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Saddam Hussein probably uses some perverted semblance of courts-martial in Iraq. Maybe he orders 30 years in the brig for anyone caught acting like an officer and a gentleman? But in America, we have a real military justice system. And as we start to beat our drums of war louder and faster, it’s worth paying attention to it. Some people, of course, already are. Harry Schmidt and William Umbach, for instance, are probably thinking of nothing but. They’re the two Illinois Air National Guard majors now awaiting the outcome of a hearing that will help determine whether they face a court-martial — and possibly decades in the brig. The actions against them stem from Schmidt’s decision to drop a laser-guided bomb over Afghanistan on what turned out to be Canadian troops, killing four and injuring eight. Schmidt and Umbach are caught in a place they’d rather not be. But there are scores of people who would probably prefer to be in the majors’ shoes. Some 600 al Qaeda and Taliban soldiers are now detained at Guantanamo Bay. Some have been held there for more than a year, with no one to hear their complaints, other than the soldiers guarding their cages. International law arguably requires us to give them some sort of military proceeding (although we aren’t). To make the point clear, since Sept. 11, the military is more actively a part of our lives. And thus so is military justice. Maybe it’s time we all better understood the legal system of our armed forces. What does “military justice” mean to our soldiers? And to our enemies? And to us? CADETS TO CIVILIANS The military legal system cuts a pretty wide swath. To start, Section 802 of Title 10 of the United States Code lists 12 categories of people subject to military law. It includes the obvious — members of the regular armed forces, military academy cadets, and members of national guards while in federal service. It also includes the less obvious — some retired military personnel, prisoners of war, and people working with U.S. military forces outside U.S. territory. The military can even activate some people on an involuntary basis to investigate and punish them. And that’s just those subject to the sort of justice seen in “A Few Good Men” — courts-martial that the military holds against (mainly) its own. Beyond that, there are other realms. President George W. Bush famously issued an executive order in November 2001, authorizing international terrorists, “when tried, [to] be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed.” Theoretically, Saddam’s minions are covered not by that order but by international law, which would have us treat them more graciously (though still militarily) as prisoners of war. But who knows? The last time we were gunning for Baghdad, we hadn’t assured the world that Saddam and Osama bin Laden were best buddies. Don’t forget that two American citizens are also guests of the Defense Department, being held incommunicado as “enemy combatants” for allegedly helping Osama, et al. In their version of military justice, there’s been no hearing of any sort on the merits of their cases. One of them, Yaser Esam Hamdi, just had his plea for a hearing turned down by a federal appeals court. And consider this eye-opening reminder of the potential sweep of military law: “In the worse case scenario, [military] legal professionals must be prepared to advise even on such previously unfathomable matters as martial law.” The quote comes from a 2001 law review article written by Charles Dunlap Jr., now a brigadier general on the Air Force judge advocate general’s staff. If he’s thinking about this, shouldn’t we be thinking too? But horror stories, real and possible, aside, the questions about military law usually boil down to this: How do we treat our boys, and how do we treat theirs? As to our boys, do we really want to subject soldiers in tight spots (where we ordered them to go) to months of second-guessing in military hearings? Do we want to send the signal to front-line troops that we’ll punish tough decisions with decades in prison? But on the other hand, America has already had at least one too many “We had to burn the village to save it” moments — remember My Lai in Vietnam. Courts-martial — and the realistic threat of them — help keep soldiers from abusing the awesome power at their fingertips. There’s a balance we need to strike: Too many courts-martial, and we’ll be throwing our boys to the wolves; too few, and we might become the wolves. And then there’s their boys — who might complain that they don’t get enough military justice. We won’t shed too many tears for hostile forces, but we should shed one or two. Think of it this way: The worse we treat the enemy, the worse they might treat us. Take President Bush’s executive order. According to The Wall Street Journal, military lawyers were angry about being “kept out of the loop” of drafting it. Maybe they feared reciprocally harsh treatment of captured American troops. When it came time to draft the regulations implementing the order, the military lawyers got involved and guaranteed protections that the order itself omitted. The lawyers were not, I’m sure, overly sentimental about the terrorists. They simply understood the risks of being vindictive. RISKS OF BEING PRACTICAL That sort of hard-headed practicality seems to be a hallmark of the military justice system — one sometimes sorely missing from our civilian system. The decision about whether to proceed with military charges is the call of a commanding officer, who thinks not only about the law but also about the need to keep the armed forces functioning. As the Air Force judge advocate general, Maj. Gen. Thomas Fiscus, wrote recently: “There are any number of ways to erode the cohesion that must exist between the leaders and the led. . . . Commanders understand the military culture, the psychology of their units, and what needs to be done to maintain high morale and effectiveness.” When a commanding officer decides to proceed with prosecution, he keeps a continuing hand in the process. He decides whether to order a sort of grand-jury hearing, known as an Article 32 proceeding — which the two Illinois majors are going through. Even after the investigating officer makes a recommendation, it is the commanding officer that must accept or reject it. And then, if the case goes to a general court-martial, the commanding officer initially picks the jury. There are risks to this sort of practicality. One is too much prosecution. Given the huge amount of discretion that the commanding officer has, there is a real possibility of what the military calls “unlawful command influence,” should a ranking officer ever have it in for somebody. The other risk is under-prosecution. The system is prone to try to resolve things quietly. Consider, for example, that Reuters reported at least a dozen instances of friendly fire during the war in Afghanistan. But only the incident involving the two majors has gone this far down the path toward a court-martial. Also, according to a Dec. 16, 2002, U.S. News & World Report article, the military court-martials admirals and generals on an exceedingly rare basis. HOW TO JUDGE? Two parting thoughts about the rigors of military justice: The first is how hard it can be to judge the actions of soldiers in combat. Look at the two majors. They were flying in the dark, after a six-hour flight, wearing night-vision goggles that might have amplified the brightness of the groundfire they saw. They both had taken amphetamines, they say, and felt pressure to do so from the Air Force. They were not told in advance that allies might be training specifically where they saw the groundfire. The one pilot descended only after being asked by controllers to get more information on the target. And, of course, there is the claim of self-defense. As for the prosecutors, they argue that the majors never took the sort of evasive action taken by pilots who truly think they’re in danger. The pilot who dropped the bomb violated the rules of engagement by getting closer to the ground than he should have. And the other major, as commander of the mission, should have controlled the situation better than he did. Even a single fact can cut both ways. About four minutes passed between when the pilots spotted the groundfire and when the bomb hit. Is that evidence that the situation was dangerous, or that the pilots were cowboys? The second point is this. In World War II, according to a fact sheet on the Marine Corps’ Web site, the United States had more than 16 million men and women serving in the armed forces — and there were about 2 million courts-martial during the war years. World War II and the war on terrorism are far from perfect parallels. But the battle we’re fighting will go on longer than the one that our grandparents fought. How much justice will we wind up meting out militarily? Our military justice system is every bit as awesome in its sophistication and reach as our military forces. So doesn’t it make sense for people outside the armed services to start thinking more about how we’re using both? Evan P. Schultz is associate opinion editor at Legal Times . His column, “Controversies & Cases,” appears every other week. He can be reached at [email protected].

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