By Maj. Gen. Jerry R. Curry, US Army Ret.
If you are a member and deciding cases for the United States Court of Appeals for the Armed Forces (CAAF), to whom do you give the benefit of the doubt? Do you give it to a terrorist who has already killed two US servicemen and is trying to kill a third one, or do you give it to the third American who is fighting the terrorist for his life?
The CAAF ruled that because a service member decided to do an interrogation on his own without orders from a higher authority, the interrogation was unauthorized and therefore the interrogator was technically guilty of “Pointing a firearm without authorization at a suspected enemy outside of an “active battlefield situation,” and therefore he technically had “Lost his right to self-defense, to fight for his life.”
On that technicality 1Lt Michael Behenna was tried, found guilty and imprisoned. The technicality in question was, does a “Servicemember in a combat zone categorically forfeit the right to self-defense as a matter of law by pointing a firearm without authorization at a suspected enemy?” The court said, “Yes,” so Lt Behenna was not given the benefit of the doubt. Instead, he was sentenced to 25 years in prison.
When a member of the American military is punished for trying to do the right thing, without orders, it undermines the credibility that the Commander-in-Chief – President Obama — has with his troops. Almost without exception the soldiers and officers I’ve talked to believe that President Obama holds them in low regard and doesn’t care how many of them get killed in Iraq and Afghanistan, or end up serving long prison sentences for some trumped up charge or technicality.
Whether that is true or not, President Obama is believed to not be respectful of the nation’s military. Rather, his reputation among the troops is one of ignoring good, sound military advice from his generals and embracing hair brained advice from ignorant members of his civilian staff who have a personal political aim to advance.
President Obama is quick to publicly say how much he enjoys finding a way around the Congress by taking out his pen and signing presidential executive orders. Up until now, he has only used his pen to thwart Congress and the Republican Party. And he has been quite successful at it. But there is a way he could also use his pen to garner military votes and the votes of those who are supporters of our military in this fall’s election.
By moving carefully he could indulge one of his favorite pastimes, ruling by fiat; could get around Congress and the Supreme Court. Added to that, he could start breaking down the barrier between his Administration and the nation’s Armed Forces.
So what is this magic elixir that would contribute to the solving of all these problems? It is nothing more than a careful review of all serious military court martial cases starting with the beginning of the Iraq and Afghanistan Wars, based on the “Benefit of the Doubt” principle. In all cases where there is doubt as to whether the servicemember is guilty or not guilty, President Obama could take out his magical pen and resolve it in favor of the serviceman and his family; he could grant the servicemember a full pardon.
By giving those who endanger their lives serving in the military the benefit of the doubt, President Obama loses nothing and gains much. He could gain the respect of the American families whose love ones he pardons; not to mention the thankfulness of the communities these families live in. A wise, bipartisan Congressman will know how to take credit for the President’s pardoning of a military constituent in his state or district.
At the same time, an important point of law needs to be established. Just because you point a weapon at someone does not mean that you have sacrificed your right to self-defense. It may only mean that you are saving your own life and the lives of the American soldiers fighting alongside you.
Sometimes courts such as the CAAF make mistakes, especially when it is composed of judges who have no combat experience and who see nothing wrong with technically coming down on the side of a terrorist to the detriment of the American servicemembers who daily risk their lives implementing President Obama’s policies.
On the battlefield nothing can replace common sense and doing what you know to be right no matter what your orders are. War is an art, not a science. Soldiers do their best fighting when they are certain that their Commander-in-Chief will, in every case, give them the benefit of the doubt as opposed to his giving a terrorist the benefit of the doubt.
Jerry Curry is a retired Army Major General, Deputy Assistant Secretary of Defense in the Carter administration; Acting Press Secretary to the Secretary of Defense in the Reagan administration; and Administrator of the National Highway Traffic and Safety Administration in the Bush Sr. administration.