Military Trials in the Spotlight

June 17th, 2013

Within a 48 hour period this month, legal proceedings against three high-profile military defendants simultaneously entered center stage.

June 3rd: The court-martial of Army PFC Bradley Manning began for his involvement in the largest leak of U.S. classified information in history. He is being prosecuted on 21 counts for materials sent to WikiLeaks.

June 3rd: The start-and-stop legal mill for Major Nidal Malik Hasan re-started, only to stop again. Hasan is the Army psychiatrist responsible in 2009 for the biggest mass killing on a U.S. military base, claiming 13 lives and wounding 32 others at Fort Hood. He requested, and was granted the right against the court’s advice, to represent himself. Proceedings stopped again for the judge to rule on Hasan’s latest request-a three month trial delay to prepare his defense.

June 5th: A plea hearing was held for Army Staff Sergeant Robert Bales on his involvement in one of the worst atrocities of the Afghan war-rampaging through two villages in March 2012, killing 16 civilians and burning several bodies.

Two cases involve defenses in which defendants claim their actions were on behalf of others.

Manning admits ten of the 21 charges against him, denying the more serious charges of endangering U.S. national security and aiding the enemy. He argues he sought to educate the public on U.S. government actions contrary to its public disclosures, stimulating debate on the war. His defense team claims he wanted “to make a difference…selecting information he believed the public should see…that would make the world a better place…he was good-intentioned.”

Pressed by the judge about having admitted his actions were wrong if his motivation was the “greater good” of enlightening the public, a contrite Manning admitted, “Regardless of my opinion or my assessment of documents such as these…it’s not my authority to make these decisions” about releasing confidential files.

Manning’s actions-exposing 700,000 pages of material revealing secrets in the fight against terrorism-endangered sources helpful in prosecuting it.

Media sources gaining access to classified documents try to ascertain whether lives and/or national security will be endangered by such publication. Lacking good intelligence overview, they often fail to give the government benefit of the doubt, resulting in damaging publications. But when told of this by a media source Manning earlier approached, he turned to WikiLeaks-knowing it would publish without concern. This was not naiveté; this was power exercised without concern lives would be at risk.

Manning’s actions also undermine the warrior’s creed that brothers-in-arms protect each other. Violating it, he endangered them, among others. Accordingly, he deserves the maximum prison sentence.

Hasan raises “defense of others” in shooting unarmed U.S. personnel preparing to deploy to Afghanistan. He claims he was defending the Taliban, including leader Mullah Muhammad Omar.

The wheelchair-bound Hasan, paralyzed below the waist during his shooting rampage, makes a circus of trial proceedings-refusing to shave his beard due to his Muslim faith, refusing to wear the required uniform, refusing legal representation, etc. But while bucking military regulations, and succeeding, he continues to receive full pay.

His is a “Hail Mary” defense that should get him nowhere. Difficult enough for an experienced defense lawyer to raise, it will be impossible for Hasan to argue. It requires proving such “others” were being targeted by an “unlawful” force presenting an “immediate” threat. The “others” he was protecting was the enemy (Taliban) leadership, located thousands of miles away. Thus, neither “unlawful” nor “immediate” apply. (An alert Hasan might argue “unlawful”-i.e., non-enemy-applies as Vice President Joe Biden has claimed, “the Taliban per se is not our enemy.”)

Analysts suggest Hasan’s defense raises a new issue-i.e., admitting he carried out the attack on behalf of a foreign enemy-makes him an “unlawful” enemy combatant. This has consequences both for him, requiring he be tried as such, and for his victims, who would then be entitled to full combat benefits. While the U.S. refuses to call Hasan’s attack (Islamic) terrorism-labeling it “workplace violence”-to avoid inhibiting a fair trial, that label prevents his victims from receiving such benefits.

Of the three defendants, Bale has been the most forthright-wanting to admit his guilt publicly. Allegedly pumped up on steroids and alcohol at the time of the massacre, he entered no defense. Queried why he did it, he responded, “I’ve asked myself that a million times and there is not a good reason in the world for the horrible things I did.” His state of mind at the time plus the stress of numerous combat deployments will be considered at sentencing.

While Bates and Manning acknowledge all or part of their guilt, a defiant Hasan does not-showing absolutely no remorse. Like Bates, Hasan too is pumped up on steroids-but his are derivatives of a violent religion deluding him he has a duty to slay infidels.

All three will spend decades in prison for their actions. Two will do so suffering the consequences of their guilt; one never will.

Lt. Colonel James G. Zumwalt, USMC (Ret.), is a retired Marine infantry officer who served in the Vietnam war, the U.S. invasion of Panama and the first Gulf war. He is the author of “Bare Feet, Iron Will–Stories from the Other Side of Vietnam’s Battlefields,” “Living the Juche Lie: North Korea’s Kim Dynasty” and “Doomsday: Iran–The Clock is Ticking.” He frequently writes on foreign policy and defense issues.

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