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National Security Insiders Poll / INSIDERS POLL

Insiders: Military Justice System Capable of Fair Trial for Suspect of Afghan Shooting

U.S. soldiers of the 101st Airborne Division patrol in Mandozai, in Khost province, Afghanistan.(AP Photo/Rafiq Maqbool)

photo of Sara Sorcher
March 26, 2012

Nearly all of National Journal’s National Security Insiders agree that the military justice system can conduct a fair trial for Staff Sgt. Robert Bales, who is charged with murdering civilians in Afghanistan.

The American soldier who allegedly gunned down Afghan civilians—more than half of them children—was charged last week with 17 counts of murder as well as charges of attempted murder, assault, and dereliction of duty. If convicted, he could face the death penalty. Afghans have called for Bales to be tried in Afghanistan, but 97 percent of Insiders agree the U.S. military is capable of properly trying—and, if warranted, sentencing—the suspect.

“The military has a long history of dealing with precisely this kind of situation, taking battlefield reality into account in a way no traditional court process could do,” one Insider said.

 

(RELATED: Who Are the Insiders?)

The public has already expressed various perspectives on what would be “fair.” Afghans and many outraged Americans are calling for harsh punishment; other Americans argue for sympathy for a man facing battlefield trauma who served his country in an unpopular war.

Insiders seemed split both ways, even as they maintained their faith in the military system. “There is an alarmingly high degree of sympathy in the broader U.S. public toward Staff Sgt. Bales,” one Insider said. “A military jury will be far less sympathetic.” Bales suffered from traumatic brain injury after a vehicle rolled over during one of his three tours in Iraq.

“Judging from past military trials, the outcomes have normally been too lenient toward the accused rather than too harsh or unfair,” another Insider said. Already, the Army has announced a separate probe into how and why Bales was sent to participate in village-stability operations in the first place.

Three percent of Insiders said the military justice system is incapable of handling the case. “The military justice system dealing with combat-related killings is biased in favor of U.S. servicemen,” one Insider said.

Another Insider added: “The real question is whether his sentence will be commensurate with that given a soldier for murdering ... [at least] 16 American citizens.” For Afghans, the Insider noted, the likely delays in process will themselves appear to deny justice.

Insiders were less like-minded in their opinions on congressional moves to stave off the defense sequester. Defying the warnings of President Obama and Defense Secretary Leon Panetta, House Budget Committee Chairman Paul Ryan, R-Wis., proposed taking further defense cuts off the table in his budget proposal released last week—but 64 percent of Insiders said this was not the right approach.

"National-security needs are badly served by a failure of imagination that puts any part of the budget beyond reach. Leadership requires tough choices across the board," one Insider said.

The threat of the defense sequester will lead to a better compromise, these Insiders said. "Once lawmakers start protecting parts of the budget from the fiscal ax, then compromise on the larger issues of entitlements—the real long-term fiscal threat—becomes impossible." Necessity is said to be the mother of invention, another added. "So whatever types of necessity we can instill in this 'Do-Nothing,' gridlocked Congress should ultimately serve the nation well, or at least better."

Another 36 percent agreed with Ryan's—and other Republicans'—idea to devise a plan to keep further defense cuts out of reach. "Defense will have taken nearly a trillion dollars in hits dating back to 2009," one Insider said. "In sequestration, it is both the total amount and the way the cuts must be apportioned that is so devastating."

"Enough is enough. It is time to cut entitlements," one Insider said.

1. Staff Sgt. Robert Bales, sole suspect in the shooting spree that killed [at least] 16 Afghan civilians, was flown to a military prison at Fort Leavenworth in Kansas; formal charges could come within days. Is the military's judicial system capable of giving Bales a fair trial and sentence? (Asked on March 20)

(58 votes)

  • Yes 97%
  • No 3%

Yes

“The issue is the varying perspectives on what would be fair. Afghans believe the U.S. military cannot render justice, though I suspect most Americans believe it can. The U.S. will have to be prepared for a second wave of political fallout as this case unfolds.”

“However, it is unclear whether this fair trial, with all of its protections for the accused, will serve the U.S. policy interests in Afghanistan. If Bales is acquitted, or convicted of a lesser offense, such as for mental-health reasons, that will adversely affect U.S. policy, even if it’s a just outcome under the Uniform Code of Military Justice.”

“Yes, the system is capable of giving him a fair trial. But there is reason for concern about the politicization of the trial, and the pressure for the ‘right’ outcome to serve national-security interests, rather than those related to justice and the rule of law.”

“After the Vietnam era, the military justice system gained wide respect. In the 1980s, the Manual for Courts-Martial expanded rights and protections for military personnel. An important check and balance is the Court of Appeals for the Armed Forces, consisting of five Senate-confirmed civilian judges."

“The UCMJ establishes a higher standard of conduct for military members, and many violations of the UCMJ are not crimes beyond military jurisdiction. A courts martial will face the daunting task of reconciling standards of military conduct with nontraditional defenses related to the impact of repeated deployments and their consequence.”

“Justice under the UCMJ has been in effect since 1951 and has not been seriously challenged. It is the official law of the land for the military.”

“Having personally seen how the military’s justice system works, I can state unequivocally that not only is it capable of giving Bales a fair trial and sentence, it is also the most appropriate venue for such a case to be tried.”

“They had better be able to, or policy is in deep trouble.”

“The makeup of the jury will be his military peers, likely 12 college-educated officers. If a defendant is convicted and sentenced to death, the military jury must be unanimous. A life sentence, however, only requires a three-fourths vote.”

No

“The military justice system dealing with combat-related killings is biased in favor of U.S. servicemen. Political pressure regarding this case of noncombat-related deaths will cut both ways. The real question is whether his sentence will be commensurate with that given a soldier for murdering (or, if a foreigner, for committing ‘terrorist acts’ against) [at least] 16 American citizens (Obama’s statement set that bar). For Afghans, the likely delays in process will itself appear to deny justice.”

“The Uniformed Code of Military Justice provides the government with an unfair advantage in that Staff Sgt. Bales will not be judged by a jury of his peers in a broader sense. He will be judged by a jury of his superiors, as lower-ranking members of the military cannot judge higher-ranking ones. For every plus to the UCMJ, I can point out a minus. In the end, he may receive a far less severe sentence than what you would expect in a civilian court. He may receive a much harsher sentence. He is an enlisted noncommissioned officer and will most likely have a jury of commissioned officers, who tend to judge enlisted more harshly than their fellow commissioned officers. Look back to the [My Lai] incident; [then-Lt. William] Calley spent very little time behind bars, and there were hundreds more dead civilians there.”

 

2. Defying the warnings of President Obama and Defense Secretary Leon Panetta, House Budget Committee Chairman Paul Ryan, R-Wis., proposed taking further defense cuts off the table in his budget proposal released last Tuesday. Is this the right approach?

(58 votes)

  • No. The threat of the defense sequester will lead to a better compromise. 64%
  • Yes. Defense should not be on the table. 36%

No

"The Pentagon is the country's biggest sinkhole, and it has to stop getting deeper."

"A global budget solution is needed! Everybody needs to give somewhere!"

"Stabilizing public debt at no more 60 percent of [gross domestic product] is an accepted standard of sound fiscal policy. This will require several trillions of dollars more in federal spending cuts over the next decade. Since the cost of our recent wars exceeds one trillion dollars, Rep. Ryan is wrong to argue [that] 'defense spending is not the driver of that debt burden.' The Department of Defense will have to absorb more cuts. It might start by streamlining, such as combining the underutilized Northern and Southern commands, and by reforming its inefficient, draft-era system of military compensation."

"My answer on this is 'no,' but not for the reason of a better compromise. There is more to cut in defense, and it's time to cut it."

"Ryan cannot pass his budget in the Senate; the solution will come after the election, if at all. Sequester is there to put taxes on the table, where they belong."

"Republicans seem to think they're going to balance the budget by cutting foreign aid and discretionary domestic spending. The fact that their base is increasingly elderly prevents them from making serious efforts to reform entitlements, and their chest-beating foreign policy prevents them from making serious proposals on military spending. It's a clown show."

"Necessity is said to be the mother of invention, so whatever types of necessity we can instill in this 'Do-Nothing,' gridlocked Congress should ultimately serve the nation well, or at least better."

"The House Republicans just don't get national security. Their budget does not even mention the word 'veteran': They want to slash funds for the war-fighter and spend the money on defense contractors making weapons we needed during the Cold War. Meanwhile, they eradicate the diplomats we need to prevent war with Iran and development funds we need to stabilize the volatile Middle East. This is not a serious document."

"Of course defense should be on the table—but not because of sequestration, but because it should be based on a rational strategy, and strategies do change. Politics, however, is a beast all unto itself."

Yes

"Defense will have taken nearly a trillion dollars in hits dating back to 2009. In sequestration, it is both the total amount and the way the cuts must be apportioned that is so devastating."

"Enough is enough. It is time to cut entitlements."

"Yes, only because there have already been significant cuts made to the defense budget, and none of the threats facing the U.S. show any signs of having subsided."

National Journal’s National Security Insiders Poll is a periodic survey of defense and foreign-policy experts.

They are:

Gordon Adams, Charles Allen, Thad Allen, James Bamford, David Barno, Milt Bearden, Peter Bergen, Samuel "Sandy" Berger, David Berteau, Stephen Biddle, Nancy Birdsall, Kit Bond, Stuart Bowen, Paula Broadwell, Mike Breen, Steven Bucci, Nicholas Burns, Dan Byman, James Jay Carafano, Phillip Carter, Michael Chertoff, Frank Cilluffo, James Clad, Richard Clarke, Steve Clemons, Joseph Collins, William Courtney, Roger Cressey, Gregory Dahlberg, Robert Danin, Richard Danzig, Andrew Exum, William Fallon, Eric Farnsworth, Jacques Gansler, Daniel Goure, Mike Green, Mark Gunzinger, Jim Harper, Michael Hayden, Pete Hoekstra, Bruce Hoffman, Paul Hughes, Colin Kahl, Donald Kerrick, Rachel Kleinfeld, Lawrence Korb, Andrew Krepinevich, Charlie Kupchan, W. Patrick Lang, Cedric Leighton, James Lindsay, Trent Lott, Peter Mansoor, Brian McCaffrey, Steven Metz, Franklin Miller, Philip Mudd, John Nagl, Shuja Nawaz, Kevin Nealer, Michael Oates, Paul Pillar, Stephen Rademaker, Marc Raimondi, Celina Realuyo, Bruce Riedel, Barry Rhoads, Marc Rotenberg, Kori Schake, Mark Schneider, John Scofield, Tammy Schultz, Stephen Sestanovich, Sarah Sewall, Matthew Sherman, Jennifer Sims, Constanze Stelzenmüller, Frances Townsend, Mick Trainor, Suzanne Spaulding, Ted Stroup, Tamara Wittes, and Dov Zakheim.

This article appears in the March 27, 2012 edition of NJ Daily.

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