The statement by Rep. Burton below in the two recent SEAL courts-martial cases (and for that matter most of the congressional criticism in these cases) should give pause to every military justice practitioner and convening authority and raise the question of whether such statements by a member of Congress undermine the foundation of the military justice system–good order and discipline. Justice Rehnquist summed up that foundation nicely in Goldman v. Weinberger, quoting from prior cases, “[T]he military must insist upon a respect for duty and a discipline without counterpart in civilian life, in order to prepare for and perform its vital role. . . . The inescapable demands of military discipline and obedience to orders cannot be taught on battlefields; the habit of immediate compliance with military procedures and orders must be virtually reflex with no time for debate or reflection.” Goldman v. Weinberger, 475 U.S. 503, 507-08 (1986) (internal quotations and citations omitted).
Rep. Burton’s statements question the very need for military justice. It characterizes the recent acquittals as welcome victories, then adds, “but I maintain my position that these brave men should never have been put in this situation in the first place. Beyond the flimsy evidence and the fact that al-Qaeda terrorists are trained to claim torture or abuse by their captors, the very idea of a most-wanted terrorist sitting in a court room and testifying against our elite soldiers is absolutely disgusting.” It is almost as if Rep. Burton has no memory of the implications of detainee mistreatment and the failure to police it in both counter-insurgency strategy and good order and discipline.
First, the principle that humane treatment of your enemy will only enhance your efforts on the battlefield is as old as the Geneva Conventions and has been reiterated more recently in US Counterinsurgency doctrine. The Army and Marine Corps Counterinsurgency Field Manual explicitly cautions that “[P]articipation in COIN operations by U.S. forces must follow United States law, including domestic laws, treaties to which the United States is party, and certain [host nation] laws. . . . Any human rights abuses or legal violations committed by U.S. forces quickly become known throughout the local populace and eventually around the world. Illegitimate actions undermine both long- and short-term COIN efforts.” MCWP 3-33.5, at 1-24 (Dec. 15,2006). On the point of detainee abuse, the Manual specifically instructs, “Leaders and units unprepared for the pressure of active operations tend to use indiscriminate force, target civilians, and abuse prisoners. These actions can threaten the popular support and government legitimacy essential for COIN success. Badly disciplined and poorly led security forces become effective recruiters and propagandists for insurgents.”
Second, the statements seemingly contend that good people never do bad things. This fascinating research (and book I now have to get, The Lucifer Effect: Understanding How Good People Turn Evil) by former Amer. Psych. Assoc. President Philip Zimbardo makes the case, though I don’t know if it does so intentionally, that small bad acts, particularly in the military environment, can lead to serious good order and discipline issues. Zimbardo’s book at Chapter 15 compares his famous Stanford Prison Experiment and the actions of soldiers at Abu Ghraib. Dr. Zimbardo said in the article, situations “make people take a small first step toward a harmful act with a minor, trivial action and then gradually increase those small actions.” Zimbardo concluded that “the Abu Ghraib soldiers’ mental state–such as stress, fear, boredom and heat exhaustion, coupled with no supervision, no training and no accountability–may have further contributed to their evil actions.” What I think is relevant for purposes of military justice, is that the research suggests the tools of good order and discipline should not be reserved for bad apples in the unit and heinous acts of abuse.
Thus, MG Cleveland’s action to administratively punish what everyone believed to be a relatively minor act of alleged abuse and accompanying allegations that respected servicemembers covered up that abuse, is on solid footing in US policy and the need to preserve good order and discipline. Neither Congress nor the Art. III courts have the institutional “expertise in military affairs” to make these case by case judgments. Congressional intervention in this case probably undermined commanders’ authority. As to the effect of MG Cleveland’s acts had on soldiers, sailors, or Marines, I don’t see a negative effect if his actions cause them to pause in a similar situation. These cases deal with allegations about the treatment of a bound and blind-folded detainee in US custody, not split second battlefield decisions.