Showing posts with label UCMJ. Show all posts
Showing posts with label UCMJ. Show all posts

09 January 2019

A Killing in Wartime


David Edgerley Gates


A decorated soldier, a former Special Forces captain in Afghanistan, is being charged with murder by the U.S. Army - not a domestic, or Crazy Guy Shoots Up Walmart, but combat-related, a violation of the Rules of Engagement. Matthew Golsteyn was deployed to Marjah, in Helmand Province, in 2010. The area is a major producer of poppy and a primary revenue source for the Taliban. Two of Golsteyn's troops were blown up by booby-traps, on patrol, and not long after, Golsteyn got custody of a suspected Afghan bomb-maker. The guy didn't talk, and Golsteyn was required to release him. In a CIA job interview a year later, however, Golsteyn said he knew that if he let the guy go, it was a death warrant for Afghans working with U.S. forces, and for other GI's. Golsteyn took the guy out past the wire and shot him.

That's one version, anyway. The initial investigation came up, if not empty, inconclusive. But in 2016, Golsteyn did something deeply stupid. He shot his mouth off to Fox News, and said he killed the guy. At which point, the Army reopens the case. This time, they bring capital charges.

Regardless of the merits, the case has now caught the attention of Our National Joke. Trump thinks an injustice is being perpetrated, and he's promised to look into it. "I will be reviewing the case of a U.S. military hero.... He could face the death penalty from our own government after he admitted killing a terrorist bomb maker while overseas." Trump, of course, doesn't know his ass from a hole in the ground around the UCMJ - the Universal Code of Military Justice - and he's blithely unaware that what he's doing could compromise the case, one way or the other.

It's called Unlawful Command Influence. For example, Pres. Obama said heatedly that sex offenders in the military should be "prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged." This was later interpreted as prejudicial, and there was in fact one Navy judge who ruled out a punitive discharge at court-martial because of Obama's statement. (Trump said inflammatory things during the campaign about Bowe Bergdahl, and although the judge in that case acknowledged Trump's remarks were inappropriate, he gave Bergdahl a DD anyway.) In the Golsteyn case, we're talking about influencing a favorable verdict, or asking for dismissal. It ain't gonna happen, but we'll see if the fat lady can carry a tune.

*

Return with us now, through the mists of time, to that unlovely year 1969. Nha Trang. A suspected Vietnamese informer named Thai Khac Chuyen is taken on a boat ride out into the South China Sea, shot twice in the back of the head, and dumped over the side. Project GAMMA was a spook show, run out of 5th Special Forces under CIA discipline, and CIA signed off on Chuyen's termination  (although they'd pretend otherwise, when the shit hit the fan.) Six of the Green Berets in the unit, along with 5th SPG's commanding officer, Col. Robert Rheault, wind up in the stockade, waiting on an Article 32, preliminary hearing for a general court-martial, charged with murder.

You have to understand the politics, here. Abe Abrams had taken over from Westmoreland the year before. Abrams was a tank guy. He didn't have any patience with Spec Ops, and he especially didn't want his boys, GI's, carrying water for CIA. It was all about accountability. Abrams also thought Col. Rheault had lied to him, but this is a little tricky, because Rheault was new on the job, and may not have been fully briefed. GAMMA was restricted access, Need-to-Know. Rheault could have easily repeated the CIA cover story to Abrams, without realizing it was fabricated. Either way, the damage was done. Abrams was in a fury.

Abrams is in no way mollified by the press coverage, which reports the Green Berets are being scapegoated, first to take the heat off CIA, and secondly, when evidence surfaces that Chuyen was in fact a spy, to ask why they were charged in the first place. Killing the enemy is a soldier's first order of business. The defense asks to depose both Abrams himself, and the CIA station chief in Saigon. This hot potato goes all the way up the chain of command. Nixon instructs Haldeman to put the kibosh on the whole thing, and CIA falls in line, refusing on national security grounds to cooperate with the court-martial authorities at all. The secretary of the Army vacates the charges. Rheault asks for reinstatement. Abrams turns him down. Rheault resigns his commission and quits the Army.

Now that's what you call Unlawful Command Influence. And that's why the protocols and procedures are in place, to guard against malice, against too-easy resolutions, and against simple-minded blowhards with too much time on their hands. More honored in the breach than in the observance.

*

I've written myself about GI's, and spooks, who puts the fix in and who gets squeezed in the middle, and I'm now happy to report I've discovered somebody else working that turf, a sort of DMZ, between the wild and the sown. Martin Limón is new to me, but that's soon remedied.

Thirteen novels and counting, beginning with Jade Lady Burning and Slicky Boys, and a story collection, Nightmare Range. So far as I know, his first published appearance was in Hitchcock, in 1991. He's mixed it up a little, but for our purposes, it's the George Sueño and Ernie Bascom series that's center ring. George and Ernie are U.S. Army CID investigators in Korea, in the 1970's. They work the street, on the edge of the rackets and the black market, at the exotic and familiar overlap of Korean and American GI culture. Not so much American, mind, as American military, itself both an exotic and familiar creature.

These are terrific books, not least because the environment is a bubble off of plumb. And they're dark, no getting around it. I'm reminded not a little of Sarah Bird's wonderful novel about a career U.S. Air Force family in Japan, The Yokota Officers Club. Her book isn't a crime story, even if in part it's about secrets, but it inhabits a sort of Twilight Zone, because the world she describes is foreign, with its cadences and rigidity, and its very own vocabulary. Martin Limón gets this cold, and he does it in a similar way, by treating it as matter-of-fact.

There's a lot to be said for turning the conventions backwards. If you accept a structure, a template, the characteristics of a Western, or a Gothic, the elements of noir, it doesn't tie your hands. It can be invigorating. Martin Limón takes the police procedural and folds it in on itself, and hands it back to you with the pin pulled out.


28 August 2013

Soldier Boy


by David Edgerley Gates

Those of you who follow my posts on SleuthSayers know I have a low opinion of Edward Snowden, the NSA leaker, but you may be surprised that my take on Bradley Manning is quite different. (Two other high-profile courts-martial rendered verdicts this past week, but the three cases have little to do with each other.)

The first question is what Manning did. Essentially, he delivered a core dump of classified materials to WikiLeaks. Two questions follow on the first. 1) Did he compromise sources and methods? Without a doubt. 2) Did he put the lives of soldiers in combat at risk? The answer appears to be more or less no, but it's a hedged bet.

The most serious offense he was charged with was Aiding the Enemy, but the trial judge acquitted. He was found guilty of violating the Espionage Act, and drew a thirty-five-year sentence, convicted on twenty counts, in all.

People unfamiliar with the UCMJ---the Universal Code of Military Justice---don't realize how inflexible it is, by design. Its obvious purpose is to enforce discipline in the ranks, both officers and enlisted. But it guarantees equal treatment, and protects the rights of the accused. In other words, the UCMJ is meant to guard against the imposition of arbitrary punishment. You can no longer be flogged for minor infractions, on the word of your captain alone, as was the rule during the Age of Sail. The power of the officers over you is structured, and not a matter of their personal whim. This is known formally as Chain of Command. Are there abuses of the system? Of course. The military is a hierarchal organization, with the strengths and weaknesses that entails, and highly formal. Duty is an obligation, freely chosen, but not a bargaining chip.

My own experience of the UCMJ was an Article 15, for Failure to Repair, and it cost me a loss in rank I had to claw back. To explain the vocabulary: an Article 15 is non-judicial punishment, administered by your commanding officer; Failure to Repair means not reporting to a required formation, which is a slap on the wrist compared to Dereliction of Duty; and, for the record, I admitted my guilt. In cases like this, the commanding officer has a certain amount of latitude, and can impose a fine, or reduction in rank, and even revoke your security clearance, but you won't go to jail. That takes a court-martial.

What does this have to do with Manning? For one thing, my job was much the same as his, battlefield analysis, even if my war was cold (the Russians and the Warsaw Pact) and his was hot. We worked under similar restrictions, and had access to secure documents and databases. Both of us, presumably, understood the consequences of the unauthorized release of restricted materials. In fact, it remains an article of faith among almost everybody I know who's worked in the spook trade that your lips are forever sealed.

Much has been made of Manning's unsuitability for the military, generally, and more specifically for his job description, handling sensitive stuff. Given his behavior patterns, he should have had his clearance pulled, and been relieved. Why didn't this happen? Because they needed warm bodies, and as manifestly unfit for duty as Manning so obviously was, they kept him at this station. The kid was desperately out of his element. His gender-identity issues have surfaced since, but even at the time, he was trapped in a hostile workplace environment, and almost certainly bullied. He was queer in the old-fashioned sense, meaning the odd guy out, an easy target for ridicule. The larger point is, that he tried going through channels. He made his unhappiness known, and although his First Sergeant did try to help him find his feet, nobody bit the bullet and recommended his immediate discharge, not only for Manning's own good, but for the success of the overall mission.

This isn't to excuse, in any way, Manning's criminal acts. He violated basic military discipline, and he broke the cardinal rule of the intelligence world. (The question of whether his airing those secrets on the Internet serves some greater good is moot, or at least not the purpose of this post. In the event, I don't buy that defense.) My real disappointment isn't with Manning, anyway. What's instructive about this whole, sorry enterprise is that the chain of command failed a soldier. Square peg in a round hole, Manning was still one of their own, and they betrayed his trust. There's more than enough guilt to go around.