Sunday, October 31, 2010

Khadr Adjudged and Agreed Sentences Announced

The Omar Khadr military commission members gave him a 40 year sentence for killing SFC Christopher Speer, pictured at left, and other crimes. However, due to a pretrial agreement between the government and Khadr, he will serve no more than 8 years in confinement, and he will likely serve 7 of those years in Canada. The Miami Herald reports that a term of the agreement prohibits Khadr from being able to enter the United States or travel by plane. We'll have additional wrap-up remarks later in the week.

Friday, October 29, 2010

Testimony Continues in Khadr Commission

Michelle's report continues:
Sgt Layne Morris

Capt E did the direct examination of the government’s first victim, Sgt Layne Morris, a medically retired former Army Special Forces member who lost sight in one eye during the firefight in Afghanistan that ended SFC Chris Speer’s life and began Omar Khadr’s road to GTMO. Morris’ stoicism and matter-of-fact presentation were powerful. He also had a sense of humor, describing his initial thought at feeling a “punch” in his eye as perhaps being from his own rifle exploding as he fired grenades into the compound. After all, he remarked, the rifle was “built by the lowest bidder.” Of course, the rifle manufacturer was not to blame in this case; it was the compound’s inhabitants.

Morris was evacuated to Germany with the severely wounded Speer, who’d suffered shrapnel wounds to his head as the result of Khadr’s grenade attack. There, Morris and his wife met Tabitha Speer, a woman of dignity and courage.

Rather than considering himself a victim, Morris was grateful to realize he was alive after believing he would die at that compound so far away from home. “It was like getting a promotion.” Given the injuries and deaths of the many who have fallen in this long-running war, “my injuries are insignificant.” Morris’ biggest heartache was the toll his deployment and resulting injuries have exacted from his family, primarily his children.

On cross-examination, Morris admitted he and Mrs. Speer had filed a multi-million dollar lawsuit against Khadr’s father for failure to control his minor child and instructing Khadr to commit violent acts, among other allegations, related to the injuries Morris and Speer suffered. The defense highlighted that the lawsuit was not filed against Khadr himself, as it was the father who was responsible for the injuries and death. Despite winning the lawsuit, the Morris and Speer families have not received any money.

SFC Chris Speer
The Crime and Investigation Network is a favorite channel in our house. I’m not sure exactly why--perhaps because of the many courtroom scenes or the “whodunit” aspect of real-life murder mysteries. Those cases, dramatic as they are, don’t elicit much emotion.

This week’s testimony was different. There are only a limited number of places to eat and one place to shop on the windward side of Guantanamo Bay. There was no escaping the military commission, even outside the courtroom. For instance, last night we NGOs watched the prosecution witnesses eat dinner literally within feet of the defense counsel while media floated in and out of GTMO’s lone sports bar. With few options at this isolated location, a similar scene had repeated itself many times over the course of the week. So, when the commission was in session for the first murder trial I’ve ever observed in person, the key figures were quite real for us.

Yet, through all this, Sergeant First Class Christopher Speer had remained but a name on a charge sheet. On Wednesday, he became a living human being through testimony from his former boss and a colleague, both of whom knew Speer both on- and off-duty. SGM Y and CPT E painted a portrait of a young man who was skilled at his profession as an Army Special Forces medic and utterly devoted to his family. He was the guy who stayed late during training to practice his skills and who rushed home to play with his daughter--the guy who needed the encouragement of his boss to decide to stay for the birth of his son, rather than deploy with the first wave of Operation Enduring Freedom soldiers. And it was Speer who risked his own life to pick his way through a minefield to snatch 2 Afghan children from danger only days before his death.

SGM Y and CPT E both cut striking military figures—both had chests of military decorations that most generals can’t match, and their service dress uniform pants were snugly tucked into their Ranger boots. These are the type of men who undertake the most dangerous assignments, and only a select few fit the category. Have you ever seen a Special Forces member cry? Two choked up yesterday as they described the impact the loss of their friend Chris had on them. That’s quite a testament.

Yesterday morning’s testimony brought more of a glimpse into a life that could have been when Tabitha, Chris’ widow, took the stand. The love Speer had for her and their 2 tiny children he left behind was immediately evident. Speer’s dreams of becoming a doctor, his bathtime routine with his daughter, his final day at home with his family before his 2002 deployment, and family photos shown on the courtroom screen all put Speer into focus for the court members and spectators. Tabitha emphasized the importance of a father to a son. She looked Khadr in the eye at one point and forcefully declared that he is not the victim here; the victims are Tabitha’s children. The children’s letters to Khadr and Taryn’s struggle with the loss of her daddy at age 3½ left few dry eyes as Khadr himself bowed his head. Tabitha was the last sentencing witness for the government. The defense did not ask Mrs. Speer any questions. However, one of the panel members asked an interesting question. He asked, “Would it have made a difference if the man who killed your husband would have been wearing an Iraqi or Afghani uniform?” Mrs. Speer replied “yes.”

It’s one thing to watch a trial unfold on TV and another thing entirely to watch it live.

The morning began with a witness taken out of order due to the availability of a video teleconference from Afghanistan with the former staff judge advocate (SJA) of Joint Task Force-Guantanamo (JTF-GTMO). Surprisingly, this Navy captain (O-6), a man not known for his warm and fuzzy ways, and one who is a close advisor of a powerful commander (in other words, more logically aligned with the government) testified as a defense witness. The man had been the SJA of JTF-GTMO from 2006 to 2008, and he had at least weekly interactions with Khadr.

Captain M described Khadr during these contacts as respectful and helpful, particularly relating to keeping the detention facility personnel abreast of potential troubles among the detainees. Due to his age and the influence of Khadr’s father at the time of the firefight and his capture, and factoring in Khadr’s compliance and lack of radical expressions during his detention, Capt M opined that Khadr had good rehabilitative potential, something he’d never done before in his 25 or so years in the military. The import of this man’s words was not lost on the military members in the room. It is not often you see a senior officer, much less a lawyer who serves as an SJA, put his credibility on the line for an accused. To see it done for a GTMO detainee’s military commission sentencing case was really something.

On cross-examination, Capt Murphy scored some minor points by informing Capt M about a number of minor infractions Khadr had committed mainly during his early 2 years at GTMO. He also liberally quoted passages from the stipulation of fact to test Capt M’s definition of “radical” and to highlight the different status Khadr has now as a convicted criminal versus just being a suspect when Capt M dealt with him. (Trial techniques critique: It would have been helpful if the defense had provided a copy of the charge sheet and the stipulation of fact to Capt M before his testimony.) I’ve seen a number of lawyers testify over the course of my career, and they often have a tendency to get defensive or parse words unnecessarily. Capt M did neither, agreeing on points that might not be favorable to the defense, and, thus, coming across as a very credible witness.

On redirect, Capt M’s opinion that Khadr was salvageable was unchanged, despite the additional information he’d learned on cross-examination.

After Tabitha Speer’s testimony and the government’s resting its case, the defense began calling the rest of its sentencing witnesses. Unfortunately, that was also my cue to head for the ferry to the PAX terminal.

As we made our way to the leeward side of the bay, it struck me that there were some parallels among the key players in the case. While I certainly don’t mean to place the parties on equal planes, it’s worth considering that Speer’s son is now the age Khadr was when his dad uprooted the family and took them to Afghanistan. Khadr lost an eye and thought he would die in the firefight that took Morris’ sight in one eye and killed Speer. Both Khadr and Speer envisioned becoming doctors. Khadr and the Speer children both lost their fathers as children. The difference is that Speer was, by all accounts, a wonderful father who taught his children to do good, while Khadr’s father instilled just the opposite in him. One can’t help wondering how different life could have been for both sets of children.

Stay tuned for the end of the sentencing case…

Thursday, October 28, 2010

Dr. Welner's testimony

Michelle continues her analysis of the Khadr commission:

After the series of agents testified, the government called their star witness, Dr. Michael Welner, a forensic psychiatrist who is best known for his “Depravity Scale” regarding criminals, to speak about his opinion of Khadr’s risk assessment, future dangerousness, reintegration into civil society, and deradicalization needs/prospects. Welner founded the peer review organization The Forensic Panel, which includes Dr. Nancy Slicner, a retired USAF psychologist who worked with Air Force investigators for years, as a member. The testimony began mid-afternoon on Tuesday and lasted until mid-afternoon Wednesday. As he painstakingly listed his long string of qualifications as a forensic psychologist, I longed for Maj S to jump up and state that the defense would stipulate to Welner’s expert status.

Welner testified that he spent 500 to 600 hours working on this case, but we didn’t learn until the cross-examination that he only concentrated on the “future dangerousness” assessment towards the end of this preparation. Welner relied on 150 items—documents, web research, videos, and 21 interviews (including a 2-day interview with Khadr) in establishing his conclusion that Khadr was “highly dangerous.” The primary bases for this conclusion were that Khadr had killed, he had been part of al Qaeda, the war remains ongoing, and it isn’t ending soon. “Past history informs the future.” In support of this premise, Welner described the Khadr family’s well-known terrorist ties, implying that Khadr would likely continue on the family path after his release. Khadr’s declination to speak of the impact of his father’s death was another red flag for the doctor. I found it odd that Welner felt the need to emphasize repeatedly alleged crimes for which family members hadn’t been convicted and ones totally unrelated to terrorism. When you have a family with an al Qaeda connection, is it really necessary to list every black mark?

It soon became evident that, in addition to his psychiatric expertise, Welner fancied himself an expert on radical Islam, defining such adherents as not wanting to live in a country that doesn’t follow Sharia law. On cross-examination, the defense elicited that this was the first case in which Welner had testified on such matters. It didn’t help that the primary resource Welner used was a Danish study of 250 youthful Muslim inmates. Rather than relying on the study itself (as it was written in Danish), Welner’s reliance was based on a phone conversation with the author, purportedly a 33-year-old doctor whose credentials Welner did not verify. On cross-examination, Maj S brought out a host of disturbing writings attributed to the Danish author which revealed a general disdain, to say the least, of Muslims. While Welner professed to have read “everything he could get his hands on” in his preparation, he managed not to have seen any of these biased documents until the defense brought them to his attention during cross-examination. After reviewing the additional documents, Welner’s opinion of the Danish author’s study remained unchanged.

Another significant factor in Welner’s assessment were the growing percentage of former GTMO detainees who have reverted to terrorism, according to him. Given the skepticism with which such numbers are viewed, this seemed like a reliance fraught with peril in attempting to predict how Khadr will react outside of GTMO.

The prosecution expert took every opportunity to weave in nearly every high-profile violent Muslim who has committed crimes in the past decade as he spoke, most of which hardly seemed relevant to the matter at hand. The term “violent jihadist” seemed synonymous with “Muslim” until Welner clarified this late in his testimony today. As factors contributing to his beliefs about Khadr’s rehabilitation potential, Welner listed Khadr’s age, perceived lack of remorse, depth of his religious devotion, anger, and the length of time he’d been confined at GTMO with “radical jihadists” for 8 years, prompting those of us in the gallery who are familiar with international law on child soldiers to whisper among ourselves that that is precisely why minors should not be housed with adult prisoners.

Welner’s recounted Khadr’s status as a “rock star” and “al Qaeda royalty” who “attracted more attention than Fidel.” This heightened status was sdue to his language proficiency, his charm, his comfort with various groups of individuals, his memorization of the Koran, his killing a US soldier, and the fact that he has experience with the Western world (but isn’t very Westernized, according to Welner) as contributing to his capacity to lead others. This dove-tailed with Welner’s description of Khadr as the family favorite in a “leaderless” family now that the father is dead. Another point that highlighted the nature of this witness’ testimony came cross-examination, following up on Welner’s testimony that Khadr read Harry Potter books as a means of escape, rather than doing schoolwork, intimating that Khadr isn’t interested in bettering himself through education (although Khadr wants to be a doctor) unless it’s related to doing such suspicious things as memorizing the Koran. On cross-examination, we learned that Khadr also read books by Danielle Steele, Nelson Mandela, and President Obama, items Welner neglected to list on direct.

Welner emphasized that Khadr was manipulative and told lies, explaining that Khadr’s compliant behavior at GTMO could not be seen as a sign of his lack of dangerousness because the “radical jihadists” (which he later claimed included 100% of the GTMO detainees) excel at awaiting the right opportunity to lash out, and Khadr has been “marinating in radicalism.” In this context, Khadr’s good impulse control in avoiding confrontations with guards and detainees was spun as a negative factor. Even Khadr’s saying that others could be Christians, while he is Muslim, without causing problems was viewed as suspect.

Not surprisingly, the subject of deradicalization was a hot topic with this witness. For the same reasons he described Khadr as “highly dangerous,” he lamented the lack of good moderate Muslim role models for Khadr when he is released from detention, as there are no deradicalization programs in Canada. Welner described Khadr as a leader among the prisoners in his unit and as a spiritual leader for them; in fact, Khadr related to Welner that he looks to himself, rather than the older prisoners, for spiritual help. Still, Welner cited “uneven” success rates for various deradicalization programs around the world, specifying that the former GTMO detainees “infect” such programs. Despite all this emphasis on radicals, Welner could not recall whether Khadr ever said he wanted to live under Sharia law—pretty astounding lapse, considering the subject.

Discounting the impact of higher education prospects and finding no mental defect in Khadr, Welner called radical jihadism (a favorite phrase of his) a passion, not a disease or mental illness capable of medical treatment. Because Khadr did not accede to government-provided mental health services, this, too, was a strike against him.

As the testimony wore on, it became apparent that the defense was allowing Welner quite a bit of leeway in replying to simple questions with lengthy narratives. This brought back memories of my years doing trial work in which the best strategy with witnesses who drone on is to just let them alienate the court members without making any objections. Particularly with military panels, and in this case, ones who don’t get to go home until the case ends, time wasted on superfluous testimony is not usually welcomed by commanders who need to launch ships, get jets into the air, and the like.

On cross-examination, Welner continued his windy replies. A smile escaped from me when Maj S cut the doctor off after one answer by replying “Awesome, so….” as he asked the next question. I wish I’d seen more of that. While there were certainly some hiccups along the way, the lack of reliable sources and data on many of the issues about which Welner testified became apparent during cross-examination. Redirect was unremarkable, and, mercifully, short. Finally, the court members had several questions to ask, and then Welner was allowed to leave the witness stand.

Khadr Interrogators Testify

More from Michelle at Guantanamo:

After the drama of the IED video, LTC Jackson stood to cross-examine the agent. Jackson verified that the agent was a professional who is supposed to be objective, yet SA S refused to submit to a pretrial interview with the defense counsel. This was true despite the fact that SA oversaw the creation of the Humvee video for the prosecution. While it does not seem to be standard practice within the civilian community for federal law enforcement agents to make themselves available to both parties before trial, it is customary in courts-martial to allow such interviews by both sides.

Next, the defense counsel elicited that Khadr’s admissions to the agent allowed the removal of the IEDs Khadr set, avoiding injury or death to coalition troops that were the intended targets. SA S admitted he believed Khadr was 15 at the time of the interviews.

On redirect, Capt E asked leading questions that brought an objection from Jackson. Before being permanently excused from the commission, SA S acknowledged that many variables were at play in determining the scope of injuries expected from the dropping of 2 500-pound bombs on a compound, such as that in which Khadr was found.

The next prosecution witness was SA G, who had interrogated Khadr 7 times at GTMO in late 2002. SA G had 21 years of experience with the FBI and a background as a Marine. SA G interviewed Khadr at the Camp Delta hospital with no parent or doctor present. Khadr, with a junior high education, was quiet and cooperative; in fact, he eventually was glad to see the agents when they came for interviews. The agent described a “mutual respect” during their “conversational” encounters during which Khadr was offered food and restroom breaks. Khadr provided a “tremendous amount of information” about his father, as his father was still on the run at that time.

SA G described Khadr’s recounting of the firefight during which he was captured. Khadr thought he’d see signs for Allah, as he believed he’d die in the battle; then he realized the Americans had saved his life. SA G reported Khadr was happy he killed an American soldier and bragged about this to other detainees.

There was an ongoing dispute as to whether the witnesses could testify about Khadr’s lack of remorse for his actions, with the government citing US v. Alis, an Air Force court case that I recognized as involving the court-martial of the staff judge advocate (senior attorney) at a base who had used his office as a dating pool and “recreation center.” The defense argued that “lack of remorse” wasn’t a matter in aggravation. Ultimately, the judge rejected the prosecution’s arguments and refused to allow such testimony because the interrogators did not ask Khadr if he was sorry for his actions.

During the cross-examination, Jackson skillfully read sections of what we believe was the lead interrogator’s (#11) notes from the interrogations in a successful attempt to impeach SA G’s memory that also wove in statements about Khadr’s regrets and other information sympathetic to the defense. Moreover, while SA G had described Khadr as “cold and callous” during his direct examination, those words were nowhere to be found in SA G’s notes from the interrogation. SA G explained that he doesn’t editorialize in his notes; he simply recalled this detail 8 years later. “Editorializing” or simply recording one’s observations about a captive’s demeanor would be quite helpful to put into the notes, so this struck me as a somewhat less than genuine explanation of the omission.

The defense counsel also highlighted Khadr’s isolation during the interviews. He was in the hospital, wounded, and SA G didn’t request permission from Khadr’s doctors to conduct the interrogation. Yet, SA G admitted he gets a doctor’s permission to interview other hospitalized suspects.
A second agent who interrogated Khadr 25 to 30 times in 2002 repeated virtually the same testimony given by SA G.

Wednesday, October 27, 2010

2010 Military Reporters & Editors Conference

NIMJ is co-sponsoring 2010's MRE Conference called "Fighting On All Fronts: Covering Combat and Its Aftermath." The Conference will be held Thursday, November 04, 2010 6:30 PM - Friday, November 05, 2010 4:30 PM (Eastern Time). The Friday events will be at American University Washington College of Law, 4801 Mass. Ave., NW.

The morning session, "Military Justice: From Gitmo to Hood" will include experts from NIMJ talking about everything from trends they're seeing, to the problems journalists have had at Gitmo, to how Fort Hood is playing out.

The agenda can be seen here.

Sentencing begins in Khadr's Commission

Michelle's report from the first day of sentencing:

The prosecution’s sentencing case began Tuesday. We watched the court members (3 females, 4 males) file out of their van, each carrying a garment bag with their service dress uniform into the courthouse as we were going through our own security processing.

The court was called to order just after 9am, with the military judge briefly inquiring of Khadr whether he wanted to stick with his guilty plea entered yesterday. Khadr responded that he did. This was a matter of some speculation yesterday after one of Khadr’s Canadian consultants (attorneys) made statements at the press conference that could have led to the reopening of the providency inquiry regarding Khadr’s plea.

After a brief discussion of proposed prosecution sentencing exhibits, the judge admitted a number of documents. He also admitted a 10-second video of an improvised explosive device (IED) blowing up a Humvee, over defense objections on relevance and unfair prejudice grounds, and then the members joined us in the courtroom. Although COL Parrish allowed everyone to sit as soon as the members entered, both the prosecution and defense attorneys remained standing until all the members had taken their seats, reminding me of an unwritten rule of decorum in military court.

The military judge immediately inquired as to whether any of the members had heard anything about the case during the 2-month recess. Such a recess, especially with members already seated, is a highly unusual occurrence in the military justice system. Fortunately, military members are trained to follow orders to the letter, and only 1 member volunteered that he had heard anything about Khadr’s case during the break. In individual voir dire conducted by Parrish after the other members returned to the jury deliberation room, the member explained that he had seen 2 brief news items about a potential plea deal, although he hadn’t heard what the terms of such a deal were. Member #5 then assured Parrish that this additional information would not affect his ability to fairly act as a member on the case. Neither the prosecution, nor the defense, chose to challenge #5 over this, and all the members rejoined us in the courtroom.

The sentencing case started with Parrish informing the members that the plea had changed during the 2-month recess; now Khadr had pled guilty to all charges and specifications, thus relieving the members from having to complete the findings phase of the commission. After this, the judge gave short, initial presentencing instructions that mirrored those used in courts-martial. He also estimated that the case would end near the close of this week. At that point, LTC Jackson, the lead defense counsel, reminded the judge to introduce the new defense counsel on the case, the USAF major, which Parrish did.

The first evidence the trial counsel presented to the members was prosecutor Groharing reading the 50-paragraph stipulation of fact aloud to the members. Much of the first part of the agreement between the parties and the accused centered on a history of al Qaeda and Khadr’s family’s involvement in al Qaeda. It mentioned Khadr’s al Qaeda training, his making and planting of land mine, and his fluency in 4 languages (English, Arabic, Pashto, Dari). Khadr’s desire to kill lots of Americans figured prominently in the agreement.

The stipulation then shifted to the firefight at the al Qaeda safehouse in Afghanistan where Khadr was captured. The leader of the cell left when he heard US forces were approaching, but Khadr remained even after the women and younger children left the compound. Two Afghan soldiers were killed by someone in the compound after the compound’s occupants refused to meet with US forces. I noticed 1 commission member kept an eye on Khadr as Groharing read the passages about Khadr’s opportunities to leave the compound.
Then the details of Khadr’s throwing the grenade that killed Sgt Speer and injured Sgt Morris tumbled out, as did the description of Khadr’s wounding in the subsequent bombing of the compound. Khadr explained he thought he would die in the firefight, so he wanted to kill as many Americans as possible before his death. When coalition troops reached Khadr, he had a weapon with a round in the chamber and grenades nearby. At the conclusion of the reading, Groharing asked to publish the stipulation of fact to the members, but the judge countered that the members would get copies of the document on a break, so as not to distract the members from listening to further testimony.

Capt E from the prosecution called the first witness, Special Agent (SA) S, to the stand. S is a hazardous/explosive devices examiner supervisor at the FBI lab in Quantico. The court recognized SA S as an expert in bomb making and explosives. SA S described the F-1 Russian anti-personnel grenade of the type used to kill Speer. SA S then walked the members through various prosecution exhibits that featured still photos from a video which showed Khadr and his group making and placing IEDs with the intent that coalition Humvees would run over them, causing them to explode. These video stills were often shown alongside replicas assembled by the FBI agents for a demonstration requested by the prosecution. This testimony culminated with the showing of Prosecution Exhibit 24, the 10-second video of an IED blowing up a Humvee. My entire row of spectators jumped at the explosion, even though we knew it was coming. Predictably, the Humvee was blown to pieces.

Monday, October 25, 2010

Khadr pleads guilty

Michelle reports from today's hearing:

This morning’s military commission session dawned with the air of uncertainty that had permeated the weekend at Tent City in Camp Justice. As so many of us have done before, we filed through the various security checkpoints and settled into our assigned seats in the non-high-value-detainee military commission courtroom. Just before 9am, a crew of guards brought now-24-year-old Omar Khadr into the courtroom to answer for acts committed when he was 15. My seat was approximately 10 feet behind his, where a pin-stripe suited Khadr sat with his 2 US military defense counsel and his 2 Canadian foreign legal advisors (his defense attorneys in all but name). LTC Jackson, recovered from his recent health issues, led the defense team, which included a newly detailed USAF major. The prosecution team, including a civilian, Navy Capt Murphy, and 2 USAF captains, was partially hidden behind the pillars that seem to adorn all military courtrooms. At 9am, we all stood for the entrance of COL Parrish, the military judge appointed to preside over this commission.

To begin the hearing, Khadr withdrew his previous plea of not guilty to all the charges and specifications and waived all outstanding motions. Then, LTC Jackson announced that Khadr pled guilty to all the charges and their specifications.

Much of the hour we spent in court today mirrored what a court-martial Article 39a plea hearing would look like. One of the trial counsel placed Khadr under oath for the plea inquiry. As part of the plea colloquy, Prosecution Exhibit 12, the 50-paragraph stipulation of fact was used. Judge Parrish ensured that Khadr understood the stipulation, which was written in English, and had voluntarily signed it. Parrish also made it clear that the full stipulation would be released tomorrow after it is published to the members.

Next, Parrish listed the elements of the offenses. Charge I—Murder in Violation of the Law of War; Charge II—Attempted Murder in Violation of the Law of War; Charge III—Conspiracy; Charge IV—Providing Material Support for Terrorism (2 specifications); Charge V—Spying. As I listened to the elements and the facts alleged as part of the elements, it struck me how these charges were not ones you would traditionally think of as war crimes—often, they were simply made up. It even sounded as if the 2 specifications of Charge IV were multiplicious, covering the exact same conduct in each.

Unlike a court-martial, the accused in military commission pleas is not required to “Tell me in your own words why you’re guilty” of each offense as required under U.S. v. Care. At the conclusion of the explanation of the elements and definitions applicable to each specification, the judge simply verified that Khadr wished to admit the elements listed. Rather than engaging in the familiar colloquy of potential defenses, Khadr just answered “Yes” to each specification’s elements.

At the conclusion of the providency inquiry, Parrish verified that Khadr still intended to plead guilty, to which Khadr agreed. The counsel agreed that the maximum punishment Khadr faced, based on his pleas, was life in confinement. They also revealed the long-rumored fact that there was a pretrial agreement (PTA) to limit the punishment allowed in the case.

The pretrial agreement was marked as Appellate Exhibit 341. Unlike many PTAs in courts-martial, this PTA contained no separate quantum portion, usually identified as Appendix A. Here, all the terms were included within Appellate Exhibit 341 itself. The judge then went through the standard PTA inquiry that is familiar to court-martial practitioners, ensuring that Khadr had read the agreement, had his counsel explain it to him, entered it voluntarily, and believed it was in his best interests to do so. Paragraph 6a of Appellate Exhibit 341 contains the key terms of the PTA—the sentence limitation; however, those terms won’t be revealed until after the commission members announce their sentence, likely at the end of this week.

Much like with the stipulation of fact, Parrish ensured that the PTA terms would be made available to the public. He even made it clear to the trial counsel that he expected them to work with the Office of Military Commissions to get the PTA released immediately upon the announcement of the adjudged sentence.

As part of the PTA, Khadr agreed to plead guilty to all the charges and specifications, to forego some testing (NFI), not to initiate any litigation against the US, to submit to interviews with US personnel, to have some sentencing witnesses testify, and not to appeal his conviction. After 1 year in confinement, the United States government will support Khadr’s request to return to Canada to serve the remainder of his sentence. Although Canada hasn’t agreed explicitly to accept Khadr back at that time, the defense counsel was satisfied that that would happen, based on diplomatic notes exchanged between the US and Canada. Those diplomatic notes were made part of the PTA as Appellate Exhibit 342 and will also be released to the public at the conclusion of the trial.

Parrish’s rapid pace was a topic of some discussion after the hearing concluded. Even for those of us accustomed to the standard litany of questions that accompany a guilty plea, Parrish moved fast. It was interesting, although not surprising, to note that the military judge always addressed the accused as “Mr. Khadr” or “sir.”

After clarifying a few points, both parties were ready to proceed to the end of the findings phase. Parrish had Khadr and his counsel rise, and Parrish found Khadr guilty of all the crimes alleged at 9:50am.

It was at once a moment of relief and yet one of regret. After 8 years, the end of Khadr’s case appeared to be within sight for all the parties and victims. The plea closed the door on issues that many of us have fought over for years. What is the appropriate way to deal with child soldiers? How can we punish individuals for actions that weren’t crimes at the time they were committed? Why are we able to use Article 1 courts to prosecute crimes that have never before been recognized as law of war crimes? Those are answers Khadr’s case won’t provide us.

The sentencing case starts at 9am tomorrow.

Photos of Guantanamo's detention facility

Here are some very interesting photos of the Guantanamo Bay detention facility and a report from Lisa Hajjar. Ms. Hajjar teaches sociology at the University of California – Santa Barbara and is currently in Guantanamo for Omar Khadr's military commission.

Guilty plea in Khadr Commission Case

A guilty plea has been entered in United States v. Khadr. An initial news report is available here.

Sunday, October 24, 2010

From Gitmo!

Michelle files her first report from Guantanamo:

Greetings from the Pearl of the Antilles, better known as GTMO (Gitmo)!

This morning there was a short press conference held in the un-air conditioned media hangar. Omar Khadr's lead Canadian lawyer, Dennis Edney, spoke to a small throng of mostly Canadian reporters, plus other reporters, military public affairs officers, and representatives of non-governmental organizations here for the trial which is scheduled to start tomorrow. Later in the day, Edney will meet with his client--the client chained to the floor, government minders listening to their conversation.

It was clear from the beginning of the question-and-answer session that Edney could not say much about the rampant rumors that there is a plea deal in the works for Khadr's case. When directly asked about such negotiations, Edney responded there is "no deal at this point."

Edney deplored the lack of action on the part of the Canadian government to help one of its native sons, despite what he described as tremendous empathy (although no action) from members of the Canadian public. Apparently, Canada did provide Khadr with glasses for his "good" eye within the past 2 months, but that is about the extent of the concern. Edney lamented that Canada "has let down a most vulnerable citizen, a youth. It is remarkable how he's kept his humanity."

The frustration with the military commission system was best summarized by the reflection that President Obama won the Nobel Peace Prize and hundreds of detainees have been released without charges, but Khadr remains at Guantanamo 8 years later. Edney repeated a constant refrain that the case should be moved to the civilian federal court system, as "there is no justice here." In proclaiming the process "unfair," Edney reminded the listeners that those were the words of former military commission prosecutors, not Edney's.

After the press conference concluded, the NGO representatives took questions from the assembled media representatives, where we had the opportunity to speak out against the use of war courts far from the battlefield for crimes that aren't internationally recognized law of war (law of armed conflict) crimes, and, even, crimes that didn't exist at the time of their alleged commission.

Tomorrow promises to be a day full of unknowns, as it seems any purported plea deal is far from a certainty today. We'll have more news as whatever tomorrow brings unfolds.

Friday, October 22, 2010

Omar Khadr's Military Commission to Continue (Conclude?)

Michelle McCluer, NIMJ Executive Director, is currently on her way to Guantanamo Bay with the other non-governmental organization observers, members of the press, and the travelling court staff, known as the Office of Military Commissions. Omar Khadr's military commission is scheduled to reconvene Monday morning. The trial began in August. One week into the government's case the military judge recessed the trial because Khadr's military lawyer fell ill.

Khadr allegedly threw a grenade during a 2002 firefight in Afghanistan that resulted in the death of Army Sgt. 1st Class Christopher Speer. Khadr was 15 when he was captured in Afghanistan. If convicted, he would face a maximum life sentence.

The commission was scheduled to reconvene on October 18. However, late last week news broke about a possible plea agreement. It appears that negotiations have been ongoing all week. Reports indicate Khadr would serve eight years of confinement under the terms of the potential agreement. He would serve one more year in Guantanamo and the remainder would be served in Canada.

Khadr and the Canadian government must accept the agreement. CNN reports that Secretary of State Clinton engaged in high-level diplomacy with Canadian government officials to secure the deal. However the Globe and Mail reports that Ottawa denied such negotiations took place.
We will have to wait and see what Michelle reports from Guantanamo next week.

Gates Memo Changes Discharge Authority for ‘Don’t Ask’ Law

News from the Department of Defense:

WASHINGTON, Oct. 21, 2010 – Given the uncertainty over the so-called “Don’t Ask, Don’t Tell” law, Defense Secretary Robert M. Gates has directed that any discharges under the law be made by the service secretaries in consultation with the undersecretary of defense for personnel and readiness and the defense general counsel.

More uncertainty over the law looms, as the 9th Circuit Court of Appeals approved a stay of an injunction issued October 12 on the law. The court’s action means “Don’t Ask, Don’t Tell” is once again the law of the land after eight days of the injunction.

The court granted a stay of four days, said a senior defense official speaking on background. The temporary stay lasts through Oct. 25 to give the judges the time to look at the government’s request.

The court may extend the stay through the length of the appeals process or allow the injunction –- which would allow openly gay and lesbian servicemembers to serve or openly gay and lesbian people to enlist –- to take effect.

The appeals process typically last 16 months in the 9th Circuit Court of Appeals, said the defense official. The court “briefing” schedule has the case on the books through March.

“With a case of this magnitude, it may be sooner,” the official said. “Likely [there] could be a decision sometime in 2011, but I can’t predict or control the court’s timetable.”

To read the full article, click here:

Thursday, October 21, 2010

Hasan Article 32 Hearing Breaks, Will Resume Next Month

The Associated Press reports that the government has finished putting on evidence in the Article 32 hearing of alleged Ft. Hood shooter Major Nidal Hasan. The Army Times notes that the hearing will resume on November 15. That will give the opportunity for additional mental health evalution of Hasan, the passing of the first anniversary of the killings, and for the defense to decide whether and what to introduce as part of the pretrial investigation.

Additional Observations from Yesterday's Ft. Hood Hearing

Mr. Douglas Ahern, a law student who accompanied Prof. Corn to Major Hasan's Article 32 hearing yesterday, had these remarks to add about the experience:

After 20+ years of federal law enforcement and military experience, I would have been the first one to state “I have seen it all.” Today, I stand corrected.

On October 20, 2010, I took the once-in-a-lifetime opportunity to observe what likely is the most important court-martial since My Lai. It would be easy to be overwhelmed at the raw emotion of the Article 32 investigation of the charges against Major Nidal Hasan. Seated behind families of victims of the November 2009 tragic events, you are compelled by the intensity of the moment. Hearing Sgt. Todd testify, as a laser sight appeared on his chest, that he uttered the words, “Oh, okay” as he ran into the line of fire was so extraordinary; it cannot be fully described. It must be felt.

But this was much more than emotion. As a law student interested in criminal justice and military law, this was a chance to see some of the very best military prosecutors and defense lawyers this country has to offer in action. We watched as direct and powerful testimony and evidence was delivered by the law enforcement officers who responded, the lead criminal investigators and an Army doctor whose life was saved by one of the officers. With Professor Geoff Corn as our guide, we were able to spend time with the prosecution and the defense, as well as a number of other players in the investigation. This process is a massive undertaking for all parties involved, and the ability to observe the subtle, legal conflicts and unfolding of trial strategies (watch batteries!) is priceless. I have not seen it all, but I am conflicted as to ever experiencing it again.

Observations from Fort Hood: The MAJ Hasan Article 32

As promised, we were able to send one of our advisors, LTC Geoffrey Corn, retired Army JAG, and current professor at South Texas College of Law to witness yesterday's hearing at Ft. Hood. Here is his report:

“Chilling.” That is how one reporter described the testimony during a recess in the Article 32 Investigation of the charges against MAJ Nidal Hasan. I have been in plenty of military court rooms, participated in or observed plenty of courts-martial, Article 32 hearings, and other disciplinary proceedings. But I have never observed anything as “chilling” as what I saw today. That one word does indeed truly capture the essence of this case.

From a military justice perspective, there are certainly some unusual aspects of this Article 32: the appointment of a military judge to serve as the Investigating Officer; the high level of security and medial presence at the hearing; an extremely modern military courtroom with lots of high-tech media support; the collective experience of the senior officers representing the parties to the trial; an accused in a wheelchair huddled in a blanket. But fundamentally, the hearing is what anyone familiar with the military justice process would expect: prosecutors presenting a streamlined version of their case; defense engaging in some modest cross-examination and using the opportunity to engage in discovery.

The process seemed extremely well managed – unsurprising, considering the Investigating Officer is a military judge and the counsel are so experienced. Both the prosecution and defense included three attorneys: a colonel, lieutenant colonel, and major for the prosecution; Mr. Galligan, a lieutenant colonel, and a major for the defense. Paralegal and victim/witness support seemed exceptional.

Major Hasan rarely showed any reaction to the evidence, and I never saw him utter a word to his counsel. He sat silently, wrapped in his blanket with his head covered. When Officer Todd testified about shooting him and then apprehending him, there was no visible reaction. Several of my students did notice him “perk up” a bit when the major who witnessed Hasan shoot Officer Munley and Officer Todd shoot Hasan testified by VTC from South Korea. Major Steve Richter testified that he watched the shooter’s engagement with police transpire – an engagement that probably saved his life. Richter recounted that Hasan was moving towards him had placed the laser sight from his pistol on the major twice, so Hasan obviously had seen him behind a van.
As Hasan approached him, Officer Munley turned a corner and confronted Hasan. Shots were exchanged and Munley went down. Hasan then approached her. According to Richter, Hasan was in a position to kill Munley, who was on the ground at his mercy. At that moment, Richter saw Officer Todd appear and engage Hasan. When Hasan was hit and went down, Richter sprinted to him and secured Hasan’s pistol based on his apprehension there might be another shooter. He tried to clear a jam and burned his hand on the weapon. Realizing other police officers might think HE was the shooter, Richter dropped the pistol and went back to Hasan to provide aid. He found a bullet entry hole in Hasan’s chest and plugged it with his finger. Someone said there might be another shooter, so Richter moved away from Hasan to regain some cover.
Military defense counsel cross-examined Richter, focusing on why he feared a second shooter. The major explained this belief was motivated by the overall chaos and the high rate of fire, but defense counsel seemed to be exploring the possibility of actually claiming the presence of a second shooter. Where this will go is impossible to predict, but as the prosecutor elicited from Richter, no other shooter was ever identified at the scene.

In addition to the testimony of Richter and the two responding police officers, other dramatic evidence presented in the last full day of the government’s presentation included the total number of shell casings recovered at the scene: 146; the number of unexpended rounds recovered from Hasan: 177; and the testimony of the CID Special Agent who identified the nine deceased victims in the SRP building. The government offered 13 autopsy reports from the Armed Forces Institute of Pathology for the limited purpose of establishing the alleged victims of the Article 118 (Murder) specifications were deceased. The defense challenged the reports, but mainly to again highlight what they assert is the improper denial by the government of their request for a government-funded pathology expert to assist in reviewing the reports. Colonel Pohl admitted them for the limited purpose for which they were offered, although he indicated on the record that the testimony had also established the identity and death of the alleged victims.

Mr. Galligan shared some of his thoughts with me during a recess. His concerns focused primarily on discovery of reports at the national level, potential disqualification of the GCMCA, his belief his client should be in a hospital and not in a pre-trial detention facility, and insufficient resourcing of the defense by the government. These are all issues he has raised with the media previously. The government shared with me some information related to Mr. Galligan’s first concern: discovery. The government has already provided Mr. Galligan 123 THOUSAND documents – all in electronic format that is easily searchable. This is in large measure the result of the efforts of SFC Beach, the senior paralegal NCO who volunteered to assume that duty when the call went out from the JAG Corps about a year ago. I had the opportunity to speak with Beach and, in my opinion, the case management system he has implemented is by far the best I have ever seen in a military trial. Furthermore, as military justice experts know, much of the information Mr. Galligan is demanding is outside the scope of pre-referral discovery and beyond the prosecutor’s authority to demand. However, it is does seem that there will be some interesting discovery motions if and when the case is referred to trial.

So, back to my original observation. I honestly did not expect the reaction I had as I contemplated sitting in on this 32 hearing. This, however, is obviously no ordinary 32. As we drove away from Fort Hood yesterday afternoon, I had a mix of emotions: shock at the contrast between the portrait of evil painted by the evidence and the accused slumped over in his wheelchair; immense sorrow for the victims of that tragic attack; equally immense respect for the two police officers who moved towards the sound of gunfire to protect the dozens of other potential victims spared by their courage; and pride in the lawyers and paralegal specialists who are collectively demonstrating to the public the integrity of our military justice system. Certainly a day I shall not soon forget.

Soldier Charged with Killing Fellow Soldiers in Iraq

Following up on a news item from last month, a soldier had charges preferred against him this week for the deaths of two fellow soldiers and injuries inflicted on a third soldier during an argument while all four were deployed to Iraq. The Army Times reports that Spc. Neftaly Platero faces two specifications of murder, one each for Pfc. Gebrah Noonan and Spc. John Carillo, Jr. Platero faces a specification of attempted murder for shooting and wounding an unidentified soldier.

I found it interesting that the article states Platero will be tried in military court. If the charge and specifications were preferred just yesterday, that's presuming the most likely outcome of the case, but it's omitting a few steps in the military justice process. Namely, given the seriousness of the crimes alleged, there will be an Article 32 investigation to recommend whether the case should be referred to a general court-martial, and then it will be up to the convening authority to decide whether to convene such a court and whether to refer it as a capital case.

9th Circuit Stays District Court Order on DADT

The Washington Post and other media outlets are reporting that a panel of the Ninth Circuit Court of Appeals has granted a temporary stay of the District Court's order to end the "Don't Ask, Don't Tell" policy. This means "Don't Ask, Don't Tell" is back in effect in the military.

This brings more uncertainty to the situation. For the past week, some former service members who were discharged for homosexual acts under the policy and new recruits who are openly gay have begun the enlistment process. I'm curious as to whether any of these individuals have actually incurred any service obligation yet and what will happen to those enlistments now that the policy against homosexual acts has been revived, at least temporarily.

It is anticipated that the Log Cabin Republicans will request that the stay be lifted by early next week. With the policy changing rapidly, one thing we can be assured is that this saga is far from over.

Wednesday, October 20, 2010

"Birther Doc's" New Strategy?

When Army LTC Terrence Lakin, better known as the "birther doc" for his refusal to comply with orders related to his impending deployment to Afghanistan because he wasn't personally satisfied that the commander-in-chief was qualified to serve in the office, recently fired his civilian attorney who didn't appear to have any military justice experience or knowledge, speculation was rampant as to how Lakin's new civilian attorney, retired Marine Corps JAG Neal Puckett, would approach the case, in light of the previous trajectory taken. The biggest unknown was whether bringing in Puckett, a respected and experienced military justice practitioner, signalled a significant change in strategy, or if this was simply a change in personnel with the same end goal of verifying President Obama's eligibility to be the commander-in-chief.

Of course, those who know LTC Lakin's new civilian counsel immediately suspected the former--that the investigating officer's and military judge's rulings against Lakin had finally sunk in, and Puckett was brought in to attempt to salvage any hope of mercy being meted out to Lakin. A recent post seems to confirm the belief that the trial spectacle previously promised will fizzle into a guilty plea. It remains to be seen whether the government has any incentive to offer or accept a pretrial agreement in this case.

Trial resumes in mid-December.

H/T to Phil Cave for bringing the latest on this case to our attention.

Ft. Hood Hearing Witnesses Describe Triage in Immediate Aftermath of Rampage

Here are a couple of articles describing the efforts to treat the wounded as the shooting at Ft. Hood ended last year. As some earlier witnesses testified, several theorized that the shooter targeted those in uniform, sparing most civilians in the building.

As I've read the reports of the Article 32 hearing over the past week plus, I keep seeing comments to the effect that "Major Hasan remains jailed. The military doesn't have a bail system." While these statements are true, they give the impression that all military accuseds (defendants) are placed in confinement, pending the resolution of their cases.

As military justice practitioners know, it is rare to see an accused placed into pretrial confinement. In fact, you usually only see pretrial restraint of this nature in cases involving a significant level of violence or the threat that the accused will run before sentencing. The standard to keep someone in pretrial confinement requires a neutral and detached officer to find probable cause to believe a crime under the Uniform Code of Military Justice has been committed, the accused committed the crime, and no lesser forms of restraint are adequate to prevent the accused from going AWOL or committing serious misconduct. Because the military has a variety of other means of "keeping an eye on" accuseds before trial, most accuseds remain free, pending the outcomes of their courts-martial.

Tuesday, October 19, 2010

Recruiters told to accept gay applicants

The military is complying with a court ruling that held the ban on gay recruits to be unconstitutional. A week ago a federal judge in California rejected the government’s latest effort to halt her order telling the military to stop enforcing the "don't ask, don't tell" law. The Defense Department said it would comply with the order and told recruiters to accept openly gay recruits for the first time in the nation’s history. It is expected that the Justice Department will appeal the court's ruling.
For the full store in the Army Times, click here.

Another Soldier in Trouble for Death in Afghanistan

On the heels of last week's news that a Stryker Brigade member's case has been referred to a general court-martial for the murders of Afghan civilians, the Army Times has breaking details of a soldier being held for the death of a detainee in Kandahar.
H/T to Phil Cave for verifying that the Morlock case was referred as a non-capital case.

Monday, October 18, 2010

Ft. Hood Shooting Article 32 Hearing Updates

Nearly 3 dozen witnesses have testified already in the historic Article 32 hearing regarding the Ft. Hood shooting from last fall. Survivors have given voice to the victims who spoke their last words that fateful November day, often in heart-wrenching detail. A common theme running through the testimony is one of first believing the tragedy must have been a training exercise, then watching the gunman pump bullets into other individuals even as he turned to shoot the witnesses multiple times. In many cases, the witnesses have recounted that they didn't realize the extent of their own injuries as they tried to help the injured around them. A number of the witnesses have testified from Afghanistan, where Major Hasan was scheduled to deploy. A peculiar point came during Friday's testimony when one soldier described taping part of the rampage on his cell phone before he was instructed to delete the video evidence. Although disturbing for the lack of awareness that allegedly prompted the tape's erasure, it will likely have no effect on the investigating officer's recommendation to the convening authority.

The hearing is in its second week, and is scheduled to last for the remainder of this month. Later this week, we plan to have updates from a noted retired Army JAG (LTC Geoffrey Corn, now a professor at South Texas College of Law) who will attend the hearing for NIMJ.

Canadian Colonel Pleads Guilty

Col. David Russell Williams of the Canadian Forces has pleaded guilty to a variety of charges.

Friday, October 15, 2010

Gay ban newly defended

The federal government asked a federal judge in California to act swiftly to put on hold her ruling striking down the Pentagon’s anti-gay “don’t ask/don’t tell” policy. If the judge does not do so by Monday, the government will ask a Circuit Court to delay it.

Saying it does not favor a continued ban on gays serving openly in the U.S. military, the Obama Administration nevertheless said it would defend it for the time being, and moved on Thursday evening to get a federal judge to put on hold her ruling striking down the “don’t ask/don’t tell” policy. The issues are so urgent and grave, the Justice Department told the judge, she should act on the request by next Monday.

The flurry of filings in the District Court in Riverside, CA, included an emergency stay application here, a legal memorandum supporting it here, sworn staements by a Pentagon official and a government lawyer, a proposed stay order here, and a formal notice of appeal to the Ninth Circuit Court.

To read the full article, click here.

Third Day of Testimony Begins at Fort Hood Hearing

Fox News reports:

FORT HOOD, Texas – A soldier says he shot cell phone video during last year's Fort Hood deadly rampage but that an officer ordered him to delete the footage.

Under cross examination Friday, Pfc. Lance Aviles has told a military court that he deleted the two videos at the direction of his NCO on the same day as the shooting, Nov. 5.

Friday is the third full day of testimony at the Article 32 hearing to decide if Maj. Nidal Hasan, the 40-year-old American-born Muslim charged with 13 counts of premeditated murder and 32 counts of attempted premeditated murder at Fort Hood, should stand trial.

Witnesses have already described how they saw Hasan open fire, shoot rapidly and reload at least one laser-sighted handgun in a medical processing center at the Texas Army post.

Thursday, October 14, 2010

DoD Guidance on DADT Ruling

Just received this press release from DoD regarding homosexual conduct investigations. I'm fairly certain the release meant to say "Judge Advocates General," rather than "staff judge advocate generals."

Department Abiding by 'Don't Ask, Don't Tell' Injunction

By Jim Garamone American Forces Press Service

WASHINGTON, Oct. 14, 2010 - Pending an appeal, the military services have halted discharges under the "Don't Ask, Don't Tell" law, DOD officials said today.

Judge Virginia Phillips of the U.S. Central District of California ordered the halt to discharge investigations. Phillips found the Don't Ask, Don't Tell statute unconstitutional in a Sept. 9 ruling. On Oct. 12, she issued an injunction ordering the Defense Department worldwide to halt discharges and investigations.

"Earlier today, the staff judge advocate generals from the military services, in consultation with the Office of the Secretary of Defense Office of General Counsel, sent to their service staff judge advocate counterparts in the field an e-mail informing them of the ruling by Judge Virginia Phillips of the Central District of California, issuing an injunction barring the enforcement or application of 10 United States Code 654, commonly known as the 'Don't Ask, Don't Tell' statute," Pentagon spokesman Marine Col. Dave Lapan said in a written statement.
"The e-mail noted that the U.S. government is contemplating whether to appeal and to seek a stay of the injunction," Lapan said.

"The Department of Defense will of course obey the law, and the e-mail noted that, in the meantime, the department will abide by the terms in the court's ruling, effective as of the time and date of the ruling," he said.

Khadr to Plead?

First we saw a piece from the "Grand Dame" of GTMO (not sure she'd like to be called that), the Miami Herald's Carol Rosenberg, with word that a plea deal may again be in the works for Omar Khadr, the youngest of the detainees at Guantanamo. Then we saw this from Human Rights First and got a notice from the Office of Military Commissions that Khadr's trial date has slipped to October 25. Looks like the Canadian government and the US government are working out a plan to close the chapter on Guantanamo housing detainees who were minors at the time of their alleged offenses.

Witnesses Testify about Terror at Ft. Hood Facility During Pretrial Hearing

After the investigating officer appointed to conduct the Article 32 investigation into the Ft. Hood shooting denied the defense motion to delay the hearing again, the injured from the massacre began testifying about their wounding and survival on that day of terror nearly one year ago.

The first to testify was a 20-year Army veteran who described looking into the eyes of the shooter just before bullets ripped through him. A physically imposing man, Sgt Alonzo Lunsford stood to his full height as he identified the accused, Army Major (Dr.) Nidal Hasan, as the perpetrator.

For more details of yesterday's testimony, including from a victim who dialed 911 and another witness whom Hasan inexplicably prompted to leave the area just before the blood began to flow, click here.

Don't Ask, Don't Tell Ruling Leaves DoD Without Clear Guidance

A civilian judge's injunction earlier this week in the case brought by the Log Cabin Republicans, purporting to stop the worldwide enforcement of the law preventing individuals who participate in homosexual conduct from serving in the military has caused a great deal of uncertainty within the military. The so-called "Don't Ask, Don't Tell" law is still on the books, and the court ruling comes from a district judge in the Ninth Circuit, rather than the United States Supreme Court. There is already one case in which a court has ordered the reinstatement of an Air Force nurse, Major Margaret Witt, who was discharged under this policy, although I'm not sure whether the reinstatement has actually occurred at this point.

The Defense Department has yet to finish its year-long study of how best to implement a repeal of this policy, meaning that there are no guidelines currently in place for dealing with the fallout of the judge's ruling. Will the government appeal a decision that strikes down a policy the Administration wants repealed? Will homosexual acts investigations and discharges in progress be halted? Will those previously discharged under this law be reinstated, if they request it? If so, how will the break in service affect their future military careers? Answers to all these questions remain to be seen.

For more analysis, here are several points of view to peruse.

Wednesday, October 13, 2010

ABA and GWU Law Sponsor Career Fair

The ABA Standing Committee on Law and National Security and George Washington University School of Law National Security Law Association are proud to present the 2010 National Security Law Career Fair.

Monday, October 18, 2010, from 1-5 PM

CAREER PANEL from 1:00 – 2:00 p.m.

The George Washington University, MARVIN CENTER, Grand Ballroom

800 21st Street, NW, 3rd Floor, Washington, DC

First Witness Testifies at Ft. Hood Hearing

Just in from CNN:

October 13, 2010 11:47 a.m. EDT

Fort Hood, Texas (CNN) -- The first witness in the Fort Hood massacre hearing gave a chilling account Wednesday of how he and others were shot last November.

Sgt. Alonzo Lunsford, speaking on the second day of the Article 32 hearing, said Army psychiatrist Maj. Nidal Hasan pulled a weapon from underneath his uniform and began firing.

Hasan is charged with the murder of 13 people at Fort Hood on November 5 and the wounding of 32 others.

"I noticed the weapon he was firing had an infrared sight, like a laser sight on the weapon," Lunsford said. "He was aiming at the soldiers."

Banging on the desk with his fist, Lunsford tried to describe the rate of firing from Hasan's weapon.

"Rate of fire was like this," he said with a steady knocking sound. "Steady rate of fire."

Lunsford told how one person tried to hit Hasan with a chair just before he was shot.

He said he had tried to escape, but he and Hasan's eyes locked as he tried to run. "He discharged his weapon. ... I got shot in the head," Lunsford said.

After he fell to the ground, Lunsford said, he continued to observe the firing. He later managed to escape the building.

At the prosecutor's request, Lunsford stood up, pointed to Hasan -- who had been brought into the courtroom in a wheelchair -- and identified him as the person he saw shooting. Lunsford said he had met Hasan the month before the shootings at a base medical center.

The dramatic testimony followed a stop-and-start beginning to the evidentiary hearing, known as an Article 32 hearing. On Tuesday the presiding officer, Col. James Pohl, allowed the proceedings to run only minutes before calling a recess.

The defense had tried to have the hearing delayed until November 8, but Pohl pushed forward Wednesday.

The defense team submitted a request for information on a variety of federal investigations on the shootings that so far have not been made public.

The investigations by various branches of the federal government, including the Department of Defense, were looking into what was known of Hasan before last year, what contact he had with Islamic radicals overseas and how and why he was evaluated, promoted and transferred from Walter Reed Army Medical Center in Washington to Fort Hood. Army prosecutors said some of that information will be made available to the defense team in coming weeks.

A few journalists were selected by lottery to sit inside the courtroom in a one-story court building at Fort Hood, the largest Army base in the United States. Other journalists, in a temporary press center in a building 200 yards away on the central Texas base, are allowed to watch a video feed from a camera showing only the presiding officer. There is no other view of the courtroom.

Defense Motion to Delay Hearing Denied in Hasan Case

This just in from Reuters:

Wed Oct 13, 2010 11:21am EDT
SAN ANTONIO (Reuters) - A military board on Wednesday denied a request by a Muslim Army major charged in last year's killing rampage at Fort Hood to delay a tribunal until November.

Major Nidal Malik Hasan, is charged in a shooting spree at the Texas Army base's soldier processing center on November 5, 2009, that killed 13 people and wounded 32 others.
Col. James Pohl, the presiding officer at Hasan's hearing, denied a request from Hasan's lawyers to delay the Article 32 evidentiary hearing to determine if a military court-martial is warranted until November 8.

Legal experts expect the case to proceed and Hasan, a 40-year-old Army psychiatrist, could face the death penalty. Pohl has said he will call as witnesses the 32 people wounded during the shooting. The proceeding, which is open to the media, could stretch over a month.

Fort Hood is the world's largest military facility a major deployment point for the conflicts in Afghanistan and Iraq.
(Reporting by Jim Forsyth in San Antonio, writing by Chris Baltimore; Editing by Doina Chiacu)

Tuesday, October 12, 2010

Let's Compare Apples to Apples!

As we await word whether tomorrow will bring another delay in the Ft. Hood shooting pretrial hearing, South Texas College of Law Professor Geoff Corn, a retired Army JAG who serves on NIMJ's Board of Advisors, shares his observations of the often-compared Article 32 hearing and the civilian grand jury proceeding, making the persuasive argument there is actually a better analogy:

For as long as I can remember, military legal experts have analogized the Article 32 investigation to a Grand Jury. This is all over the news today as the MAJ Hasan 32 kicks off. Why do we continue to make this false analogy? From my perspective, the only real similarity is that technically both the Grand Jury and the Article 32 hearing are investigations. However, beyond this, I believe the much more appropriate analogy is to a civilian preliminary hearing.
A prelim, like an Article 32, is an adversarial proceeding where the accused is represented by counsel. Like the 32, there is one decision-maker who determines whether the evidence establishes probable cause to continue the process towards trial. Of course, unlike the 32 the prelim does not result in a mere recommendation, but as a practical matter both the investigating officer and a judge at a prelim are performing the same function.

A prelim and a 32 share other similarities that are not shared by a 32 and a Grand Jury. They are both open proceedings; they are both adversarial; they both result preservation of testimony that can be used at trial consistently with the Confrontation Clause; they both serve a secondary purpose of discovery; they both include a right to counsel for the accused; and perhaps most importantly, they both involve an accused. A Grand Jury does not investigate an accused – it investigates a target. Finally, a Grand Jury can return an indictment for anyone (not merely the target). A prelim, like a 32, has a distinctly limited function – assess the evidence in support of the charge against the accused.

It is true, of course, that a 32 is required before any case can be referred to a general court-martial, whereas there is no requirement to conduct a prelim if the accused has already been indicted. But I think this is a minor deviation, and does not justify the continued analogy to the Grand Jury.

So, with the 32 front and center in the public eye this week, I propose we start comparing apples to apples.

Happy birthday, Navy!

Looking good for 235 years old!

Friday, October 8, 2010

Analysis of Air Force Court Rule Changes

After reviewing the AFCCA rule changes that go into effect on Monday, there don't appear to be many major changes. In fact, a number of the changes are internal--new title for the chief judge, designation and seniority of judges, who reports to whom, more court staff roles defined and some moved from one position to another, clarification on publication of cases, etc. Other changes are simply stylistic (italicizing Amicus Curiae and other Latin terms and updating the change from Air Force Legal Services Agency to Air Force Legal Operations Agency and updating the name of the base on which AFCCA sits, for example). Other changes aren't really changes at all; they just move a paragraph from one section to another.

One item that struck me was that the court's hours are 1/2 hour shorter, and they are no longer listed using "military time." Interesting switch.

Rule 1.9 sets out the procedures for cases involving contraband, where the old rule was primarily concerned with classified information. Rule 5 has changed quite a bit with a section on electronic filing and the different filing deadlines, depending whether documents are filed electronically or on paper. Not surprisingly, Rule 15.1(e) on service of pleadings has been updated, as well, and counsel will want to review Rule 16.1 for new requirements for filing pleadings in cases with oral argument.

Another noticeable difference is that the period for attorneys not members of AFCCA's bar to apply for court membership or move to appear pro hac vice (Rule 5.8) has been shortened. For other rule changes related to admission to the court through the Judge Advocate Staff Officer Course and honorary membership, see Rule 8. Notice of Appearance for Counsel in Rule 13 has several new sections.

The disciplinary disclosures have been tightened (perhaps due to a certain former O-6?) in the new Rule 9. Where the old rule mentioned "promptly" reporting disciplinary measures, now the notification must occur "within 10 business days." On the other hand, motions for the first enlargement of time now must come within 175 days from the receipt of the record of trial, versus the 90 days previously given. However, the first request for an enlargement has been reduced from 60 to 30 days as the usual period of enlargement. Defense counsel, in particular, will want to read Rule 24.1(b)(3) carefully regarding the contents of such requests.

The guidelines for Motions under Rule 23 are much more specifically tailored, and Rule 15 on Assignments of Error and Briefs got shortened. Appellate counsel will welcome the change to Rule 15.1 regarding briefing Grostefon or "personally raised" issues. Counsel are no longer required to brief such issues, unless the Court requires them to do so. Motions to Reconsider got some revamping in Rule 19. The Appendices add samples for Briefs Submitted on Merits and Oppositions to Motions. Rule 20 on Petitions for Extraordinary Relief is redone and corrects an error from the earlier version of the rules at 20.1(1).

The rule regarding Article 62 appeals has several new sections setting out more specifically what must be included in government appeals.

There are also new rules on the use of media in the courtroom (Rules 16.2 and 27).

Happy reading!

Thursday, October 7, 2010

New Air Force Court Rules Next Week

Courtesy of caaflog, we learned that new rules for the Air Force Court of Criminal Appeals (AFCCA) go into effect next Monday.
For those who need some light reading over the upcoming holiday (for some) weekend, AFCCA's website is having some problems right now. (No, I would not want to be the webmaster there, as techical issues over which the webmaster likely has no control seem to plague that site.) While the webpage issues get sorted out, here are the new rules and the old rules.
We haven't had the chance to review all the changes yet, but suffice to say that there are quite a few. The new rules are significantly longer than the old ones, and a quick comparison of the Table of Rules highlights a few deletions , but mostly added subparts of rules. We'll provide more in-depth analysis later.

Tuesday, October 5, 2010


You can now watch a webcast of NIMJ's recent event, "An Inside Look at Guantanamo Bay and Military Commissions." Charlie Fowler and Mike Orlando, NIMJ student interns, recently made trips to GTMO to observe hearings in two military commissions. They discussed their observations and took questions from the audience. The webcast can be viewed here.

Monday, October 4, 2010

Military Justice Gazette

The National Institute of Military Justice is pleased to present the rebooted Military Justice Gazette. NIMJ will publish the Military Justice Gazette quarterly. The Gazette will provide news and information on military justice, military commissions, and NIMJ. You can find the most recent edition here.

CAAF Judge to discuss 1st Amendment at WCL

Judge Baker, U.S. Court of Appeals for the Armed Forces, will be joining Judge Ambro, U.S. Court of Appeals for the Third Circuit and Professor Ron Collins on a panel called "Collins on Holmes: A New Look at the Father of the Modern First Amendment." Professor Collins recently edited a new anthology of Holmes' free speech opinions, books, articles and other writings that will be the focus of the discussion. The event takes place October 5, 2010 at 4:00 pm-6:00 pm in Room 603 at American University Washington College of Law, 4801 Mass Ave., NW. To register, go here.

Saturday, October 2, 2010

CAAF Courthouse Turns 100 in Style

Yesterday morning brought notable jurists, both civilian and military, and a host of current and former TJAGs to 450 E Street NW to mark the 100th anniversary of the first building in DC dedicated as a courthouse. For the past century, the court has housed the DC Circuit and the Court of Appeals for the Armed Forces and their respective predecessors.

Chief Judge Andrew Effron opened the ceremony, during which US Supreme Court Chief Justice John Roberts (before departing for the formal swearing-in of new Associate Justice Elena Kagan) and Chief Judge David Sentelle of the DC Circuit assisted in unveiling a plaque commemorating the building's history.

As the chair of the Centennial Committee, Judge Scott Stucky presented a history of the building which houses a truly beautiful courtroom that evokes an earlier era in Washington. He began by answering a question that had occurred to me: Why celebrate a building? After pointing out that media headlines often lead with headlines such as "Pentagon Plans New Initiatives" and "White House Issues New Executive Orders," he aptly made the point that buildings in our nation's capital become synonymous with the institutions housed there.

Professor Steven Goldblatt, chair of CAAF's Rules Advisory Committee, noted in his remarks to the full courtroom assembled for the occasion that both courts arrived at the building with much less stature than they came to enjoy over the course of time. Of course, today the DC Circuit is widely recognized as the second-most powerful court in the nation, after the Supreme Court itself. Professor Goldblatt reminded the crowd of the historical military legacy of unlawful command influence and uneven discipline that preceded the enactment of the Uniform Code of Military Justice. The creation of the UCMJ and the court composed of civilians that evolved into CAAF occurred only shortly before the court moved into 450 E Street. Over the years, having civilian control of the military judiciary and adding access (albeit, limited) to the Supreme Court both give military justice greater credibility. As examples of military cases worth note, he mentioned NMCMR v. Carlucci and Cook v. Orser.

A recurring theme throughout the presentations echoed the twin goals of fair and efficient administration of justice, which NIMJ wholeheartedly endorses.