SOF Soldiers under an ever-changing legal fire

I have recently represented several special forces soldiers in tab revocation proceedings. These soldiers were under investigation for misconduct, some real and some perceived.

In the 5th Special Forces group, the commander has a policy letter on tab revocation requirements for misconduct.  As part of the tab revocation, there is a requirement to reclass the soldier out of the 18 series MOS.  So, he loses both the Green Beret and the actual ability to operate in his field.  My response to this is two-fold, (1) I am always saddened to see such highly trained and successful soldiers lose both their MOS and their tab; and (2) I am amazed at the changing landscape of the SOF Community.

Several years ago, I wasn’t hired by many SOF Soldiers.  This has changed radically.  I have represented 18 series Soldiers in many Courts-Martial and Administrative Separation Boards recently.  In the old days, if a Green Beret committed misconduct, the misconduct was swept under the rug and not much was done to the tabbed Soldier.  This developed into an idea of the “big boy” rules, where the tabbed soldiers were expected to be professional, without a lot of supervision.  In the absence of the soldier’s professionalism, many times the command would not know what to do.

Those times have change.  There have been several embarrassing incidents, which have brought unwanted attention to the commands, are causing commanders to reevaluate the “big boy” rules.  Drinking incidents have begun to result in administrative discharges for tabbed soldiers.  Criminal conduct downtown and while deployed the same.

With so much training and expertise, these decisions to end these special careers should be examined carefully by the commands.  We can’t have soldiers who run amuck, but I sure hate to see all that courage and all those tax dollars flow down the drain.

SSG Warner heads home

I (www.jamesphillipslaw.com) spoke to SSG Mitch Warner’s family on Monday morning.  They solidly stand behind Mitch and are now beginning to gather the evidence required for us to put on an appeal for SSG Warner.  In speaking to them, they spoke of their disappointment with the US Army and the decision-making that lead to the death of detainee Ali Mansur by LT Behenna.

SSG Warner is now headed to Fort Sill, OK, where he will serve the balance of his seventeen month sentence.  He will be close to home and at least he will finally be finished with his combat tours.

One of the questions taht I have never gotten an answer for in this case is Why did LT Behenna’s higher headquarters and unit release Ali Mansur to 5th platoon?  This seemed extremely odd to me.  5th platoon had lost soldiers and had several wounded just a couple weeks prior.  Ali Mansur was a suspect in those killings and that IED attack.  5th platoon had gone out and picked Ali Mansur and took him into the detainee detention facility as a suspect in the death of the soldiers.

So, why in the world, when the higher ups had decided that Ali Mansur had no information and couldn’t be held for the attack, did the chain of command use the same platoon that picked him up as a suspected terrorist to drop him off to the local population?  There are no good answers.  One answer would be that the Chain of Command wanted LT Behenna to have someone kill Ali Mansur.  If there was a deliberate and conscious knowledge of Ali Mansur’s alleged AQI association, the COC may have thought that LT Behenna would find a way to have Ali Mansur killed.  They could have dropped him off with those Iraqis that wanted him dead.  They could have faked an incident or escape.  The expectation may have been that 5th platoon would find a way to get the job done.

But, I am not much of a conspiracy theorist.  The more likely answer is that this was just stupid negligence.  The Chain of Command should have known that there would be an issue with the drop off of this detainee, but they were just too busy or distracted to think of the clear implications of this drop off.

Either way, this was an event that should have been avoided.  The command had a responsibility to know that soldiers that have been under attack and have suspected terrorist in detention for those attacks are not the soldiers that should drop that detainee off to the local populace.  This is a no brainer.

SSG Warner and LT Behenna are now both serving time for a death of a detainee.  The trials of both men were complicated by the fact that they each knew that Ali Mansur was a suspected AQI member.  LT Behenna did have justification for the killing, but it probably wasn’t the justification that the US Army wants to hear.  Regardless, this whole event should have been stopped before it ever got started.  Another platoon should have done the drop off.  The blame for the shots being fired can be laid at LT Behenna’s feet, but the death of Ali Mansur and the conviction of two US Infantrymen can be laid at the feet of the chain of command

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.

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.