Category Archives: Critiquing the Military Justice System

Court-Martial: How Military Justice Has Shaped America from the Revolution to 9/11 and Beyond

This entry is part of On Watch 28.1 Spring 2017
Book Review

Court-Martial: How Military Justice Has Shaped America from the Revolution to 9/11 and Beyond

by Mr. Chris Bray, US Army Infantry Sergeant & PhD in History from UCLA.

The United States came into existence at a time when the laws of war and governance of the armies which fought them were beginning to take hold and develop. The new nation had only a limited history of warfare: formations of citizen militias to fight off attacks from Native American tribes trying to resist further expansion of the European colonists.

These militia formations consisted of friends and neighbors: volunteers and pressured townspeople or farmers, who had a personal stake in whatever fight they were engaged in. Officers were elected. These citizens taught themselves how to fight and behave as soldiers. It was not uncommon for debates to occur as to the best ways to fight. Once the danger was over, these militias would become dormant or even disband.

To keep up a presence, some would become clubs or social organizations. It was from this core that an American revolutionary army would emerge. And this is the starting point for Chris Bray’s Court-Martial and its chronicle of the evolution of American military law and American military justice. The book is not just for those interested in the history of law. Bray presents a picture of military law attempting to protect the status quo as the world changes.

The Injustices of Manning’s Ordeal

This entry is part of On Watch 28.1 Spring 2017

For exposing war crimes in Iraq and Afghanistan, Pvt. Chelsea Manning suffered nearly seven years in prison, an ordeal President Obama finally is ending but without acting on the crimes she revealed.

After overseeing the aggressive prosecution and near-seven-year incarceration of Army whistleblower Chelsea Manning, President Obama – in one of his last acts in office – commuted all but four months of her remaining sentence but ignored the fact that he had taken no action on the war crimes that Manning revealed.

At his final news conference, Obama explained his reasons for commuting Manning’s record-setting 35-year sentence for leaking classified information to the public. Manning is scheduled to be released on May 17.

“Chelsea Manning has served a tough prison sentence,” Obama said. “It has been my view that given she went to trial; that due process was carried out; that she took responsibility for her crime; that the sentence that she received was very disproportionate relative to what other leakers had received; and that she had served a significant amount of time; that it made sense to commute and not pardon her sentence. … I feel very comfortable that justice has been served.”

But there has been no justice for the Iraqis and Afghans whose unjustified deaths and mistreatment were exposed by the then-22-year-old Army private, known at the time as Bradley Manning. An Army intelligence analyst in Iraq, Manning sent hundreds of thousands of classified files, documents and videos, including the “Collateral Murder” video, the “Iraq War Logs,” the “Afghan War Logs” and State Department cables, to WikiLeaks. Many of the items that she transmitted contained evidence of war crimes.

Verdict in Manning Case Slow Death for Democracy

Op-Ed for MLTF

[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, although he was acquitted of aiding the enemy, Bradley Manning was found guilty of five counts of violating the Espionage Act. It has long been said that military justice is to justice what military music is to music, but Manning’s prosecution has failed to clear that low bar. Since his arrest in 2010 and the long road to his court martial, the government has perverted the values it claims to represent, and made a mockery of its military justice system. The case has been a travesty since it began. Manning was tortured, held for years before trial, and overcharged. While the process of “justice” for Bradley Manning will proceed through the sentencing phase and appeals process—along with continued advocacy for a full pardon and release—it’s a good time to reflect on the most egregious of the government’s sins thus far.

On July 21, the New York Times reported that accused sexual predators in military service are claiming unlawful command influence because President Obama declared that anyone who committed a sexual assault should be punished and “dishonorably discharged” from military service. He did not name names. He accused no individual of a being guilty of any crime yet, the Times says, his statement will complicate prosecutions and render convictions more difficult.

When it came to Bradley Manning, however, Obama declared him guilty before he was even charged, at a time he was in “detention,” solitary confinement with no clothes, little contact with other human beings, no intellectual stimuli and presumably presumed innocent.

So the first question to be asked in the wake of Manning’s conviction is why he should not be accorded the same rights as rapists. Why did the Times not question potential command influence when the commander in chief declared Bradley Manning—not some nameless future defendant—guilty? Was it possible for any subordinate to ignore that presidential proclamation when rendering a verdict? Some credit must be accorded the judge who acquitted him of at least some charges, but that only demonstrates just how extreme the charges were.

That is not all that is questionable about the case. Recently, Eric Holder had to promise Russia that if Edward Snowden is returned to the United States, he will not face execution or torture. Snowden’s fear is well-founded, not just because of Abu Ghraib, but because of Bradley Manning, who suffered months of torture, defended by Obama. There was a time in the not too distant past when the treatment Manning suffered through would have led to dismissal of the charges against him and condemnation of the prosecution by the courts and media. Now, it appears, the United States no longer has any shame and is more than willing to sacrifice what it proclaims to be our fundamental principles at the altar of security.

Obama came to office promising the most transparent administration ever. He claims that we need an open and frank discussion of what the government should be able to do to protect ourselves from threats, but did so only after its secret operations were exposed. And he aggressively prosecutes those whose actions give rise to the questions he claims should be answered through a national debate.

Hypocrisy and criminality are rife in the United States government and, in its eyes, the worst criminals are those who expose such evils. Among the many documents Manning released, for example, was the notorious “collateral murder” video, showing U.S. pilots killing a Reuters journalist, his driver and several others. Some have argued that, although unfortunate, the killing was justified in the heat of battle but the U.S. denied any knowledge of how the reporter, Namir Noor-Eldeen, died until the video was released. Reuters had simply asked how such events could be avoided in the future and was stonewalled. It is only thanks to Manning that the world knows exactly what happened.

There are two ways in which any government can seek to control security leaks. The first is by honesty and transparency, by allowing the public to know enough to make democratic decisions about how far is too far. That is the path that the United States, and this president, claims to follow. The second is by threatening draconian consequences to anyone who exposes questionable policies and practices to the light of day. That is the path the United States, and this administration, has chosen with the prosecution of Bradley Manning and others. No amount of sophistry can hide that truth, try as the administration might. The result, for Bradley Manning, is many years in prison. The result for democracy is a slow death.

Lt. Ehren Watada court-martial

LINKS

More legal documents and some analysis
http://www.ufppc.org/content/view/6718/

Thank You Lieutenant Watada !
www.thankyoult.org

View Lt. Watada’s Historic Speech to the 2006 Veterans for Peace Convention
http://www.youtube.com/watch?v=wj0hI4OyF3A.


ARTICLES

Watada court-martial stopped
By MIKE BARBER
P-I REPORTER 

A federal judge in Tacoma has delayed the court-martial of 1st Lt.
Ehren Watada, a Fort Lewis Army officer to refuse to deploy to Iraq.

In a rare intervention of a civilian court in the military justice
system, U.S. District Court Judge Benjamin H. Settle granted the
emergency stay shortly before close of business Friday.

Watada’s trial, slated to begin at 9 a.m. Tuesday, is now postponed
until at least Oct. 26, the judge ruled.

In granting the stay at 4:48 p.m., Settle determined that he has
jurisdiction under federal law to grant the stay and that Watada’s
claim that a second-trial amounts to double jeopardy is not frivolous
and “has merit” for consideration.

“The irreparable harm suffered by being put to a trial a second time
in violation of the double jeopardy clause of the Fifth Amendment
stems not just from being subjected to double punishment but also from
undergoing a second trial proceeding,” Settle wrote in quoting case
law.

Watada’s lawyers, Jim Lobsenz and Ken Kagan of the Seattle firm Carney
Badley Spellman, have argued that the circumstances of a mistrial
declared in Watada’s court-martial in February result in double
jeopardy — being tried twice for the same charge.

The mistrial was declared over Watada’s objections and after a panel
of military officers acting as a jury had heard evidence but not begun
deliberatons.

Watada’s appeals have been dismissed by the military trial judge and
the U.S. Army Court of Appeals. An appeal was made Sept. 18 to the
Court of Appeals for the Armed Forces, the highest court in the
military justice system.

Lobsenz and Kagen said they were compelled to ask the federal court on
Wednesday to stop the court-martial. Watada’s trial approached, and
nothing had been heard from the armed forces appeals court. With
Monday a federal holiday to observe Columbus Day, time was even
shorter, they said.

Settle indicated at a hearing on Thursday that he might defer to the
military appeals court if it made a decision by Friday, but at close
of business Friday, it hadn’t ruled.

Because the case being heard in federal court, the U.S. Attorney’s
Office now is arguing the government position.

Watada publicly refused to go to Iraq with the 3rd Stryker Brigade in
June 2006, contending that the war there is illegal and exposed
members of the military to war crimes. He has been charged with
missing movement and conduct unbecoming an officer. He could be
sentenced to up to six years in prison if convicted.

Settle has set up a briefing schedule to examine the merits of the
double jeopardy argument and how long he will continue the stay. The
government has until Oct. 12 to file its arguments, and Watada’s
lawyers must reply by Oct. 17.

P-I reporter Mike Barber can be reached at 206-448-8018 or
mikebarber@seattlepi.com.

Seattle Post Intelligencer Editorial, 10/5/07

Watada Court-Martial: Let him go

SEATTLE POST-INTELLIGENCER EDITORIAL BOARD

The twists and turns of the court-martial proceedings against Fort
Lewis 1st Lt. Ehren Watada continue to cause pain and division.

Watada came to an easily debated but apparently sincere decision that
the Iraq war was wrong, even illegal. He had one mistrial, and his
attorneys are trying to block a second proceeding as violating rules
against double jeopardy. But the court-martial is scheduled to begin
Tuesday.

However the defense appeals turn out, we think there is a case for
letting Watada leave the Army without further ado. That could be taken
as a statement of higher-level confidence, a choice to focus on the
larger military mission that President Bush and Gen. David Petraeus
insist is making new progress. At a minimum, many of those who oppose
the Iraq war would welcome the leniency for someone they view as a
person of conscience.

AMNESTY INTERNATIONAL
PRESS RELEASE

AI Index: AMR 51/152/2007 (Public)
News Service No: 191
5 October 2007

USA: Conviction of war objector would violate international rights

Amnesty International today expressed serious concern that US Army First Lieutenant Ehren Watada could face up to six year’s imprisonment solely for his conscientious objection to participating in the Iraq war. Ehren Watada is due to face US court-martial on 9 October for refusing to deploy to Iraq.

“It is unacceptable that Ehren Watada should face punishment for peacefully expressing his objections to the war in Iraq. His internationally recognized right to conscientious objection must be respected,” said Susan Lee, Amnesty International’s Americas Programme Director today.

Ehren Watada refused to deploy to Iraq in June 2006, based on his belief that the Iraq war is illegal and immoral. Amnesty International believes that his objection to the war is genuine and that, if found guilty, he would be a prisoner of conscience who should be immediately and unconditionally released.

The right to refuse to perform military service for reasons of conscience, thought or religion is protected under international human rights standards, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), which the US has ratified.

Ehren Watada is charged with missing his unit’s deployment in June 2006 and with “conduct unbecoming an officer” for making public comments criticizing President George Bush and the Iraq war. In addition to a possible six-year prison term, he also faces a dishonourable discharge from the Army. His first court-martial in February 2007 was declared a mis-trial after questions arose as to whether Ehren Watada had understood a pre-trial agreement he had signed.

Ehren Watada joined the army in 2003 for a three-year term, which was due to end in December 2006. In January 2006, he submitted a letter to his army command outlining his reasons for refusing to participate in the Iraq war and asking to resign from the army. He did not formally apply for conscientious objector status because US army regulations stipulate that applicants for this status must be opposed to war in any form; they do not provide for conscientious objector status on the basis of an objection to a specific war.

Amnesty International considers a conscientious objector to be any person who, for reasons of conscience or profound conviction, refuses to participate in war or armed conflict. This can include refusal to participate in a war because one disagrees with its aims or the manner in which it was being waged, even if one does not oppose taking part in all wars.

In a speech given in August 2006, Ehren Watada defended his position, “One who breaks an unjust law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.”

Public Document.