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The military's highest court Tuesday hammered attorneys on both sides of a controversial case involving vexing questions about whether commanders should have authority to court-martial troops who try to commit suicide.
"If suicide is indeed the worst enemy the Armed Forces has in 2012 — in terms of killing soldiers, sailors, airman and Marines — then why should we criminalize it when a guy fails? Seems to me like you're trying to fit a square peg in a round hole," said Judge Walter T. Cox III during oral arguments at the Court of Appeals for the Armed Forces.
The court was hearing the appeal of Marine Pvt. Lazzaric Caldwell, who was convicted of "self-injury" after he slit his wrist in a barracks in Okinawa in 2010.
He was convicted under the Uniform Code of Military Justice's Article 134, known as the General Article, because the judge found his self-injury was prejudicial to good order and discipline and brought discredit upon the service.
At least one judge on the military's high court agreed with that argument. "You don't think that the public will think less of the military if people are killing themselves? …There's literature out there that these things come in waves," said Judge Margaret Ryan.
Underpinning the case is the question of why the military criminalizes attempted suicide when it does not treat successful suicide as a crime.
"If [Caldwell] had succeeded, like 3,000 service members have in the past decade, he would have been treated like his service was honorable, his family would have received a letter of condolence from the president and his death would have been considered in the line of duty. Because he failed, he was prosecuted," noted Navy Lt. Michael Hanzel, the military lawyer representing Caldwell.
Suicides among active-duty troops have soared in recent years, from less than 200 in 2005 to 309 in 2009, and a spike this year has put 2012 on track to set a new record high.
Many mental health experts say criminalizing attempted suicide will undermine the Pentagon's efforts to prevent troops from taking their own lives. Those laws might make troops reluctant to come forward, seek help and be candid with mental health counselors if they fear potential prosecution.
Caldwell, who never deployed to a combat zone, had been diagnosed with post-traumatic stress disorder not directly related to his military service. He was sentenced in June 2010 to 180 days' confinement and a bad-conduct discharge. The sentence was for the self-injury and two other convictions, specifically participation in a theft and possessing synthetic marijuana, records show.
Marine Maj. David Roberts, representing the Defense Department against Caldwell's appeal, focused on the specific facts surrounding Caldwell's suicide attempt.
Roberts noted that the young Marine slit his wrists after his commander ordered him to go to a military detention facility for attempting to steal a leather belt from an off-base store in Japan.
"He did this immediately after being told he was being sent to the brig. He did it to thwart the commander's intent," Roberts said.
Roberts also argued that attempted suicides in general should be treated as a crime under the UCMJ and commanders should have the discretion to handle each situation as they see fit.
That elicited skepticism from several judges. One raised the hypothetical example of a soldier who deployed to Iraq five times and suffers from severe PTSD. "That's the extension of your argument. Why isn't that the same thing?" Chief Judge James E. Baker said.
But in a reflection of the thorny nature of the issue, Baker also countered his own point by raising another hypothetical case of "a suicide attempt at formation for the purpose of protesting the war."
The judges also briefly raised the question of how military law would view an attempted suicide bomber.
"How do you draw a distinction between a gesture and a suicide attempt?" Judge Scott W. Stucky asked.
Hanzell, Caldwell's lawyer, said the distinction "is whether there was serious intent to end one's life."
The judges also wondered whether these questions are better addressed outside the courtroom by a new law or a change of military policy. "You don't disagree that the president could easily change that, right? DoD could change it," Ryan said.
Indeed, the Pentagon is currently reviewing the laws related to prosecuting attempted suicide. The Defense Department's top lawyer earlier this year ordered the military's legal experts to consider whether the Manual for Courts-Martial needs to be changed.
The judges suggested they were uncomfortable with the issues raised by Caldwell's case.
"We are not mental health professionals. How do we craft rule that determines whether someone … really wanted to die?" Ryan asked.