Category Archives: Editorials & Position Statements
Curbing Convening Authority Power to Alter Court-Martial Convictions Is No Solution, Is Insufficient and Misses the Point
By David Gespass
There is no denying that “sexual assault” (a euphemism for rape and attempted rape) is a serious problem within the military. Indeed, it has always been a problem, though it may now be more serious from the point of view of military authorities because victims, increasingly, are other members of the armed forces rather than civilians.
To date, the solutions that have been proposed are, from the military, more training and, from various civilians (most notably, New York Senator Kirsten Gillibrand), stripping convening authorities of their power to alter court-martial convictions and sentences. The former has been spectacularly unsuccessful. The latter highlights the tension between two important ends, those of protecting people from sexual violence and protecting the due process rights of individuals accused of crime.
Thus far, there has been near universal acknowledgment that the problem exists but little has been done to address, much less solve, it. Indeed, even as sexual violence appears epidemic, elected officials tie themselves in knots praising our men and women in uniform while, at the same time, condemning perpetrators of such violence yet refusing even to consider that the culture of the armed forces promotes it. This is not to say that everyone who enlists is bound to become a predator. Rather, the soil of military culture is one in which potential predators can be nourished and thrive. And our elected officials are loath to suggest such a thing for fear of being criticized as disparaging “our” troops.
National Lawyers Guild Submits Comments for Improving Military Justice System to Department of Defense Military Justice Review Group
NEW YORK — The National Lawyers Guild (NLG) today submitted comments to the Defense Department’s Military Justice Review Group as part of its comprehensive review of the military justice system. Recommendations to improve the system include eliminating the “convening authority” as the near-absolute final arbiter of what constitutes justice in a given case. The NLG also calls for eliminating criminal liability for acts that are purely military offenses, and for clarifying the effect of a conviction by summary court-martial.
“We are gratified that this review is taking place, as changes in the court martial system are long overdue. We do not believe that anything less than a complete restructuring of the way the military handles offenses can be adequate. We have, therefore, focused on large changes, rather than the many small details that could lead to some incremental improvement without altering the basic inequities that lead so many to see military justice as an oxymoron, said David Gespass, NLG past president and one of the authors of the comments.
A personal op-ed.
I am sitting in my office this Memorial Day pretending to do work, but thinking about the hollowness of the holiday. Of course, there are the obligatory paeans from government officials and talking heads to our “men and women in uniform.” After all, we are told, they are “defending our freedom” at great sacrifice. We owe them a debt, we are told, that a grateful nation can never fully repay.
Now, I do not totally disagree. They are sacrificing and we do owe them a debt. One way to pay it would be for the Department of Veterans Affairs to do what it is supposed to do, but we are learning that vets have died in Phoenix while waiting for medical appointments and that the long wait times were covered up by the facility. Uncounted others are waiting for years for decisions on their claims for service-related disability benefits. Senator Bernie Sanders argues that, “If it’s too expensive to care for our veterans, don’t send them to war.” Yet the Senate, with its dysfunction in full flower, could not pass legislation to expand health care and education programs for veterans because the $21 billion price tag was too high.
One wonders, where could we save some money so that our obligation to our veterans can be better met than it is now? Perhaps the cost of the war in Afghanistan could be moderated just a bit. One estimate is that the cost for the 2012-13 fiscal year (the most recent I could find) was $198.2 billion (see Anthony Cordesman, “Cost in Military Operating Expenditures and Aid, and Prospects for ‘Transition“). So, if we could cut the cost of the Afghanistan war by 10.6%, we would have the money to spend on the vets. One thinks that such a commitment would be of more value to them than the vapid yet inevitable “Thank you for your service,” that comes from all those who have not served but who just followed George W. Bush’s advice after 9/11 and continued to shop, unaffected by the war.
Not entirely parenthetically, the day after Memorial Day, so in time for this piece to be edited a bit, President Obama declared that (almost) all American troops will be out of Afghanistan by the end of 2016. So, in just two-and-a-half years, the costs of the occupation of Afghanistan will be reduced to almost zero, certainly freeing up those funds for the care of the veterans that our members of Congress feel so indebted to. It remains to be seen whether, under the rubric of better late than never, Congress does, in fact, use some of that money for suffering veterans rather than giving more tax breaks to the super-rich.
But there is something more to be said than that we should look for some savings in our warmaking in order to care for those who were sent to fight and who, with disturbing regularity, return with physical and emotional ailments that came directly from their experiences. Which gets me to the thing about the Memorial Day paeans with which I disagree. Was the U.S. military really defending our freedom in Afghanistan and, if so, is it still? Leaving aside the question of just how much freedom we have these days and how fast it is evaporating, it is long past the time for the US to get out of Afghanistan if, indeed, it ever should have gone there in the first place..
One could argue that the initial invasion, targeting Osama bin Laden and Al Qaida was a reasonable attempt to bring those responsible for 9/11 to justice. While the invasion itself was of questionable legality, it was at least defensible on legal and moral grounds. Regardless of the merit, or lack thereof, of that contention, the goal of finding the perpetrators of 9/11 was almost immediately abandoned, with the pivot to “regime change” in Iraq. What the Afghanistan war degenerated into, with disturbing celerity, was the overthrow of the Taliban (which would not have come to power without US assistance) and a hostile occupation, carried out through terror and intimidation. Thousands were rounded up on the flimsiest of evidence and sent to Guantánamo, Abu Ghraib and black sites, where they were tortured by the CIA and its clients. There remain inmates in Guantánamo who have been cleared of all allegations but still cannot leave, more than a decade on. Over those years, the US has propped up a corrupt government, often with bags of cash in unmarked bills, while the Department of Veterans Affairs has failed to meet the needs of those it is supposed to serve. And, by the way, bin Laden was found, in Pakistan, and assassinated by US Navy Seals more than two years ago, pretty much fulfilling the declared purpose of the invasion.
So what have we gained and what have we lost as a result of the Afghanistan adventure? We have lost hundreds of billions of dollars. We have lost any claim to moral leadership in the world, though we have gained a lot of enmity from the world’s people. We have lost any number of our military personnel, either because they were killed or because they can no longer function. Innumerable vets are unemployed and homeless. Under the specter of 9/11, we have abandoned any pretense of our being subject to the rule of law in favor of an understandable thirst for revenge. But genuine leaders, who care more about morality than demagogy, recognize that revenge is not the same as justice. The former inevitably leads to a spiral of retaliation and fear. The latter offers at least the hope of resolution. All in all, the balance sheet on gains and losses is not favorable. In fact, the only gain I can think of is not favorable.
Some, however, have gained a great deal. War contractors have enriched themselves at the expense not only of the American people generally, but of the veterans they claim to care so much about specifically. The likes of Halliburton, KBR and DynCorp have made out like, well, bandits. One would do well to remember the outpouring of support and sympathy from around the world in the days following 9/11. The French newspaper, Le Monde, proclaimed, “We are all Americans.” In Croatia – not a real friend of the US following the Balkan wars – schoolchildren took a break from class to bow their heads. In Tehran, people filling a stadium for a soccer match observed a moment of silence. Other examples abound. Today, however, a Gallup poll found that nearly a quarter of the world’s people consider the United States the greatest threat to world peace, with Pakistan a distant second at eight per cent. Almost certainly, the unquestionably illegal and immoral invasion of Iraq was the more precipitous genesis of that enmity, but the longer the occupation of Afghanistan drags on, the more it transmutes from a source of sympathy to its opposite. Chris Hedges reminds us: “ If we really saw war, what war does to young minds and bodies, it would be harder to embrace the myth of war. If we had to stand over the mangled corpses of the eight schoolchildren killed in Afghanistan a week ago and listen to the wails of their parents we would not be able to repeat clichés about liberating the women of Afghanistan or bringing freedom to the Afghan people.” But what is happening in Afghanistan is no longer a war, it is an occupation with no justification. It became an occupation within months of the invasion as the Taliban fell out of favor with the US and then simply fell.
Let me conclude with a modest proposal. In honor of our vets this Memorial Day, let us get out of Afghanistan post haste – not two years hence – and use the savings to care for those who have returned damaged, in body and spirit, from those adventures in the Middle East which were, as is almost always the case, rich men’s wars and poor people’s fights.
On September 5, the national office of the National Lawyers Guild distributed the following news release, written with input from members of MLTF:
NEW YORK – The National Lawyers Guild (NLG) calls on Congress to vote against the illegal strike on Syria being planned by the administration. NLG president Azadeh Shahshahani said, “The military intervention in Syria is undeniably illegal, and any supposed framework the Obama administration constructs to defend it is based, not upon legality, but upon impunity.” The United States is once again poised to violate international and domestic law to impose its will.
President Obama’s threats to take military action against Syria are predicated on hypocrisy and obfuscation, as Secretary of State John Kerry and Secretary of Defense Chuck Hagel have vocalized, respectively. While Kerry said that the United States must “assure that there is accountability for the use of chemical weapons,” the U.S. has historically used chemical weapons against other nations – Agent Orange in Vietnam, white phosphorous in Iraq, and depleted uranium, napalm, and other toxic chemicals and metals (including TNT and mercury) in Vieques, Puerto Rico.
Hagel carefully avoided the assertion that military intervention would be legal, and instead vaguely promised that “any action taken [would be] within the framework of legal justification.” According to the 1993 Chemical Weapons Convention, the U.S. and other NATO countries are only legally entitled to intervene militarily when their own states have been attacked or threatened with chemical weapons.
The use of chemical weapons in Syria cannot be ignored. But military force, especially by the U.S., has never been a viable or effective response to international human rights abuses. Furthermore, the mandates of the UN Charter prohibit the use of military force without Security Council authorization except when a country is attacked and must defend itself pending Security Council action. While the Obama administration is lobbying Congress to support a “limited” strike on Syria, the National Lawyers Guild strongly opposes any U.S. threats of military intervention – irrespective of congressional approval. Instead, the NLG calls for renewed diplomatic initiatives with Iran, Saudi Arabia, Qatar, Turkey and Russia.
In addition, MLTF along with the NLG’s International Committee, published a short briefing paper on Syria. A longer version will be available in the near future. Read: Short Briefing Paper on Syria (PDF)
[Update]: In a public statement issued on 8/22/13, Pvt. Manning disclosed that her name is now Chelsea Manning, and that she is a female. Going forward, we will honor her request to use her new name and appropriate pronouns, in support of her transition.
Today, Bradley Manning was sentenced to 35 years for the “crime” of revealing the seamy underside of US diplomacy and war-making. The sentence is substantially less than 60 years the prosecution asked for, but greater than what the defense requested. It was predicated on alleged damage done to the US, though it remains unclear what actual damage, aside from embarrassment, occurred. Indeed, the idea that transparency is damaging is one that should shock the conscience of any patriot, if one defines patriotism as something other than blind obeisance to whatever one’s government says.
Manning’s defense attorney, David Coombs, told the court that “(h)is biggest crime was he cared about the loss of life he was seeing and was struggling with it.” That, in fact, is what drove the government in its excessive and relentless attacks, inside and outside the courtroom, on Bradley Manning. That is what Barack Obama’s promise of the “most transparent” administration in history has devolved into.
Everyone in the country; nay, everyone the world over, should be outraged at his prosecution and sentence. But for Manning, Reuters still would not know what happened to its correspondents, Saeed Chmagh and Namir Noor-Eldeen, the day they were gunned down by an American air strike. And the world would not know the callousness of the Americans doing the killing, who had no regrets about also shooting a man and a young boy who came to assist the wounded and dead.
So, what is the legacy of Bradley Manning, his prosecution and sentencing? It dates back some 40 years and tells us more about the shift of power to an ever-more-secretive, imperial and imperious government from a population that has become less resistant and more pliable.