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Tim Bilecki

Lessons from 1861: Modern Military Justice | Bilecki Law Group

It has often been said by military historians that we face nothing new under the sun today that was not faced by warriors since the dawn of warfare. General James Mattis is often quoted as saying that though the technology had changed, Alexander the Great would not be the modern military justice least bit confused by what he saw on the modern battlefield today. So it was with Private William Scott of the Third Vermont Volunteers who found himself asleep on post in the early morning hours of August 31st, 1861. Found guilty at court martial and sentenced to death, how his case and subsequent fate was handled then will tell us all that we need to know about the modern military justice system. Namely, that it was not then and nor is it now a system that prioritizes justice and truth over order and discipline. A necessary endeavor perhaps, but for men like young William Scott, it almost cost him everything. Were it not for a staunch defense and advocacy for the young man, he would be an obscure name lost to history and another victim of military order.

Private William Scott Was Found Guilty And Rightfully So

The story of Private Scott was originally published by the New York Times in 1861 and rightfully indicates that Private Scott did indeed fall asleep while on post and was subsequently found guilty. The facts at hand were that he was on guard and asleep in a time of war. General McClellan would confirm the finding and sentence that young Scott was to face a volley of bullets from his peers as a result.

By all means, such conduct in a time of war should not be overlooked. Punishment should be forthcoming and a failure to enact such punishment would encourage others in that same dereliction of duty. It is a serious offense because the temptation and natural inclination to fall asleep on a quiet, dark, and uneventful night has plagued young Soldiers since the inception of warfare.

We’re confident that on a dark cold night, a young sentry on the city gates of Troy decided, what’s the harm of a little nap, after all, it’s only a wooden horse. Again, we face nothing new under the sun today. Should Private Scott have been found guilty? Absolutely, he should. Should he suffer the penalty of death for it? Well, the facts at hand would indicate otherwise.

Dereliction of Duty By Command Sets The Standard And The Culture

It is quite often the case that our staunch advocacy for our clients leads others to believe that we seek no order or discipline in the armed services. Nothing could be further from the truth as the team here at Bilecki are military veterans and we can testify to the utility of the UCMJ when executed properly. We just don’t like seeing good men and women screwed over by commands trying to make up for previous failures. It’s not right and it most certainly is not justice.

The New York Times reported that several violations of this order which would warrant death were already pardoned in full by the same command. They posed the question if that very command was not morally responsible for the climate that would lead young Scott to let down his guard on a sleep night. We say yes and we see the same time of inconsistent climate today. Once again, there is nothing new under the sun that we face today.

Death Is A Steep Price To Pay For An Ambiguous Command Culture

For the command to pardon several obvious cases of the same behavior and then instantly jump to the death penalty for the next case is arbitrary and capricious. It is a deadly game of Duck, Duck, Goose and should you be the unfortunate Goose, you pay for it with your life. This is what we see today in the modern military justice system, though death is seemingly no longer in the cultural appetite for any offense. However, death is just one way to ruin a life and in the cases of overzealous prosecution and punishment, perhaps not the worst a young service member can face.

We have no doubt, because there is nothing new under the sun, that the command that prosecuted Private Scott felt the need to make an example. They set the stage with their prior lax enforcement and when pressure came down from above, they closed their eyes and picked one. Happens all the time in the modern military and for Private Scott, it was about to cost him his life. Thankfully, the President of the United States saw it for what it was. He pardoned Scott’s death penalty but unfortunately, he could not excommunicate arbitrary prosecution in the military for posterity’s sake.

Military Discipline and Genuine Justice Are Not Mutually Exclusive Concepts

Look, when we defend a Staff NCO from rape charges because he had an inappropriate relationship with a subordinate, we’re not defending his life choices. There comes a point where you pin on enough stripes that you have to be more judicious with who you play around with. You have to use good judgment and when you don’t, accountability is a thing. However, you are not a rapist because that subordinate was caught with illegal drugs in the barracks and you were the easy out. That’s not justice and that’s not right.

You can have military order and you can have justice. That the modern military justice system feels that they cannot demonstrate again that there is nothing new under the sun. Soldiers

falling asleep on post is not a new concept and nor is command’s looking to cover themselves for prior failures at the expense of the latest young soldier’s failure.

It should be equally noteworthy that the Times article from over 150 years ago pointed out an anecdote from the French General Napoleon Bonaparte. The story goes that on one of his nightly rounds, he found a sentinel asleep. Rather than order the man’s death, he picked up the musket and stood the post for a few hours until the man awoke. There is nothing new under the sun that we face today. Good men and women are paying the price because commands choose to buffer their insecurity and prior failure over their ability to stand in the gap and correct the failure themselves. For those good men and women who bear this unjust burden, the Bilecki Law Group will stand ready to fight for your life and all you hold dear.

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