AWOL Military Justice

[120mm]

Military law is really nothing more than the application of civilian civil and criminal law to the military.

So, why can't I use hollowpoint ammunition to shoot "criminal combatants? The police can use them on criminals...

Most things, like following the constitution, remain the same, but allowances are made for the uniqueness of military requirements (e.g. convening authorities in lieu of judges because we are often in austere locations, military specific crimes that are tied to good order and discipline, etc.). Military law will not handicap this nation any more than the constitution would (of course if you believe the constitution is an impediment rather than a demonstration of our commitment to law, then I guess the debate is over).

How does an illegal combatant, violating the various international agreements in Iraq or Afghanistan qualify for US constitutional protection?

Terrorists are not doing anything new. They are simply criminals that have an ideological basis for their actions rather than personnal enrichment. Thus, we should be able to try them as we would any other criminals (this would also remove some of the legitimacy they've gained by having "war" decalred against them and having special courts set up for them, but that is another issue).

This is good IO, imo. I agree with this basic supposition, EXCEPT when you practice "catch and release" against active fighters.

Bestowing constitutional rights shouldn't alarm you or anyone else. As I've stated above, this system has worked for us for a long time and will continue to do so.

It can also be argued that "the system" is becoming more and more disfunctional, benefitting only attorneys and the guilty.

Besides we are not bestowing constitutional rights on terrorists (we'll put aside the whole innocent until proven guilty thing for now) for the terrorist's sake, but for our own. To illustrate Let me refer to a scene in a movie called "A Man for All Seasons" as it makes my point quite well:



copied from: http://blogs.denverpost.com/lewis/20...r-all-seasons/

Is it really worth destroying everything this country truly stands for to attain temporary security? Would you take down all the laws in an effort to get terrorism? If so, what are you going to do when they come for you? Could we not craft policies that take away rights to gun ownership, free speech, free association, etc. in an effort to stop terrorists? But that's protected by the constitution you say? Well, we've wiped that clean haven't we? What laws would you keep, which would you overlook, who would decide? Do you see the slippery slope?

Oddly enough, we've done those very things for every single war that we've WON. Yet, according to you, the system is still functioning. Stupid Abraham Lincoln and FDR. What did they think they were doing, suspending parts of the Constitution, just to win wars and stuff....

Finally, a brief comment regarding your comment about military lawyers bypassing military authority. If we follow the constitution and give these terrorists legal counsel, then they are entitled to competent legal counsel that will vigorously defend their rights and their case, just as any person would be entitled to (and I'm sure you'd want if you were standing trial). Rather than simply use existing judicial systems like the federal courts or even the military justice system, an entire new system was created to try these guys. Their attorney's have a right to challenge the legality of that system. It has issues (e.g. using evidence obtained form torture, not allowing the defense to see all evidence against them) that deserve judicial scrutiny.

The tribunal system isn't "new". I'd suggest that the "new" parts of the "system" were emplaced there by the weak-kneed political hacks that can't stand the sight of a good execution.

In short, I guess something needs to be done about me because I certainly believe that if we are going to try suspected terrorists in a court of law then that court should comport with constitutional requirements by being fair, impartial, and free from political influence. As the news article above indicates, you may get your wish and we'll all be worse off as a result. This should scare you.

Well, as long as the fair, impartial and free from political influence trial allows terrorists to continue to communicate terrorist plans to each other through their (UCMJ immune) attorneys, and we can violate OPSEC and PERSEC in the process, great!

[LawVol]

Hollow point ammunition is prohibited for use in armed conflict by customary international law (i.e. not written but customary practice by nations) and through application of the Hague Convention. Although the US is not a party to this Convention, it has been US practice to accede to this prohibition. I don't make the runs man, I just tell you what they are (I'm also not offering an opinion as to whether I agree with this rule). You could always write your Congressman.

Illegal combatants should qualify for US constitutional protection if we are going to try them in a US judicial system (whether tribunal or otherwise) IMO. There are arguments on both sides of this and despite the tendency to blame the lawyers, it is lawyers that are making those arguments that you mention. They're just not doing a good job of it, hence the idea to tie promotions to legal opinions. It's reminiscent of FDR's court-packing sceme (since you brouht up his name) that caused much uproar. I guess if you don't like your judges and lawyers, you should be able to get new ones (this would be great in football for referees). Remember, legal advice is just that; a commander is free to ignore it (as the saying goes, I'm not the one going to jail).

As for the system benefitting lawyers: Yeah, I'm just raking in the dough. Have you seen my paycheck? Seriously, there are some getting disgustingly rich, but most of those are over on the civil side; most criminal lawyers don't get filthy rich.

I'm not sure I understand the "UCMJ immune" comment. I am subject to the UCMJ and so are all military attorneys. Civilian attorneys would be subject to criminal law and, as are military attorneys, ethical rules for practicing law.

The tribunal at Gitmo is new; it was created after 9/11. We could have simply used the UCMJ. This would have made sense because the court-martial system has procedures for classified information and has attorneys qualified to handle the stuff (one of the justifications for the tribunals used by the adminstration). I certainly don;t claim to have all the answers, but when I see even a perception that we're ignoring the constitution or creating a kangaroo court, I can't simply close my eyes and acquiesce. Is that really what we want our JAGs to do?