Military Law and Buddhism

Multi-Format Extravagaaaaanza

Since this is my final blog post, I thought it might be interesting to highlight a few pop culture items, in various formats, that raise military law issues.

First on the list is a new movie about a U.S. soldier just back from Iraq, “Stop-Loss.”  This movie highlights a U.S. military policy that is little-known and rarely discussed in the news.  This policy essentially extends the term of enlistment for a soldier whose enlistment end date falls during his unit’s deployment to a war zone, or within the three month period before that deployment.*fn1*  If the soldier falls into this category, they must deploy with their unit and cannot the military until 90 days after their unit returns home.*fn2*

I have always been intrigued by the inconsistency between civilian employment law and military employment law.  No civilian employment contract similar to the military enlistment contract would be upheld – indeed, the very idea of imprisoning an employee for quitting their job would shock most Americans.  The stop loss policy goes even farther, and would probably also fail in a civilian context – imagine a worker at Wal-Mart not being allowed to quit during the holiday season, or rental lease being extended because no new renters are forthcoming.  The specific terms in the contract that are invoked to justify stop-loss are:

How do you find a word that means Terrorism? Part II

In the previous post, I discussed a rough framework of a definition of terrorism, based on the current common usage of the word, that includes the following elements:

• The use of violence.
• The violence has no lawful excuse and is not part of a legitimate military action.
• The violence is not merely a criminal act.

The question then becomes, what do we do with this definition?  We’ve taken what we ordinarily dispose of in our criminal justice system and marked it as something distinct.  In our attempts to investigate, control, prevent, and perhaps even eliminate it, how do we treat terrorism, as opposed to ordinary crime?

How do you find a word that means Terrorism? Part I

On September 14, 2001, President Bush said to the people of the United States, “our responsibility to history is already clear: to answer these attacks and rid the world of evil.”*fn1*  Ever since, we have been waging a “War on Terrorism,” with little time spent on explaining what we mean when we say “Terrorism.”  This is a broad topic that perhaps could not be fully explored in a large book – humans have been using terror against each other for all of history, and a truly complete exploration of the term must discuss that history.  So this blog post will necessarily just skim the surface of what could be explored.

Terrorism is difficult to define at least partially because its existence is dependent on its definition, on someone pointing at something and calling it terrorism.  It is like crime, somewhat – an action is not a crime without a law that calls it that.

It could be said that terrorism does exist without a definition, in a moral sense, just as murder is murder, and wrong, without the law to say so.  This may be.  But we are a society of differing morals, and if we are to be in agreement about how to solve a problem, we must first agree on what the problem is (and sometimes, whether that problem even exists).

“Morale, Good Order and Discipline, and Unit Cohesion”

Last week the California Supreme Court considered whether homosexual couples should be allowed to marry.  This case coincided perfectly with a discussion in my military law class of the US military’s “Don’t Ask Don’t Tell” policy.  This policy, which has been in place over ten years, creates an odd sort of atmosphere wherein commanders cannot proactively search for homosexuals, but those who identify as homosexual (or anything but straight, really) must pretend that they are not.*fn1*  They cannot be intimate with someone of the same sex, cannot marry someone of the opposite sex, and cannot “state” that they are homosexual.*fn2*

There are exceptions, of course.  The soldier can try to prove that the acts were out of the ordinary for them and won’t happen again, or if they simply stated that they were homosexual, that they won’t engage in “homosexual acts.”  There is also an exception if “the member engaged in conduct or made statements for the purpose of avoiding or terminating military service.”  The immediate question that springs to my mind in response to the latter exception is: how would they know?

BattleBots, or: Why the Cylons Are Scary

A recurring theme in military history is the advancement of technology; more specifically, technology that allows soldiers to be farther and safer from the thing they are attacking.  From clubs, to swords, to arrows, to guns, to machine guns, to bombs, to bombs dropped by aircraft, to ICBMs: we constantly get better and better at destroying things far away.  We haven’t completely eliminated the risk, obviously.  The number of U.S. soldiers killed in Iraq will probably pass 4,000 within the next month, and seven times as many soldiers have been wounded.

What I’m interested in is what happens when we do eliminate the risk, when we are able to entirely replace the soldier patrolling the streets of Iraq with a robot of some sort?  This currently only exists in the realm of science fiction, but the reality may not be far off.  The U.S. currently uses remote missile attacks to attack those it believes are terrorists.

If a country was able to completely eliminate its risk (in human life terms) in going to war, how does that affect the laws of war?  Does this completely change the playing field?  Or perhaps this is simply a question of an imbalance of technology among fighting forces, a question that is as old as war itself.

The Court Martial as a Backup Plan

In 1999, while law school was but a twinkling in my eye, the movie Double Jeopardy was released.  The premise was that a woman, wrongly convicted of her husband’s death, could, after being released, go and kill that husband without being prosecuted again.  At the time, Slate magazine posted an article explaining that this logic was flawed, in that “double jeopardy can only be claimed when multiple prosecutions arise from a single criminal action. For example, a double jeopardy defense would certainly fail if a defendant claimed that he couldn't be prosecuted for a second assault on a victim just because he was convicted of assaulting her two years earlier.”

However, there are other exceptions to the double jeopardy protection of the 5th Amendment, which most Americans remain unaware of.  For instance, the federal government and a state may both, separately, prosecute a defendant for the same crime.*fn1*  A similar situation exists for those subject to the UCMJ.  The court martial is considered, for double jeopardy purposes, analogous to a prosecution in federal district court.*fn2*  Therefore, a soldier can be tried for the same crime in both a court martial and a state court.*fn3*

[I should pause here to say that I’m against double jeopardy.  I understand the basic idea behind allowing both the state and federal governments to prosecute the same crime, but I think it is a legal fiction whose benefits are far outweighed by the risk of abuse.  So I’m continuing this post with a goal of testing that belief.]

Protecting the Human Investment: How Far is Too Far?

It’s that time of year again, when accountants never sleep – tax time, of course.  Most people are probably avoiding the thought, with Tax Day itself still two months away, but as the Site Coordinator for the Volunteer Income Tax Assistance (VITA) program at my school, it is something I have to think about ten times a day.  So a recent article in the Army Times about “refund anticipation loans” caught my eye.

The article discusses the impact of a new law that limits, for soldiers, the interest rate on these “refund anticipation loans” to 36 percent, and says that because of this limit the only such loan available to soldiers is one at H&R Block (the rate on that loan is exactly 36%).  My first reaction to this rate was shock, especially since this is rate is at the lower end of the scale for these types of loans.  But, as the article points out, with a loan term of only a couple weeks, the actual dollar amount of interest is low enough that most people don’t mind paying it to get their refund early.

This law provides an interesting window into differences between working a civilian job and being a member of the military.  The military (sometimes via the proxy of Congress) takes a more active interest in the lives of its members, even in areas that are not directly linked with their performance as soldiers.  Single soldiers below a certain rank are often required to live on-base, even when regular housing is available in the area.*fn1*  Before long weekends, soldiers are warned of the perils of drunk driving and of the importance of safe sex.*fn2*  And now, Congress has stepped in to protect soldiers from predatory lending.

The question of combatants

When I was a child in school, I learned about wars.  We talked in school of other events in human history, but the timeline seemed defined by war.  When I thought of the history of the United States, it appeared in my mind as chunks of time separated by wars:  the Revolutionary War, the Civil War, World War I, World War II, and Vietnam.  They seemed so clear – a start date and an end date; we were the good guys (of course) and the bad guys were conquered but we eventually became friends again.  The battles had funny names, and sometimes it seemed to me as if they were simply violent parties – everyone came to the appointed field on the appointed day and lined up on their respective side, and the battle began.  It would not have surprised me if a teacher had mentioned that engraved invitations were sent out.  Vietnam was explained as being an aberration, a strange situation where we lost because it was so different from all the other wars we had fought – we couldn't tell who the enemy was, they acted just like the rest of the villagers.

Of course, my impressions were far from the whole truth.  But I think there is a kernel of truth in them, as a reflection of what we, as a country, expect from war.  These expectations are reflected in some of the questions that we are confronting in the “War on Terror.”  One of these questions is of the difference between a “lawful” and an “unlawful” combatant, both in definition and in treatment.

In 2006, Congress weighed in with the “Military Commissions Act of 2006,” which defined an unlawful enemy combatant as “a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces) ); or a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006 (“the Act”), has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.”*fn1*

Thanks for your service. Now what?

Newsweek recently reviewed a book about the Civil War, “This Republic of Suffering,” by Drew Gilpin Faust.*fn1*  The book discusses the impact of the war on society, especially perceptions of death and dying.*fn2*  During the war, “the unthinkable—the notion that a son or husband could die hundreds of miles distant—became the reality. Those with means traveled to battlefields in search of the slain, hoping not only to find them but to bring them home for burial. Those who could not afford such a trip were left to depend on the letters of other soldiers, who sought to reassure grieving families that the dead had made their peace with God and died honorably.

Yet thousands of families were still left in ignorance. Even on the Union side, which kept much better records than their Confederate counterparts, 40 percent of those who died were listed as ‘unknown.’”*fn3*

Faust goes on to explain that the war shifted the “responsibility for burial, for the notification of survivors and for pensions for veterans” to the government.*fn4*  No longer did families have to bear the expense – and horror – of searching through fields of dead bodies in hope of finding their loved ones and burying them.

Now, as we prepare to enter the sixth year of war in Iraq, this question is once again not only relevant but urgent:  What responsibility does the government have to the soldiers*fn5* that it has sent into battle?

Snitching in Iraq

A problem that has come up repeatedly during the current Iraq war is distinguishing the threats. Comparisons to Vietnam abound – once again we are fighting a force that doesn’t play the war game like we do. They don’t wear uniforms, they don’t publicize the locations of their bases. This implicates the huge question of who is a “combatant” and who is a “civilian.” I plan to address this question in a later blog post.

The immediate impact is that our soldiers don’t know who is going to shoot at them, and so they end up detaining – or, in more disturbing situations, killing – people who were arguably innocent and not a threat.

In December, the Department of Defense posted a story that relates how “Moderate Muslims held in coalition detention centers in Iraq are turning in radical Muslim detainees on a daily basis . . . .” The article attributes this to a shift in attitudes, and quotes a Marine commander who “described several instances where middle-of-the-road Muslims actively repudiated Islamic extremism inside the walls of coalition compounds.”

This strikes me as a very odd situation, for several reasons. We are detaining civilians – albeit those who are considered to be a threat “to coalition forces, Iraqi Security Forces and stability in Iraq”fn1 – and we are detaining them without affording them a trial or any other kind of adversarial hearing.fn2 I think it is only reasonable to assume that a person in a position of indefinite detainment will try to figure out what he can do to get out – what do his captors want?