On Thu, 3 Aug 2006, TopCat357 wrote:
> "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.
Yes. It is. But it would be similar if there were a
specific law against pointing a gun at a non-treatening
individual, and there were no specific law against
killing a prisoner. Do you see the analogy here? Then
instead of charging the soldier with not obeying an
order, the prosecutor would be able to charge him with
pointing the gun and not having to go in the reason.
Most of us would find this to be outrageous.
>> 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.
Yes. I guess Article 134 might be more apropo than
cowardice. Especially, if the prosecutor didn't want to
go over the order to shoot the prisoner.
>> 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.
Still, there are some standards I'm sure. There cannot
be a complete arbitrariness on the way the law is
applied. That's my point.
>>> 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.
I would prefer to let the lawyers discuss the method
that the law would be applied. I would only demand that
Justice is preserved in the law. In the end, this is up
to the courts and the juries.
>>> 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.
I fail to see the analogy with Miranda. In the case of
the hunt for the leak on the Bush administration
conducting illegal wire taping, IIRC you mean the
leaker can be tried and convicted for leaking vice
breaking the law by being a party to the illegal wire
tapping? Wouldn't that put the leaker in the position
of violating the law whether he leaked or not?
You're saying the leaker can not be fired for refusing
to do illegal wire-taping? But he could be fired for
leaking? But how would courts know that if he didn't
tell the circumstances to the court-- thereby breaking
the law against leaking? The courts cannot know of an
illegal act unless someone breaks the law to inform
them of the illegal act of wire tapping?
In the case of Watada, he cannot obey an unlawful order
(well that's up to the court to decide, not the
prosecutor) without breaking another law. Technically,
it seems to me that Watada is not charged with
disobeying an order, and his reasons for doing so may
not be even known to his commanding officer (although
the prosecutor may be aware).
