woody_zimmerman_118_2007We have entered new, uncharted territory in our American Experience. Pending the findings of ongoing investigations, American soldiers charged with guarding prisoners of war in the Afghanistan Theater may presently be prosecuted for “crimes” against the religion of the enemy. President Obama, Secretary of State Hillary Clinton, Secretary of Defense Leon Panetta, and overall commander of our Afghan forces General John Allen have repeatedly apologized for an incident in which copies of the Koran formerly possessed by Muslim prisoners were burned. Hearing the apologies and news reports surrounding them, a casual observer might conclude that one of the worst atrocities in the history of warfare had been committed.

The situation, as I understand it, was approximately the following:

  1. American military prisons routinely provide the Koran and other religious materials (including an Islam-compliant diet) to Muslim prisoners of war.
  2.  Prisoners at the Bagram Air Base detention facility in Kabul, Afghanistan, were found to be passing provocative messages scribbled inside copies of the Koran that prison authorities had supplied to them. The discovery prompted American military guards to remove these copies from the prisoners’ possession.
  3. The misused Koran copies were accidentally placed in a collection of trash marked for disposal by personnel who evidently did not recognize them as religious books. The copies were subsequently burned.
  4. Word got out, via as-yet undisclosed means, that American soldiers had burned copies of the Koran. Subsequent riots in Afghanistan have killed 30 Afghan natives and injured unknown numbers. Four American soldiers were also shot to death in separate incidents.
  5. Three separate investigations – one American, one Afghan, and one jointly American-Afghan – have been launched to determine the facts of the case. Senior military officers have affirmed that legal proceedings against American military personnel (if any) would certainly be conducted under military auspices in conformity with the Uniform Code of Military Justice.

I know a good deal about the history of American arms, but I don’t think I can recall anything similar in our 200+ years of military actions. For starters, just think about the term legal proceedings. For accidentally burning a book?!!! (Would someone please wake me when the bus is safely out of Oz.)

We are in uncharted territory here because we are obviously engaged against an enemy we are afraid to “offend” – in the religious sense. What if we decided that the enemy will be offended if we wound or kill any of his soldiers? Would we then take “legal” action against any American soldiers who injured any of the enemy? What if the “Arab Street” rioted every time we fired a weapon? Etc., etc. Is this any way to run a war? More to the point, is this a precursor to a fully neutered American army?

The incident – which is far from closed – raises several questions. I’ll attempt to answer them, at least partially, in the following paragraphs.

Is this a prosecutable case under the UCMJ? Theories abound on the Internet, but the bottom line is: no one really knows. Probably the military itself doesn’t really know because the final “word” hasn’t come down from Mt. Olympus on whether the poor schmucks who burned the trash should be fried, too. In strictly legal (as opposed to political) terms, there is a difference of opinion on whether the UMCJ covers the situation or not. Those who say “not” argue that an American soldier can no more be prosecuted for burning a Koran than for burning a Bible. We’re not in the business of punishing “religious” crimes. However, another faction says a standing general order directs that the Koran should not be mishandled, defaced or damaged by any military personnel. Any disobedience of that order is automatically a violation of the UCMJ. Ergo, there could be a prosecutable case.

What are the tradeoffs of prosecuting vs. not prosecuting? More than the prosecutable case question, this is truly the $64 zillion question. By taking the non-prosecution option – which most Americans probably favor – we risk continued violence from the Arab Street and greater antagonism from Afghanistan leaders (who have already demanded a public trial of the parties responsible for burning the books). But if the soldiers are put on trial, the wider results would be disagreeable no matter how the trial turns out. A “guilty” verdict will certainly enrage the American public on the very cusp of an election which might then go against President Obama. Conversely, an “innocent” verdict would enrage Muslims, world-wide, producing unpalatable political and military results – both in Afghanistan and in the wider Middle East. Thus, the situation presents a Hobbesian Choice – i.e., a choice between two extremes, each almost equally unacceptable.

How will prosecution affect morale of our fighting forces? Short answer: certainly not positively. I know many American soldiers personally. Some are in my own family. Both of my two sons are former Army officers. I never cease to be impressed and even overwhelmed by the level of commitment and adherence to duty I see in all of these men (and, in some cases, women). They are exceptional. But no one is made of stone – not even the toughest of the tough. Putting American soldiers on trial for discharging their duties, as they understood them, might stretch morale to the breaking point. It’s never a good idea to push something, just to see where it might snap. Americans (including soldiers) have a finely tuned sense of justice. Moreover, they like to know that standards of justice have been laid down ahead of time – not on the fly for political expediency. It would be bitterly ironic if we ended up guarding the religious sensibilities of our enemies at the cost of the morale of our own fighting forces. Who would be the better for that?

Can we staff an all-volunteer army if we prosecute such offenses? The “reasonable man” answer would be “dubious.” How many late-teens young men will sign up for dangerous duty in an alien culture, knowing that they might end up in the dock for making a mistake with some religious books written in Arabic? If they escape that, they might get their legs blown off during exposed missions against a foe who shows very little human sensitivity of a kind they are used to. Young men take risks and do dangerous things because they think they are invulnerable. (I know this from raising two sons and watching five grandsons grow up.) So some will still sign up. But joining an outfit that lets you hang out there over mishandled religious artifacts is a risk most won’t want to take. The Koran-burning is like a recruiting tutorial for the modern American Army. So far, it’s not going well.

Can we fight a war at all under Religious Sensitivity Rules of Engagement? This question is beyond my analytical capabilities to answer. I raise it because it’s important, and (probably) because I fear to know the answer – or, more accurately, I think I know the answer, but I’m afraid to have it confirmed. My older son, who served during the Bush-41 administration, likes to say the Army’s job is to “break things and kill people.” (Not original with him.) This crude mission makes many people dislike the Army and the entire military establishment. Accordingly, there is a natural tendency for certain people to try to impose Rules of Engagement on the military that will make it “kinder and gentler.” Protecting the Koran from “desecration” would be one of those rules. Like many such ideas, it might sound good in Pentagon “sensitivity sessions,” but becomes questionable on live battlefields where real bullets are flying and real bad guys are running around trying to kill you. My SWAG (systematic, wild-assed guess) is that many of these well-meaning ROEs will be quietly jettisoned when our forces are pushed into dangerous corners. At the end of the day, good intentions and sensitivity aren’t worth spit if you lose on the battlefield.

I’m not at all confident that our military can be fully effective in the present political environment. Left-leaning politicians love to tinker with the military and use it for their own political purposes. That is manifestly so for the Obama administration. I pray that we won’t pay a steep price for this in the future.