Comments on: CAAF affirms Abu Ghraib dog handler’s conviction [explicit language advisory] http://www.caaflog.com/2010/02/05/caaf-affirms-abu-ghraib-dog-handlers-conviction-explicit-language-advisory/ Covering the Military Justice System Sat, 11 Feb 2012 03:34:35 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: Anonymous http://www.caaflog.com/2010/02/05/caaf-affirms-abu-ghraib-dog-handlers-conviction-explicit-language-advisory/comment-page-1/#comment-12085 Anonymous Sun, 07 Feb 2010 00:27:44 +0000 http://www.caaflog.com/?p=4530#comment-12085 interesting that Smith's co-conspirator was acquitted of generally every charge-to include the conspiracy. Not surprised that the CA didn't disapprove Smith's findings, however. The Army needed a scapegoat for the high level screw ups that were occurring at AG. Who better than the E-5 taking orders from the O-6 or O-7. interesting that Smith’s co-conspirator was acquitted of generally every charge-to include the conspiracy. Not surprised that the CA didn’t disapprove Smith’s findings, however. The Army needed a scapegoat for the high level screw ups that were occurring at AG. Who better than the E-5 taking orders from the O-6 or O-7.

]]> By: hmm http://www.caaflog.com/2010/02/05/caaf-affirms-abu-ghraib-dog-handlers-conviction-explicit-language-advisory/comment-page-1/#comment-12075 hmm Fri, 05 Feb 2010 20:03:03 +0000 http://www.caaflog.com/?p=4530#comment-12075 Well no, the point of the opinion is that the orders weren't given. CAAF doesn't reach whether using an MWD during interrogation would be manifestly unlawful, had the order been given (thus defeating the defense). I suspect that's not a 5-0 question at CAAF. Holder has said dogs aren't per se torture Well no, the point of the opinion is that the orders weren’t given. CAAF doesn’t reach whether using an MWD during interrogation would be manifestly unlawful, had the order been given (thus defeating the defense).

I suspect that’s not a 5-0 question at CAAF. Holder has said dogs aren’t per se torture

]]> By: jonas http://www.caaflog.com/2010/02/05/caaf-affirms-abu-ghraib-dog-handlers-conviction-explicit-language-advisory/comment-page-1/#comment-12074 jonas Fri, 05 Feb 2010 19:49:55 +0000 http://www.caaflog.com/?p=4530#comment-12074 why does everyone seem to ignored the fact that service members are expected to come to the military with a good dose of good old American common sense?. Find me a military member that believes menacing the enemy PRISONER with your MWD is logical, legal or even meets the smell test of American common sense?. Folks, this is no "charge the damn hill soldier or I'll shoot you down right here!!" Its easier to debate lawfull orders that were questioned or violated in the heat of battle or some other emotionally charged atmosphere. This was simply plain depravity committed by people who have disgraced the uniform and there is simply no cover here Caaf got this right. CAAF could have simply save us all the gymnastics it was'nt necessary. why does everyone seem to ignored the fact that service members are expected to come to the military with a good dose of good old American common sense?.

Find me a military member that believes menacing the enemy PRISONER with your MWD is logical, legal or even meets the smell test of American common sense?.

Folks, this is no “charge the damn hill soldier or I’ll shoot you down right here!!”

Its easier to debate lawfull orders that were questioned or violated in the heat of battle or some other emotionally charged atmosphere.

This was simply plain depravity committed by people who have disgraced the uniform and there is simply no cover here Caaf got this right.

CAAF could have simply save us all the gymnastics it was’nt necessary.

]]> By: Atticus http://www.caaflog.com/2010/02/05/caaf-affirms-abu-ghraib-dog-handlers-conviction-explicit-language-advisory/comment-page-1/#comment-12066 Atticus Fri, 05 Feb 2010 14:38:30 +0000 http://www.caaflog.com/?p=4530#comment-12066 I think we delude ourselves if we do not embrace the fact that CAAF, like any other appellate court, engages in an outcome-determinative deliberative process in many cases. When a military panel (with much more street smarts and real world experince than civilian juries - a true jury of one's peers) reaches a finding in a case with lots of media notoriety, it's difficult to bounce it on appeal. Rather than being the legal/logical computers we might like them to be, appellate judges are human beings like everyone else. Especially when dealing with an orders case as CS notes. Orders are presumed to be legal, and a service member violates them at his or her peril. How many times have you actually seen a MJ or a CCA strike one down as being illegal? Although their cases did not involve orders, Ashby and Schweitzer had some great arguments too, but you can rest assured CAAF was reluctant to bounce either of those cases based on what those guys did and how much notoriety ensued. I think we delude ourselves if we do not embrace the fact that CAAF, like any other appellate court, engages in an outcome-determinative deliberative process in many cases. When a military panel (with much more street smarts and real world experince than civilian juries – a true jury of one’s peers) reaches a finding in a case with lots of media notoriety, it’s difficult to bounce it on appeal. Rather than being the legal/logical computers we might like them to be, appellate judges are human beings like everyone else. Especially when dealing with an orders case as CS notes. Orders are presumed to be legal, and a service member violates them at his or her peril. How many times have you actually seen a MJ or a CCA strike one down as being illegal? Although their cases did not involve orders, Ashby and Schweitzer had some great arguments too, but you can rest assured CAAF was reluctant to bounce either of those cases based on what those guys did and how much notoriety ensued.

]]> By: Anonymous http://www.caaflog.com/2010/02/05/caaf-affirms-abu-ghraib-dog-handlers-conviction-explicit-language-advisory/comment-page-1/#comment-12065 Anonymous Fri, 05 Feb 2010 14:28:27 +0000 http://www.caaflog.com/?p=4530#comment-12065 We have a gap in our law. C.J. Effron has hinted at this during a couple of recent oral arguments. An accused could be caught between two distinct legal principles: 1) orders are presumed lawful so disobey them at your peril; but 2) if you obey an order that the judge finds to be unlawful as a matter of law, you get no defense. Could there not be a situation where the order itself would be entirely lawful but for some technical reason not known to the accused, udner which the accused's obedience was entirely reasonable? We have a gap in our law. C.J. Effron has hinted at this during a couple of recent oral arguments. An accused could be caught between two distinct legal principles: 1) orders are presumed lawful so disobey them at your peril; but 2) if you obey an order that the judge finds to be unlawful as a matter of law, you get no defense. Could there not be a situation where the order itself would be entirely lawful but for some technical reason not known to the accused, udner which the accused’s obedience was entirely reasonable?

]]> By: Cloudesley Shovell http://www.caaflog.com/2010/02/05/caaf-affirms-abu-ghraib-dog-handlers-conviction-explicit-language-advisory/comment-page-1/#comment-12064 Cloudesley Shovell Fri, 05 Feb 2010 13:19:19 +0000 http://www.caaflog.com/?p=4530#comment-12064 The Court seems to engage in some complicated gymastics to get to the result. Obedience to orders is the touchstone of good order and discipline. That's why it is so difficult for an accused to win in a failure to obey orders case because orders are always lawful unless patently illegal. Has the Court just set the stage for subordinates to nit-pick and question orders because there might be an administrative defect somewhere up the chain of command? Or maybe I'm making a mountain out of a molehill. The Court seems to engage in some complicated gymastics to get to the result.

Obedience to orders is the touchstone of good order and discipline. That’s why it is so difficult for an accused to win in a failure to obey orders case because orders are always lawful unless patently illegal. Has the Court just set the stage for subordinates to nit-pick and question orders because there might be an administrative defect somewhere up the chain of command? Or maybe I’m making a mountain out of a molehill.

]]> By: Anonymous http://www.caaflog.com/2010/02/05/caaf-affirms-abu-ghraib-dog-handlers-conviction-explicit-language-advisory/comment-page-1/#comment-12063 Anonymous Fri, 05 Feb 2010 12:47:01 +0000 http://www.caaflog.com/?p=4530#comment-12063 Is this the first time C.A.A.F. has cited the Geneva Conventions as part of a decision? Anyone know off the top of their head? Is this the first time C.A.A.F. has cited the Geneva Conventions as part of a decision? Anyone know off the top of their head?

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