The Court Martial of Andrew Cuomo

 I will presume the reader is aware of the scandal involving New York Governor Andrew Cuomo? Perhaps, given the one-sided reporting in the media these days that is too much to ask. In essence there is an ever-growing demand for accountability toward Cuomo over his mandate requiring retirement homes being forced to take in Covid-19 positive patients, even against the remonstrance of the staff of these homes and the concern of the family members of residents.

Some fifteen thousand people, (this number is suspected of being low as many cases were transferred to hospitals and died there, thus not counted among those dying in the homes despite that being where they contracted the illness), died in these homes of Covid-19, with the lowest assessment citing at least one thousand of those deaths due to infection transmitted from Covid-19 positives being forced into the homes.

Cuomo, has never admitted it was a wrong decision. In fact, he has said, given the same circumstances he would do it again. The closest he has come to acknowledging his role is to profess that he was merely following the CDC and White House, (by which he means Trump) directives. While even a cursory inspection of the Federal advice shows that no such order was given, that has been his claim.

I have tried to explain to a number of people why, even if a Federal pronouncement agreed with his contention, he was obligated to not follow such an asinine policy. Unfortunately, I don't think I've made my point all that well. Or, knowing that he wasn't following an actual order those who heard me took it with a grain of salt, as they say. A valid point, if that is the reaction I've received, yet, I'd like to make it once more because I've heard his governance compared to Katrina. "It's his Katrina", some media talking head said. Not exactly. For one, whether the Federal response to that hurricane was not up to standards is debatable. On another point, the Katrina response is criticized, not the hurricane. In Cuomo's actions he more the causal factor, like the hurricane, and less the rescue effort, like the response.

No, what Cuomo did was to mandate the endangerment of unarmed citizens. Then he claimed he was just following orders. He is more Lt. William Calley than he is a leader directing FEMA.

Think about the 1968 My Lai massacre.

In March 1968, a U.S. infantry platoon under the command of 2nd Lt. William “Rusty” Calley conducted a raid of a hamlet called My Lai in Quang Ngai Province of South Vietnam. After taking the hamlet, Calley ordered his men to round up the remaining civilians, herd them into a ditch, and gun them down. Somewhere between 350 and 500 civilians were killed on Calley’s instruction.

Calley was court-martialed for his actions and charged with 22 counts of murder. At his trial, he testified that his company commander, Capt. Ernest Medina, had ordered him to kill “every living thing” in My Lai, telling him there were no civilians there, only Viet Cong. When Calley radioed back to Medina that the platoon had rounded up a large number of unarmed civilians, he claimed Medina told him to “waste them.” Essentially, Calley defended gunning down hundreds of civilians by saying he was just following orders from his superiors (It should be noted that Medina denied giving these orders).

But Calley was unable to hide behind this defense. Every military officer swears an oath upon commissioning. That oath is not to obey all orders. It is to “preserve, protect, and defend the Constitution of the United States against all enemies, foreign and domestic.” It is simply wrong to say Calley had an obligation to follow any order no matter what. His first obligation was to obey the law, and the law prohibits the deliberate killing of unarmed civilians.

Of course, a civilian does not meet justice in a military court, so, court martial will not be Cuomo's fate. But, all of us are expected to know that we must never obey an order which causes harm to our fellow unarmed citizens. 

Cuomo must face justice, he had to know he was  putting our most vulnerable in mortal danger. 

It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.

 

Calley was convicted under this rule. The court found that “whether Calley was the most ignorant person in the United States Army in Vietnam or the most intelligent,” he would have to have known that it was illegal to slaughter civilians who were “demonstrably unable to defend themselves” and that the order was “palpably illegal.” The court noted that, “For 100 years, it has been a settled rule of American law that even in war the summary killing of an enemy who has submitted … is murder.”

So the order Calley tried to use as a shield against criminal liability ­– the order to slaughter civilians – was so clearly illegal that any reasonable person would have known it was illegal. ...