Our military has been involved in continuous combat operations for the past 8½ years.  Over that period, a number of prominent military justice cases have arisen from U.S. servicemembers killing individuals in the theater of operations.  Some have argued that the military dealt with such cases too harshly while others have argued that the military justice system has been too lenient.  There’s a new entry on the “too harshly” side of the debate — this op-ed by Diana West.

9 Responses to “Does our military justice system deal with alleged combat-related crimes too harshly or too leniently?”

  1. Anonymous says:

    The one area we fail our Soldiers is PTSD.

    I don’t know how many times as a defense attorney I saw the same pattern:

    1. Pre-deployment Soldier is stellar. No issues, rises in ranks fast, command loves him.

    2. Soldier deploys, does well, or at the very least does his job in a combat environment.

    3. Soldier comes back with PTSD, fights, drugs, stealing, etc.

    4. Soldier gets C-M, gets a BCD and some jail time, but it’s light jail time so every thinks he got off easy.

    That pattern is a pretty clear indication that the war experience is what is responsible for the misconduct, not the Soldier IMO and instead of at the very least doing more Chapter 5-13s/17s with honorable or at least Gen under honorable conditions discharges for these folks (or better getting real medical treatment and rehabbing these folks if possible) we do the C-M and get rid of them because who has time for “problem Soldiers.”

    Oh, and we all know PTSD is a joke anyways, right?

  2. Thomas F. Hurley says:

    I am inclined to agree with this lady, but this issue is more complex that she suggests. If we somehow recognized that our treatment of combat-related crimes is too harsh, how would we effectively deter maltreatment of civilians and detainees in the future?

    There’s a reason that the exclusionary rule has lasted for generations – it works. What other remedy would adequately ensure that police observe the constitutional rights of the persons that they meet on the street?

    The same is true for servicemembers and “combat-related” misconduct. Is there another effective way to ensure obedience to orders and American values? How many of us have taught ROE/LOAC classes only to have some junior enlisted servicemember say something like, “Sir, what would happen if I just shot everybody that looked funny to me?” What would the answer be if we recognized that our military justice had been too harsh in this area? (My normal answer was, “Well, I can’t promise you that you will be court-martialed because your commander would have to look into all of the facts and circumstances surrounding your case. However, your behavior which may violate the ROE/LOAC would expose you to some criminal liability.” As you can tell, I liked to keep my OpLaw classes fairly boring.)

    All of that being said, I agree with her that the civilian leadership of our armed forces should look at some detainee abuse cases more closely to see if any clemency is appropriate (because I think it is). It seems to me that military personnel were the only ones prosecuted for detainee abuse. Not cool.

  3. Balkan Ghost says:

    Excellent points, Mr. Hurley. The article would have been more persuasive had the author also taken a more measured and thoughtful tone.

    It is my unscientific observation that, when crimes against foreigners are concerned, American political right-wingers fall in the “too harsh” camp; left-wingers the “too lenient” side.

  4. Cloudesley Shovell says:

    Perhaps I misread the op-ed, but my impression of Ms. West’s thesis was that we are doing a poor job indeed of treating the enemy the same way we treat our own soldiers when it comes to punishment for crimes on the battlefield.

    The laws of war aren’t just “American values”, they are the laws of war, and any person violates the laws of war at their own peril. Why are we not more aggressively and publicly pursuing enforcement of the laws of war on the enemy? Maybe there are political reasons, maybe most of the enemy violators end up dead on the battlefield; I don’t know.

    What is apparent is that the enemy/insurgents/terrorists are repeatedly violating the laws of war, and we have a rather ineffective system for dealing with those violations.

    Heck, we have a pirate in custody who committed piracy in front of numerous witnesses, and was captured in the act, and we can’t even get the guy to trial more than a year later. In my opinion, that is truly pathetic. In my opinion, the appropriate response would have been a court-martial on board the USS Bainbridge, followed by execution of sentence, but then I am often accused of being too old school.

  5. Justice will come says:


    Are you kidding me??? This is proof the UCMJ treats the enemy BETTER than our dedicated soldier heroes!

    All Americans join me in adopting the UCMJ treatment of the known enemy strategy and implement it for our soldiers….

    I pledge that all U.S. soldiers who have killed the known enemy for any reason will have the incident forgotten and never do it again! Then set the Leavenworth 10 free, wipe the slate clean, and reinstate their pension. Give a few of them medals while you’re at it!

    If it’s good enough for the enemy, certainly our soldiers should be offered the same treatment!

    Disgusting, indefensible, and out of control behavior! These folks and the leadership implementing ROE and courtroom policy are a disgrace to the uniform!

  6. Curious says:

    What is up with the Behenna appeal? If memory serves, it was scheduled for late March and I haven’t seen anything about it.

  7. EGNB says:

    It’s not the UCMJ that dictates the treatment of the enemy. Would you prefer that we maintain prisons in Afghanistan indefinitely? Who would pay for that? Or is it your preference to torch the prisons and all those inside them?

    As for your pledge of leniency toward U.S. Soldiers who mistreat “the known enemy” — good luck with that kind of policy. I’m sure it will give the populace a whole lot of faith in the military when everyone in uniform is given carte blanche to do whatever they wish so long as they’re convinced that they’re dealing with an enemy combatant.

  8. Justice will come says:

    “As for your pledge of leniency toward U.S. Soldiers who mistreat “the known enemy”— good luck with that kind of policy.”

    You totally missed the point, and…. What in the heck can be meant by mistreatment of the known enemy? They love hearing that kind of talk. Makes them stronger. Not much different from the newly developed medal of courage given to soldiers for “Not Shooting the Known Enemy!”
    Good job!

    Leniency? Nope, I never asked for that. Our soldiers shouldn’t have to worry about that. They should have free reign to fight a war with all the necessary force to exact victory without interference from pencil pushers!

    The populous? They currently have little faith in what the leadership and you subscribe to. They are on the USA’s side. They would be overjoyed to see the U.S. fight a war to win as they did in WWII. Otherwise, bring these brave men home! The current policy is killing and jailing soldiers needlessly, but I guess the concern over building jails in Afghanistan ranks higher on the priority pole!

  9. Anon says:

    The Govt. received another three month extension, so their response brief is not due until July 20. The Govt. will have had seven months (60 days longer than the Defense) to file their brief. The last extension was filed by the Govt. and Behenna’s Civ Defense counsel was not notified to object. After the Civ Defense found out the extension was granted, an out of time objection concerning the extension was filed, but denied by the Appellate Court. I would not be surprised to see the Govt. file another extension becuase answering the Brady violation in this case must be daunting.