In what must surely be the most shameful episode of the ongoing U.S. retreat from Afghanistan to date, top officials not only have offered abject apologies for the burning of Qurans defaced by Afghan Muslim detainees in the Parwan Detention Facility at Bagram Air Force Base, but repeatedly have promised to bring those responsible to "justice."
President Barack Obama pledged to hold "accountable those responsible;" NATO officials actually gave their word to hold "an open trial" of the "perpetrators of the crime;" while Gen. John R. Allen, NATO Commander in Afghanistan, told FOX News on February 29, 2012, that following an investigation, the soldiers would be subject to provisions of the Uniform Code of Military Justice (UCMJ). Allen's statement follows the murder of a growing number of U.S. military personnel by Afghans and days of Muslim rioting across the country that has taken dozens of Afghan lives.
Precisely which sections of the UCMJ cover subjection of American troops to charges brought under Islamic Law is not entirely clear. The UCMJ Subchapter II, Section 814, Article 14 says that "(a) Under such regulations as the Secretary concerned may prescribe, a member of the armed forces accused of an offense against civil authority may be delivered, upon request, to the civil authority for trial."
It is not unprecedented for the U.S. military to turn an American soldier over to a foreign civilian authority for trial, but such cases are dependent on the provisions of such Status of Forces or Status of Forces-like agreements as may exist between the U.S. and the government in question.
A U.S. bilateral agreement with Afghanistan does exist regarding the status of military and civilian personnel of the U.S. Department of Defense present in Afghanistan, but in accordance with the 1961 Vienna Convention on Diplomatic Relations, "U.S. personnel are immune from criminal prosecution by Afghan authorities, and are immune from civil and administrative jurisdiction except with respect to acts performed outside the course of their duties." [Emphasis added.]
The above provision of the UCMJ, then, does allow U.S. military personnel to be turned over to foreign civilian authorities for trial; and the SOFA-like agreement which the U.S. has with Afghanistan does seem to allow for a loophole by which some actions (like the Qur'an burning?) might conceivably be categorized as "outside the course of their duties."
In this light, Gen. Allen's careful parsing of his remarks to FOX's Bret Baier must ring ominously in the ears of every American soldier. Rather than stating forthrightly that no American under his command would ever be subject to the blatantly unfair provisions of shariah, which as a matter of law holds non-Muslims inferior to Muslims and the 'desecration of the Qur'an' by infidels as potentially a capital crime, Gen. Allen has allowed doubt about his position to linger in the public perception.
Coupled with the obsequious letter that President Obama sent to Afghan President Hamid Karzai, Allen's failure to stand behind his troops leaves America's courageous volunteer force in a perilous state of uncertainty about whether soldiers could one day be handed over to Afghan authorities operating under the Islamic law that U.S. advisors helped write into their constitution.
The Qur'an is believed by Muslims to be divinely revealed scripture. As such, it is a book that is supposed to be handled only by Muslims with clean hands and in a reverent manner.
This is indeed the noble Qur'an.
Kept in a secure Book.
None may touch it, except with ablution.
It is haram (unlawful) for anyone not in a state of purity to touch a Qur'an. Obviously, handling of the Qur'an by infidels, who according to shariah exist in a permanent state of impurity, is considered by Muslims to be deeply disrespectful.
The 7th century Pact of Umar, which lays out the subordinate status of conquered Christians and Jews (dhimmis), stipulates that they may not teach the Qur'an to their children. The shariah-based legal codes of Afghanistan and Pakistan both impose the death penalty for desecration of the Qur'an.
On February 28, 2012, U.S. Secretary of Defense Leon Panetta issued an official statement in which he clarified exactly where he stands on this barbaric Islamic law: "We honour and respect the religious practices of the Afghan people, without exception," he said.
What are our American troops fighting and dying in Afghanistan supposed to understand about their commanders' commitment to them and to the U.S. Constitution? How can the U.S. Commander-in-Chief, his Defense Secretary and the theater commander even think about turning American troops over to be judged by Islamic law or adapting the UCMJ to the provisions of shariah?
A real possibility exists that significant numbers of the U.S. troops -- which are all volunteer -- will not re-enlist if they have to fear being turned over to Afghan shariah judgment. Although the Department of Defense has been mandated to reduce its payroll, this does not seem the best way to do it.