WHY ARE MEMBERS OF THE MILITARY NOT PROTECTED BY THE FIFTH AMENDMENT?
by Sharon Rondeau
(Jul. 3, 2013) — In May 2006, seven U.S. Marines and one Navy corpsman were accused of murdering an unarmed Iraqi man in the town of Al Hamdania, Iraq.
Marine Sgt. Lawrence Hutchins III was one of the eight charged and confined to “the brig” at Camp Pendleton in San Diego, CA. The following year, Hutchins was convicted by “a military jury” of “murder, conspiracy to murder, making a false official statement and theft” but acquitted on the charges of breaking and entering, kidnapping and assault. He was sentenced to 11 years in military prison, a reduction in rank, and a dishonorable discharge.
Hutchins was released from prison in 2010 after his conviction was overturned on the basis that he did not receive a fair trial. Hutchins was reinstated to his former rank and assigned duties at Camp Pendleton. However, the Marine Corps filed an appeal to the reversal and Hutchins was reincarcerated in February 2011.
On June 26, 2013, Hutchins’s conviction was overturned by a military appeals court because of evidence that he did not have an attorney present when he was first questioned about the incident. The Los Angeles Times reported that Hutchins’s attorney stated that after seven days of solitary confinement, “he broke and informed NCIS (Naval Criminal Investigative Service) that he would give them what they wanted.”
Hutchins’s attorney had argued that “his constitutional rights were violated when he was held in solitary confinement without access to a lawyer for seven days during his interrogation.”
Hutchins’s father and grandfather also served in the U.S. Marines. He is the father of two young children. While free and spending time at his home in Plymouth, MA in 2010, Hutchins said, “I’m optimistic. I have a lot of faith in God, in my lawyer and in the system. I walk with my head held high and my pride intact. I walk like a United States Marine.”
In the U.S. military, those charged with crimes are tried under the Uniform Code of Military Justice (UCMJ), which does not include the Fifth Amendment protection of a grand jury’s examination of the evidence prior to the filing of criminal charges. The trial procedure, called a court-martial, can be convened by a variety of officers in the military command structure. According to the UCMJ, “(b) If any such commanding officer is an accuser, the court shall be convened by superior competent authority, and may in any case be convened by such authority if considered desirable by him.”
As in civilian courts, plea deals can be made to avoid court-martial and reduce or avoid prison time. The remaining members of the “Camp Pendleton 8” received lighter sentences and have been released.
CDR Walter Francis Fitzpatrick, III (USN, Ret.), was court-martialed in 1991 for an alleged crime which he did not commit. In violation of UCMJ rules, Fitzpatrick’s commanding admiral, John Bitoff, acted as both accuser and judge, enlisting several other officers to fabricate evidence and witnesses. A contrived confession letter bearing Fitzpatrick’s forged signature was produced as “evidence” of his guilt.
Fitzpatrick has named Kevin Anderson as the person who forged his signature to the letter and current officers of the JAG Corps and U.S. Navy as being aware of the forgery but remained silent, some over the entire 23 years since his court-martial. Ever since the court-martial, which Fitzpatrick believes was staged to eject him from the Navy, he has been attempting to correct the record and clear his name.
Of Adm. Bitoff, Fitzpatrick said, “He made it all up.”
The Post & Email has spoken with both Bitoff and Anderson, neither of whom would agree to go on the record.
In April 2012, a graduate of the U.S. Naval Academy who was Fitzpatrick’s classmate and now Chief of Naval Operations, Adm. Jonathan Greenert, failed to answer our inquiry about Fitzpatrick’s court-martial. Similarly, the press contact for the U.S. Navy has failed to respond to two subsequent email inquiries.
An NCIS memo obtained by Fitzpatrick years later admitted that if the signature on the confession letter was indeed not Fitzpatrick’s, it would “make the Navy look really, really bad.” The author of the memo also asks, “Is it why Fitzpatrick was ‘fended off’ when he attempted to speak with someone about it?”
“I’ve never seen that letter; I’ve never been in the same room with that letter,” Fitzpatrick has told The Post & Email on many occasions.
The same NCIS investigator who was involved with Fitzpatrick’s court-martial in the 1990s, James Connolly, also provided information to the prosecution in Sgt. Hutchins’s case in 2006. Of Connolly’s part in Hutchins’s ordeal, Fitzpatrick stated in 2007, “JIM CONNOLLY and his NCIS buddies have covered-up the use of forced and forged confessions for decades. Their cover-up is used to allow guys like Connolly to reenact the tactic to ensnare military men like Sgt. Hutchins in service to political expedient and self-aggrandizement.”
On April 9, 2008, Lange reported that “For eleven days, in a coercive environment, NCIS denied the Marines and Navy Corpsman their Constitutional right to presence of counsel. Agents failed to audio or videotape interrogations, which went on for as long as 12 hours. There was no corroboration; no proof of NCIS’ remarks. May 10, 2006: Marines and Navy Corpsman were detained and restricted to living quarters at Camp Fallujah, Iraq pending return to Camp Pendleton.”
In 2002, TIME Magazine reported on the military justice system, which author Ed Pound described as “not satisfying most protections and guarantees provided by the United States Bill of Rights…”
Fitzpatrick told The Post & Email that the court-martial process contains “no judicial review; there’s no grand jury.” Fitzpatrick first approached the civilian grand jury system in 2009 from the knowledge that grand juries are inaccessible to military members. He discovered corruption in the Monroe County, TN grand jury which rendered its assembly and work product illegitimate, with the foreman having served at the pleasure of the judge for nearly three decades.
The use of a convicted felon as a grand jury foreman in another county in Tennessee brought into question all of the indictments signed by the foreman in more than 900 cases.
Regarding juror selection for courts-martial, Fitzpatrick said that, “The members of the ‘panel’ for any courts-martial represent only an advisory group to the admiral or general who creates or ‘convenes’ the military disciplinary hearing and assembles its participants. Only people who are under the command of the ‘convening authority’ are subject for selection to the panel. In my situation, John Bitoff selected panel members, nearly all of ’em from John Bitoff’s own personal staff. My court-martial was truly a command performance.”
When we asked why the Founders instituted the court-martial for the military, he said, “John Adams essentially said, “It’s too hard; not now. The court-martial system came to us through the colony of Massachusetts; John Adams’s territory, and the state of Massachusetts adopted its the British system of discipline first, and the Massachusetts Articles of War became the Revolutionary Articles of War which then were incorporated into the U.S. Constitution after the Revolutionary War was over. So in answer to your question as to why the Founders didn’t take this up, well, they did. And they said, ‘This system of discipline was good enough for the Romans; it’s good enough for the Brits; it’s good enough for us. So the U.S. Army was formed under the First Continental Congress that brought with them their own system of government, which was never again argued about or discussed or voted upon by the U.S. Congress.”
The court-martial system has many uses, and it’s without oversight. Coming back to the framework of the Sgt. Hutchins court-martial, we can see what was going on with him and compare it to that 23-year-old court-martial which is the most reviewed court-martial in the history of the country. We talked about “the ghost” in Sgt. Hutchins’ case. Who is he? He was never identified.
Then there is the situation of doctored documents and of course, the forgery plays a part in that. Anywhere you look in my 23-year-old court martial, you find problems which are being covered up which, had they been examined, we might have had some kind of remedy or reform of the system so that Lt. Michael Behenna, Kevin Holt, the Camp Pendleton 8 and others could have received fairer treatment.
There’s an opportunity now for the exposition of the system and to see the removal of the people I’ve already talked about. Whatever happens next, Hutchins should be let go.
We can view the Sgt. Hutchins court-martial in the context of that 23-year-old court-martial and draw parallels. It still makes the Navy and the Marine Corps “look really bad.”
We have the Zeller memos. We have Kit Lange’s interview with Tim Harrington. We have the report that this is a political process and there are political considerations that go with it that have nothing to do with the actual administration of justice. We have the criminal conduct of a convening-authority admiral carrying out this kind of assault against somebody who he saw as a threat to the Navy. It was a character issue, frankly.
With regard to motive in Sgt. Hutchins’s case, Tim and I know why Sgt. Hutchins was court-martialed. It was to test a system of urban warfare called “the counterinsurgency coin.” A lot of people have written about it. General Mattis was one of the authors, along with a guy named “Petraeus,” in this urban warfare doctrine which is now being used by the homeland. In the execution of the research and development of the counterinsurgency doctrine put in place by Mattis and Petraeus, there were a couple of operations that generated blowback. One of them was the Ray Girouard Iron Triangle assault, which was embarrassing to the military, and the Camp Pendleton 8 situation. Another was the Leavenworth 10. There is the Master Sergeant on the front page of The Jaghunter, John Hatley, who has been locked up for years and years. These names just all run together.
There are lots of people locked up who should not be, and this can be profiled in the context of what they’ve done to Sgt. Hutchins.
With the exposition of the court-martial that is now 23 years old and circumstances that reach back over a quarter of a century, we have everything necessary to destroy any trust that people might place in the process for what it really is: unruly, without oversight and completely out of control. And, by the way, the court-martial system is creeping into our civilian courts, a phenomenon which was fully intended. Back in the late 1940s and early 1950s, civilian prosecutors, in their reflection upon the Articles of War as they were misused against our soldiers from World War II, tried to do away with the grand jury by declaring them “obsolete.” People who came back from the war complained mightily about the draconian system they had been subjected to and experienced while in uniform. So Congress was forced into action, and it was in the course of their review – again, moving the deck chairs around the Titanic; it’s still a sinking ship – they saw the facility of doing away with the grand jury.
It was during the same time frame, 1946, that the Judicial Branch did exactly that. JAGs coming home from the war said, “This grand jury – it’s obsolete. We didn’t need it during the war; we certainly don’t need it now.” That’s when the grand juries basically went away, but not through any act of Congress and not because there was any need to do away with the grand jury, but because of the role that the grand jury plays in our constitutional republican form of government. They said, “They have to go,” and they did.
We need to get our grand juries back. A grand jury someplace, somewhere, claiming jurisdiction over the issues as they relate to Sgt. Hutchins or any other matter could look at this. I’ve tried to do this; I brought information about Sgt. Girouard to the Monroe County grand jury and they just waved me out of there. And the 23-year-old court martial…I can’t get in front of a federal grand jury. It’s the grand jury that makes us a republic.
Again, Ronald Reagan: “Government is not the solution to the problem; government is the problem.” We the People don’t understand what kind of power we command and can exercise, and then we don’t do exactly that, and it is lost.
Despite the record of court-martial containing Fitzpatrick’s forged signature to a letter he has never seen, he was honorably discharged after serving 20 years and receives a military pension, although garnished significantly by the IRS since February 2012 without a letter or hearing.
The Post & Email will next report on threats NCIS investigator James Connolly made to Fitzpatrick against his life should he continue to seek redress for his court-martial. If Fitzpatrick’s conviction were to be overturned today, an unknown amount of back pay, promotions and other benefits could presumably be due him, as the proceeding tainted and ultimately ended what had been an outstanding military career.