Thanks, Mr. Moto. I couldn’t think of the guy’s name when I wrote that post.
I truly feel sorry for Ms. England. I’m not sure she even really knows what her role in this is; I think she was manipulated by Graner et al. into doing this. Now she’s left with a baby and the possibility of jail time.
FTR, Graner is now married to another player in this mess: Megan Ambuhl. Small wonder England hates his guts.
Robin
I think I’ll move this from IMHO to Great Debates.
It has been more than 30 years since I tried my last Court-Martial, but here is my take on this thing.
The military courts have long been very, very careful of what is called the providence of guilty pleas. Military judges are very particular that an accused who enters a plea knows what he is about and fully accepts each and every element of the offence without any evasion or reservation what so ever. There is no provision for a “no contest” plea or a stipulated finding of guilt or an ‘Alfred Plea” in military practice. This is because the system is more subject to command pressure that the civilian justice system. The procedure is so burdensome and time consuming that in the bad old days, despite official disapproval of the practice, in simple cases like absence without leave where the case could be proven by the offer and admission of morning reports as official records, we some times went ahead and had a trial rather than go through the extended colloquy between the judge and the accused with the judge ready to reject the plea on the least hint of an irregularity or inconsistence.
What seems to have happened in PFC England”s General Court-Martial is that the accused managed to get through the providency inquiry but ran into trouble when she started putting in evidence in the sentencing phase. The judge found the testimony offered by the accused to be inconsistent with her guilty plea. Once that happened the judge was required to reject the plea and enter a not guilty plea. The critical point is that there was a fatal inconsistency between PFC England’s guilty plea and evidence that PFC England presented. The Court-martial, that is the panel of officers and NCO appointed to be the fact finders, however, had already heard the accused confess to the offenses charged. You can’t allow that Court to try the case after hearing the confession as if there had never been a confession – a guilty plea is a confession. That means the whole case has to go back to the “convening authority,” in this case the commanding general of the First Armored Division, to set up a fresh court-martial. I am not sure that the cases has to go all the way back to the accuser, probably the accused’s company commander, and start all over again. It is likely that the CG just has to appoint a fresh Court to hear the case.
I don’t see anything sinister in all this, just a judge who was perhaps a little too cautious about finding an unacceptable inconsistence between the guilty plea and the evidence offered in mitigation of sentence. Given the importance of the case, the fact that there will inevitably be claims that PFC England was being scapegoated and the strange absence of prosecutions of the high sergeants and junior officers who were supposed to have been supervising and controlling PFC England and here comrades, I can’t say that the judge’s caution was unjustified.
Thank you Spavined Gelding, for doing a better job explaining this situation than the Washington Post did. Or the New York Times.
I was under the impression that command responsibility was as absolute in cases of omission as in commision (leaving aside the question of whether the lack of supervision was deliberate or not).
The UCMJ does not make command responsibility absolute. If a soldier is ordered to perform an illegal act by a superior, it is illegal for him to obey.
A soldier may not attempt to dodge responsibility for grossly illegal activity by claiming to be following orders.
Separate guilt may attach to the command in this case for ordering abuse (in a worst case scenario) or for allowing a gross breakdown of discipline. Neither of these things can excuse the behavior of the soldiers involved.
Okay, let me see if I have it:
If England pleads guilty, that means she admits to what she did, and admits that she KNEW it was wrong, that it was unlawful. Therefore, she can’t say, “Well, yeah, I didn’t, but I was only doing what I was told.” Because that would be saying, “I’m not really guilty, I just made a mistake and I didn’t mean it.”
Am I right?
While I agree that any member of the armed service has the legal obligation to reject any orders given to them that are not legal, I have to say that as someone that has refused to obey an order as an enlisted member, it’s not an easy thing to do. Even knowing that the order in question could have placed me in grave danger, when the officer that I was refusing said flat out to me “Petty Officer Atrael, are you telling me that you’re refusing to follow my orders?”, I almost caved. I was an E-5 at the time with 5 years in and knew that I was right. I can’t imagine how much more difficult it would be on a Private in the Army. So unless you’ve been in that position, cut them all a little slack with the “They should have refused to follow orders” arguments. That’s not as easy as it sounds. I’m not excusing what they did, I’m just saying that it is very difficult for an enlisted member to refuse to follow the orders of someone that’s been placed above them in their chain of command.
I was an OS2 in the Navy myself, so this isn’t a statement I make lightly.
The whole lawful order - unlawful order thing has been a perpetual problem. The tendency is to cut the soldier a little slack when there is a fair argument about the propriety of the action directed and there may be some question about whether the soldier should have known better. The classic example is the killing of prisoners when keeping and protecting them jeopardizes the mission and your own life and just abandoning them is no improvement. The fight we had here a few months ago when the Marine shot a (two?) wounded Iraqis is a fair example of the issue – I note that the USMC has now decided that the Marine’s behavior was compatible with the law and the rules of engagement. In other words, the black and white case is fairly rare. Seldom do you see a situation in which the young trooper is ordered to go into town, rob the bank and bring the loot to his First Sergeant. Thank God, the MyLai situation is so rare as to be an aberration.
Among small unit leaders there is a tendency for the whole thing to turn into a CYA exercise where you first ask “by whose order,” and then ask for written conformation. It is only when you have the written and explicit order safely in you pocket and you have protested the order saying a clearly as you can why you think it unlawful that you tell the superior that you are not going to do it. You refuse to obey a direct and explicit order at your peril. Usually this is done in a very short time frame and as often as not the demand for a written order causes a judicious re-thinking of the problem.
Some times you get some strange situations. In the early 70s when elements of the 3d Infantry Division were being deployed to Lebanon the troops were sent to the local legal office for wills and powers of attorney. One of the legal officers took it upon himself to advise the kids (for kids is what they were) that the Lebanese incursion was unlawful. When some of these young men later refused to get on the airplane there was a lot of screaming and yelling. I don’t think that the soldiers were punished but the officer received an abrupt transfer to an isolated post in Korea…
My own feeling about PFC England’s case is that there are a couple of Lieutenants, Captains, Majors and Lieutenant Colonels who are keeping a low profile and not doing any talking. Low level enlisted people simply do not stage horrors this elaborate and this prolonged on their own hook.
I’m sure it wouldn’t surprise you to learn that PFC Charles Graner beat prisoners, doused them with pepper spray, may have put a razor blade in a prisoner’s food. I’m sure you wouldn’t be shocked that he threatened someone weaker than him with death, threw a woman down the stairs, or laced a fellow guard’s coffee with Mace.
What might surprise you, though, is that Graner did these things as a prison guard and wife beater in Pennsylvania, long before deployment to Iraq.
Now, tell me again how he couldn’t possibly come up with this on his own.
I’m sorry to have taken so long to get back to you on this, Mr. Motto – the best laid plans of mice and men, you know…
I don’t question than Charles Graner was a bad actor ( I have seen him ID’ed as a SP4, a Corporal and as a PFC - beyond doubt as a disciplinary barracks prisoner he is a PV1 now). The point is not that this guy and others could not have thought up this devilment on there own – although they all seem to claim it was at the suggestion of the interrogators.
The point is that these people had squad leaders, platoon sergeants, platoon leaders, company first sergeants, company executive officers, company commanders, battalion sergeants major, battalion executive officers, battalion operations sergeants and officers, battalion commanders, brigade sergeants major, brigade operations NCOs and officers, a brigade staff judge advocate, a brigade medical officer, a brigade executive officer and a brigade commander all of whom had an affirmative duty to know what was going on and to control the situation. Apparently (with the emphasis on “apparent” as in obvious to anyone who bothered to look), none of those people in the MP guards direct chain of command bothered to look.
The only person in chain of command who has caught it in the neck is the brigade commander, who is a woman and a reservist to boot. I just can’t accept that none of the people whose job it was to command and control are not culpable. Either we have a wilful dereliction of duty up and down the chain of command or these young, low grade MPs were doing precisely what they were expected to do. I was a soldier too long, from carrying a rifle up to theater army general staff, to accept incompetence as the explanation for this.
My suspicions are heightened by the revelation that the commander of the Military Intelligence Brigade that was running the cell blocks has been administratively disciplined for dereliction, not for bad supervision but for bad training.
Something is rotten in Denmark, here. Sooner or later it will come out. I can only hope it is not as ugly as I fear.