New evidence suggests Australian Boer War soldiers were innocent

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MORE than 109 years after they were convicted of murdering Boer prisoners, the descendants of Harry "Breaker" Morant, Peter Handcock and George Witton have urged Attorney-General Robert McClelland to hold a judicial inquiry into their trial and sentencing by British military authorities.

Their case has been bolstered by legal advice from leading barrister David Denton SC, who argues the men were denied due process and that serious errors of law mean their convictions were not legally sound.

The relatives hope an inquiry will reveal the truth about the episode, lead to pardons for the three Australian soldiers and bring closure to their families after decades of grief and shame.

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http://www.theaustralian.com.au/busi...-1226103792708

for those interested in Breaker Morant - both fiction and fact:

Breaker Morant (film)

Court martial of Breaker Morant

Breaker Morant (link drops down to discussion of the "Scapegoats" book by George Witton, the only accused not executed)

Lieut. George Witton, Scapegoats of the Empire: The True Story of Breaker Morant's Bushveldt Carbineers (1907 -A Project Gutenberg of Australia eBook):

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I have not attempted to defend the doings of the ill-starred Bushveldt Carbineers, or the policy of those who employed them.

The methods of dealing with prisoners, which have been solely attributed to that corps, were in active operation before the so-called "Australian" officers went to the Spelonken district--a fact which the English press, and a large section of the Australian press, systematically ignored.

When I arrived in Australia, I found that the grossest misrepresentations had been made by those primarily responsible for the manner of the warfare which "staggered humanity," and that they had succeeded in linking the name of Australia with the most tragic and odious incidents connected with a mercenary and inglorious war.

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BTW: the trial transcript went missing.

If one is "defense-oriented" re: courts-martial for homicides during combat (self-defense is still a homocide, albeit justified) - e.g., as in "Defend Our Marines" - Witton's book and (presumably) David Denton's current plea will strike a chord or more.

Regards

Mike

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Originally Posted by jmm99

for those interested in Breaker Morant - both fiction and fact:

Breaker Morant (film)

Court martial of Breaker Morant

Breaker Morant (link drops down to discussion of the "Scapegoats" book by George Witton, the only accused not executed)

Lieut. George Witton, Scapegoats of the Empire: The True Story of Breaker Morant's Bushveldt Carbineers (1907 -A Project Gutenberg of Australia eBook):



BTW: the trial transcript went missing.

If one is "defense-oriented" re: courts-martial for homicides during combat (self-defense is still a homocide, albeit justified) - e.g., as in "Defend Our Marines" - Witton's book and (presumably) David Denton's current plea will strike a chord or more.

Regards

Mike

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Two points.

First the pardon:

Britain rejects pardon for executed solider Breaker Morant

The legal argument for the pardon.

And second, is there a US equivalent of Rule 303?


Note: Of interest to you will be this can-of-worms being opened:

Kenyans get go-ahead for UK 'Mau Mau' claim

The latest "military commissions" (to try "war crimes" committed by detainees) by US field grade officers seem to have been convened under Rule 45-70 or Rule 30-40. Rule 30-06 kicked CA power for military commissions upstairs - and so it remains today.

And, yes, Morant did no justice to a potentially good defense by his smarta$$ remark (Witton pdf p.64):

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"Was your court at the trial of Visser constituted like this?" asked the President, "and did you observe paragraph ---- of ---- section of the King's Regulations?" "Was it like this!" fiercely answered Morant. "No; it was not quite so handsome. As to rules and sections, we had no Red Book, and knew nothing about them. We were out fighting the Boers, not sitting comfortably behind barb-wire entanglements; we got them and shot them under Rule 303."

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Morant actually convened and tried Visser before a summary court martial, which found Visser guilty of war crimes, etc.

"Tony" Waller fared better in his court-martial in the same year - and he did not bother with a summary military commision under Rule 30-40.

Sorry, I don't do Mau-Maus - you'll have to activate Frank Kitson to do justice to that era. :D

Regards

Mike

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Originally Posted by jmm99

And, yes, Morant did no justice to a potentially good defense by his smarta$$ remark (Witton pdf p.64):

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RULE 303 is best explained by this from the Urban Dictionary

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At one point Morant was asked by the court under what rule or right did he kill the men and he answered that he shot them under rule 303 meaning the the Lee Enfield .303 rifle issued at the time. His meaning being that he shot them beacuse he had the means to do so at hand and that was all the authority he needed.

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Sorry, I don't do Mau-Maus - you'll have to activate Frank Kitson to do justice to that era. :D

Regards

Mike

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This Mau Mau business is interesting as the four (with probably many more to follow if the case is successful) are suing the British government for allegedly being tortured by the colonial police/military during the Mau Mau troubles of the 1950s. 50 odd years ago. Given the British colonial past and the number of countries in their empire this could herald the opening of the flood gates. Other countries (France, Portugal, Japan and the US etc etc) could also be vulnerable at some point.

sounds good on a blog - nice soundbite, but one that falls into the lap of those who class the military (particularly field operators) as knuckle-draggers who prefer to operate outside the law.

In the early 1800s, field commanders (US and Brit, since their military law tended to parallel) had power to investigate and execute "war criminals" (usually irregular combatants) without convening even a field "military commision" (US usage) or "summary court martial" (Brit usage). MAJ Weller did just that in the Samar case.

Starting with our Mexican War, field military commissions became more and more the US norm - which continued through our Civil War and Reconstruction (literally 1000s of cases, with a relatively high number of acquitals).

They also caught on in British military law as some form of "special courts". You should find in your South African reports, this case, Tilinko v. Attorney General for Natal (95 Law Times, N.S., 854, 1907), where, the Earl of Halsbury expressed this opinion:

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"If there is war, there is the right to repel force by force but it is found convenient and decorous, from time to time, to authorize what are called 'courts' to administer punishment, and to restrain by acts of repression the violence that is committed in time of war, instead of leaving such punishment and repression to the casual action of persons acting without sufficient consultation, or without sufficient order or regularity in the procedure in which things alleged to have been done are proved."

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MAJ Thomas argued both rights of the field commander (Witton pdf pp.73-74):

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He pursues these Boers, which ends in the capture of Visser, whom he finds wearing clothing the property of the late Captain Hunt. I go so far as saying that under the circumstances Mr. Morant would have been perfectly justified in shooting Visser straight away. The fact of wearing British uniform is altogether against the customs of war, and I know that this man Visser was present when Captain Hunt was killed from the evidence.

At the request apparently, of Mr. Picton, it was decided to give Visser a court-martial--such a court-martial as is frequently held in the field, under the circumstances in which this was held. Informal, no doubt; how can we expect formality in the field, in the immediate vicinity of the enemy, and when Visser himself admitted that the Boers had promised to recapture him?

All this is provided for in the Manual of Military Law. We claim that substantial justice was done, and I submit that there is nothing whatever to satisfy the court that Mr. Morant ordered a wilful or felonious murder. On the contrary, under the Rules of War, I consider that he was quite justified in confirming the sentence. The evidence of Captain Taylor shows that these men were the offshoots of commandoes and mere outlaws, who went about looting from Kaffirs, and, what I say now I wish to apply to all the prisoners. They were dealing in that particular district with a party of irresponsible outlaws, under no recognised control, sending in threats of torture, &c. In July, 1901, trains were wickedly wrecked, and numbers of men wounded. Such men forfeit all rights to be treated as prisoners of war. When irregulars are sent out to deal with an enemy of this kind, marauders and train wreckers, the officers should be allowed a wide discretion in dealing with them. If they err technically, or even make serious mistakes, they must be upheld.

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The military commission has continued in US military law to the present; but discretion to convene them passed before WWI from field commanders to flag officers, then to theatre commanders and higher.

Binyam Mohamed's US torture case died earlier this year, SCOTUS denies Binyam Mohamed review. It is highly unlikely that a civil action of that kind, recent or ancient, will be successful in the US courts.

Regards

Mike

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Originally Posted by jmm99

sounds good on a blog - nice soundbite, but one that falls into the lap of those who class the military (particularly field operators) as knuckle-draggers who prefer to operate outside the law.

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Well this would bring us onto another point and that is the apparent requirement a nation and its military has to have a military which is cerebral and socially well-behaved yet can be unleashed at a moments notice to inflict unspeakable violence on an enemy and immediately thereafter return to the default position as if nothing has happened. That soldiers will think up and joke about matters such as Rule 303 is a minor matter (especially if shooting prisoners out of hand was the norm).

To continue on this line of thought I suggest that the evidence is that there is a trend in modern militaries to select for the default (cerebral and well-behaved) soldiers and when this manifests itself up the officer corps there should be little wonder why armies these days seem to battle with even the smallest wars.

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In the early 1800s, field commanders (US and Brit, since their military law tended to parallel) had power to investigate and execute "war criminals" (usually irregular combatants) without convening even a field "military commision" (US usage) or "summary court martial" (Brit usage). MAJ Weller did just that in the Samar case.

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The Australians felt that their soldiers had been singled out to be prosecuted for something that happened widely at that time. We had Australians who served in Rhodesia and South Africa who visited Morant's grave as a sort of pilgrimage (as they have never forgiven the Brits for that and the squandered lives of their soldiers at Gallipoli).

So as far as Breaker Morant is concerned it was never a case of the law not being allowed to run its course but rather why them when a blind eye was turned to all other such cases.

I remember from school history that for the Boers to be found wearing British army uniforms was a capital offence and Boers were indeed executed for that. So having now soldiered I can understand why the process would be short circuited when a Boer was found to be wearing the uniform of a slain comrade.

Now that was in the period 1899-1902 and given the executions carried out by the allies in WW2 in Europe and the Pacific very few which were prosecuted I am in full agreement with those aggrieved Aussies that the prosecution was selective and quite probably vindictive (all this bearing in mind that Morant was a born Brit who went to Oz aged 19 and 16 years later arrived in South Africa as a volunteer).

All this said I do understand where you are coming from on the legal aspects.

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Binyam Mohamed's US torture case died earlier this year, SCOTUS denies Binyam Mohamed review. It is highly unlikely that a civil action of that kind, recent or ancient, will be successful in the US courts.

Regards

Mike

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Well lets see how the Mau Mau case in the UK pans out.

that ties in more with the separate Grossman-Athens, etc., discussion:

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from JMA
Well this would bring us onto another point and that is the apparent requirement a nation and its military has to have a military which is cerebral and socially well-behaved yet can be unleashed at a moments notice to inflict unspeakable violence on an enemy and immediately thereafter return to the default position as if nothing has happened.

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From a conversation with Cavguy a couple of years ago (in response to my question, which was generated by a comment from Ken White on shifting violence levels[*]):

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from Cavguy

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Originally Posted by jmm99
Whether a soldier doing COIN for a year has less killer instinct than one doing CONV for a year is outside my experience. I'm being observational of possible issues and disconnects - not judgmental.

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I would argue that there is no loss of "killer instinct" from performing COIN missions based off of my personal experiences and observations.

My unit in OIF 1 spent a year in an area of virtually no contact in SE Baghdad. On April 4, 2004, the Sadr uprising began, and overnight formerly peaceful Shia areas became free-fire zones. My Armor BN (and many others) were thrown into instant high intensity urban combat. For an overview of what happened in Sadr City that day, you can read Martha Radditz's account here. The company commander's account of the assault into Sadr City and my BN CDR's account of the following two months in Najaf are in the ARMOR COIN issue. (Sadr City: The Armor Pure Assault in Urban Terrain by Captain John C. Moore & Task Force Iron Dukes Campaign for Najaf by Lieutenant Colonel Pat White)

The men instantly "flipped switches". No retraining on the "killer instinct" was needed. It doesn't take much of a switch to shoot back at those shooting at you.

Same observation over 15 months in the second tour. I have never seen anyone need retraining on "killer instinct" in today's military. The reverse, however, is not true to the same level. Learning to switch it on and off is the challenge when you have to return to "soft".

Tactical proficiency between HIC and COIN missions is a different matter, but I haven't sensed a psychological one.

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[*] Ken's original comment related more to training for low intensity vs high intensity - so, any "disconnect" between what Niel said above and what Ken said, may be more apparent than real:

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from Ken
The downshift to COIN will come with excess violence in the COIN role but it can be done quickly with good well trained leadership who know the basics so that excess violence need not last nearly as long as it did in the downshift in Iraq in some units -- the good ones adapted fairly rapidly. I'd also point out we are and have long been remiss in the basics, so the leadership gets an Attaboy for doing good job qith less than ideal material.

Upshifting, on the other hand requires developing the habit of violence which takes a bit -- it can be done, just takes longer. Thus, to me adapting (nominally at the leader and commander levels) is only part of the problem. Training and inculcating the killer instinct in all the troops is a necessary change and it is more than an adaptation, it is a philosophical and practical change of significant impact and importance. Required also almost always will be a tedious refresher in critical combat skill not require or used in COIN efforts.

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and Ken's response to Cavguy's comment:

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People who need people...

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Originally Posted by Cavguy
...The reverse, however, is not true to the same level. Learning to switch it on and off is the challenge when you have to return to "soft".

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My observation is that varies with people. The "Kill 'em all and let god sort 'em out" types will use any excuse to pop a cap... :D

There is a gear down pause and hiccup, no question but firm leadership can usually handle it. However, my observation has also been -- and folks who are out there now confirm it's still a big problem -- that the small arms fire discipline in the US Army (and the Marines) is, uh, less than stellar. That contributes to shifting problems both ways. It's because we don't train 'em well in IET.

Though that may be changing, the use of Outcome Based Training in Basic and at OSUT is producing better trained, more capable and disciplined shooters so we may get rid of a problem that's been around in US forces since WW II.

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Leaving aside psychopaths, sociopaths and the "kill 'em all and let God sort 'em out" group, what is the nature of the "switch" that allows folks (normally of a non-virulent disposition) to engage in a high level of violence, but under both constraints and restraints so that their violence is defined within limits and can be switched off ?

These "normal" folks have to be able to operate (at the least) at as high a level of violence as the psychopaths, sociopaths and the "kill 'em all and let God sort 'em out" group - since they have to expect the latter will make up the OPFOR in at least some situations.

Regards

Mike

I have been holding back on this one wanting to see where it goes. I think we need to look at Breaker Morant and others through a different lens or filter. Morant and Waller are both classic cases of Strategic Legalism (“the use of laws or legal arguments to further larger policy objectives regardless of facts or laws” - Maguire, Peter, 2002. LAW AND WAR: AN AMERICAN STORY. New York: Columbia University Press). Maguire uses the Waller case as one of the first historical examples of Strategic Legalism. As examples of Strategic Legalism, discussions about Morant and Waller being right or wrong are mute as is the discussion on Rule 303s or throwing killer switches. Both Morant and Waller were following their orders and their current Laws of War. In both cases, the strategic leadership needed scapegoats to fulfill “larger policy objectives” and in the Morant Case they were successful (for at least 109 years) and unsuccessful in the Waller case. Old Major Waller defended himself and knew his way around a Court Martial. He was able to capitalize on a huge mistake made by his prosecutor that enabled him to get the Court Martial to pronounce him innocent.
The issue then becomes how do you recognize Strategic Legalism as opposed to a war crime. So Jim Frederick’s Book - BLACK HEARTS (four soldiers rape a 14 year old Iraqi girl then murder her and her family) clearly describes a war crime. The Haditha Incident, at least in my opinion, is clearly Strategic Legalism. In both cases the military legal system resolves the issue but the basic cause in both cases is bad leadership. In the Black Hearts case the bad leadership is at the tactical level and in Haditha the bad leadership is at the strategic level.

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Originally Posted by Polarbear1605

I have been holding back on this one wanting to see where it goes. I think we need to look at Breaker Morant and others through a different lens or filter. Morant and Waller are both classic cases of Strategic Legalism (“the use of laws or legal arguments to further larger policy objectives regardless of facts or laws” - Maguire, Peter, 2002. LAW AND WAR: AN AMERICAN STORY. New York: Columbia University Press). Maguire uses the Waller case as one of the first historical examples of Strategic Legalism. As examples of Strategic Legalism, discussions about Morant and Waller being right or wrong are mute as is the discussion on Rule 303s or throwing killer switches. Both Morant and Waller were following their orders and their current Laws of War. In both cases, the strategic leadership needed scapegoats to fulfill “larger policy objectives” and in the Morant Case they were successful (for at least 109 years) and unsuccessful in the Waller case. Old Major Waller defended himself and knew his way around a Court Martial. He was able to capitalize on a huge mistake made by his prosecutor that enabled him to get the Court Martial to pronounce him innocent.
The issue then becomes how do you recognize Strategic Legalism as opposed to a war crime. So Jim Frederick’s Book - BLACK HEARTS (four soldiers rape a 14 year old Iraqi girl then murder her and her family) clearly describes a war crime. The Haditha Incident, at least in my opinion, is clearly Strategic Legalism. In both cases the military legal system resolves the issue but the basic cause in both cases is bad leadership. In the Black Hearts case the bad leadership is at the tactical level and in Haditha the bad leadership is at the strategic level.

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As Mike says: When I quit learning, I'll be dead.

So this shocking and disgraceful betrayal of one (or some) of your own soldiers is called Strategic Legalism. That it is defined probably means that it is more prevalent than I had previously supposed. Very very sad.

In the UK in Afghanistan thread Red Rat posted as follows in post #736:

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As in at least one case in Iraq a prosecution was sought by the MOD in order to clarify legal issues and ensure that the Army was seen to be not above the law and whiter then white.

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I'm afraid I am unable to approach such matters from a purely academic arms length perspective. They screw up soldiers lives (kill them in the case of Breaker Morant) their careers and their families and create havoc in the applicable units with no just cause. There needs to be consequences.

I love it when you leave the ice floe and venture forth into the domain of the .69 cal fusil. ;)

No doubt there is something that can be called "strategic legalism" - which Peter McGuire defines as "using legal methods to further policy, irrespective of fact or law." You get a taste of what he means from his article "Putting the Blame Where It Really Lies" (2006), positing that the simularity between My Lai and Haditha "will be" the "administration's use of strategic legalism."

In BearSpeak, "The issue then becomes how do you recognize Strategic Legalism as opposed to a war crime." In MikeySpeak, an instance of Strategic Legalism and an instance of a War Crime are two very different things.

Strategic Legalism is a process and is part of the rarely-discussed (in formal publications) realm of Legal Strategy (discussed below). Since a War Crime (or not) is a matter of substance, you can have Strategic Legalism present in a case where there is substantive proof of a War Crime (or present where that proof does not exist). In short, Strategic Legalism can convict the innocent and also can free the guilty; as well as stumbling into results that convict the guilty and free the innocent.

Strategic Legalism, as used by McGuire, can very easily slide into something else we know - and that is Undue Command Influence. That is a definite process "no, no!!"; but neither the existence nor non-existence of Strategic Legalism (or of Undue Command Influence) proves or disproves the commission of a War Crime. Strategic Legalism (and Undue Command Influence) can, of course, be outcome determinative - as I believe occured in the Morant case.

Where I differ with McGuire re: defining "strategic legalism" is in the end clause of his definition: "using legal methods to further policy, irrespective of fact or law." Any legal method used has to use "fact" and "law" - ain't no other way that legal decisions can be framed. Of course, what McGuire is really saying is that Strategic Legalism operates irrespective of the "true facts" and "true law" (OK, I'm not Karmak, but it's a logical inference). The idea is that somewhere out there are the "true facts" (wrapped in a neat, silver-bowed package) and the "true law" (wrapped in an even neater gold-bowed package). All the judge and jury have to do is see those "true packages", put them together and - voila ! - an instant correct decision.

Realistically, the legal process is not so neat - it has more than its share of fog, friction, etc. So, here is a reading assignment (only 81 pp.), "A Theory of Legal Strategy" (2000) (download from here by hitting the One-Click Download button):

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Abstract:

By the conventional view, case outcomes are largely the product of courts' application of law to facts. Even when courts do not generate outcomes in this manner, prevailing legal theory casts them as the arbiters of those outcomes. In a competing strategic view, lawyers and parties construct legal outcomes in what amounts to a contest of skill. Though the latter view better explains the process, no theory has yet been propounded as to how lawyers can replace judges as arbiters. This article propounds such a theory.

It classifies legal strategies into three types: those that require willing acceptance by judges, those that constrain the actions of judges, and those that entirely deprive judges of control.

Strategies that depend upon the persuasion of judges are explained through a conception of law in which cases and statutes are almost wholly indeterminate and strategists infuse meaning into these empty rules in the process of argumentation. That meaning derives from social norms, patterns of outcomes, local practices and understandings, informal rules of factual inference, systems imperatives, community expectations, and so-called public policies.

Constraint strategies operate through case selection, record making, legal planning, or media pressure.

Strategists deprive judges of control by forum shopping, by preventing cases from reaching decision, or by causing them to be decided on issues other than the merits.

The theory presented explains how superior lawyering can determine outcomes, why local legal cultures exist, how resources confer advantage in litigation, and one of the means by which law evolves.

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One of the important truths in this rare article on real legal strategy (sort of a CvC approach) is that lawyers and judges (whose universal common denominator is that both are lawyers) may have a common local culture that is very outcome-determinative. That is even more so in the case of military lawyers and military judges (the CDs are that both are lawyers, but they are also military officers - and if Marines a third CD).

The bottom line is that if you have a receptive judge and jury, you can end up with a result that is exceptional in terms of conventional factual-legal analysis - as in Anatomy of a Murder (a too-little discussed real case; and a more recent example).

One important "realistic" distinction between the Waller and Morant cases is that MAJ Waller (besides knowing his way around the block) had some flag officers pulling for him. The highest grade on Morant's side seems to have been MAJ Thomas - in short, one can infer that the "fix was on".

Regards

Mike

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I love it when you leave the ice floe and venture forth into the domain of the .69 cal fusil.

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Lol…Yep! I knew I was being lured!...but you know a bear, when he gets a scent, he can’t help himself whether bait or a meal.

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In MikeySpeak, an instance of Strategic Legalism and an instance of a War Crime are two very different things

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Yep! I cannot agree more. And I believe we are onto the same scent here. Of course, the question I would then ask; If they are so different why don’t general officers recognize the difference? No need to answer this question, my opinion on that subject is well established. www.defendourmarines.com ;)

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In short, Strategic Legalism can convict the innocent and also can free the guilty; as well as stumbling into results that convict the guilty and free the innocent.

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Amen Brother! And many times it is at the court martial that Strategic Legalism falls apart. Again, Haditha is a good example, eight Marines were recommended for court martial. The first five cases were dropped, actually the legal term is dismissed (I think that is the prosecutor lawyer speak for losing). The sixth case, Lt Greysen, was not guilty on all charges. The battalion commander never went to court martial...instead the generals went to administrative route with a Board of Inquiry. The last case SSgt Wuterich has yet to get to a court martial…yep, the sixth year anniversary for the Haditha incident is this November. The issue there is how do you prove murder in a fire fight.

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Strategic Legalism, as used by McGuire, can very easily slide into something else we know - and that is Undue Command Influence. That is a definite process "no, no!!"; but neither the existence nor non-existence of Strategic Legalism (or of Undue Command Influence) proves or disproves the commission of a War Crime. Strategic Legalism (and Undue Command Influence) can, of course, be outcome determinative - as I believe occured in the Morant case.

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I think the other place where a Strategic Legalism case falls apart is in the appeal process. The balance (commander vs individual) shifts in the appeal process from the commander to the individual. Currently, in many of the cases from Iraq and Afghanistan, this has not completely played out. The 1stSgt Hatley (Death on the Canal) case has not gotten to the Court of Appeals for the Armed Forces. 1st Hatley and his NCOs were convicted of executing 4 Iraqis’ but there was never any bodies found or presented as evidence. We need to keep an eye on the appeals.

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Where I differ with McGuire re: defining "strategic legalism" is in the end clause of his definition: "using legal methods to further policy, irrespective of fact or law." Any legal method used has to use "fact" and "law" - ain't no other way that legal decisions can be framed. Of course, what McGuire is really saying is that Strategic Legalism operates irrespective of the "true facts" and "true law" (OK, I'm not Karmak, but it's a logical inference). The idea is that somewhere out there are the "true facts" (wrapped in a neat, silver-bowed package) and the "true law" (wrapped in an even neater gold-bowed package).

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Agree, but remember McGuire is coming from what happens after the conviction. McGuire’s grandfather was a Nuremburg Judge. McGuire demonstrates we (the Allies) went to a lot of work to ensure the trials were fair, yet after conviction, we let many war criminals go free for Strategic Legalism purposes. Over 70 German soldiers were convicted for the Malmedy Massacre (88 American soldiers) and not only individual German soldiers but also the chain of command from army commander to LT including the famous SS Battle Group Leader, Col Joachim Peiper were convicted with 43 death sentences and 22 life convictions. Eight other German soldiers were sentenced to shorter prison sentences. Peiper served the longest sentence and was the last to be released in December 1956 despite his death sentence.

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Realistically, the legal process is not so neat - it has more than its share of fog, friction, etc. So, here is a reading assignment (only 81 pp.), "A Theory of Legal Strategy" (2000) (download from here by hitting the One-Click Download button):…One of the important truths in this rare article on real legal strategy (sort of a CvC approach) is that lawyers and judges (whose universal common denominator is that both are lawyers) may have a common local culture that is very outcome-determinative. That is even more so in the case of military lawyers and military judges…

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You always provide great references to read. I like that! Thanks! I think a good example of this is the Son Thang courts martial (Viet Nam 1970). Not well know but probably because it is not an example of strategic legalism. Members of a five man “killer” team were accused of killing 20+ civilians from the village of Son Thang near Da Nang. Gary Solis’s book Son Thang; An American War Crime basically presents the persecutor’s side and Honor Restored by Denzil Garrison presents the defenses side, at least from the team leader court martial perspective. One issue this presents is that the accused are part of a unit…fire team, squad, company, etc., but they are tried individually and that can result in very different outcomes. Of the five man Marine team; one was given immunity (you have to have a witness); in the first court martial (Schwartz) resulted in life at hard labor; the second (Green)received five years at hard labor; as the third member (Boyd) of the killer team, his defense was that he was a pacifist, and it work he was found innocent. Herrod, the patrol leader, was the last tried and found not guilty. Different judges and different lawyers equal different results creating a difficult position for the Convening Authority (Commanding General.) These two books are worth the read just from the contrasting points of view. While I am recommending books; The Ordeal of Samar by Joseph Schott is Major Tony Waller’s story. The book contains a day by day of his court martial. A great read, but long out of print; probably will have to go the inter-library loan route.

Seriously - great BearSpeak. :)

And - a tender seal is virtually airborne to you as a reward ! :D

We do tend to follow the same scent trails - which is remarkable for me because I have a lousy sense of smell. Someone could be smoking pot right next to me and I couldn't smell it - true story.

I suppose I have a weakness (or strength) for seeing Rule 916 defenses. Briefly for them what don't know Rule 916(c) intimately: according to the Manual for Courts-Martial, "justification" is denominated a defense for a "death, injury, or other act caused or done in the proper performance of a legal duty." RCM 916(c).

I see clear 916(c) defenses in Haditha ("Defend Our Marines") and in the Roger Hill case ("Defend Our Troops"). This character Bob Weimann seems to be on the same page in both Haditha and Hill. ;)

Hatley is a harder row to hoe WRT a Justification Defense. Under the circumstances, voluntary manslaughter (rather than premeditated murder) might have been a more "just" verdict. While this piece of research is instructive, it is not determinative. You don't need the body to prove an unlawful criminal homicide. You need a "corpus delicti" - evidence of an unlawful homicide.

I will await the eventual CAAF opinion (2nd appellate level); but the ACCA decision (Hatley, 30 Jun 2011; 1st appellate level) is not helpful to Hatley. In fact, the three points of appeal go to collateral technicalities - and not to the substance of the offence charged (opinion, p.1):

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Appellant asserts three assignments of error. First, he alleges he was denied a speedy trial. Second, he alleges he was denied his right to confrontation when precluded from cross-examining a witness on the witness’ potential mandatory life sentence. Finally, he alleges he did not receive appropriate relief for unlawful pretrial punishment. These assignments of error merit discussion but not relief.

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To the extent that the appellate court reached the underlying merits of the homicide charge, we have (opinion, p.12):

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In fact, there was no evidence to suggest that appellant did not instigate the conspiracy or carry out its intent by orchestrating and participating in the premeditated killing of the detainees.

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and, the "facts" as found by the appellate court (opinion, pp.1-2):

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The Incident

In March of 2007 appellant was the leader of a conspiracy involving the premeditated murder of four military detainees in Baghdad, Iraq. Appellant was the First Sergeant (the most senior non-commissioned officer (NCO)) of his infantry company. The incident began when appellant accompanied a platoon of a dozen or more of his subordinate soldiers in a multi-vehicle patrol. The patrol operated in a sector where appellant’s unit had been repeatedly attacked. These attacks resulted in numerous casualties, including the deaths of two of the unit’s noncommissioned officers, SGT S and SGT G, within a few weeks of the incident.

During this time, the patrol came under fire, which was eventually traced to several men who fled to a nearby building. The patrol searched the building and found and detained four adult males. The search also uncovered a cache of arms and munitions, including a sniper rifle and other weapons as well as duffel bags of linked ammunition (a type used in automatic weapons). The four men, along with the weapons cache, were photographed. The detainees were then handcuffed and blindfolded and placed in the back of a Bradley fighting vehicle to be taken to a detention operations center (DOC) for processing. Appellant called together several of the NCOs, complaining the DOC was likely to release the detainees and suggested they should “take care of” them. Appellant told the NCOs to check with their soldiers to see if anyone “had a problem” with that. He became exasperated when he found out that one of the NCOs had already radioed a report to the command out post (COP) that the patrol had taken detainees.

The patrol first went back to the COP, where appellant briefly went inside. He then called together the NCOs from the patrol and advised that headquarters “was not tracking” the detainees. Appellant then directed the patrol to remount and return to the sector. The patrol convoy went to a canal area, where appellant again gathered his NCOs and asked who was willing to help him “take care” of the detainees. Two of the NCOs, the platoon sergeant, Sergeant First Class (SFC) Mayo and Sergeant (SGT) Leahey agreed. Several other NCOs did not agree and returned to their vehicles. Appellant then had the four handcuffed and blindfolded detainees removed from the Bradley vehicle and lined up at the edge of the canal. Appellant, SFC Mayo and SGT Leahy then shot each of the detainees point blank in the back of the head, removed their handcuffs, and pushed their lifeless bodies into the water. The convoy thereafter returned to the COP. There appellant gathered all of the soldiers from the patrol and told them, “What was done was done for SGT [S] and SGT [G] . . . and for all the motherf**kers who think they can shoot us and get away with it. If anyone asks any questions, direct them to me.”

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Not having the trial transcript, I don't know what else was or was not presented at trial by Hadley's defense; or what was or was not conceded by Hadley's defense. So, I won't second-guess either strategy or tactics.

I have commented at SWC about the Hadley case, Not really the law, but politics ... - and attributed the ultimate fault to a bad USG policy choice [emphasis added]:

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I'd amend Bill's quote as follows:

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[Original quote in Bill Moore, post#442]
We're putting our Soldiers and Marines in a situation where politics, not the law, overrides common sense, which is as wrong as wrong can get. Our civilian leadership should address this as a crisis that needs to be resolved with a sense of urgency.

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since the law (like the military) is an instrument of policy.

Based on the recent CNN documentary (and what I've read from CLAMO sudies), the conscious political choice was made by the USG to turn over Iraqi detainees to the Iraqi criminal justice system for prosecution under law enforcement rules. Those Iraqi rules placed a high bar re: prosecutions pursuant to US detentions (even higher today under the SOFA). As understood by the NCOs (and the PFC who was interviewed) the Iraqi system was a "revolving door". I dunno whether that was true or not, but that is what they believed.

The other political option would have been to retain jurisdiction over US detainees and process them accordingly - based on whether or not they were security risks. I'm not talking about "war crimes" prosecutions for them; and I am not talking reasonable doubt, but rather a preponderence of the evidence - as in the DC habeas cases. Under that standard, as I applied the evidence in the case as I watched the documentary, the four detainees were "bad guys" and ought to have been detained for the duration (until our withdrawal from Iraq).

So, the law provided two paths that could have been followed: the Iraqi path or the US path. The USG (whether fully aware of secondary and tertiary effects is another question) decided to go with the Iraqi path. So, four non-innocents are dead and three NCOs are spending time at Leavenworth.

I would say that our civilian leadership should address itself as a crisis that needs to be resolved with a sense of urgency. Note that the decision to follow the Iraqi path was made by the Bush II administration, although from all appearances the Obama administration would probably reach the same decision.

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So, Hatley et al also involve a type of "strategic legalism", where policy is in the driver's seat using law as its instrument.

Regards

Mike