Saturday, November 29, 2014

More on the issue of alleged crimes while deployed

At Haditha on watch, I noted the new book by Kenneth Englade, about the Haditha cases.  Jurist now has something of a response, in piece by guest columnist Nathaniel R. Helms, author of No Time for Truth: The Marines, Justice, and the Haditha IncidentThe article begins:
Kenneth Englade recently offered his interpretation of the so-called Haditha Massacre, an unfortunate label applied to a far more reprehensible event that ultimately left eight US Marines standing before the bar of military justice. His final product is as underwhelming as it is skewed.
He concludes:
It is easy now to look back on the painful seven years it took to bring the case to a close and point out the glaring legal errors, the evidentiary inconsistencies and lies, deceit and obfuscation practiced by all the players involved in the longest, most expensive and fruitless criminal prosecution in the history of the US. It however was not a conspiracy, or an attempt to cover-up criminal behavior; it was the validation of a unique, unfair and malleable UCMJ that has as much to do with justice as military music has to do with beautiful serenades.
Which is partly why in my post I said that, “I wouldn't take the 'clever manipulation' comment too literally.  I would be more inclined to apply Hanlon's Razor.”

Connected to this, if only peripherally, Gene refers us to a piece in the Easton, Md., Star Democrat.  There are various cases cited in the article.  If you have a free moment this weekend, and an interest, here are links which may help you think about Gene's comment  quote that, "[S]oldiers have seen their right to self-defense on the battlefield negated by murder convictions."

United States v. Behenna, 70 M.J. 521 (C.A.A.F. 2011).  NIMJ filed an amicus brief in the case, and the other briefs are here.
Case Summary:  GCM conviction of unpremeditated murder and assault. Granted issues question (1) whether the military judge's erroneous instruction limiting the right to self-defense deprived Appellant of his constitutional right to a fair trial; and (2) whether the government's failure to disclose favorable information to the defense deprived Appellant of his constitutional right to a fair trial.
United States v. Hatley, ARMY 20090329 (A. Ct. Crim. App. 30 June 2010), pet. denied, 2012 CAAF LEXIS 12 (C.A.A.F. 2012), cert. denied by the U.S. Supreme Court, 1 October 2012. 

United States v. Clagett, ARMY 20070082 (A. Ct. Crim. App. May 21, 2009), pet. denied, 68 M.J. 231 (C.A.A.F. 2009).  Stjepan G. Mestrovic, The Good Soldier on Trial: A Sociological Study of Misconduct by the US Military Pertaining to Operation Iron Triangle, Iraq (Algora Publishing, Aug. 3, 2009).

For some reason, I haven't been able to find these two appeal cases reported at ACCA or CAAF, or CAAFLog.  It could be that the case is still under review at ACCA.

United States v. Lorance.  The accused was apparently convicted and sentenced on 1 August 2013.  It seems that his case has not yet been decided by the Army Court of Criminal Appeals.

United States v. Miller.  Apparently convicted in 2011.


  1. The comment Phil imputes to me is not mine; it's from the Star Democrat piece.

  2. Behenna sought and was denied certiorari at SCOTUS, specifically on the self-defense issue; see 133 S.Ct. 2765 (2013). DISCLAIMER: I was one of Behenna's counsel at SCOTUS. Cert. Petition is at:

  3. It seems I was correct as to Lorance with this news article from Fayetteville.


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