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ORIGINAL: Politesub53

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.

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ORIGINAL: Thadius

*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.

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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.

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I'm curious, how precisely do you advocate bringing this guy back to active duty? He has completed his entire contract and is therefore 4-A with a valid discharge so he can't be legally drafted even if we reinstated the draft.

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Are you suggesting that John Kerry should be tried under this same law based on his testimony in Congress? You remember the whole "I witnessed x,y, and z" but didn't do anything as an officer to stop it, testimony. Oh wait this law wouldn't apply, the whole expost facto thingy....

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ORIGINAL: MercTech
Servicemen are required to obey the laws of local civilian jurisdiction.

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ORIGINAL: celticlord2112

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ORIGINAL: MercTech
Servicemen are required to obey the laws of local civilian jurisdiction.

This is very true. However, Federal law does not have "local civilian jurisdiction" over Fallujah, nor over any part of Iraq.

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  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.

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ORIGINAL: Politesub53

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ORIGINAL: celticlord2112

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ORIGINAL: MercTech
Servicemen are required to obey the laws of local civilian jurisdiction.

This is very true. However, Federal law does not have "local civilian jurisdiction" over Fallujah, nor over any part of Iraq.

It does according to this :

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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.

The act makes it clear what "grave breaches" are, one being the shooting of surrendered or injured combatants. One could argue that the Militas are non combatants, but surely by doing that, the whole thing then becomes about the murder of civillians, armed or not.

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 My argument would be that the Act is unconstitutional, violating both Article II, Section 2 of the Constitution as well as the 11th Amendment. The Federal courts are not the proper venue for a war crimes prosecution. 

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ORIGINAL: Politesub53

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My argument would be that the Act is unconstitutional, violating both Article II, Section 2 of the Constitution as well as the 11th Amendment. The Federal courts are not the proper venue for a war crimes prosecution.

The war crimes act received a unanamous vote, so surely your representatives thought otherwise.
My concern would be this, if it was found that the order to shoot these individuals came from a higher command, would those responsible for giving the order be court martialed ?

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ORIGINAL: MercTech

Servicemen are required to obey the laws of local civilian jurisdiction.
Should a serviceman be accused of violating local law; it is the responsibility of the JAG (Judge Advocate General Corps) to evaluate if they should be tried in Courts Martial under the UCMJ or turned over to local procecutors.
The evaluation is done via a hearing under the auspices of the UCMJ.

VAFB is in the next county South of here and the most common problems are with service personnel drinking and driving.  If they are caught on the base, then the MPs take care of them.  If they are caught off-base with a DUI by local PD or the Sheriff's Dept, what is the next step?  Are they handed over to the civilian courts or the MPs?

What I remember is that one cannot be prosecuted for actions done following LAWFUL orders.  But, following an unlawful order can leave one open to civilian prosecution.  I actually got into that once with orders to pump bilges loaded with oil overboard in port.  Would have been a violation of several laws.  I did it, but required the order being in writing with me filling in that I was doing so under protest and knowingly in violation of local law... saved my ass in the investigation later.  Yep, I could have been taken to trial for opening that valve but the D.A. acknowledged I was in a catch-22 as I would have been prosecuted under the UCMJ if I had flatly refused.  The LT was taken to court as he was the responsible party for that fiasco and I have a feeling that the LT had his pay docked to pay back the $50k fine put on the Navy.

Stefan

Always a good personal policy to have such potential problems documented in writing.  Bosses may come and bosses may go but you are stuck covering your ass from the day you are born.

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ORIGINAL: Thadius

Here's at least one...

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I'm curious, how precisely do you advocate bringing this guy back to active duty? He has completed his entire contract and is therefore 4-A with a valid discharge so he can't be legally drafted even if we reinstated the draft.

If evidence came to light that I committed some sort of crime while I was on active duty and the statute of limitations hadn't passed, I could still be recalled for a court martial, and I am on inactive reserve status.  The Marine in the original post, had barely been off active duty a year if that when these charges were filed.  So he would be in some sort of reserve status, active or inactive. 

Are you suggesting that John Kerry should be tried under this same law based on his testimony in Congress?  You remember the whole "I witnessed x,y, and z" but didn't do anything as an officer to stop it, testimony.  Oh wait this law wouldn't apply, the whole expost facto thingy....

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ORIGINAL: Vendaval


VAFB is in the next county South of here and the most common problems are with service personnel drinking and driving.  If they are caught on the base, then the MPs take care of them.  If they are caught off-base with a DUI by local PD or the Sheriff's Dept, what is the next step?  Are they handed over to the civilian courts or the MPs?

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ORIGINAL: Alumbrado

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ORIGINAL: Thadius

Here's at least one...

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I'm curious, how precisely do you advocate bringing this guy back to active duty? He has completed his entire contract and is therefore 4-A with a valid discharge so he can't be legally drafted even if we reinstated the draft.

If evidence came to light that I committed some sort of crime while I was on active duty and the statute of limitations hadn't passed, I could still be recalled for a court martial, and I am on inactive reserve status.  The Marine in the original post, had barely been off active duty a year if that when these charges were filed.  So he would be in some sort of reserve status, active or inactive. 

Are you suggesting that John Kerry should be tried under this same law based on his testimony in Congress?  You remember the whole "I witnessed x,y, and z" but didn't do anything as an officer to stop it, testimony.  Oh wait this law wouldn't apply, the whole expost facto thingy....

It still looks like you are ignoring the glaringly obvious difference between being in a reserve status and being a completely discharged civilian with absolutely no status as far as the DoD is concerned.

In every branch of the US military, inactive reserve status does not apply for a fixed number of years after every enlistment ends, it only applies until one's service obligation (currently 8 years) is met by a combination of active, ready reserve, and inactive reserve.

If someone has never served and does only 3 years on active duty, then stays in the ready reserve for 5, they have completed their 8 year obligation legally.

If they serve for 6 and get out, they still owe 2 years in the reserves in some form, usually the inactive. 

If someone serves for 8 years and gets out as a Sgt. they have no obligation left, they aren't required to be in the reserves, and they cannot ordinarily be recalled.

Apparently that is the claim being made in the OP case.

This is basic GMT stuff.

(BTW, ex post facto refers to passing legislation, not to criminal prosection  for past crimes that were illegal when they were committed.)

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You are assuming that he served 8 years, he could have made rank in a 6 year enlistment.  Even if there is no further commitment, you are still bound to the actions or your active time.  I will search for the case, but I remember reading of a retired gunney that was recalled 10 or 15 years after leaving, because of a murder investigation.

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ORIGINAL: celticlord2112

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Are you suggesting that John Kerry should be tried under this same law based on his testimony in Congress? You remember the whole "I witnessed x,y, and z" but didn't do anything as an officer to stop it, testimony. Oh wait this law wouldn't apply, the whole expost facto thingy....

If we intend to criminalize the conduct of war, then absolutely John Kerry should be recalled and court-martialed.

The UCMJ does not automatically guarantee a defendent the same rights and liberties that are de rigeur in a civilian court.  Ex post facto would not be an insurmountable issue.

If we intend to criminalize the conduct of war, then let us have John Kerry be the first to face the firing squad.  That seems quite fair and reasonable to me.

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ORIGINAL: celticlord2112

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ORIGINAL: MercTech
Servicemen are required to obey the laws of local civilian jurisdiction.

This is very true. However, Federal law does not have "local civilian jurisdiction" over Fallujah, nor over any part of Iraq.