Category Archives: US Law

Kill or be killed!

by Travis Normand
July 17, 2017

I found the following video on YouTube.com this past weekend. It appears to be a legitimate WWII-era U.S. Army training video.

While the objective of every army has been to train its soldiers to kill the enemy in times of war, the training of soldiers has traditionally walked a fine line between (1) teaching soldiers to “kill or be killed,” and that killing is “acceptable” because the enemy is less human than you are, versus (2) the enemy are human beings and therefore you must treat them with a certain amount of respect, dignity, and humanity.

Overtraining your soldiers on point number one (above) can lead to the mistaken belief that anything is acceptable in battle because the enemy is not human. This mentality can lead to some devastating consequences such as crimes on the battlefield.

I am not saying that the following video reaches this point of “overtraining,” as it is my understanding that such a point is only reached after long periods of systemic improper training without ever countering with point number two (above). Therefore this video alone does not rise to this level of improper training.

However, I did find it interesting that at (or just after) the 5:45 minute mark of the video it clearly states that “…your deaf to the rules, because in war, there are no rules!”  

Further, while on the topic of training, “Command responsibility” (also known as the Yamashita standard or Medina standard) is the legal doctrine of hierarchical accountability for war crimes. The is often used to refer to the broad duty to for a military commander to supervise his subordinates, and the liability for his failure to do so. In other words, if you train your subordinates (soldiers) to disregard the laws of war, then as their commander, you may be held liable for any acts and/or crimes they commit during battle.

The “Yamashita standard” is based upon precedent set by the United States Supreme Court during the prosecution of Japanese General Tomoyuki Yamashita in 1945. Yamashita was charged with “unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes.” [FN1 & 2]. The “Medina standard” is based upon the 1971 prosecution of U.S. Army Captain Ernest Medina in connection with the My Lai Massacre during the Vietnam War. In its decision, the Court held that a commanding officer, being aware of a human rights violation or a war crime, will be held criminally liable when he does not take action. [FN3 & 4]

While I do not believe the above training video (although officially produced by the U.S. Army) would be enough to hold a commander liable for any crimes that may be committed by troops under his command; one can certainly see how this video, combined with an understanding of the doctrine of Command Responsibility, might cause a JAG Officer or military commander to ‘cringe’ when they hear their soldiers being instructed that there are no rules in war.

Footnotes:

 

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My Lai (49 years ago today)

by Travis Normand
March 16, 2017

On this day in 1968 (March 16), Warrant Officer Hugh Thompson turned his helicopter’s guns on fellow U.S. troops in order to stop the My Lai Massacre.

I truly believe that one cannot fully understand or implement the LOAC without also having a firm grasp on history. For this reason, I recommend using (at the very least) the following links to familiarize yourself with what has been labeled the “My Lai Massacre.”

US v. Sterling – Testimonial Privilege

by Travis Normand

United States v. Jeffrey Sterling, . . . (4th Cir. 2013).

In its prosecution of Jeffrey Sterling, a former CIA employee accused of divulging classified information about the agency’s efforts to disrupt the Iranian nuclear program, the government subpoenaed James Risen.  Risen, a reporter for the New York Times, published stories that were apparently based on information fed to him by Mr. Sterling.  Risen essentially argued that he could refuse to testify and that he was protected by some form of reporter’s privilege.  However, in a 2-to-1 opinion released July 19, 2013, the  U.S. Court of Appeals for the Fourth Circuit held that Risen could not refuse to testify and that there is no First Amendment or federal common-law privilege protection available to him as a reporter.

The dissent listed many state law testimonial privileges that apply to reporters.

See the entire opinion HERE.

“Sen. Paul proposes bill protecting Americans from drone surveillance” but is it Necessary?

by Jessica Poarch

This morning The Hill reported that on Tuesday Senator Paul introduced a bill that would require the Government to obtain a warrant before using Drones to conduct surveillance. This bill, entitled ‘‘Preserving Freedom from Unwarranted Surveillance Act of 2012,’’ prohibits the government from using drones to “gather evidence or other information pertaining to criminal conduct or conduct in violation of a statute or regulation except to the extent authorized in a warrant that satisfies the requirements of the Fourth Amendment….” (Sec 3) There are some exceptions to this requirement, mainly that a warrant is not needed for boarder surveillance, if there are exigent circumstances, or if there is a high risk of a terrorist attack based on “credible intelligence.” (Sec 4). If the Government fails to comply with this requirement, the evidence obtained can not be used in Court. (Sec 6).

In my opinion, this bill should be put in a pile with the rest of the election seasons ploys to play on the Nations sensitivities and garner votes. First, unless Drones are equipped with advanced x-ray and audio technology, this bill is a misapplication of the 4th Amendment. The 4th Amendment only applies to unwarranted government intrusion into a person’s reasonable expectation of privacy.  Activity undertaken in the open (i.e. visible from the air) does not receive protection. This would be no different than law enforcement officials sitting across the street with a high powered camera.

If Drone technology has advanced far enough to allow law enforcement officials to take x-ray images of the inside of buildings or record conversations that occur in buildings, then the 4th Amendment likely already provides protection as this case would be closely analogousness to currently controlling case law (ex: Katz, 389 U.S. 347 , providing 4th Amendment protection to a conversation in a public phone booth because Katz closed the phone booth door clearly intending to have a private conversation).

I too have concerns over allowing law enforcement officials to use Drones for ordinary crime control; however, a bill such as the one discussed above does not, in my opinion, provide any additional protection or truly address any privacy concerns. If Congress is truly concerned about law enforcement overstepping its bonds with the use of Drone technology it should find a more effective means to prevent it, such as tightening its purse strings and restricting the financial resources available for this form of surveillance.

The full Article: http://thehill.com/blogs/hillicon-valley/technology/232489-sen-paul-proposes-bill-protecting-americans-from-drone-surveillance

The Bill: http://thehill.com/images/stories/blogs/flooraction/jan2012/s3287.pdf