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View Diary: "They have to follow orders" (UPDATEDx2) (101 comments)

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  •  OK, I will try, based on my experiences only. (0+ / 0-)

    Honestly, mind you.

    Ref (1).  Yes, what you posit can and does happen.  As to how often, I cannot guess.  I suppose I would have to say it depends on how ambitious/lapdog to superiors the commander may be... coupled with personal integrity.

    Ref (2)  This is one of the most vexing of questions in the UCMJ, particularly regarding the use of Article 15 authority.  It raises two points immediately: (1) was the order lawful or unlawful, and, (2) is there reasonable grounds to know that the person so ordered should recognize the order as lawful or unlawful?  The presumption is that all orders are lawful, unless clearly otherwise.  But that does not resolve the issue of the soldier being given the order, and what the expectation of his or her knowledge as to lawfullness would be as measured against reasonableness.  Again, the presumption is that the recipient would expect the order to be lawful.  We know that both of those presemptions can, in specific cases, be inoperative, i.e. false.

       It goes to my assertion that we (the UCMJ) expect a level of discernment that may not actually be existent, and which the authoritarianism accorded by the chain-of-command concept promotes as a necessity (and I do believe that is necessary).

        If this seems like a waffle, maybe it is (IANAL), but at the very least it is a significant dilemma.  And unless there is a lack of personal integrity or a complete suck-up attitude, that dilemma is felt nowhere more than by those who exercise Article 15 authority.  The best I can say is that it must be a case-by-case judgement, and there is no guarantee that the outcome will in all instances by the 'just' one.  I don't know how to be more honest with you in my answer than that.

    Ref (3)  This is a mixed bag, historically.  And it depends on whether an Article 15 or a Courts Martial is involved, to some degree.

        Under Article 15, the judgement is limited only to the accused.  To extend UCMJ proceedings to those senior in the chain of command would require additional measures, specifically investigation and probably, if reason to assume violation, convening of a Courts Martial by the appropriate authority.  (This is somewhat of guess, as, again, IANAL.)

        As to Courts Martials, the history is a mixed bag, as I see it.  In the cases of Abu Grahib, Courts Martials and punishment were confined only to lower enlisted personnel, though I am convinced personally that they should have included a number of officers.  As I recall, the worst that was meted out to officers amounted to written reprimands (though those in themselves are career-killers).  On the other hand, with the Mei Lai incident, the two who were subject to Courts Martials were both company grade officers.  I do not recall any enlisted personnel being court marshalled.  Fair?  I don't know, for I personally believe that officers at higher level should have been charged, as well.

        Not a satisfactory answer, I know.  But I can say, without equivocation, that the system, IMO, fails in holding those in senior positions to proper accountability.

       

    Life is not a 'dress rehearsal'!

    by wgard on Wed Jul 23, 2008 at 01:11:56 AM PDT

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    •  I DO appreciate your response... (0+ / 0-)

      honestly, I expected NO response at all.

      As an ex-cop, I know that questions are never asked without already knowing the answers.

      1. When a prosecutor offers a "plea" it is for one of two reasons: a) the case is weak and they are not fully confident of a guilty verdict, or b) they are taking the "sure thing" to boost conviction stats.

      Either way, it is a gaming of the system.

      The same holds true for article 15's.  Sure, SOME deserved no more, and there are SOME who deserved no more, and yes, there were SOME commanders who had that integrity.  But, not all.

      1. I have to say I'm disappointed.  There can ONLY two people at fault in a situation where there is a failure to obey an order; either the person issuing the order, or, the person who didn't obey it.  Nobody else.  

      The why's, how's, political ramifications are moot.  One of the two is at fault.  Either the order was lawful or it wasn't.  Either the soldier was right or he/she was wrong.  There is no other equivication.

      Yes.  It was a waffle.  Because the evidence to date shows that in 99% of the cases, it is the enlisted that gets the hammer regardless of whether the order was unlawful or not.

      1. We both know that while a letter in an officer's folder is a career killer, being "allowed" to retire with a pension is not really "punishment" when you have grunts spending hard time in a military federal prison.

      We BOTH know that the grunts at Abu Ghraib got the shaft while the officers who told them it was ok skated.  Yeah, was a harsh punishment... you can retire with pension... the grunts go to the slammer for YOUR orders.  Harsh.

      You, better than I, know how political the officer corp is, and I only had a brief taste of it.  If you go against your own, others higher won't trust you and you won't get the sponsorship to advance.  

      There is black and white.  Right and Wrong.  Very little grey area UNLESS you are playing political games... no?

      The "rule of law"; it applies to you and me, but not the rich, the Republican or the celebrity. Welcome to America!

      by MotleyPatriot on Wed Jul 23, 2008 at 01:25:42 AM PDT

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      •  Hey, look... (0+ / 0-)

        I am not your 'enemy'.  To varying degrees, I share your points of view, not in all respects, but in many, maybe the most important ones.  And just so you will know, I was not always an officer... try draftee, PV1... and in my enlisted days, I was on the receiving end of an Article 15... which I considered undeserved at the time, but what did I know (then)?  Probably why I took my later authority under Article 15 so seriously and tried to exercise it judiciously:)

        Oh, one area of disagreement is your determination that there is only 'black and white'.  But that is an entirely different matter.

        Though as a different thought, I long ago came to believe that was one enticement to the military service for many, that things are more clearly framed in black and white terms.  I know it was for me, and it has certainly shaped my thinking on many things.  Still, I do recognize that much is more properly cast in the grey scale.

        Cheers:)

        Life is not a 'dress rehearsal'!

        by wgard on Wed Jul 23, 2008 at 02:01:56 AM PDT

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        •  I learned grey... or, I should say, STARTED (0+ / 0-)

          being taught grey, on the outside.

          I'm not saying you are the 'enemy'.  But, you were in the position that I wasn't to know the reasons why.

          The outcomes are what they are... and anyone with google can easily determine in the major cases who got the shaft and who was allowed to retire with a pension.

          I saw "enough" to know there was a political game.

          You say your being honest, and I can't say your not.  In YOUR experience, maybe you DID try to be fair... but, that's not REALLY true when you've already admitted you tried a person under Article 15 who didn't deserve it for political reasons and then tried to game the system that you were gaming to begin with.

          So... we BOTH know you were playing a political game.

          I'm saying... come clean... as a veteran who no longer has to worry...

          The "rule of law"; it applies to you and me, but not the rich, the Republican or the celebrity. Welcome to America!

          by MotleyPatriot on Wed Jul 23, 2008 at 02:06:51 AM PDT

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          •  I already said that instance was predicated (0+ / 0-)

            on political considerations.  These were simply that to ignore the allegations would have resulted ultimately in a dysfuntional, but necessary, activity... at a time and under conditions when dysfunction would have not been an option.  Given that, it was either 'throw the troop under the bus', which in my opinion he did not deserve it, or find a third way, which I did.  Not optimal, perhaps, but dysfunction was avoided in a critical activity, and the troop was not harmed.  If anyone had to wear egg, it was me.  That was the 'political part' you refer too.  And, FYI, it was a situation, had I handled it differently, in which I could have made a charge stick... that is where the matter of judgement came in.

            I tried to say it nicely, but now for a little bluntness.  Yes, the UCMJ (and its application) is not perfect.  And people game it, for sure, just as there are people who go unpunished under other statutory law who should be in the docks (IMO), just like GWB will, and Rove, and Rumsfeld, and Cheney, and Addison, and heaps of others.  But that is reality.  I still feel that justice under the UCMJ is more even-handedly applied than under its civilian analogue.  You may disagree, of course.  

            And I am not so hung up on black/white as you seem to be.  So, sue me!  

            As for what you intimate as political corruption re the application of military justice, yes, I have already agreed with you.  But by your own statement, as having been in civilian law enforcement, do you think that justice in the civilian community is applied with an even-handedness even approaching that of the military system?  Where is there evidence that corruption at all levels, from officer on the street all through the court systems, and even legislatures, is less than under the UCMJ... that civilian law enforcement and juris prudence even approaches the fairness of the system under the UCMJ?

            Both need a lot of work in their application, no doubt, but I submit that before your worry too much about military justice, you had best look closely to your own civilian law enforcement background, and look at what goes on around you.  And, then, you tell me which system is in greater need of 'fixing'!

            Life is not a 'dress rehearsal'!

            by wgard on Wed Jul 23, 2008 at 02:25:45 AM PDT

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            •  Having been in and seen both in action (0+ / 0-)

              I can say state there are differences in the two systems.

              As a civilian officer, we had "officer discretion".  That means, lets say, I see a guy stumbling down the sidewalk.  Is he drunk? Hurt?  I don't know, I stop him.  He's drunk.  By law, public drunkeness is a statutory crime.  During my sidewalk interview with the man I learn he was kicked out of his house by his wife, he went to a nearby bar, got drunk, and knowing driving wasn't an option, and too broke to get a cab, he decided he'd walk to his buddies house.  His buddy lives a block away.  The guy created no scene, no problems, and is simply walking down the road drunk.  Using officer discretion I have a CHOICE; I can arrest him anyway, or, I can give the guy a ride to his buddies and make sure he has a place to sleep it off.

              In the military, as an NCO, I didn't have any discretion at all; the regulations were written in stone.  If a person was late to work, they got warned, then they got paperwork, if it persisted and became a problem, then the individual was referred for harsher punishment.  In my time, I saw both good and bad commanders and senior NCO's.  I saw commanders who would go to bat for their troops and those who wouldn't.  I saw NCO's who were the same; some would fight for their troops and some would maliciously go after the careers of those they didn't like.

              As for which is "more" corrupt and needs fixing, there are different dynamics between the two situations.

              In the civilian world, each state, county, and municipality has their own code of laws.  Each department has their own department policies and equipment they use.  In the military world, each service may have their own policies, but the UCMJ applies to all services.  

              Where the two can be the same is that the "corruption" in the civilian system have one or more officers within that department who are corrupt, ie, they are dealing drugs, shaking down locals, etc.  It could be an isolated case, or, it could pervade an entire department.  In many cases, the bad cops are weeded out, either by administrative action, or by legal action.  The "corruption" in the military can be the same, stealing government equipment, and, these people are usually weeded out as well.  In both systems, you can find people who abuse their positions and authority.  Also, the "code of silence", ie, that a cop doesn't rat out another, is similar to the officer "code" of you don't screw you over your own.

              As for which needs "more fixing", I say the military one because its a matter of leadership in the system.

              As a road Sergeant, I was second in charge of my shift.  Unless my Lieutenant took charge of a scene or countermanded a decision, any decision made on an incident was mine.  If the incident went bad, the responsibility fell squarely onto my shoulders.

              As an NCO in the military, the decisions were made by the CO or NCOIC.  If they made a bad decision and gave a bad order, the responsibility is theirs, yet, in many cases, documented cases, the only people who got the hammer were the lower ranks who followed the order.  The CO's and NCOIC's may have had their careers ruined (Abu Ghraib), but they didn't go to prison like the troops did who got tossed under the bus.

              The "rule of law"; it applies to you and me, but not the rich, the Republican or the celebrity. Welcome to America!

              by MotleyPatriot on Wed Jul 23, 2008 at 11:46:54 AM PDT

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