12 January 2006

Truth or Consequences

What do you do when a Major General takes the Fifth?

Maj. Gen. Geoffrey D. Miller, a central figure in the U.S. detainee-abuse scandal, this week invoked his right not to incriminate himself in court-martial proceedings against two soldiers accused of using dogs to intimidate captives at the Abu Ghraib prison in Iraq, according to lawyers involved in the case.

I am not a military lawyer and never have been. But, in the civilian world, while you have a right not to incriminate yourself in a criminal trial, you do not have the same right in civil proceedings (i.e. proceedings where you don't face punitive jail time). Thus, while prosecutors aren't allowed to encourage the jury to draw negative inferences from a refusal to testify in a criminal trial, in a suit over something else, like a suit for damages from criminal acts, juries can be, and are encouraged by the lawyer for the person bringing suit, to assume the worst if a defendant refuses to testify based on the Fifth Amendment. Likewise, there is no law that says that employees can't fire someone who refuses to testify about job related activities because they took the Fifth Amendment and refused to testify about those matters.

The same should apply in this context. Major General Miller needs to be removed from any command position and needs to receive the strongest possible non-criminal discipline possible because of a role in the prisoner abuse scandal that he is not willing to testify regarding for fear of a criminal prosecution. You don't have to give the court the truth if you fear criminal prosecution, but you still have to face the consequences of your choice when you exercise that right.

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