Kiwi Fruit and Pomengranates
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Originally Posted by
tequila
...This is probably not a game-changer from an Afghan perspective, since most Afghans make little distinction between a deliberate American massacre and a slaughter by error at this point in the war.
I agree but not due to the politically tinged reasons reason you or Foust state, rather simply because most Afghans are used to death, period.
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Where it may be a game changer, the way My Lai was, is in the American domestic sphere. The urge to cut and run seems to be only accelerating at this point.
Funny, having been around at the time I do not recall My Lai as being a US 'game changer' -- other than with the pseudo intelligentsia who latched on to it as yet another reason to not be in Viet Nam. The majority of Americans didn't turn a hair and no American politician got upset unless it was to his or his party's political advantage to do so. Some things don't change much...
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Should we turn him over to the Afghans? Should we have left Ray Davis and his incompetent QRF to the Pakistanis? The pilots who killed nine Afghan children last year? The precedent set would be disastrous.
Carl's already correctly called you on this. Military or professional incompetence is one thing, military misadventure another and murder is murder. Very different issues.
(Though I could make a case for being almost as unforgiving of incompetence... :wry: )
In fairness, while the contention of Carl and I is, I believe, correct (and noting that we both are saying IF it's proven to be as it seems -- right now too early to tell, really...), your point on precedent is well founded. It would indeed be misunderstood and seized upon -- but I think that goes with the territory. Start messing around in places and with people you do not understand and bad things are a given. So, yes a bad precedent but perhaps one that might encourage less stooging about in other nations...
You all who are propounding ...
that the death penalty should apply to murderers under special circumstances are preaching to the choir of Brooks Patterson and John McCarthy. Of course, it should apply; even though, as Brooks said, despite the system being closer to fool-proof (DNA evidence), mistakes can be made.
But, if you are one who propounds the death penalty, then you damn well should answer my basic proposition, which is (so I am crystal clear):
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The basic proposition is very simple: Based on the evidence you have before you now, is there enough evidence for you to decide whether you would personally execute "S.Sgt. X" [or murderer of your choice] now ?
even if you only answer that question to yourself.
If your bitch is with the criminal law system, then instead of griping, find a non-party group (all groups are partisan) that pushes your agenda. You will find one to suit you because they are spread across the ideological spectrum.
My personal agenda over the years has been the NRA and Second Amendment Foundation (which accept the death penalty and strict enforcement of existing criminal laws as an added bonus). I really don't see "reform" of the criminal justice system happening; nor do I see the death penalty making much of a difference in general deterrence (obviously it is the ultimate specific deterrent).
Thus, my goal is enhancing the rights of the "Armed Citizen" in his or her own defense and the defense of others. It is much better to preemp the would be murderer than to punish the actual murderer. I kill him rather than he kill me. In saying that I realize that the average "Armed Citizen" (including me) is not going to stand up against someone well-trained and experienced in CQB. But, at least there is a chance. End my "political" plug.
Culpepper: If I were the decider personally (no external constraints - think Tony Waller and Arthur Day combined), I would require the informal equivalents of a good AR15-6 report and of a good forensic psychiatric. Then, I would give the guy the opportunity to speak or remain silent. If after that, the "evidence" (note the absence of formal rules) flipped my switch by showing sane commission of the acts, without some other plausible defense, I would find the guy guilty. Then, I'd have to execute him because that's what I've said I'd do. Inject an excellent service record and plausible evidence of diminished capacity driving the acts, for example, and I probably wouldn't reach the death penalty. As I've said, the evidence presently before me is insufficient for me to decide anything.
Warning - in legal opinion mode (what the present constraints are) for the next five paragraphs. In his Son Thang book (1997), Gary Solis noted that the last military execution was in 1961 (the last Marine was executed in the early 1800s). Of course, Gary was correct when he wrote that - in detail, see Number of military executions in the UCMJ era (2008).
I think that's still the case - e.g, the Ronald Gray case. SIGNIFICANT MILITARY JUSTICE DEVELOPMENT: President approves Gray's death sentence (2008) (interesting comment by Gray's roommate at very end). Ronald A. Gray was still alive in Feb 2012 (Wiki and Fayetteville Observer). If I've missed a military execution, please advise.
So, the UCMJ does provide for the death penalty in premeditated murder cases - not only for the shooter, but for aiders and abetters also. In all death penalty cases, notice of intent to seek the death penalty must be given by the Convening Authority. Your Manual for Courts-Martial has all that stuff.
Warning - still in legal opinion mode. "S.Sgt. X" has apparently muled up - anyone who has followed Haditha and read about Son Thang knows that is the only smart thing to do. So, we don't know what (if anything) he will say at trial. By that time, he may be catatonic (makes an easy defense - the case can't be tried - been there, once), but not likely. The accused's testimony at trial (without prior statements) can be very outcome determinative - not saying it would be in this case.
Warning - still in legal opinion mode. We can expect two issues to be raised by the defense: (1) undue command influence (our National Command Authorities, POTUS and SecDef, have probably been talking too much); and (2) contamination of the forensics and "crime scenes" (villagers and Taliban). Not saying they are winners either, but they will be raised.
I'm not going to get involved in the SOFA discussion - have fun, guys. BTW: Carl's question:
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If a soldier did the same thing in Japan, walked off the base, murdered 16 Japanese, then walked back onto the base and turned himself in; who would handle the case?
is a good one. I just don't want to talk about that now. So I won't.
Regards
Mike
PS: A "SOFA" with the Astan Gov't was mentioned in a footnote to the USG Brief or Appendix in the Bagram habeas case (either District or Circuit phase) as being contained in "diplomatic notes". I don't know if that "agreement" (a type of executive-executive agreement) has been published. Right now, I'm not going to find out. I didn't think there was a US-Afghanistan agreement on Governance, Economics and Security until Ken White wised me up to the 2005 Strategic Partnership Agreement (still in effect) signed by Pres. Bush and Karzai. That has been published. Warning: Astan is a minefield of "memoranda of understanding" - Take care.