Military Justice and the New York Times

The New York Times has an editorial today with the tag “Guilty… as Ordered”, implying that the outcome of the Hamdan tribunal in Guantanamo was preordained. The imply that undue command influence was exerted on the trial of officers to return a verdict of guilty.

Not surprisingly, several bloggers, including the Instapundit and DrewM at Ace’s, weigh in showing just how stupid the Times editorial is.

One wonders if any member of the Times editorial board has ever even attended a court-martial. The Hamdan proceedings were not conducted under the Manual for Courts-Martial (PDF), but used a system based upon it.

I’ve only attended one court-martial (as a member of the peanut gallery, thank you very much!). My boss, LTC O sat on the court of a young soldier accused of hitting his Sergeant about the head and shoulders with a massive beer stein when said Sergeant paid what the Private thought was entirely too much attention to the Private’s spouse.  It was abundantly clear that the Sergeant has suffered some sort of injury to his head and shoulders, because he was still showing the effects several weeks later. Indeed, the accused admitted in open court that he had in fact struck his Sergeant with the beer stein. The prosecution asked for a guilty verdict of the charge of assualt with intent to cause grevious bodily harm. The counsel for the accused put up a very short defense, arguing that the Private had only struck the Sergeant once.

All this in about an hour of actual proceedings (the “housekeeping items” of the court took about two hours). Off went the court to deliberate. It was an open and shut case- you do NOT smack your Sergeant around.

Comes the court back to deliver its verdict: Not Guilty. How on earth did the court return a verdict like that? Because the officers who made up the court took their oath seriously. They reviewed the evidence and determined that while the Private had indeed committed assault upon the Sergeant, there had been no intent to cause grevious bodily harm. The prosecution, having failed to include counts of lesser included offenses, did not give the court the option of a guilty verdict for simple assault. The officers of the court took the only option open to them. The young Private soldier was free to go.

That case cemented for me the opinion that if I were to ever face a jury, I’d rather face a jury of dedicated, serious officers committed to justice and their oaths than face a jury of my “peers” who were too stupid to get out of jury duty.

For the New York Times to show its disdain for the officers who faced the difficult and perhaps distasteful duty of serving on the tribunal for Hamdan in such a blatant manner says a lot more about their poor sense of honor than anything about the validity of the tribunal system itself.

4 thoughts on “Military Justice and the New York Times”

  1. I love this post! As a practitioner of military law for the last 24 years, in one form or another, its wonderful to see that a member of the “peanut gallery” gets it! I’ve both defended and prosecuted a good number of courts-martial over my military career and have continued to work in the military criminal law area after my retirement. In my opinion and based on my expericence, court-martial members (the jury for you civilian-types) do take their oath extremely seriously. They are officers, and when requested, enlisted men and women who understand the consequences of taking, and breaking, an oath. The only “orders” they will follow to the utmost of their ability is the instruction from the military judge to evaluate the evidence fairly and apply the law their given impartially. Within the miliary justice system, any attempt by command or representatives of command (unlawful command influence) is forbidden and dealth with harshly when it occurs. You’re absolutely right, the Times headline and article is not based on fact (but why doesn’t that surprise me?).

  2. Hmm taking this from a peanut perspective I guess there’s the cores issues here;

    1) Most of us distrust *any* courts in the first place. Part of that is the fear of control inherent in legal matters and the other is the number of real and imaginary miscarriages of justice (I talk of justice here in the moral not legal sense). Core is fear of having an unfair judgement personally passed on you, fear of prison etc and it’s based on the idea that legal justice is not morally just (or sometimes legally just).

    2) People know the system very poorly and extremely poorly in the case of the military courts. The military’s secretive nature doesn’t really help it there.

    3) Most people believe command influence even if unlawful is active regardless of possible punishment and especially easy if it comes from higher up the chain. Obviously the lefties embrace this more. In essence people believe military courts pretty much always result in judgements advantageous to the military politic.

    4) On this last point many Australians are very much convinced the Australian guy in Gitmo is an example of that. I guess I better start at the beginning. Over here political pressure on our conservative government went sky high on the matter of the US holding an Australian citizen who was captured by the US allied Afghans as an ‘unlawful combatant’. There were lots of opinions lefty to conservative but there was a lot of alignment on the feeling that Australia not the US should decide his fate. It reached a political head and our PM contacted the US government knowing it may lose the upcoming election unless the issue was out of their hair.

    And we saw the result. The trail quickly progressed and he was sent back to Australia with a silencing order. Due to command influence from the top.

  3. Quick point, Aaron, the Australian fellow (whose name escapes me) wasn’t tried, but rather administratively reviewed. That’s an entirely different kettle of fish. Command influence can and does play a role there, as it is concerned not with the rights of the individual, but rather the risk/reward to the country.

    I understand that folks may not entirely trust the military justice system. Some of that is due to unfamiliarity. Fair enough, that’s why I posted what I did. Some folks, though, to include the New York Times, have made their minds up and no evidence will sway them. In fact, they are guilty of the prejudgment they accuse the military tribunals of.

    BTW, are you in Hobart, or Adelaide? Because I’ve seen two hits from your neck of the woods.

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