Right now, military “prosecutions only happen when a commander decides to have them,” writes Defense Tech pal Eric Umansky in today’s Slate. “If an officer believes somebody under his command might have done wrong, then the commander can go after him and bring charges. Or not. It’s all up to his discretion.“
In light of the Haditha, Abu Ghraib, and other investigations, Umansky argues, “What we need is an independent prosecutor’s office, a place where a Patrick Fitzgerald-type can hang his hat and go after wrongdoing wherever it may be in the chain of command.“
What do you guys think? Is Eric on to something, or not?
UPDATE 06/13/06 07:32 AM: “Umanksy isn’t necessarily wrong, but he isn’t exactly right either,” says John over at Op For.
It is true that commanders have exceptional power when it comes to the prosecution and punishment of their troops, but the way Umansky spins the story makes it sound like individual commanders are the end all/be all for military justice. In reality, the military legal system –from investigation to prosecution– is an incredibly complex, multi-layered entity, in which the unit commander is a single stone in the technicolored mosiac
{ 12 comments… read them below or add one }
I don’t think soldiers in the field should be worrying about being politically correct when they pull the trigger. They have enough to worry about without having to wonder if they are going to be prosecuted when they get back. Telling soldiers to be politically correct at the cost of their own lives is crazy, they fight wars, not elections. I think it should be up to the officer in the field to decide who gets charged and who doesn’t. He’ll have a better idea what his troops go through than some desk-jockey who is state-side. Just my two cents..
This wouldn’t be a huge change. JAG already does the prosecution and defense once the commander decides to go ahead with it. The military also already has a civilian investigator general with a similar role, but who does not initiate courts-martial.
No one would want to take away the power from the commander. The question is whether there ought to be a senior military official with stars who would be a internal affairs officer as well, and what would encourage him to do the right thing.
Given the size of the militray and everything they have their hands in, I’d have to say that they are doing a damn fine job as it is.
Certainly, soldiers are soldiers and forcing them to become eggshell-walking spokesmen (spokespersons?) is a mistake. But it seems there’s a profound difference ‘between being politically correct’… and following rules of engagement and international treaties.
that’s the worst idea i’ve ever heard. let’s back up our soldiers, not expose them to partisan/out of control prosecutors lookin to make a name for themselves.
Bad idea. The function of special prosecutors is to prosecute, so they tend to do so to justify their existence. Liberals like Patrick Fitzgerald because he is after someone who is, in their view, one of the “bad guys.” They didn’t like Ken Starr, on the other hand, because he was after one of their own.
The problem in both cases is that special prosecutions tend to take on a life of their own. Ken Starr started by investigating the Whitewater deal and ended up following up the Lewinsky matter. Patrick Fitzgerald was appointed to prosecute the Valerie Plame “outing,” but it seems most likely that no crime was committed in revealing her identity (at least no crime that he could prove) so now he is after Libby for perjury.
Appointing what is, in essence, a “devil’s advocate” to go after soldiers who who are doing their job would be a colossal mistake. It would destroy morale and probably result in the needless deaths of some of our own troops who may hesitate to shoot when they should because they are concerned that they will end up in the stockade.
The slate article is dead on. As a former military commander, I know exactly how the system works. If a commander doesn’t want to investigate an (alleged) offense, it doesn’t happen without some outside agency acting – usually the media, or Congress – spurred to action by constituant complaints, or protest from victims. Even in such minor cases as recruiter fraud, it’s all at the discretion of the commander. The problem is that there is no equivalent of a grand jury and an independent investigative office. Certainly, there is the article 32 hearing, but as with most elements of military justice, it cannont impose an indictment, it meerly reccommends action to the commander.
Civilian prosecutors have a lot of disgression in deciding whether or not to bring a case forward, also. Perhaps we should be bird-dogging them, as well? Military commanders are responsible for their folk in ways foreign to the civilian community and are afforded greater authority over them as a result. I doubt yet another lawyer welfare program would provide value equivalent to the resources squandered by it.
I’m sorry, but I can’t possibly agree with most of what this prosecutor has to say. Of course, I’m an E-4, so what do I know?
Well I do know that if I’m given an illegal order, I don’t have to follow it, and that if I do, its my ass. Nuremburg kind of proved that “Just following orders” is not a valid excuse.
I do know that niether Jag, ADC nor AFOSI (Airforce office of special investigation) is under the same chain of command as I am. My flight commander can’t tell them what to do, my squadron commander can’t tell them what they can or can’t do, my group commander can’t tell them what to do, not even my wing commander can tell them what to do. (Hes’ a full bird colonel, that wasn’t what they (Jag et al)told me, that was what he told me.) I’m not sure about my NAFs’ (Numbered airforce) commander, or my Majcom commander, but hell, just seeing a full colonel look at a major and say “I have almost no authority over what he can and cannot do” is almost enough to make me feel like I’m not boxed in.
Throw in the fact that I don’t have just one commander. If my flight commanders’ doing something fishy, I can go to my squadron commander (Via my First Sergeant of course) and ask questions. If my squadron or group commander has wandered off the deepend, and I think its really important enough, I can go bug the Wing commander (Through the Command chief master sergeant of course) Its all about just how important the issue is (The post was specifically in regards to alleged gross violations of LOAC, UCMJ, Geneva conventions, and so forth, so in that case I would see it as rather important) All of this bugging people is a pain in the ass, and rather complicated, and it can definitly take a long freakin while (Probably why most of these abuses are broke via the media and government, its alot quicker and simpler to get stuff noticed via those methods) but if its important enough its doable.
Does my commander have some extreme authority over me? Hell yeah! Can he make my life an eternal nightmare? Yeah buddy. Can he bend me over a desk and do horrendously unnatural things to me? Damn near. Am I completely powerless should one of my fellow airman do something horrendously illegal, and he decides to cover for them? I don’t personally think so.
The system works, in the typical awkward fashion. The last thing we (The military) needs is more civilians (most of whom know almost nothing about the military) screwing around with it.
Hey curtis…
To roughly quote Office Space…”I have five bosses!!!”
That’s gotta be an AF thing…when I was a Captain I actually worked directly for three Lt Col’s and three full birds (lone comm/aq officer in a PMO full of fliers)…worked out quite nicely when I needed top cover in a joint environment, (this one place-this one time) and I could whip out my portfolio of “daddys” from my home base…
It could have been hell on earth had they not been a great bunch of guys to work for…
For the record, Patrick Fitzgerald is a Republican and not a liberal by any stretch of the imagination. Most career prosecutors aren’t.
What distinguishes him is that he is an relatively incorruptible public servant, rather than a pure politician, unlike many senior civilian prosecutors. He was appointed for his experience in public corruption cases (most notably Governor Ryan of Illinois, a case in which he recently won a conviction). Public corruption cases almost always involve whichever party happens to be in power, because legislators in the minority don’t have any favors to trade. You may as well try to bribe a corporal in an effort to get aircraft procurement contract.
I don’t know, you can try and blame the chain of command or the big brass, or whoever, but the fact remains, that to all intents and purposes this operation is a failure, and the buck has to stop somewhere, right?
Unless, of course, the whole purpose of Iraqi Freedom was to make sure the oil in Iraq stays in the ground, in which case it has been pretty successful! That oil stays off the market and the major oil companies can watch their coffers fill up as the price of a barrel soars.
All I know is that I joined the military to defend the constitution, not the interests of some oil companies.
Americans today are so easily duped. It was not always this way. America had to be dragged kicking and screaming into World War I and II. Now some idiot goes on TV and tells people the boogy man is gonna get em, and everyone just signs on the dotted line.