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RE: Now this is a slippery slope - 8/17/2008 5:28:47 PM

celticlord2112

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quote:

ORIGINAL: slvemike4u

So CL you would advocate for a man to be able to get away with murder,hypothetically speaking ,if he had been wearing a uniform when his crime was committed.Barring the possibility of military adjudication of course...

If the military declines to prosecute, the civilian court does not have standing to pre-empt.

If there is a crime under the UCMJ, empanel a court martial and let the court martial hear the matter.

If a court martial cannot be empaneled, then the matter is not justiciable.

If that means a man escapes consequence for murder, that is how it must be.

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Post #: 21

RE: Now this is a slippery slope - 8/17/2008 5:30:14 PM

NumberSix

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Any argument couched in jurisdiction or competency made on this side would nullify the contraverse on the military tribunal side.

Only the very slippery should argue against themselves and from both sides of their mouth.

6

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RE: Now this is a slippery slope - 8/17/2008 5:33:59 PM

slvemike4u

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quote:

ORIGINAL: TheHeretic

Don't flatter yourself, Mike. There do seem to be thin-skinned folk about today, though.

RICO, taxation, these things might be difficult for juries to grasp, but they still take place within the civilian realm, under the same set of laws a civilian jury would bbe subject to. There is a sharp line between civilian and military codes of conduct.

If you mistook that for flattering myself....my apologies
Now I will ask your opinion of the same question posed to CL,suppose the path to a military court is barred by the fact that the man is not subject to involuntary recall...and for obvious self-preservation reasons won't volunteer to be recalled...should such a man not be judgement proof...

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Post #: 23

RE: Now this is a slippery slope - 8/17/2008 5:34:28 PM

Alumbrado

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quote:

ORIGINAL: Thadius

Thanks for the link.

I have a serious problem with this. If there were crimes committed while he was in uniform, he should be tried by the UCMJ, appointed a JAG lawyer and allow the jury of a court martial decide this case. As far as I know he would still be subject to those charges and military courts, even after leaving active duty.

The location of the charges being brought don't surprise me, nor the timing.

The military crimininal trial system is based upon the Manual for Courts Martial, of which the UCMJ is but a part.

Those with a military background will no doubt remember being briefed on MCM rule 202 which makes it very clear that military personnel are not exempt from trial by civilian authority.

As far as the inverse, the military trying civilians, that is pretty much out of the question with rare exceptions, going back to ex parte Milligan from the 1800s.

Recalling someone to active duty for a court martial is an option for someone in a reserve status or someone drawing a retainer as a retired service member...outside of that, the MCM cooperates with the the US Attorney's office on such things.

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Post #: 24

RE: Now this is a slippery slope - 8/17/2008 5:37:49 PM

slvemike4u

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quote:

ORIGINAL: celticlord2112

quote:

ORIGINAL: slvemike4u

So CL you would advocate for a man to be able to get away with murder,hypothetically speaking ,if he had been wearing a uniform when his crime was committed.Barring the possibility of military adjudication of course...

If the military declines to prosecute, the civilian court does not have standing to pre-empt.

If there is a crime under the UCMJ, empanel a court martial and let the court martial hear the matter.

If a court martial cannot be empaneled, then the matter is not justiciable.

If that means a man escapes consequence for murder, that is how it must be.

And again CL you seem to ignore or dance around the very question I'm asking...in my hypothetical the military court has not "declined"to prosecute,they are legally barred from prosecuting by the man's present and irrevocable civilian status....should such a man have in effect gotten away with murder?

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Post #: 25

RE: Now this is a slippery slope - 8/17/2008 5:40:17 PM

Steponme73

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In my opinion, if it happened in uniform, and he was acting under orders, then the UCMJ is what he is bound to. Civilians should have no say whatsoever, in these proceedings. I would think this is clear even to a civilian.

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Post #: 26

RE: Now this is a slippery slope - 8/17/2008 5:43:06 PM

NumberSix

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Al, I approve your message, but have to reserve this:

As far as the inverse, the military trying civilians, that is pretty much out of the question with rare exceptions, going back to ex parte Milligan from the 1800s.

With the lawlessness that has pervaded america as of late, the military tribunal at Gitmo (not illegal per se, but in keeping with former american jurisprudence, I would have liked to seen a civilian court determine whether this one or that one,on a case by case basis) met the definition of 'illegal combatant'. The UCMJ don't cheat fair in trial, in my estimation.

6

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Post #: 27

RE: Now this is a slippery slope - 8/17/2008 5:46:56 PM

slvemike4u

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quote:

ORIGINAL: Steponme73

In my opinion, if it happened in uniform, and he was acting under orders, then the UCMJ is what he is bound to. Civilians should have no say whatsoever, in these proceedings. I would think this is clear even to a civilian.

I really have no argument with this basic premise,even though I am little more than a civilian....the question remains though shall a accused "murderer"not stand in front of Any court because he is out of reach of military authority...I will wait for an answer,and keep rephrasing the question as long as the tap-dancing continues...

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Post #: 28

RE: Now this is a slippery slope - 8/17/2008 5:59:01 PM

TheHeretic

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quote:

ORIGINAL: slvemike4u
suppose the path to a military court is barred by the fact that the man is not subject to involuntary recall...and for obvious self-preservation reasons won't volunteer to be recalled...should such a man not be judgement proof...

Yes. He should not be judgement proof. The question is whether a civilian jury is competent to hear the case.

Perhaps the solution would be a true jury-of peers, composed exclusively of veterans. This particular law is an effort to close a loophole. I think they should try again, for justice to be properly served.

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RE: Now this is a slippery slope - 8/17/2008 6:15:07 PM

DMFParadox

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Slavemike, your question has been answered. Alumbrado is correct: military personnel are not exempt from civilian trials, and can in fact be tried twice for the same damned thing if they're really unlucky--and suffer both penalties; if there's jail time involved, depending on how bad your lawyer is you could end up doing consecutive sentences, the first in a military prison, the second in the civilian one. Fines and damages have equal weight, I believe, but don't quote me on that.

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Post #: 30

RE: Now this is a slippery slope - 8/17/2008 6:40:23 PM

slvemike4u

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And yet there are still those contending that only a military court has jurstiction?

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If we want things to stay as they are,things will have to change...Tancredi from "the Leopard"

Forget Guns-----Ban the pools

Funny stuff....https://www.youtube.com/watch?v=eNwFf991d-4

(in reply to DMFParadox)

Post #: 31

RE: Now this is a slippery slope - 8/17/2008 7:12:31 PM

TheHeretic

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quote:

ORIGINAL: slvemike4u

And yet there are still those contending that only a military court has jurstiction?

          Personally, I've been contending that a civilian jury wouldn't be competent to render a just verdict, but we can look at this too.

      The reasoning behind the double-jeopardy exception is that service-members are constantly in simultaneous jurisdictions. Punch a guy in a bar outside the gate, you broke two entirely different sets of laws.   They don't get to throw any book at you twice, but they have two to throw (it gets mighty expensive, from what I understand).

        But what jurisdiction could there be but the military in a nasty combat zone? What civil jurisdiction applies to streets where you are shot at from the windows of random houses?   My God, they tacked on extra charges because a gun was involved! I don't think there is an applicable set of civilian laws to apply. There certainly wasn't a local authority, unless you count the enemy (I don't).

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Post #: 32

RE: Now this is a slippery slope - 8/17/2008 9:52:27 PM

TheHeretic

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I'm really surprised we aren't hearing from those who are normally so concerned about atrocities, and reports of misconduct among the troops. This man is accused of killing unarmed prisoners, and because of the process that has been determined to address it, will very likely walk away a free man. What civilian jury is going to convict a Marine for actions in combat? Reasonable doubt cannot be overcome.

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Post #: 33

RE: Now this is a slippery slope - 8/17/2008 10:58:42 PM

msprudence

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Here's something which has been mentioned:

This man is now a civilian. He can't be tried in military court because he is now a civilian. So he is being tried in Civilian court.

Killing innocent people is wrong. If your commanding officer commands you to kill innocent people, than you respectfully decline because it violates the Rules of Engagement, the Geneva Convention. Troops do not have to follow unlawful orders.

The mess in Iraq is made much messier because we haven't been clear about this. If we as a country can't come together and agree that killing innocent people is wrong, than we have bigger issues than whether or not a civilian jury is capable of sorting through complex evidence about forensics and missing data. In the wars we fought prior to 1960, the enemy was our enemy because they were firing at us. When they stopped shooting at us, they stopped being our enemy. It is only in the last 50 years that we have engaged in wars where the enemy was our enemy because command says they were our enemy because they believed in another system of government or religious belief. This isn't a good change.

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Post #: 34

RE: Now this is a slippery slope - 8/18/2008 1:03:52 AM

Vendaval

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I think that an action that happened while in uniform should be tried by the military courts. The problem being that he was no longer active duty or reserve. The law designed to correct one problem created another and that needs to be addressed as well.

quote:

ORIGINAL: TheHeretic
Yes. He should not be judgement proof. The question is whether a civilian jury is competent to hear the case.

Perhaps the solution would be a true jury-of peers, composed exclusively of veterans. This particular law is an effort to close a loophole. I think they should try again, for justice to be properly served.

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RE: Now this is a slippery slope - 8/18/2008 5:22:16 AM

celticlord2112

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quote:

ORIGINAL: msprudence
This man is now a civilian. He can't be tried in military court because he is now a civilian. So he is being tried in Civilian court.

His current status as a civilian is irrelevant. He was on active duty when the events in question took place.

quote:

Killing innocent people is wrong. If your commanding officer commands you to kill innocent people, than you respectfully decline because it violates the Rules of Engagement, the Geneva Convention. Troops do not have to follow unlawful orders.

You are assuming the persons killed in Fallujah were "innocent," and that there was said unlawful order, not to mention whether or not the persons killed in Fallujah were civilians or combatants. Change any of these assumptions even a little and you have a military matter that is beyond the competence of a civilian court.

quote:

The mess in Iraq is made much messier because we haven't been clear about this. If we as a country can't come together and agree that killing innocent people is wrong, than we have bigger issues than whether or not a civilian jury is capable of sorting through complex evidence about forensics and missing data. In the wars we fought prior to 1960, the enemy was our enemy because they were firing at us. When they stopped shooting at us, they stopped being our enemy. It is only in the last 50 years that we have engaged in wars where the enemy was our enemy because command says they were our enemy because they believed in another system of government or religious belief. This isn't a good change.

Killing innocent people is wrong. No one here disputes this, nor does the Marine Corps.

However, the distinction that "when [the enemy] stopped shooting at us, they stopped being our enemy." is patently false, and ignores the challenges face in handling German POWs during WWII, as well as Korea; it ignores travesties such as Andersonville during the Civil War.

An enemy combatant remains an enemy combatant so long as they are of a mind to engage the US in any form of armed combat and resistance, now or in the future. He or she may be a captured POW, and thus accorded protections under the Geneva Conventions, but, shooting or no, such a person remains an enemy combatant.

Which is why civilian law is the wrong law to apply to Fallujah. Civilian law does not describe combat situations, does not allow for the exigencies of combat to serve as mitigation for deeds presumptively illegal, and does not have the competence to fairly adjudicate military matters.

If there were misdeeds done in Fallujah, empanel a court martial and try those involved in accordance with the UCMJ, which is the governing law for military matters. Civilian courts should recuse themselves from these cases as a matter of law.

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Post #: 36

RE: Now this is a slippery slope - 8/18/2008 5:35:10 AM

Thadius

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*Fast Reply*

I have seen folks suggest that because the Sgt. was no longer on active duty, that he cannnot be called back to active duty to stand before a court martial.... this is false. Article 2(d) of the Uniform Code, 10 U.S.C. § 802(d) allows for this very type of recall, and has been upheld during numerous cases before the biggest court of the land, and various appeals courts. Not so long ago there was a case arguing just the opposite, stating that the military didn't have jurisdiction and couldn't recall to active duty, Ginsberg wrote in the majority that what was in Schlesinger applied here as well, and allowed for the recall.

Another interesting recent ruling holding the same position.... http://bulk.resource.org/courts.gov/c/F3/81/81.F3d.343.95-3183.html

If this Marine is tried and convicted, I would wager a couple months salary that it is thrown out upon appeals, if this Marine faced non-judicial punishment for the alleged acts this trial would constitute double jeopardy, as the courts have already ruled that njp is equivalent to a court-martial...
"For these purposes we see no distinction between courts martial and non-judicial punishments under the Uni- form Code, See Article 15(b)(2)(B), 10 U.S.C. § 815(b)(2)(B)."

Just some early morning thoughts,
Thadius

P.S. This is an obvious violation of the "incidents of service" protections that members of our military must have. If allowed to proceed, think about all of the lawsuits/prosecutions that will be brought in attempts to change/challenge military policy and or ungoing actions.

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Post #: 37

RE: Now this is a slippery slope - 8/18/2008 8:18:09 AM

Politesub53

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This looks pretty clear to me.

quote:

The War Crimes Act of 1996
18 U.S.C. § 2441
The War Crimes Act provides federal jurisdiction over prosecutions for "war crimes," which the law defines as "grave breaches" of the 1949 Geneva Conventions, violations of Common Article 3 to the Geneva Conventions, and certain other offenses. These so-called "grave breaches" can include offenses against noncombatants, or surrendered or injured combatants, involving "willful killing, torture or inhuman treatment . . . [or] willfully causing great suffering or serious injury to body or health."
The Act applies whether the crimes are committed "inside or outside the United States," and whether the "person committing such war crime...is a member of the Armed Forces of the United States or a national of the United States." (It does not apply to non-citizens or nationals of the United States.) The statute also applies if the victim is in one of these categories. War crimes committed in the course of declared or undeclared armed conflicts, or during military occupation, are covered by the Act.

Surely this would take preference over military war, or else it would be impossible to try people for war crimes. The disturbing part that hasnt been mentioned yet, is that the Sgt doesnt deny the killings took place, and says he was ordered to by a senior officer.

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Post #: 38

RE: Now this is a slippery slope - 8/18/2008 8:40:50 AM

Thadius

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I am still curious as to what evidence they have it back up the charge of "voluntary manslaughter on suspicion of killing or causing others to kill". Are we going to open up servicemen to charges of war crimes when or if there is collateral damage as well, afterall there is the killing of potentially unarmed civilians?

Even the reason that caused this incident to come to light, the statements of Sgt Weemer, are being disputed by Weemer with his plead of not guilty. This is a very slippery slope.

I am not saying that war crimes should not be prosecuted to the fullest extent of the law, I am suggesting that how one determines what a war crime is, and who is responsible for it is something that should be considered very carefully. Not to mention the old addage about a "federal grand jury would indict a ham sandwich", this opens up the use of this law to be abused by somebody that has a particular position on the war or military.

Just my opinions,
Thadius

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Post #: 39

RE: Now this is a slippery slope - 8/18/2008 8:47:47 AM

Politesub53

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Thadius, i fully agree there needs to be stringent safeguards for servicemen. My suspicion with most cases like this is that there is a hidden political agenda, especially so close to an election. The main thing would be the need to ensure both a fair and transparent trial.

(in reply to Thadius)

Post #: 40

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