Military Law

Updates and Practical advice from a civilian military defense counsel.

Miranda in Iraq

/ James Phillips / Leave a comment

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)

/ James Phillips / 3 Comments

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

/ James Phillips / Leave a comment

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.

Your Rights as a ServiceMember

/ James Phillips / Leave a comment

I am a former JAG.  I have my own law firm, with several attorneys that work for us and we are dedicated to helping soldiers. www.jamesphillipslaw.com.

Many people believe that soldiers don’t have any rights.  There is a common misconception that once you join the military you have no rights to stop the chain of command from searching your private belongings, answering unauthorized questions, or stopping you from having contact with friends or family. 

Joining the military does not eradicate your Constitutional Rights.  You still have a fundamental right to freedom of association.  You still have the right to remain silent if you are being questioned in relation to a crime.  You still have the right to be free from illegal search and seizure. 

In the military, a balance is struck between whether the Chain of Command has a valid and legitimate reason to curtail fundamental rights before they can infringe on a military members essential freedoms.  Generally, if the military members rights are violated, the Chain of Command will claim that their actions were necessary due to good order and discipline.

Our firm is currently representing SSG Mitch Warner in a case where an Iraqi detainee was allegedly murder in Iraq.  In this case, which is being tried  at Fort Campbell, KY, we successfully suppressed many statements that were made to his chain of command because they never read him his Article 31 Rights.  Article 31 rights are the military’s equivalent of Miranda (You have the right to remain silent, anything you say can and will….. etc.)