"Alvin E. Toda"
lava.net> wrote in message
news:1154367003-sch@news.lava.net...
> I think that my opinions are just that: opinions. Whether they
> are intelligent is up for debate. Just as any other person's
> opinions. I like to listen to others' opinions and react to
> them. This news group is a good place for that because there are
> others like you who are interested in the same topics such as
> this one. I have written a few letters to the editors of the
> local papers. But it is difficult because they only publish a
> small fraction of the letters that they receive. So it hardly
> seems worth the effort. I've no doubt that you have sound legal
> reasons for believing that the military can convict Watada of a
> crime and not charge him with a real crime.
>
> But he has a good lawyer, and if the military can do that, then
> there is something fundamentally wrong with their law. In that
> case, it needs to be changed and I'm sure it will be appealed to
> the highest court, and military courts must follow acceptable
> Constitutional standards.
>
> Here's an analog of this point. Suppose you are ordered to kill
> a prisoner, and you refuse to obey that as an unlawful order.
> Can the military charge you for not pointing the gun at an
> enemy?
Very bad analogy, but your point is not lost - I'll try to address each:
There are written directives (intepret as written lawful orders) that
clearly state that "shooting a prisoner" without just cause, (self-defense)
is an illegal act. He could be charged with a UCMJ violation if he failed
to report that he was given an illegal order by a superior.
>By doing so they can avoid the issue of an unlawful
> order, and charge you with cowardice (a catch-all for "conduct
> unbecoming of an officer")?
Article 134 - is a general charge, that states "any punitive offenses not
otherwised specifiied under the UCMJ, that bring discredit upon the military
services" What you are calling "cowardice", would fall under the article
titled "Misbehavior before the enemy". Again examine the elecments, and the
"prisoner scenario" you describe is outside the scope of this charge. So
the answer is NO.
>If they can avoid the basic crime, then they can do this for other crimes.
>Justice just depends on how much your superior officers like you.
True - just like civilian life. Look at the 2nd procesution of Micheal
Jackson for child molestation. California passed a law specifically to
allow prosecution child molestation without consent of the victim, in
response to the first allogations and the subsequent out-of-court
settlement.
>> Just read the articles of the UCMJ that Watata was charged
>> with, and the glass becomes crystal clear. Take the first
>> offense Article 87 - Missing movement. This is the offiense as
>> quoted from the UCMJ: "Any person subject to this chapter who
>> through neglect or design misses the movement of a ship,
>> aircraft, or unit with which he is required in the course of
>> duty to move shall be punished as a court-martial may direct."
>
> This is kind of interesting. IIRC about 35 years ago, there was
> a kind of mutiny on a submarine based in Pearl Harbor where an
> officer gave an order which the crew felt, might have sunk the
> sub. So they were charged with mutiny when they returned. Now
> can they be charged with mutiny for confining the officer in his
> room, without discussing the order that the officer gave? Can
> the sailors who missed the disembarkment of the sub for that
> reason be charged for article 87 (they did it by "design" after
> all) withOUT discussing their reason? If that is so, then the
> military has probably violated a basic civil right of theirs. If
> there is a crime, then criminal intent MUST be proved?
>
I still get the feeling that you are NOT reading the UCMJ punitive articles.
Your base questions can be answered by reading the elements section of each
charge in these scenarios. Please read up on Article 99 - Muinty and
Sedition, then repost your questions w/ that additional information. There
is plenty of material here for discourse, but I need to get you on a level
playing field. In your review of Article 99, check the section of the
Article that talks about "lesser included offenses". AGAIN, a law degree is
NOT required to review, understand and interpret this code for YOURSELF.
Make your own opinions, the difference between lawyers and lay people has
more to do with a exensive knowlege of legal interpretations of case history
as our form of justice is based on legal precedence, and courtroom
procedures than "divine inspiration". Remember, the U.S. Constitution is
written in plain English.
>> That's it. Plain and to the point. The defense must find
>> fault with the prosecution's case such that one of these
>> elements did not occur. Anything else is irrelevent as to
>> guilt or innocence.
>
> This is a problem with me. It is an assumption that the
> defendent had criminal intent. Nothing is further from the truth
> of the matter. This case is more like a whistle blower
> infraction-- where the defendent is compeled to break the law
> because of a greater crime. IE should he break a lesser law to
> avoid participating in committing a greater crime? In the case
> of Watada, he seems to want to take the consequences of the
> lesser crime so that the greater crime will be discussed as
> well. Some would argue here, that if indeed a greater crime is
> being committed, then being forced to break a lesser law
> (disobeying an order) is not really a crime.
>
You are assuming that the Bush policy in prosecuting the war in Iraq is a
criminal matter. We will discuss foreign policy later in this post. But to
address your points:
1) You cannot break a lessor law, in order to prosecute what can be seen as
a greater crime. Whistleblowers cannot break the law in order to provide
information to the authorities about wrongdoing. They are protected against
retailiation ONLY, not breaking the law. The most well known example of
this legal procedure is "Miranda vs. Arizona": You hear the results of that
case on every cop show since 1966. "You have the right to remain silent..,
etc,etc." Miranda confessed to the kidnap and rape of a mildy retarded 18
year old girl, but was never told that he could remain silent or could have
a lawyer present. His conviction was overtuned at the U.S.Supreme Court
because his right to silence was violated. He was subseqently re-tried and
convicted a 2nd time using independent evidence of the crime. The same
applies to search and seizure procedures - if the search of a premises was
illegal, then any product of that search is considered inadmissible at
trial, even if the evidence such as a murder weapon - material in proving
the prosecution's case is discovered. These aspects of judical procedure
cannot be qualified based on some "arbitrary level of importance", It
applies to all levels, or we are a totaliarian dictatorship.
