Wednesday, January 13, 2016

Crime (?) and Punishment-A Comparative Study

Avoid self righteousness like the devil-nothing so self blinding.
— Basil Henry Liddell Hart, Advice to Statesmen

When we see how uncivilized the behavior of some of our closest allies in the world can be, it is good to reflect how fortunate we are to live where we live, the words of most of the Republican candidates for the presidency notwithstanding. It all came to mind when reading the descriptions of how Saudi Arabia, one of our closest allies in the Middle East, celebrated the advent of 2016 by conducting the mass execution of 47 people, including the popular Shiite cleric, Sheikh Nimir al-Nimr. It was a good way for the Saudis to welcome in 2016 since 2015 had proved to be a banner year for the executioners in Saudi Arabia. In that year Saudi Arabia executed 158 people forcing the Saudi government to begin running ads seeking 8 additional executioners. The ads said applicants needed no special qualifications. For a country with a population of only 28.3 million the execution of 158 people was quite an achievement. (To put this in some context, the United States with a population of 320 million people only executed 27 people in 2015.)

The world was understandably outraged at the Saudi executions and no country more so than the United States since Saudi Arabia is one of our best friends in that part of the world even if it doesn’t let women drive or do lots of other things women in the United States get to do. We are appalled when Saudi actions suggest a total disregard of what we take to be basic human rights. We are appalled, but reassured, because we know that what happened in Saudi Arabia could never happen under the United States form of government because of all the Constitutional protections that are in place to protect those who fall under the jurisdiction of our government. Of course, the comfort we take in knowing that has to be somewhat tempered by what is taking place in Guantánamo, the military prison camp in Cuba run by the United States government. Not that that has anything to do with Saudi Arabia or with the execution of 47 people in Saudi Arabia with what some would describe as the complete absence of due process of law.

Guantánamo offers a stark contrast to how we deal with people believed to have engaged in activities perceived, if not proved, to be against the best interests of the United States. It would not occur to us to summarily execute them as Saudi Arabia did the unfortunate 47. Instead we permit them to live happily ever after in facilities furnished by the U.S. Government without charging them (a) for room and board or (b) with any acts of misconduct. As of the first of the year the United States has magnanimously spent, without hope of reimbursement, $5.2 billion in order to enable the people at Guantánamo to reside there. Many of the residents of Guantánamo continue to live there even though they have been cleared for release. As of this writing there are men in confinement, 44 of whom have been cleared for release. Fifty-two of the men confined have never been charged with any crimes and some of them have been in residence since 2002. They have been given the cutesy names of “forever prisoners” since they have no prospect of being charged with any criminal conduct nor of ever being released. Being one of the “forever prisoners” at Guantánamo is, of course, better than being one of the 47 former prisoners in Saudi Arabia because a “forever prisoner” is still alive whereas the former prisoners are all dead. Some of the “forever prisoners” may not, however, continue to enjoy the benefits of this distinction. One of them is Tariq Ba Odah, a Yemini prisoner. He has been cleared for release for 7 years but is still imprisoned. He has been on a hunger strike for 9 years and is now severely malnourished. He is at death’s, but not the prison’s, door. That is because a country that has tentatively agreed to accept him wants to review his medical records before doing so. The Pentagon has reportedly been slow to hand them over on the grounds that it is protecting Mr. Odah’s right to privacy. The Pentagon places the right to privacy above the right to life and liberty. Mr. Odah probably doesn’t get the difference. He probably never will. That is because he may be dead before it is explained to him. Other “forever prisoners” may also find it hard to understand why they are better off in Guantánamo than dead. Someone in Congress, the Department of Defense, or the White House can explain it to them. They are the ones responsible for the fact that the “forever prisoners” continue to enjoy their privileged status.


Thursday, December 17, 2015

Abrams, Bergdahl and McCain

One man’s justice is another man’s injustice.
— Ralph Waldo Emerson, Essays, First Series

December 14, 2015, was a good day for John McCain. It was a less good day for Sergeant Bowe Bergdahl, General Robert Abrams, and the military justice system. It was a middling sort of day for the U.S. Constitution, although it hadn’t been directly involved except insofar as Mr. McCain showed once again that the kind of due process the Constitution contemplates can prevent desired outcomes in some criminal proceedings.

John McCain’s problem with the Constitution did not start with Bowe Bergdahl. It first came to light when Dzhokhar Tsarnaev, one of the Boston Marathon Bombers, was apprehended. On April 23, 2013, eight days after the Boston bombing took place and within a few hours after Tsarnaev was captured, Senators John McCain and Lindsay Graham issued a statement that appeared on Mr. Graham’s face book page in which they said, in part: “It is clear the events we have seen over the past few days in Boston were an attempt to kill American citizens and terrorize a major American city. The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise, but terrorists trying to injure, maim, and kill innocent Americans. Now that the suspect is in custody, the last thing we should want is for him to remain silent. It is absolutely vital the suspect be questioned for intelligence gathering purposes. . . . The least of our worries is a criminal trial that will likely be held years from now. Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel.”

Mr. McCain’s next encounter with the criminal justice system occurred when Sergeant Bergdahl was returned to the United States in a prisoner exchange in which five Guantanamo prisoners were transferred to Qatar. Upon Sergeant Bergdahl’s return to this country, he was charged with desertion and misbehavior before the enemy. Since he was a sergeant in the U.S. Army, he was subject to the Uniform Code of Military Justice. Those rules are designed to comport with the Constitutional rights given every citizen and set out the procedures to be followed by the military. First, the accused is subject to an Article 32 proceeding that is in the nature of a preliminary hearing. At its conclusion, the officer presiding over the Article 32 proceedings makes a recommendation to the officer responsible for convening a court martial as to the type of court martial the presiding officer believes appropriate. That officer then decides whether it is to be a General Court Martial with the possibility of a life sentence or a Special Court Martial with the maximum possible sentence of one year in prison.

Following the filing of the charges against Sergeant Bergdahl, Lt. Col. Mark Visger was appointed to conduct the Article 32 hearing. At the hearing, Major General Kenneth Dahl, the investigating officer, testified, among other things, that jail time for Sergeant Bergdahl would be inappropriate. At the end of the proceedings, Col. Visger recommended to General Robert Abrams, the officer responsible for deciding what kind of a court martial to convene, that a special court martial take place.

When news of Col. Visger’s recommendation was made public, Senator McCain, who had heard none of the evidence, let it be known that military justice did not matter to him. He said that if there were no punishment for Sergeant Bergdahl, the Senate Armed Services Committee of which Senator McCain is chair, would hold its own hearing. As he explained, without waiting to find out what facts might emerge at a trial: “I am not prejudging, OK, but it is well-known that in the searches for Bergdahl, after-we know now-he deserted, there are allegations that some American soldiers were killed or wounded, or at the very least put their lives in danger, searching for what is clearly a deserter. We need to have a hearing on that.” The fact that no soldiers had been killed or wounded while searching for Sergeant Bergdahl did not faze Senator McCain.

Senator McCain’s committee cannot increase whatever punishment the duly constituted court believes appropriate. But it decides on promotions and assignments for high-ranking military officers like General Robert Abrams. General Abrams is the general responsible for deciding whether to follow the recommendations of Col. Visger. John McCain and the armed services committee are the ones that can affect General Abrams’ future in the military. On December 14th General Abrams announced his decision. Sergeant Bergdahl will face a general court-martial and the possibility of life in prison. That was good news for everyone except Sergeant Bergdahl and, perhaps, General Abrams. It was good news for the Armed Services Committee since it will not have to hold a hearing. It was sort of good news for General Abrams since he will not incur the wrath of Senator McCain. On the other hand, General Abrams will have to live with the fact that some people will say he decided to convene a General Court Martial because of the pressure applied by Senator McCain even though his decision may, in fact, have not been influenced by the senator’s threats. It is clearly bad news for (a) Sergeant Bergdahl who may end up spending his life in prison and (b) for the military justice system that may have been compromised because of pressure applied by a senator.


Thursday, December 10, 2015

Guns-Déjà vu

Such as do build their faith upon the holy text of pike

and gun.

—Samuel Butler, Hudibras

That loud sighing sound you heard after the San Bernardino shooting was a collective sigh of relief from guns of all sorts from all over the United States. And for good reason. Each time the mass slaughter of U.S. citizens occurs, the guns worry that someone will remember Australia and Scotland and suggest that the United States should do what those countries did after mass shootings.

In 1996 there was a mass shooting that killed 35 people in the Tasmanian town of Port Arthur in Australia. Australians were unaccustomed to such atrocity. Furthermore, Australia did not have the Second Amendment to the Constitution that a grammatically impaired, Tony Scalia, with his similarly impaired colleagues on the U.S. Supreme Court, believes gives every living thing in the United States the right to walk around with a gun. Australians believed tangible human life was more valuable than the intangible right to walk around with a gun. After the shooting occurred, the conservative Prime Minister, John Howard, persuaded legislators to pass the National Firearms Agreement. The act was passed 12 days after the massacre took place. The law prohibits possession of automatic and semiautomatic assault rifles and pump shot guns in most cases. It establishes a 28-day waiting period for those wanting to buy guns. It institutes a gun buy back program that was financed by a slight increase in taxes paid by Australian citizens. The buy back resulted in the acquisition by the government of 700,000 formerly privately owned guns. In the 18 years preceding the passage of the Act, there were 13 mass shootings in Australia that killed 112 people. In 2012 statistics from the United Nations Office on Drugs and Crime showed there were 30 homicides by firearm annually in Australia.

In 1996 a 43 –year old gunman stormed a schoolhouse in Dunblane, Scotland, killing 16 children. The next year British legislation was passed banning private ownership of automatic weapons and handguns on Britain’s mainland.

Those examples are of no interest to U.S. lawmakers and the response of the wanna-be Presidents reflects congressional attitudes. None of them seems to have noticed that the deaths in California were the result of the ability of the murderers to follow the example of home grown mass murderers. Marco Rubio, for example, mocked Democrats who attributed the shootings to guns. He said: “Forty-eight hours after this is over they’re still out there talking about gun control measures. As if somehow terrorists care about what our gun control laws are.” He’s right. James Holmes, Adam Lanza and other domestic mass murderers who have not had the benefit of being tutored by terrorist organizations but are simply following in the footsteps of other locals, don’t care what our gun control laws are-we have none and that is why they could do what they did. Ted Cruz said: “We need to target the bad guys but on the flip side, what keeps us safe is we are a free people have a God-given right to protect our homes and our families and our lives.” That same God given right is what enables our homegrown terrorists to massacre their fellow citizens.

James Holmes murdered 13 people and wounded 70 more in the Aurora Theater shooting. His house was booby-trapped so the police had to spend hours before entering it to avoid triggering the explosive devices he had set. James was not described as a terrorist and no one suggested the massacre was the president’s fault. Adam Lanza killed 26 people in the Sandy Hook Elementary School. He fired 154 rounds in less than five minutes. His house was described as an arsenal. No one attributed that to inadequate leadership by the president. Dylan Storm Roof killed nine people in a church in Charleston, S.C. in June;. Mohammod Youssuf Abdulazeez killed four Marines and a Navy sailor in July; Christopher Harper-Mercer killed eight fellow students and a teacher in Roseburg, Oregon on October 1. None of those tragedies evoked any response of note from people in Congress nor did any of the members of Congress blame the president or the religious upbringing of the shooters for the massacres.

David Gergen, a former advisor to four presidents, commented on the San Bernardino massacre. He told the New York Times that a fear exists among the public that has not been seen since 9/11. He said: “I talk to people who worry that they will be shot on the streets of New York. “ Mr. Gergen did not explain what gave rise to this sudden fear of walking around in New York since the people had apparently not been made fearful by the other mass shootings of 2015 nor the random shootings that take place on a daily basis in the United States. They might feel safer if Congress did something about guns. It never will. If you wonder why, ask the NRA. When it comes to guns, it has all the answers.