by Matt Kennard
Immoral Waivers
The Department of Justice cites losing your “right” to serve in the military as one consequence of a felony conviction, and those like Private Green with multiple civil convictions for what the army considers to be misdemeanor offenses also lose their automatic right to serve. But in both cases there is a system in place to give ex-cons a second chance. “Exceptions to the prohibition on military enlistment . . . may be authorized by the Secretary of the affected branch of the service in meritorious cases,” says the guidance.97 In military jargon these “meritorious cases” warrant what are called “moral waivers,” by which a moral failing in the past may be overlooked and the individual allowed to serve their country depending on the circumstances “surrounding the criminal violations, the age of the person committing them, and personal interviews.”98 For obvious reasons—not least that of offering former criminals a second chance—the moral waiver system has its uses and is an old institution founded on the valuable principle that society shouldn’t be closed to someone for a single transgression. The Pentagon puts it this way: “The waiver process recognizes that some young people have made mistakes, have overcome their past behavior, and have clearly demonstrated the potential for being productive, law-abiding citizens and members of the military.”99 But like most well-intentioned (and discretionary) pieces of military regulation, during the War on Terror it was exploited and stretched to the maximum by the Pentagon as it struggled to keep up troop numbers.
It took a report from the Palm Center at the University of California, Santa Barbara—a group committed to discussion of homosexuals in the military—to blow the lid on figures the military brass were trying hard to cover up. In 2007 it published information obtained through the Freedom of Information Act which led it to call the proliferation of ex-cons in the military a “major recruitment trend” which it said was “a cause, effect, or even correction of the military’s apparent recruitment problem.”100 It found the number of convicted felons enlisting in the US military nearly doubled in two years, from 824 in 2004 to 1,605 in 2006. In that period a total of 4,230 convicted felons were enlisted in the military, including people guilty of rape and murder. On top of this, 43,977 soldiers signed up who had been found guilty of a serious misdemeanor, which includes assault. Another 58,561 had drug-related convictions, but all were handed a gun and sent off to the Middle East. “The fact that the military has allowed more than 100,000 people with such troubled pasts to join its ranks over the past three years illustrates the problem we’re having meeting our military needs in this time of war,” said Aaron Belkin, director of the Palm Center.101
But in the face of this dangerous trend, the media focus remained mostly on cases where felons were shown to be upstanding and trusted soldiers when given a chance—what I call the narrative of the “noble felon.” The case of Osvaldo Hernandez, for example, drew national attention after he was allowed to serve in the Middle East, but then turned down for a job with the New York Police Department on his return home. His moral rectitude was good enough for an M-16 in Afghanistan, but not for the Upper East Side. In 2002, when he was twenty, he had been caught with an unlicensed loaded gun in his car and had served a year in prison. He was the lucky recipient of a moral waiver and deployed in 2007 with the Eighty-Second Airborne in Afghanistan, where he spent fifteen months mostly in Ghazni province. Despite returning with a trophy cabinet of accolades, including a Combat Infantry Badge, two Army Commendation Medals, and three Army Achievement Medals, this didn’t help him in his application to join the NYPD, which does not have moral waivers like the military. “I just want to take my experience in the military and put it forth in New York City . . . I want to continue to do public service. I grew up in New York City, so that’s just where I want to give back,” he told the New York Times.102 Luckily for Hernandez, this ridiculous contradiction between military and police regulation led to a public backlash and the then-Governor of New York, David A. Paterson, granting him a pardon for his felony. “Gov. Paterson did the right thing by pardoning Spec. Osvaldo Hernandez from a felony conviction that barred him from achieving the dream of becoming a cop,” said the New York Daily News at the time.103 Another case was that of Nasser Hempel, who signed up for the army in October 2006 after spending eleven years in a succession of maximum security prisons in Texas for a robbery he committed in 1991.104 He was involved in two riots and twelve fist-fights in his first month in prison. Hearing about 9/11 from behind bars changed him and led him to want to sign up to defend his country. “I remember how helpless I felt being stuck behind millions of dollars of concrete and steel while America was under attack,” he said. “For a guy who built his reputation on fear and violence in prison, that feeling I had that day was something I’ve never experienced. That’s the day I realized the world was bigger than me.”105 Soon after he was an Army Reserve corporal serving in Baghdad, having received a moral waiver.
One Hundred Hadithas
During the War on Terror, however, not all felons managed to put their indiscretions behind them as the media and military liked to suggest. A raft of research has highlighted the detrimental effect allowing ex-cons to serve in the military has had on the institution itself and on the civilian community being policed by them. Aside from atrocities (like those in Yusufiyah) that were arguably a consequence of recruiting more ex-cons, research has shown that these recruitment practices engender a lack of stability and cohesion within the ranks. A report from the Center for Naval Analyses pointed to higher attrition rates for those with waivers, who were “quite a bit more likely” than those without to get a misconduct charge and be separated from service within their first two years.106 It reported that “recruits with felony waivers have the highest chance of a misconduct separation.”107 A GAO report that studied attrition rates from 1990 to 1993 had already supported this conclusion, finding that recruits granted moral waivers are more likely to be discharged from the air force because of misconduct.108 The consensus went even further. “Unsuitability is by far the most common reason for service member attrition,” added a 2007 Palm Center report.109 “Nearly all research on the relationship between offense history and unsuitability attrition points to the unsurprising conclusion that recruits with criminal backgrounds are more likely to be discharged prematurely than those without such backgrounds.”
The Pentagon knew it couldn’t slow down, but that didn’t stop concerns from being expressed within the military community itself. There was a glaring problem with putting a gun in the hands of a convicted criminal and sending them off to a war where they would be expected to kill. John D. Hutson, dean and president of the Franklin Pierce Law Center in New Hampshire and former judge advocate general of the navy, cautioned: “If you are recruiting somebody who has demonstrated some sort of antisocial behavior and then you are a putting a gun in their hands, you have to be awfully careful about what you are doing. You are not putting a hammer in their hands, or asking them to sell used cars. You are potentially asking them to kill people.”110 Christine Wormuth, a senior fellow at the Center for Strategic and International Studies, acknowledged that criminal records are “absolutely an important indicator,” before adding the caveat that “it won’t mean 100 more Hadithas or cases of soldier abuse,” referring to another massacre of civilians in Iraq. “The numbers seem pretty clear to me that we are lowering standards and it’s difficult for me to see how that wouldn’t have a negative impact on the quality of the force.”111
Wormuth may have been right that linking atrocities in Afghanistan and Iraq to moral waivers is impossible to do with any certainty, but the anecdotal evidence indicates that the negative impact was shocking. On New Year’s Eve 2006, Lance Corporal Delano Holmes, a twenty-two-year-old marine who had been in Iraq for only three months, was on sentry duty in Fallujah, then the country’s most dangerous city and a focal point for opposition to the US occupation. His partner on watch that night was army Private Munther Jasem Muhammed Hassin, a soldier from an Iraqi
army unit that was helping the US in their attempt to stabilize the city. A few hours into their shift, Private Hassin decided to light a cigarette, a popular pastime for most Iraqis. Lance Corporal Holmes objected, saying the lit end would alert snipers to their whereabouts, and told Hassin to put it out immediately. When his partner just laughed it off Holmes went ballistic, repeatedly stabbing Hassin with a thirteen-inch bayonet. According to the autopsy report, Hassin’s body had seventeen stab wounds, twenty-six slashes and a face injury that had just about severed his nose.112 A year later, in December 2007, a military jury at Camp Pendleton, California, found Holmes guilty of negligent homicide and of making a false statement. He was sentenced to only ten months in jail, effectively time served—in other words, he was a free man. At the court-martial, the prosecutors said Holmes had fired Hassin’s AK-47 afterward to make the cold-blooded murder look like self-defense, a common military ruse. Newspaper reports of the trial said that Holmes’s “eyes filled with tears so large that they could be seen falling on the lectern from across the room.”113 He told the jury he saw himself as a warrior and a Christian. “God gave me more than I could handle,” he informed them. It would have been more accurate had he replaced “God” with “the US military.” The military, however, would show further clemency two years later when an appeals court overturned the conviction. It was the last stage in a long line of betrayals by the US military which failed its Iraqi partner Hassin and cost him his life. For a start, Holmes should never have been in Iraq: he had a checkered mental and legal history that should have alerted his recruiters and superiors. At high school he had threatened to commit suicide and had to be hospitalized and was later accused of assault, trespassing, and disorderly conduct. As close as a few months before deployment he was linked to drug use twice. But defense attorneys said Holmes had been given a cocktail of drugs by military medical staff including Ambien, a sleep medication. According to the Macon Telegraph, a local newspaper that carried out extensive investigations, “military officials didn’t publicly blame the war in Iraq, but some privately acknowledged it is why they accept individuals who previously would have been rejected.” When asked how someone like Holmes could have been deployed to Iraq, Marine Captain Brett Miner, a prosecutor at the court-martial, said simply, “We’re kind of short on bodies.”
Fight Back
Concerned veterans’ groups picked up on the waiver system and urged the military to offer different incentives to recruits to end the necessity for the practice—such as an updated version of the GI Bill, which had provided education training to World War Two veterans, or better health care for reservists. “These are safer strategies for attracting a solid core of defenders for our country,” said Perry Jefferies, the veterans’ outreach director for Iraq and Afghanistan Veterans of America. “The phrase ‘moral waivers’ euphemizes the real problem,” he added, “which is that some of these new soldiers are dangerous criminals. It is hard to capture the true effect of a violent criminal mixed into a unit with no warning and then put under tremendous stress.”114 Worried veterans were gaining support within Congress, but as usual it was left to one courageous lawmaker to blaze a trail. On this issue it was Representative Henry A. Waxman, who in his position as chairman of the House Oversight and Government Reform Committee requested details from the Pentagon on the number of service members with felony convictions, information previously withheld from the public. The data showed that army waivers for felony convictions had more than doubled in a year, from 249 waivers in 2006 to 511 in 2007, while the marines’ waivers increased from 208 to 350 in the same period.115 In a letter to David Chu, the Under Secretary of Defense for Personnel and Readiness, Waxman wrote: “The data you provided the Committee shows that there was a rapid rise in 2007 in the number of waivers the Army and Marine Corps granted to recruits convicted of serious felonies, such as aggravated assault and burglary. Some recruits were even granted waivers for felony convictions involving sexual assault and terrorist threats.” Two involved planned domestic bomb attacks.116 These convictions also included eighty-seven waivers for those convicted of assault and maiming, sometimes with a dangerous weapon. The marines also gave a number of waivers to those convicted of rape, sexual assault, incest, and other sex crimes.117 Another lawmaker with his finger on the pulse was Representative Marty Meehan, who along with Representative Waxman was trying to get more information from the Pentagon. “The data is crystal clear,” he said. “Our armed forces are under incredible strain and the only way that they can fill their recruiting quotas is by lowering their standards. By lowering standards, we are endangering the rest of our armed forces and sending the wrong message to potential recruits across the country.”118
This unraveling of the US military’s moral fiber was a large factor in the rise in criminal acts within the military: during the War on Terror, for example, one in three female soldiers reported being victims of some form of sexual assault while in service, dwarfing the one in six women in the civilian world (a development to be explored in greater detail later in the chapter). The military was on the back foot trying to explain this one away. Army Lieutenant Colonel Jonathan Withington, a Pentagon spokesman, retaliated by saying that waivers “are used judiciously and granted only after a thorough review,” adding, “The Department strives to maintain high standards ensuring that military recruits surpass the overall qualifications of the contemporary American youth population.”119 Others spun it as a civil rights issue. “The thing is, you’ve got to give people an opportunity to serve,” said Lieutenant General James D. Thurman, the army’s operations chief. “We are growing the Army fast, there are some waivers . . . it hasn’t alarmed us yet.”120 For some recruiters and commanders it seems soldiers with criminal records were also viewed kindly because as proven “risk-takers” they were more likely to succeed in combat. “Gang members, ex-cons, extremists, they are all more ‘war-like’ than your average soldier, there’s no doubt that’s attractive to the military, it’s definitely a factor,” Hunter Glass told me. Douglas Smith of Army Recruiting Command also put forward the thesis that because there “are more and more young people getting caught up in the criminal justice system than in the past,” the US military has had to become more lenient to compensate. This explanation should not be dismissed. The growing numbers of Americans put behind bars was a scandal in itself. In 2008, it was found that one in one hundred adult Americans was actually behind bars, as the prison population ballooned to 1.6 million, the highest in the country’s history. It was particularly acute among those segments of the population which have traditionally proven the trustiest military fodder. One in every thirty-six Hispanics was behind bars, while one in nine black men between twenty and thirty-four was also locked up.121 To the military brass, disenfranchising vast swathes of individuals from ethnic minorities didn’t make any sense; now, the government wouldn’t just lock you up, it would send you to war afterward. It was a straight path, made even smoother by the fact that a felony conviction in itself makes finding work very hard—a “death sentence” according to DC Congressional Delegate Eleanor Holmes Norton.122 A newly open military became the best option for a generation of disenfranchised and desperate Americans—they could even sign up while still in prison. The situation was so farcical that by 2007 military recruiters went to the biannual jobs fair at Alexandria City Jail to try to sign up inmates close to release. “They offer a lot of opportunities for advancement, educational opportunities, vocational training, and so it’s definitely a great opportunity for anyone interested,” said a prison official.123
Criminal Denials
In 2007 there was a revealing exchange at a House Armed Services Committee hearing on army recruiting and retention. John McHugh (R-NY) was questioning the witness, Michael Dominguez, Deputy Under Secretary for Personnel and Readiness from the Department of Defense. “Just to kind of state it in a different way and put it on the record again, I would like to ask you gentlemen to state how you feel about the quality of the men an
d women overall that you are recruiting into the military today, and make a comment, if you will, about felons in terms of waivers if you have such a thing,” asked McHugh. “I mean, generally when we talked about waivers, there is the medical waiver, there is the moral waiver, which by and large has to do with minor crimes, generally as a youth, whether it is an alcohol situation or some kind of truancy, vandalism, something like that. But are we admitting hardcore felons into the United States Army today? Did I miss something?”124 There was a pause. Then Dominguez replied (erroneously): “We exclude members of hate groups and gangs and those kinds of things. We have very well established procedures to exclude those. We don’t recruit murderers and rapists and that kind of violent criminal. What amounts to a felony in the United States of America varies from state to state.” But the numbers speak for themselves. In 2005—when it missed recruitment numbers by the largest margin since 1979—the army took in 21,880 new soldiers, or 17 percent of recruits, on a waiver.125 That’s more than an entire infantry division. The situation had become so bad by 2007 that nearly one in five recruits entered the army courtesy of a waiver for a felony or misdemeanor, representing a 42 percent increase in the use of waivers since 2000. This was not normal. “They’ve been doing it forever, but the numbers were small,” said University of Maryland military sociologist David Segal. “It’s only with the current conflict in the past couple of years that the numbers have gotten so large.”126 Back in the hearing, General Bostick then took over in a support role, using the method of exculpation outlined earlier: appealing to the noble criminal. “Corporal Vaccaro, killed in Afghanistan, 10th Mountain Division—he smoked marijuana 20 to 30 times; he saved many, many soldiers and earned a Silver Star,” he said. “Those are examples of the kind of soldiers that have been given a second chance, have demonstrated before that second chance opportunity that they had overcome any misgivings they had earlier in their life. So I feel very, very confident of it.” He didn’t mention Steven D. Green.