Thursday, April 28, 2005

What is Justice -and for whom?

There are a couple of recent military law cases that concern me a good bit. It worries me that the split-second, judgment calls men make in combat now seem to be subject to being second-guessed by others whose duty station is far behind the lines.

Ilario Pantano is in the middle of an Article 32 investigation (the military equivalent of a Grand Jury hearing) for shooting two Iraqis during a search for terrorists. And Capt. Rogelio Maynulet is being dismissed from the Army for killing a wounded Iraqi in what has been described as a "mercy killing." There are excellent accounts of both cases on the net, and I'm not going to rehash them here - My issue here is that I see these cases as symptomatic of a disturbing trend in military justice, and not as abberations.

I've seen a lot of commentary in the media and on the web from both supporters and detractors of the two men, and I find much to disagree with on both sides. I certainly don't endorse the position that some defenders of Pantano and Maynulet take when they argue that anything goes in war, that the people who were killed were the enemy, so screw them. There are rules in warfare - about not targeting civilians (which is not the same thing as not killing civilians - an important distinction the left is apparently incapable of understanding), and about caring for the wounded - even wounded enemies. I firmly believe that, even when, as is the case with the Iraqi insurgency, our enemy doesn't obey the law of land warfare, we should. The Geneva Convention is largely founded on a pragmatic, "quid pro quo" approach to minimizing unnecessary suffering in war (You don't shoot our civilian population, and we won't attack you wearing civilian clothes. You take care of our wounded and we'll take care of yours. And so on . . .) However, I think that the United States has a moral obligation to do the right thing, and to expect its soldiers to do the right thing, even when the enemy manifestly doesn't.

However, there's a huge difference between a deliberate or malicious act that deserves punishment, and a decision - made in good faith at the time - that turns out to, with the benefit of hindsight, to have been wrong.

My perception, and the perception of many serving soldiers that I've discussed this with, is that, in these cases, the military is bowing to pressure from the media and the left (that is, by the way, a distinction without a difference) and is trying to draw a bright and shining line that excludes any possible grey areas. By doing so, they're changing the relationship between the combat soldier and the military justice system - and doing so to the detriment of combat effectiveness.

There are always grey areas in combat. I understand the argument that mercy killing is a slippery slope, but the reality is that it happens in war - sometimes even to a comrade instead of an enemy. More than one medic from previous wars will - maybe only around men who understand, and after a few drinks - admit to an extra injection of morphine to end a suffering comrades life. More than one soldier has been shot to end his suffering. Is it the legal thing to do - no. Is it the moral thing to do - sometimes. Did Captain Maynulet deserve the benefit of the doubt instead of dismissal from the service. From everything that I've seen - yes.

And, in the case of Pantano, from what I've seen reported so far, the Iraqis could have been bad guys. That doesn't give him the right to execute them, if they've surrendered, but it does give him the absolute right to kill them if he perceives a threat from them. (And, the insurgents don't always "bear arms openly." A hidden grenade, or a remotely detonated bomb in the SUV, could have killed Pantano and his men that day. The fact that one wasn't found makes the event a misjudgment, perhaps even tragic, but not criminal.) A uniformed enemy doesn't cease to be a valid target because he's running away - and it's simply wrong to extend that protection to insurgents.

The Pantano case is made worse by how it was brought - a disgruntled junior NCO, whose performance in combat, by all accounts, indicated that he should not have been an NCO in the first place.

My concern is not only for the injustice being done these men, but also for the effect it has on other soldiers still in combat. The message that is being sent is to them is this: "Your actions, your split second decisions, are subject to being picked apart and second-guessed by people who aren't scared and dirty and tired, with the benefit of perfect hindsight of reflection, with all the Predator feeds, radio traffic, personnel records and everything else you didn't have with you. God help you if you get even one of them wrong. God help you if one of them even looks wrong in the New York Times."

One of our most famous jurists once observed, "Detached reflection cannot be demanded in the presence of an uplifted knife." But it seems that we're now demanding just that from our warriors in the heat of battle. Will it get to the point that every infantry squad will require a JAG lawyer assigned to it, to rule on legality of every move? Maybe in both the Maynulet and Pantano decisions were mistakes, but do they really rise to the level of crimes? Is that the message we want to be sending our troops?

Now, please understand, I'm not advocating an "anything goes" view of combat. There are clear delineations of right and wrong. I don't think that a deliberate massacre, or the calculated execution of prisoners, should ever be tolerated. But that's not what happened here. What happened here was combat, and judgment calls made in combat for the right reasons - just because the outcome isn't what we would have hoped is no reason to turn those judgment calls into indictments.

Back in the Reagan presidency, JTF-6 was the task force that assisted civil authorities with drug interdiction along the border. The military couldn't actually search for or arrest smugglers, but we could provide surveillance and alert the authorities if we saw anything. It was good training for us for our real-world mission - what is now known as strategic reconaissance, but was called SIGTA at the time - strategic intelligence gathering and target acquisition. Thanks to the Army's affectation of the southern drawl, it got pronounced sikta, and was reputed to stand for "sitting in communist territory again."

I remember, many years ago, doing a JTF-6 mission. As part of the preparation for the mission, we got a RoE (rules of engagement) brief from the JTF-6 JAG officer, a Marine lieutenant colonel. (The JAG is the Judge Advocate General's office, for all intents, the military's law firm.) Our RoE was basically that we could protect ourselves or others, but we weren't there to arrest anybody. At some point in the briefing, the possibility of involvement with state law came up. What if somebody got shot out there - would we find ourselves in state court? No way, the JAG officer told us - he explained that, as military members, we were considered federal employees acting under the scope of our employment, and that the Army would refuse to give state courts jurisdiction if something happened.

Right after he left, our own JAG officer jumped up, clearly agitated, and gave us his interpretation. He told us something a little different than the Marine JAG officer said. Yes, he agreed, the Department of Defense could deny the state jurisdiction. But his take was that, if something went wrong, we'd be pretty much on our own. "Don't think for a second," he said, "that the Army won't throw you under the bus if they need to to take the heat off. You might be in the right," he continued, "but if you embarrass big Army, they'll cut you away like a screaming bag-lock."

At the time, I thought he was being overly cynical. Some time after that, though, well after our rotation was over, a Marine Lance Corporal stood trial, in state court, on charges of killing an illegal immigrant. The Marine thought that his life, and the lives of his fellow Marines, were in jeopardy. He was ultimately aquitted, but the DoD "threw him under the bus" by allowing him to be tried in state court in the first place.

At the time, I thought it was an anomaly. Now, though, it looks like standard operating procedure. From where I stand, the "crimes" of both Pantano and Maynulet were all about embarrassing the military and not about right and wrong.

I don't know what the right answer is - how we make the point that killing civilians is wrong, and that killing wounded prisoners is wrong, and still recognize that sometimes there are exceptions - that sometimes those things will happen for the right reasons. I do know, though, that what has happened in these two cases isn't it.


Anonymous Some dude said...

Sometimes it's not about the right or wrong mindset, but more about the mindset on consequences. Personally, I'd rather live to stand on trial than get killed by an insurgent in civies. But we all have our own views of which we're entitled to, but sadly many of us think we're absolutely right.

6:36 PM  
Anonymous Anonymous said...

"Will it get to the point that every infantry squad will require a JAG lawyer assigned to it, to rule on legality of every move."

Ah yes, a Legal/PR Commissar.

The fact is that soldiers are tried in the court of public opinion. If the GWOT had less popular support I imagine that we could look forward to decades of war-crimes trials in the world court...televised on CNN.

I think your take on this issue is exactly on point.

8:04 PM  
Blogger JACK ARMY said...

"Don't think for a second," he said, "that the Army won't throw you under the bus if they need to to take the heat off. You might be in the right," he continued, "but if you embarrass big Army, they'll cut you away like a screaming bag-lock."

This is what I am going through now. It completely sucks. Basically, USAREC is trashing the last 8 years of my career to cover their asses. Ah, well, maybe things will be better for me back in the mainstream.

good post, btw.

11:08 PM  
Anonymous MKL said...

I think the MSM has alot to do with the military being forced to throw somebody under the tracks. There would have been alot of bloody speedbumps if the MSM treated US troops in WW2 the same way.

I read Patton's diary recently and during the Sicily campaign Bradley brought him a report about 50-70 prisoners being shot. Patton wrote, "I told Bradley that it was probably an exaggeration [it wasn't] but in any case to tell the officer to certify that the dead men were snipers or had attempted to escape or something, as it would make a stink in the press and also would make the civilians mad. Anyhow, they are dead, so nothing can be done about it."

Eventually a CPT and SGT were tried and convicted of the murders. They claimed that Patton in one of speeeches before the invasion that had ordered the shooting of prisoners. This led to, in April of 44, 9 months after the incident, to Patton being questioned by "fair hair boys who think I kill too many prisoners. Yet these same people cheer the far greater killing of Japs. Well, the more I killed the fewer men I lost but they don't think of that. Sometimes I think I will quit and join a monastery..."

Oh, I blame the TV show "JAG" too, I think's convinced every lawyer that he/she is qualified pilot, SOF operartor and Chief of Staff...

1:37 AM  
Blogger militarybrat said...

I am seeing the same trend in a different context. It is not about the legality of mercy killings......

But it is about obeying rules to the point that all decisions are made for me.

We have a rule that when there is lightening within 5 miles we have to evacuate the flightline.....

It is not a good time to be hanging around airplanes with 60,000 pounds of gas on board. So when some guy sitting in an office notices lightening on the radar screen...and when then our boss drives around in a truck to tells us we have lightening within 5 and we now have to leave the area.

So when you are refuelling a plane and it is venting fumes the way it is supposed to and you see lightening directly overhead.....

you have to continue refuleing until the guy who is ssupposed to watch the screen is done with his nap....wacking off...whatever.

what do they think they are gaining from taking the ability to make decisions away.

Increasing moral......? nope we pretty much much just think you are abusing the right to be stupid.

Making it safer? nope!

Promotes teamwork......? hmmm..."Oh yeah they are a team......they all use the same knife to stab each other in the back....."

1:39 AM  
Blogger chaoticsynapticactivity said...

Your discussion is well stated. I long understood the "squishyness" of ROE mostly is set up in the favor of the Monday AM QBs, and not the commander on scene, but that's how it is.

4:09 AM  
Blogger Lee said...

I think you have nailed this on on the head. However it is not just the military. Society in general is more about blame than problem solving.

I don't need to go into it but everyone can remember at least one incident where a school administrator did something so moronic that any thinking person groans and bemoans the end of society as we know it.

Unfortunately the Army will do what the Army will do. We all knew that when we raised our right hands.

The purpose of an Army is to kill people and break things, not make the lives of it's soldiers easier. Yes, that is not the way we see it, but that does not matter.

I think that society as a whole will never understand this but anyone who has ever served does. That is all that matters. We understand and we stand for each other.

Let the blue pills, civilians, wring their hands and worry that the US will look bad because of a soldiers split second decision. That is what they do.

Sorry for the matrix reference, but it seems horribly appropriate.

12:16 PM  
Blogger Toni said...

What has been done to police departments throughout the US is being done to the military. In the city of Mpls., a Somali immigrant came charging at a cop with a machete and the cop shot him. What happened? Yes, that cop was crucified in the local paper and put through the mill. Why didn't the police use the taser or why this or why that? So, the next time someone comes charging at a cop and that cop pauses for a second, the cop is dead. Oh well, to the lefties and bleeding hearts of this country - it's only a cop after all. btw - I do have family who are police but not this department.

9:08 PM  
Anonymous Fred Schoeneman said...

I think Captain Maynulet's is a sad case. He appears to have been a good man, and to have made the right decision, yet is being punished for it. I'm not sure about Pantano, though. According to the prosecution, Pantano put between 50 and 60 rounds into his two human targets. Has this been refuted by Pantano's defense team?

I don't believe soldiers have a duty to "shoot to wound" or anything like that. They're trained to kill. And as a marine, Pantano was probably trained to aim properly. But even with a double tap, that would only mean three bullets per dead terrorist.

In any case, I'm not ready to throw the "junior NCO" who has accused Pantano under the bus just because of his slacker record. I know lots of idiots who aren't good at their jobs, who aren't liars.

So lets be fair to Pantano and to his accuser.


9:51 PM  
Anonymous Jane Howard said...

According to Pantano's PR campaign, he went to sniper school during his first stint in the Marines.

Furthermore, I'm with the previous poster; Coburn might not be the brightest tool in the shed, but he has been the focus of much scrutiny and derision these past few months. Why would he make up something as serious as this? I am not buying the disgruntled Marine thing. If you want to get back at the guy you don't make up a story that you could get nailed for later.

Pantano's own statement of the incident is enough to send this case to a CM, if not for premeditated murder, then for the way he handled the prisoners under his care.

7:50 AM  
Blogger Kit Jarrell said...

COnsidering you were visited by Jane the troll, I thought you'd be interested to know who she is. ;)

Sorry about the link spam.

1:39 AM  
Anonymous Jakob Lang said...

I guess its most important that the top brass should have the balls to stand in front of their men when the shit hits the fan, at least until everything is cleared. Dropping your subordinates like a hot potato when they might need you is for arse covering wheenies only.

Applies for civilian life too, of course.

3:33 PM  

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