Day Three LT Behenna Trial

I (www.jamesphillipslaw.com) had another opportunity to go out to watch today’s trial at Fort Campbell in US v. LT Behenna.  Today was in some ways a clear turning point for both the government case and for the defense. 

The government case concluded today with three very strong witnesses.  “Harry” the interpreter testified this morning and through his own interpreter came across as a fairly strong witness.  “Harry” went through the events which took place on 16 May 2009, describing the how 1LT Behenna shot and killed Ali Mansur in the desert outside of FOB Summerall.

Lead defense counsel Jack Zimmerman had a very good methodical cross on “Harry.”  He got Harry to say that Ali Mansur was a “Bad Man” or a “terrorist” numerous times.  He also was able to create a defense opening in the fact that Harry did not see several critical moments during the shooting.

Next, the Government called SSG Seate.  His testimony established that LT Behenna had spoken about the killing in the DFAC sometime later.  The conversation seemed to acknowledge the illegality of the act.  Zimmerman was able to get SSG Seate to say that LT Behenna was changed after the death of his men in April 09. This will later help establish that LT Behenna was very emotionally effected by the loss of his men in the April IED attack.

Finally, the government closed with SSG Warner.  I don’t want to comment too much on my client and his testimony other than to say that he was problematic for both the government and the defense.  Based on the questions that were asked by the panel of SSG Warner, they definitely considered much of what he said as substantive, despite Jack Zimmerman’s excellent cross, establishing SSG Warner’s potential biases.  Also, Jack Zimmerman cleverly was able to get SSG Warner to talk about the mandatory minimum of Life Imprisonment without parole for the offense of premeditated murder.  For the defense, this was an opportunity to remind the panel of their heavy burden in this case and to remind them that if they convict LT Behenna he will face the same mandatory minimums.

After SSG Warner’s testimony, the government closed.  They have presented a strong case, but left several doors open for the defense.  One of them being that Ali Mansur’s actions at the time of the shots being fired have not clearly been defined.

The defense presented two expert witnesses today.  The first expert witness was a pathologist out of Texas.  Essentially, he tried to establish that Ali Mansur was standing at the time he was hit with the first shot. The second expert witness was a crime scene re-constructionist.  He also attempted to establish that Ali Mansur was standing at the time he was hit with the first shot.  This was important because it would show that the physical evidence contradicts the testimony of  SSG Warner and Harry.

CPT Erwin Roberts crossed examined both expert witnesses effectively.  He was able to call into question their expert opinions by demonstrating that they may not have had enough crime scene date to make a correct opinion that was in direct contravention to the witnesses that testified. 

The panel seemed to pick up on CPT Robert’s cross, because their written questions to the expert witnesses were very much concerned which crime scene data was used for the expert opinions.

Update on LT Behenna Trial

I (www.jamesphillipslaw.com) was at Fort Campbell today and watched a portion of US v. Behenna.  The prosecution is three quarters of the way through their case.  The case so far has consisted of laying the foundations for proving the murder. The case seems strong, but the defense has yet to present their evidence and that will probably not begin until early Thursday morning. 

The panel members (or the civilian equivalent to a military jury) were fully engaged and very attentive today.   1LT Behenna’s panel consists of seven officers on the panel.  One woman and six  men have been selected for Behenna’s panel.  Four members of the panel are captains.  The other three are field grade officers.  A majority of the panel appears to have combat experience.

The prosecution will present the meat of their case tomorrow.  “Harry” the interpretor, who was with 1LT Behenna at the time of Ali Mansur’s death, is expected to testify.  He is expected to testify to witnessing Ali Mansur getting shot.  Strange as it may seem, if “Harry” follows his pattern from the Article 32 hearing, he will testify as the interpretor through an interpretor.  After “Harry” is done testifying, SSG Mitch Warner is expected to be the final witness in the prosecutions case.  He will also testify as an eye witness to the events that took place in the desert.

Jack Zimmerman, the civilian defense counsel for 1LT Behenna, vigorously fought any characterization of Ali Mansur’s death with the words “homicide” and “crime” today.  His defense team lodged several objections to the prosecutions characterizations of the death with any words that resembled a crime.  The argument may have seemed to be one of semantics to the panel, but the defense clearly was sending a message with the objections that they were objecting to the prosecutions entire case.  They are trying to focus the panel on the idea that this may have been a lawful killing.  They also do not want to have the panel  prejudge Behenna prior to them being able to put on their defense.

The defense will begin presenting evidence probably this Thursday.  They will probably follow up with their promises made during opening arguments, which will mean that they will put evidence on that will demonstrate that 1LT Behenna was not thinking clearly at the time of the killing.  They will also probably put on evidence showing that Ali Mansur may have been a suspected terrorist.

CPT Johnston, 1LT Behenna’s acting commander during the investigation, testified today regarding his preliminary investigation into the death of Ali Mansur. After his testimony, the panel presented the military judge with several written questions.  The questions presented by the panel were very thoughtful and seemed defense oriented.

The prosecution brought several witnesses to testify from Iraq.  The Iraqis testified through an interpretor. 

There were several journalists in the audience, but overall, the case has not drawn the media attention it probably deserves.

The Premeditated Murder Trial of 1LT Michael Behenna

1LT Michael Behenna is scheduled to go to trial for premeditated murder on 23 February 2009.  This trial will take place at Fort Campbell and Judge Theodore E. Dickson will preside. A panel (or jury) of officers will consider the evidence presented by the Government. The first day of the trial will probably consist of panel selection and possibly opening Arguments.  There are good lawyers on both sides of the fence in this case.  Mr. Jack Zimmeran, a civilian defense counse out of Texas, is an extremely competent and experienced attorney, who is  representing 1LT Behenna.  He is being assisted by two appointed Trial Defense Attorneys from Iraq and his civilian co-counsel. On the other side, the Government has a capable team of prosecutors consisting of CPT Megan Poirier, CPT Erwin Roberts and CPT Elbert.  CPT Poirier has lead the charge on this case since the facts began to develop in Iraq in June and July of last year.

1LT Behenna is being tried for the premeditated murder of Ali Mansur.  Ali Mansur was a detainee that was scheduled to be released by 1LT Behenna’s platoon on 16 May 2009.  Subsequently, Ali Mansur’s burnt naked body was found in the desert. 

The trial should take about a week.  Evidence presented will consist of Iraqi witnesses brought from Iraq to testify.  Members of the platoon who were there the night the events took place.  Expert witnesses to testify to the validity and interpetation of the scientific evidence.

The 101st has had several of these kinds of cases over the last few years.  Notable, 2nd Brigade of the 101st had a series of detainee death cases several years ago, but these cases were different in that facts did not immediately come to light and at least one of the soldiers involved had ended his term of service prior to be charged with the offenses.

More on SSG Mitch Warner and his appeal process

I am the lead counsel in US v. Warner. I am a military lawyer and nothing in this blog is meant to be construed as developing an attorney-client relationship between me and you.  If you want me to be your lawyer, contact either –www.jamesphillipslaw.com and www.ucmjlawyer.com.  Also, this update is written with the permission of my client SSG Mitch Warner.  He has consented to waive any attorney-client privilege to help clear his name.

For anyone who has read my blog on SSG Warner, you will know that I believe in SSG Warner as both a soldier and a citizen.  Over the time I have defended him in this Court-Martial, I have come to respect him as a person and as a combat veteran.  He deserves better than he is getting from the US Army.

Mitch Warner was convicted of several offenses and is currently beginning to serve his 17 month sentence.  He was convicted of the maltreatment of a suspected Al Queada member who may have been linked to the death of several members of SSG Warner’s platoon.  At trial, Ali Mansur, the Iraqi detainee that was ultimately killed, was made out by the government to be a humble citizen of Iraq who was unfairly treated by our US Soldiers.  There is evidence that this is just not true.  One of the reasons that this entire tragic event took place, which resulted in the killing of Ali Mansur by 1LT Behenna, was that Ali Mansur was suspected in participating in the killing of American Soldiers near COB Speicher.  5th Platoon, the platoon the both 1LT Behenna and SSG Warner, were assigned to, took significant casualties just a few weeks prior to the May 16, 2008 death of Ali Mansur.  Mr. Mansur was picked up by 5th Platoon and was detaineed as part of the investigation of those deaths.  For a reason unknown to the defense team, Ali Mansur was order to be released from custody and was to be returned to his home by 5th Platoon.  Now, it doesn’t take a genius to know this was probably not a good decision on the part of the chain of command.

For SSG Warner, these facts do not change the outcome of his trial.  He now must begin to ask for both clemency and to appeal his sentence.  In the Army, the appeals process is two-fold, (1) the convicted Soldier may appeal to the convening authority, and (2) after that, they may appeal to a higher level court.

The first part of the process is termed as 1105 and 1106 matters.  Essentially, this will allow the defense team to submit additional matters in mitigation to the “convening authority.”  In the military, a military judge makes a determination as to the appropriate sentence in every judge alone case.  After the verdict is read, it still must be approved by the convening authority.  In this case, the Commander of the 101st Airborne Division (AASLT) may take action on the case and has the option of lowering the sentence.  It is his discretion based on matters submitted by the defense and a recommendation submitted by the Staff Judge Advocate of the Post. 

In Mitch Warner’s case, we will ask the convening authority to lower the sentence.  SSG Warner has distinguished himself as a soldier and in this case, based on the nature of the offenses, SSG Warner should not serve any additional time in confinement.  SSG Warner has an impeccable service record, to include Air Assault instructor, three tours in Iraq, numerous firefights and heroic actions in combat.  In addition, he has spent the past months defending himself against a charge of premeditated murder that he was not guilty of.

If the sentence, as approved by the convening authority, includes death, a bad-conduct discharge, a dishonorable discharge, dismissal of an officer, or significant confinement, the case is reviewed by the Army Court of Criminal Appeals.  In this case, both the type of discharge and the amount of confinement warrant an appeal.  Although SSG Warner would be afforded a military lawyer for his appellate defense, we would like for him to be represented by a team of civilian lawyers.  If you want to help with this endeavor and participate in the ongoing legal defense of SSG Warner, you may donate money to the Phillips Law, PLLC Trust Account.  Call our office at (931) 552-5679 for instructions on how to get involved in this case.  Get the word out to everyone you know.  This is a soldier that we should not forget and the more the better.

SSG Mitch Warner Update (Alleged Detainee Abuse)

I am the lead counsel in US v. Warner. I am a military lawyer and nothing in this blog is meant to be construed as developing an attorney-client relationship between me and you.  If you want me to be your lawyer, contact either –www.jamesphillipslaw.com and www.ucmjlawyer.com.  Also, this update is written with the permission of my client SSG Mitch Warner.  He has consented to waive any attorney-client privilege to help clear his name.

As a military defense counsel, any time you go to trial there is a wide array of emotions.  Today was one of those days.  SSG Mitch Warner was sentenced by Judge Theodore E. Dixon at Fort Campbell, Kentucky to 17 months of confinement, reduction to E-1, and a Bad Conduct Discharge.  He was found guilty, based on his own pleas to charges of Assault Consummated by Battery, False Official Statement and Maltreatment.  Three charges were dismissed by the Government prosecutors: premeditated murder, obstruction of justice, and accessory after-the-fact.

The charges that were dismissed were more significant than the charges that what SSG Warner plead guilty to.  The press has continually pointed their finger at SSG Warner as though he was a co-conspirator with 1LT Behenna in planning to kill the Iraqi detainee in this case.  There is nothing farther from the truth.  SSG Warner had no knowledge that the detainee Ali Mansur was going to be killed on 16 May 2009.  He had no intention of killing Ali Mansur.  He did not want Ali Mansur dead.

The sentencing case offered problems for both the defense and the prosecution of SSG Warner’s case. SSG Warner is a great soldier and an infantry Non-Commissioned Officer.  He served in Iraq multiple times.  At the sentencing hearing,  one of the Sergeants that served with him in Iraq described how he and SSG Warner had come under fire when an IED exploded on the vehicle that they were in.  SSG Warner and SSG Seal had to pull out one of the soldiers in the vehicle who had been mortally wounded by the IED.  In the process of pulling the soldier out of the vehicle, her arm fell off.  SSG Warner was able to set up a landing zone for the choppers to come in and medivac soldiers.  He was wounded in the incident and continued to help his wounded comrades.

1LT Michael Behenna will go on trial next week for the charged offense of premeditated murder.  He is represented by a very capable civilian attorney, Jack Zimmerman, out of Texas.  They will have to deal with many of the same issues the we had to deal with in US v. Warner.

Ali Mansur, the Iraqi that was maltreated near COB Speicher, was killed in Iraq last May.  Ali Mansur was allegedly murder by 1LT Behenna. He was a suspected member of Al Qeada.  The members of 5th platoon believed that Ali Mansur was the chief financier in the killing of several members of 5th platoon.  Members of the platoon, to include SSG Warner and 1LT Behenna captured Ali Mansur after an IED exploded that killed the members of 5th platoon. There was intelligence to indicate that Ali Mansur was involved in the killing and after he was detained by 5th platoon, he was processed into the detention facility.

Unfortunately, the Chain of Command in this case decided to release Ali Mansur and they had 5th platoon release him back into the civilian population.  Ali Mansur never made it back to the village.  He was stripped naked in the desert and shot.  The allegation against 1LT Behenna is that he shot Ali Mansur point blank.

SSG Warner was in the wrong place at the wrong time.   1LT Behenna is accused of leading Ali Mansur into the desert and shooting him point blank.  SSG Warner, unfortunately, believed that they would humiliate Ali Mansur and make him walk back to his home naked.  This is the offense maltreatment offense SSG Warner plead guilty.  SSG Warner did not have any knowledge that Ali Mansur would be shot and killed.

As an NCO, SSG Warner should probably have stopped his 1LT.  He had a duty to uphold the Army values and he has admitted that he didn’t do that.  For the defense and SSG Warner, it is a victory that the charges of premeditated murder, accessory after-the-fact and obstruction of justice were dismissed.  This properly reflects the fact that SSG Warner did not have any responsibility for the death of Ali Mansur.

Ultimately, this case highlights a disturbing issue.  With so many deployments, soldiers like SSG Warner can make mistakes in the combat zone.  It has become increasingly hard to distinguish enemy combatants from civilians.  Ali Mansur had a questionable status and was being investigated for possible involvement in killing US soldiers.  SSG Warner has served our country loyally and made a mistake.  Today, the Army lost a great combat soldier.

AWOL- A Crime? Or a Soldier Quitting a Job?

Absent Without Leave (AWOL).  www.ucmjlawyer.com and www.jamesphillipslaw.com.

We offer self-help legal for AWOL at invisblelawyer.com.  AWOL is a crime under Article 86 of the Uniform Code of Military Justice.  The crime itself is problematic because the question has to be asked, “is it really a crime?”  Oh, I know, you hard core military folk are going to disown me for this one.  I mean, here I am, a two time war vet, bronze star recipient, saying that AWOL may not be a  crime.

Now, for all my soldiers that are reading this because you are AWOL and looking for advice, you may just want to scroll to the end of the blog now so that you can get helpful tips for getting out of your predicament.

For all others, follow along, when soldiers go AWOL, they are usually  highly disenchanted with their unit.  Many times they have drug problems or family problems that are causing them to think irrationally.

I have found that there are generally two types of soldiers that go AWOL.  (1) The soldier who has been in for several years, is a junior NCO and has been to Iraq.  Many of these guys have just had it with their chain of command and due to PTSD issues or emotional problems just decide to disappear. (2)  The other type of soldier is the relatively new soldier, virtually a trainee, who doesn’t know how to put in for a voluntary administrative discharge, so he just leaves.

Most soldiers who go AWOL are using it as a means to get a discharge.   A civilian job allows the employees to quit.  I mean, it is reasonable for people to tell their boss to “take this job and shove it.”  The military doesn’t allow you to do that, but really, why should the military be different than civilian employment?  The argument of course is that civilians don’t go to war.

But, this difference creates a problem.  Do we really want people, in an all-volunteer military, to be forced to come to work everyday?

As a legal assistance officer at Fort Campbell, I remember when Fort Campbell had a policy that any homosexual soldier would be out of the Army within 72 hours.  This policy was a result of the Winchell incident, when a soldier was beaten to death for being a known homosexual.  But, many soldiers, who didn’t want to be in the Army, would claim that they were gay in order to get out of the Army.  At Fort Campbell, this was a quick and painless ticket home.  They would get an honorable discharge and an annotation on their DD 214 stating they were discharge for Homosexual Conduct. What was a  little stigma between friends?  The reality was that the soldiers that really wanted to get out of the Army would do and say anything to get out.

For me, I think there ought to be some way that soldiers can get administratively discharged based upon several voluntary reasons.  Soldiers that don’t want to be in the Military should not be there.  A soldier with a bad attitude can drive the whole unit into the ground.

Col. Joseph Anderson, now General Anderson, was the Brigade Commander for 2BCT, 101st Airborne Division (Air Assault).  Once we got back from Iraq, he had a policy of quickly removing soldiers that were guilty of doing drugs from his units.  He was less interested in court martialling them than he was getting them out of the unit.  The longer a soldier with a drug problem was in the unit, the more disgruntled he would become.  Eventually, the soldier’s bad attitude, use of drugs and insubordination would eventually become like a cancer and spread to other members of the unit.  Getting them out was a means of keeping the unit disciplined and clean.

AWOL has the same effect on a unit.  A soldier who has been AWOL for any period of time becomes “civilianized.”  He has normally decided that he no longer wants to be in the military and he is a cancer within the unit.  He is generally insubordinate.  Many times he no longer has military clothing.  He doesn’t have money. He lives in the barracks and has limited access to the military post’s amenities.  He will hang out with other soldiers that are disgruntled and they will begin to ferment within the unit.

Generally, the AWOL soldier can also be rehabilitated within society as a whole.  Many times they are smart young guys that need more time to mature.  As they become older and more mature, they will regret their bad choices and begin to try to fix their transgressions from their younger days.  I see this when these guys come back years later, grown up and matured, wanting to fix their military records.  They have to go through the slow agonizing process of submitting an application to a Military Discharge Review Board.

Now, for you AWOL guys.  Here is the best advice I can give you.  TURN YOURSELF BACK IN.  Get back within military control and get this thing over with.

The longer you were gone, the more likely you will need an attorney.  But, each military unit has some discretion on how they deal with each and every AWOL.  This means that some units will discharge the soldier with little to no hassle.  Others will be quite severe.

Once you turn yourself into the unit, do not give a statement.  You have Article 31, which means you have the right to remain silent and you have the right to an attorney.  You should not make any statements to the chain of command because even though it seems pretty simple, if they take you to a Court Martial, they still have to prove the charge and usually it is easier to prove a charge when a guy has admitted it than not.

Also, you will be entitled to a Trial Defense Attorney.  You should take advantage of this.  AWOL punishments vary from post to post, so your local Trial Defense Services attorney will be able to give you the lay of the land and help you decide what your best course of action will be.  Many times the TDS attorney can get you administratively discharged rather than have to go through the pain of a Court Martial.

Miranda in Iraq

Right after Bush announced “Mission Accomplished,” in 2003, I was serving with the 101st as a JAG in Iraq.  After securing Baghdad, Gen. Petraeus convoyed the division North to Mosul.  By July, I was heading up what we had facetiously dubbed the Mosul Office of Judicial Operations (the MOJO). Our mission was to reestablish a judiciary in Northern Iraq.  www.jamesphillipslaw.com

My day to day operation consisted of going down to the Mosul courthouse to supervise the Iraqi judges (all BAATHISTs).  Funny enough, the statutory codes that the Iraqis had on the books were quite democratic.  They were based on the British System.  But, although the system looked good on paper, the actual workings of the judicial system was corrupt and about what a person would expect of Saddam’s regime.  Generally, a detainee or criminal would never get to the courthouse.  Once detained, the police would sweat the family for money by holding the prisoner at the local police station.  If the family couldn’t pay, eventually, he would make it to the courthouse.  There he would have an opportunity to tell his story to the judge or a panel of judges.

My job was to jump start the system and end decades of corruption.  Obviously this Quixotic quest was fraught with both peril and a cerain sense of futility.

The head judge was a big bellied arrogant man who had been a powerful member of the local Baath party.  Our presence scared him, but he didn’t want to lose his esteemed position so he did what we told him. 

In the late summer of 2003, after a lot of dangerous and hard work, my MOJO team had gotten the police to stop holding the prisoners in the jails and actually start sending the prisoners to the courthouse.  Of course, this created several logistical problems, too many prisoners at the court house, but we felt good at helping to move the wheels of justice forward.

Then, we got a message from the State Department and the Department of Justice back home.  In their infinite wisdom, they had determined that it was time to give the Iraqis several Americanized rights.  One of those rights was the right to remain silent.  The other right was the right to a lawyer.  Now, these lawyers from the State Department and the DOJ, weren’t in Iraq, and hadn’t a clue as to the effects this would produce.  They also probably didn’t realize that under the Saddam Regime, the Iraqis had a their own British System of justice.  A system of justice that does not rely on Miranda, the watershed case granting Americans the right to remain silent and the right to a lawyer.

The day after we were given the order to institute the new changes to the Iraqi law, in the form of a Coalition Order, we went down to the Mosul Courthouse and explained the need for Miranda to the Head Judge.  He seemed perplexed but called all the lawyers together, about fifty of them in Ninevah province and explained what we would be doing.   They did not agree with the changes, nor understand the need for them.

What happened next was mind boggling.  Within days, the entire judicial system in Northern Iraq shut down.  The Courthouse became an engine of inefficiency.  Criminals were angry.  Lawyers were frustrated.  Average citizens were confused.

The criminals hated the idea of remaining silent.  They wanted to tell their side of the story.  There is a tradition in Iraq that you get to lie about the crime you committed.  Criminals in Iraq believe they have the right to tell the judge how they have been wrongfully detained and that weren’t at the scene.  They have thousands of stories ready for the judge and happily change each and every version as they go along.  The idea that they would not be able to lie to the judge was repulsive to them.

Second, waiting for the appointment of a lawyer, was not a satisfactory answer.  The criminals hated lawyers, even defense lawyers.  They didn’t trust the lawyers and felt as though this was a way to railroad them into prison. 

Essentially, Miranda had taken away their right to defend themselves.

Also, since there wasn’t enough lawyers because there had never been a right to a lawyer before and the DOJ and State Department had not funded court-appointed lawyers.  No one had the money or inclination to hire a lawyer.  The Courts didn’t have the money to pay for the lawyers.  So, without a mandated lawyer, the system shut down.

The ideals were good, but it was a fiasco in practice.  The Iraqis were not appreciative nor ready for the American ideals.  Sadly, they are probably still not ready for those same ideals.

Post Traumatic Stress (PTSD)

Post Traumatic Stress Disorder has become an increasing problem for the military.  The Army Times this month has reported that more soldiers have died due to suicide than in combat.  This is a disturbing statistic.

Many of our clients have served several tours in Iraq and Afghanistan.  www.jamesphillipslaw.com and www.ucmjlawyer.com. They have been highly decorated for their combat service.  The problem is that emotionally, when they come home from the combat zone they are not ready for civilian life.  At home, they exhibit symptoms associated with PTSD.  They become aggressive.  They experience nightmares.  They have violent tendencies.  They are anti-social.  They begin to self-medicate.

I had a client that had all of these issues.  He was court martialed for a series of criminal misadventures, to include grand theft auto, drug use, adultery, etc.  At sentencing, the prosecutor argued that this soldier should recieve the max punishment for his misconduct.  The problem was that this is the typical military view.  Misbehaving soldiers are criminals.  The Military struggles to have a holistic response.

In this case, the judge was presented with evidence that our client had PTSD and that he was a forever changed person from his experiencing in Iraq. Our client testified that as soon as he came home he could not associate with his family.  He had a solid relationship with his wife and baby prior to leaving for Iraq.  Once overseas, he was repeatedly placed in harm’s way.  He was diagnosed with PTSD upon his return from Iraq.  When he got back from Iraq, he sent his wife and baby home.  He then started drinking, smoking pot, and just losing his mind.

 After the prosecutors closing argument, the judge asked “Is that really the government’s position?”  The answer was “yes.”  The judge replied, “well then I will dismiss everything the government just said.”

The reason for this was that this is a ridiculous and morally bankrupt response.  What do you do with these soldiers who have been damaged by their experiences in Iraq and Afghanistan?

We successful used his behavior and his PTSD diagnosis to keep our client from being punished with a punitive discharge.  The problem was that in the end, the Army did not know what to do with this soldier.  He cannot cope with being in the Army; yet, he needs sustained and long-lasting treatment. The Army owes him his long term health care. They owe him a VA disability.  The judge understood that.  The Army doesn’t. 

The only thing his command knew to do was to send him to a court martial.  For them, the soldier’s behavior was criminal.  For us, his behavior was a tragedy that needs to be addressed in a healthier way by the military.  Combat is not going to end.  Ignoring PTSD is not going to stop soldiers from experience trauma.

US v. Warner

As the lead civilian counsel for the defense team in US v. Warner, I, as defense lawyer, am faced with some interesting military issues and potential defenses.  www.jamesphillipslaw.com.

My law firm is currently representing SSG Warner in an ongoing military courts-martial.   One of the wonderful things about representing SSG Warner is that he is a great soldier.  He has been deployed numerous times to combat zones.  He has been in the thick of the action throughout his military career.  As a defense attorney, I am lucky because my client is innocent of the allegations and next week will be highly exonerated.  But, the case does bring up several issues.

The alleged “victim” in this case is a suspected Al Qaeda operative that was probably involved in the death of members of SSG Warner’s squad.  Legally,  what do you when the “criminals” (serious sarcasm here) are productive members of the military who have made crimnal decisions, but within the context of war?  This is a very convoluted way of saying- what is right, what is legal, what is ethical and moral in an immoral combat zone?

As a former JAG, these questions were not as difficult during the first Gulf War or my first go round with the 101st in Iraq in 2003.  The enemy looked somewhat like a traditional enemy.  They fired rockets.  The fired weapons.  The need for self-defense dictated the need to respond.  This all got much more troubling the longer we were in Iraq.  In early 2004, the moral questions looked more like US v. Warner than they did Saving Private Ryan or Band of Brothers.