I hope you can see why the two are not the same things, and I would really hope that no such rule exists under the UCMJ.
'nother question, if I may hijack.
Why would Jessup be in serious trouble at all? The movie establishes that code reds are fairly standard on the base and (presumably) haven’t resulted in any other deaths. Therefore, Jessup could reasonably say that he did not expect any serious harm to come to Santiago. Moreover, it would seem to indict Downey and Dawson even more since the whole “we do this all the time, and no one died until these two idiots got involved” issue is there (not to mention the whole “I was just following orders” defense is not generally accepted).
I mean, I can see Jessup getting in trouble for going outside the procedures for disciplinary action, but that kind of thing doesn’t seem a career ender much less a long time in the slammer type of offense. Is it a “everything’s OK until someone dies” type of thing?
remember when he met with kaffee et al in cuba? on the record, he understood that enlisted men disciplining their own was not to be condoned by officers. off the record, it was an invaluable tool.
then there’s the whole part about him actually issuing the orders for one person to assault and batter another… which lead to that person’s death.
just because you don’t get caught speeding 95% of the time doesn’t make it any less illegal.
Then there’s the whole covering it up and lying under oath about it, too.
But the problem is that Dawson and Downey claimed that they were ordered to do the Code Red by Kendrick. How could anyone in the military defend themselves if they were accused of a crime that they were ordered to do if their lawyer couldn’t even try to establish that they had received such an order?
Direct of Dawson by Kaffee: “Why did you do a code red on Santiago?”
Dawson: “We were ordered to do so by Lt. Kendrick.”
Direct of Kendrick by Kaffee: “Did you order a code red?”
Ross: “Objection! That’s an illegal question! Take Lt. Kaffee into custody - he’s under arrest!”
How can that possibly be the way things work?
They established very early on that Code Reds are illegal. Kendrick said he knew Code Reds were illegal. Just because they’ve gotten away with them before doesn’t make them any less illegal. Plus both Kendrick and Jessup lied in their statements, and lied under oath on the stand.
And while it’s true that “I was just following orders” doesn’t get you out of committing a crime, it’s also true that the person who gave you an order to commit a crime is also commiting a crime. Note that Dawson and Downey got dishonorable discharges for following the order - they weren’t convicted of murder because they proved they did get such an order, and weren’t intending to murder Santiago, but they still did commit a crime.
Obviously it isn’t, since the he did in fact get to ask the question “Did you order the Code Red?” The problem was that if he got the answer “no” and couldn’t prove that the actual answer was “yes”, then probing any further would put him out on a long thin limb.
Some quotes from imdb:
Ross (prosecuting atty) to Kaffee: I have an obligation to tell you that if you accuse Kendrick or Jessup of a crime without proof then you’re going to be subject to a court martial for professional misconduct and that is something that’s going to be stapled to every job application that you ever fill out. Markinson’s not going to stand up, Danny, he’s a crazy man! Now, I’m not telling you this to intimidate you I’m being your lawyer here…Now I want you to acknowledge that the Judge Advocate has made you aware of the possible consequences of accusing a Marine officer of a felony without proper evidence.
At the time, Col. Markinson (J.T. Walsh), Jessup’s XO, had already told Kaffee that Jessup had told him he wasn’t going to transfer Santiago off base, and that the transfer order was a forgery and part of a coverup, and that there had been an earlier flight off base. Eyewitness testimony from a senior officer seems like “proper evidence” to me - certainly enough to begin a line of questioning.
And I just watched the scene with Kendrick again - Kaffee never asks if Kendrick ordered a code red against Santiago. He talks about punishment of a previous Marine, and whether withholding food would be a code red, and the importance of following any and all orders, but the closest he comes is asking “If you had ordered Dawson to do a code red on Santiago, would he have obeyed that order?” Kendrick immediately protests he ordered them not to touch Santiago, Ross objects, the judge sustains it and tells Kendrick not to answer. Then, Ross, the prosecutor, asks Kendrick “Did you order a code red?” and Kendrick says “No I did not.”
There’s also the small fact that he ignored a directive/order from above not to condone enlisted men disciplining their own.
A Big Deal.
I’m glad to hear that I’m not the only one bothered by that particular plot point. Don’t get me wrong. I still think it’s a great flick. But that bit always always made me say .“Hey, wait a minute. That can’t be true… can it?”
FlightlessBird, while Jessep could have said something along those lines, the idea was that Kaffee’s questioning had him a bit rattled so that he wasn’t thinking clearly. On top of that (from the IMDB quotes…)
Kaffee: I think he wants to say it. I think he’s pissed off that he has to hide behind all this. I think he wants to say that he made a command decision and that should be then end of it.
[Starts imitating Jessup]
Kaffee: He eats breakfast 300 yards away from 4000 Cubans who are trained to kill him. And nobody’s going to tell him how to run his unit least of all the Harvard mouth in his faggoty white uniform. I need to shake him, put him on the defensive and lead him right where he’s dying to go.
It was mentioned that Jessup was about to be tapped for a position at the National Security Council (a position that a military officer friend who I watched the movie with explained to me as being roughly equal in importance to the position Oliver North held during his role in the Iran-Contra affair). The political baggage that Jessup would now carry as a result of his testimony would probably be a career killer at this point.
I think that if Tom Cruise can convince Jack Nicholson to make a sequel to this, Caffee defending Jessup after being locked up for 30+ years to make some type of parole would be interesting to say the least.
After all this time, I don’t think this is a hijack. I’ve manage to still not see the movie all these years later.
But, my question is, is Jessup right? Do we need him on the wall, or did he go off the reservation?
He went off the reservation, and frankly so did the screenwriter. Guantanamo Bay isn’t really a combat zone (whether it qualifies for hostile/imminent danger pay or hazardous duty pay I don’t know or care, it’s still not really a combat zone, anymore than Bahrain, for example, is a combat zone—it’s not), and the Marines there circa 1992 would have been no different than the Marines anywhere else (heck, they might have even missed out on actual combat service in the recent Gulf War by being assigned to security duty at Guantanamo). Senior military officers must be subject to scrutiny, both from higher echelons in the chain of command and, most significantly, civilian oversight (whether that comes from the executive branch, Congress, or, in extraordinary cases, the general public). I also think there’s a case to be made for accountability to subordinates, implicit in the subordinate’s duty to ensure lawful orders are well and faithfully executed, and unlawful orders are not carried out.
The real hot take is that Demi Moore’s character (Lieutenant Commander Galloway) is almost as bad as Colonel Jessup. Her entire thesis, as set out in response to the question “Why do you like them so much?” is essentially “So what if they followed an illegal order and got a kid killed? You have no right to condemn them.” Which is an only slightly softer recitation of what’s espoused in Colonel Jessup’s “mask off” moment.
I mean, she even invokes the same metaphor of standing on the wall. She literally says “Because they stand on a wall and say, ‘Nothing’s going to hurt you tonight, not on my watch.’”
So, in other words, we want them on that wall? We need them on that wall? So STFU and don’t you dare offer any criticism or demand any accountability for the foreseeable harm of their actions?
I see this as essentially the same question as the one posed in The Caine Mutiny. Here’s a commander who is deeply flawed and actually did something against the rules. But, should that person be extended a great deal of leeway based on their service, and the necessity of that service?
In The Caine Mutiny, it was a struggling captain who ultimately failed in a crisis. But as the Jose Ferrer character pointed out, Captain Queeg was busy defending the nation when his preppy, spoiled junior officers were out chasing cheerleaders.
In both The Caine Mutiny and A Few Good Men (and Twelve O’Clock High and Crimson Tide, now I think of it) the answer is ultimately ambiguous. Captain Queeg asked for help and didn’t get it. On the other hand, he was offered help plenty of times and refused it. I think his character was more pitiable than evil in that he rose to a position he was unsuited to.
Jessup did an important job, but did it in a way which needlessly killed someone. He justified it by emphasizing the extreme importance of the job. General Savage did the same in Twelve O’Clock High, but didn’t get people killed through subterfuge. On some level, I take Jessup’s point, but it’s not a defense. He should go down. I suspect there are other leaders who can do that job without such underhanded methods.
The caveat to all this is I’ve never been in the military. However, I have been in a career where I had to trust another person with my life. In my experience, a professional and gentlemanly approach gets the job done more effectively than coercion and abuse every time. I understand the need for a clearly delineated chain of authority, but safeguards are necessary there too because even well prepared, well intentioned people can screw up in a bad moment.
I don’t think that’s really true. Dawson and Downey were on trial for first degree murder. If they were ordered to give Santiago a Code Red, that’s an absolute defense against murder, because it eliminates the element of intent. That’s why Galloway was so hot to defend them, she thought it was outrageous that they were carrying out an order, even an illegal one, and the people who actually gave them the order were abandoning them to protect their own careers.
Okay, you brought it up, I didn’t, so I am not just shamelessly plugging my blog: I drew the exact same comparison (at the end of) this (warning, very long) post:
…but I think the Jose Ferrer character (Lieutenant Greenwald) is full of shit. And so is Aaron Sorkin (screenwriter for A Few Good Men).
Whereas myself, I was not only in the military but, like Queeg, actually a Lieutenant Commander in the US Navy dealing with what we would now call PTSD (I’ve even served aboard a minesweeper and a destroyer—though not at the same time as that type no longer exists and never as Commanding Officer). And yet I still think Greenwald is full of shit.
In part because Queeg (and I’d argue Jessup as well) achieved their positions and for a long time were shielded not only by their own personal mendacity and connivance, but by institutions aligned to protect them and prioritize their desires over the lives and safety those suffering under them.
(1) IDK about that first part. To me, it’s not (necessarily) an absolute defense against murder, at least from a strictly legal perspective, because the order itself was obviously unlawful and even if they feared they would suffer consequences, duress is not a defense against murder. Now, it does meaningfully undermine intent to kill but it doesn’t necessarily preclude a murder conviction because they still intentionally engaged in activity that (arguably) could foreseeably end in death or great bodily harm and which did in fact end in death. Maybe that’s manslaughter, but then gain it could still be murder. I am not a JAG and don’t know enough about the UCMJ.
(2) Hot to defend because they were coerced and and now being railroaded, sure, but then (a) that wasn’t the question (why are you so hot to defend them?) and more importantly (b) that isn’t the question she answered, either. Her answer was very much in line with the question “Why do you like them so much?” and had nothing to do with their being coerced or railroaded, and everything to do with their being placed on a pedestal for having the fortitude to “stand on a wall” and protect us (from a largely imagined threat, by the way). Virtually indistinguishable from Jessup’s own self-serving explanation for why he should not be held to account for his actions.
In the movie, they were charged with first degree murder, conspiracy to commit murder, and conduct unbecoming a Marine. I’m not a lawyer either, but AFAIK in every legal jurisdiction in the USA, first degree murder absolutely requires intent to kill the victim. So if they were following an order to give him a Code Red, that certainly gets them off first degree murder and the conspiracy charges, since they never intended Santiago to die. If the prosecutor had included manslaughter as a charge, maybe they still could have been convicted of that, but that wasn’t an option for the jury. Note that they were still (correctly IMHO) convicted of conduct unbecoming and got kicked out of the Marines with dishonorable discharges.
Isn’t manslaughter (or assault, for that matter) a lesser included offense of murder, and hence wouldn’t need to be charged separately?
And in fact, one of the defendants agrees at the end that the conduct unbecoming charge was correct, because they did not, in fact, behave as Marines should.
We’ll have to wait to see if one of the real lawyers shows up, but as I understand it, a jury can only rule on the charges given to them. If the prosecutors don’t charge manslaughter, only murder, the jury can’t on their own decide to convict of manslaughter. Otherwise it would be chaos for defense attorneys - if a defendant is charged with a crime that has 3 elements, they only have to cast reasonable doubt on one of those elements to acquit. If they had to worry that the jury might on their own decide that a lesser included charge that required only one of those elements was available, they’d have to change their defense strategy completely.
Well now here things get complicated, because I don’t believe the UCMJ has an article for “first degree murder,” rather it has Article 118, “murder,” which may be committed through in either of 4 ways, two of which (clauses 1 or 4) could carry the death penalty, and only one of which requires premeditated intent to kill. That makes it a bit difficult to parse out exactly what charges were involved in A Few Good Men. Another artifact of a sloppy screenplay, I suppose.
I daresay if they were supposed to have been charged specifically with premeditated murder (what we might call first degree murder) then the prosecutor wasn’t very good at his job because, as I have said, murder, including under the UCMJ, doesn’t require intent to kill, nor even does the death penalty require premeditated murder under the UCMJ. If that really was the only option the prosecution gave itself, having to prove premeditation, then it really did do a terrible job.
Well, if you want to get into sloppy screenplay, we have to address the whole “Kaffee can’t ask Kendrick or Jessep if they ordered a Code Red or he’s guilty of misconduct” travesty.