Is It a Good Idea To Try Ex-Soldiers As Civilians?

As little as I know about the military, I know even less about military law. Still, this sounds wrong:

IRVINE, Calif. – A former Marine sergeant facing the first federal civilian prosecution of a military member accused of a war crime says there is much more at stake than his claim of innocence on charges that he killed unarmed detainees in Fallujah, Iraq.

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Nazario is the first military service member who has completed his duty to be brought to trial under a law that allows the government to prosecute defense contractors, military dependents and those no longer in the military who commit crimes outside the United States.

I understand there have been incidents where American contractors committed crimes in Iraq and slipped through the cracks. As civilians, they could not be tried by the U.S. military, but due to a diplomatic agreement, the Iraqi government isn’t allowed to try them either. This might be the least troublesome way to close that gap.

(On the other hand, it doesn’t seem right to try people in U.S. courts for crimes they committed as civilians against people of another country while in that other country. As it is, we already have Americans convicted in America for violating Honduran fishing laws while in Honduras. This seems like another step down that dangerous road.)

I doubt, however, that it’s a good idea to put members of the U.S. military on trial under this provision. We expect soldiers to do things that would be capital crimes if done outside the context of war. Our civilian courts have little experience dealing with situations like this, and the possibility of having military decisions second-guessed by a civilian court years later seems like it could cause confusion in the ranks.

Others say the law closes a loophole that allowed former military service members to slip beyond the reach of prosecution. Once they complete their terms, troops cannot be prosecuted in military court.

I know that military courts have no jurisdiction over civilians, but I was under the impression that in situations like this there were provisions to recall ex-soldiers to duty for purposes of a trial. I guess not. But it sounds like a better solution to me.

Scott Silliman, a law professor and executive director of the Center on Law, Ethics and National Security at Duke University, says it has little to do with questioning military decisions and everything to do with whether a service member committed a crime.

That seems oversimplified. If there’s no difference in criminal law between military and civilian environments, then why do we have a separate military legal code and justice system? Is it just a historical oddity? Or is there something fundamentally different about military service?

I’d love to hear more about this from someone who knows a lot more than I do.