Wednesday, June 11, 2014


I am not a big fan of the death penalty. In general, I feel that where society has the wherewithal to incarcerate someone for the balance of his natural life, it is more humane to let nature deliver the just desserts for the commission of a capital crime.

My opposition is not founded on moral grounds, however. I do not believe that the death penalty for a capital offense is at odds with the Natural Law or merits condemnation by the Creator.

The felonious taking of a human life is the ultimate usurpation of organized society. Governments are created among humans to protect and enhance the existence of our species on this planet.

Whoever takes it upon himself to kill his fellow man sets himself above and against the entire human race. No civilization can tolerate such conduct and survive.

But if the death penalty is justified as society’s response to heinous crime, then it ought to be carried out in an orderly, predictable fashion.

Nothing more denigrates societal response to murder than a criminal justice system which renders a nominal death sentence and then simply neglects to do what the law requires.

On November 5, 2009, Nidal Hassan murdered 13 people at Fort Hood in Texas.

It took three and a half years for the United States Army to bring him to trial. At his trial, Hassan admitted the crimes. He was sentenced to death. The United States Military has not executed anyone since 1964. The Code of Military Justice requires that a sentence of death be automatically appealed.

It is predicted that Hassan’s appeals will take a decade.

There’s more. Apparently some arcane military regulation requires that military personnel, upon separation, to return all gear issued to them. Apparently until Hassan is cleared by CIF (the Central Issue Facility) he cannot be executed.

There’s little hope that all of his gear will be recovered. At least one item has been donated to a mosque for use as a prayer rug. Rules, of course, must be obeyed. All rules. No matter how absurd. Especially in the army.

Hassan could, of course fill out a form certifying that his gear has been lost or destroyed. But the form is in English, and Hassan claims that his Islaamic faith forbids him to write in English.

You can see what an impasse that has created. I’m sure that the odds on Hassan living another twenty years are better that California Chrome at the Belmont.

The debacle of the the Army’s handling of the Hassan murders is not the only example of U.S. military paralysis when it comes to the discipline of Muslim servicemen.

A Marine by the name of Wassef Ali Hassoun disappeared from Camp Fallujah in Iraq ten years ago. He was found and charged with desertion and theft after a five month investigation.

Brought to the United States for trial, he went AWOL from Camp Lejune, and now nobody knows where he is. Least of all the United States Marine Corps.

In the wake of the Jihadist attacks against the United States on September 11, 2001, President George Bush took great pains to prevent a popular backlash against Muslims in America. A mere thirty days after the 9-11 attacks, the President hosted an Iftar dinner at the White House, the first such event ever held there. He continued the practice for the next six years.

Barak Obama, schooled in Islaam as a child, has continued the practice.

Bush was determined to show that Muslims are welcomed as members of the U.S. armed forces. It is clear that the military, oath bound to obey their Commander in Chief, have concluded that Muslims in uniform are not just welcomed; they are conclusively presumed to be loyal American citizens, no matter what they do. It’s pathetic.



  1. Your comment about the morality of the death penalty runs afoul of what the Magisterium of your Church teaches. From the Cathecism of the Catholic Church:

    2267 Assuming that the guilty party's identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.
    If, however, non-lethal means are sufficient to defend and protect people's safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity to the dignity of the human person.
    Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm - without definitely taking away from him the possibility of redeeming himself - the cases in which the execution of the offender is an absolute necessity "are very rare, if not practically nonexistent."68

    1. I believe that my position is fully consistent with Church teachings, which leaves the matter as a prudential decision by the civil authorities. I do not think the Church endorses interminable delay as an alternative to capital punishment.

    2. Ok, where is your cite to authority then? I gave you the Catholic Catechism teaching on it. How can you reconcile your reply with "very rare, if practically nonexistent."? As I tell my students: "Ipse dixit" is not authority. If what you "believe" is inconsistent with Catholic teaching then it isn't Catholic teaching at all, is it?

    3. Here is some more Catholic authority for you to ponder, it comes from the United States Conference of Catholic Bishops. Two points stand out: 1) Catholics are called to be unconditionally pro-life; 2) The death penalty is justifiable when it is " the only available means to protect society from a grave threat to human life. However, this right should not be exercised when other ways are available to punish criminals and to protect society that are more respectful of human life." Clearly the Church tolerates interminable sentences over death. The death penalty is only justified if there is no means to restrain the perpetrator from committing harm to others. In other words the death penalty is only justified when it MUST be used in order as a defensive measure in the protection of other life. The ability to confine such people obviates the need for the death penalty. There isn't another logical way to interpret this. If you disagree, a clear site to authoritative Catholic teaching is required.

    4. The difficulty with this argument is the word MUST. What I said, and still believe, is that the decision upon the issue of necessity is one which the church expects to be made by the responsible civil authorities. In wealthy nations, with sophisticated penal systems, it may well be possible to quarantine hundreds of thousands, even millions, of murderers. In many third world countries, there would simply not be the facilities to contain large numbers of persons guilty of capital offenses. Thus, my comment that the decision about the death penalty is ultimately a prudential one, which the church expects will be made by the civil authorities.

    5. My authority: "Today however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent."
      —John Paul II, The Gospel of Life (Evangelium Vitae), 1995
      I submit that "steady improvement in the organization of the penal system" is hardly a black and white dividing line between right and wrong. Which is why I insist that, despite urging a more humane legal system among developed countries, the Pope has not declared ex cathedra that carrying out a legal death penalty is sinful.

      The thirteenth amendment to the federal constitution abolishes slavery - involuntary servitude - except in cases of punishment for crime. In the United States there has a been movement away from imprisonment at hard labor. Federal Judges, unfortunately, have undertaken to manage some of our prison systems, and have mandated certain conditions which are percieved as being critical to human dignity. I should think it an unhappy circumstance if incarceration for life were to viewed by some miscreants as a reward for killing somebody.

    6. [This reply is in two parts because the site won't accept more than 4096 characters.] Your argument has several flaws, and the only cite to authority you give is the very one given by me (John Paul II’s statement simply tracks the Catholic Catechism). You never address the primary criticism I made in the beginning.
      1. I agree that the death penalty decision is made by the sovereign. But it is more than a prudential decision, it is a moral one (presuming that there is a distinction). And yes, it may be that in rare situations, the only way to protect the public against a violent criminal who threatens the life of community members may be to execute. I maintain (and John Paul II’s encyclical and the Catholic Catechism support this) that this sliver of justification is more theoretical than it is real. How else are we to interpret “practically non-existent”? Applied to the United States then, the death penalty can be supported under no circumstances. Every state in the union as well as the military has the capability of confining those adjudged of crime for the remainder of the person’s natural life.
      2. I agree that the Church has never made a pronouncement about the death penalty ex cathedra. That doesn’t tell us anything, however. There are no pronouncements on moral theology that have been made from the Chair. All that does is to leave the door open for the teaching magisterium of the Church to reconsider points of moral theology upon further development and understanding of human nature, science and the like. Until then, Catholics are bound to respect and follow the teaching authority of the Church – I presume that I don’t need to cite you to authority for that proposition. And while I don’t expect either of us to perform an injection, I would suggest that this notion would inform a Catholic in the theater of public opinion and advocacy.

    7. 3. The crux of my criticism stems, initially, from this line in your blog: “ I do not believe that the death penalty for a capital offense is at odds with the Natural Law or merits condemnation by the Creator.” If our Creator has condemned the death penalty, far be it from me suggest that He is in error. But even the Old Testament teaches that the death penalty is only justifiably imposed by God. And in any event, as noted above, its justification as a matter of moral theology hangs upon the barest of theoretical threads. What disturbs me more are two suggestions found both in the blog and your responses to me. First, in your blog you state “Whoever takes it upon himself to kill his fellow man sets himself above and against the entire human race. No civilization can tolerate such conduct and survive.” Standing alone, the proposition is unassailable. It means that we need laws against murder and like. However, in context this statement suggests that you support the notion that the death penalty is justified because the act of the criminal removes the criminal’s right to live. This is far removed from the Church’s sole recognition for death penalty justification: imminent danger to society due to the sovereign’s inability to restrain the criminal. It suggests that the death penalty is a moral, justifiable act of societal judgment upon the person. You won’t find that justification annunciated in John Paul II’s encyclical, or in the Catholic Catechism. Second, in your last response you wrote: “I should think it an unhappy circumstance if incarceration for life were to viewed by some miscreants as a reward for killing somebody.” This statement actually suggests that the death penalty is especially preferable in the United States (for some categories of criminals denoted as “miscreants”) to a life of prison “luxury.” I sincerely doubt that even miscreants view life without parole under any circumstances as a reward, but regardless: that “unfortunate” result is just a restatement of the proposition that some category of criminals don’t “deserve” life, they “deserve” death. That might be true, but if it is true, it is God’s decision to make as the Judge of Life and Death, not humans. And while that notion might curry favor with some of your more conservative blog constituents, I submit that it runs afoul of an informed Catholic conscience. “Cafeteria Catholicism” has many forms.

    8. One of the most rewarding aspects of blog writing is the fact that it sometimes induces serious communication between a father and his very able and articulate son. I shall take the matter up with our family Chaplain, Charlie Irvin, to see if I am properly labelled a cafeteria Catholic.

  2. I'm kind of surprised to read that a lawyer is complaining about the legal system, and the ease with which it is manipulated. This statement, which I read as a criticism of the UCMJ, is unfairly directed at just the military. "Rules, of course, must be obeyed. All rules. No matter how absurd. Especially in the army."

    The following is taken from the Michigan Supreme Court website.

    "(1) All pleadings and other documents prepared for filing in the courts of this
    state must comply with MCR 8.119(C) and be filed on good quality 8½ by 11
    inch paper or transmitted through an approved electronic means or created
    electronically by the court and maintained in a digital image. The print must be
    no smaller than 10 characters per inch (nonproportional) or 12-point
    (proportional), except with regard to forms approved by the State Court
    Administrative Office."

    The originals of applications and answers will be two-hole punched at the top for our permanent files. Copies may be bound, stapled, spiral bound, or otherwise securely fastened. The use of clear plastic covers should be avoided."

    "(4) A clerk of the court may reject nonconforming documents as prescribed by
    MCR 8.119."

    Let me see, Rules, of course, must be obeyed. All rules. No matter how absurd. Especially in the Michigan Supreme Court . Heaven forbid that former Maj Hasan submitted something to the MSC in an 8 character per inch format.

    By the way, if your statement about obtaining a signed document from the CIF ( USAF calls it equipment issue ) were actually adhered to I might still be in Thailand. When I went to clear base in 1970 the MSgt running the place had drowned the previous night after falling off of a party boat on the Mekong River. No problem. I signed the damn form myself! There are rules and there are rules.

    1. Colonel Ron is right on with his critique of court rules as well as military rules. The minutia of court rules was always a pet peeve of mine. I even invented a category of civil servant I dubbed "pink slippers" because they refused to accept a filing that wasn't on pink paper.

  3. Some questions for the Brennans'. I understand the importance of faith in your lives. Clearly that faith has served as a model for the highly accomplished, and close knit, family unit that you have built. I know very few people who are as highly respected as the Judge. Your faith has served you well. Here is my problem. How can you be a fair jurist when you are put into a position to rule on something that you believe is immoral? If you believe the death penalty is immoral how can you sentence a person to death? If you are unwilling to impose the death penalty how can you serve as a judge? The same goes for many acts that I suspect your religion deems immoral, but our laws say are legal: homosexuality, adultery, abortion, etc. Could you, as a juror, vote to have someone put to death if you believe that the death penalty is immoral?

    I believe that people put too many asterisks on things that they purport to be "gods word". Thou shalt not kill, except...Abortion is murder, except...I don't believe in the use of military force, except...
    Personally, I have no problems with the excepts simply because I view these issues not as "gods word", but rather as a jumbled attempt to keep civilization from reverting back to the survival of the fittest.

  4. Christ said, "render to Caesar the things that are Caesar's, and to God the things that are God's." John F. Kennedy told the Baptist preachers in Texas that he would not be dictated to by the Pope in the discharge of the office of President. I think it is pretty clear that if ones duty as a public official requires him to do something he believes to be wrong, he should resign the public office. On the other hand, we are not required to engage in secondary boycott of activities we believe to be wrong. A Catholic cab driver can deliver a pregnant woman to an abortion clinic, and a Catholic judge can perform a civil marriage ceremony between Catholics.

  5. Judge, your words :"It is clear that the military, oath bound to obey their Commander in Chief, ..... " are inaccurate.

    We take no such oath to the President (Constitutionally designated CINC). Here is the commissioning oath we take.

    "I, (state your name), having been appointed a (rank) in the United States (branch of service), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the office upon which I am about to enter. So help me God.”

    The Constitution does designate the President as the CINC, but our allegiance is to the Constitution. If the President were to give the military an order to attack Sand Point, Idaho because all of the residents voted Republican I feel quite certain that the military rank and file would not obey that unconstitutional order.

    If you compare our commissioning oath with the following you will see that there is a huge difference.

    The Fuehrer Oath (effective August 2, 1934)

    "I swear by almighty God this sacred oath:
    I will render unconditional obedience
    to the Fuehrer of the German Reich and people, Adolf Hitler,
    Supreme Commander of the Wehrmacht,
    and, as a brave soldier,
    I will be ready at any time
    to stake my life for this oath."

    Were a German soldier ordered by Hitler to kill innocent people, Jews for example, the words of the oath would require him to do so.

    I never did, and never would take, or obey, an oath that requires me to render unconditional obedience to any individual, or group of individuals.

  6. As usual, the Colonel is correct. The military oath does not expressly require obedience to the President. It does require supporting and defending the constitution which defines the President as the Commander in Chief. What troubles me is the apparent eagerness of the military to support the political agenda of the administration.

  7. The military don't start wars. Politicians start wars.
    William Westmoreland

    War is not merely a political act but a real political instrument, a continuation of political intercourse, a carrying out of the same by other means.
    Carl von Clausewitz

    The military has no power to start a war. For those who say that the military "pressured" politicians to go to war contrary to their beliefs, I strongly disagree. Any CINC that would use the military for political purposes is below contempt. People die in war. Exactly what power does the military have to start a war? The only way the military could start a war, contrary to the policy of the CINC, would be to go directly to the public and make their case. Public pressure then might "force" the CINC to make a political decision to use force. If the military publicly speak out about the use of force that they believe is ill conceived they are accused of supporting a political agenda. Let's say that I am the Chairman of the Joint Chiefs and the President asks me for an opinion on the use of force in a given situation. It is my duty to provide that opinion. My advice should only be made public when called to testify under oath before congress, or when the CINC "suggests" that I present the case to the public. If the CINC proceeds against my advice I have a choice. I can carry out the order, or resign. If I resign do I not have the right to state my opinion publicly without being called political? If the politicians make false statements about a military situation do I have a responsibility to go public and say they are lying?
    Can you think of an example where a military leader went public when he strongly disagreed with a policy.....before he retired....or wasn't fired when went public before retiring?

    Here is a good article on the subject of civilian control of the military.