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Who did it, why and under what circumstances?
What should and should not be done?
The military justice system demands justice for our troops. It does not
permit revenge upon them to curry favor with others, even our enemies.
The burning of an unstated number of Korans in Afghanistan and the aftermath have been much in the news. However, little has been reported factually about who did it, who if anyone told them to do it and/or why. It has not even been reported, beyond speculation, whether the Koran Burners were members of the United States military, some other military organization or civilians. According to this NY Times article, it was done by “American” personnel who “threw Korans into a pit of burning trash.” According to the linked February 21st article, also at the NY Times,
According to Afghan workers who witnessed the events, around 10 or 11 p.m. on Monday a dump truck escorted by a military vehicle drove up to the landfill at Bagram Air Base, where 20 or so Afghans work. Two uniformed NATO personnel, a man and a woman, began unloading bags of books from the back of the truck and throwing them into a pit for incineration. NATO officials said it was not yet clear if the two people were troops or civilians. Some civilians also wear military uniforms and can easily be mistaken for soldiers. The Afghan workers described the pair as Americans.
Accounts from some of the workers at the landfill suggested that the two people were oblivious to the significance of what they were doing. They made no attempt to hide the books, instead appearing to be routinely carrying out their duties.
“When we saw these soldiers burning books, we moved closer to see what was going on, and one of the boys said, ‘It is Holy Koran,’ ” said one of the laborers, Zabiullah, 22. “And we attacked them with our yellow helmets, and tried to stop them. We rushed towards them, and we threw our helmets at the vehicles.” (Emphasis added)
Reliable information remains difficult to find. Let’s therefore assume that the uniformed people who threw bags of refuse into the fire were U.S. Military personnel, that they were not burning Korans for the mere joy of burning them and that they were performing duties assigned by someone in a position to assign those duties. If not, the apparently contrite letter written by President Obama (hardly his first apology to the world for our many sins) probably makes even less sense than is apparent — that’s speculation, since the text has not been released and, according to Press Secretary Carney, “is not appropriate to show” to reporters or, by extension, to the rest of us. According to a travel pool report, it was “a lengthy, three-page letter on a host of issues, several sentences of which relate to this matter.” In any event, whatever President Obama may have said seems not to have had many desirable effects.
As noted by Ambassador Bolton, President Obama’s apology probably enhanced the Islamic sense that the United States (or at least the Obama Administration) is increasingly weak, gutless and ineffectual. That perception appears to have been gaining international acceptance. While consistent with the Obama presidency, that is not a wise message for any President of the United States to send.
The violence continued: on February 27th,
A suicide car bomber struck early Monday at the gates of Jalalabad airport in eastern Afghanistan, officials said, killing nine people in an attack insurgents said was revenge for U.S. troops burning Qurans.
. . . .
The bomber drove up to the gates of the airport — which serves both civilian and international military aircraft — shortly after dawn and detonated his explosives in a “very strong” blast, said Nangarhar provincial police spokesman Hazrad Mohammad.
Among the dead were six civilians, two airport guards and one soldier, Mohammad said. Another six people were wounded, he said.
An AP photographer saw at least four destroyed cars at the gates of the airport.
NATO forces spokesman Capt. Justin Brockhoff said that no international forces were killed in the early morning attack and that the installation was not breached by the blast.
. . . .
“This attack is revenge against those soldiers who burned our Quran,” Taliban spokesman Zabiullah Mujahid said in an email.
More than 30 people have been killed in protests and related attacks since the incident came to light this past Tuesday, including four U.S. soldiers.
At least in the absence of reliable information about who did what, in what circumstances and why, does this apology to “the noble people of Afghanistan” by the commander of the NATO coalition in Afghanistan, United States General John Allen, make a great deal of sense?
According to the young gentleman interviewed in the first video, we need to be even more respectful of the feelings of
savages devout adherents to the Religion of Peace who like to behead and otherwise kill us and other “infidels” because otherwise we will continue to lose their hearts and minds. We will also continue to lose our own because we will continue to be beheaded and killed in other Islamically acceptable ways. Might the young gentleman be right? Clearly, savagery trumps patience and reasoning, or at least that seems to be the administration position. As asked here,
What, if anything, does the president have to say to the parents, orphans and widows of the murdered Americans in Afghanistan? His silence on those murders suggests, at a minimum, some sort of deranged “understanding” of the killers’ motivation, as if to say, “well, what do you expect? American soldiers slimed the Holy Koran, so obviously angry Muslims were going to slaughter some Americans.”
Does this mean that the president has issued Muslims a pass on barbaric violence? Does it mean that he sees a moral equivalence between burning holy Islamic writ and killing infidels?
Official apologies to Islamists continue.
Let’s assume that the beastly Koran burners are members of the United States military and therefore cannot be tried by a court dispensing Islamic justice. In the absence of a Status of Forces Agreement between the United States and Afghanistan that so provides (none exists), they are instead subject only to the Uniform Code of Military Justice (UCMJ) — as are their military commanders. What happens next? Here is what President Karzai said:
[A]ccording to a BBC translation of his remarks made Sunday, [Karzai] told the Afghan people he was speaking to them after discussing the matter with “jihadi leaders,” “prominent scholars,” and Afghan elected officials, and that he spoke for the “pure sentiments” of the “Afghan nation” and the “Islamic world,” when he said: “We call on the US government to bring the perpetrators of the act to justice and put them on trial and punish them.”
According to this statement from The Islamic Republic of Afghanistan Government Media and Information Center,
NATO officials promised to meet Afghan nation’s demand of bringing to justice, through an open trial, those responsible for the incident and it was agreed that the perpetrators of the crime be brought to justice as soon as possible.
How can the demands of the pure sentiments of the “noble” Afghan people for “justice,” public trial and punishment be met? Who are to be tried? The two apparently low-ranking enlisted personnel who threw the bags into the fire? Whoever told them to do it? Whoever might have been his supervisor? How far up the chain of command can it go? Can guilt be presumed, a public
trial farce held following which they shall be punished to Afghanistan’s “pure” satisfaction? How? By being hung, disemboweled and/or beheaded and their bodies dragged through the streets? Less probably would not be satisfactory and — in view of General Allen’s statement in the video above — could instead be a signal for further rioting and death at the hands of those same noble people.
What should happen?
In a January 16th article entitled Should politics and foreign policy affect our military justice system, I wrote based on my experiences as an Army JAG captain (1966-1970) about the UCMJ and its implications for several marines who had childishly had a video made of themselves urinating on deceased Taliban heroes. Obviously, their actions were intentional and they knew what they were doing. The same principles should and must apply here if we are to make any legitimate claim that we follow the rule of law and are not descending to a level of savagery approaching that in Afghanistan.
Whether the, as yet, undisclosed military personnel who burned some Korans are to be tried by court martial or by a potentially less severe system of justice should not be up to the whims of Afghanistan or to those in the Obama Administration intent upon apologizing to that (or any other) country. Nor, if they are to be punished, should punishment dictated by “pure Afghan sentiments” — or by those of the no less “noble” Obama Administration — be imposed.
If punishment is to be sought, there are essentially five ways to proceed:
General court martial;
Special court martial;
Summary court martial;
Field grade non-judicial punishment (Article 15) and
Company grade non-judicial punishment.
They are listed above in descending order of potential severity; the first two are generally open to some extent to the public under conditions ensuring the maintenance of proper military decorum conducive to the administration of justice. A conviction is ordinarily treated as conviction of a federal felony, the effects of which can jeopardize future prospects (if any) of the felon. The latter is not the case for the last three. Under none of the five procedures can the verdict to be delivered and the punishment to be imposed (other than what is maximum punishment possible) be foreordained.
What has the Obama Administration properly to do with any of this? It should have very little to do with it. The Manual for Courts Martial (MCM), an Executive Order supplementing and consistent with the UCMJ, provides:
Rule 104. Unlawful command influence
(a) General prohibitions.
(1) Convening authorities and commanders. No convening authority or commander may censure, reprimand, or admonish a court-martial or other military tribunal or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court-martial or tribunal, or with respect to any other exercise of the functions of the court-martial or tribunal or such persons in the conduct of the proceedings.
(2) All persons subject to the code. No person subject to the code may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case or the action of any convening, approving, or reviewing authority with respect to such authority’s judicial acts.
As contended in my January 16th article,
Although not themselves subject to the UCMJ, the Commander in Chief, Secretary of State and Secretary of Defense should respect the intent of the MCM, an Executive Order. They should not take actions which, if taken by a commander, would amount to command influence. Leaving aside all other considerations, they should refrain because defense counsel in a military trial would likely raise what they had done — possibly by analogy to command influence and at least in the context of pre-trial publicity. Counsel’s failure to do so could and probably would be cited as incompetence in any subsequent appeal.
We may already have passed the point of no return. We don’t know what instructions the NATO field commander, United States General Allen, has given (or may give) to his subordinates or they to theirs. Assuming trial by court martial or non-judicial punishment proceedings under Article 15 of the UCMJ, to what pressures will subordinate commanders be, or consider themselves to be, subject? Will they feel under obligations to do what they believe President Obama (or President Karzai) desires rather than what their consciences and their oaths of office — to the United States Constitution and to neither President Obama nor President Karzai — and the UCMJ demand of them? The oath of office for U.S. military officers is as follows:
I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
Let’s hope that they as well as their superior commanders, including the Commander in Chief, remember and honor that oath. Let’s also hope that none of them take this satirical video by Andrew Klaven seriously.
First published at Dan Miller’s blog.