Military Justice Oxymoron

Military justice is in the news again with the dismissal of dozens of charges against a terrorist who was tried in a federal court and nevertheless convicted on one charge that will put him behind bars for a minimum if 20 years. Evidence that would have likely convicted him of more serious charges was tossed out by the judge because it was tainted by various illegalities, including likely torture. Several prominent Republicans are currently using the so called defeat of the government as proof that President Obama should have had him tried in a military court where convictions are easier.

I have some small experience with military justice and it is of interest only because it pertains to the culture of the military jury pool, so to speak. Though I am long out of the US Army, I doubt very much if the culture of the Army has changed materially. Cultures change slowly and, if anything, I believe prejudices may have hardened. The attitudes to which I refer are not just confined to junior officer ranks either. I believe they go clear to the top, but they may be tempered by the gray hair to be found in the most senior ranks.

When I reported to duty in Germany, as a "butter bar" lieutenant, I was handed several duty assignments. Among them was Defense Counsel for the battalion, probably because I was a graduate of a distinguished Ivy League university. Almost immediately, I noticed a slight prejudice for the prosecution. "Bring the guilty bastard in" was my introduction. The fact that one of the board's officers was giving me the finger as he was sworn in was another indication even the dullest defense counsel might have noticed. In a different case, a negative verdict was reached in something like 19 minutes, a record I was told. It didn't take long before I got angry, and on the first case that wasn't a negative slam dunk, I used that wonderful education to secure an acquittal, the first one anyone in my battalion could remember. The level of justice had been raised a tiny bit and hereafter the cases were argued more seriously. There were always good natured, out of session pleas from the "judges" to move things along because "Happy Hour starts in 20 minutes" or "to can the exculpatory evidence stuff because you know as well as I that he's as guilty as sin." I knew what was going to happen as soon as the battalion commander commented briefly and with a slight smile on my victories, and sure enough I was appointed Trial Counsel and put in charge of prosecuting future cases. Nothing really wrong about that, but it all left me a bit dubious about the average level of justice one could expect in the military justice system. Maybe prejudice learned as junior officers diminishes with age and higher rank, but I'd hate to have to depend on it for my freedom or life.

There's another dimension to this issue, of course; could a civilian court handle a terrorism case? The answer is, of course and the proof is there for all to see. We have plenty of tough, fair judges who will honor our heritage and produce justice. We've always had plenty of these men and their ranks are now being supplemented by brilliant women. There were similarly explosive cases in the last century and most were handled with great aplomb. Harold Medina's guidance of a famous communist case in the 1940s comes to mind. Today's terrorist trials have been made more difficult by their nature and the fact that we bungled the first round with secret detentions in foreign countries and torture under which most people would admit to just about anything. The more acts of terrorism are assigned to solo ideological unkowns, the more reason they should be tried locally as part of the criminal justice system. To do otherwise will weaken our American character which now wears a bit of tarnish that needs to be removed. I believe it was a mistake not to identify the previous administration's brand of justice for what it was, a disgrace of American values.