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.

Your Rights as a ServiceMember

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.)