Thank you, mljucmj @ 25, for the feedback and the website link. You’re in good company, obviously, with the many principled military lawyers who have spent their lives practicing in, learning about, and improving our UCMJ-governed military justice system.

On this Veterans’ Day/Remembrance Day, it seems worth noting that some of the most atrocious government regimes in history, against whom many of our veterans fought and died, practiced a pernicious sort of selective humanity that our own federal Congress has now adopted – by endorsing selectively-abusive treatment of our military prisoners not on the basis of genuine need or justice or equal rights, but on the grounds of non-citizen vs. citizen, “them” vs. “us” and, all-too-clearly, Muslim vs. Judeo-Christian. Thereby bringing the United States down to the level of a depraved historical practice whose motto goes something like this:

Humanity for me, but not for thee.

The Congressional condemnation of the Goldstone Report is a recent example of this mindset in action. The leaders of Germany spared no praise or public solicitousness for the benefit of their own “worthy” people (never mind how they actually abusively used those people for their own self-aggrandizing ends), even as those leaders literally tried to exterminate another group of human beings in the name of their manufactured sins.

How are the leaders of Israel, and their enablers in the U.S. Congress, breaking away from that despicable pattern, by ceaseless praise and solicitousness for the “worthy” Jewish Israeli people, even as those leaders demonize another group of (relatively powerless) non-Jewish human beings for their over-hyped alleged “group” sins?

The same selfish, and self-serving, dynamic is demonstrated by our continued mistreatment, segregation, and demonization of the Muslim foreigners we hold in Guantanamo and elsewhere abroad. Our Congress – when it thinks of them at all – treats our military’s Muslim prisoners as guilty-by-way-of-detention-alone “foreign Muslims,” not as individual human beings, deserving of the same due process rights that we gave non-Muslim POWs – like the German NAZI prisoners we housed all over America during WWII – and alleged war criminals whom our military has successfully prosecuted in the past.

It’s also worth underscoring the fundamental separation of powers reason for the existence of more procedural rights for court-martial defendants than for civilian court criminal defendants. That’s the fact that military courts as designed by Congress operate wholly within one branch of government (unless and until an appeal reaches the Supreme Court), where the Executive Branch alone acts as judge, jury, and executioner. These special military courts exist because of the need for military discipline in a well-functioning Armed Force, and because we can’t transport our civilian courts abroad to war zones. Executive Branch-operated “courts” should be viewed as a necessary evil, and whenever corners start being cut to reach a pre-determined end, as the Military Commission show trials started by Bush and now blessed by a Congress under both Parties (and by a Democratic President) have consistently done (as have such commissions throughout their sordid past in this country), our hackles should immediately be raised.

We either have a third, Judicial Branch of government whose job it is to fairly enforce and interpret our law, except in the limited, and special, case of the Armed Forces, where there’s a unique need to enforce, and strengthen, the military chain of command, or we don’t.

The military discipline of our Armed Forces doesn’t require a military trial for the foreign prisoners at Guantanamo. And the intentionally limited-access set-up at Guantanamo, if anything, makes conducting trials of prisoners there more difficult, not easier, than using our regular civilian courts, for defense counsel, media, prosecutors, judges, and other staff who must travel off-shore under special military arrangement to reach its courtroom, as if traveling to a war zone.

The only thing “easier” about using the irregular Military Commissions at Guantanamo Bay in Cuba is obtaining the desired pre-judged end, regardless of its legitimacy. That, today, is the state of “American justice” as endorsed by the United States Congress (a Congress filled with former prosecutors, defense counsel and judges, all “officers of the court” who are violating not one oath of office, but two).

I give you Oklahoma’s Senator James Inhofe, speaking this Monday on the Senate floor:

Mr. INHOFE.

[...]

Some may ask: Why are we [Inhofe hopes] adding another Gitmo amendment? Hasn’t everything been covered by previous amendments? The answer is clearly no. In 2007, the Senate voted 94 to 3 on a resolution declaring:

Detainees housed at Guantanamo should not be released into American society, nor should they be transferred stateside into facilities in American communities and neighborhoods.

Then, on May 20, 2009, the Senate passed my bipartisan amendment with Senator Inouye to the war supplemental bill prohibiting the transfer, release or incarceration of Gitmo detainees in the United States or its territories. It passed 90 to 6.

Senator Inouye stated:

We have not provided funding for the closure of Guantanamo because the administration has yet to produce a credible plan.

Unfortunately, the supplemental conference deleted that language, allowing detainees to be transferred or transported to the United States for trial.

Then, in October of 2009, the Senate voted 97 to 3 to pass the fiscal year 2010 Senate Defense appropriations bill that included language that prevents funding for any transfers, releases or incarcerations of Gitmo detainees to the United States through fiscal year 2010. The bill is in conference now, and we don’t know what is going to be happening to it.

On October 28, 2009, the fiscal year Defense authorization and Homeland Security bills were signed into law that would allow transfer of detainees 45 days after the President provides a plan.

[...]

I could probably talk for 3 hours on this floor, explaining why it is we should not give up this valuable asset called Gitmo. There is no place else to send these people, and I cannot imagine why there are some people, including the President, who seem to be bent on bringing those detainees into the United States. They have tried Fort Leavenworth, they have tried Fort Sill in Oklahoma, and some 31 States have now passed legislation saying they are not going to be in any of their facilities. So I don’t think it is going to happen, but we need to get language in there that is consistent to make sure we keep that resource open.

By the way, this is one of the rarer resources that is very worthwhile. We have had this since 1907, and there is no place else in the world that is set up to both incarcerate and try detainees in a military court.

With that, I yield the floor.

I went back to correct some of my worst typos and now I jsut have big unreadable block of text. Feh.

Thta’s no incentive to tidy up my crappy typing

My point is, under the civilian system, the prosecution has near total control over the process, so long as s/he is willing to not bring some charges in order to restrict the subject matter that can be discussed in connection with the case.

The prosecution controls the investiagtion, the prosecution controls what is brought before the GJ, the prosecution can limit what is charged to protect a given subject matter.

My reading of the UCMJ indicates, in the passages quoted above, that in the military justice system, the defendant has a level of input into all of those stages, that is simply not available in the civilian sytem and therefore the outcomes will not be identical in terms of the subject matter that may be exposed.

I’m not saying that I have any clue what WILL BE exposed, how can I? My crystal ball is out for polishing. I am mearly pointing out that there is a bit more of a wild card aspect b/c the defendent has a role in shaping the outcome, that is not what the general public is used to from its familiarity with the civilian criminal justice.

And, yes, I realize that CIPA type secrecy protections exist, I’m not an idiot, but I also know, and the Libby trial dramatically illustrated it, that even with CIPA protections–a whole lot of dirty underwear can get exposed.

That’s the thing, no patriotic American wants to compromise national security, but I know a ton of frustrated prosecutors and FBI agents, and even a couple of JAG officers who are frustrated beyond belief when “national security” is used as an excuse to cover up malfeasance and nonfeasance.

In such circumstances, it seems that even CIPA protections, don’t seem to protect all of the misuse/overuse of the classification authority and things that never should have been secret in the first place, just have a habit of somehow coming out.

Which is a good thing.

That MIGHT happen here, and the extra input that a court martial defendant has is an additional factor that the government does not have total control over. That was my point.

As for the issue of pleading guilty to a capital offense in civilian court, I should have been more specific. I’m not sure about state or local courts but in federal court you can plead guilty to a capital offense. In courts-martial you cannot plead guilty to a capital offense even if you want to. The government has to prove its case if its wants to impose the death penalty.

As a bit of trivia, the U.S. military has not actually carried out the death sentence since the early 60′s (61′ I think). I witnessed to death penalty cases during my time in the Marine Corps. They took place back in 93 – 94 time frame. Both of those individuals are still sitting in jail.

In order for the military to carry out a death sentence, the President of the United States has to personally sign the death warrant.

I suspect that such reasoning was in part responsible for the fact that the Army was not warned about Major Hasan by intelligence officials. And I suspect there’ll be a severe reluctance going all the way to the White House to make such information available to Hasan’s defense team.

I remember b/c I was pregnant at the time and nearly fainted during the swearing in.

It was in DC and a very warm day.

I was wearing I cream colored linen suit with windowpane stripe on it and my ankles swelled up so badly that I wound up stopping on the way back to my hotel to buy flat shoes to wear intstead of my courtroom appropriate 2 1/2 in high heeled pumps.