GWOT IV - On Defense
Nov. 12th, 2019 05:54 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
drewkittyGWOT IV - On Defense
Those of us presiding over what ultimately became known as the Alviso Atrocity Trials were faced with a number of legal issues. Most of these took the form of defenses advanced by desperate genocidaires and unlawful combatants guilty of atrocities.
(Genocidaire: a person who engages deliberately and wilfully in acts of genocide. Go ask the UN what genocide means. Pack a lunch. Perhaps they can provide a cheese sandwich for you. And wrap it in the Genocide Convention, to go.)
The defense advocates, all four of them, were the most miserable officers in the California Republic. Unlike the trial officers, they were all attorneys with military legal experience. Also unlike the trial officers, they knew all about the legal risks that all of us were being exposed to. My official theory was that legally trained officers had to be assigned to defense counsel to give the benefit of the doubt to the defense. In practice, none of them wanted to touch what I was doing with a blood soaked ten foot pole. (Long story, it might involve a Homeland atrocity. Find one of the few survivors, get them very drunk, and they might tell you. You may want to take up recreational blackout drinking, or give up on sleeping ever again. Your call.)
The prosecutors on the other hand were all civilian attorneys. They were lawyers, but not military lawyers until after the California Republic drafted them. They soon figured out where I and the other presiding officers were going with all of this.
The presiding officers were all line combat officers (except me ... although this technicality would crop up again later) as the mission was a military one, and hearing cases day after day after day would drive nearly anyone insane. I didn't have to drive, I'd been rolled on a gurney into a furnace.
I made it clear that the military hearings we were holding, the proceedings of first the Resistance Military Commission and later the California Military Commission, were proceedings of strict military law. Not criminal law. Not civil law. Not civilian law at all.
Military.
Law.
You may have heard the phrase 'martial law.'
How about 'drumhead tribunal' or 'kangaroo court' or 'hanging judge' ... because those apply equally justly.
Herewith, the various defenses made by the genocidaires and violent criminals playing soldier without benefit of protection under military law.
"I have the right to...."
No, you don't.
"... a trial by jury!"
No, especially not that. Juries are for criminal law. A jury of your peers? Shall we use twelve of your murdered victims, silenced forever, or twelve of their grinning murderers?
"... remain silent!"
Yes, you do. But I don't need you to say a word to try, convict and hang by the neck until dead.
"... plead the Fifth."
You don't have to testify against yourself. So shut the fuck up.
"... refuse to recognize the authority of this Court!"
Yes, you can do that too. Do your bones recognize the authority of baton strikes? Does your neck recognize the authority of this hempen rope?
"... subpoena witnesses."
Hmm. When possible, yes, you can do that. But wars won't wait. And you may not like the results when you do.
".... confront my accuser(s)!"
Yes, that you can do. You can represent yourself or you can have counsel do it for you. But watch what you say, if you self represent. Confessional remarks are not stricken from this record. I'll go further, NOTHING is stricken from this record.
I went so far as to explicitly permit recording devices in the courtroom. Because we had two independent sets of recording devices running at all times between gavel bangs.
"... gather exculpatory evidence!"
We don't have time. These matters won't wait for forensics. Besides, some of the crime scenes are behind enemy (American) lines and others have been obliterated by war or hardship.
So much for rights.
Now for larger arguments.
"This Court is illegal!"
A combatant power has the authority and the obligation to enforce military law. The California Republic is a combatant power.
"The California Republic is illegal!"
So? It exists anyway. The question here is whether you will continue to.
"This is unjust!"
Do you have a point?
"This process does not serve justice!"
You're wrong there. This is combat justice. Triage justice. Frontier justice? We are doing the justice we can because we don't have time for Trials of National Reconciliation. And we're not going to free mass murderers, even on parole, to go victimize others groaning under American rule. Even in CONUS.
"I plead not guilty...."
That's nice. Your plea is not needed.
"... because you got the wrong guy."
We have taken great pains to make sure that we have in fact got the right guy. And if we don't, that is pretty much the only way to walk out of this room without a date with a rope.
"... because I was engaged in lawful military operations."
Sniff, sniff. Does this pass the smell test? If you shot a combatant, sure, your case carries over to the next round. If you shot a civilian, under lawful conditions, we'll carry that to the next round too. We'll even give reasonable doubt.
Shot an eight year old and felt nothing but recoil? Try feeling hemp.
There is no lawful military operation that involves the use of your penis.
"... because they deserved it / it's a Civil War / they're slant eyes / fuck you..."
Your confession in this Court has been entered into the record. Hang, neck, dead, next.
"... by reason of insanity."
Hmm. Temporary insanity is no defense. Anyone who has ever engaged in or defended against a close assault has an open and shut insanity defense against anything they did with a bayonet, rifle, teeth, etc. We still hold you responsible for your actions.
Are you claiming permanent insanity? Well, you're dangerous, so we're going to have to put you down. If you're crazy enough, you won't mind if we use a rope instead of a bullet, right? Not _that_ crazy? Oh, good. How tall are you again?
"... because it was militarily necessary."
Smell test. Then pass to the next round. One caveat. If people died unnecessarily because you failed in a military duty, that was your obligation, this is the right Court for you today.
Five Homeland guards were charged in a containerization. The three guards who pushed people in, the one assigned to relieve them as a guard after the doors were locked, and the driver who drove the container off into a field and unloaded it.
They all dangled. Because of the testimony of one of two survivors in the container - out of seventy - and because of the driver of the 2nd container. He made a different choice. He unloaded it, but he cut the lock off and unlatched the door, at great personal risk, before he drove away.
If we ever identify him, he'll be getting something from the California Republic. A medal for lifesaving. The same medal we'd forward to his family if the suddenly freed prisoners had beaten him to death moments later.
"... because I had no choice."
Hmmm. Dying is a choice. Did you choose death over dishonor? Why are you in my courtroom, breathing so noisily that I cannot hear all these ghosts?
If I put a gun to your head, you can argue under the necessity defense that you are at immediate risk of death unless you do what I say.
Unless the order is to kill someone else. At which point the only lawful answer, the only moral answer, is to grapple for the gun, allow your brains to become a wall decoration, or both. Perhaps your last words would have been, 'I will not do that.' Certainly they should have been.
"... because I had orders."
American military law was very clear on this point. So was Nuremberg. Following orders is not a defense, it is an indictment. Or in this court, a confession. Hang, neck, dead, next.
"I'm guilty. Kill me."
OK. One of the off duty prosecutors will take you aside and take your statement on video. He will ask some questions. It's important that your victims be remembered. It's even more important that their abusers be identified and incriminated. You're still going to hang by the neck until dead, but I'm more than willing to trade a few days or weeks of undeserved life for some more justice. We'll keep you alive until there is no one left for you to testify against.
'Men of his sort are like cowardly rats. Even in the final corner, they try to persuade other rats to bite for them.'
"What I did, had to be done, so America could stay united / fight the China War / get past this unpleasantness / find peace."
Hangneckdeadnext.
The ends do not justify the means!
Let's reflect on that a moment.
The end here - our end, the California Republic's end, my end goal - could be simplified to say, "See these four thousand murderers? Shoot them in the neck and throw them in a hole."
But that's not the end. That's just another damned atrocity.
The end here is to make_ this_ the end. No more. No more atrocities. No more mass executions. No more burning smells of human pork rising through the ages.
That means that this must be justifiable.
Not justified.
Justifiable.
We have to do this the _right_ way, as much as our means allow.
That means we separate the innocent from the guilty, and we are going to let some guilty people go. Can't avoid it, can't help it. Because the alternative is to hang innocent men and women, no drop.
That would make us no better than them. No better than Homeland, or the Untied Snakes for which they murder.
THAT I cannot abide!
Thus the oath I required of each presiding officer.
"I am an officer of the California Republic. I take this oath without mental reservation or purpose of evasion. I swear to do justice that can be done, to uphold military law and civil order, to defend California from all threats internal and external, foreign and domestic. I swear to defend innocent blood, not only as if it were my own, but as always worth more than my own. Under no circumstances shall I permit a death sentence or execution of an innocent person, on my honor and on my own life."
That wasn't to say it wouldn't happen anyway. We're only human. We screw up. We're killers, every one of us.
But we're not murderers.
Those of us presiding over what ultimately became known as the Alviso Atrocity Trials were faced with a number of legal issues. Most of these took the form of defenses advanced by desperate genocidaires and unlawful combatants guilty of atrocities.
(Genocidaire: a person who engages deliberately and wilfully in acts of genocide. Go ask the UN what genocide means. Pack a lunch. Perhaps they can provide a cheese sandwich for you. And wrap it in the Genocide Convention, to go.)
The defense advocates, all four of them, were the most miserable officers in the California Republic. Unlike the trial officers, they were all attorneys with military legal experience. Also unlike the trial officers, they knew all about the legal risks that all of us were being exposed to. My official theory was that legally trained officers had to be assigned to defense counsel to give the benefit of the doubt to the defense. In practice, none of them wanted to touch what I was doing with a blood soaked ten foot pole. (Long story, it might involve a Homeland atrocity. Find one of the few survivors, get them very drunk, and they might tell you. You may want to take up recreational blackout drinking, or give up on sleeping ever again. Your call.)
The prosecutors on the other hand were all civilian attorneys. They were lawyers, but not military lawyers until after the California Republic drafted them. They soon figured out where I and the other presiding officers were going with all of this.
The presiding officers were all line combat officers (except me ... although this technicality would crop up again later) as the mission was a military one, and hearing cases day after day after day would drive nearly anyone insane. I didn't have to drive, I'd been rolled on a gurney into a furnace.
I made it clear that the military hearings we were holding, the proceedings of first the Resistance Military Commission and later the California Military Commission, were proceedings of strict military law. Not criminal law. Not civil law. Not civilian law at all.
Military.
Law.
You may have heard the phrase 'martial law.'
How about 'drumhead tribunal' or 'kangaroo court' or 'hanging judge' ... because those apply equally justly.
Herewith, the various defenses made by the genocidaires and violent criminals playing soldier without benefit of protection under military law.
"I have the right to...."
No, you don't.
"... a trial by jury!"
No, especially not that. Juries are for criminal law. A jury of your peers? Shall we use twelve of your murdered victims, silenced forever, or twelve of their grinning murderers?
"... remain silent!"
Yes, you do. But I don't need you to say a word to try, convict and hang by the neck until dead.
"... plead the Fifth."
You don't have to testify against yourself. So shut the fuck up.
"... refuse to recognize the authority of this Court!"
Yes, you can do that too. Do your bones recognize the authority of baton strikes? Does your neck recognize the authority of this hempen rope?
"... subpoena witnesses."
Hmm. When possible, yes, you can do that. But wars won't wait. And you may not like the results when you do.
".... confront my accuser(s)!"
Yes, that you can do. You can represent yourself or you can have counsel do it for you. But watch what you say, if you self represent. Confessional remarks are not stricken from this record. I'll go further, NOTHING is stricken from this record.
I went so far as to explicitly permit recording devices in the courtroom. Because we had two independent sets of recording devices running at all times between gavel bangs.
"... gather exculpatory evidence!"
We don't have time. These matters won't wait for forensics. Besides, some of the crime scenes are behind enemy (American) lines and others have been obliterated by war or hardship.
So much for rights.
Now for larger arguments.
"This Court is illegal!"
A combatant power has the authority and the obligation to enforce military law. The California Republic is a combatant power.
"The California Republic is illegal!"
So? It exists anyway. The question here is whether you will continue to.
"This is unjust!"
Do you have a point?
"This process does not serve justice!"
You're wrong there. This is combat justice. Triage justice. Frontier justice? We are doing the justice we can because we don't have time for Trials of National Reconciliation. And we're not going to free mass murderers, even on parole, to go victimize others groaning under American rule. Even in CONUS.
"I plead not guilty...."
That's nice. Your plea is not needed.
"... because you got the wrong guy."
We have taken great pains to make sure that we have in fact got the right guy. And if we don't, that is pretty much the only way to walk out of this room without a date with a rope.
"... because I was engaged in lawful military operations."
Sniff, sniff. Does this pass the smell test? If you shot a combatant, sure, your case carries over to the next round. If you shot a civilian, under lawful conditions, we'll carry that to the next round too. We'll even give reasonable doubt.
Shot an eight year old and felt nothing but recoil? Try feeling hemp.
There is no lawful military operation that involves the use of your penis.
"... because they deserved it / it's a Civil War / they're slant eyes / fuck you..."
Your confession in this Court has been entered into the record. Hang, neck, dead, next.
"... by reason of insanity."
Hmm. Temporary insanity is no defense. Anyone who has ever engaged in or defended against a close assault has an open and shut insanity defense against anything they did with a bayonet, rifle, teeth, etc. We still hold you responsible for your actions.
Are you claiming permanent insanity? Well, you're dangerous, so we're going to have to put you down. If you're crazy enough, you won't mind if we use a rope instead of a bullet, right? Not _that_ crazy? Oh, good. How tall are you again?
"... because it was militarily necessary."
Smell test. Then pass to the next round. One caveat. If people died unnecessarily because you failed in a military duty, that was your obligation, this is the right Court for you today.
Five Homeland guards were charged in a containerization. The three guards who pushed people in, the one assigned to relieve them as a guard after the doors were locked, and the driver who drove the container off into a field and unloaded it.
They all dangled. Because of the testimony of one of two survivors in the container - out of seventy - and because of the driver of the 2nd container. He made a different choice. He unloaded it, but he cut the lock off and unlatched the door, at great personal risk, before he drove away.
If we ever identify him, he'll be getting something from the California Republic. A medal for lifesaving. The same medal we'd forward to his family if the suddenly freed prisoners had beaten him to death moments later.
"... because I had no choice."
Hmmm. Dying is a choice. Did you choose death over dishonor? Why are you in my courtroom, breathing so noisily that I cannot hear all these ghosts?
If I put a gun to your head, you can argue under the necessity defense that you are at immediate risk of death unless you do what I say.
Unless the order is to kill someone else. At which point the only lawful answer, the only moral answer, is to grapple for the gun, allow your brains to become a wall decoration, or both. Perhaps your last words would have been, 'I will not do that.' Certainly they should have been.
"... because I had orders."
American military law was very clear on this point. So was Nuremberg. Following orders is not a defense, it is an indictment. Or in this court, a confession. Hang, neck, dead, next.
"I'm guilty. Kill me."
OK. One of the off duty prosecutors will take you aside and take your statement on video. He will ask some questions. It's important that your victims be remembered. It's even more important that their abusers be identified and incriminated. You're still going to hang by the neck until dead, but I'm more than willing to trade a few days or weeks of undeserved life for some more justice. We'll keep you alive until there is no one left for you to testify against.
'Men of his sort are like cowardly rats. Even in the final corner, they try to persuade other rats to bite for them.'
"What I did, had to be done, so America could stay united / fight the China War / get past this unpleasantness / find peace."
Hangneckdeadnext.
The ends do not justify the means!
Let's reflect on that a moment.
The end here - our end, the California Republic's end, my end goal - could be simplified to say, "See these four thousand murderers? Shoot them in the neck and throw them in a hole."
But that's not the end. That's just another damned atrocity.
The end here is to make_ this_ the end. No more. No more atrocities. No more mass executions. No more burning smells of human pork rising through the ages.
That means that this must be justifiable.
Not justified.
Justifiable.
We have to do this the _right_ way, as much as our means allow.
That means we separate the innocent from the guilty, and we are going to let some guilty people go. Can't avoid it, can't help it. Because the alternative is to hang innocent men and women, no drop.
That would make us no better than them. No better than Homeland, or the Untied Snakes for which they murder.
THAT I cannot abide!
Thus the oath I required of each presiding officer.
"I am an officer of the California Republic. I take this oath without mental reservation or purpose of evasion. I swear to do justice that can be done, to uphold military law and civil order, to defend California from all threats internal and external, foreign and domestic. I swear to defend innocent blood, not only as if it were my own, but as always worth more than my own. Under no circumstances shall I permit a death sentence or execution of an innocent person, on my honor and on my own life."
That wasn't to say it wouldn't happen anyway. We're only human. We screw up. We're killers, every one of us.
But we're not murderers.
