Thursday, December 17, 2015

Abrams, Bergdahl and McCain

One man’s justice is another man’s injustice.
— Ralph Waldo Emerson, Essays, First Series

December 14, 2015, was a good day for John McCain. It was a less good day for Sergeant Bowe Bergdahl, General Robert Abrams, and the military justice system. It was a middling sort of day for the U.S. Constitution, although it hadn’t been directly involved except insofar as Mr. McCain showed once again that the kind of due process the Constitution contemplates can prevent desired outcomes in some criminal proceedings.

John McCain’s problem with the Constitution did not start with Bowe Bergdahl. It first came to light when Dzhokhar Tsarnaev, one of the Boston Marathon Bombers, was apprehended. On April 23, 2013, eight days after the Boston bombing took place and within a few hours after Tsarnaev was captured, Senators John McCain and Lindsay Graham issued a statement that appeared on Mr. Graham’s face book page in which they said, in part: “It is clear the events we have seen over the past few days in Boston were an attempt to kill American citizens and terrorize a major American city. The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise, but terrorists trying to injure, maim, and kill innocent Americans. Now that the suspect is in custody, the last thing we should want is for him to remain silent. It is absolutely vital the suspect be questioned for intelligence gathering purposes. . . . The least of our worries is a criminal trial that will likely be held years from now. Under the Law of War we can hold this suspect as a potential enemy combatant not entitled to Miranda warnings or the appointment of counsel.”

Mr. McCain’s next encounter with the criminal justice system occurred when Sergeant Bergdahl was returned to the United States in a prisoner exchange in which five Guantanamo prisoners were transferred to Qatar. Upon Sergeant Bergdahl’s return to this country, he was charged with desertion and misbehavior before the enemy. Since he was a sergeant in the U.S. Army, he was subject to the Uniform Code of Military Justice. Those rules are designed to comport with the Constitutional rights given every citizen and set out the procedures to be followed by the military. First, the accused is subject to an Article 32 proceeding that is in the nature of a preliminary hearing. At its conclusion, the officer presiding over the Article 32 proceedings makes a recommendation to the officer responsible for convening a court martial as to the type of court martial the presiding officer believes appropriate. That officer then decides whether it is to be a General Court Martial with the possibility of a life sentence or a Special Court Martial with the maximum possible sentence of one year in prison.

Following the filing of the charges against Sergeant Bergdahl, Lt. Col. Mark Visger was appointed to conduct the Article 32 hearing. At the hearing, Major General Kenneth Dahl, the investigating officer, testified, among other things, that jail time for Sergeant Bergdahl would be inappropriate. At the end of the proceedings, Col. Visger recommended to General Robert Abrams, the officer responsible for deciding what kind of a court martial to convene, that a special court martial take place.

When news of Col. Visger’s recommendation was made public, Senator McCain, who had heard none of the evidence, let it be known that military justice did not matter to him. He said that if there were no punishment for Sergeant Bergdahl, the Senate Armed Services Committee of which Senator McCain is chair, would hold its own hearing. As he explained, without waiting to find out what facts might emerge at a trial: “I am not prejudging, OK, but it is well-known that in the searches for Bergdahl, after-we know now-he deserted, there are allegations that some American soldiers were killed or wounded, or at the very least put their lives in danger, searching for what is clearly a deserter. We need to have a hearing on that.” The fact that no soldiers had been killed or wounded while searching for Sergeant Bergdahl did not faze Senator McCain.

Senator McCain’s committee cannot increase whatever punishment the duly constituted court believes appropriate. But it decides on promotions and assignments for high-ranking military officers like General Robert Abrams. General Abrams is the general responsible for deciding whether to follow the recommendations of Col. Visger. John McCain and the armed services committee are the ones that can affect General Abrams’ future in the military. On December 14th General Abrams announced his decision. Sergeant Bergdahl will face a general court-martial and the possibility of life in prison. That was good news for everyone except Sergeant Bergdahl and, perhaps, General Abrams. It was good news for the Armed Services Committee since it will not have to hold a hearing. It was sort of good news for General Abrams since he will not incur the wrath of Senator McCain. On the other hand, General Abrams will have to live with the fact that some people will say he decided to convene a General Court Martial because of the pressure applied by Senator McCain even though his decision may, in fact, have not been influenced by the senator’s threats. It is clearly bad news for (a) Sergeant Bergdahl who may end up spending his life in prison and (b) for the military justice system that may have been compromised because of pressure applied by a senator.

Thursday, December 10, 2015

Guns-Déjà vu

Such as do build their faith upon the holy text of pike

and gun.

—Samuel Butler, Hudibras

That loud sighing sound you heard after the San Bernardino shooting was a collective sigh of relief from guns of all sorts from all over the United States. And for good reason. Each time the mass slaughter of U.S. citizens occurs, the guns worry that someone will remember Australia and Scotland and suggest that the United States should do what those countries did after mass shootings.

In 1996 there was a mass shooting that killed 35 people in the Tasmanian town of Port Arthur in Australia. Australians were unaccustomed to such atrocity. Furthermore, Australia did not have the Second Amendment to the Constitution that a grammatically impaired, Tony Scalia, with his similarly impaired colleagues on the U.S. Supreme Court, believes gives every living thing in the United States the right to walk around with a gun. Australians believed tangible human life was more valuable than the intangible right to walk around with a gun. After the shooting occurred, the conservative Prime Minister, John Howard, persuaded legislators to pass the National Firearms Agreement. The act was passed 12 days after the massacre took place. The law prohibits possession of automatic and semiautomatic assault rifles and pump shot guns in most cases. It establishes a 28-day waiting period for those wanting to buy guns. It institutes a gun buy back program that was financed by a slight increase in taxes paid by Australian citizens. The buy back resulted in the acquisition by the government of 700,000 formerly privately owned guns. In the 18 years preceding the passage of the Act, there were 13 mass shootings in Australia that killed 112 people. In 2012 statistics from the United Nations Office on Drugs and Crime showed there were 30 homicides by firearm annually in Australia.

In 1996 a 43 –year old gunman stormed a schoolhouse in Dunblane, Scotland, killing 16 children. The next year British legislation was passed banning private ownership of automatic weapons and handguns on Britain’s mainland.

Those examples are of no interest to U.S. lawmakers and the response of the wanna-be Presidents reflects congressional attitudes. None of them seems to have noticed that the deaths in California were the result of the ability of the murderers to follow the example of home grown mass murderers. Marco Rubio, for example, mocked Democrats who attributed the shootings to guns. He said: “Forty-eight hours after this is over they’re still out there talking about gun control measures. As if somehow terrorists care about what our gun control laws are.” He’s right. James Holmes, Adam Lanza and other domestic mass murderers who have not had the benefit of being tutored by terrorist organizations but are simply following in the footsteps of other locals, don’t care what our gun control laws are-we have none and that is why they could do what they did. Ted Cruz said: “We need to target the bad guys but on the flip side, what keeps us safe is we are a free people have a God-given right to protect our homes and our families and our lives.” That same God given right is what enables our homegrown terrorists to massacre their fellow citizens.

James Holmes murdered 13 people and wounded 70 more in the Aurora Theater shooting. His house was booby-trapped so the police had to spend hours before entering it to avoid triggering the explosive devices he had set. James was not described as a terrorist and no one suggested the massacre was the president’s fault. Adam Lanza killed 26 people in the Sandy Hook Elementary School. He fired 154 rounds in less than five minutes. His house was described as an arsenal. No one attributed that to inadequate leadership by the president. Dylan Storm Roof killed nine people in a church in Charleston, S.C. in June;. Mohammod Youssuf Abdulazeez killed four Marines and a Navy sailor in July; Christopher Harper-Mercer killed eight fellow students and a teacher in Roseburg, Oregon on October 1. None of those tragedies evoked any response of note from people in Congress nor did any of the members of Congress blame the president or the religious upbringing of the shooters for the massacres.

David Gergen, a former advisor to four presidents, commented on the San Bernardino massacre. He told the New York Times that a fear exists among the public that has not been seen since 9/11. He said: “I talk to people who worry that they will be shot on the streets of New York. “ Mr. Gergen did not explain what gave rise to this sudden fear of walking around in New York since the people had apparently not been made fearful by the other mass shootings of 2015 nor the random shootings that take place on a daily basis in the United States. They might feel safer if Congress did something about guns. It never will. If you wonder why, ask the NRA. When it comes to guns, it has all the answers.

Thursday, December 3, 2015

A Tale of Two Countries

All of our people all over the country-except the pure blooded Indians-are immigrants or descendants of immigrants, including even those who came over on the Mayflower.

— Franklin Delano Roosevelt, 1944 Campaign Speech

Compassion-some have it, some don’t.

In a Canadian government website entitled “The refugee system in Canada,” the opening sentence states: “Our compassion and fairness are a source of great pride for Canadians . . . .A refugee is different from an immigrant, in that an immigrant is a person who chooses to settle permanently in another country. Refugees are forced to flee.”

It was great news for Syrian refugees camping out in Jordan that Canada showed how those words translated into practice for those hoping to emigrate to Canada. On November 29, 2015, Canada opened a refugee-processing center in Amman, Jordan. The Center’s goal is to process 500 Syrian refugees a day so that they can leave the refugee camp. It is to become the main processing center in the region. On November 29th there were three federal Canadian cabinet ministers on hand to see how the newly opened center was working. They were representatives of the government that intends to facilitate the resettlement of large numbers of the estimated 4 million Syrians who have been declared refugees from that country’s war. Hundreds of Canadian civil servants and soldiers are handling the cases of those seeking to emigrate. The Canadian government plans to resettle 25,000 Syrian refugees in Canada by the end of February 2016 of which 10,000 will be resettled by the end of this year. The remaining 15,000 should be resettled by the end of February 2016. Since the beginning of November, 153 Syrian refugees have arrived in Canada and another 928 have received visas that enable them to travel there.

In a Canadian website entitled #Welcome Refugees the Canadian government says that:”resettling refugees is a proud and important part of Canada’s humanitarian tradition. It reflects our commitment to Canadians and demonstrates to the world that we have a shared responsibility to help people who are displaced and persecuted.”

Across the border things are a bit different. No one in the United States is talking about resettling 25,000 refugees in the next three months. President Obama speaks hopefully of settling 10,000 by the end of 2016. That is less than one-half of what Canada proposes to do in considerably less time. And it seems increasingly unlikely that the president will come anywhere close to his goal. Compassion is no longer a word in the American vocabulary.

Thirty-one governors have said that Syrian refugees are not welcome in their states. They have used different language to express their opposition to admitting them. Alabama governor, Robert Bentley, for example, said: “After full consideration of this weekend’s attacks of terror on innocent citizens in Paris, I will oppose any attempt to relocate Syrian refugees to Alabama through the U.S. Refugee Admissions Program. As your governor, I will not stand complicit to a policy that places the citizens of Alabama in harm’s way.” Shortly after he was sworn in as governor in 2013, Governor Bentley signed a bill expanding the rights of citizens of his state to carry weapons. On December 1, 2015, two shooting deaths occurred in Birmingham, Alabama that brought the total number of shooting deaths in that city to 81 for the year, the first time since 2008 that Birmingham could claim more than 80 shooting deaths in one year.

The governors opposing the admission of refugees are inspired in their opposition by the Paris attack of two weeks ago that killed 130 people. They have forgotten what life is like in the United States without the terrorists even being admitted. As of December 1 there have been 12,127 gun deaths in the United States, 24,450 gun related injuries, 640 children killed and 308 mass shootings. All occurred without the assistance of one Syrian refugee. None of the 12,127 gun related deaths was the result of terrorist attacks. The mass shooting that took place on December 2 that left 13 people dead and 17 wounded was by local murderers rather than Syrian refugees.

It is not only the elected governors who fear the effects of a Syrian refugee inflow into the United States. The would-be presidents in the Republican Party have equally strong feelings. Donald Trump says if elected he would deport any Syrians who had been admitted prior to his taking office. Ted Cruz says bringing Syrians into the U.S. is “absolute lunacy.” Chris Christie says not even orphans under the age of five should be admitted. Rand Paul plans to suspend visas for all people coming from countries with “significant jihadist movements.” (Whether France would be considered such a country given recent events there is probably an open question.)

The paragraph headings in the Canadian government’s description of the Canadian Refugee system read as follows: Tradition of Humanitarian Action; Canadian Refugee Protection Programs; Refugee and Humanitarian Resettlement Program; In-Canada Asylum Program; Integration services; Assistance for resettled refugees; Assistance for all newcomers, including refugees.

Compassion is a 10-letter word. It has no place in the vocabularies of more than one-half of the United States governors and all the presidential wanna-bes among the Republicans. This country was founded by immigrants. Go figure.