Hamdania: A Travesty of Justice?

While the media establishment has fixated alternately on polygamists and the Jonbenet Ramsey saga, important events are afoot. Namely, one of the biggest war crimes trials arising from the Iraq campaign is taking place at Camp Pendleton in a case involving 7 Marines and one Navy Corpsman. (I mistakenly referred to them earlier as 8 Marines).

I have chosen to write about the matter, as have Kit and Heidi of Euphoric Reality. Far from being a media circus, the press, mainstream legal analysts, and far left critics of the war have generally steered clear of the Hamdania prosecution. The most prominent pronouncements have been hysterical declarations by members of the right-wing media that these proceedings are a travesty and a consequence of run-amuck political correctness.

In the latest salvo on Hamdania, one of the writers at the blog Euphoric Reality, Kit, has purported to refute what I wrote here. She makes a number of charges which I respond to below.

Why do Kit and Heidi Write?

I think Kit and Heidi have done their readers a disservice. They are trying to show the factual innocence of the accused. But in the process, they have treated statements by defense lawyers and family members of the accused, as if they were established facts. Kit and Heidi have apparently decided that showing support for the troops also requires unflagging support for troops accused of war crimes. This would be fine if the evidence strongly suggested that the Hamdania defendants were actually innocent. In the Hamdania prosecution, however, this is hardly the case, and this has become clearer over time, particularly because of the defense’s failure to put on testimony from the accused at their Article 32 hearings to explain their earlier incriminating statements made to NCIS agents.

Euphoric Reality’s support is so transparently partisan that it fails to employ their greatest potential strength: the voice of objectivity that might have come from their lack of direct connection to the case. Kit and Heidi have chosen instead to transmit information from the defense, while dismissing incriminating statements made by the accused to investigators. It is certainly possible one innocent man could be compelled to make an incriminating statement, even if he were innocent. But three? Doubtful.

Kit and Heidi’s Results-Based Analysis

Regarding this anomaly, I said at their website:

One of the critical thinking skills that [Kit] and Heidi employ extremely selectively is looking critically at sources. [They] rightly look at something like an Iraqi accusation standing alone with suspicion, after all the Iraqis may just be after money, or they may sympathize with insurgents. But [they] do not employ this technique at all with respect to the defense in this case. For example, [they] have latched onto this single report (never reinforced by a fuller autopsy report and without any access to the primary documents) to prove that Awad was not crippled. And, by implication, [they] aim to show that all of the allegations made by the Iraqi accusers are false as well. And [they] employ this same kind of hyper-scrutiny to every piece of evidence that points to the guilt of the Pendleton 8–most especially their statements to NCIS–but not at all to anything said by the defense.

The reason Kit and Heidi’s approach is completely unpersuasive should be obvious. Without being backed up by corroborating data, such statements by the defendants and their lawyers and family members are likely to be self-serving and are therefore unreliable. This is not a case of “he said, she said.” This is case where he said one thing when interrogated by police, and something very different after being “lawyered up.” For the sake of argument, what would Kit and Heidi expect the accused to say differently if they were guilty?

We know that defense lawyers—from Johnnie Cochran to David Kendall to Jane Siegel and company—will say all kinds of things to paint their clients in a good light and the prosecution in a bad one. And we know defendants and their family members will do so too. Under these circumstances, rallying to the defense is not a matter of being persuaded so much as simply choosing what one wants to believe.

Kit and Heidi’s goal is clearly not to persuade anyone of anything, but to identify themselves as one of the good guys. The truth of the matter is entirely secondary. Sure, their die-hard fans will find that their sophistry suppplies a few talking points. But the goal is to show their support, regardless of their innocence. The whole thing is a bait and switch. They purport to say something important about the case, namely that the defendants are innocent, but we soon learn that their factual innocence is simply a side issue to Kit and Heidi. Because the accused here are Marines who have been to combat. In Kit and Heidi’s universe they are so far above mere mortals that neither the general public nor even the Marine JAGs can rightly judge them guilty of anything, even of murdering an innocent old crippled Iraqi man.

Was Awad Crippled?

So let’s consider what Kit has say about my article. After some obiter dicta about my credentials and character—as evidenced by the fact that I took a contrary position and explained it—their first substantive point addresses my description of Hashim Awad as a cripple. They suggest this is ludicrous and that I missed the boat on a definitive report on the matter. Is this the case? Numerous reports describe him as crippled. The villagers reportedly even called him “Hashim the Lame.” There is little dispute he was kind of old (52) to be an insurgent. It is surely not extravagant of me to describe him as a cripple.

The only piece of evidence Kit have that Awad was not crippled is an isolated CNN report, which itself was based on a partial autopsy report, the contents of which were transmitted to CNN by a defense source. Their position is completely ridiculous. Well, your honor, I know he wasn’t crippled. The liberal media whom I ordinarily don’t believe carried a report that said so, and the source had to be telling the truth, because it was none other than a member of the accused’s criminal defense team. Consider also that no other defense team reports have been issued on the matter following that initial story from 28 June. This silence is truly the dog that didn’t bark.

Did the Prosecution Fumble at the Article 32? Did the Defense Act Consistently With Their Clients’ Innocence?

Kit’s second criticism is that I supposedly misrepresent the defense strategy, which I described roughly as a foiled attempt to speed things along, including the Article 32 hearing, only to falter when the prosecution obliges. According to Kit, the defense only wanted a swift Article 32 in order to get their clients released, which would presumably occur after they put on a strong defense showing at the Article 32. I don’t buy it. For starters, recall that the defense made a speedy trial request long before their waiver was denied. This request necessarily would have hastened the Article 32 hearing. Second, the defense could have gotten their clients released even without an Article 32 or a speedy trial request under R.C.M. 305. Finally, and most importantly, the description of events on Euphoric Reality does not accord with numerous press accounts.

Supposedly, according to Kit, the defense wanted the NCIS agents to be called as witnesses, but were not able to do so. So long as these individuals are within the investigating officer’s subpoena range, the defense could have called them under RCM 405(f). NCIS agents cannot be barred from testifying because of supposed secrets of their job; I simply don’t believe the prosecutors said anything like that, regardless of what Kit and Heidi have said. No press account said that, including reports by an experienced legal reporter, Linda Deustch. More important, as reported in Marine Times, the counsel for at least one defendant, Cpl. Marshall Magincalda, had no witnesses to call or offer after being invited to do so, and this includes the most important witnesses: his client and the other defendants.

The suggestion that it was too expensive to mount a vigorous Article 32 defense is surely a smokescreen. The defense attorneys have attended these hearings, for example, and so the fixed cost of their hourly time has already been expended. More important, the prosecution’s case, while it includes Iraqi and NCIS witnesses, is based primarily on the defendants’ incriminating statements. The defense lawyers are right about this much: exclude those statements and the government’s case almost certainly wil fail. But those statements are the elephant in the room. It’s not exactly a minor thing that incriminating statements were made by no fewer than three of the accused, including their squad leader, to NCIS agents.

This situation contrasts to the Pantano case where an odd-ball sergeant was the chief accuser, and the inconsistencies of his story and his motives—anger, envy, a predilection to lying—were exposed without any need of testimony by the accused. In the Hamdania case, the defendants’ failure to take the stand to refute those statements, describe them as coerced, and testify to some noncriminal account of what happened, I’m sorry to say, is not what one would expect factually innocent people to do. It’s more like what people seeking technical defenses of one kind or another do. Even if this testimony is excluded on some technicality, from the standpoint of whether something truly horrible happened, those statements will remain in the universe of relevant facts. They may be excluded as part of the broader policy of keeping law enforcement disciplined to follow the various requirements of criminal procedure, but the facts that they contain and reveal will not be erased.

How Anyone Figure Out Whether This Whole Matter is a Travesty Borne of Political Correctness?

American citizens have a right to be concerned about war crimes. The military, after all, is carrying out policies that the American people have directed through their elected leaders. They can at least demand that those policies are carried out consistently with American laws and the law of war. At the same time, Americans are also rightly concerned about whether innocent Marines (and a sailor) are about to be sent up the river?

The only way to figure out the factual innocence or not of the accused is to look at what’s in the public domain, both reports and objective facts such as defense and prosecutorial decisions, and analyze them.

Kit mocks this means of figuring out the answer and suggests it comes down to me saying, “they’re not acting innocent.” But that’s all we got. That’s all Kit and Heidi have too; they’re saying, in essence, the defendants are acting innocent, and their defense lawyers and family members personally provided assurances that they’re innocent. In other words, their moms and dads say, essentially, “My baby couldn’t do such a thing,” and Kit and Heidi choose to believe them without any real back-up.

Even if the accused personally described their innocence and the nature of the interrogation procedures, this testimony would be minimally credible without more. Without what? Cross-examination, of course. Cross-examination tests the overall story with whatever other evidence exists in the case. And cross-examination can occur only if they take the stand. Prepared statements by defendants and their counsel do not have this test of accuracy. Remember, the JAG prosecutors have already had to consider whether the evidence as a whole points to guilt; that’s part of their duty in seeking a referral of charges. The defense lawyers have no such duty. Their only job is to advocate for their clients regardless of the truth. I don’t fault them for that. I fault Kit and Heidi for swallowing everything they say hook, line, and sinker.

Kit tries to skip over the sourcing problem by saying, “It is [a] known fact that they did not record the interrogations, which lasted between 7 and 8 hours with no breaks for food, water, or even the restroom.” Who would know this? Did Kit hear this from the NCIS investigators or the Marine Corps PAO? Almost certainly not. Did she read the NCIS interrogation reports?

None of those things happened. Instead, Kit and Heidi have witnessed a miracle: the miraculous transformation of a criminal defense lawyers’ statements into “known facts” when they’re repeated a lot of times by themselves, assorted right-wing bloggers, and family members of the accused? There is no other source regarding the interrogation conditions other than hearsay statements by biased people. While I think it’s possible there were irregularities in the interrogation, it is far more reasonable instead to conclude that the agents followed the NCIS manuals to a tee. Why? Because in the age of Miranda and the “suppression rule,” they would never risk suppression of statements by the accused. NCIS guys might be motivated, play hardball, and even be quick to jump to conclusions, but they don’t like to lose and doing the things alleged of them by the defense would sets them up to lose.

Further, even if this charge is true (which I have little reason to believe), it doesn’t mean what was said under the “third degree” was false, even if it’s ultimately inadmissible. We’re asked by Kit, Heidi, and their defense lawyer buddies to believe that three combat-hardened Marines were intimidated by a few civilian NCIS agents into making incriminating statements that were deemed reliable enough for a Marine JAG prosecutor to prosecute fellow Marines. And further, we’re asked to believe this occurred in a war where only 39 similar prosecutions have been brought. It is far more reasonable to coclude from the object fact of a prosecution based on statements by the accused that this prosecution was set in motion because the JAG prosecutors are right, the evidence is overwhelming, and these guys are guilty.

Kit and Heidi have suggested these defendants won’t testify against one another because of their commitment to truth and honor. But this is kind of hard to swallow under the circumstances, isn’t it? Because if the accused defendants’ sense of honor and integrity was so pristine, why would three of these guys have admitted to or sign false statements about what happened in Hamdania? How do Kit and Heidi explain that one? (Oh yes, I remember, the Marines were intimidated by the scary NCIS agents). And if the accused won’t testify against one another now because doing so would require untruths that offend their deep sense of hono, even though now they still face at the very least very long prison terms, why would they have been so willing to do so before they had lawyers? Isn’t it more reasonable that these basically honest guys who did something bad in Iraq confessed like so many criminal defendants do out of a combination of guilt, shame, and a layman’s reasonable belief that accepting responsibility might encourage leniency by the prosecutors? The question at least sets up a more plausible story than the self-serving coercion story that defense lawyers always tell in cases like this.

Are These Guys Guilty Like the Vast Majority of Indicted Defendants?

Statistical analysis is one way to figure out what is most likely when defendants clam up and hide behind their lawyers. Recognizing this reality is apparently “smarm.” Let’s think about that. Is it something crazy to say that even though there is a legal presumption of guilt, most indicted for committing serious crimes are guilty? Hardly. With or without statistics, this kind of reasoning is how we figure out what is going on in the world around us. The light is green, I figure the guy driving in front of me will skedaddle. A plane blows up with 20 Muslims on board, I give terrorism serious consideration as a cause. A bunch of Marines get indicted on war crimes charges in a war where few such charges are brought, and there is acknowledgement all around that the accused made incriminating statements, I think they’re guilty. And it’s not only defensible to do so, it’s the most reasonable conclusion.

My point on statistics is really very simple; when military prosecutors choose to prosecute someone for war crimes in a war with very few war crimes prosecutions, those accused are more likely to be some of the most obviously guilty and their crimes the least ambiguous. This technique is called using common sense and reason in light of the facts, or, more simply, adding two and two together.

Kit and Heidi’s Selective Use of Critical Thinking

Let’s consider all the matters that Kit ignores. For example, she does not respond to my point that it is the defense and their supporters who have drawn undue public attention to this case and, worse, went out of their way to defame the prosecutors and NCIS agents who are behind this supposed travesty. For example, her colleague Heidi rather ridiculously earlier described the combat-decorated Marine commanders of Camp Pendleton “REMFs,” i.e., Rear Echelon Mother F***ers.

Second, while Kit mocked my inference of guilt from the rarity of such indictments and the additional presence of incriminating statements by the accused, she offers no alternative way to figure out what’s happening. Because statistics are just another, more rigorous way of figuring out what the truth is in the same way we always do: we look to similarities and differences from situations that we know something about. Heidi doesn’t mind using this technique herself in a rather crude way. What other than a kind of primitive statistical reasoning makes Kit and Heidi dismiss the allegations of the Hamdania residents who initially brought their complaints to American authorities? As Heidi wrote similarly regarding Haditha, “These requested anecdotes come from the very same people who, while under Saddam’s regime, froze their dead babies so that they could wave them around when the world press showed up to ‘document’ the Iraqis’ ‘starvation by sanction’. What bullshit. I’d think twice – no, a helluva lot longer than that – before I gave one shred of credence to the claims of the radical Sunnis.” Heidi also wrote, “We can see with our own eyes the massive inconsistencies, and recognize that there is no reason to trust the veracity of insurgent sympathizers over that of tried and true and decorated Marines, who have already SHED THEIR BLOOD for this country.” How does she know these particular people are insurgent sympathizers? Apparently 100% of Sunnis are totally unreliable all the time because they are the enemy or actively support the enemy. And, by implication, all of them can be killed, even 52 year old cripples dragged from their homes in the middle of the night, and no American serviceman should ever be questioned about it.

Finally, Kit and Heidi never account for the fact that this prosecution has one major sustaining cause: the accused servicemen have implicated themselves. This trumps all the detours into conditions of confinement, insurgent sympathizers, political correctness, and all of the other distractions thrown up by the defense. Even if we knew nothing about the particulars of the accusation, we know (a) these statements convinced professional military prosecutors to bring war crimes charges in a war where only 39 other such cases have been brought, and (b) the defense has worked very hard to hide these statements from the public and the jury. Knowing just these two things, we can conclude that their contents supports the most basic prosecution theme: the accused have admitted killing someone under circumstances that are criminal.

Yet Kit still felt compelled to say, “The cold knowledge that some of the Marines who wear the uniform of a devil dog are actually spineless and political and willing to sacrifice their own men to score political points is anathema; it is nauseating and heartbreaking.” I don’t think these things are true if these guys are actually guilty. Kit and Heidi repeatedly suggest that this question is unimportant.

On Intellectual Integrity

As above in their references to my background, with Kit and Heidi there is always the question of who is speaking and whether that person’s status meets Kit and Heidi’s standards. Whether one is speaking truthfully and persuasively is immaterial. Criminal defense lawyers for the accused in Hamdania . . . they deserve to be listened to and believed in every particular. Prosecutors and NCIS agents . . . bunch of REMFs seeking to move upwards in their careers at the expense of innocent Marines.

And this is why Kit and Heidi, in spite of all their talk about honor and integrity, forget that writing about something like this has its own code of ethics, which can be broadly labeled as the requirement of intellectual integrity. This is something many people don’t have, because they lack the intellect, commitment to rigor, and emotional self-control to elevate themselves beyond sophistry. Intellectual integrity requires one to consider opposing viewpoints, report supporting facts clearly, acknowledge weaknesses in one’s own side, use the same standards for sources that support one’s views as those that oppose it, correct one’s errors, demonstrate the sources one is using, and generally aim to discover and educate others about the truth . . . even if this pursuit leads one to some unpleasant conclusions. For Kit, Heidi, and all too many on the far-right, loyalty and integrity are seen as interchangeable. They’re not.

In writing about Hamdania, Kit and Heidi could clearly care less about the truth. Instead, for them it’s all about picking sides. The truth is secondary. As Kit said in an earlier entry, “We CHOOSE to support them against enemies that would taint public opinion against them. To that end, we do what we do. We get nothing for it, we do it because we believe in THEM.”

I’ve been lambasted by Kit and Heidi as a pseudo-intellectual. But they wouldn’t know the difference. They use their blog not to educate the public but to parade their own virtue: the most troop-supporting troop-supporters of them all. Their blog is, at the end of the day, just an enormous yellow ribbon displayed for all the world to see.

As Kit said earlier (and rather creepily) in relation to similar issues in the Haditha case:

If it comes out that those Marines did kill women and children, I will still support them. Terrorists are everywhere. You all know this, folks, I’m not telling you something revolutionary here. Terrorists can be women, they can be children. There’s no law saying terrorists are only Arab males between 17-30. I have no right to tell Marines in a combat zone that they have to answer to me back here in the States about their actions in a combat zone against an enemy that takes any form, uses any tactic, and breaks every rule. And as much as it may pain you to hear this, you don’t have a right to demand it either.

This is not the presentation of a position, it’s a groan . . . a groan from an overly emotional person that cannot refute her critics or engage them on substance, instead preemptively labeling them ungrateful and dishonorable. Maybe she should go read the Gorgias and educate herself about the moral requirements of her new chosen role as a writer. Integrity in this field requires something that is unique that her writing suggests she has neither mastered nor even thought about.

Anyone who knows me knows that I strongly believe that Marines and sailors and other service members deserves respect, appreciation, and public honor for their unique sacrifices. But if they have committed crimes, then they forfeit that entitlement. Marines who commit war crimes dishonor the Marine Corps. Military honor is not a blank check; it’s conditional, and it requires above all fidelity to certain standards, including the law of war. The only way to maintain those standards is to punish war criminals.

Deference and Commentary

Ideally, we would show the same deference to the military here that we ask others to show in its training and doctrinal decisions. I have been reluctant to assess the guilt or innocence of these defendants until now, merely asking instead for some show of deference to the process and the prosecutors. But since that process has been widely and publicly criticized in an unfortunately partisan way, and since the prosecutors are too magnanimous to mount a counter-offensive, then someone should at least provide a perspective for the very strong case on the other side in a way that is grounded in the facts and reason. And I’ve chosen to do so.

Unfortunately, in the way of commentary and criticism, we’ve only gotten from Kit and Heidi a kind of militaristic identity politics: Marines are good. Good people don’t murder. Therefore this murder didn’t happen. I suppose, under this mode of reasoning, the brig on every military base in America should be emptied. This is all kind of sad, really. Because whatever raw intelligence these two women possess is being squandered by this mode of thinking. Whatever they might have contributed to the public’s knowledge of this case has been eclipsed by their own transparent and obvious biases and results-oriented reasoning.

The moment of truth is coming. The court marial panel soon will hear all the (admissible) facts and reach a verdict. If this pans out in a conviction for some or all of the Hamdania defendants, I must question whether Kit and Heidi will support the combat-decorated Marines of the panel, the equivalent of a jury, in their decision? And if they won’t support them, one wonders on what possible basis they could do so considering their absolutist and uncritical concept of military virtue? War crimes trials and war crimes themselves, unfortunately, necessarily require an exclusion of some from the pantheon of military honor, as war crimes are a conflict between military accusers and the military accused. These trials exist ultimately exist to decide who truly are Semper FIdelis and who have abused their authority, harmed the innocent, and breached their duty.

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