Beauchamp: Silence and the Severity of the Matter

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Beauchamp: Silence and the Severity of the Matter

Friday, July 27, 2007

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.

Posted by Grim on Friday, July 27, 2007 at 12:24 PM in Military | Permalink | Comments (29)

Comments

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.

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