Necessity’s Cold Wisdom

President Obama Looking SadIn 2008 then-Senator Barack Obama ran a successful campaign again his lame duck predecessor, President George W. Bush, largely focusing on the “evils” of President Bush’s methods of prosecuting the War on Terror.

Since his election, however, President Obama has had to quietly renege on his not-quite-promises to change how America defended itself, its interests, and its allies and has had continue as Bush started.

Sadly for Obama, there reaches a point where one cannot do things quietly and cannot easily find someone else to blame for having to make hard, dirty, and imperfect decisions because necessity’s cold wisdom demands them and allows no alternatives.

On Monday, March 7, 2011, President Obama issued an Executive Order reauthorizing the military commissions to prosecute alleged terrorists held at Guantanamo Bay, Cuba.

President Barack Obama said Monday that the United States will resume using military commissions to prosecute alleged terrorists held at the Guantanamo Bay, Cuba, detention facility.

The announcement said the Obama administration remains committed to closing the controversial detention facility, but will rescind its previous suspension on bringing new charges before military commissions.

The commissions are military proceedings rather than trials in civilian courts. In an executive order accompanying his announcement, Obama also authorized prosecuting Guantanamo detainees in U.S. criminal courts, when appropriate.

Obama previously pledged to close the Guantanamo Bay facility within a year of taking office in January 2009. However, it remains open today due to legal complexities involving the status of some detainees and congressional opposition to holding trials for high-profile suspects in U.S. criminal courts.

Shortly after Obama’s announcement, Defense Secretary Robert Gates announced the withdrawal of his prior suspension of new charges before military commissions.

Crow is never a tasty meal and having serve yourself up steaming platter of it and choke it down while in public is one of least pleasant things any person may have to do in the course of his or her life. Being the POTUS and having to do it before the whole world at the start of your re-election campaign would have to make it even worse.

I could gloat and chortle over how this will hurt Obama in the 2012 elections. I choose not to do so. On the issue of Gitmo I believe Obama was sincere, ignorant but sincere.

I derive little or no pleasure in watching Obama have to publicly abrogate his principles under the harsh pressures of reality.

Frankly, this was the best decision that Obama has made since he was elected. It was not only the first he acted like an American President, it was the first time he truly acted like and American man.

This is not because using the military commissions to try these vermin is a decision I agree with, though I do. It’s not even that using the military commission is intrinsically a good thing either geopolitically or ethically. It is because all other options are worse and worse by orders of magnitude.

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Charges Facing Manning

Bradley Manning - Queer, Traitor, DoomedUS Army Pfc. Bradley Manning is facing serious charges because of his traitorous release of large amounts of classified material. He he is charged with three (3) separate crimes under the Uniform Code of Military Justice.

The most serious of these crimes is breaching Article 104 – Aiding The Enemy, which is a capital offense.

He is also charged under Article 92 – Failure to Obey Order or Regulation and Article 134 – General Article. The latter is a catch-all for improper behavior by military personnel that isn’t specifically covered by other Articles under UCMJ.

In all, with the original charges and the recent additional charges, Manning is facing 34 Specifications – very close to what are called “counts” in the civilian courts – between the three (3) charges.

  1. Article 104 – Aiding The Enemy (1 Specification)
  2. Article 92 – Failure to Obey Order or Regulation (9 Specifications)
  3. Article 134 – General Article (24 Specifications)

Article 104 carries the death penalty or any other legal punishment that the court-martial or military commission decrees. Both Articles 92 and 134 allow for any legal punishment short of execution that the court-martial or military commission decrees.

It is reported that the prosecution will not seek the death penalty under Article 104, seeking life imprisonment instead. Under UCMJ however, the convening authority, not the prosecution, has the final decision as to whether or not to impose the death penalty. This combined with the broad latitude in sentencing allowed to the court-martial or military commission which will hear the case makes it anyone’s guess what will happen.

My guess it that about 10 of the specifications under Articles 92 and 134 will be dropped due to redundancy and lack of evidence and that, at the end of the day, Manning will be sentenced to a Bad Conduct Discharge and Incarceration for Life + 69 years (3 years / specification).

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UCMJ Article 104

This is the text of America’s Uniform Code of Military Justice (UCMJ), Article 104 – Aiding The Enemy. for the sake of conciseness it does not include the entirety of the additional explanatory text which can be found here.

Article 104 – AIDING THE ENEMY

Any person who–

  1. aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or
  2. without proper authority, knowingly harbors or protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly;

shall suffer death or such other punishment as a court-martial or military commission may direct.

Elements

  1. Aiding the enemy.
    1. That the accused aided the enemy; and
    2. That the accused did so with certain arms, ammunition, supplies, money, or other things.
  2. Attempting to aid the enemy.
    1. That the accused did a certain overt act;
    2. That the act was done with the intent to aid the enemy with certain arms, ammunition, supplies, money, or other things;
    3. That the act amounted to more than mere preparation; and
    4. That the act apparently tended to bring about the offense of aiding the enemy with certain arms, ammunition, supplies, money, or other things.
  3. Harboring or protecting the enemy.
    1. That the accused, without proper authority, harbored or protected a person;
    2. That the person so harbored or protected was the enemy; and
    3. That the accused knew that the person so harbored or protected was an enemy.
  4. Giving intelligence to the enemy
    1. That the accused, without proper authority, knowingly gave intelligence information to the enemy; and
    2. That the intelligence information was true, or implied the truth, at least in part.
  5. Communicating with the enemy.
    1. That the accused, without proper authority, communicated, corresponded, or held intercourse with the enemy, and;
    2. That the accused knew that the accused was communicating, corresponding, or holding intercourse with the enemy.
    3.  

“Enemy” is for the purposes of UCMJ defined in Article 99 – Misbehavior Before the Enemy (paragraph – 23c(1)(b)):

Organized forces of the enemy in time of war, any hostile body that our forces may be opposing, such as a rebellious mob or a band of renegades, and includes civilians as well as members of military organizations. Enemy is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and all the citizens of the other.

This is one of the most serious offenses codified within America’s Uniform Code of Military Justice. Hence, it carries a maximum penalty of death, though the Court-Martial or Military Commission my enact a lesser sentence at their discretion.

Aiding The Enemy is one of only 10 crimes under UCMJ that carries the death penalty even when not committed during actual times of war.

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