Durable Myths about acceptable rules of law
JAG Hunter here: Top pentagon attorneys, or TJAGs, speaking before the House Armed Services Committee last Thursday, worked to disabuse federal legislators that the formation of super-military tribunal—crafted to be especially sensitive to the collection and use of evidence—was necessary in response to the Supreme Court Hamdan decision.
Regrettably these officers, while they are appropriately concerned with abuse of enemy combatants, are perfectly content allowing those same outrages to be visited upon American servicemen and their families under the cover of a U.S. military discipline system over two-centuries old and roundly condemened since the 1920s.
For instance, Brigadier General (one-star) James C. Walker, Judge Advocate, Marines (JAM), is quoted “I’m not aware of any situation in the world where there is a system of jurisprudence that is recognized by civilized people, where an individual can be tried without, and convicted without seeing the evidence against him.” Ironically, Brig. Gen. Walker was describing the U.S. military discipline system with precision.
Brig. Gen. Walker added that the United States "should not be" the first country in the civilized world to deny an accused the right to see evidence presented against him. Well, any serious student of military discipline can tell you controlling evidence has been in vogue with U.S. military commanders and judge advocates since at least World War I, and America is by no measure the first nation-state to favor the practice.
Navy TJAG Bruce Macdonald told HASC Chairman Duncan Hunter “I can’t imagine any military judge believing that an accused has had a full and fair hearing if all the government’s evidence that was introduced was all classified and the accused was not able to see any of it.”
As it happens, Walker and Macdonald are protecting a court-martial wherein these exact abuses occurred as reported here at the JAG Hunter, at Citizens Against Military Injustice and in the Seattle Post-Intelligencer. In fact,
Contrary to TJAG testimony before the HASC last week, control of evidence, especially as it goes to the use of confessions has a long military history. Army TJAG Sam Ansell complained specifically over the illegality of confessions just after World War I. Ansell was ignored and the practice flourishes. At this very moment the men who form the group known as “The Pendleton Eight,” along with their lawyers and families, are screaming about confessions coerced by NCIS goons (BBs as I refer to them).
As Navy TJAG Macdonald and Marine TJAG Walker realize, when confessions can’t be coerced, they can just as easily be drafted for the accused, forged, and secretly inserted into a military record of trial. Both Macdonald and Walker are themselves protecting, for instance, the forgery of former USMC Captain Kevin M. “Andy” Anderson.
In another important and public example of abuse, DNA evidence is being withheld by the Navy-Marine Corps JAG team in the case of Marine Kevin Holt.
Other examples are as ubiquitious as they’re pernicious.
So why did the TJAGs lie to Congress?
Congress has never properly reconciled America’s military government (under the Articles of War since renamed the Uniform Code of Military Justice or UCMJ) with America’s peacetime government under the Constitution. Pushed by the president after the Supreme Court’s Hamdan decision, Congress is about to make more a hash of it.
Well, launching open debate on the long simmering questions regarding abuses under U.S. military discipline would be like launching a torpedo with a known guidance system defect. The torpedo might run straight, or it might reverse itself to acquire and destroy its launch platform.
Unexampled public examination of those abuses narrated here and elsewhere runs the risk of inciting public outrage, revulsion, recoil, and long awaited reform. Aside from the mistreatment of American forces, there is an interesting conflict worth discussing arising over the roles played by particular federal legislators. In the argument regarding the scope and operation of military government, do Senator Graham and Representative Buyer follow the orders of their commander in chief, or do they legislate in compliance to the will of constituents?
I say let the debate rage on…in plain view of the public!
Here endeth the lesson.
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