A friend of mine sent me an article that he wanted my opinion on. As I was typing up a response on my phone’s keyboard I realized I had more thoughts than would fit comfortably inside of one to two paragraphs. So here I offer some unprofessional commentary.
The entire article reads like someone who’s leading the witness because they can take advantage of the reader’s likely lack of familiarity with or exposure to military life. It speaks with assumptions about the military and jumps to conclusions as if you, the reader, share those assumptions and have also jumped to those conclusions.There’s a disconnect between what the article says and what actually is, that one who was not prior service would not necessarily be able to pick out.
I intend to go through the entire article with commentary on each major piece.
Many U.S. military members publicly disavowed President Trump’s decision to pardon Edward Gallagher, the former SEAL commando convicted of killing a teenage detainee in Iraq in 2017.
Gallagher’s alleged war crimes were nearly universally condemned up the chain of command, from enlisted men to Navy Secretary Richard Spencer. Indeed, it was Gallagher’s SEAL colleagues who reported the former commando’s actions.
This insistence on holding fellow service members accountable for bad behavior sharply differentiates the military from the police.
The article starts off talking about current events to build context around its central premise it wishes to push on the reader. Given my lack of familiarity with Gallagher’s case, I won’t comment on the specifics such as whether or not his actions were universally condemned beyond surmising that anyone who thought differently kept quiet in fear of being cancelled and pushed out of a job. The military had cancel culture since before it was cool and still has it.
However, the writer starts off playing a game of two truths and lie as he all but says off the bat that willingness to “hold fellow ‘members accountable’ is what differentiates the military from the police. It’s the central theme of the article, but any cursory familiarity with armed forces shows this to not necessarily be the case. For example, most of the officers, ncos, and enlisted who were involved in deliberately sweeping the investigation in Pat Tillman’s death continued to served after tragedy and often kept getting promotions. Already, we’re off to a shaky start.
As a military lawyer and scholar, I’ve studied this unique aspect of American military ethics.
U.S. military culture stresses organizational, rather than personal, loyalty. When Gallagher’s SEAL colleagues reported him, they were doing what Navy SEALs are taught to do: They put the good of the institution before the individual.
And the pride Marines famously feel, for instance, comes from being part of this well-respected corps. Personal relationships with other Marines are of secondary importance.
Accountability for individual misdeeds is written into U.S. military law. Under the Uniform Code of Military Justice, culpability for criminal conduct is not avoided simply because a superior ordered a criminal act to be committed. Only lawful orders are to be followed.
After his preamble, the author, Dwight Stirling, starts the body of words that will give credence to his central premise with an appeal to authority, “As a military lawyer and scholar”. Credentials such as those impress no one in the military because officers in the Judge Advocate General (Corps) are often little more than lawyers who happen to wear a uniform.
As for his point about organizational loyalty, that’s bullshit. On the line, you fight for the man the left and right of you, not for nebulous concepts like “organizational loyalty”. Soldiers are loyal to their team, squad, platoon, company, battalion, brigade, division, and the Army in that order. It sounds plausible enough to be true and the ‘scholar’ who wrote this tripe is counting on that.
He tries to do this again talking about the Marine Corps but is again dead-wrong. “Once a Marine, Always a Marine” hardly has anything to do with a willingness to turn one’s fellow marines in for wrong-doing, big or small. In the military snitches, ne’er do wells, malingerers et al are all called ‘Blue Falcons” which is slang for ‘Buddy Fucker’.
He ignores the fact that soldiers act a lot more similar to cops behind the wire. In Vietnam, for example, fragging, whereby soldiers would shoot an officer who they felt risked their lives unnecessarily and too often. And in the fog of war, the military found it difficult prove foul play given the fact that soldiers and ncos alike would close ranks and the fact that getting shot in a warzone is in the range of normal outcomes in an officer’s or soldier’s time in the field.
His fluff-piece level paragraph about accountability being written into U.S. military law and unlawful orders aren’t supposed to be followed is on the level of complex premises like, “water is wet”, “the sky is blue”, and “soldiers shoot guns”.
“A soldier is reasoning agent,” a military court explained in the 1991 case U.S. v. Kinder, in which a soldier who killed a civilian was convicted of murder on the grounds that his superior’s order to do so was obviously illegal and should have been reported.
“It is a fallacy of widespread consumption that a soldier is required to do everything a superior officers tells him to do,” the ruling concluded, referencing the Nuremberg trials of Nazi war criminals after World War II.
Like a college student he references some now obscure court case with just a single line about it that tells you just enough that you can see it supports the point he just made. Nevermind the actual details about the case. I can’t find the specifics with a cursory Google search but I can say that if a civilian in a warzone pointed a gun at you, the situation would not be so black and white like Stirling would have you believe it would be.
And just in case you forgot what year it is, Stirling invokes Godwin’s Law and brings in the Nazis because the concept that illegal orders should not be obeyed is so foreign to the average civilian that he whips out the holocaust to force the point across. Because following illegal orders is bad, m’kay?
Not every soldier follows the rules, of course. The U.S. military has covered up atrocities.
The most notorious of these cases include the 1968 My Lai massacre in Vietnam, in which women and children were killed. In 2003, U.S. soldiers badly mistreated detainees at Iraq’s Abu Ghraib prison.
…
“If you snitch, your career is done,” he was told, according to a 2011 lawsuit Crystal filed against the department for failing to protect him from retaliation.
Police reluctance to report a fellow officer stems from the politicization of police brutality incidents and the widespread perception among police that nobody outside law enforcement understands their dangerous jobs, research shows. Frustrated at being judged by civilians and public officials who don’t face the life-and-death decisions they do, cops tend to close ranks when things go wrong, police monitors find.
He attempts to address counter-arguments in advance by pointing out the military does, in fact, also have rule breakers. He takes Frank Seprico’s story and points out that “if you snitch your career is done” as if that is unique to cops. It’s quite telling that he brings up My Lai and Abu Ghraib. Had those whistleblowers not pushed those issues, the Army would have been quite content to brush those incidents under the rug, like it did with Pat Tillman.
The last sentence about officers being frustrated that they’re Monday-morning quarterbacked on the particulars of their job by people who’ve often never been anywhere near a life or death situation is interesting. Stirling almost touches on a point of conversation that if explored might help give one a sober understanding of ‘police misconduct’. Unfortunately, he realized his mistake and did a prompt about face and marched in the other direction as he introduces the military ‘fear of political interference’ into the discussion.
The military is also wary of political interference in military matters. That’s why it takes internal justice seriously.
The Department of Defense is the only governmental organization allowed to operate its own internal criminal justice system – a privilege as remarkable as it is fragile.
The civilian judiciary has long been skeptical of the military’s judicial system. The courts used to worry about due process, particularly the ability of military commanders to improperly influence the outcome of trials. In 1969, the Supreme Court severely restricted the jurisdiction of military courts.
“Courts-martial as an institution are singularly inept in dealing with the subtleties of constitutional law,” the court wrote in O’Callahan v. Parker.
That ruling limited the military justice system to handling purely military offenses, such as abandoning their post or behaving insubordinately. Serious allegations like murder and rape had to be tried in civilian courts.
After Congress and the American Bar Association made significant structural changes to strengthen due process in the military, the Supreme Court in 1987 restored the jurisdiction of the courts-martial.
Today, military judicial proceedings are supposed to be free from political interference, even by the commander-in-chief.
Where do I begin?
First of all – he talks about the military being wary about political interference as if it hasn’t already happened and isn’t still happening. Ranging from oscillating official policy on transgender soldiers to pushing females into combat arms to SHARP briefs that tell you you’re a bad person if you possess a penis to Suicide Prevention Briefs that make you want to kill yourself, political interference in military life is already here. The myriad examples are legion.
Having its own justice system is not a privilege but a necessity, given the unique challenges and requirements of service, especially in war time. Like it or not, when one enlists or commissions into the Army, one loses several constitutional rights. You become a GI; government issue. For example, you could get disciplinary action for getting a sunburn, for doing damage to “government property”. And even so, the military discplinary system is not immune to outside influence given how whistleblowers forced it to investigate and do something about the aforementioned My Lai Massacre and Abu Ghraib among other similar events. Public opinion, ever since the Vietnam War, continues to hold considerable sway over the military for good and ill. Every soldier knows, eventually, that when it comes to a list of priorities, it is funding and public image that jockey for first place, followed by accomplishing the mission, followed by about 69 others things, followed by the ‘health & welfare’ of its soldiers.
When …
When I was the chief of military justice for the California National Guard, I tried dozens of courts-martials, convicting soldiers for larceny, battery and rape.
I could usually get soldiers to level with me, even when telling the truth meant revealing the malfeasance of friends or superiors. They had confidence in the integrity of the military’s legal system, I felt – an understanding that they would be safe if they did the right thing.
In the post-Gallagher era, is that still true? Or will a “camouflage wall of silence” rise?
I don’t know what cases he tried or what the circumstances were but I do want to address two central points he makes – that is the idea that what distinguishes the military from the police is a soldier’s willingness to disobey illegal orders and to turn his fellow soldiers in and that this is a good thing. Stirling talks about this pride the armed forces have in themselves as if the litigious nature of society being reflected in the army is a foregone conclusion and a good thing. This conveniently omits the costs and gripes associated with it.
The thing is – the military like society, is a litigious organization. It’s an amorphous, bloated organization that has its own interests and rarely do they coincide with the interests of the average soldier. When it was soley focused on how to best kill the nation’s enemies they did line up often but that’s not its sole mission anymore. More and more, it’s focused on becoming diverse, tolerant, and more an organization that reflects the values of today’s current insane cultural Zeitgeist than its main job. Taxpayers and soldiers alike pay the price for this inexorable travesty. Increasingly, it’s clear that soldiers at home and abroad face two enemies – the proclaimed bad guys du jour and the military [beauracracy] itself.
How else can a soldier come home from a deployment to a home that would be empty but for the divorce papers and eviction notice? How else would it come to be that a soldier’s paycheck is garnished instantly if he is paid too much or owes the military money, but it takes weeks, sometimes months for them to pay him back if his paycheck gets bungled or withheld due to some accounting error, honest or not?
Why does it seem like the military is getting less effective and spending more money on each soldier and not necessarily seeing a corresponding increase in combat effectiveness? Why does its retention rates appear to be in dire straits?
If you asked Stirling, we may never find out. Just like haircutters like to cut, trigger pullers like to shoot, he likes to litigate. More often than not, he sees little wrong with more of it, missing the forest, for the trees.
Wald