"I've failed, but let me keep trying"

Readers may wish to consider Dr. Elizabeth Van Winkle's recent op-ed in USAToday. She was the DoD civilian who served with The Judge Advocates General on the recent quickie Task Force the Pentagon created to make sure Sen. Martha E. McSally didn't jump ship. [Not to worry -- her vote is safe.] In a nutshell, Dr. Van Winkle's view is that even though commander-centric charging has failed for years when it comes to sex offenses it should nonetheless be retained because soldiers trust commanders. She says the latest data are "a call to action" and that "[a] commander standing in front of their force with the power to criminally charge them for not abiding by orders is an extremely powerful tool within the military."

Today, commanders cannot make these [charging] decisions without legal counsel, nor can they overrule legal counsel without review by a higher commander. These safeguards and others make one thing fundamentally clear: Removing commanders from the military justice process is an empty gesture. It will have no impact on decreasing perpetration of the crime because it is limited to what happens after the crime occurs.

How about an annotated version?

Today, nonlawyer commanders whose careers are on the line if the unit reports too many disciplinary issues cannot make these quintessentially legal decisions without legal counsel whose advice they need not take, nor in sex cases but not other serious cases such as murder can they overrule [wrong word: the SJA only gives advice, which the commander either accepts or rejects] legal counsel without review by a nonlawyer higher commander. These safeguards and others [such as?] make one thing fundamentally clear: Removing commanders from the military justice process is an empty gesture. How so? The Brits and others got rid of commanders' disposition power over serious offenses with no adverse effects. It will have no impact on decreasing perpetration of the crime [how do you know, and in any event is the issue one of body counts or of public confidence in the administration of justice?] because it is limited to what happens after the crime occurs. This implies that the disposition power is a commander's only or primary tool -- which it's obviously not. What is more, the services have had years and years to get a handle on sex offenses under the current commander-centric system and have still not gotten their hands around it. 

On war crimes and pardons

West Point alumnus Waltman Wade Beorn has this powerful piece in the Washington Post, concerning the pardoning of war criminals. He writes:

In at least three instances, then, our commander in chief appears to have preferred to overlook serious war crimes in favor of a warped notion of patriotism and heroism. [Donald J.] Trump subscribes to a “bad things happen in war” mentality — odd for a man who actively avoided military service.

This attitude is incredibly dangerous. It doesn’t just undermine the enforcement of military justice; it also sends a message to our armed forces about just what kind of conduct the United States takes seriously.

The article links to the Wehrmacht's 1941 Jurisdiction Order.

The Behenna Pardon Part 3: The Brady Violation

The White House

In the comments to my post on good order and discipline, two attorneys who filed amicus briefs in Behenna's appellate cases have emphasized the Brady violation. For that reason I will briefly provide my take on that violation and whether it required a new trial or justified a pardon.

First, it is important to note that not every Brady violation---a failure to provide information favorable to an accused's case that is known to the government---requires reversal of a conviction and a new trial. The ultimate issue in every case is whether the accused was prejudiced by a disclosure violation. On the basis of what I have read (including the comments to my earlier post and the amicus briefs related thereto), I agree with the CAAF majority that, in light of the overwhelming evidence of guilt, no prejudice resulted from this Brady violation.

The Brady violation. During the trial and near its conclusion, the forensic expert retained by the government told prosecutors that he agreed with defense forensic experts who testified that the available evidence supported the views: (a) that the victim was standing when shot the first time; (b) that the victim was shot in the chest before being shot in the head. These opinions were not conclusive on the issue of whether the victim reached for Behenna's weapon, as the defendant had claimed, but they supported that theory.  Defense experts had already testified as to these opinions and admitted on cross-examination that other theories were plausible. Prosecutors failed to disclose this expert's opinion to defense counsel until after the panel returned findings of guilt, and after receiving an email from their expert. A defense motion for mistrial was denied.

The trial judge and appellate courts found that the government expert's opinion would have been cumulative and, in any event, not at all dispositive of any actual legal issue related to Behenna's convictions for unpremeditated murder and assault. Even accepting the idea (offered in a comment to my earlier post) that the expert would offer a different basis for his views on these points, I do not see how this expert's opinion evidence would have changed the result in this case. For that reason, I think the CAAF majority's conclusion that no prejudice resulted from this Brady violation is supported by the record.

Although I will address the law of self-defense on the battlefield in a separate post, I largely agree with the CAAF majority on the application of self-defense principles to this case (though their discussion of the issues could have been clearer). My analysis here proceeds from that premise.

Let's entertain the idea for a moment that the defense could conclusively establish its theory on the position of the victim (standing) and shot sequence (chest then head). Would that prevent or call into question an unpremeditated murder conviction? I think not, for the following reasons.

(1) The victim's position and the shot sequence are not conclusive or even persuasive evidence that Ali was reaching for Behenna's weapon. This is particularly so in light of other testimony (the interpreter) and the fact that Behenna did not make a self-defense claim in the immediate aftermath of the incident. A sincere self-defense claim is also inconsistent with tossing a thermite grenade to distort the crime scene, which Behenna had inquired about well before these events.

(2) Let's assume Ali was standing and reaching for Behenna's weapon, and that this somehow explains the chest wound location.  Behenna said he fired a "pair" of shots in fairly rapid succession. Two other witnesses said that there was a noticeable delay of roughly two to three seconds between shots. The pathologist testified that the shot to the victim's temple was the cause of death.

If Behenna shot the victim in the chest first, why would he then need to shoot him in the head? In other words, even assuming the first shot was fired in self-defense (but see ¶ (3) below), and it was the chest shot, it was not the fatal shot. A later shot to the right temple would not be necessary for self-defense. Two or three seconds later, a slumped- (or slumping-) over detainee (according to the interpreter) who has just been shot is no longer a threat, if he ever was. This brings us to CAAF's reason for finding no prejudice.

(3) Alternatively, let's assume both shots were fired in response to the victim reaching for Behenna's weapon, exactly as the defendant claimed, and that the two shots were essentially one act of self-defense. There is no debate that Behenna, in full battle gear, was the first person to offer deadly force by pointing his loaded weapon at a naked, unarmed, unthreatening detainee.

Behenna had no lawful justification or excuse to offer deadly force under the circumstances. He therefore was an "aggressor" who had no right of self-defense unless he had withdrawn or the victim's responsive use of force was an escalation. Nothing in the facts suggest that Behenna had withdrawn or attempted to. At most, in response to Behenna's unlawful offer of deadly force, the victim may have thrown a piece of concrete at him and reached for his weapon. Neither of these acts would have been an escalation of the deadly force offered by Behenna.

In other words, even if the government expert's opinion evidence would have conclusively established the facts the defense proffered, it would not have changed the application of self-defense principles to the events. That was what the CAAF majority held, and it is perfectly reasonable result.

In sum, the issue is not only whether there was a Brady violation. The ultimate issue is whether a Brady violation resulted in prejudice to the accused. I am well aware of the general and valid concerns raised by the briefs filed by the attorneys who commented on my earlier post. In light of the facts in this case, however, I simply do not believe that prejudice resulted, or that a new trial or pardon was warranted. For other reasons that I will not address here, I am also quite doubtful that this Brady issue was the primary or even a significant basis for this pardon decision. 

U.S. Army court-martial results, December 2018

The following list includes all straight acquittals adjudged by U.S. Army courts-martial in December 2018. Source: U.S. Army Summary Report of Results of Trial. Five of the six straight acquittals involved sex offenses. Four of the five (and all of the sex offense straight acquittals) in which the accused was enlisted involved panels composed of both officers and enlisted members.

On 06 December 2018, at a general court-martial convened at Fort Bragg, North Carolina, a Specialist, was acquitted by a military panel composed of officers and enlisted members of two specifications of sexual assault, in violation of Article 120, UCMJ.

On 07 December 2018, at a general court-martial convened at Joint Base Lewis-McChord, Washington, a First Lieutenant, was acquitted by a military panel composed of officers of three specifications of abusive sexual contact, two specifications of assault consummated by a battery, one specification of communicating a threat, and one specification of indecent language, in violation of Articles 120, 128, and 134, UCMJ. 

On 12 December 2018, at a general court-martial convened at Fort Bragg, North Carolina, a Staff Sergeant, was acquitted by a military panel composed of officers and enlisted members of one specification of negligent homicide in violation of Article 134, UCMJ. 

On 13 December 2018, at a general court-martial convened at Fort Knox, Kentucky, a Sergeant First Class, was acquitted by a military panel composed of officers and enlisted members, of two specifications of sexual assault, one specification of assault consummated by a battery, and one specification of adultery, in violation of Articles 120, 128, and 134, UCMJ. 

On 19 December 2018, at a general court-martial convened at Vicenza, Italy, a Private First Class was acquitted by a military panel composed of officers and enlisted members, of two specifications of rape, two specifications of sexual assault, one specification of aggravated assault, one specification of assault consummated by a battery, one specification of obstruction of justice, one specification of indecent language, and one specification of animal abuse, in violation of Articles 120, 128 and 134, UCMJ. 

On 21 December 2018, at a general court-martial convened at Fort Sam Houston, Texas, a Specialist, was acquitted by a military judge of one specification of attempted sexual assault and three specifications of sexual assault, in violation of Article 120, UCMJ.

Nine other Soldiers were charged with sex offenses. Eight of them were convicted of sex offenses; the ninth -- tried by a mixed panel of officers and enlisted members -- was convicted only of other offenses (AWOL). The cases are as follows:

The Behenna Pardon Part 2: A Threat to Good Order and Discipline

The White House

In an earlier post, I exposed the false narrative that the White House press office advanced to support the President's decision to pardon Michael Behenna. Since then, Gene has uncovered information that indicates the basis for the pardon might have been prosecutorial misconduct. I may publish another post responding to that claim. I have serious doubts about its accuracy (as the reason for the pardon) and sufficiency (as a justification for the pardon), as indicated in my comment to Gene's post.

In this post, I want to address the serious threat to good order and discipline that this pardon creates. Although I summarized the essential evidence necessary to understand the case against Behenna, this post will explore this evidence (as summarized in the appellate decisions) in greater detail.

To support the pardon decision, the White House claimed Behenna had been a model prisoner. Behenna's actions related to the death of Ali Mansur [A.M.] were not those of a model officer or soldier. Indeed, the amicus brief signed by former military leaders stated: "Lieutenant Behenna's unauthorized actions in a combat zone were a serious breach of military discipline and for that reason, he should be subject to appropriate disciplinary action under the UCMJ." Although Behenna served significant prison time, the stigma of his conviction (but not the conviction itself) has been removed by the pardon. It is important to consider whether that was an appropriate result given his conduct.

Prior to the death of A.M., on April 21, 2008, insurgents attacked Behenna's platoon with an explosive device. Several members of the platoon were wounded. Two platoon members, a translator, and Iraqi civilians were killed.

On May 8, 2008, a local Iraqi leader told Behenna that A.M. was a terrorist. Behenna went to A.M.'s house, ordered him to lie on his stomach, and struck A.M. in the back repeatedly with his helmet. Behenna's platoon sergeant (PSG) entered the room and saw Behenna strike A.M.

Behenna eventually turned A.M. over to interrogators. After reviewing the report from the first interrogation, Behenna was unhappy with the information obtained. Because he believed A.M. had information about the insurgents that attacked his platoon, Behenna insisted that A.M. be interrogated again. Behenna was permitted to observe but not participate in the second interrogation.

On May 16, 2008, Behenna was ordered to return A.M. to Abu Toma and release him. Before departure and through an interpreter, Behenna told A.M. that they would talk later and that Behenna wanted three pieces of information from him. Behenna concluded by saying "If I don't get that information today, you will die today." At trial, Behenna claimed he was only trying to scare A.M.

Behenna's platoon traveled through Abu Toma without releasing A.M. He ordered the platoon to take a desert route back to their base because he wanted "to talk to [A.M.] in a remote, secure location." When Behenna found what he thought a good location, he ordered his platoon to stop. With his interpreter, Behenna retrieved A.M. from his PSG's vehicle. He asked the PSG if he had a thermite grenade. The PSG did not at that time, but later returned with one.

Behenna took A.M. to a deep railroad culvert over 100 meters from where the platoon convoy was stopped. He then engaged in the actions described in my earlier post: first pointing his weapon at and then shooting A.M. twice.

The interpreter testified that he did not see exactly what happened, but that he believed A.M. was still seated when the first shot was fired. The PSG moved toward the culvert after the first gunshot and saw the muzzle flash of the second. When the PSG reached the culvert, he testified that Behenna ordered him to throw a thermite grenade, which the PSG did. Behenna then told the PSG to take care of the clothes.

The autopsy revealed that the gunshot wound to A.M.'s head entered the right temple and came out the left side of his head on a level trajectory. The chest wound was under the right arm and also exited near the spine on a level trajectory.

After returning to the base with his platoon, Behenna asked the PSG if he was "cool." The PSG indicated he was. Behenna also discussed the difference between the moral and legal right to kill.

The interpreter later asked Behenna why he shot A.M. Behenna said it was because A.M. was involved in planting explosives. When two soldiers in the mess hall asked Behenna if he shot A.M., Behenna said that he had because he felt his platoon was in danger that night. Behenna also stated he would do it again and did not feel bad about it because he had lost two men.

At trial, Behenna claimed he shot A.M. because he thought A.M. was reaching for his weapon. He insisted that despite his earlier words and actions, he never intended to kill A.M., only to scare him.

By convicting Behenna of murder, the court-martial panel must have concluded his testimony was unreliable. Given the testimony of the other witnesses, it is easy to understand why.

To summarize, the evidence admitted at trial established that without lawful authority, Behenna assaulted an Iraqi civilian and later threatened that detainee--who had been cleared for release--with death if he did not provide certain information. Later, with his platoon watching and waiting, Behenna violated an order to release the detainee and instead took him to a remote location out of the platoon's sight.

In the presence of an interpreter and his PSG, Behenna threatened the detainee again, forcibly removed the detainee's clothing (ordering the PSG to help), and, even though the detainee offered no physical resistance, threatened a naked, docile detainee with a loaded gun. Behenna himself was in full battle gear, including his helmet, M-4 rifle, and Glock pistol. Behenna then shot the detainee twice, once in the right temple.

Behenna later justified his actions to his PSG, the interpreter, and to two soldiers in the mess hall using language consistent with revenge rather than self-defense. To be clear, even if it mattered as a moral or legal matter, the record does not establish that Behenna's beliefs about A.M. were accurate. Although there was plenty of reason for suspicion, there was apparently no direct information or evidence that A.M. was a terrorist or insurgent, or otherwise actually possessed the information Behenna sought.

Behenna's behavior was totally unacceptable conduct for any military officer. Leaders cannot claim authority to violate orders and laws based on their understanding of situational morals or ethics. They cannot act as judge, jury, and summary executioners when the law and unit policy require a different process. Leaders must set an example of honorable conduct, especially in battle.

This is why the former military officials stated that his actions were a "serious breach" of military discipline and required appropriate punishment. Through his actions, Behenna taught his subordinates that ignoring orders and the law is permissible when, in their individual view, it is the morally or ethically right thing to do.

Behenna's pardon sends a similar dangerous message that threatens good order and discipline. This is not the first time this President has indicated that he will support troops who face criminal sanctions for improper battlefield behavior so long as he agrees that their actions were justified or appropriate. Coming from a president who repeatedly stated that he thinks torture works and that the family members of terrorists should be killed, this is a serious concern. A pardon for clear battlefield misconduct undermines the authority of commanders who are responsible for controlling the actions of their troops in battle.