Beauchamp: Silence and the Severity of the Matter

Posted By Grim

There is one thing about which I agree with our friends from the Left, including John Cole.  It is time for a period of silence on the legal issues surrounding this case.  I realize this is an unpopular opinion here, but please allow me to explain my thinking.

First, the military's only authoritative response to the issue so far is this PAO release denying some of the charges raised in Beauchamp's writings, and calling the others into question.  It is reasonably clear at this point that there will be an investigation into the question of the charges.

Second, if the military finds that the charges are false -- as the PAO's initial inquiry suggests -- there are potentially serious legal ramifications.  I am not a lawyer, so what I am about to say is not a suggestion that these charges are the proper ones to bring, but merely an illustration of how serious the matter could be.  Raising false charges of war crimes, that result in the need for your unit to disrupt operations to investigate claims you knew to be false, can reasonably be read by a layperson as a violation of UCMJ 899 art. 99:

Any member of the armed forces who before or in the presence of the enemy—

(1) runs away;

(2) shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty to defend;

(3) through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property;

(4) casts away his arms or ammunition;

(5) is guilty of cowardly conduct;

(6) quits his place of duty to plunder or pillage;

(7) causes false alarms in any command, unit, or place under control of the armed forces;

(8) willfully fails to do his utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other thing, which it is his duty so to encounter, engage, capture, or destroy; or

(9) does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the armed forces belonging to the United States or their allies when engaged in battle;

shall be punished by death or such other punishment as a court-martial may direct.

Again, the decision on proper charges (if any) is the rightful duty of JAG lawyers, not me, and I don't mean to pretend otherwise.  An authoritative reading would require looking at precedent to see how "before or in the presence of the enemy" has been interpreted in the past, which I am not equipped to perform.  It's entirely possible that the JAG will determine that no charges are due, or that this section should not apply; and although it seems highly unlikely on its face, it is vaguely possible that at least some of the charges he raised will prove out.  I just want you all to understand the limit case for how serious this matter could be, if the military's investigation shows that any of the charges he raised were not true, and constitute "false alarms" for a unit in the presence of the enemy. 

We have entered the phase in which it is critical to let the DOD's legal machinery operate.  Of course you will want to continue to examine the questions involved that are not relevant to the question of whether a court martial is appropriate, etc; but this matter appears to be entering its formal stage, and we have a duty as citizens not to prejudice that process. 

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Scott Thomas Beauchamp would appear to be in a bunch of hot water under the Uniform Code of Military Justice no matter how this ends. His behavior throughout casts a poor light on himself, his uniform, and his obligations under the law to report misc... [Read More]

Comments

[Cassandra]

Couldn't agree more, Grim.

There is a difference between raising questions and irresponsible speculation that pretty much only amounts to a feeding frenzy such as we saw with Haditha.

At this point, I think all the questions that are going to be raised, have been. Now what is called for is to sit back and let the system work. Let the investigation proceed. Let Franklin Foer respond, if he ever gets around to it. Not that there's a chance in hell that this is what will actually happen, but it sure would be nice.

[JimBimbo]

So if they court-martial him for lying and sentence him to 30 months in prison, will Bush pardon him?

[MICHAEL in MI]

GRIM - We all know what the punishment is for reporting non-existent war crimes: election into the U.S. Senate and an almost successful Presidential campaign.

[Synova]

I'm not sure how talking about it would prejudice the investigation (since we're not Congressmen). Probably enough has been said now but I think that talking about the UCMJ and what he could potentially be charged with does a service of sorts. The true activities of his unit are still in question. We don't know if he lied or embellished for a good story. What we do know is that he *confessed* to behavior that is, oh, what's the term, prejudicial to good discipline. It's a confession. Innocent until proven guilty is important but are we not supposed to assume guilty when someone confesses? Particularly when the confession can't *possibly* be portrayed as being given under duress?

Even so, my feeling is that he's not going to be charged with anything. My money is on him being offered some neutral sort of discharge for both political (to avoid the perception of persecution) and PITA reasons.

[Ray Kimball]

Gotta agree with Grim on this. Believe it or not, one of the defenses raised for the Abu Ghraib folks was that the intense media coverage had prejudiced any possible court-martial panel to the extent that a fair trial was impossible.

Obviously, not a successful strategy, but potentially a harbinger of things to come if/when charges are brought...

[Mr.Sparkle]

"war crimes" what war crime did the story mention?

[warvet48]

I agree it's time for us to kick back and wait on the system. Hopefully truth will be forthcoming and punishment as deemed by the convening authority.
Sparkle aren't you a little late to bother?

[bthun]

Affirmative Grim.

A gentleman of the old fashion indeed.

[douglas]

Grim, given the severity of the possible punishment, I think that this situation was not what would be considered a 'false alarm' 'in the face of the enemy'. Looking at the enumerated circumstances in this section, it would seem to apply to situations where one is under fire or could be under fire (on patrol, for instance) and where your dereliction of duty might result in direct consequence to your compatriots. His situation doesn't seem to fit that.

Mr. Sparkle, desecrating graves is a war crime under GC and also is a violation of local (Iraqi) law, and so that as well as failure to report such actions would be prosecutable at least under UCMJ 134 as dereliction of duty.

Bottom line- he's got problems, but I don't think a few blog comments is going to give him a technical out on inability to get fair trial.

[douglas]

He also didn't report a violation of this section (if what he says is true):
§ 909. Art. 109. Property other than military property of United States—Waste, spoilage, or destruction
How Current is This?
Any person subject to this chapter who willfully or recklessly wastes, spoils, or otherwise willfully and wrongfully destroys or damages any property other than military property of the United States shall be punished as a court-martial may direct.

[douglas]

While we're at it, for those who insist there's nothing worthy of UCMJ charges, here are a couple more:
911. Art. 111. Drunken or reckless operation of a vehicle, aircraft, or vessel
917. Art. 117. Provoking speeches or gestures

[Annoying Mike]

Commenting on the actions, intentions or character of STB will not influence any official action taken on behalf of the government. Commanders have way too much to do to worry about blog comments. Any administrative, non-judicial or judicial actions will follow a process. The more serious the process, the more safeguards the military justice system requires.

Quite frankly, commenting on the motivation of that little pissant of a soldier is necessary to let people know that this is not representative of the U.S. Army. I will not let these lies or fables about my brothers and sisters in arms to become part of urban lore.

Want to know why he did what he did? You can find the insight, if not the actual answers from his writings. From Sir Real Scott Thomas blog of May 18, 2006 the pissant writes: "I know that NOT participating in a war (and such a misguided one at that) should be considered better than wanting to be in one just to write a book...but...." URL: http://ghostsonfilm.blogspot.com/2006_05_01_archive.html

"Just to write a book," he says. Talk about mercenary......

[Grim]

Mr. Sparkle:

Douglas is right -- desecration of graves is what I was thinking of when I wrote "war crimes." Digging up graves is not itself a desecration (for example, Operation Grave Digger conducted exploratory digs in Iraqi graveyards to seek weapon caches); but the conduct described by Beauchamp certainly would be desecration.

Douglas:

Again, I don't mean to imply that the article I cited does or should apply. It just strikes me as something that reasonably could be read that way, by a layman without the background knowledge available to a JAG officer. Given the severity of its terms, I think we have to take seriously our duty not to offer any prejudice to the case.

[MajMT]

Not a lawyer, but having spent way too much time doing administrative BS supporting Art 15 and Art 32 investigations, I will offer, with all due confidence, that the only thing this young man will likely suffer is some measure of action UP § 934. Art. 134. General articles. What has been discussed before lacks one provable, tangible piece of evidence...willful intent. What we have here, under the guise of Occam's Razor is some little pipsqueak trying to make himself look larger than life. Most likely his contemporaries will illicit a far sterner retribution before he signs his discharge paperwork...best case is his being ostracized by the men in his unit. Either way, any future cred is pretty well diminished unless he writes for the captive audience at DailyKos. Just my gut feeling...

[kymar]

Frankly, I think you're being silly. Even setting aside political reality - the Army is NEVER going to bring up capital charge over piddly stuff like this - the section cited and bolded clearly refers to something very different. "False alarms" is maliciously shouting "Here they come!" when "they" aren't doing any such thing, and the implication is that it's not some practical joke, but at attempt to create a real tactical disadvantage or perhaps to cover some other treacherous act.

My opinion is that you can find a better reason to talk about something else.

[Grim]

Speaking philosophically (rather than legally), if the stories were false and knowingly false, they fit nicely into the framework provided. Like the other items on the list, they are:

(a) actions by a soldier

(b) during actual war where an enemy is present

(c) in which the soldier is putting himself ahead of his duty, his unit, and his comrades.

That's the philosophical thread that unites "raising false alarms" with "abandoning your arms" and "failing to do your utmost to pursue the enemy"; that unites "running away" with "abandoning your station to pillage." They are not otherwise similar, except in that fashion. Accusing your unit and comrades of war crimes in order to gain a reputation as a writer is of a piece with those other offenses, for the same reason.

If it were proven, etc., I think shooting would be entirely appropriate as a penalty. But it is far from proven; the JAG and not I are the proper authorities; and it is the law, and not philosophy, that will rule the day. Speaking purely philosophically, however, this matter ought to be taken seriously.

[Cassandra]

1. I agree with MajMT that Beauchamp will never be charged with anything serious. But,

2. I cannot imagine what you are thinking if you seriously believe his actions were not a deliberate:

attempt to create a real tactical disadvantage

There was an extremely interesting comment over at TNR, from a liberal commenter there yesterday. He was going on about how he didn't trust the government to investigate this, how he trusted Beauchamp more.

His reasoning was that "the truth from military investigations" doesn't always "come out in time to effect political change".

Whoa. Whoa, whoa, whoa there, big guy.

The reason we have military investigations when there are allegations of misconduct is not to "effect political change". It is to find out what happened, discipline any bad apples in the command, and send the message that infractions of the rules will not be tolerated. No more, no less.

Very interesting, especially in light of the professed message - from both Beauchamp and his liberal defenders - that no one should be getting their knickers in a twist about his "stories" since they are only "one man's view of war" and not intended to be extended beyond their narrow context.

Not to put too fine a point on it, but... bull. The reason everyone is getting wrapped around the axle about this is precisely BECAUSE it will be used by the Left to argue that war is dehumanizing and we are best out of it quickly, and this comes at a critical juncture when they KNOW the administration is vulnerable. That is why they don't "trust" that an investigation will work 'quickly enough' to "effect political change", which is NOT the purpose of an investigation.

[FreeMan0333]

It's a shame we're all wasting so much time trying to crush Private Beauchamp underfoot. He doesn't seem to be worth the effort.
Uncle Jimbo, I respect your ranting. I always have. However, I have to disagree with you regarding your submission that most members of his unit will be looking to stomp him now. In fact, I would venture that his team probably has his back now more than ever. For if you have forgotten all of what being a Private was, please don't forget that misery and complaining and embellishment all love company. We band together in the face of adversity, we don't cower alone in the shadows. Like it or not, he is a Soldier and probably won't back down from a fight. He is undoubtedly surrounded with Soldiers who may not believe as he does, but at least accept him the way he is, as he is a direct reflection of their team as a whole. This isn't the NFL, and you can't make a trade. In a functional team, everyone brings something different to the table. This enables the team increased versatility and status as a combat multiplier on the battlefield. His team will support him despite the firestorm he has started. Their lives may depend on that very cohesion. At any rate, I've already read comments that he 'raises the IQ' of his platoon, so rest assured, he has at least a few friends wherever he is at. Like with anything, the military has always been a place where some people like you, and some don't. It's rarely a situation whereby the entire UNIT blacklists you from anything resembling relaxation or pleasure. He will probably get a slap on the wrist or, best-case scenario, an early discharge. Undoubtedly, he will partake in more of the same experiences that have littered his Army experience thusfar: landscaping and janitorial work. We should be satisfied with that as, in perspective, he really is no dictator.
Privates will complain and pass along fabricated stories just like any other solider. That Private Beauchamp lacks the good judgment and sense of compassion inherent in the majority of his comrades to not pass along those stories to the wide-eyed mainstream media is not evidence that he is a traitor, and should be brought up on charges or put to death, but more that he is a gullible, sanctimonious, selfish @$$ with no regard for the forest through the trees.
At the end of the day, 'The National Review' doesn't make foreign or domestic policy. I wouldn't worry too much about their 'journalistic integrity' as I have read a few of their pieces, and found them to be slanted at best. They have a target audience that they cater to, and such is their right. After all, sensationalist reporting is the sign of a weak or failing publication, not of important, actionable news. Let's just sit back now that this is in the open, and let the military lawyers do their jobs and then discuss it again, briefly, when the resolution is at hand. We have far more pressing matters to worry about. Don't lose sleep over one mouthy Private. I'm sure his NCOs aren't...

[Ymarsakar]

A gentleman of the old fashion indeed.

Posted by: bthun | July 27, 2007 at 02:54 PM

Bring out the long knives indeed.

In general look, people don't believe anything will happen to Scott because nobody has been made an example out of to create a precedent. Sociological controls demand that some people need to be broken as a lesson to the entire group and if you don't have such consistent examples, you get people calling Grim out for being silly.

Death and life has never been silly but that is how people percieve it when the United States become soft on its enemies.

[Ymarsakar]

We band together in the face of adversity, we don't cower alone in the shadows.

Adversity is Scott having his brain in 10 different time zones. When I see that, then I'll respect his adverse condition.

[Ymarsakar]

Just look at the title in this link

Villainous Company also has some words written by our fearless "soldier"

Uncle Jimbo, I respect your ranting.

Riight. The Jimbo has acquired powers of invisibility, I see.

This isn't the NFL, and you can't make a trade.

The military transfers people, good and bad, from one unit to another all the time.

[Cassandra]

FWIW, it may not be apparent from Y's comment (it wasn't to the person who sent me that link this morning) but that blog is a parody of Beauchamp's writing, like the Jamil Hussein blog I linked earlier this year.

The danger, of course, in satirizing someone who is so far out on a limb already is that your humor can be indistinquishable from the real thing. It took quite a few people in. But look at the description in the lower left hand corner of the main page. Pvt. B. would never describe himself that way unless he is far smarter than I give him credit for.

I admit to having a perverse sense of humor :p I left several comments there today.

Someone is quite brilliant :)

[Allan]

Actually, it is the company commander or court-martial convening authority who decides the charges. JAGs only make recommendations (which are followed 99% of the time).

According to the ethical rules, however, if the appropriate authority wants to bring charges that the JAG does not think are appropriate, the JAG should refuse to do so... Good luck on that one.

As for this Beauchamp guy, ease up. He is a PFC for goodness sake. Probably sick of cleaning latrines and with too much time on his hands. I have heard so much BS from young soldiers that is much more sensationalistic than this.

My bet is that this soldier does not get any formal punishment, whatsoever. But, for a little while at least, I would bet that his squad leader, platoon sergeant, and first sergeant will make his life a little less enjoyable under the theory that PFCs should be seen, not heard.

[MICHAEL in MI]

"As for this Beauchamp guy, ease up. He is a PFC for goodness sake. Probably sick of cleaning latrines and with too much time on his hands. I have heard so much BS from young soldiers that is much more sensationalistic than this."

Allan - There is a big difference between soldiers telling sensationalistic BS to you and Beauchamp having his sensationalistic BS published in a mainstream Leftist magazine and passed off as fact and used to smear the entire U.S. Military at worst, his entire unit at FOB Falcon at best. That is the reason for the outrage.

Put this on a more personal level. There would be a big difference between gossip among your family members about some bad habits of your family and having one of those family members publish embellished stories of depravity in a mainstream magazine which tarnished the name of your entire family.

[douglas]

FreeMan, some good comments then this:
"'The National Review' doesn't make foreign or domestic policy. I wouldn't worry too much about their 'journalistic integrity' as I have read a few of their pieces, and found them to be slanted at best. They have a target audience that they cater to, and such is their right. After all, sensationalist reporting is the sign of a weak or failing publication, not of important, actionable news."

National Review isn't a news magazine. It's a news analysis and opinion magazine. There's a profound difference. If you could point me to a Stephen Glass type incident over at NR, I'll give you the knowck on journalistic integrity, but till then...

As for what his unit thinks of him, well, I'd guess some will still be his friends, and some will still dislike him. Only more so. I know, had I been friendly with him, that I'd back off quite a bit finding out how much he's really looking out for #1. Not exactly quality friend material.

[Arch]

Let the system take care of Scott Beauchamp and go after TNR's advertizers. Opinion or news, the people who buy ads may not want to have their good names associated with this incident. Also, TNR has drifted pretty far left from their conservative roots.

[Arch]

Let the system take care of Scott Beauchamp and go after TNR's advertizers. Opinion or news, the people who buy ads may not want to have their good names associated with this incident. Also, TNR has drifted pretty far left from their conservative roots.

[Alberich]

Article 134 provides that any actions that tend to bring discredit upon the armed forces are punishable as a court-martial shall direct. This would not be a false alarm in the "misbehavior before the enemy" sense of the term.

[Ymarsakar]

but that blog is a parody of Beauchamp's writing, like the Jamil Hussein blog I linked earlier this year.

It is not a very authentic one given how correct the spelling and grammar is.

Also the domain seems rather more upbeat than the usual kind of work done by blogspot users.

I just don't spend much time on the material. I don't think Scott was ever a complex person to begin with. There's no benefit to having a psyche profile of him.

I think there's a lot of self-rationizations going on concerning Scott and similar incidents. People don't pay it any mind because they don't want to deal with it. But these incidents are only going to be the herald of greater operations and campaigns.