Honor, murder and "the law".

[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]

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.

[Beelzebubalicious]

Man who killed Afghan seeks sentencing leniency
He says he was reacting to horrific attack on friend
Wednesday, May 06, 2009
By Bruce Alpert
Washington bureau

[jmm99]

Link to article 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, Wiki1 and Wiki2, 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:

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.