judgments.

I understand (and need not be in country to do so) that our troops face unimaginable stresses, horrors, and human indignities. Our enemy ignores rules of civilized warfare and fights in a dishonorable and cowardly fashion. But that does not mean that our troops should be excused for committing such offenses (assuming they are proven). As a person who wears the uniform, I take pride in the honor and image we portray to the American people and to the people in the world. When one of our own dishonors the uniform, we need to make sure he is held accountable or else his stain becomes our stain.

As I learn more facts about the case, including those known to the CA at the time he made the referral decision, I may be able to honestly state whether I agree or disagree with his decision to not refer capital. But until then, I will reserve any judgment, but I will also reject any notion that because I may or may not have served in country or in a combat zone, that I am somehow incompetent to judge such conduct.

Anonymous said...

I’d never thought about taking on the Cat, but here goes.

First, commentating upon the Holocaust is qualitatively different than assessing what uniformed soldiers do to “belligerents” in a combat zone. I think you can see the disparity between the two. Granted the facts reported indicate that the decedent was no longer a belligerent, but those are the facts alleged, not proven.

My father was a multiple tour SF in Vietnam and after hearing stories about what they did there, I can see the similarities between that war and this one, although that war had, at least on paper, lines.

In Iraq the soldiers have had to endure multiple mission shifts and performing state department missions. This has led to uncertain ROE. Now for those of you who have the pleasure to meet foreign fighters in Iraq, Iraqi insurgents, and even the “innocent” Iraqi nationals, you will understand one thing and one thing only: Never trust them. It sounds harsh, but in their culture lying is not a moral wrong. It was also apparent to me that they do not give the same value to a human life.

Why do I mention this? Because until you have had daily interaction with Iraqis, been targeted by insurgents, watched your best friend get blown to shreds by an IED, and discovered that the approved ROE do not allow for anything other than to go out tomorrow and be the bait again, you will have a problem understanding what went on in the mind of any Iraqi campaign accused.

I’m the first to indicate that although our adversaries care little about the LOAC, we, as Americans should and must. We set the example and we should judge our own who fail to do so. But I am also saying is that the judgments of those who have no idea what it is really like, should be tempered, to a degree. Yes, you can judge whether a factual cold-blooded murder is murder. As I indicated previously, I may lean for an affirmative defense, like mental competency, not just that the Govt failed to prove the case beyond a reasonable doubt. You as a lawyer, should similarly hold judgment until the facts have come in.

I’ve been there and I’ve been involved with numerous soldiers whose lives have been permanently and negatively altered by their tours in Iraq. BTW, your empathy for the stresses and horrors faced by our soldiers rings hollow in your ability to pass judgment on persons who have faced those stresses and horrors in real terms when you can only place a label upon them. You would have had to been a Holocaust survivor to truly understand what it was really like.

The Cat said...

My empathy rings hollow? You've got to be kidding me. I have to be a holocaust survivor to experience the empathy for those who survived and those who didn't? I have to know what they went through as actually having experienced it before I can make any kind of comment on it? Give me a break.

Let's break this down, the alleged facts are soldiers took an unarmed, out of the fight, captured, and incapable of fighting in any way detainee; stripped him naked; shot him in the back of the head; and then burned his body. Now, please explain to this wet-behind-the-ears person who has never had to engage the enemy and never shot at anyone how there is any discretion under the ROE to do such an act? I am sorry, but we are not talking about going house to house looking for insurgents and with less than a moment having to make the decision as whether to engage or not. We are not talking about being out and seeing a potential threat that is in the gray area of the ROEs and having to make a split-second decision whether or not to engage. THERE WOULD NEVER BE A CIRCUMSTANCE UNDER THESE ALLEGED FACTS WERE THE ROEs WOULD PERMIT THE KILLING!!!

Now, I thought I made clear in my above remarks that I am not passing judgment: 1) on whether the crime should be referred capital until I know everything the CA knew at the time of referral; and 2) whether or not these alleged facts are even true until I see the evidence in court. And obviously (and should go without saying, but unfortunately I must) until I hear all of the evidence in aggravation, mitigation, and extenuation, I will reserve judgment on whether the imposition of death would be appropriate.

The purpose of my above remarks was to challenge the idea that I need be in the field before I can make a comment about such an act. No one need be for the alleged facts here. Assuming, for the purpose of this argument, the facts are true, there is NO DISCRETION!! THERE IS NO DOUBT, or GRAY AREA as to whether it was lawful under the LOAC or the ROE.

I am with you when called upon to judge a shooting in the line of fire, in the combat zone, with a split second to make a determination that falls within the gray area of the ROEs. But you know what, or system has always had jurors and members make such calls even if they never served in a combat zone. Take a police officer being second guessed for usuing deadly force. Lawyers who may have never been a cop have to make judgment calls on whether to prosecute, and jurors who have never served as a cop are called upon to pass judgment. That is nothing new for our system, and it works pretty well.

Further, JAGs, who have never served in actual combat, routinely, and with great competence and professionalism, are advising combatant commanders on the ROEs, drafting ROEs, and advising on the LOAC in relation to lawful belligerent activities. The proof is in the pudding, as they say, because these combatant commanders are not only asking to have a JAGs, more and more of them are demanding to have JAGs and there are not enought to give each of them one.

But on the allleged facts here, if true, it is not even a close call. That would be like saying the Holocaust was a close call.

Anonymous said...

First Anon: From reading the post, I think Mr. Navarre was only cautioning against relying on the news media to accurately interpret the technical facts regarding referral, not opining on whether or not the case should be a capital case.