Honor, murder and "the law".

[120mm]

In "The Whole News" forum, Featherock made a post that has actually been eating away at my thoughts. With the kind permission of the Council, I'd like to explore some of the concepts that are presented in this post. My thinking on this issue is somewhat all over the map, and I figured if someone would shoot holes at it for awhile, I could clarify some of the issues. So, here goes:


There's no "thinking" about it. The facts are the facts. What he did was against the law, pure and simple. An honor code is just that, a code, a highly subjective set of rules of conduct that different cultures define differently. An honor code is not the same thing as the rule of law as codified in instruments like the Geneva Conventions. For instance, a Marine wouldn't be tried in court for leaving behind a squad member, even though doing so would break a deeply held honor code among Marines (and other service branches, obviously).

While the law is subjective -- otherwise, why would we need lawyers (some would argue, rightly in a lot of cases, that lawyers do more to obfuscate and frustrate the law than they do interpreting it, the DOJ under Bush being a great example, e.g, Gitmo) -- the fact is all soldiers and contractors operating in a combat zone have to operate under the law, regardless of what the enemy does.

Does it hurt our COIN efforts? I would say yes. This specific incident? I don't know. This incident paired with other incidents like it (PMCs firing on civilians in Iraq, the Gitmo disaster) have a incredibly deleterious effect on COIN efforts and America's standing in the world.

This post was in response to a post where I suggested that under some cultures, "honor" specifies that one breaks the law, and then presents themselves for punishment. Probably the most noteworthy example is a culture like the pre-modern Japanese culture, which celebrated the concept of "on" (I hope I'm getting that right) where warriors were expected to avenge perceived honor violations and then commit suicide or present themselves for punishment. (As an aside, to be denied the right to suicide or punishment was perceived as "unbearable" and "disgraceful" under that code).

Similar, but more western is the mythical "cowboy code", (under which I believe I was raised, obtw) which possessed an sense of honor, but did not have a suicide component and only sometimes had a punishment component. In other words, anonymous vengeance was sometimes seen as acceptable, and even preferable to public vengeance.

Finally, one can consider honor and the concept of honor in areas like the Middle East or in Africa, where honor killings and tribal/familial vengeance are portrayed as being part of the culture.

If you consider the equity of outcomes, I am finding it more and more difficult to push western "law" as being superior to "honor". After all, under Western law more often than not, the one with the most cash wins. Also, the one with the best I/O campaign in the press often appears to win.

Even with the consideration that law is just, in reality law is just the potential cost of an activity. Just because murder is against the law, it doesn't mean you cannot do it. It just means that if you wish to murder, it costs XX years in prison. It is futile to argue "law" with someone who has deemed the cost of whatever activity as an acceptable cost. For someone who values honor more than anything else, a tribal code is not subordinate to law.

Nearly every poster on multiple forums where I read, have asserted that Mr. Ayala, the PMC accused of murdering the apprehended fire-attacker must have been operating under a certain level of "rage" to have shot an allegedly restrained attacker, if initial reports are true. I would suggest that perhaps that it is also possible that Mr. Ayala may have actually thought his actions through. There IS precedent for individuals deciding that the consequences for an action were worth the "crime".

My "honor brain" tells me that an individual who determines they've failed in their core mission to the extent that someone else was maimed or killed, the concept of vengeance and then punishment would be cathartic, and relieve some of the guilt involved with the initial failure.

On the topic of International law, while it is often advantageous to appear to be adherent to that mythology, in truth, Nations still "do what they can, and suffer what they must", and international law is still a bad joke. Especially with the rise of the non-nation actor and apologists for non-nation criminals, such as the Somali pirates. Except for the occasional dead pirate, the Somali pirates will never pay any legal cost for committing piracy. In this way, they expose the laughable nature of "international law".

[Ken White]

In that referenced earlier thread, Featherock said; "...Under the law he's wrong. And the law is all we have."

I responded "... B. Your under the law statement is correct -- if it's proven he was wrong; guilty until proven innocent is not a good plan. C. The law is not all we have." So I obviously agree with you in principle

You said
"If you consider the equity of outcomes, I am finding it more and more difficult to push western "law" as being superior to "honor". After all, under Western law more often than not, the one with the most cash wins. Also, the one with the best I/O campaign in the press often appears to win." and I strongly agree with that. There are many who believe that the 'rule of law' is a universal fact -- it is not. They also believe that such rule is necessary for peace and tranquility -- it is not. Further, they seem to believe that if a law is written and codified that all will obey other than a very rare occasional and aberrant person -- not realizing that is far from correct; more laws are ignored than obeyed.

I always wonder how many that strongly invoke "the rule of law" and push for various foolish -- even stupid -- laws that try to direct human behavior and mores are themselves closet speed limit breakers, cheat on their taxes or wives, sluff parking meters or throw trash on the street...

Lastly, you say "
On the topic of International law, while it is often advantageous to appear to be adherent to that mythology, in truth, Nations still "do what they can, and suffer what they must", and international law is still a bad joke. Especially with the rise of the non-nation actor and apologists for non-nation criminals, such as the Somali pirates. Except for the occasional dead pirate, the Somali pirates will never pay any legal cost for committing piracy. In this way, they expose the laughable nature of "international law." Excellent example showing the futility of the rather ridiculous belief that "...the law is all we have."

If it weren't for a sense of individual honor, not a single law would be worth the paper it was printed upon. Honor transcends the law.

[reed11b]

Ken I agree at least in part w/ everything you and 120mm are stating, but I feel that there is a very needed addendum to what you are saying... Laws must be enforceable to have any effect. Enforceable laws do have some power and utility.



If it weren't for a sense of individual honor, not a single law would be worth the paper it was printed upon. Honor transcends the law.

Very True. Look at societies were the enforcers of the law are corrupt.
Reed

[Ron Humphrey]

May carry more relevance then might think given:

If most can agree that times of economic instability and
Associated problems tend be find more prevalence in
"Law breaking" then it might be of note that it is during
Times of duress when "codes" tend to be the ONLY thing
That keeps many from straying from the right path?

[slapout9]

I am not sure who said it but I disagree with the law is subjective quote. Good law is very objective. There is nothing subjective about shooting someone who is in custody. What I think he meant to say was "mitigating" circumstances, that is what the lawyers would argue in court. jmm99 this is straight up your alley;)jump on in.

[120mm]

I am not sure who said it but I disagree with the law is subjective quote. Good law is very objective. There is nothing subjective about shooting someone who is in custody. What I think he meant to say was "mitigating" circumstances, that is what the lawyers would argue in court. jmm99 this is straight up your alley;)jump on in.

So-called "good law" is only "good" if you share the same cultural background and decision-making process. If you look at it without emotional loading, our "laws" are more like a form of pricing. If you want to murder someone, there is a price tag attached, which price is completely negotiable. "Mitigating circumstances" are a euphemism for "bargaining" on the final price.

If one's culture requires vengeance, (which, of course, is primitive and inferior to our incredibly perfect and objective Western Legal System [tm]) then being prohibited from putting down someone who needs it, badly, whether in confinement or no, that pesky law prohibiting it, is highly subjective in nature.

So lawyers are pretty much useless for debating the "rightness" or "wrongness" of law. They are only the minor functionaries whose job is to debate the price.

Of course, you can always "steal" the "product" by getting away with the crime.

Of course, in reference to Slapout's subjective versus objective argument:


There is nothing subjective about shooting someone who is in custody.

How about when the government decides they can shoot someone who is in custody?

[slapout9]

So-called "good law" is only "good" if you share the same cultural background and decision-making process. If you look at it without emotional loading, our "laws" are more like a form of pricing. If you want to murder someone, there is a price tag attached, which price is completely negotiable. "Mitigating circumstances" are a euphemism for "bargaining" on the final price.

Pricing is the punishment phase of the law and yes it is priced in degrees 1st,2nd,3rd,etc. Felony or Misdemeanor. Murder often has the price tag of Capital Punishment at least in Alabama.

If one's culture requires vengeance, (which, of course, is primitive and inferior to our incredibly perfect and objective Western Legal System [tm]) then being prohibited from putting down someone who needs it, badly, whether in confinement or no, that pesky law prohibiting it, is highly subjective in nature.

We will just have to disagree on that, the criminal statute that defines murder is about as objective as one can get. I would be the last person to ever tell you the Western justice system is perfect.

So lawyers are pretty much useless for debating the "rightness" or "wrongness" of law. They are only the minor functionaries whose job is to debate the price.


Lawyers do debate rightness or wrongness of a law all the time. Laws are challenged all the time.

Of course, you can always "steal" the "product" by getting away with the crime.

Yes you could do that.


Of course, in reference to Slapout's subjective versus objective argument:
How about when the government decides they can shoot someone who is in custody?

Then the Agent acting on behalf of the Government would be guilty of a crime.


sorry 120mm I messed up that double quote button thingy.

[sapperfitz82]

Or haven't you heard? The 5th Amendment's gone global. Fair trials for everyone!

Boy, you can almost hear democracy breaking out.

[jmm99]

jmm99 this is straight up your alley

but I'm just in lurking and listening mode - has all the makings of a good bar brawl.

[120mm]

[/B]

Then the Agent acting on behalf of the Government would be guilty of a crime.

sorry 120mm I messed up that double quote button thingy.

I know what you mean, but what you just said is that the executioner on death row is guilty of a crime....

After all, he kills a man who is helpless and in custody...

[120mm]

but I'm just in lurking and listening mode - has all the makings of a good bar brawl.

I'm buying the drinks afterwords, and we promise not to break any chairs or tables....;)

[slapout9]

I know what you mean, but what you just said is that the executioner on death row is guilty of a crime....

After all, he kills a man who is helpless and in custody...

Don't agree, the person on death row has had due process...a trial and found guilty. The other has not.

jmm99 no brawls here, just good discussion. 120mm has some good points.

[120mm]

Don't agree, the person on death row has had due process...a trial and found guilty. The other has not.

jmm99 no brawls here, just good discussion. 120mm has some good points.

So, because 12 people who lack the abilty to escape jury duty, subjectively decide he's had "due process", this somehow makes this law objective? That's much superior than some (often ancient) tribal honor code....

I'm just sayin'.....:)

[jmm99]

the 600 lb. gorilla would start tossing around the young chimps, you tell me this


120mm
I'm buying the drinks afterwords, and we promise not to break any chairs or tables

slap
jmm99 no brawls here, just good discussion

:)

What I've been doing (thus the lurking and listening mode) is slogging through MAJ Krepinevich's 300 page appellant's brief on Vietnam, with asides to Stanton, Palmer and Garland.

Since I won't get to watch a bar brawl here, I suppose I must contribute something, even though Law and Society isn't one of my fields.

Here's a start at the top:


120mm
An honor code is just that, a code, a highly subjective set of rules of conduct that different cultures define differently. An honor code is not the same thing as the rule of law as codified in instruments like the Geneva Conventions. For instance, a Marine wouldn't be tried in court for leaving behind a squad member, even though doing so would break a deeply held honor code among Marines (and other service branches, obviously).

Seems "highly subjective" is a term that has to be tied down. To me, a "subjective" approach is what the individual sees as an appropriate course of conduct for that individual. That, BTW, varies with personality types, etc. (another thread on that). If "highly subjective" means "highly individualistic", then each person will have his or her own set of rules determining conduct. That would be the "final solution" to the crime problem since there would be no criminals.

Seems we might also consider "objective" vs. "subjective". I'll try an example of an "objective" standard. We have the "reasonable man" standard (in PC, I suppose the "reasonable person" standard). Now, that happens to be a flexible standard (hence, for those who like rigidity, it is not a standard at all) - What is a "reasonable man" ? And, if you happen to take Torts 101, you will spend more than a few weeks trying to get a handle on that - if ever.

Yet, juries every day apply that standard to decide whether the defendant was negligent or not:


M Civ JI 10.02 Negligence of Adult—Definition

Negligence is the failure to use ordinary care. Ordinary care means the care a reasonably careful *person would use. Therefore, by “negligence,” I mean the failure to do something that a reasonably careful *person would do, or the doing of something that a reasonably careful *person would not do, under the circumstances that you find existed in this case.

The law does not say what a reasonably careful *person using ordinary care would or would not do under such circumstances. That is for you to decide.

Now, is this a "subjective" or "objective" standard ? It definitely is not "individualistic" because, not only is the defendant's personal standard of care irrelevant, each juror's personal standard of care is equally irrelevant - except as it becomes a factor in the jury's group consensus of what a "reasonably careful person" would or would not do.

So, at least we have gotten to the point where an "objective" standard has to be a group consensus - in a jury trial, 6 or 12 people whose group consensus in a particular case is affected by their life experiences which include input from thousands of people.

Having got that far, what is that "law" that "does not say" a damned useful thing in MCJI 10.02. Damned if I know. Perhaps, it is a brooding omnipresence in the sky. For my purposes, starting with a brooding omnipresence is not very useful.

In short, I do Jomini, not CvC (probably a bad metaphor - let's say that checklists like MOOSEMUSS, METT-TC and SMELC are more similar to how I approach "law"). The bottom line for me, is that the "law" in any particular case is what the judge or jury explicitly or implicitly says it is.

Trying to collect some of this mess together (leaving out "subjective" and "objective"), I suggest that:


... a law is a code, a set of rules of conduct that different cultures define differently.

So, to me, the Marine Honor Code is just as much a law as the Geneva Conventions. I also suspect that the Marine Honor Code is enforced with more regularity and probably with more consistency than the GCs (which, if you've been reading me, were something of a mess to begin with and are more so with the increased presence of non-state actors as "Powers" in armed conflicts).

All laws (no matter how defined) are "enforceable" in some way - otherwise, they are not laws. A question is whether they are "enforced". E.g., a lot of ink has been spilled on the 1994 & 1996 Anti-Torture Act and War Crimes Act. When I last read, there has been one prosecution and conviction under the first and none under the second.

I have no idea how many Federal laws there are (statutes, regulations, orders, etc.) - maybe a million or so - and seemingly rising along with the national debt. Most we don't hear about because they are not enforced, or do not need to be enforced.

Finally, I think I can get back to the issue I think 120mm raised - what happens when one law collides with another law. Say, the Marine Honor Code and the UCMJ, as in the Tom Cruise movie, A Few Good Men, where from a trial lawyer's standpoint they got the military judge right and not much else. Anyway, it does present the outcome of collisions between laws, where there is also a collision of various ideologies - as presented by the Hollywood types who wrote the script.

As I said, Law and Society is not one of my favs - so, I won't be insulted if someone says that the preceding is a load of bullroar. In any event, I'll get back to slogging Krepinevich, etc., tonite.

[120mm]

Finally, I think I can get back to the issue I think 120mm raised - what happens when one law collides with another law. Say, the Marine Honor Code and the UCMJ, as in the Tom Cruise movie, A Few Good Men, where from a trial lawyer's standpoint they got the military judge right and not much else. Anyway, it does present the outcome of collisions between laws, where there is also a collision of various ideologies - as presented by the Hollywood types who wrote the script.

I guess in my highly idealistic world, the honorable person breaks the law and then uncomplainingly accepts punishment, therefore satisfying both "honor" and "the law."

I think a very important question we need to ask ourselves, is "What impact is our insistence on forcing a foreign concept of "law" on a society where we are trying to fight a counterinsurgency have on our strategic goals?"

[slapout9]

So, because 12 people who lack the abilty to escape jury duty, subjectively decide he's had "due process", this somehow makes this law objective? That's much superior than some (often ancient) tribal honor code....

I'm just sayin'.....:)

Let me be a little mo clear bout this. I mean Objective law as in a clear defintion of what the crime is. The crime of Murder is pretty objective. The steps in due process are also pretty clear and objective. The "decision making process" used by various people (jury) to determine guilty or not guilty is usually anything but objective.
:wry:

[jmm99]

I guess in my highly idealistic world, the honorable person breaks the law and then uncomplainingly accepts punishment, therefore satisfying both "honor" and "the law."

only if the game warden catches me with the illegal goose (or two).

And that, after consideration of why we have game limit laws. But, when you have three guys pounding away at an incoming gaggle, you can get more than the 3-person limit. My daddy taught me that leaving game in the field to rot was (and is) a sin.

Thus, the McCarthy exception to the DNR regulations. Sorry, 120mm & Slap, to admit that I break the law - and don't step up to accept punishment. Course, I didn't give the date and place - so, the confession is quite useless (at least in Michigan). Beyond that I plead the Fifth (after taking a shot).

[120mm]

only if the game warden catches me with the illegal goose (or two).

And that, after consideration of why we have game limit laws. But, when you have three guys pounding away at an incoming gaggle, you can get more than the 3-person limit. My daddy taught me that leaving game in the field to rot was (and is) a sin.

Thus, the McCarthy exception to the DNR regulations. Sorry, 120mm & Slap, to admit that I break the law - and don't step up to accept punishment. Course, I didn't give the date and place - so, the confession is quite useless (at least in Michigan). Beyond that I plead the Fifth (after taking a shot).

Do you know that in German hunting, (which is much, much more regulated and expensive than the American brand) they hold an Honor Court, for exactly these purposes? Sometimes, the individual loses their license for life, which is a big deal. Other times, when it is a clear mistake, they turn it into a good-humored "roast" of the individual making a mistake.

I once participated in an Honor Court for an elderly gentleman who shot a Roe jumping in the snow, thinking it was a Hare. As Roe deer are approximately the same size, and an unantlered one looks close to a Hare, when it's trying to move in deep snow they move the same.

The individual in question sat before the board, and they "punished" him by making him drink beer, and receive instructions on the difference in a Hare and a Roe Deer, complete with other hunters wearing costumes and demonstrating the difference in movement. :D

The point behind this charming story is to show an instance where an Honor Code is superior to "The Law". The elderly gentleman didn't need to pay a real fine, or to lose his license, honor was served, and everyone had a great time.

[reed11b]

meh...what I keep hearing you describe 120 is not the difference between "the law" and "honor codes", but the difference between enforcing the letter of the law and the intent of the law. I feel you may have an overly romanticized view of "honor codes". Honor codes tend to be every bit as inflexible and illogical as "the law". In fact honor codes are were you get Muslim women stoned to death and acid poured on there face, or were in western society you get rationalized violence against other people for perceived "threats to manhood" or where the Japanese fight way past the point of any possibility for victory, much to the detriment of everyone involved. Now the flexibility to recognize the difference between the "intent" of the law and the "letter" of the law, that may have some function.
Reed

[slapout9]

I think a very important question we need to ask ourselves, is "What impact is our insistence on forcing a foreign concept of "law" on a society where we are trying to fight a counterinsurgency have on our strategic goals?"

That is a good question!

PS-If the HTT member has a good attorney I think he stands a fair chance of either being acquitted or maybe just get probation and an agreement not to become involved in HTT anymore.

[120mm]

meh...what I keep hearing you describe 120 is not the difference between "the law" and "honor codes", but the difference between enforcing the letter of the law and the intent of the law. I feel you may have an overly romanticized view of "honor codes". Honor codes tend to be every bit as inflexible and illogical as "the law". In fact honor codes are were you get Muslim women stoned to death and acid poured on there face, or were in western society you get rationalized violence against other people for perceived "threats to manhood" or where the Japanese fight way past the point of any possibility for victory, much to the detriment of everyone involved. Now the flexibility to recognize the difference between the "intent" of the law and the "letter" of the law, that may have some function.
Reed

"Law" has the great advantage over honor analogous to stopping to eat at McDonald's while on the road: At least you have a reasonable chance of getting something similar to what you're used to. Law's greatest advantage is predictability.

In fact, "Law" is crucial to things like trade and travel.

Both "Law" and "Honor Codes" have the potential for being abused, and they share one attribute: Only the more egregious abuses of either get publicity, so I'll see your woman-stoning and raise you an O.J. Simpson....

While I do not condone returning to an honor system, I suggest that maybe Western-styled rule of law may not be appropriate in every cultural situation, especially in the middle of a counterinsurgency fight.

[AmericanPride]

Just a hypothetical question: would those who are calling this act "murder" oppose the reprisal had it been authorized by the theater commander (assuming it had been done as a "last resort")?

[jmm99]

Your German example is not what I was getting at - a direct clash between the Criminal Code and the Honor Code (as has been suggested in Mr. Ayala's case and scripted in a A Few Good Men). In your Roe-Hare case, a mistake of fact is remedied by a diversion of the elderly gent to the Honor Court, where he is punished. That is simply having two different court systems for the same factual offense.

My goose pond example was inadequate since it could involve an element of "mistake" (shooting too many geese). Give you one that is clearer. Same pond on another day, and a gaggle comes in with 3 geese downed (1 for each hunter). Other people had been there the day before and left quite a few geese downed but not where they could be readily picked up.

Bruce, who's a young animal (not an elderly gent) has to get the three - so, he takes some rope, circles the pond and swamp and comes back with 10 geese (the 7 from the day before nicely chilled - this is Northern Michigan). So, I walk out with 3 geese - illegal because the crime is possession over limit. No Honor Court for doing that - in fact, as far as we were concerned there should have been an Honor Court if we left them there.

You could say the same about homemade hooch (nothing like first run clear white). But, illegal unless you have a Federal permit. No alternative Honor Court there, either.

So, there are Honor Codes arising from the particular culture which are contrary to the Positive (enacted) Law on the books. Now, as Reed poiints out, and you agree, some Honor Codes suck - maybe accepted (or kept in the closet) under some forms of Sharia Law, but not culturally or legally acceptable here. So, Honor Codes may be parallel to the Criminal Code (your Roe-Hare); or, they may collide with the Criminal Code - some in a benign way; some in a malignant way; and, some, it depends.

An Honor Code can be just as predictable as Positive Law, if you know the rules. As you say, an outsider doesn't know the rules, so Positive Law is the fallback. As you also say, there is an even larger chance of collisions where the Positive Law is imposed by an occupying power.

BTW: I hate the term "Rule of Law", unless one first defines what laws are to rule. Hell, AQ operates under a Rule of Law (as attested by UBL's & Zawahiri's very legalistic writings).

[jmm99]

Just a hypothetical question: would those who are calling this act "murder" oppose the reprisal had it been authorized by the theater commander (assuming it had been done as a "last resort")?

Sounds a lot like the Malmedy Massacre on a smaller scale, which militarily was a "last resort" because the prisoners would have held up the SS advance on Stavelot (just down the Ambleve from Malmedy). Thus, a War Crime on the part of both the shooter and the theatre commander (IMO).

Changing the facts (adding more facts) might give a more nuanced response.

[AmericanPride]

Sounds a lot like the Malmedy Massacre on a smaller scale, which militarily was a "last resort" because the prisoners would have held up the SS advance on Stavelot (just down the Ambleve from Malmedy). Thus, a War Crime on the part of both the shooter and the theatre commander (IMO).

Changing the facts (adding more facts) might give a more nuanced response.

IIRC, a theater commander can order a legal reprisal in order to compel the enemy to conform to the laws of war.

EDIT: I believe this is relevant to the present conversation because of the obvious options which reveal themselves should the US decide to pursue said compellence. If that were decided upon, suddenly the shooter's action in this case is not murder, but (possibly) a legal reprisal. The act remains the same, but it's legality and (supposedly) its moral value change.

[jmm99]

OK. I got the idea. I'm the theatre commander. AQ saws off my captured troopers' heads and sends me the videos ("sawed off" was what I saw in the several videos I've watched). I have AQ prisoners.

Can I issue a legal order to saw off their heads ? - let's assume 1 for 1 so there is direct proportionality; and the reprisal is the only way to deter them and cause them to follow the laws of war (personally, I think that's a bad assumption).

Too late (0115) to sensibly discuss this. Some refs (so they are available):

WWII Balkan Cases (German commanders)

http://www.ess.uwe.ac.uk/WCC/List1.htm

Swedish Masters Thesis 2005 (expect this would be a common Euro view)

http://www.jur.lu.se/internet/english/essay/masterth.nsf/0/E39F3ECD4183B677C1256FF000320F84/$File/xsmall.pdf

FM27-10 also bears on this (1956)

http://faculty.ed.umuc.edu/~nstanton/FM27-10.htm

---------------------------
Without looking at anything legal, this idea seems off the wall to me.

Is there anybody here who has looked at this from a commander's standpoint ?

[AmericanPride]

This was my source (http://law.jrank.org/pages/9791/Reprisal.html) btw.

[slapout9]

If that were decided upon, suddenly the shooter's action in this case is not murder, but (possibly) a legal reprisal. The act remains the same, but it's legality and (supposedly) its moral value change.

Justafiable Homicide is what several of my defense attorney friends are saying. More later as I get their final opinions.

[jmm99]

General message -

Try to give a consise fact situation in any hypothetical, or that underlies any opinion. Context is everything in these cases.

At the U of Mich, homicide was the focus of 1st year Crim Law - a combined Law and Procedure course since so many of the key procedure cases have been capital cases. As Slap pointed out in a prior post, there are many degrees in the criminal charges. And, there are many degrees of justification, including shooting the soldier who is not directly threatening you.

The commandant should read: Thou shalt not kill, except ........

[slapout9]

Well I finished talking to my defense attorney friends and they are a strange lot:wry: Their opinions were wild to crazy and everything in between. Here is the condensed version.

The military hired this person to find out about and understand the targeted society in order to achieve a military advantage. This contractor understood the Astans so well that in order for him to continue to operate in this environment he needed to shoot this person in order to maintain his safety because that is how this society works unlike ours. If he did not take this action he could not continue to do his job and his personal safety would always be in jeopardy. It was a preemptive strike, hence it was justifiable.

[Ken White]

I thought that was a definite possibility but I wouldn't have considered it a legal defense. Which is why they're Attorneys and I'm not... :o

[jmm99]

to this topic - hopefully with some intelligent input - after getting myself out of the house to get a bottle of wine for ChickenDay dinner. Wife doesn't like leftovers - so, a very large roasting chicken will substitute for the T-bird, as has become the custom.

To the rest of you all, Happy Turkey Day. :)

[jmm99]

Well I finished talking to my defense attorney friends and they are a strange lot Their opinions were wild to crazy and everything in between.

:D

I think we are dealing with three kinds of self-defense by an individual:

1. Immediate self-defense - OK

2. Pre-emptive self-defense - maybe; it depends

3. Preventive self-defense - probably NOK

What your "strange lot" defense attorneys are proposing is really preventive self-defense - scaring the hell out of the bad guys so they won't do the same bad thing in the future - a general deterrence theory.

This concept ties into the issue of reprisals (American Pride's point) - and into the extent of national self-defense under the UN Charter and I Law. So, the topic has an across the board application, so far as COIN is concerned. I'd guess that similar issues are not uncommon at SOCOM, for example.

I am reaching the conclusion that Ken's initial assessment of the defense lawyers' "wild to crazy" opinions was correct:


I wouldn't have considered it a legal defense ...

The problem is explaining all of this without writing a book. Have to think about that for a bit.

Meanwhile, Slap, you might find it worthwhile to ask your prosecutor friends what they would most fear as a defense if they were prosecuting Mr. Ayala.

Along the same lines, I might toss this topic at a couple of criminal court judges I know - meeting with one next week about something else.

PS: If Mr Ayala actually went through the thought process that the defense lawyers are suggesting, he certainly premeditated and deliberated about the shooting. So, instead of 2nd degree murder (the present charge), it should be 1st degree murder - if the defense fails. Blowback !

[slapout9]

jmm, I didn't ask the prosecution but I did ask the defense what they were most concerned about. Almost unanimous in their conclusion...the guy was handcuffed when he was shot.:eek: At least that is what has been reported.

[jmm99]

.... the guy was handcuffed when he was shot.

that is a definite problem.

Which is why in the thread on the case I suggested the "Anatomy of a Murder" defense.

That was a real case, tried in Marquette MI by an older lawyer I knew, Johnny Voelker, whose story is here:

http://en.wikipedia.org/wiki/Robert_Traver

Anatomy's "bio" is here:

http://en.wikipedia.org/wiki/Anatomy_of_a_Murder

The real trial is summarized here (last 2 pp. of 10):

http://www.michiganhistorymagazine.com/features/discmich/anatomy.pdf

Now, for the bottom line - closing comment by one of the jurors (end p. 10):


“I was thankful that the trial was over. I felt that the lieutenant was justified in what he did. I was a soldier and a soldier is trained to defend and that’s what the lieutenant did—defend his wife. I don’t think he was temporarily insane. I felt he had a right to do what he did. Why should he suffer the rest of his life to let a man do that to his wife?”

That is what I mean by "jury nullification" - you argue a legal theory as the direct defense, but the real object is to convince the jury of the indirect defense that you can't argue directly.

[slapout9]

That is what I mean by "jury nullification" - you argue a legal theory as the direct defense, but the real object is to convince the jury of the indirect defense that you can't argue directly.


Yep, women's rights issues and sympathies are a lot bigger in this country to. Get a jury that is half female:wry:

[Schmedlap]

It is futile to argue "law" with someone who has deemed the cost of whatever activity as an acceptable cost. For someone who values honor more than anything else, a tribal code is not subordinate to law.

I'd be curious to hear some views on that specific point - particularly from the folks in law enforcement. I'm thinking about lower class, black teens who grow up in the ghetto, who seem to identify themselves as members of a class that is oppressed by the government - particularly the law enforcement personnel. Because their identity is in large part based upon opposition to law enforcement, going to jail is a badge of honor. It is respectable to earn a living in a manner that is illegal or otherwise flaunts society's norms. Any law directed at their anti-social behavior is immediately viewed as a government reprisal against their way of life (for example, laws against possession of crack were argued to be biased against blacks rather than against crack possessors). Am I way off base with this?

[jmm99]

the overall juror profile will determine whom you challenge or not. SOP for me was to background all jurors in the array (usually 72 give or take). Be nice to have a jury of vets who spent half of their military careers in burn wards.

Actually, old-fashioned redneck male types who believe in the protection of women - and in a little old-fashioned populist justice - would seem better.

[jmm99]

(Schmedlap)
Am I way off base with this?

but you are coming close. Don't know what identifiable ghetto group(s) is that or those of which you speak. I do know of a group that certainly believes that "Any law directed at their ... behavior is immediately viewed as a government reprisal against their way of life". Visit Stormfront and you will find 31 pages of "Legal Issues - Criminal and civil law affecting activists". I don't think this forum should go there - others may differ.

-------------------------------
As to the general substantive issue, IMO, "law" (unless you believe it is a brooding omnipresence in the sky) is a tribal code - the code of the dominant tribe that establishes it. If the dominant group is inclusive enough, its code will represent the norm of a majoriity of the total population. Within that population, there will be other tribes. Their codes will either supplement or conflict with the dominant tribal code.

If you are in one of the minority tribes, you can accept or reject the dominant code - "For someone who values honor more than anything else, a tribal code is not subordinate to law." If you happen to live in an authoritarian society, your value of "honor" (in your minority tribal code) will result in a bullet in the back of the head, sentence to a gulag or confinement to a nuthouse (in its kinder and gentler phase). Even in a liberal democracy, the dominant tribe will enforce its code.

[120mm]

I'd be curious to hear some views on that specific point - particularly from the folks in law enforcement. I'm thinking about lower class, black teens who grow up in the ghetto, who seem to identify themselves as members of a class that is oppressed by the government - particularly the law enforcement personnel. Because their identity is in large part based upon opposition to law enforcement, going to jail is a badge of honor. It is respectable to earn a living in a manner that is illegal or otherwise flaunts society's norms. Any law directed at their anti-social behavior is immediately viewed as a government reprisal against their way of life (for example, laws against possession of crack were argued to be biased against blacks rather than against crack possessors). Am I way off base with this?

I don't think you're off base at all. And to add to jmm99's above comments, I think one of the "root causes" that has to be addressed, especially in an insurgency that has ties to differeing ethic/cultural groups, is "is the structure of law/honor codes sufficiently consistent with the insurgent group's codes to have legitimacy.

[slapout9]

Actually, old-fashioned redneck male types who believe in the protection of women - and in a little old-fashioned populist justice - would seem better.

Hadn't thought of that,but sounds pretty good. Out of my lane so to speak but I have heard that there are actually "Jury Consultants" who do nothing but specialize in this.

[slapout9]

I'd be curious to hear some views on that specific point - particularly from the folks in law enforcement. I'm thinking about lower class, black teens who grow up in the ghetto, who seem to identify themselves as members of a class that is oppressed by the government - particularly the law enforcement personnel. Because their identity is in large part based upon opposition to law enforcement, going to jail is a badge of honor. It is respectable to earn a living in a manner that is illegal or otherwise flaunts society's norms. Any law directed at their anti-social behavior is immediately viewed as a government reprisal against their way of life (for example, laws against possession of crack were argued to be biased against blacks rather than against crack possessors). Am I way off base with this?

Very accurate based upon my experience.

[reed11b]

I'd be curious to hear some views on that specific point - particularly from the folks in law enforcement. I'm thinking about lower class, black teens who grow up in the ghetto, who seem to identify themselves as members of a class that is oppressed by the government - particularly the law enforcement personnel. Because their identity is in large part based upon opposition to law enforcement, going to jail is a badge of honor. It is respectable to earn a living in a manner that is illegal or otherwise flaunts society's norms. Any law directed at their anti-social behavior is immediately viewed as a government reprisal against their way of life (for example, laws against possession of crack were argued to be biased against blacks rather than against crack possessors). Am I way off base with this?

There was some justification too the argument that "crack" laws were biased against blacks. This was based on the fact the punishment for an equal amount of crack to an equal amount of cocaine was disproportionately heavier for the crack possessor. Since crack was primarily used by urban black poor and cocaine was used by middle class whites and the addictive/physical damaging properties of both drugs are similar, there likely was a bias.
Reed

[jmm99]

Yup, they do exist - the lawyers' equivalent of HTTs. Very expensive and sometimes more voodoo than useful.

Mine was the country boy version - which works in small counties (i.e., Northern Michigan, whose congressional district covers 1/2 of Michigan's landmass). The idea is networking.

If juror 32 is from a small community, you call up your friends there (swear them to absolute secrecy - actually they are more worried about you telling the world what they say) and find out everything they are willing to tell you about juror 32, that person's friends, family, enemies, etc. Basically, a list of pretty standard questions depending on the case.

If the case was in a county where I had no or little network, I'd associate a lawyer there who had a network and knew how to use it. The bottom line is that you end up with a list of Yes, Probably Yes, Don't Know, Probably No, No. You then become better informed when you meet the jurors at the voir dire when the jury is selected.

Let us be clear. A trial lawyer is not looking for a "fair and impartial" jury. E.g., if I represented Gus Hall in the 1950's, I'd want a jury of Communists or as near as I could get to them. If I represented Tom Metzger or David Duke more recently, I would want Stormfronters or as near as I could get to them.

I would get neither because the guy on the other side would be knocking them out by challenges - as would I to "his jurors". So, assuming the jury array (all prospective jurors) is inclusive of the community's demographics, the net result is as close to a "fair and impartial" jury as we can get.

All this is not news to you, Slap, but it may be informative to those here who have not been involved in litigation.

[Uboat509]

There was some justification too the argument that "crack" laws were biased against blacks. This was based on the fact the punishment for an equal amount of crack to an equal amount of cocaine was disproportionately heavier for the crack possessor. Since crack was primarily used by urban black poor and cocaine was used by middle class whites and the addictive/physical damaging properties of both drugs are similar, there likely was a bias.
Reed

The question to ask before a declaration of racism is, "which drug has lead to more crime being committed?" Are more middle class whites committing crimes to get their coke or are poor urban blacks committing more crime to get their crack? I am always skeptical when I hear the R word being thrown around. Sometimes it is fully justified. Sometimes it is not. When I was going through the Q course there was an editorial being passed around where the author stated that Special Forces was a racist organization because they would not do away with the swim test as an application requirement. To my mind it is more racist to suggest that black people can't learn to swim than it is to have a swim test as an entrance requirement, but what do I know, I'm just a white guy from suburban Pennsylvania.

SFC W

[120mm]

The question to ask before a declaration of racism is, "which drug has lead to more crime being committed?" Are more middle class whites committing crimes to get their coke or are poor urban blacks committing more crime to get their crack? I am always skeptical when I hear the R word being thrown around. Sometimes it is fully justified. Sometimes it is not. When I was going through the Q course there was an editorial being passed around where the author stated that Special Forces was a racist organization because they would not do away with the swim test as an application requirement. To my mind it is more racist to suggest that black people can't learn to swim than it is to have a swim test as an entrance requirement, but what do I know, I'm just a white guy from suburban Pennsylvania.

SFC W

Would that make you a "bitter clinger"...;):D

[Uboat509]

Would that make you a "bitter clinger"...;):D

Til my dying day!:D

SFC W

[Beelzebubalicious]

Man who killed Afghan seeks sentencing leniency (http://www.nola.com/news/index.ssf?/base/news-1/124158792126600.xml&coll=1)
He says he was reacting to horrific attack on friend
Wednesday, May 06, 2009
By Bruce Alpert
Washington bureau

[jmm99]

Link to article (http://www.google.com/hostednews/ap/article/ALeqM5hM067vULxgQQZnSRtoCVH5C8pajAD98241QG0) from SWJ Blog thread.


Ex-contractor given probation in slaying of Afghan
By MATTHEW BARAKAT – 2 hours ago

ALEXANDRIA, Va. (AP) — A former military contractor was sentenced Friday to probation for shooting and killing a handcuffed prisoner in Afghanistan.
...
Loyd's family has been among Ayala's strongest supporters. Loyd's mother, Patricia Ward, noted in a letter to the judge that several of Loyd's friends offered to serve Ayala's time for him.

"His reaction was perfectly normal in my mind," wrote Ward, who said that she likely would have done the same thing.

Ayala's lawyers said his experience, rather than steeling him to keep his emotions in check, left him with latent combat stress that reared up as he dealt with the emotions and adrenaline of the attack on Loyd and the struggle to subdue Salam. At one point in the struggle Salam had grabbed the barrel of a soldier's rifle.

"Without knowing it, Mr. Ayala was vulnerable to errors in judgment under combat conditions" because of the accumulated combat-related stress, wrote federal public defender Michael Nachmanoff.

Same defense argument as in Anatomy of a Murder - with similar result. No complaint from this lawyer (see Slap's post #20 & JMM's #35 in this thread).

[120mm]

While I was somewhat surprised by probation, I'll take it.

Buy this judge a beer or whatever for what to me is amazingly straightforward "justice".

[jmm99]

Judge Claude M. Hilton is a US District judge on "senior status" (semi-retired) - something like JMM's status as a "senior lawyer"; except he makes more money than I do. ;)

Seriously, from Judge Hilton's official bio (http://www.fjc.gov/servlet/tGetInfo?jid=1051), Wiki1 (http://judgepedia.org/index.php/Claude_Hilton) and Wiki2 (http://en.wikipedia.org/wiki/Claude_M._Hilton), a fair inference is that he is center-right to the extent he has any political slant.

Of more importance to this case, is the fact that Judge Hilton was assigned to the FISA court (2000-2007) - so, he knows more about classified stuff re: AQ-Taliban than the average bear. He also knows something about Astan & Pstan - and the AQ-Taliban types there - from the public record (http://townhall.com/columnists/TerryJeffrey/2008/12/03/from_paintball_to_mumbai?page=full):


Wednesday, December 03, 2008
From Paintball to Mumbai
by Terry Jeffrey

The defiant words a former third-grade teacher spat at a judge in Alexandria, Va., in April are more poignant now that sources in the Indian and U.S. governments are saying they believe Lashkar-e-Taiba (LET), a Pakistan-based terrorist group, was behind the mass murder in Mumbai, India, last week.

"What government was supposed to be intimidated by my actions?" Ali Asad Chandia asked U.S. District Judge Claude Hilton at the April hearing where the judge reconfirmed Chandia's 15-year prison sentence, according to The Associated Press. "Do you think the government of India will feel intimidated by a few boxes of paintballs?"

Chandia taught at an Islamic school in the Maryland suburbs before being convicted in 2006 of "providing material support to terrorists." .... [much more in article]

Since I don't know Judge Hilton, I can't say that he is a part of the beer-drinking crowd of "old-fashioned redneck male types who believe in the protection of women - and in a little old-fashioned populist justice" (see post #41 above) - but, I'd like to think so. :)