Once again we see the highly-politicalized Department of Justice on the wrong side of the argument: doing what is expedient, politically correct and whose actions seem to be aimed at producing a politically acceptable result.
And while all offshore civilian and military injustice and wrongdoing must be accounted for and punished, allowing past military members to be tried in an emotional, politically-charged and attorney-manipulated civilian courtroom is wrong.
Ceding justice to the enemy …
In my opinion, it should be the position of the United States Government that all service members, past and present, should be tried under the Uniform Code of Military Justice (UCMJ) and answerable to a jury of their military peers with relevant combat experience.
To allow any former service member to be tried in a civilian court, using civilian attorneys and a civilian jury is to cede common-sense and justice to the enemy.
MEJA: Military Extraterritorial Jurisdiction Act …
The Military Extraterritorial Jurisdiction Act started out with the best of intentions. The law was written primarily to insure that those civilian contractors and others performing activities on behalf of the United States Government could be held accountable for their acts on foreign soil even though they were not members of the military and subject to military law under the Uniform Code of Military Justice.
Perverting the intent …
To allow this law to be used to prosecute military personnel before a civilian court in the United States is a perversion of justice. Not only are civilians without any relevant military or combat experience unqualified to sit in judgement of the accused, they are more than likely to render an adverse verdict based on nothing more than their feelings and political leanings. In a deeply ideologically-divided country, that means almost fifty percent of the potential jury pool may believe that this particular war may be unjustified and immoral and transfer their feelings onto the defendant, to the detriment of both the defendant and the concept of justice.
One need only look so far as the juries which can be found in California Courtrooms to know that irrational verdicts, even in the face of overwhelming evidence or attorney-manipulated juries, have been rendered.
Wrong, wrong, wrong!
If there are to be trials of past service members, let them be carried out on military bases, under the auspices of the UCMJ, where the cost of the prosecution and the defense is born by the United States Government and the use of civilian attorneys as co-counsel is permissible.
We are asking our service members to potentially sacrifice their lives in order to preserve our freedom and liberty. It requires split-second decisions which may not always be right or may result in disastrous consequences. But to hold them accountable in a civilian court of law to satisfy some political purpose is wrong.
The first case to be tried …
According to the Associated Press …
“A former Marine sergeant facing the first federal civilian prosecution of a military member accused of a war crime says there is much more at stake than his claim of innocence on charges that he killed unarmed detainees in Fallujah, Iraq.”
“[Marine Sergeant Jose Luis] Nazario, of Riverside, is charged with one count of voluntary manslaughter on suspicion of killing or causing others to kill four unarmed detainees in November 2004 in Fallujah, during some of the fiercest fighting of the war. He also faces one count of assault with a deadly weapon and one count of discharging a firearm during a crime of violence. If convicted of all charges, he could face more than 10 years in prison.”
His accuser? Co-conspirator?
"The case came to light in 2006, when Nazario's former squadmate, Sgt. Ryan Weemer, volunteered details to a U.S. Secret Service job interviewer during a lie-detector screening that included a question about the most serious crime he ever committed.”
Justice for some?
We are not claiming that those who commit crimes should go unpunished, only that the matter should be adjudicated in a court of competent jurisdiction; in this case, a military court.
“Weemer was ordered this month to stand trial in military court on charges of unpremeditated murder and dereliction of duty in the killing of an unarmed detainee in Fallujah. He has pleaded not guilty.”
Can there be a fair trial?
We must question whether or not any crime may be fairly and justly prosecuted based on self-serving hearsay evidence that may lack corroboration with forensic evidence.
How exactly does one handle a circumstantial case when the testimony may appear to be suspect and there is no other defense against the government’s accusations?
While we believe that the court is likely to be fair and impartial, how does one prevent the government from bringing actions that are politically expedient only for the purposes of public relations?
In the light of Waco, Ruby Ridge and other egregious government actions, perhaps this is not an insignificant question which can be brushed off by merely mouthing the words “justice” and “due process.” And, especially in light of the government’s use of allegedly coerced testimony from cooperating or confidential informants who have received quid pro quo favoritism for their testimony.
Is this how justice works?
“After leaving the military, Nazario worked as an officer with the Riverside Police Department and was close to completing his one-year probation. He said he knew nothing of the investigation until he was arrested Aug. 7, 2007, after being called into the watch commander's office to sign a performance review.”
“He said he was leaning forward to sign when he was grabbed from behind by his fellow officers, told he had been charged with a war crime and was turned over to Navy investigators waiting in a nearby room.”
Considering that he is free while awaiting trial, exactly what justified this behavior. Because he was armed? It seems that he could have been asked to simply surrender his badge and weapon while awaiting trial.
“Because he had not completed probation, the police department fired him. Since then, he said, has been unable to find work.”
Considering the number of police officers who have been suspended with pay while awaiting the outcome of trials, is it fair to fire a decent officer who was just short of completing probation. Even an unpaid suspension would have been a more decent action.
Guilty until proven innocent?
"' ‘You're supposed to be innocent until proven guilty,’ he said. ‘I've put in applications everywhere for everything. But nobody wants to hire you if you have been indicted.’"
“Without income, Nazario said, he has been forced to move in with his parents in New York. He and his wife resorted to selling some of their household goods, such as electronics equipment, to a pawn shop. His wife, once a stay-at-home mother to their 2-year-old son, has gone to work as a customer service receptionist, he said. She will be unable to attend his trial.”
“Another Marine, Sgt. Jermaine Nelson, 26, of New York is slated to be court-martialed
in December on charges of unpremeditated murder and dereliction of duty for his role in the deaths. Although he has not entered a plea in military court, Nelson's attorney has said his client is innocent.”
A dead spot in the law?
“Nelson and Weemer were jailed in June for contempt of court for refusing to testify against Nazario before a federal grand jury believed to be investigating the case. Both were released July 3 and returned to Camp Pendleton.”
We all know about our Fifth Amendment rights against self-incrimination, but what exactly the law in compelling others awaiting trial in a military venue to be forced to testify in civilian court proceedings against another service member? It seems that there must be some guidelines in cases where the government is on both sides of the case and has a vested interest in an adverse outcome for the service member.
Unintended Consequences …
If this prosecution results in a conviction or even if it doesn’t, what might be the effects on military members serving on active duty? More tolerance and leniency toward the enemy in the time of combat; a policy which is sheer lunacy in the face of armed aggression? Conferring the rights of citizenship on enemy combatants … which is now being fought at the Supreme Court level in connection with those now held at Guantanamo Bay in Cuba?
Lest people forget: our military, used mostly when diplomacy fails, is tasked with killing people and breaking things. What may be an anathema to some civilians is the sworn duty of service members. Mistakes in tactics and judgment will occur. But should every case be tried before an uncomprehending civilian court where jury members will be asked to second guess in-field decisions made under almost impossible conditions? With juries whose relevant experience consists of watching war movies and whose judgement is tainted after being inculcated “night after night” with far-left liberal claptrap which often appears to be enemy-friendly.
Will this result in the split-second thought of the possibility of a civilian trial years later that gets a soldier killed? While it is next to impossible to predict the unintended consequences of this civilian court action, perhaps we should simply err on the side of our troops and further amend this law to exclude former military service members?
What should be done?
If the United States was serious about pursuing justice in the case of former military members, it would be a simple matter to petition the President of the United States to restore the civilian to active duty and hold the accused on a military base where they could prepare their case and await justice at the hands of a military court. The accused family would also be allowed housing and subsistence allotments to insure that the innocent family members did not suffer undue hardship during the process. Assistance in transitioning back to civilian life after the verdict should also be provided. Should the verdict affirm the actions of the accused and acquit them of all charges, the accused could re-enter civilian life with a job that was being held under the provisions that secure jobs for those forced into military service. And while laws are being created, perhaps a penalty against the government for any egregious violations of military justice and behavior in the prosecution of a UCMJ case involving a former civilian.
A question of jurisdiction …
Do the individual states have an obligation or duty to prosecute what amounts to war crimes committed by those in the military under the Military Extraterritorial Jurisdiction Act? Or need the action be brought at the federal level? Both unpalatable under the concept of a military trial!
Outsourcing the war …
There is no doubt that the military has outsourced much of the non-action support of military operations to civilian contractors. And ramped up the outsourcing to include for the armed maintenance of security and escort of people and vehicles. Does the military have an obligation to treat these contractors any differently than it does soldiers under its direct command? Should the military indemnify and hold harmless all civilian contractors who are forced to kill enemy combatants or accidentally engage foreign nationals in the course of their duties? Why not bring these contractors to the same tribunal as military service members, to be judged under the same UCMJ rules rather than open the venue to civilian courts. Allowing states to pursue “war crimes” seems to be counterproductive and a big win for the enemy who has proven adept in manipulating public opinion through a complicit media that will do almost anything to disparage the current Administration and/or war effort to support a far-left political ideology. Which raises further questions. Should organizations such as Human Rights Watch and Amnesty International who pursue a political agenda be denied participation in any court actions?
Bottom line …
It seems we need to take a few actions to resolve the issues of trying civilian contractors and service members who are no longer subject to military justice.
First, we need to overcome the constitutional provisions which seem to prevent the trial of civilians by military courts in that it violates their right to a fair trial including trial by jury.
Second, we need to redefine the duties and obligations of civilian contractors working on behalf of the military in designated combat and non-combat zones. Reliance on the use of the word “war” is problematical since Congress appears to be reluctant to declare war on any aggressor nation and terrorists, by definition, may not be considered the regular troops of a hostile country.
Third, the government should never transfer American citizens engaged in combat or support activities to any foreign sovereign nation for trial in their courts.
And fourth, we should define our words carefully as there are people who consider a slap in the face to be torture.
What can YOU do?
Request your elected officials to repeal any existing regulations to the contrary and bring civilian contractors contractually under the provisions of the UCMJ when their actions occur abroad and in combat zones.
Provide for the re-activation of accused former military service members and hold the trial under the auspices of the UCMJ. Provide all military courtesies of rank to the accused while awaiting trial including dependent medical care and support.
Remember, that it is impossible for civilian jurors to feel the rush of adrenaline that occurs when your life is being threaten in a highly chaotic situation and that apparently bad decisions made in the field may have seemed perfectly rational and taken as the only option available.
We either give our military the benefit of the doubt or quit asking them to sacrifice their lives for the common good of the American people.
We need to elect candidates and re-elect officials who believe in our sovereign interests and are prepared to defend our country against all enemies, both foreign and domestic; especially those who have, in the past, not provided aid, comfort and talking points to our enemies. Any candidate or elected official who is not prepared to stand up for our service members is not fit, by definition, to serve as the commander-in-chief.
Quote of the Day: “The whole history of the world is summed up in the fact that, when nations are strong, they are not always just, and when they wish to be just, they are no longer strong.” -- Winston Churchill
A reminder from OneCitizenSpeaking.com: a large improvement can result from a small change…
The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane. -- Marcus Aurelius
CNSNews.com - Former Marine Faces Civilian Trial for Action in Combat in Fallujah
Military Extraterritorial Jurisdiction Act|Department of Justice
Military Extraterritorial Jurisdiction
Legislative History - H.R. Rep. No. 106-778
32 C.F.R. § 153
DoD Instruction 5525.11 (March 3, 2005)
DoD Memo regarding the Management of Contractors (September 25, 2007)
DoD Memo regarding UCMJ Jurisdiction over DoD Civilian Employees and Other Persons (March 10, 2008)