Military Law and Buddhism

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?