Courts-Martial and Prosecutorial Discretion
While the issue of “prosecutorial discretion” has been in vogue lately in the SEAL cases, see e.g. this post and comments, this court-martial for missing movement due to an allegedly failed family care plan story, CAAFlog coverage and comments here, had me scratching my head.
First, I admit-as I must-that discretion relating to good order and discipline (GO & D) and typical prosecutorial discretion are two very different animals. While maybe a prosecutor would let the SEAL charges slide, as MG Cleveland’s letter said (PDF available here), there is a distinct GO & D reason to continue that case. As an aside, I should have passed along a “well played” to MG Cleveland and his staff for this line, ”The abuse of a detainee, no matter how minor, creates strategic repercussions that harm our nation’s security and ultimately costs the lives of U.S. citizens.” Second, I admit my only information is a news report or two.
All that being said, doesn’t prosecuting a single mom because her child care plan fell through and she chose to miss movement to take care of said child seem at least based on the public facts excessive? I know there is a GO & D message in there somewhere, but maybe this one is buried too deeply? The adesp option is available and seemingly the standard course in light of the continued inability of this soldier to deploy. I, of course, leave the question open to re-education based on new facts.
But, what I really can’t figure out are the pundits. The logic that comes out of this is that they will support a military commander’s exercise of UCMJ authority where the accused allegedly committed a UCMJ offense to provide care for her infant. But, if the accused allegedly obstructed an investigation and committed the initial offense for unknown reasons we will attack and question a senior military commander and special forces officer. Seemingly that difference accepts a good military character defense based on about as many facts as are available about this soldier who allegedly missed movement. I just can’t wrap my tiny little brain around that one.
We’re in agreement that you have a “tiny little brain.”
I wasn’t kidding, though maybe a bit flip, when I said that the governing principle is that the commentatriat likes people who deploy when called. There is more sympathy among those who have weighed in for servicemembers who deploy and arguably messed up while there than for those who are called to deploy and don’t.
That said, you won’t find me among those criticizing the decision to prosecute the SEALs. As I have said, an NJP refusal puts the CA is a difficult situation, and cries of prosecutorial discretion fall a little flat when the servicemember refuses to consent to disposition short of court-martial. Again, I don’t know all the facts (or even many of them) relating to the SEALs’ cases, and I surely don’t know enough to say that the CA, in the face of an NJP refusal, is wrong in deciding to go the court-martial route. But I think the explanation lies in the understandable willingness of the pundit class to be forgiving toward conduct occurring in a combat theater.
The Bromance with Super G continues…
No one can deny the GO&D issues that exist when service members unlawfully impede an investigation, and then turn down NJP (at least no one who has ever been in command, and is actually responsible for a unit’s GO&D).
When a Soldier doesn’t deploy because of child care issues, the GO&D issues are just as real, but not as obvious. The reality is that it is easy for a Soldier to manufacture a situation in which they lack child care, and are therefore undeployable. It is difficult for commanders to tell the difference between a genuine, and unexpected, lack of family care plan, and one that was created to avoid deployment.
If, Soldiers could avoid deployment, and simply be chaptered out (probably with at least a General discharge) it will effect the unit’s ability to succeed in their mission. We cannot have a military that allows service members to reap the benefits of service, but opt out whenever the going gets tough.
I’m not saying that every service member who’s family care plan falls through should be court-martialed. But some should. The fact that the command decided to take on the negative press, Congressional scrutiny, and all the other pain they will suffer by trying her, (rather than an expeditious chapter), leads me to believe that they feared genuine GO&D issues.
All that may be true, and I am not in fact questionning that there could be GO&D issues involved in the charges in the Spc. Hutchinson case nor that there may be facts yet unseen that aggravate the case. But, given that everyone with a brain admits taht the GO&D issues are more obvious in the SEAL cases, it defies logic that the public outcry over the SEAL cases has been enormous while the Hutchinson case gets a less outcry and the soldier ends up in pre-trial confinement?
True enough. It does not make sense.
Wait, why is she in PTC? That seems a bit extreme. Yes, I know, she missed movement, and ostensibly went AWOL to do so. But the reason for that was different than now.
She was probably in pretrial confinement because I read somewhere that the command was planning on shipping her to Afghanistan and prosecuting her there, and they did not want her to bolt when she found out.
Anon 18:46 – The SEALs are not being prosecuted for “doing what they do.” They are being prosecuted for doing what they should not do.
Are we sure she’s in PTC? The media reports seem to say she’s simply restricted to the base, which I’m inclined to believe, given the reports that the child returned to Georgia after the holidays.
confined to base is a lot better than PTC. I can understand the former, the latter would be insane.
I’ve left several messages on the previous blog about the Soldier being prosecuted for the FCP issue. While I understand the perception by some that her FCP “fell through,” there are others (including me) who believe that it was just poor planning/lack of planning on her part. The facts as presented in the media show that she flat-out rejected an offer from a group of people to take care of her child because they were strangers.
In the spirit of the blogger who likes to quote from A Few Good Men, I’d like to offer a comparison of this Soldier’s predicament to a scene in Forrest Gump–forgive me for not getting the lines exactly right and ad-libbing, but you’ll get the gist:
Scene: Forrest Gump and his momma are waiting at the bus stop for the school bus, it is Forrest’s first day of school. The bus pulls up and the driver opens the door. Forrest refuses to get on the bus.
Bus Driver: Are you going to get on the bus? This is the bus to school.
Forrest: Well my momma said not to take rides from strangers.
Bus Driver: Your momma is a smart woman, but you know, this is the bus to school. State of Alabama says you have to go school. if you don’t get on the bus, you don’t go to school. Then you and your momma are going to be in trouble.
Forrest: (thinks for a minute) My name is Forrest, Forrest Gump.
Bus driver: (smiles) And I’m Dorothy Harris.
Forrest: Now that I know who you are, we’re not strangers anymore.
Forrest gets on the bus, waves goodbye to his momma, and goes to school. End of scene.
Forrest wasn’t a smart person, but he was smart enough to figure out a way to go to school like he was supposed to AND obey his momma. If this Soldier-mother had done the same thing with this group that offered to take care of her kid, getting to know them so they would no longer be “strangers,” she’d be deployed, her son would be taken care of, and we wouldn’t be blogging about this.