Tuesday, September 28, 2010

LTC Lakin Court-Martial Update--Judge Denies Defense Motions

One of our 3L student interns who is also an Army veteran made the trek up I-295 today to watch the latest hearing in the strange case of LTC Terrence Lakin, the Army doctor who refused to obey various orders related to a deployment to Afghanistan.

At today's court-martial session, the defense and trial counsel argued a number of motions. The defense first argued that the military judge should abate the court-martial until the Army Court of Criminal Appeals rules on a writ petition the defense inexplicably ("for reasons I can't get into right now," according to a defense counsel) filed just yesterday, in response to the military judge's ruling on September 2. The defense also attempted to convince the military judge that several prospective witnesses who were the subject of prosecution motions in limine were relevant to the defense case. These witnesses included former presidential candidate Alan Keyes and a retired Air Force general. The defense sought to qualify these gentlemen as experts in the areas of constitutional history and military training regarding the chain of command and obedience to orders, respectively.

The trial counsel argued that bringing evidence of motivation for refusal to follow the orders was irrelevant and should be excluded, citing a previous anthrax shot refusal case in which the military judge did just that. (I'm not sure which case it was, but the case of another military doctor--Air Force Captain John Buck--comes to mind.)

The military judge responded by determining that the orders (Specifications 1-3 of Charge II) given LTC Lakin were lawful. She continued by taking judicial notice of an Army regulation regarding orders and ruling that the witnesses who were the subject of the government motion in limine were precluded from testifying as experts, although they could end up testifying in sentencing if the case proceeds that far. Furthermore, the military judge granted the prosecution motions to prevent the defense from raising irrelevant issues regarding President Obama's eligibility to serve as the commander-in-chief and LTC Lakin's motivation for disobeying the deployment orders during the findings phase of the trial. Again, the motivation might become relevant in sentencing.

Hearing this, the civilian defense counsel remarked that this gutted the defense case, and he had to put on some sort of defense. Apparently, LTC Lakin is chomping at the bit to testify in his own defense, so that might be the sum total of the defense case after today's rulings.

The court-martial is set to resume at Ft. Meade on November 4. Stay tuned for more on this saga.

h/t to Charlie Fowler, CAAFlog, and Phil Cave for today's reporting and the previous commentary on this case.

Soldier in Pre-trial Confinement in Iraq for Deaths of Fellow Soldiers

The Washington Post and other news outlets are reporting that several US soldiers were involved in an argument at a military base in Fallujah last week that ended with one soldier pulling a gun on the others. Two soldiers died and one was wounded. Spec. Neftaly Platero is being held in pretrial confinement for the deaths of Spec. John Carrillo Jr. and Pfc. Gebrah P. Noonan while the investigation unfolds.

Monday, September 27, 2010

Australian Military Members Face Charges for Afghan Deaths

It appears that certain members of a US Army Stryker unit accused of killing Afghan civilians are not the only coalition members in the news because they are facing charges for deaths of civilians in Afghanistan. Australian special forces members have been charged with killing 5 children during a raid in 2009. They currently face military prosecutions related to the deaths.

Sunday, September 26, 2010

Retired Marine judge advocate profiled in October 2010 article

Military lawyering is increasingly in the news. Here's a fine article from the Lake Highlands [Texas] Advocate about retired Marine judge advocate Colby Vokey.

Wednesday, September 22, 2010

Guantanamo Commission Observer's Report for Latest Noor Hearing

This week we sent NIMJ volunteer attorney Allen Dickerson as our observer at the latest military commission hearing for Noor Uthman Mohammed. Here are his observations:

Pre-trial proceedings in the Noor Uthman Muhammed case were expected to last most of this week. Instead, six motions were heard in a single morning. Some of these were straightforward. For instance, the military judge, having responded to voir dire from the defense, inquired as to whether there were any challenges to her presiding over the case. There were none, and the matter was quickly settled.

But two issues were particularly hard-fought. The first was a motion to dismiss the case on jurisidictional grounds, as the Military Commissions Act, in the view of the defense, is unconstitutional. The second was a motion for defense access to the government’s witnesses, specifically FBI agents stationed in the United States, and a related motion to exclude their testimony if no access was granted.

The motion to dismiss alleged that the Military Commissions Act (MCA) violates the equal protection clause of the Constitution, as the commissions may only try “alien unprivileged enemy belligerents.” The defense’s papers are available on the Office of Military Commissions website, at http://www.defense.gov/news/commissionsNoor.html, but the hearing partially turned on questions of historical practice. The defense made the interesting point that the U.S. has accused at least one American before a military commission, a co-conspirator of Nazi saboteurs during World War II. They also noted that, from their research, this practice contrasted with that of our enemies: during the war, Germany and Japan limited their commissions to the trial of aliens. They also pointed to a long line of cases holding that aliens may not be accorded lesser protections than citizens in the courts of the United States.

The government countered with a distinction. Historical practice and legal decisions do show, in their view, a consistent belief that aliens must be provided with the same protections as citizens. But this is true only when those aliens have a “voluntary connection” to the United States. Put colloquially, those who voluntarily join the U.S. community, as resident aliens or otherwise, are entitled to the full protection of our laws. But those whose only connection to the United States is having attacked her forces on a foreign battlefield do not. The government largely relied on a 1950 case from the United States Supreme Court, Johnson v. Eisentrager, holding that Germans captured in China and tried before a military commission were not entitled to the protections of the Fifth Amendment.

Similar motions have been brought and lost in earlier commission proceedings before different judges. But an independent decision will be reached this week for Noor. The defense noted they would bring a further motion to dismiss, arguing that the clause of the Constitution allowing Congress to “define and punish offenses against the law of nations” could not serve as a legal basis for the MCA. The brief sketch of their argument suggested that they do not believe the Congress has authority to “define” violations of the law of war in a way that conflict with customary international law, and elements of the MCA that do so are invalid.

The second major issue at this week’s hearing was one of access. The government intends to call certain FBI agents as witnesses at a jurisdictional hearing, scheduled to begin November 9. The defense has demanded the right to interview those agents before that hearing.

The defense admitted that the prosecution was not blocking their access to the agents, but rather that their requests were being ignored by the FBI itself. An interesting scuffle broke out over whether the defense was entitled to speak with the agents at all prior to cross-examination. The practice in federal court is that an individual agent may choose to speak with the defense, or not do so, as he or she prefers. But in military practice, investigative agents are routinely made available to the defense before trial, although there is no rule specifically requiring this. Pre-hearing access, then, is an interesting case where the defendant enjoys greater protections under the military system than he would in a civilian court. In short, the defense appears to pick-and-choose between the civilian and military systems, depending on the issue, in an attempt to gain an advantage for Noor.

In this case, they were partially successful. The military judge noted that, in her court-martial practice, NCIS agents (the criminal investigators employed by the Navy) are regularly made available to defense counsel prior to a hearing. She also noted that she doubted her power to force an FBI agent to do so. Her solution was to require the FBI to meet with the defense when all parties arrive back in Cuba on November 8 for the next hearing, but prior to the November 9 hearing itself.

Two observations: First, the commissions’ military judges do not enjoy the substantial contempt powers belonging to judges in the Article III courts. Indeed, their inability to directly command important witnesses, including agents of the United States, poses troubling questions about their ability to enforce fair trial procedures. I spoke with a prosecuting attorney after the hearing who noted that while, this year’s Senate version of the defense appropriations bill would give substantial contempt powers to military judges in the court-martial system, the proposal explicitly excluded judges of the military commissions. If this legislation passes, the exact same judge would have greater contempt powers when presiding over a court-martial in Norfolk than she would as military judge for a commission proceeding at Guantanamo Bay.
Second, a related discussion concerned the appropriate sanction if the defense is not given access to the agents. Defense attorneys argued that the FBI testimony should be excluded, while the prosecution suggested that a continuance to allow for the interviews and defense preparation would be appropriate.

The defense is in a tight position. On one hand, Noor has already been confined for over eight years, and further delays to his trial are, clearly, unwelcome. On the other, proceeding without interviewing government witnesses may hobble their performance at the jurisdictional hearing. This tradeoff will likely be an ongoing theme. Exclusion of evidence is a very strong sanction, and dangerous, as it tends to distort the truth-finding function of a court. But it is also effective. And the alternative is delays to allow for compliance with the judge’s orders, adding further time to Noor’s incarceration.

The next step in this case will be a jurisdictional hearing, scheduled to begin November 9. The government will provide a truncated version of their entire case against Noor. The judge will be asked to decide whether Noor is, in fact, an alien unprivileged enemy belligerent. This is a key hearing. The judge’s determination will be made under a preponderance-of-the-evidence standard, instead of the more familiar and much more rigorous beyond-a-reasonable-doubt standard. But without such a finding, the commission will not have jurisdiction to try Noor.

On a personal note, while today’s hearings were largely technical in nature, there were only two other NGO representatives in attendance, along with less than ten members of the press. It is impossible not to be reminded of the great distance, physical and informational, that separates these proceedings from the people and government on whose behalf they are conducted.

Blackwater Killings and the Current State of Accountability for Private Contractors Overseas

Human Rights First marked the third anniversary of the killings of over a dozen civilians in Baghdad's Nisoor Square by private contractors from Blackwater with a new report on accountability and oversight gaps concerning private contractors working in war zones overseas.

From GTMO to State Supreme Court

Congrats to Colonel Steven David, former Chief Defense Counsel for the military commissions at Guantanamo Bay, on his appointment to the Indiana Supreme Court!

Saturday, September 18, 2010

Happy birthday, USAF!

My grandfather's Army Air Corps became the United States Air Force on September 18, 1947. Happy birthday to all my blue-suiter friends defending our nation today.

Friday, September 17, 2010

Today is Department of Defense's National POW/MIA Recognition Day

As we prepare for another weekend, let us take a moment to remember the sacrifices of those who served our nation as POWs and those MIAs who have yet to return from the wars they fought.

Ft. Hood Pretrial Hearing to Remain Open to Public

Not surprisingly, Colonel Pohl, the investigating officer assigned to the Article 32 hearing in Major Nidal Hasan's case rejected a defense request to close the hearing to the public. The hearing is scheduled for next month at Ft. Hood.

Thursday, September 16, 2010

Hasan's Defense Counsel Asks for Closed Article 32 Hearing

The Army Times is reporting a new wrinkle in the Ft. Hood shooting case. Major Hasan's civilian defense counsel has requested that the military judge presiding as the Investigating Officer in the Article 32 hearing close the hearing in order to avoid tainting the potential pool of members who would sit as the jury for this case, should it be referred to trial (a virtual certainty).

This is unusual, as Article 32 hearings, unlike the civilian grand jury proceedings to which they are often compared, are generally open to the public. It will be interesting to see how Judge Pohl rules on this, as it is rare that the defense asks for a closed hearing. The constitutional presumption is for the 32 investigation to be open, and the press has separate standing, independent from that of the accused, in courts-martial to challenge any decision to close such a proceeding. See ABC, Inc. v. Powell, 47 M.J. 363 (C.A.A.F. 1997). Various media outlets will doubtless challenge any order to close this hearing. My bet is that Judge Pohl rejects the defense's request and keeps the Article 32 investigation open.

Friday, September 10, 2010

DOD Releases Revised Media Ground Rules for Guantanamo Bay

The Department of Defense announced today the release of revised Media Ground Rules for Guantanamo Bay, Cuba. The document is available here. Journalists and photographers reporting from Guantanamo must abide by these rules.

Wednesday, September 8, 2010

More on Today's CAAF Training

Here are the handouts from the CAAF training this morning. These include guides to filing a joint appendix, filing deadlines, and oral argument; rule change announcements; an application for admission to the Court's bar; and other helpful information about electronic filing. (Please note one correction: oral arguments usually start at 0930 hours.)

Training Highlights New CAAF Rules

US Court of Appeals for the Armed Forces Chief Judge Effron opened this morning's training session for military appellate counsel and then turned the floor over to Clerk of Court Bill DeCicco and Director of the Central Legal Staff Dave Anderson. With a number of rules changes implemented at the Court over the summer and the regular influx of new counsel after the summer rotations, there was plenty to discuss.

Mr. DeCicco began by inviting us to join in celebrating the 100th birthday of the CAAF courthouse, former home of the DC Circuit, on October 1. Former and current jurists of the DC Circuit, including SCOTUS Chief Justice Roberts and Chief Judge Sentelle, are expected to make appearances at the festivities.

As for the rules changes, a big (and quite welcome, in my opinion) change is the new system in which nearly all CAAF pleadings are eligible for electronic filing. Be sure to redact privacy/sensitive information from such filings, as final briefs will be placed on CAAF's webpage, starting this term. Other changes make the already small needle's eye to SCOTUS more microscopic for military appeals. While CAAF judges previously granted review of all appeals in which the appellant was serving 30 years or more in confinement, that is no longer the policy. Furthermore, for cases that come back to CAAF after a remand to the CCAs, CAAF will no longer automatically grant review of the case.

Streamlining the appellate process was a recurring theme. CAAF has also instituted a new policy for dealing with cases in which a party seeks to have additional facts not previously established recognized. Brief sizes have shrunk to match SCOTUS lengths, and Grostefon (personally raised) filings are now limited in size, as well. (Note to counsel--don't ask for leave to file an extra-long brief unless you have a really good reason.)

The training was peppered with interesting statistics about the court's caseload. I was surprised to learn that 10% of CAAF's cases involve civilian counsel. There are 8-10 TJAG certifications per year, and 25-30 writs that make their way to CAAF each term.

We look forward to CAAF's new website, which will be unveiled soon and will be modeled on SCOTUS' site.

More to follow, including copies of the handouts...

Saturday, September 4, 2010

Access to Court-Martial Rulings

Phil Cave has asked, on his Court-Martial Trial Practice Blog, that someone--the accused, civilian defense counsel, or trial counsel--make available the findings and conclusions the military judge read from the bench the other day in United States v. Lakin. This reflects a longstanding problem that the Army and other services ought to fix. (It has also come up in the military commissions.) Bench rulings that have been reduced to writing (as well as the underlying motion practice documents) ought to be made available as a matter of routine, in real time, instead of being treated merely as FOIA documents. In this digital era, it's easy to scan and upload documents so others may see them. There may be no standing courts-martial, but there is a standing trial judiciary. Our Canadian friends post at least some trial court rulings, such as these. Can't we do as well or better, especially in cases that have attracted public, media and bar interest?

Friday, September 3, 2010

MCM Changes Found

Courtesy of CAAFlog.com, here are the recent changes to the Manual for Courts-Martial that President Obama signed.
Many of the changes deal with courts-martial of civilians. Notably, civilian accuseds are now subject to sentences which include fines, but civilians cannot be sentenced to forfeitures, reduction in pay grade, hard labor without confinement, or a punitive discharge.
Another change clarifies that "government property" does not always equal "military property" for purposes of Article 121, UCMJ (larceny). Specifically, items for sale in the base exchanges are not considered military property.

Wednesday, September 1, 2010

The Case of the Missing 2010 Changes to Manual for Courts-Martial

President Obama signed an Executive Order promulgating the 2010 changes to the Manual for Courts-Martial on August 31, 2010. The covering document is on the White House website, but the text of the changes is still neither there nor on the Federal Register and DoD websites as of 10:45 a.m., Sept. 2, 2010. The amendments take effect on September 30, 2010.