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5/30/16

USA: Memorial day: Our military justice oxymoron: Why we need to be more honest and realistic about the wars we fight —- by Chris Bray

In a recent New York Times story detailing efforts to challenge the current court-martial process for U.S. soldiers whose crimes may have been influenced by their mental health, reporter Dave Phillips interviews members of politically diverse coalition of law students and former soldiers who are ‘waging a joint campaign for one of the most unlikely causes: clemency for troops convicted of killing civilians in Iraq and Afghanistan.’

Their argument? That troops under intense pressure in combat zones are often unfairly judged and given harsh sentences because the public has sanitized and unrealistic expectations of war.”

This shared effort to re-balance postwar justice is not an unlikely cause. Rather, it’s an entirely normal cause, the nearly inevitable aftermath of a sustained war. Prolonged combat grinds down the armed forces, creating predictable crises for organizations trying to keep fighting in the face of continued losses.

The hunger for combat personnel leads to a reduction of standards, with the recruiting or retention of soldiers who aren’t psychologically fit to fight. They do improper things, or horrible things, and are tried by courts-martial. Then the war ends, and soldiers and lawyers try to clean up the result. It’s a process of cause and effect that’s about as predictable as the operation of a clock.

In World War II, soldiers initially classified by local draft boards as 4-F — unfit for military service because of mental or physical illnesses — were reclassified and drafted in the later years of the war. Among those was a small, nervous man named Eddie Slovik, a convicted petty criminal who had been in and out of jail for much of his young life. He deserted the first moment he could, hiding from combat and then plainly telling his commander that he would do it again. In one of the most famous cases in the history of military justice, Slovik was the only member of the American armed forces shot for desertion during the war.

A man who could barely function in the most ordinary circumstances as a civilian, he was sent to war and expected to adjust to it. The outcome was unsurprising.

Other soldiers executed during the war were equally unsuited to military service. Pvt. William Harrison, Jr., for example, sexually assaulted and murdered a seven year-old girl in Ireland. Walter Baldwin, who was tried in a hurry for the murder of a French citizen, and for the shooting of a second citizen who survived the attack, was a problem soldier whose final court-martial conviction was preceded by many others. In a study of World

War II military executions in Europe, the retired army officer French MacLean found evidence that Baldwin had been brought before “at least” six military courts before his execution. He was trouble as a soldier because he was troubled as a person, diagnosed by army psychiatrists as a “psychopath with emotional instability and inadequate personality.” That diagnosis preceded his deployment to France, not impeding an assignment to a war zone.

Rushing millions of men into giant armed forces, the American military ended up conducting more than 1.7 million courts-martial during World War II. After the war, the unmistakable failures and excesses of the military justice system led not only to the creation of several clemency boards, but also to the lawyer-driven, root-and-branch reform of American military law that eliminated the old Articles of War and replaced them with our current Uniform Code of Military Justice.

Later, during the Vietnam War, the desperate effort to replace combat losses led to Project 100,000 – a program that sharply lowered recruiting standards, bringing a flood of high school drop-outs into an army that often chose them for combat roles. It also led to the expansion of Officer Candidate School, and to the near-elimination of standards for completing it. Among the men commissioned as new second lieutenants in the expanded OCS was the grossly unfit William Calley, later to be the only soldier convicted for war crimes following the infamous My Lai massacre. A man who should never have been a military officer became a terrible military officer, another predictable event.

The recruiting and retention crises caused by sustained wars lead to horrifying acts, which lead to postwar attempts to reconsider the limits of justice for warriors who should never have been sent into combat. That entirely predictable reality should be baked into national policy and our shared understanding of war. The impact that it would have on military law would be enormous – and beneficial.

Read more: Our military justice oxymoron: Why we need to be more honest and realistic about the wars we fight — and the soldiers we send - Salon.com

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