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THE MORALS OF DUE PROCESS


The following is in response to the editorial "The Moral Injury of Pardoning War Crimes," posted in the NYT, Nov 22, 2019.


The author is LtCol David "Bull" Gurfein, a retired U.S. Marine with combat and operational experience in Panama, the 1st Gulf War, Afghanistan, Iraq, etc..., is presently the CEO of United American Patriots (www.uap.org)


THE MORALS OF DUE PROCESS 

The implicit presumption made by each servicemember while upholding their oath to our Constitution, is that they themselves will be afforded the benefit of having his/her own Rights protected – to include Due Process.  


“It is now the settled doctrine of this Court that the Due Process Clause embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history.


Due Process is that which comports with the deepest notions of what is fair and right and just.” Solesbee v. Balkcom, 339 U.S. 9, 16 (1950)  


Unfortunately, all too often, our Warriors are not afforded Due Process and their rights are violated, i.e.,  they lose the presumption of innocence and they face unlawful command influence, prosecutorial misconduct, and improper investigative actions.


All this is morally unjustifiable. 


We at United American Patriots (www.UAP.org) review and support cases where Warriors are wrongfully accused and unjustly convicted of committing ‘war crimes” and attempt to bring such cases to the attention of the public, Congress, and the President, who is the Commander-in-Chief and the ultimate Convening Authority in the Military Judicial System.  


While most hear the allegations against our Warriors, few are aware of how each had their Rights violated.  


1LT Clint Lorance’s case was based upon the belief he changed the Rules of Engagement (ROEs) and “murdered” civilians. 


However, despite the Jury finding 1LT Lorance not guilty of changing the ROEs, the Army still found him guilty of two counts of “murder” and one count of "attempted murder" of "civilians" he never saw and never fired his weapon toward.  


Why? Because critical exculpatory/exonerating evidence was never presented to the jury, to include the following:  


  • An Army significant activity (SIGACT) report stating 1LT Lorance’s patrol was under attack or ambush and that at least one of the Afghans killed that day was an “insurgent;” 

  • Images captured from the camera on an aerostat balloon operating over 1LT Lorance’s patrol confirming 1LT Lorance’s patrol was being shadowed by enemy combatants with AK-47 rifles and radios; 

  • The soldiers who testified against 1LT Lorance were each accused of murder, then given immunity and ordered to testify against 1LT Lorance; and

  • Biometric data (DNA & fingerprints) in the US Government data base confirmed the Afghans who were killed were actually enemy combatants, not “civilians” as the prosecution inappropriately claimed – This is similar to how the Innocence Project exonerates the wrongly convicted through DNA testing. 


Withholding exculpatory/exonerating evidence is immoral.  


MAJ Matt Golsteyn’s case was based upon the belief MAJ Golsteyn “murdered” a detainee. Why?  


Because MAJ Golsteyn acknowledged during a polygraph, and later publicly on a TV special, he killed an enemy combatant who he had previously detained and, at the time, was going to harm local civilians.  MAJ Golsteyn never admitted to committing murder, as the prosecution continuously stated.  


The Army’s initial investigation found no evidence to support the allegation of murder.  However, that didn’t put an end to the investigation for more evidence.  The Army prosecutors held the allegation over MAJ Golsteyn’s head for nearly a decade while investigators communicated with Taliban in Afghanistan in an attempt to find, or create, additional evidence. 


Delaying justice while attempting to fabricate evidence is immoral. 


1LT Michael Behenna’s case and conviction was based upon the belief 1LT Behenna murdered a detainee.  Why? 


Because, 1LT Behenna did kill a detainee. However, according to 1LT Behenna it was in self-defense.  In preparation for the case, the Army’s prosecutors hired an expert to conduct a forensic autopsy of the body.  When the expert found that the wounds were consistent with 1LT Behenna’s claims of acting in self-defense, the prosecutors fired the expert and never shared the expert’s exculpatory/exonerating evidence with the defense.  


Firing experts and hiding evidence which will support the defendant’s case is immoral. 


SSG Bob Bales was sentenced to life in prison on the belief he murdered 16 civilians.  Why? 


Because SSG Bales signed a confession stating he did so in return for the prosecution dropping the death sentence.  However, when I asked him about the confession, he said, based upon prompting from his attorney and his wife, who has since moved close to Ft Leavenworth so she and their two children can visit with Bob every day, he agreed to do anything to stay alive.   


He then stated, he didn’t kill 16, he killed 20… and they weren’t all civilians - many of them were enemy combatants.  He took initiative to kill them to prevent future attacks against US forces.  While he acknowledged, and is upset about, killing some civilians as well, he claims he did not do it intentionally. 


None of that came out in Court because, after signing his confession, SSG Bales never stood a full-blown trial.  However, the prosecution did transport confirmed Taliban enemy combatants to America, place them on Delta Airlines with US Citizens, had them testify against SSG Bales as impact witnesses for sentencing, and then flew them back to Afghanistan… but not before the prosecutors took them to Sea World (yes, that actually happened). 


Assuming SSG Bales is telling the truth, that he took initiative to kill enemy combatants and unintentionally killed civilians (which were never confirmed by US forensic experts), those killed would be considered “collateral damage.” While certainly not pleasant, it is not “murder.”  This would be no different from civilians killed by a drone strike of a wedding party while targeting enemy combatants.  


Regardless of whether SSG Bales is telling the truth or not, no one would argue that his independent actions to leave base by himself to engage Taliban, or even civilians, were highly unusual and not the norm.  Most everyone would probably say it was absolutely crazy. 

However, despite how crazy we might agree his actions were, SSG Bales mens rea (mental capacity to know right from wrong at the time) was never taken into consideration.  This is something which we wouldn't think twice about if a US Citizen walked into a school with the intent to shoot children.   


And, we know SSG Bales suffered a traumatic brain injury (TBI) prior to this deployment.  He had also been ordered to take Mefloquine/Larium a drug the US Army used to prescribe as a malaria prophylactic and has since banned because of its psychosomatic effects, to include severe paranoia.  


Imprisoning US Citizens for crimes when we aren’t sure if they even possessed the mental capacity of making the right decision is immoral.   


After reviewing all the details associated with each of the above-mentioned cases, it is possible a few may still have questions about whether some acted inappropriately and may even believe they are “guilty” of some wrongdoing. 


However, regardless of the wrongdoing, it does not raise to the level of “murder.”   Those who sound off in disagreement with President Trump’s decisions to grant pardons for our Warriors and who deliver platitudes about how such actions are immoral, will undermine the military justice system, and negatively impact good order and discipline are simply highlighting their own misunderstanding about these cases and how the President's pardons will have the exact opposite effect.


Preserving our Warriors Rights is the morally right thing to do because, as stated by President John F. Kennedy, “the rights of every man are diminished when the rights of one man are threatened.”


Semper Fi,

David "Bull" Gurfein

LtCol, USMCR (Ret.)

CEO, United American Patriots  

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