December 27, 2010

The Turn of a Fiendly Card

Hatched by Dafydd

The dangerous flip-side of an independent military

There's a war on down south; south of the Rio Grande, I mean.

As most are aware, the drug cartels in Juarez and other Mexican states have become almost as big a problem in Mexico as they were in Colombia. The government is fighting against well-entrenched, heavily armed, deep-pockets banditos, and Mexican soldiers are fighting this "police action" as an all-out, even existential war.

Unfortunately, they're also accused of killing innocent bystanders, then planting evidence to make them look like narcoterrorists:

[American murder victim Joseph Proctor's] mother, Donna Proctor, devastated and incredulous, has been fighting through Mexico's secretive military justice system ever since to learn what really happened on the night of Aug. 22.

It took weeks of pressuring U.S. diplomats and congressmen for help, but she finally got an answer, which she shared with The Associated Press.

Three soldiers have been charged with killing her son. Two have been charged with planting the assault rifle in his hands and claiming falsely that he fired first, according to a Mexican Defense Department document sent to her through the U.S. Embassy in Mexico City.

It is at least the third case this year in which soldiers, locked in a brutal battle with drug cartels, have been accused of killing innocent civilians and faking evidence in cover-ups.

I think it fairly can be said that Mexican President Felipe Calderon is fighting an existential war against the drug-runners... but does that mean that "anything goes," a tarjeta blanco for the military? Is it acceptable, in the name of fighting such brutal and depraved evil, to protect Mexican soldiers -- who are functioning as domestic law-enforcement agents -- from the consequences of their own sloppy investigations and hair-trigger reactions, to the point of falsely painting innocent victims of overzealous police executions as criminals?

A good case can be made that we in the United States have gone too far in allowing civilian judicial interference in the war against radical Islamism (WARI); but I think it equally clear that Mexico has gone too far in the opposite direction; they're flirting frighteningly with out and out military dictatorship.

When Mexican soldiers are found to be tampering with evidence, or are reasonably accused of such by the National Human Rights Commission of Mexico, the trials are held in secrecy; even the rest of the Mexican government can get virtually no information about the case. Thus when the military acquits its own soldiers of abuse, assault, or murder, it's hard to imagine anyone taking the "verdict" seriously:

Such scandals are driving calls for civilian investigators to take over cases that are almost exclusively handled by military prosecutors and judges who rarely convict one of their own....

President Felipe Calderon has proposed a bill that would require civilian investigations in all torture, disappearance and rape cases against the military. But other abuses, including homicides committed by on-duty soldiers, would mostly remain under military jurisdiction. That would include the Proctor case and two others this year in which soldiers were accused of even more elaborate cover-ups....

The military justice system operates in near total secrecy, choosing what to publicly reveal and when.

What disturbs me most about the example of our nearest neighbor to the south is that I myself have argued against civilian federal courts having jurisdiction over purely military matters, including the holding of POWs and the treatment of unlawful enemy combatants; I have condemned the two Supreme Court cases, Hamdan v. Rumsfeld, 548 U.S. 557 (2006) and Boumediene v. Bush, 553 U.S. 723 (2008), that essentially gave full civilian defendant rights to captured terrorists. But the Mexican war against the cartels demonstrates the horrific dark side of allowing the military to proceed unchecked, unmonitored, and unaccountable.

I believe our own situation is very different from the Central American example for several reasons:

The Mexican army is operating as a domestic law-enforcement agency, arresting, prosecuting, and engaging in summary executions of Mexican citizens suspected of committing crimes.

It is not engaging in "purely military matters."

Our own military is forbidden from acting as police under the states' general police authority by two legislative acts of 203 years and 132 years standing: The Insurrection Act of 1807 and the Posse Comitatus Act of 1878 prevent any use of the military to conduct ordinary police activities within the United States, except during times of actual insurrection, rebellion, or martial law.

But even if the president declared martial law in some section of the United States, that still does not give the military authority to act in secret, to shield its activities from the (civilian) governmental branches of Congress, the administration, and the courts, or to quash criminal or civil cases alleging banditry, abuse, assault, or criminal homicide by military personnel... which appears to be exactly what the Mexican army is doing.

The Mexican civil authorities appear to be powerless against the army, which smells suspiciously like military rule.

The United States, by contrast with our southern neighbor, has a wealth of civilian authorities which can investigate members of the military -- and are themselves armed, granted jurisdiction over crimes committed by the military, given subpoena power, and with the authority to imprison or even execute military officials who are convicted of abuse of authority or other serious felonies, even if the military services in question oppose the prosecution.

First, there is the Office of the Inspector General, U.S. Department of Defense; the DoD IG is appointed by the President of the United States and must be confirmed by the U.S. Senate, civilians all. But in addition, each branch of the service has a criminal investigations divison; and each CID employs many civilian investigators and agents, along with military personnel:

  • Naval Criminal Investigative Service (NCIS) for the U.S. Navy and the U.S. Marine Corps
  • United States Army Criminal Investigation Command (CID) for the U.S. Army
  • Air Force Office of Special Investigations (OSI) for the U.S. Air Force
  • Coast Guard Investigative Service (CGIS) for the U.S. Coast Guard

Our Founding Fathers were greatly worried about even the existence of a standing Army; they certainly insisted that the entire military be under civilian command, which is why the Constitution specifies that the President, an elected civilian official, be the supreme Commander in Chief. And we have seen a number of occasions where the President has indeed exercised his authority against the wishes of the military -- for example, when President Harry S. Truman fired five-star Gen. Douglas Arthur MacArthur for insubordination during the Korean War.

[I originally wrote "four-star" above; but MacArthur was appointed General of the Army in December 1944, and the uniform at that time specified five stars. I don't believe anyone in the American military forces has been authorized to wear five stars since Gen. Omar Bradley in 1950, but I'm not a military historian, so don't take my word for it. Thanks to commenter DK for the correction.]

Mexico has a history of its military seizing power from civilian leaders, for good or for ill.

The United States has never been ruled by a military dictator, but Mexico has had several -- for example, Field Marshal Anastasio Bustamante, Gen. Antonio López de Santa Anna, and Gen. Porfirio Díaz, whose last electoral fraud triggered the 1910 Mexican Revolution. It is far more likely that the Mexican generals would seize control from President Calderon than that our own military would execute a coup d'état against Barack H. Obama.

Think a second time... then a third.

Even so, it's well to bear in mind that we set up a system of civilian control of the military for a reason... and we should think many times before advocating, e.g., that the President declare that the civilian courts have no jurisdiction over the military's machinations.

Still, that does not mean that it's inconceivable that, after such thinking, we still reject judicial interference in what really are -- in our case, not Mexico's -- purely military matters. As it happens, even after pondering the current situation south of the Rio Grande, I have not changed my mind about the unAmerican, unconstitutional ruling of the Court in Hamdan and Boumediene.

It's always good to reevaluate one's conclusions in light of new facts; but to reevaluate means to reconsider... it's not a synonym for "to reject." Even upon further consideration, I stand on my previous opposition to Hamdan and Boumediene, the Mexican experience notwithstanding.

Hatched by Dafydd on this day, December 27, 2010, at the time of 11:05 PM

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The following hissed in response by: LarryD

Rush Limbaugh is fond of saying the the military is good for doing two things: killing people and blowing things up.

It happens that our military, in pursuant of the above capabilities, has gotten pretty darn good at logistics. Handy when delivering aid to a far-away disaster area. But one should never lose sight of Rush's point, what the military is for, is fighting wars. Not delivering aid, and especially not doing bloody police work.

Part of Mexico's problems derive from trying to have it's military do police work. The Mexican police should do the police work, when they locate a cartel armed camp, then the army should be called. At which point the cartel gets one chance to surrender, and if they don't, the military reduces them to dirt.

The above hissed in response by: LarryD [TypeKey Profile Page] at December 28, 2010 9:09 AM

The following hissed in response by: Dick E


The Mexican police should do the police work…

True enough, but the problem is, Mexican police -- essentially all of them -- are corrupt.

The genesis of the problem is that Mexican police are abysmally underpaid. It is impossible to support a family on a cop’s salary. They are expected to demand and accept bribes to supplement their meager pay. If a policeman stops you for a minor traffic offense, you are supposed to offer him or her a bribe. (They call it a mordida or “bite.”) It’s a big mistake to ask the cop to write you a ticket; you’ll end up at the police station with higher level cops demanding larger bribes and making your life otherwise miserable.

The corruption of the mordida, imprinted when a patrolman starts with the force, remains part of the “normal” way of doing business at every level -- sergeant, captain, chief of police.

Thus the Mexican government cannot trust the (basically 100% corrupt) police to honestly pursue the cartels. The cops would be bought off.

That is why Mexico has made the less-than-perfect decision to use the military to go after cartels. The military (at least the lower ranks) has no history of corruption. Who would they demand bribes from? They normally have no business with civilians.

(The thing that concerns me is the longer this exercise continues, the greater the chance that the cartels will find a way to buy off the military. That’s when Mexico really becomes a failed state.)


Your point is valid, and I do not excuse the Mexican soldiers’ behavior, but in a way it is understandable. They know that the Mexican legal justice system is corrupt and to be avoided at all costs. This is probably true of the military as well as the civilian courts.

Thus some poor, uneducated soldier makes a mistake (I assume) and shoots an innocent bystander. He knows he might get a fair trial, but he also knows he could catch a judge with a political agenda -- or maybe the victim has rich relatives who want “justice” no matter the facts of the case. This wouldn’t actually be the soldier’s thought process in the heat of the moment -- he just knows that if he goes to court he may well get screwed.

Combine this with the soldier’s lifelong experience seeing poor, innocent (at least in his eyes) people go to jail, while rich folks seem to have an entirely different justice system.

Much better to plant an AK-47 on the victim and hope nobody notices.

I cry for Mexico.

The above hissed in response by: Dick E [TypeKey Profile Page] at December 28, 2010 11:48 PM

The following hissed in response by: DK

Just a small point...
Doug MacArthur was a Five-Star!

The above hissed in response by: DK [TypeKey Profile Page] at December 29, 2010 10:33 PM

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