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.