Post by Anja Nieser on Sept 10, 2006 22:25:16 GMT -5
Murder, military and wisdom of 'warrior judgment'
This last week, an officer responsible for investigating the killing of
several Iraqi civilians by four U.S. soldiers from the 101st Airborne
Division in Iraq recommended that they be charged with premeditated murder
and face the death penalty. If the commanding general of the division
accepts this recommendation, which is the common practice - he will send
these charges to a general court-martial that will ultimately decide their
fate, possibly sentencing them to death.
If these cases reach a military courtroom, they will no doubt trigger
debate on the "justice" of trying American soldiers for their conduct in
battle. The prospect of four Americans - all of whom volunteered to fight
this war on behalf of the nation - being sentenced to death for killing
Iraqi detainees will strike many as an ultimate symbol of hypocrisy.
Why should such cases be pursued? And Why should the American
peopleAmericans, on whose behalf these soldiers went to war, have
confidence in the legitimacy of the process that is grinding forward
toward s trial? These are important questions that can only be answered by
understanding both the importance of preserving discipline on the
battlefield and the quality of the military justice system.
War, no matter what term politicians use to describe it, is a brutal
business for those called upon to fight. Soldiers are not asked, but
required to inflict death and destruction wherever their commanders order
them to do so. But for as long as war has been an organized endeavor,
military leaders have understood the need to place limits on this
brutality.
These limits serve the interests not only of innocent victims of war, but
also of the warriors themselves, by providing a framework enabling them to
reconcile the consequences of their conduct with their innate sense of
morality. The most fundamental tenet of this framework is that soldiers
are obligated to kill, but only when killing is justified by the
requirements of military necessity. Once an enemy has been subdued, no
such justification exists.
When soldiers violate this framework by killing for personal revenge
instead of the necessity of war, they endanger not only the legitimacy of
the national objective, but also the discipline of their own units. It is
principally this latter reason, and not an obsessive focus on "legalism,"
that compels commanders to investigate and punish such misconduct. If
these allegations are true - that soldiers released a detainee simply to
create a false justification to kill him - the killing serves as a
reminder that not all killings on the battlefield are the same, and that
the line between justification and revenge must be preserved. Ignoring
such misconduct dilutes this fundamental tenet of warfare not only for the
soldiers involved, but for the entire unit.
The military justice system is uniquely suited to respond to such
allegations of battlefield misconduct. Unfortunately, the media focus on
the military commissions at Guantanamo may have created among many
Americans the false perception that these special tribunals are indicative
of the military justice system. Nothing could be further from the truth.
A general court-martial is a well-established judicial proceeding,
affording in many cases more protections for a defendant than exist in
state or federal criminal courts. But of all the attributes of this
system, perhaps the most significant in relation to why Americans should
have confidence that justice will be served in these and similar cases is
the unique role of military leadership in the military justice process.
These cases cannot be tried by a general court-martial unless the
commanding general of the 101st Airborne Division decides that such a
response is appropriate. Although in making this decision, the commander
will be advised by a highly qualified legal officer; it is ultimately his
"warrior judgment" that will prevail. This special role of military
commanders is no accident.
It is a reflection of the very foundation of the military justice system:
that justice in the military context involves a balance between individual
rights and the interests of preserving a well-disciplined force.
The same confidence the American people place in our military commanders
to lead our young men and women into combat must be extended to their
judgments on the necessity to bring such cases to trial. Such decisions
reflect the wisdom of experienced and battle-hardened leaders who
understand intuitively the importance of dealing with battlefield
misconduct through the military justice process. Like the military leaders
who preceded them throughout history, such judgments reflect an
understanding of warfare that Americans must respect, even if they might
not totally understand.
(source: Houston Chronicle, Viewpoints -- Geoffrey Corn is a professor at
the South Texas College of Law and a retired JAG lieutenant colonel)
This last week, an officer responsible for investigating the killing of
several Iraqi civilians by four U.S. soldiers from the 101st Airborne
Division in Iraq recommended that they be charged with premeditated murder
and face the death penalty. If the commanding general of the division
accepts this recommendation, which is the common practice - he will send
these charges to a general court-martial that will ultimately decide their
fate, possibly sentencing them to death.
If these cases reach a military courtroom, they will no doubt trigger
debate on the "justice" of trying American soldiers for their conduct in
battle. The prospect of four Americans - all of whom volunteered to fight
this war on behalf of the nation - being sentenced to death for killing
Iraqi detainees will strike many as an ultimate symbol of hypocrisy.
Why should such cases be pursued? And Why should the American
peopleAmericans, on whose behalf these soldiers went to war, have
confidence in the legitimacy of the process that is grinding forward
toward s trial? These are important questions that can only be answered by
understanding both the importance of preserving discipline on the
battlefield and the quality of the military justice system.
War, no matter what term politicians use to describe it, is a brutal
business for those called upon to fight. Soldiers are not asked, but
required to inflict death and destruction wherever their commanders order
them to do so. But for as long as war has been an organized endeavor,
military leaders have understood the need to place limits on this
brutality.
These limits serve the interests not only of innocent victims of war, but
also of the warriors themselves, by providing a framework enabling them to
reconcile the consequences of their conduct with their innate sense of
morality. The most fundamental tenet of this framework is that soldiers
are obligated to kill, but only when killing is justified by the
requirements of military necessity. Once an enemy has been subdued, no
such justification exists.
When soldiers violate this framework by killing for personal revenge
instead of the necessity of war, they endanger not only the legitimacy of
the national objective, but also the discipline of their own units. It is
principally this latter reason, and not an obsessive focus on "legalism,"
that compels commanders to investigate and punish such misconduct. If
these allegations are true - that soldiers released a detainee simply to
create a false justification to kill him - the killing serves as a
reminder that not all killings on the battlefield are the same, and that
the line between justification and revenge must be preserved. Ignoring
such misconduct dilutes this fundamental tenet of warfare not only for the
soldiers involved, but for the entire unit.
The military justice system is uniquely suited to respond to such
allegations of battlefield misconduct. Unfortunately, the media focus on
the military commissions at Guantanamo may have created among many
Americans the false perception that these special tribunals are indicative
of the military justice system. Nothing could be further from the truth.
A general court-martial is a well-established judicial proceeding,
affording in many cases more protections for a defendant than exist in
state or federal criminal courts. But of all the attributes of this
system, perhaps the most significant in relation to why Americans should
have confidence that justice will be served in these and similar cases is
the unique role of military leadership in the military justice process.
These cases cannot be tried by a general court-martial unless the
commanding general of the 101st Airborne Division decides that such a
response is appropriate. Although in making this decision, the commander
will be advised by a highly qualified legal officer; it is ultimately his
"warrior judgment" that will prevail. This special role of military
commanders is no accident.
It is a reflection of the very foundation of the military justice system:
that justice in the military context involves a balance between individual
rights and the interests of preserving a well-disciplined force.
The same confidence the American people place in our military commanders
to lead our young men and women into combat must be extended to their
judgments on the necessity to bring such cases to trial. Such decisions
reflect the wisdom of experienced and battle-hardened leaders who
understand intuitively the importance of dealing with battlefield
misconduct through the military justice process. Like the military leaders
who preceded them throughout history, such judgments reflect an
understanding of warfare that Americans must respect, even if they might
not totally understand.
(source: Houston Chronicle, Viewpoints -- Geoffrey Corn is a professor at
the South Texas College of Law and a retired JAG lieutenant colonel)