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

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

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.
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.
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.
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.
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).
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.
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…
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.