US Soldiers killing Afghani civilians.

Great Debates
61

He’s arguably not entitled to trial by a jury of his peers because his crime occurred in Afghanistan. Would a French jury in my hypothetical be constituted of “his peers”?

Anyway, you are putting the cart before the horse. How do you know he wouldn’t get a fair trial in Afghanistan, given US involvement?

We didn’t even send our soldiers to testify in British investigations into friendly fire death inquests. Kind of hard to claim that we’re not submitting them to Afghan jurisdiction because they wouldn’t get fair trials.

62

I don’t understand a couple of things. First, it’s been stated that he surrendered. Who did he surrender to?

Second, what is a traumatic brain injury? he had suffered that after a rollover accident. Are they talking PTSS or a physical brain injury?

63

Situation remains murky, but the latest story I’ve heard (a matter of minutes ago) said he simply walked back to his base and turned himself in.

64

[QUOTE=Really Not All That Bright]
He’s arguably not entitled to trial by a jury of his peers because his crime occurred in Afghanistan. Would a French jury in my hypothetical be constituted of “his peers”?
[/QUOTE]

Correct me if I’m wrong here, but he was captured and interred by US troops while under US jurisdiction on a US base, no? That would mean he’s subject to UCMJ. No?

But to answer your question, no, I don’t suppose a French jury would be, technically, a trial by ‘his peers’…but, considering the fact that the French are known for their judicial system, I don’t think many would quibble about this theoretical murdering American getting a fair trial in France. While I seriously doubt that anyone in this thread REALLY thinks that a US soldier fighting in an unpopular war in Afghanistan and under these circumstances is going to get anything like a fair trial in this case. Or do you really think he’d get a fair trial? And, if not, would you be comfortable if they shot him, hung him or chopped off his head? Hell, even if he did get a fair trial, would you really be comfortable with them doing those things in any case? Are you always for the death penalty? What about if the man is insane, as seems likely? Still in favor of the death penalty in that case? And are you still in favor of it if we are talking about in the US?

Um…because they aren’t exactly known for their fair trial system, even with the current ‘democratic’ government in charge? You aren’t seriously making a case here that he WOULD get a fair trial in Afghanistan, are you?

I must have missed it…what are you talking about, here? Nothing to do with this case, or am I wrong?

I’d say it’s pretty easy to say that we aren’t submitting our soldiers to Afghani law, such as it is, BECAUSE they wouldn’t receive a fair trial. While they WILL receive a fair trial with due process by the UCMJ…well, that and the US military has historically wanted to try and sentence their own in cases such as this. Though there have been exceptions where US personnel were turned over to local authorities for trial…but the presumption there would be that they’d GET a fair trial under local law. Or do you disagree that a soldier is going to get a fair trial under the UCMJ? And if so, what do you base that on?

-XT

65

A key issue is the element of possession.

It’s one thing if you are arrested for something that wouldn’t be a crime in America over in say, Singapore. I could see America’s State department trying to step in if we had someone facing death for drug smuggling, but Singapore has a lot of other crimes we don’t have, most of those, you will face the punishment as required under the laws of Singapore.

You committed an offense in their jurisdiction, and most importantly “they’ve got you.” That isn’t even really a matter that concerns the U.S. court system.

However, if they charge you with something that isn’t a crime in the United States, and you escape to the United States, we are not going to extradite. We won’t extradite people for things that aren’t also a crime in the United States. Namely because it is explicitly noted in all our extradition treaties, but it is explicitly noted because no American court would extradite an American citizen to some crazy foreign country that wants to chop their hands off for something that isn’t even a misdemeanor in the United States.

That isn’t a perfect analogy to this situation because the soldier involved committed an offense that is certainly a crime in the United States. However, I can also say it is highly unlikely an American court would ever extradite an American citizen to stand trial in countries like Aghanistan, Iran, Turkmenistan, Myanmar, North Korea etc. Even if I go into North Korea, steal a bunch of priceless gems from the Dear Leader’s palace, and escape to America, no America court is going to extradite me. Not because my action wasn’t criminal, but because no American court will subject an American citizen to the court system of a country like North Korea (we also do not have a formal extradition treaty, so there would be nothing to compel our executive branch to even try to extradite, and they wouldn’t.)

We have possession of this guy, we can’t morally give him over to a court system where we do not believe he will receive a fair trial. It would be an immoral act. It would be a different matter if we didn’t have possession of him, but we do. It’d be a different matter if we were talking about turning him over to Germany, Japan, South Korea, or some other country that has a criminal justice system where you can expect a fair hearing and due process. Not the same sort of legal process as you’d find in America, but you still have rights and protections.

Just because this man has acted immorally that does not excuse us acting immorally towards him.

66

…hmmm, interesting tangent. If this guy had been captured by the Afghan authorities: what would happen then?

67

No. He’s subject to the UCMJ because our agreements with the Afghanistan government give the US exclusive criminal jurisdiction over our troops. If this same incident had happened in, say, Japan, he would be subject to the Japanese courts even if he turned himself into US authorities on a US base.

68

Possession is immaterial, but he’s subject to the UCMJ regardless of whether he is criminal culpable under the laws of another state. Under our Status of Forces Agreement with Afghanistan, we exercise exclusive jurisdiction over the criminal acts of US servicemen, but we can have him tried in a third country by consent.

I don’t know. I don’t know anything about the Afghani justice system. Do you?

Nothing to do with this case, no. The point is that if we won’t even send US servicemen to testify in friendly states’ fact-finding proceedings where they aren’t on trial, it’s kind of hard to claim the reason we aren’t allowing the Afghanis to try this dude is because we don’t believe in their justice systems.

69

[QUOTE=cckerberos]
No. He’s subject to the UCMJ because our agreements with the Afghanistan government give the US exclusive criminal jurisdiction over our troops. If this same incident had happened in, say, Japan, he would be subject to the Japanese courts even if he turned himself into US authorities on a US base.
[/QUOTE]

If that’s the case then there doesn’t seem to be much of a debate. If we have an agreement with the Afghani government on that seems to be it.

[QUOTE=Really Not All That Bright]
Possession is immaterial, but he’s subject to the UCMJ regardless of whether he is criminal culpable under the laws of another state. Under our Status of Forces Agreement with Afghanistan, we exercise exclusive jurisdiction over the criminal acts of US servicemen, but we can have him tried in a third country by consent.
[/QUOTE]

Ok. But it seems a moot point since I seriously doubt we would turn him over to Afghanistan for trial. It also seems moot, unless you think he won’t get a fair and just trial under the UCMJ.

The only things I know about the Afghani justice system are half remembered stories of summary executions of militants and insurgents in the early days, coupled with how the justice system ‘worked’ during the Taliban era, or during the various civil wars that have raged since (and before) the Soviet invasion era. I assume it’s better today than it was under the Taliban, but I doubt that in the environment of constant warfare and shaky government that it’s all that much better today than it was before the invasion. I seriously doubt that a US serviceman could or would get a fair trial, even if the the reason for the trial wasn’t so explosive (the murder of women and children is something that cuts across national boundaries and inflames even the most peaceful of people…and your average Afghani isn’t exactly counted among the worlds notoriously peaceful, by any measure).

And yet we have examples of the US doing just that in other countries. I believe Japan was used in just such an example. So, I’m unsure what your cite proves. It certainly doesn’t prove that this man could get a fair trial in Afghanistan, nor that using this as one of the reasons (besides the treaty thingy) is some sort of subterfuge, and that is the issue under discussion.

-XT

70

I had an idea today that I can’t shake. I have this feeling, given what I have heard about this, that the guy might have been in an Ambien stupor.

People can eat all the food in their refrigerators or drive a car while asleep on Ambien. Apparently the base was only 500 meters from the place where the murders took place. Could a soldier go through the well rehearsed motions of a night raid and then carry out executions while on Ambien?

Ambien sleeping pills linked to bizarre sleep walking behavior, including unconscious driving of vehicles and wild hallucinations

71

:dubious: I’ve been taking Ambien (or the generic version) for over 5 years now, and I’ve never had anything like that. I doubt you could do complex actions like that under the influence of Ambien or any other sleep aide.

Either the guy is a latent mass murderer, or he snapped due to emotional stress, perhaps over some sort of personal loss. I haven’t heard the details of this, but IIRC this wasn’t his first tour, and he was stationed in one of the real hot spot regions, so it doesn’t seem out of the realm of possibility that he just went nuts or mentally broke.

Or, he could just be an evil bastard that decided to let his inner killer off the reservation, but that seems less likely to me. I’ll await details, but I’d think Ambien as the culprit is pretty far fetched.

-XT

72

Legally, the US Army would have probably have sent a JAG to the Afghan prison where he was held and would have requested his release for a court martial under the UCMJ.

Practically, they would have returned him in a sack.

73

We’d probably force them to give him back. But I could at least accept the validity of cries of hypocrisy and etc if that went down.

74

That’s a good practical consideration I hadn’t considered. There is really a moral and a legal debate here. Legally I don’t know that without a SOFA in place that would allow for it there is any way we could transfer him from an American court system to the Afghan court system. Any attempt most likely would result in a lawsuit that blocked it, and your point about holding the trial over there would also raise serious issues on appeal.

75

Actually he would still be subject to the UCMJ even under your scenario in Japan.

The actual SOFA with Japan would consider this incident one in which both parties have jurisdiction. Our SOFA with Japan resolves issues in which both parties have jurisdiction in the following way:

In this specific case, the murder of Japanese civilians would mean the Japanese had the primary right to exercise jurisdiction. However, that does not mean the soldier would not be under the jurisdiction of the UCMJ. Soldiers in the military are always under the jurisdiction of the UCMJ. You will not always be tried under the UCMJ, sometimes you’ll be tried in an American civilian court, sometimes you might tried in a host country court, but whatever happens there you are still subject to the UCMJ, so if those courts pass on it you can still be tried before a courts-martial.

I won’t even get into the specifics with Japan, but the situation there was actually not as clear cut as this. When we signed the SOFA, there was a secret agreement that the Japanese would never exercise their right of primary jurisdiction unless we said they could. This came out in the late 90s or early 2000s to some controversy in Japan (and was the reason many controversial cases over the years in which American servicemen raped or murdered Japanese civilians were tried in the military court system and not in the Japanese criminal court system, even though the Japanese had primary right over those cases.)

However, no SOFA can override constitutional rights. I find it plausible the SCOTUS is fine with turning soldiers over to South Korea, Japan, or Germany. I do not believe there is precedent for turning them over to a country like say, Iran, North Korea or etc. That would be constitutionally tested to say the least.

76

Okay maybe so, but are the actions really too complex? People have been known to log into their computers and enter credit card numbers to place online orders, or drive down the highway, all while asleep on Ambien. All this incident required was 500 steps, a few shouted words, and the emptying of a clip into presumably compliant, stationary, cowering targets.

ETA: Well, now I am reading that the two places the incidents took place were four kilometers apart, which does require more complex actions.

77

Possession is absolutely not immaterial. As long as an American citizen is in our position they can file a motion to block a transfer to another jurisdiction. That is where it becomes key. If they file a motion to block their transfer to the Germans or the Japanese, I suspect the SCOTUS precedent already cited would end in the soldier being quickly transferred after his motion failed in court.

If we tried to transfer him ad hoc to a country where our SOFA does not allow for it, and where potentially the SCOTUS might find reason to doubt the ability of that country to conduct a fair trial I think you’re talking about a very different matter.

Possession is important because anytime we have possession of an American citizen they are subject to the constitution. (See Hamdi for proof of that.) Which means if we try to turn them over to another jurisdiction they can file a motion to stop it, I’m not saying the motion would always be successful (and it wouldn’t be in many situations), but trying to turn someone over to the Afghan court system might be difficult. Especially if the SOFA explicitly says we wouldn’t do that, the soldier could even argue we’re trying to punish him in a ex post facto manner.

Possession almost makes it important morally. Morally I have no problem turning someone over to the Japanese. Morally I’d be opposed to turning the worst American murderer over to the North Koreans. We are not allowed to act immorally towards immoral people just because they are immoral. The undermines the entire concept of morality. The Afghan court system probably isn’t anywhere near as bad as the North Korean one, I genuinely don’t know much about it. If there are legitimate concerns about his ability to receive a fair trial in an Afghan court that would be a big moral issue.

78

Are the Afghans even asking?

79

You mean the Afghan court system which a few years ago sentenced a man to death for “abandoning Islam” to become and atheist and only relented at the last moment, declared the man insane and ordered him deported?

You’d trust those medieval barbarians?

Please, they make Khomeini look like Carl Sagan.

80

Its not about limiting the consequences to him, but about limiting the consequences for everybody else. Why would the Afghan gov. want to try him there? Where? What secure location? If a thousand outraged Afghanis show up howling for blood, then what? They don’t have enough trouble, they need to borrow some?