An enlisted reservist has been sentenced to 10 years in prison for abusing prisoners at Abu Ghraib. His defense was that he was following, or reasonably believed he was following, orders.
The defense complained bitterly that he was being made a scapegoat for conduct by higher-ups, and particularly resented the fact that the prosecution refused to call any of the officers in charge of the prison.
Here’s the question: At a court-martial, couldn’t the *defense * have called those officers, or pretty much anybody else with knowledge of the matter? If the central question is what the defendant was told by his officers, why wouldn’t both sides want the officers on the stand (unless of course the chain of command has something to hide, which would support the defense case)?
ianal, but the defence can of course call witnesses in a court marshall. However, as I understand it, the court has greater discretion to refuse to hear the evidence or call the witness if it doesn’t think it directly relevant. I was once talking to a one of the defence laywers for one of the accused in the Abu Ghraib case (amazing who one meets at airports). Anyway, his point was his client was stuffed for several reasons. (i) There was no direct orders to do any of the stuff, although there may have been general hints (e.g. could you soften up these prisoners). Secondly, even if there had been direct orders, that is is still no actual defense, as it still would have been illegal (e.g. a soldier can (should) disobey orders to kill someone in cold blood)
Trial on the Merits. Once the court-martial members are selected, the case is ready to proceed “on the merits,” that is, evidence will be presented about the guilt or innocence of the servicemember. As with any civilian case, the military prosecutor (called a “trial counsel”) presents evidence on the charges. The servicemember on trial (called “the accused”) may confront this evidence and cross-examine any witnesses. The servicemember may also present evidence and, through the court-martial, compel witnesses to appear.
Just to clarify: a military trial is a court-martial (as confirmed by the JAG document). A court marshall is an official of the court, e.g. the person who is responsible for keeping the jurors happy.
The “Following orders” defense is utterly useless in this case - Article 92 of the UCMJ (failure to follow lawful orders or regulations) specifically excludes adhereance to illegal orders. An illegal order is, among other things, any order to violate any other part of the UCMJ, such as Article 134 (miscellanious offenses, such as indecent acts an soliciting indecent acts) and Article 93 (Cruelty and Maltreatment).
Knowledge of the UCMJ punative articles is required knowledge for advanced rank, and there’s Zero chance that he was unaware fo the criminality of his actions. Likewise, he certainly knew that any ‘orders’ he might have recioeved were going to be no defense whatsoever. That the Defense tried this on in front of a jury of senior NCOs and officers is unbelievably stupid - I can only conclude they had absolutely nothing else to try.
Why? The Bush administration has been quite open in its defense of “stress positions” and other techniques which work towards torturous acts, so how exactly should a Guardsman know exactly where this line is?
Go read the UCMJ Aticle 93 and and 134 (Google works fine), then come back to ask that question again, threemae. They’re very specific. To make grade, the punative articles of the UCMJ are, as I said, required knowledge, and that includes the National Guard, too.
You can’t put this one on the President - His actions were clearly in violation of very specific articles of law that he was required to understand.
I in no way have anything good to say about what happened at Abu Ghraib, and I agree that “just following orders” is not much of a defense.
However, in the real world, what are the likely consequences when an enlisted man–a reservist, no less, who might have been living a normal civilian life a month earlier–refuses an order from a regular Army officer in a combat zone? Does the Lt. or Capt. say, “thank you, private, for taking the time from your busy day to instruct me in the complexities of our international treaty obligations,” or does he say “do it or else,” and the “or else” might be punitive duty, formal charges or even assignment to a job that would likely get him killed? (I have heard that in Vietnam “troublemakers” somehow found themselves walking point just a little more than they might have expected.)
That is actually a factual question. Is there anyone here with military experience who has refused an order without paying a price?
The order I was given was illegal on its face (violation of safety procedures with no exigent circumstances), and aside from a few minutes of bluster by the idjiit O-ganger, the only consequence I faced was a few pats on the back from my peers, a stern warning from my LPO to “be sure I know my ground,” and the idjiit never ordering me to do anything again. Illegal orders have no standing. Now, in a hot combat zone, you’d better be damned sure of your ground before refusing an order, but this event didn’t take place in hot combat zone, and neither did the events in Abu Ghraib.
Limited consequences. Oh, he might have seen some petty retaliation, mayber even get jerked around a bit; such as being assigned unpleasant details, or transfer to another unit, or maybe even reduced marks on his next eval. But the consquences of not responding to illegal orders are nothing even remotely close to a Dishonorable Discharge and ten years in prison.
Honestly, I’d swear people think the military is full of mindless robots or totally criminal thugs, the questions people ask, and the way they ask them. The military is a meritocracy, full of people just like your brother, sister, mother or father, or the guy down the block. Where d’ya s’pose the soldiers come from? Not some other culture where only sterotypes apply, but rather from right out of your hometown. They’re normal people, with all the failings and virtues that normal people have. However, they’re generally smarter than average, and they’re trained to a high level of profesionalism, which is what makes Abu Ghraib such a scandal - Our soldiers are professionals, and the grossly unprofessional behavior at Abu Ghraib is shocking.
The “just following orders” argument may be irrelevant as a defence, once it is established that the (alleged) orders were clearly illegal. But it still forms an important part of the context in which the crime was committed and, if nothing else, it would be highly relevant when it came to sentencing. Hence the defence should certainly have been allowed to call any evidence it wanted on that point.