Sunday, July 31, 2011
Tuesday, July 12, 2011
President vs. President
President of USA salutes the veteran:
http://www.youtube.com/watch?v=2KSI9jmZL9o&feature=relmfu
President Obama awards Sergeant First Class Leroy Arthur Petry, U.S. Army, the Medal of Honor for his courageous actions during combat operations against an armed enemy in Paktya, Afghanistan in May, 2008. July 12, 2011.
Don't miss how the President lends his ears for the hero.
President of India tells veterans:
http://www.youtube.com/watch?v=2KSI9jmZL9o&feature=relmfu
President Obama awards Sergeant First Class Leroy Arthur Petry, U.S. Army, the Medal of Honor for his courageous actions during combat operations against an armed enemy in Paktya, Afghanistan in May, 2008. July 12, 2011.
Don't miss how the President lends his ears for the hero.
President of India tells veterans:
Not your grand patron in chief
The letter says the name of the President should no longer be used in any document of the IESL
http://www.indianexpress.com/news/not-your-grand-patron-in-chief-president-tells-exservicemen/813310/
http://www.indianexpress.com/news/not-your-grand-patron-in-chief-president-tells-exservicemen/813310/
Wednesday, June 22, 2011
Court Martial and "A Few Good Men"
For those who have not seen the picture earlier
The lengthy cross-examination was written by the man who brought you The West Wing, Aaron Sorkin. Do not attempt this in a court of law without a screenwriter by your side.
And just in case you think you're uniquely insecure, the brilliant Mr. Sorkin, who added, "you can't handle the truth" to the small pantheon of justifiably immortal movie lines has this to say about the process of writing:
"I love writing but hate starting. The page is awfully white and it says, 'You may have fooled some of the people some of the time but those days are over, giftless. I'm not your agent and I'm not your mommy, I'm a white piece of paper, you wanna dance with me?' and I really, really don't. I'll go peaceable-like."
THE SET UP
KAFFEE Colonel, when you learned of Santiago's letter to the NIS, you had a meeting with your two senior officers, is that right?
JESSEP Yes.
KAFFEE The Executive Officer, Lt. Jonathan Kendrick, and the Company Commander, Captain Matthew Markinson.
JESSEP Yes.
KAFFEE Yes sir. Colonel, at the time of this meeting, you gave Lt. Kendrick an order, is that right?
JESSEP I told Kendrick to tell his men that Santiago wasn't to be touched.
KAFFEE And did you give an order to Captain Markinson as well?
JESSEP I ordered Markinscn to have Santiago transferred off the base immediately.
KAFFEE Why?
JESSEP I felt that his life might be in danger once word of the letter got out.
KAFFEE Grave danger?
JESSEP Is there another kind?
KAFFEE holds up a document from his table.
KAFFEE We have the transfer order that you and Markinson co-signed, ordering that Santiago be lifted on a flight leaving Guantanamo at six the next morning. Was that the first flight off the base?
JESSEP The six a.m. flight was the first flight off the base.
THE SEEMINGLY INNOCENT LINE OF QUESTIONING SET-UP
KAFFEE gets a document from his table.
KAFFEE (continuing) After Dawson and Downey's arrest on the night of the sixth, Santiago's barracks room was sealed off and its contents inventoried. (reading) Pairs of camouflage pants, 6 camouflage shirts, 2 pairs of boots, 1 pair of brown shoes, 1 pair of tennis shoes, 8 khaki tee- shirts, 2 belts, 1 sweater--
ROSS Please the Court, is there a question anywhere in our future?
RANDOLPH Lt. Kaffee, I have to--
KAFFEE I'm wondering why Santiago wasn't packed.
THE EXTENDED MONOLOGUE-QUESTION THAT EXISTS ONLY IN MOVIES
KAFFEE (continuing) I'll tell you what, we'll get back to that one in a minute.
KAFFEE holding up a stack of documents.
KAFFEE Your honor, these are the telephone records from GITMO for August 6th. And these are 14 letters that Santiago wrote in nine months requesting, in fact begging, for a transfer.
(to JESSEP) Upon hearing the news that he was finally getting his transfer, Santiago was so excited, that do you know how many people he called? Zero. Nobody. Not one call to his parents saying he was coming home. Not one call to a friend saying can you pick me up at the airport. He was asleep in his bed at midnight, and according to you he was getting on a plane in six hours, yet everything he owned was hanging neatly in his closet and folded neatly in his footlocker. You were leaving for one day and you packed a bag and made three phone calls. Santiago was leaving for the rest of his life, and he hadn't called a soul and he hadn't packed a thing. Can you explain that? The fact is there was no transfer order. Santiago wasn't going anywhere, isn't that right, Colonel.
ROSS Object. Your Honor, it's obvious that Lt. Kaffee's intention this morning is to smear a high ranking marine officer in the desperate hope that the mere appearance of impropriety will win him points with the jury.
ROSS (continuing) It's my recommendation, sir, that Lt. Kaffee receive an official reprimand from the bench, and that the witness be excused with the Court's deepest apologies.
RANDOLPH (pause) Overruled.
KAFFEE (beat) Colonel? Jessep's smiling ... ... and now he can't help but let out a short laugh.
KAFFEE (continuing) Is this funny, sir?
JESSEP No. It's not. It's tragic.
KAFFEE Do you have an answer?
JESSEP Absolutely. My answer is I don't have the first damn clue. Maybe he was an early morning riser and he liked to pack in the nq. And maybe he didn't have any friends. I'm an educated man, but I'm afraid I can't speak intelligently about the travel habits of William Santiago. What I do know is that he was set to leave the base at 0600. Now are these really the questions I was called here to answer? Phone calls and footlockers? Please tell me you've got something more, Lieutenant. Please tell me there's an ace up your sleeve. These two marines are on trial for their lives. Please tell me their lawyer hasn't pinned their hopes to a phone bill. (beat) Do you have any other questions for me, counselor?
CIRCLING THE EVIDENTIARY WAGONS
KAFFEE Colonel, the six a.m. flight, was the first one off the base?
JESSEP Yes.
KAFFEE There wasn't a flight that left seven hours earlier and landed at Andrews Airforce Base at 2 a.m.?
RANDOLPH Lieutenant, I think we've covered this, haven't we?
KAFFEE gets the two log books from his table.
KAFFEE Your Honor, these are the Tower Chief's Logs for both Guantanamo Bay and Andrews Airforce Base. The Guantanamo log lists no flight that left at eleven p.m., and the Andrews log lists no flight that landed at 2 a.m. I'd like to admit them as Defense Exhibits "A" and "B".
RANDOLPH I don't understand. You're admitting evidence of a flight that never existed?
KAFFEE We believe it did, sir. (glancing at the paper, then motioning to the AIRMEN) Defense'll be calling Airman Cecil O'Malley and Airman Anthony Perez. They were working the ground crew at Andrews at two a.m. on the seventh.
ROSS Your Honor, these men weren't on the list. Rebuttal witnesses, Your Honor, called specifically to refute testimony offered under direct examination.
RANDOLPH I'll allow the witnesses.
JESSEP This is ridiculous.
KAFFEE Colonel, a moment ago--
CLOSING ALL OF THE DOORS OF POSSIBLE ESCAPE FOR THE WITNESS
KAFFEE A moment ago said that you ordered Kendrick to order his men not to touch Santiago.
JESSEP That's right.
KAFFEE And Kendrick was clear on what you wanted?
JESSEP Crystal.
KAFFEE Any chance Kendrick ignored the order?
JESSEP Ignored the order?
KAFFEE Any chance he just forgot about it?
JESSEP No.
KAFFEE Any chance Kendrick left your office and said, "The 'old man's wrong"?
JESSEP No.
KAFFEE When Kendrick spoke to the platoon and ordered them not to touch Santiago, any chance they ignored him?
JESSEP Have you ever spent time in an infantry unit, son?
KAFFEE No sir.
JESSEP Ever served in a forward area?
KAFFEE No sir.
JESSEP Ever put your life in another man's hands, ask him to put his life in yours?
KAFFEE No sir.
JESSEP We follow orders, son. We follow orders or people die. It's that simple. Are we clear?
KAFFEE Yes sir.
JESSEP Are we clear?
KAFFEE Crystal.
AND IF YOU'VE CLOSED ALL THE DOORS, ASKING A QUESTION YOU DON'T KNOW THE ANSWER TO IS NOT EVEN BRAVE; IT'S EASY
KAFFEE Colonel, I have just one more question before I call Airman O'Malley and Airman Perez: If you gave an order that Santiago wasn't to be touched, and your orders are always followed, then why would he be in danger, why would it be necessary to transfer him off the base?
And JESSEP has no answer. Nothing. He sits there, and for the first time, seems to be lost.
JESSEP Private Santiago was a sub-standard marine. He was being transferred off the base because--
KAFFEE But that's not what you said. You said he was being transferred because he was in grave danger.
JESSEP (pause) Yes. That's correct, but--
KAFFEE You said, "He was in danger". I said, "Grave danger". You said--
JESSEP Yes, I recall what--
KAFFEE I can have the Court Reporter read back your--
JESSEP I know what I said. I don't need it read back to me like I'm a damn--
KAFFEE Then why the two orders? (beat) Colonel? (beat) Why did you--
USING THE WITNESS' "ALWAYS" AND "NEVER" STATEMENTS AGAINST HIM
JESSEP Sometimes men take matters into their own hands.
KAFFEE No sir. You made it clear just a moment ago that your men never take matters into their own hands. Your men follow orders or people die. So Santiago shouldn't have been in any dangor at all, should he have, Colonel?
JESSEP You little bastard.
ROSS Your Honor, I have to ask for a recess to--
KAFFEE I'd like an answer to the question, Judge.
RANDOLPH The Court'll wait for answer.
KAFFEE If Kendrick told his men that Santiago wasn't to be touched, then why did he have to be transferred?
Jessep is looking at O'KALLEY and PEREZ.
KAFFEE (continuing) Colonel?
JESSEP says nothing.
KAFFEE (continuing) Kendrick ordered the code red, didn't he? Because that's what you told Kendrick to do.
ROSS Object!
RANDOLPH Counsel.
KAFFEE And when it went bad, you cut these guys loose.
ROSS Your Honor--
RANDOLPH That'll be all, counsel.
KAFFEE You had Markinson sign a phony transfer order--
ROSS Judge--
KAFFEE You doctored the log books.
ROSS Damnit Kaffee!!
KAFFEE I'll ask for the forth time. You ordered--
THE WITNESS GOES FOR THE BAIT IN THE WAY THEY DO ONLY IN THE MOVIES
JESSEP You want answers?
KAFFEE I think I'm entitled to them.
JESSEP You want answers?!
KAFFEE I want the truth.
THE IMMORTAL MOVIE LINE
JESSEP You can't handle the truth!
And nobody moves.
JESSEP (continuing) Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who's gonna do it? You? You, Lt. Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the marines. You have that luxury. You have the luxury of not knowing what I know: That Santiago's death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives. (beat) You don't want the truth. Because deep down, in places you don't talk about at parties, you want me on that wall. You me there (boasting) We use words like honor, code, loyalty...we use these words as the backbone to a life spent defending something. You use 'em as a punchline. (beat) I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it. I'd prefer you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand a post. Either way, I don't give a damn what you think you're entitled to.
KAFFEE (quietly) Did you order the code red?
JESSEP (beat) I did the job you sent me to do.
KAFFEE Did you order the code red?
JESSEP (pause) You're goddamn right I did.
KAFFEE Please the court, I suggest the jury be dismissed so that we can move to an immediate Article 39a Session. The witness has rights.
____________________________________________________________________________________
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Do stop to think about the real points these videos drive home.
Tuesday, June 21, 2011
Time to put the Court Martial on Trial
Time to put the Court Martial on Trial
Chandra CP Nath
nath@computer.org
June 21, 2011
Strident cacophony in the Indian media about arresting corruption in the Indian Defense forces has sent Indian Army scrambling for action. Where does the cacophony of the media leave Indian Military Justice system is a question I first raise in this article. In addition, the thesis developed for this article is that the current Military Justice System is weighed against the accused and is violative of the human rights. The Indian system will be examined with close reference to that of United Kingdom as these originated from the single common source of Roman laws. article is that the current Military Justice System is weighed against the accused and is violative of the human rights. The Indian system will be examined with close reference to that of United Kingdom as these originated from the single common source of Roman laws.
Did the Indian Chief of Army Staff violate the law by trying to shield his Principal Staff Officer? If the original decision not to prosecute Lt General Avdesh Prakash was based on sound professional judgment, why did he buckle and order a Court Martial? Are matters of honour of distinguished soldiers decided in such a flimsy fashion? To come under pressure because of media onslaught and to ask the Chief to order a court martial may itself be violation of law by the Indian Defence Minister because he is interfering with strictly judicial powers of the Chief.
It is an accepted dictum that to perform a superior judicial function, security of tenure is mandatory. Does the Chief or for that matter, any one working under him have any security of tenure? Constitution of India Article 311 protects bureaucracy but not men in uniform! A Naval Chief was dismissed by the RM and there was not even a whimper!
Is the military justice system as it exists in India to day violative of Human Rights? The case of Findlay v. United Kingdom decided unanimously by the European Court of Human Rights on February 25, 1997 that courts martial are violative of Human Rights had a major effect on courts-martial in all the countries that derived its military laws from the English laws. The resulting changes and reforms forced on UK's system through the Armed Forces Act 1996 and 2006 prove the point that it is just a matter of time that some one raises human rights violation of all courts martial.
Lt General P K Rath was punished severely for giving security clearance for a school in the military area. Did the prosecution prove a culpable mental state where he committed the crime knowingly, intentionally, recklessly and/or negligently or was it just an error of judgment in an administrative function?
Contrast this with a Lt General who was alleged to have tampered with the war diary during Kargil operations. This is not an error of judgment but an alleged crime committed knowingly, intentionally and recklessly, in the field of military operations in the face of the enemy. He allegedly makes an official record, knowing that it is false in a material respect he knows or has reasonable cause to believe that the record was official. He was not even charged with an offense leave alone punished because no media pressure forced the Chief to order a court martial. In contrast the error of judgment in a purely administrative function committed by Lt General PK Rath was charged and punished. The only difference was, one was placed as the accused in front of a court martial and the other was not. So, every thing revolves around who is placed as the accused in front of a court martial. There was no media pressure on the Chief to charge the Lt General in the Kargil operations. Does it mean media determines who should be charged, who not to be charged? Didn't the Chief breach a known duty to prosecute?
It did not require much deliberation for the European Court to pronounce that the court martial was not an “independent and impartial tribunal", that it was not a tribunal “established by law". The members of the court martial were appointed ad hoc, that the judge advocate's advice on sentencing was not disclosed, that no reasons were given for the decisions taken by the court-martial, the conforming and reviewing officers, and that the post-hearing reviews were essentially administrative in nature and conducted in private. European Human Rights Court (in Findlay v. UK in 1997) expressed the unanimous opinion that there had been a violation of Article 6 para 1 of the Convention (art. 6-1). All the officers appointed to the court were directly subordinate to the convening officer who also performed the role of prosecuting authority. The lack of legal qualification or experience in the officers making the decisions either at the court martial or review stages made it impossible for them to act in an independent or impartial manner.
Any accused in a court martial in India could claim that his trial by court martial failed to meet the requirements of Article 6 para 1 of the Human Rights Convention (art. 6-1).
The recent spate of widely publicized trials by court-martial of high ranking Generals have hopefully focused national attention on military justice.
Let us remember what US Supreme court as stated in O'Callahan v. Parker that military trial of soldiers committing civilian offenses should always be viewed with suspicion. There is substantive disapproval of the general use of military courts for trial of ordinary crimes. Courts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law."
Should we not accept the legal principles of stare desis and jurisprudence constante as established in the Human Rights Courts quoted?
Indian Military Justice system is an anachronism as it is totally derived from what was promulgated for a colonial army for the expansion of colonies by the colonial power and not suited for the citizen soldier of a democracy which should believe in liberal values of human rights and protection of the same from usurpation by the State. UK has totally overhauled their system under pressure from Human Rights courts. USA, Australia, Canada and New Zealand have also revised their laws pertaining to military justice system to come to terms with the requirements of a modern society. If the Indian Parliament is convinced that the military justice system is bereft of the essence of justice, drastic reforms may, hopefully, be forthcoming.
__________________________________
Time to Put Military Court Martial on Trial
Devils Article: Conduct un-becoming & Violation of Good Order and Military Discipline
Devils Article: Conduct un-becoming & Violation
of Good Order and Military Discipline
Chandra CP Nath
June 20, 2011
of Good Order and Military Discipline
Chandra CP Nath
June 20, 2011
”The lack of legal qualification or experience in the officers making the decisions either at the court martial or review stages made it impossible for them to act in an independent or impartial manner.” writes European Human Rights Court (in Findlay v. United Kingom in 1997) while declaring that the Army Courts Martial of UK are violative of Human Rights.
Further, European Human Rights Court expressed the unanimous opinion in this particular case about the UK Court Martial, that there had been a violation of Article 6 para 1 of the Convention (art. 6-1). All the officers appointed to the court were directly subordinate to the convening officer who also performed the role of prosecuting authority.
Remember Indian Court Martial which are modeled on the lines of UK Court
Martial are no different in this respect and it is just a matter of time Indian
Court Martial will also be declared violative of Human Rights of the accused.
Lt General Rath, just because he was in uniform could be punished for an
error of judgement in a purely administrative function. Is this the way we treat
India’s distinguished soldiers who have served with distinction for more than
30+ years? Why would any one like to join the military if young men realize
that the society is thankless for the service these men in uniform provided in a
life time career?
I am not saying that the GCM should be lenient to people who have really
committed despicable crimes against society. Is it a despicable crime against
society to want a school adjacent to the military area? The fact that the school
is not part of Mayo College is not reason enough to declare that the security
clearance is defective. Have the prosecution proved the immense security danger
to Indian military establishment from this particular school as against Mayo
College? Did the judges of the GCM ask the prosecution this question? Is this
a military offence to provide security clearance to this particular school?
In a scathing critical remark, US Supreme court stated in O’Callahan v.
Parker:
[T]he catch all Article 134, conduct prejudicial to good order and
military discipline, punishes as a crime ’all disorders and neglects
to the prejudice of good order and discipline in the armed forces.’
Does this satisfy the standards of vagueness as developed by the civil
courts? A civilian trial is held in an atmosphere conducive to the
protection of individual rights, while a military trial is marked by
the age-old manifest destiny of retributive justice.
The corresponding Section 63 of the Army Act or its equivalent has been the
weapon of choice to punish men in uniform who just could not be charged with
any other offence. This catch all offence has been a subject of research in the
military law all over the western world. ”Conduct unbecoming”, the favourite
title for this offence in the legal research, is more than a cosmetic feature of
military justice. This crime has put military law to work in many other armies
in the world and that too for centuries.
The practice of falling back to offence under the ”Devils Article”: Army Act Section 63 when you can not charge the accused with any other military offence under the Army Act is a very old one with lot of history behind it not just here in India but all other Armies where the laws were derived from English laws which was originally derived directly from Roman Laws.
The setting of boundaries for acceptable officer conduct, whether in grave cases that might lead to a capital court-martial or in relative minor incidents that could result in an Article 133 violation, reveals the military’s efforts to set itself apart from, and even above, the civil society and Constitution it defends” writes Elizabeth L Hillman in Law and Inequality, A journal of Theory and Practice.
As recently stated by eminent jurists:
None of the travesties of justice perpetrated under the Uniform Code of Military Justice (UCMJ) is really very surprising, for military law has always been and continues to be primarily an instrument of discipline, not justice.- Glasser, Justice and Captain Levy, Columbia Forum. The reason the Military justice system is under constant attack from every quarter in the western society and there is constant attempt to improve it or at least doubt its ability to provide justice is a very positive thing. The reason why it is not under attack in India is tragic because it smacks of certain insensitivity to the fairness of the system to one who has volunteered for service with the military and his willingness, if and when necessary to make the supreme sacrifice in call of duty for the nation. Even the courts in India including the Supreme court have maintained a hands off stand much to the detriment of the consumer of the military justice system, i.e. the man in uniform.
Lord Chief Justice Hale wrote that trial by military courts may not be permitted in time of peace, when the King’s Courts are open for all Persons to receive Justice according to the Laws of the Land.” Hale,CJ commented that military justice is
not a true system of law at all, but is ”something indulged, rather than allowed as a law” because of the need for order and discipline in the army. Sir William Blackstone agreed.
Is retributive justice the goal of a civil society that values liberties and human rights? Should a liberal democratic society like India go back to ancient societies where such values were denied to its soldiers? Should those men in uniform who defend freedoms of such a liberal democratic society be themselves deprived the fruits of such values? These are questions that should engage any intelligent citizen in general and jurists in particular.
”This crime (conduct un-becoming) has put military law to work assuaging fears that an increasingly heterogeneous military is in danger of un-becoming itself. Its history reveals the unstable hierarchies that make the military intelligible not just to outsiders, but to officers - and gentlemen- themselves” concludes Hillman in her article titled: ”Gentlemen Under Fire: The US Military and ”Conduct Unbecoming” in Law and Inequality, A journal of Theory and Practice.
Legislators and jurists can make bad laws. Society changes and the laws lag behind. This is nothing new. So, worthwhile jurists must be concerned not just with what the law is, but, most importantly, with what it ought to become. The best way to conclude this article is by quoting Charles M Schiesser and Daniel H. Benson in their milestone article titled ”Modern Military Justice”: In the long run, the patient’s health will be more improved by proper diagnosis and treatment, than by either a refusal to admit the illness, or a desire for the patient’s demise.
Put Media on Trial Before we Punish the General
Chandra CP Nath ∗
June 21, 2011
Lt General of the Indian Army will soon be facing a Court Martial in India. Crime
he (LT Gen Avadesh Prakash) committed: he tried to influence another official of the Indian Army! The question for debate is: Is it a crime to influence the decisions of another government official? And who is baying for the head of the
accused General? The media. The media in its enthusiasm to curb corruption is swinging into action to urge the RM and the Chief to take criminal action against a General,(in his capacity as PSO of the Chief of Army Staff) who tried to influence the actions of another General in his capacity as a Corps commander.
More:
Put Media on Trial
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