Is SFC Charles Martland being discharged for not committing a war crime?

The 2011 arrest of Jerry Sandusky, a former assistant football coach at Penn State, on charges of sexual abuse of minors shocked the nation, Pennsylvania in particular. He was convicted and sentenced to 30 to 60 years in prison.1 The Democrats tried to get political mileage over the slowness of the criminal investigation under Governor Tom Corbett (R-PA), who had previously been the Commonwealth’s Attorney General, and Kathleen Kane, a Democrat, was elected to become Attorney General.2 Penn State head football coach Joe Paterno was fired, because he failed to stop or report Coach Sandusky, and the NCAA vacated the 111 wins Coach Paterno had racked up since 1998, so that he would no longer be the winningest head coach in college football.3 Mr Paterno died in January of 2012, and was thus never charged with any crimes for covering up Mr Sandusky’s crimes, but University President Graham Spanier, Athletic Director Tim Curley and Vice President of Finance and Business Gary Schultz, who had oversight authority for the campus police, have all been charged with various felonies for failing to report Mr Sandusky to state law enforcement officials. Basically, anyone who was involved in any way with failing to stop Coach Sandusky, or enabling him to get away with his crimes, is facing real punishment, something with which most people strongly agree. The NCAA imposed sanctions on Penn State’s football program.

Perhaps those of us living in the Keystone State heard more about the story than others, but it was still a nationwide scandal, and President Obama heard, and spoke, about it:

President Barack Obama says the Penn State sex-abuse scandal should lead to “soul-searching” by all Americans, not just Penn State.

“Obviously what happened was heartbreaking, especially for the victims, the young people who got affected by these alleged assaults,” he told Westwood One Radio in an interview Friday night, in his first public comments on the scandal.

“And I think it’s a good time for the entire country to do some soul-searching – not just Penn State. People care about sports, it’s important to us, but our No. 1 priority has to be protecting our kids. And every institution has to examine how they operate, and every individual has to take responsibility for making sure that our kids are protected.” . . . .

Obama said that the scandal shows that “you can’t just rely on bureaucracy and systems in these kinds of situations. People have to step forward, they have to be tapping into just their core decency.” When kids are mistreated – or anyone, for that matter – “all of us have to step up, we don’t leave it to somebody else to take responsibility.”

Why, then, are President Obama, Secretary of Defense Ash Carter, Secretary of the Army John McHugh4, and Army Chief of Staff General Mark Milley allowing Sergeant First Class Charles Martland, a decorated Green Beret and Bronze Star recipient, to be forced out of the Army for assaulting an Afghan police commander who had been raping a young boy?5 The Army is blaming SFC Martland’s involuntary separation on force reduction cuts, but it was the disciplinary action for attacking the Afghan police commander which put a black mark on his record to make him eligible to be cut. As far as I am concerned, SFC Martland’s only failure is that he didn’t kill the police commander; that pig deserved a bullet, on the spot, right between the eyes.

The New York Times documented this case, noting that this isn’t just an isolated incident, but actual DoD policy:

KABUL, Afghanistan — In his last phone call home, Lance Cpl. Gregory Buckley Jr. told his father what was troubling him: From his bunk in southern Afghanistan, he could hear Afghan police officers sexually abusing boys they had brought to the base.

“At night we can hear them screaming, but we’re not allowed to do anything about it,” the Marine’s father, Gregory Buckley Sr., recalled his son telling him before he was shot to death at the base in 2012. He urged his son to tell his superiors. “My son said that his officers told him to look the other way because it’s their culture.”

Rampant sexual abuse of children has long been a problem in Afghanistan, particularly among armed commanders who dominate much of the rural landscape and can bully the population. The practice is called bacha bazi, literally “boy play,” and American soldiers and Marines have been instructed not to intervene — in some cases, not even when their Afghan allies have abused boys on military bases, according to interviews and court records.

The policy has endured as American forces have recruited and organized Afghan militias to help hold territory against the Taliban. But soldiers and Marines have been increasingly troubled that instead of weeding out pedophiles, the American military was arming them in some cases and placing them as the commanders of villages — and doing little when they began abusing children.

“The reason we were here is because we heard the terrible things the Taliban were doing to people, how they were taking away human rights,” said Dan Quinn, a former Special Forces captain who beat up an American-backed militia commander for keeping a boy chained to his bed as a sex slave. “But we were putting people into power who would do things that were worse than the Taliban did — that was something village elders voiced to me.”

The policy of instructing soldiers to ignore child sexual abuse by their Afghan allies is coming under new scrutiny, particularly as it emerges that service members like Captain Quinn have faced discipline, even career ruin, for disobeying it.

After the beating, the Army relieved Captain Quinn of his command and pulled him from Afghanistan. He has since left the military.

There’s a lot more at the original.

How is it, we have to ask, that the President who told us that we all needed to do some soul-searching, and that every person has to take responsibility for seeing to it that children are not sexually abused, and the chain of command under him, are not just allowing child sexual abuse to take place, on American military bases, but have a policy in place ordering our soldiers and Marines to ignore it; we aren’t just allowing child rape, but are actively enabling it.

Military Orders

To Obey or Not to Obey?

By Rod Powers | US Military Expert

When one enlists in the United States Military, active duty or reserve, they take the following oath:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.

National Guard enlisted members take a similar oath, except they also swear to obey the orders of the Governor of their state.

Officers, upon commission, swear to the following:

I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.

Military discipline and effectiveness is built on the foundation of obedience to orders. Recruits are taught to obey, immediately and without question, orders from their superiors, right from day-one of boot camp.

Military members who fail to obey the lawful orders of their superiors risk serious consequences. Article 90 of the Uniform Code of Military Justice (UCMJ) makes it a crime for a military member to WILLFULLY disobey a superior commissioned officer. Article 91 makes it a crime to WILLFULLY disobey a superior Noncommissioned or Warrant Officer. Article 92 makes it a crime to disobey any lawful order (the disobedience does not have to be “willful” under this article).

In fact, under Article 90, during times of war, a military member who willfully disobeys a superior commissioned officer can be sentenced to death.

Seems like pretty good motivation to obey any order you’re given, right? Nope. These articles require the obedience of LAWFUL orders. An order which is unlawful not only does not need to be obeyed, but obeying such an order can result in criminal prosecution of the one who obeys it. Military courts have long held that military members are accountable for their actions even while following orders — if the order was illegal.

I was only following orders,” has been unsuccessfully used as a legal defense in hundreds of cases (probably most notably by Nazi leaders at the Nuremberg tribunals following World War II). The defense didn’t work for them, nor has it worked in hundreds of cases since.

The first recorded case of a United States Military officer using the “I was only following orders” defense dates back to 1799. During the War with France, Congress passed a law making it permissible to seize ships bound to any French Port. However, when President John Adams wrote the order to authorize the U.S. Navy to do so, he wrote that Navy ships were authorized to seize any vessel bound for a French port, or traveling from a French port. Pursuant to the President’s instructions, a U.S. Navy captain seized a Danish Ship (the Flying Fish), which was en route from a French Port. The owners of the ship sued the Navy captain in U.S. maritime court for trespass. They won, and the United States Supreme Court upheld the decision. The U.S. Supreme Court held that Navy commanders “act at their own peril” when obeying presidential orders when such orders are illegal.

There’s more at the link, but the obvious question is: are soldiers and Marines obeying the policy of not interfering with Afghan police and military raping boys obeying an unlawful order? Rape, and other forms of sexual violence, are considered war crimes, when committed in an armed conflict and used in a systemic way to intimidate and control a civilian population. If bacha bazi is simply a common cultural manifestation, it might not meet the definition, but if there is evidence that the victims are members of populations otherwise controlled by the Taliban, or are intended to keep local populations from sympathizing or allying with the Taliban, such could be considered war crimes, and any order or policy of the United States to ignore and allow these rapes would also be war crimes, and constitute illegal orders.

And if they are war crimes, then SFC Martland is being punished for not committing a war crime.

I am not an attorney, and most definitely not an international law attorney, but I have read a lot of history, and international law tribunals have previously defined things as war crimes, and imposed punishments, concerning things which were not considered war crimes previously.6 It is not at all improbable that, were the US to subject itself to such tribunals, that our policy itself could be considered a war crime, and the President and the subordinate officials who perpetrated this policy to be guilty of war crimes.

I am a practical man, and I fully recognize that war is Hell, and a lot of not-very-nice things are going to happen in war, because they are necessary for achieving victory. But allowing Afghan commanders to rape little boys, with impunity, even on American military bases, is not something necessary for winning the war in Afghanistan. Given that the Taliban are very strict in their imposition of their own moral code, it’s very likely that the Taliban are seen as better than the Afghan commanders, and the American military policies enabling those commanders, in this area.

We learned in Iraq that freedom and democracy are difficult concepts to impose on another culture, a culture which has never really experienced them. But if we want some form of freedom and democracy in Afghanistan, as we say we do, enabling the thug behavior of local Afghan commanders to continue is certainly not freedom, and will not give any of the civilians any confidence in whatever form of government we hope to leave behind. Had SFC Martland simply shot that Afghan commander in the head, most of the Afghan civilians would have thought a whole lot better of the American military.
1. The earliest possible parole date would be October 9, 2042, when Mr Sandusky will be 98 years old, so it is, in effect, a life sentence.
2. Mrs Kane was subsequently indicted on charges of illegally leaking grand jury information and then lying about it under oath.
3. That decision was subsequently reversed, and the wins credited to Penn State and Coach Paterno.
4. Secretary McHugh has announced his resignation; President Obama has nominated an open homosexual, Eric Fanning, to be his replacement.
5. Secretary McHugh has delayed SFC Martland’s separation for sixty days during his appeal.
6. The entire notion of war crimes has always seemed to me to be the excuses used by the winners to hang the losers, and a form of ex post facto law and criminal punishment.