Tuesday, December 28, 2010
Wednesday, December 22, 2010
Tuesday, December 21, 2010
Monday, December 20, 2010
Steven Green, an Iraq War veteran serving five life terms for raping and killing a 14-year-old Iraqi girl and killing her parents and sister says he didn’t think of Iraqi civilians as humans. The Army Times reports that Green apologized for his actions in a telephone interview. Green claimed that "he didn’t think of Iraqi civilians as humans after being exposed to extreme war zone violence."
The Navy Times reports that Command Master Chief Gerard Nicholson of Special Projects Patrol Squadron 1 was fired last week as the result of an ongoing investigation into allegations of an improper command climate. He was relieved because it was determined that he “could not continue to serve in the unique position of trust and confidence that a command master chief enjoys; therefore, Master Chief Nicholson could not be effective as VPU-1’s role model for leadership and integrity.”
The decision to proceed with the court-martial is currently the subject of a federal appeal. A copy of the brief filed in that appeal is available at Caaflog.
Prof Corn's thoughtful piece is a must-read for anyone interested in the law of armed conflict.
Saturday, December 18, 2010
Friday, December 17, 2010
Thursday, December 16, 2010
On further analysis, I reasoned that the members had given the harshest, longest-impact option in the dismissal because that will preclude Lakin from seeing a dime of military retirement. It also dawned on me that the members might have fashioned the sentence to confinement by showing a measure of compassion for the LTC's stay-at-home wife and 3 young children. After all, the convening authority can give the forfeitures of pay and allowances to the family for up to six months.
As the letters explain, if such legislation is enacted, it puts a significant and unnecessary roadblock in the way of bringing justice to the victims of 9/11, among many others.
Wednesday, December 15, 2010
I did find it interesting that the end of the DoD news release references 8 categories of sexual assault and harassment under the UCMJ, including for indecent assault. Sexual harassment, per se, appears nowhere in the UCMJ, and indecent assault hasn't been listed as an offense in the UCMJ for several years. Article 120, where most of the military's sex offenses are now grouped, contains 14 crimes. I wonder what the 8 categories of offenses are and who provided this information.
Tuesday, December 14, 2010
Our observer should be back at Ft. Meade tomorrow to provide additional commentary.
LTC Lakin didn't have a pretrial agreement, so he pled "naked." He also pled not guilty to Charge I for missing movement in violation of Article 87, UCMJ.
The court members (aka panel, better known as the jury in the civilian world) have been seated. During voir dire, the defense successfully challenged the lone O-5 for cause, and the defense counsel used its sole peremptory challenge to excuse one of the O-6s.
The trial counsel will start proving up the missing movement specification when court resumes around 3 this afternoon.
Stay tuned for more...
Monday, December 13, 2010
Post-traumatic stress cited in court-martial
Call for special court for terrorist suspects--sound familiar?
Note to self--not a good idea to steal a weapon and credit card from the military chief of staff
Use of military courts for West Bank Palestinian minors criticized by Brits.
Pardoned for mutiny, but still held.
Military death sentences draw fire.
Focusing on human rights and following rules for military arrests in wake of health worker crackdown.
Alleged leaker hypnotized by interrogator?
Military justice system on the brink of extinction?
Sunday, December 12, 2010
Friday, December 10, 2010
Thursday, December 9, 2010
ACCA’s Panel 4, which consisted of Judges Tozzi, Sims, and Gallagher, will decide the case. Veteran military attorney Jack Zimmermann, now a civilian defense attorney, argued the case for LT Behenna, while Captain Madeline Yanford argued on behalf of the government. Not surprisingly, both were polished and ready for the panel’s questions.
Zimmermann began his argument by asking whether Ali Mansur, the deceased, was standing or sitting when LT Behenna fired the shots, calling this critical information because it goes to the issue of escalation of force as it relates to self-defense. Yanford countered by stating that it didn’t matter what the victim’s position was—Behenna had no justification for killing him.
All three judges were particularly “hot” during Zimmermann’s argument. Tozzi, the senior judge on the panel, asked the first question. It concerned when the defense believed the trial counsel’s duty to disclose government expert Dr. MacDonell’s theory arose. The response was on Wednesday afternoon when the initial demonstration was done, or, at the latest, on Thursday, after the accused testified consistently with MacDonell’s theory. This prompted additional questions from Judges Sims and Gallagher, Sims verifying that the government’s expert consultant had said on Wednesday that his theory of Mansur rising from the rock that fit the evidence was an unlikely scenario. Gallagher clarified that none of the experts were able to definitively state where Mansur’s right arm was at the time of the shooting, but it was not at his side.
Zimmermann next addressed the allegations of errors by the military judge, after first stating that Colonel Dixon was a good judge. Zimmermann began with the argument that Dixon’s finding that MacDonell didn’t tell the trial counsel “that’s what I told you” after Behenna’s testimony was a clearly erroneous ruling. Given the unique Article 66, UCMJ, factfinding powers ACCA has, it could overturn the judge’s factual determination of the matter.
Next, Judge Tozzi turned to the issue of prejudice, presuming for the moment that there was a Brady discovery violation in that the trial counsel should have turned over MacDonell’s conclusions earlier.
The issue of having a right to self-defense was a key part of both arguments, with the defense arguing that the judge had muddled up the oral (members asked for written instruction, but request was denied) instruction regarding requirements of being able to claim self-defense all along or reclaim it after the accused’s committing an earlier assault, while the government countered that, under an objective standard, there was no reasonable fear that Behenna, in full body armor with 2 weapons, could be in danger at the hands of Mansur, who had been stripped naked (except for flip-flops) and had no weapon other than, arguably, a rock.
One judge was visibly skeptical of the defense argument that Behenna feared for his life before he shot Mansur, and there was discussion as to what role, if any, Behenna’s subjective belief that Mansur was a terrorist who had killed 2 of Behenna’s fellow soldiers and Behenna’s diagnosis with a precursor to post-traumatic stress disorder (making him hypervigilant and prone to an exaggerated startle reflex).
Zimmermann also argued that the military judge erred in failing to sua sponte instruct on the lesser-included offense of involuntary manslaughter because it the evidence clearly raised this possibility, to which Gallagher inquired why none of the counsel requested such an instruction at trial if it was so clear. The defense also took issue with various definitions the military judge gave, as well as whether certain matters should have been decided by the members, rather than the military judge.
The panel allowed Zimmermann to complete his explanation as to the harm done by the alleged discovery violations, although his time had expired, a relatively routine accommodation. MacDonell’s potential testimony was either exculpatory in corroborating Behenna’s testimony or it was mitigating in ensuring that the members did not view the shooting as an execution, the defense argued.
The panel was noticeably less active during Yanford’s argument. In fact, Judge Gallagher did not ask a single question until Yanford was wrapping up. Yanford started strong and stayed strong, beginning by contrasting the images of the 2 men—an Army Ranger in full battle-rattle with an M4 and a glock takes Mansur to a remote desert location, strips him naked, and threatens to kill him before following through on the threat by pulling the trigger twice.
The government argued there was no Brady violation, despite the judges making the case that MacDonell’s conclusions regarding the evidence were material to the defense theory because MacDonell’s testimony would be “inadmissible human lie detector” evidence. Judge Tozzi picked up on the distinction between admissibility of evidence and evidence that is discoverable (discoverable evidence covering a much broader range of facts) and the notion that Dixon didn’t fully address that in his ruling. The appellate government counsel also found no error in the military judge’s instruction on self-defense or his failure to instruct on involuntary manslaughter, and the government believed that Behenna admitted to assaulting Mansur before the shooting by violating various rules. Yanford argued that the panel could find there was no initial assault while still finding the killing unjustified because Behenna didn’t have a reasonable fear, and he set up the scenario that might have inspired any fear he experienced.
The government advocated using an “abuse of discretion” standard in deciding whether the military judge erred in denying the motions for mistrial and a new trial, while the defense asserted that the proper standard of review was de novo. Of course, it’s no surprise that it’s difficult (albeit not impossible) to find that a trial judge stepped outside his wide latitude in making a ruling even if the appellate judges themselves might not make the same rulings, and it’s much better for the defense in this case if the panel takes a whole new look at the evidence and draws its own conclusions. Zimmerman also emphasized the standard of review for the discovery violations required the government to prove the violations were harmless beyond a reasonable doubt—a tough standard if the panel finds a violation—because the defense had made a specific request for the evidence.
On rebuttal, the judges inquired whether Zimmermann (the trial defense counsel) had done all he needed to do in order to ferret out MacDonell’s assessment of the evidence. In his ruling, the military judge found that Zimmermann had adequately performed, and Zimmermann admitted the conviction would be invalid for ineffective assistance of counsel if he hadn’t done so.
In conclusion, Zimmermann argued that the trial court and ACCA each have no evidence of the trial counsel’s mindset. The motions for mistrial and new trial only contained MacDonell’s testimony, with no government evidence contradicting his assertions.
It will be interesting to see how this decision comes out.
Wednesday, December 8, 2010
Tuesday, December 7, 2010
Monday, December 6, 2010
The International Criminal Tribunal for Rwanda (ICTR) [official website] on Monday sentenced former Rwandan Armed Forces lieutenant Ildephonse Hategekimana[case materials] to life imprisonment after convicting him on charges of genocide and crimes against humanity.
Thursday, December 2, 2010
News first broke about the Stryker brigade soldiers months ago. Some of them are accused of killing unarmed civilians in Afghanistan and keeping body parts of their victims as war trophies. Stevens is not one of the soldiers accused of murder. He acknowledged following an order from Staff Sgt. Calvin Gibbs to shoot at two Afghans who posed no threat. There was no evidence presented that those Afghans were injured.
Some of the media have given the misimpression that Stevens pleaded guilty to murder. For example, CNN's headline reads, Soldier pleads guilty to some charges in Afghan killing; gets 9 months. This gives the impression that Stevens is guilty of more than his actual conviction. This reporting has spread overseas. The headline at channelnewsasia.com reads, US soldier gets nine months for killing Afghan civilians. Stevens' lawyer, Stephen H. Carpenter, Jr., wanted to set the record straight. He stressed that, "Stevens neither harmed or murdered anyone."
Apparently, the security code at the entrance to the LE desk hadn't been changed in a decade, among other issues. Given the facts, it's curious why MSgt Mashburn, rather than the flight sergeant, the ops officer, or the squadron commander, was on the hot seat.
When I first heard of this case, I wondered why the two subjects weren't in pretrial confinement. Given the charges, this now appears to make a bit more sense. We welcome additional information from anyone with more facts about this case. Just send them to email@example.com.
Wednesday, December 1, 2010
Writing for a unanimous court, Judge Ryan first set out that the reports were testimonial evidence which triggers Confrontation Clause rights, although the machine-generated data was not testimonial. Judge Ryan's words echoed those of Justice Scalia in Crawford v. Washington, making clear that the issue is not one of reliability but of the right to confront one's accusers. "The right of confrontation is not satisfied by confrontation of a surrogate for the declarant." Rather, CAAF held that the declarant is one whom the accused has the right to cross-examine.
After establishing that, the Court analyzed the extent of the leeway given to experts in forming their conclusions based on the works of others, noting that experts are not permitted to bootstrap otherwise inadmissible testimonial statements into evidence. Given these limits, the Court found the part of Dr. Papa's testimony based on his own conclusions from the machine-generated data admissible, while deeming his repetition of the reports' contents inadmissible hearsay.
Finding error of a constitutional nature, the Court turned to whether the introduction of inadmissible statements was harmless beyond a reasonable doubt, in light of the entire record. On this issue, the Court punted, as the parties had not briefed that specific point, and the Air Force Court had not ruled on it.
(As a side note, a large group of us JAGs happened to be sworn into SCOTUS the day Crawford was published. While the rest of us were admiring the courthouse and identifying justices, the then-Chief Judge of the Air Force Court of Criminal Appeals remarked that it sounded like this was a big case. Indeed.)
Tuesday, November 30, 2010
From the Army Times, officials are weighing whether to try a 20-year-old Fort Carson soldier on the charge of premeditated murder in the death of an Afghan prisoner. The defense is arguing that the soldier is taking medication for schizophrenia and isn't mentally fit to stand trial.
From the Air Force Times, the special court-martial for Master Sergeant Lisa Mashburn began Monday. The prosecution lawyers told the panel that the former assistant flight sergeant was derelict in her duties in the weeks leading to the suicide death of Airman Cory McCord on Aug. 6. This case “is about deflecting responsibility,” said Guy Womack, Mashburn’s civilian defense attorney. “Officers and senior enlisted, who as a result of a tragic event, a suicide, decided someone needs to be blamed for this.”
From the Marine Corps Times, the Drug Enforcement Agency used its emergency powers Wednesday to ban Spice and other "fake pot" products that mimic the effects of marijuana. The DEA is authorized to take emergency action to avoid "an imminent public health crisis" while research continues.
By S.S. Selvanayagam
The Court of Appeal yesterday issued notice on the three-member General Court Martial GCM) and other respondents cited in the Writ Application filed by former Army Commander Sarath Fonseka challenging the first General Court Martial verdict ordering him to be cashiered from the army. The Bench comprising Justices Rohini Marasinghe and Upali Abeyratne issued notice returnable on December 17 on the submission made by retired General Fonseka’s Counsel Romesh de Silva PC. Notice was issued on Army Commander Jagath Jayasuriya, the Court Martial panel comprising Maj. Gen. H.L. Weeratunga, Maj. Gen. A.L.R. Wijetunga, Maj. Gen. D.R.A.B. Jayatilake, Solicitor General (Rear Admiral) W.J.S. Fernando and the Attorney General.
The Defence Counsel asked that five grounds submitted by General Fonseka before Court be considered – that notices had already been issued on the respondents in respect of the writ application challenging the Court Martial proceedings against him and his continuous military custody; that he was not subject to military law. Any person who is no more in the service of the army cannot be tried before the court martial. He cannot be cashiered from the army. If he is not in the army, he cannot be charged; that even if he is subjected to army law, under the law of proportionality, the sentence to be cashiered imposed by the said Court Martial cannot stand. He could be subject to some other sentence; Are the charges traitorous/disloyal words as well as neglect to obey garrison or other orders. What is the sin? Even if it is an offence, he could not be thrown out from the Rank of General; sentence has only been confirmed but the conviction has not been confirmed by the competent authority.
Presiding Judge Ms Rohini Marasinghe said the conviction is interim and it had to be confirmed by the competent authority and that it would become valid only after it is confirmed.
Romesh de Silva PC with Riad Ameen and Eraj de Silva instructed by Paul Ratnayake Associates appeared for General Fonseka. Deputy Solicitor General Sanjay Rajaratnam with Senior State Counsel Nerin Pulle appeared for the Attorney General.
Monday, November 29, 2010
Wednesday, November 24, 2010
Tuesday, November 23, 2010
Pondering the juxtaposition of these news items, I stumbled across this piece in Salon from the week before. While it's written in the context of security measures for air travel alone, I think it highlights a larger reflection that's worth noting. What about 9/11 so fundamentally changed the US's response to terrorist acts and our principles? Was it the fact that it was committed on US soil? The Murrah building bombing in my hometown of Oklahoma City didn’t cause us to doubt the ability of our civilian federal courts to prosecute McVeigh and Nichols. Was it the mass murder of fellow Americans by foreign citizens? We saw that before over Lockerbie, but those events didn't manifest themselves in a wholesale change in our form of justice or visions of right and wrong.
Are there limits to what we're willing to sacrifice in the name of an elusive sense of safety? Food for thought during this week of Thanksgiving.
CALL FOR PAPERS: The Lieber Society, an Interest Group of the American Society of International Law, has, through its Lieber Society Military Prize, annually recognized a paper that significantly enhances the understanding and implementation of the law of war. The prize is given for exceptional writing in English by an active member of the regular or reserve armed forces, regardless of nationality.
The winner will receive a certificate confirming that he or she has won the 2011 Lieber Society Military Prize, $500.00, and a one-year membership to the American Society of International Law (ASIL). The judges may also select additional persons to receive Lieber Military Prize Certificates of Merit.
Papers for the 2011 competition must be received no later than Friday, December 31, 2010.
For more information, click here.
Friday, November 19, 2010
Reporters Without Borders condemns blogger Ahmed Hassan Basiouny’s trial by court martial, which is scheduled to take place tomorrow, and calls for the immediate withdrawal of the charges against him. He is the second blogger to face a court martial in Egypt.
Basiouny is being prosecuted for creating a Facebook page in 2009 that offered advice and information to young people thinking of enlisting in the Egyptian army.
Thursday, November 18, 2010
ABC quoted a senior administration official: "[Ghilani] was convicted by a jury of a count which carries a 20-year minimum sentence... He will very likely be sentenced to something closer to life... He will never be paroled (there is no parole in the federal system)... So, we tried a guy (who the Bush Admin tortured and then held at GTMO for 4-plus years with no end game whatsoever) in a federal court before a NY jury with full transparency and international legitimacy and -- despite all of the legacy problems of the case (i.e., evidence getting thrown out because of Bush-Admin torture, etc,) we were STILL able to convict him and INCAPACITATE him for essentially the rest of his natural life, AND there was not one -- not one -- security problem associated with the trial."
This conviction will certainly increase debate on what to do with the alleged 9/11 mastermind.