Pentagon Study on "Don't Ask, Don't Tell" Released

Just released, after nearly a year of study, here is the link to the report. In addition to recommending that the current law governing homosexual policy in the military be repealed, it also recommends repealing Article 125 of the UCMJ. This was a recommendation of the original Cox Commission nearly a decade ago and in last year's second Cox Commission report.

News from Around the Services

From the Navy Times, a cruiser skipper who was fired for cruelty and mistreatment of her crew will go before a Navy board of inquiry today. Captain Holly Graf was relieved as commanding officer of the cruiser Cowpens on Jan. 13 after an inspector general’s investigation found problems with her “temperament and demeanor.” She was said to have called her subordinates “f---ing stupid,” and an “f---ing idiot,” and allegedly threw things at them.

From the Army Times, officials are weighing whether to try a 20-year-old Fort Carson soldier on the charge of premeditated murder in the death of an Afghan prisoner. The defense is arguing that the soldier is taking medication for schizophrenia and isn't mentally fit to stand trial.

From the Air Force Times, the special court-martial for Master Sergeant Lisa Mashburn began Monday. The prosecution lawyers told the panel that the former assistant flight sergeant was derelict in her duties in the weeks leading to the suicide death of Airman Cory McCord on Aug. 6. This case “is about deflecting responsibility,” said Guy Womack, Mashburn’s civilian defense attorney. “Officers and senior enlisted, who as a result of a tragic event, a suicide, decided someone needs to be blamed for this.”

From the Marine Corps Times, the Drug Enforcement Agency used its emergency powers Wednesday to ban Spice and other "fake pot" products that mimic the effects of marijuana. The DEA is authorized to take emergency action to avoid "an imminent public health crisis" while research continues.

Collateral Review of Sri Lankan General's Court-Martial

From the Nov. 30, 2010 Colombo (Sri Lanka) Daily Mirror

Court issues notice on GCM members

By S.S. Selvanayagam

The Court of Appeal yesterday issued notice on the three-member General Court Martial GCM) and other respondents cited in the Writ Application filed by former Army Commander Sarath Fonseka challenging the first General Court Martial verdict ordering him to be cashiered from the army. The Bench comprising Justices Rohini Marasinghe and Upali Abeyratne issued notice returnable on December 17 on the submission made by retired General Fonseka’s Counsel Romesh de Silva PC. Notice was issued on Army Commander Jagath Jayasuriya, the Court Martial panel comprising Maj. Gen. H.L. Weeratunga, Maj. Gen. A.L.R. Wijetunga, Maj. Gen. D.R.A.B. Jayatilake, Solicitor General (Rear Admiral) W.J.S. Fernando and the Attorney General.

The Defence Counsel asked that five grounds submitted by General Fonseka before Court be considered – that notices had already been issued on the respondents in respect of the writ application challenging the Court Martial proceedings against him and his continuous military custody; that he was not subject to military law. Any person who is no more in the service of the army cannot be tried before the court martial. He cannot be cashiered from the army. If he is not in the army, he cannot be charged; that even if he is subjected to army law, under the law of proportionality, the sentence to be cashiered imposed by the said Court Martial cannot stand. He could be subject to some other sentence; Are the charges traitorous/disloyal words as well as neglect to obey garrison or other orders. What is the sin? Even if it is an offence, he could not be thrown out from the Rank of General; sentence has only been confirmed but the conviction has not been confirmed by the competent authority.

Presiding Judge Ms Rohini Marasinghe said the conviction is interim and it had to be confirmed by the competent authority and that it would become valid only after it is confirmed.

Romesh de Silva PC with Riad Ameen and Eraj de Silva instructed by Paul Ratnayake Associates appeared for General Fonseka. Deputy Solicitor General Sanjay Rajaratnam with Senior State Counsel Nerin Pulle appeared for the Attorney General.

Army Lt in Iraq Murder Case Gets Appellate Hearings

The Army Times and News OK are reporting that one of the few officers to face court-martial for the death of a detainee in the current conflicts will get two opportunities to have his conviction reversed or his sentence reduced in the next two weeks. First Lieutenant Michael Behenna was convicted of killing an individual his unit had detained in Iraq 2 1/2 years ago.

Although Behenna's sentence has been reduced twice already, there is still quite a bit of controversy over the government's not revealing potentially exculpatory information. The evidence at issue is a government expert consultant's opinion regarding whether the forensic evidence could plausibly support Behenna's claim of self-defense. While the trial judge denied the defense motion for a new trial, the case is now getting its annual review in front of the Army Clemency and Parole Board and oral argument at the Army Court of Criminal Appeals in early December.

Behenna's parents are no strangers to law enforcement, although they are usually on the prosecution side. Mom Vicki is an Assistant US Attorney who prosecuted OKC bomber Tim McVeigh, while Scott is a retired Oklahoma State Bureau of Investigation agent who has also worked for the FBI.

Thanksgiving 2010

Despite the occasional setback, we all have much to be grateful for. NIMJ's directors, advisors and staff wish you a Happy Thanksgiving from our glass-enclosed command center high above NIMJ Plaza.

Latest News on DoD's Homosexual Conduct Policy

Yesterday the United States appealed Maj Margaret Witt's reinstatement to the Air Force Reserve, although it didn't ask for a stay of the lower court ruling while the case is pending appeal.

In related news, on the heels of the highly anticipated November 30th release of the DoD survey on the impact of repealing the so-called "Don't Ask, Don't Tell" policy, the Senate Armed Services Committee is scheduling hearings on the issue for next week. Defense Secretary Gates has asked Congress to quickly repeal the law that prohibits homosexuals from serving openly.

Next week promises to be a busy news week.

Stryker Brigade Leadership Now Under Microscope

The bad news continues to pour out of the Ramrod Five Stryker Brigade "kill team" cases. While the enlisted accuseds march through their Article 32 hearings, the officers also have reason for concern. Given a September discussion on our second-favorite military justice blog, we aren't entirely surprised to learn that there is now a high-level investigation of the Stryker Brigade leadership underway.

Air Travel and Civilian Courts

As we approach the busiest travel day of the year in the US, we've been bombarded (OK, not a good idea to use that word when talking about air travel) with news of the latest technology and security procedures employed at airports and the uproar they've caused passengers and flight crews. Having these clips interspersed with stories about the larger meaning of the Ghailani trial outcome for the rest of the GTMO detainees left little room for other "hard" news last week.

Pondering the juxtaposition of these news items, I stumbled across this piece in Salon from the week before. While it's written in the context of security measures for air travel alone, I think it highlights a larger reflection that's worth noting. What about 9/11 so fundamentally changed the US's response to terrorist acts and our principles? Was it the fact that it was committed on US soil? The Murrah building bombing in my hometown of Oklahoma City didn’t cause us to doubt the ability of our civilian federal courts to prosecute McVeigh and Nichols. Was it the mass murder of fellow Americans by foreign citizens? We saw that before over Lockerbie, but those events didn't manifest themselves in a wholesale change in our form of justice or visions of right and wrong.

Are there limits to what we're willing to sacrifice in the name of an elusive sense of safety? Food for thought during this week of Thanksgiving.

CALL FOR PAPERS: The Lieber Society, an Interest Group of the American Society of International Law, has, through its Lieber Society Military Prize, annually recognized a paper that significantly enhances the understanding and implementation of the law of war. The prize is given for exceptional writing in English by an active member of the regular or reserve armed forces, regardless of nationality.

The winner will receive a certificate confirming that he or she has won the 2011 Lieber Society Military Prize, $500.00, and a one-year membership to the American Society of International Law (ASIL). The judges may also select additional persons to receive Lieber Military Prize Certificates of Merit.

Papers for the 2011 competition must be received no later than Friday, December 31, 2010.

For more information, click here.

Chief Judge Jacobs' Barbara K. Olson Memorial Lecture to the Federalist Society

On Nov. 19, 2010, Chief Judge Dennis G. Jacobs (2d Cir.) addressed the Federalist Society on the hostility of "the legal elite" to the military. His remarks run about 30 minutes and are worth watching here. On Lawfare, University of Texas School of Law Prof. Robert Chesney comments: "His account is exceedingly pessimistic, and to my mind rather dramatically overstated. It just does not resonate with my own sense of how the military and its various institutions are perceived these days in academia and in the other circles Judge Jacobs calls out for criticism. To be sure, there are bound to be many examples of individuals and groups in all these institutions who fit the bill, but I am quite certain that there are many contrary examples. Perhaps I’m fooling myself, not appreciating how marginal my own views are in academia, but I don’t think so. Even among those individuals and institutions deeply engaged in criticizing post-9/11 national security policies–a category of legal elites that gets a lot of attention in this speech–my sense is that most have a tremendous amount of respect for the military."

The Department of Defense Law of War Manual

W. Hays Parks, Senior Associate Deputy General Counsel for International Affairs at the Department of Defense, spoke yesterday at the breakfast program for the ABA's Standing Committee on Law and National Security at the University Club. He spoke about the forthcoming DoD Law of War Manual. At over 1,000 pages, DoD has been working on the Law of War Manual for more than a decade. After a few more levels of review, it should be released in the next few months. You can hear Mr. Parks remarks here. He spoke about the process DoD followed in preparing the Law of War Manual and the history and use of manuals by the armed forces of nations dating back to America's Civil War.

Ghailani trial examination continues

The debate on how to prosecute Guantanamo detainees continues in the wake of the recent conviction of Ahmed Ghailani in federal court for his role in the 1998 Embassy bombings in Africa. NIMJ leaders have been sought by several media outlets for their opinion. You can watch Eugene Fidell, NIMJ President, debate Judge Mukasey on the NewsHour here. Diane Amann, U.C. Davis School of Law Professor and NIMJ Advisor, wrote a piece for the New York Times here.

Court-martial and "speech."

Reporters Without Borders has this interesting piece, to be viewed in the context of military personnel in the U.S. who have started Facebook, Twitter, or other social network pages.

Reporters Without Borders condemns blogger Ahmed Hassan Basiouny’s trial by court martial, which is scheduled to take place tomorrow, and calls for the immediate withdrawal of the charges against him. He is the second blogger to face a court martial in Egypt.

Basiouny is being prosecuted for creating a Facebook page in 2009 that offered advice and information to young people thinking of enlisting in the Egyptian army.

How Quickly We Forget...

As the tempest swirls around the larger implications of the Ghailani jury verdict handed down yesterday, it's appropriate to remember the reaction Hamdan's military commission verdict and sentence evoked two years ago.

It's curious that the proponents of military commissions saw Hamdan as a success because his acquittal on the more serious charges showed that the commissions were fair, yet a similar result in civilian federal court is seen as proof of the failure of that system.

Guantanamo detainee convicted in federal court

The first Guantanamo detainee to be tried in a civilian court was found guilty yesterday. The jury convicted him on one count related to the 1998 Embassy bombings in Africa. He faces twenty years to life. News of the verdict sparked increased debate about if, where, and how to prosecute Guantanamo detainees.

ABC quoted a senior administration official: "[Ghilani] was convicted by a jury of a count which carries a 20-year minimum sentence... He will very likely be sentenced to something closer to life... He will never be paroled (there is no parole in the federal system)... So, we tried a guy (who the Bush Admin tortured and then held at GTMO for 4-plus years with no end game whatsoever) in a federal court before a NY jury with full transparency and international legitimacy and -- despite all of the legacy problems of the case (i.e., evidence getting thrown out because of Bush-Admin torture, etc,) we were STILL able to convict him and INCAPACITATE him for essentially the rest of his natural life, AND there was not one -- not one -- security problem associated with the trial."

This conviction will certainly increase debate on what to do with the alleged 9/11 mastermind.

Is a Court-Martial a Court?

An interesting issue is now before the Supreme Court of Sri Lanka (left): is a court-martial a "court" for purposes of disqualifying an elected member of Parliament under Article 89/d of the Constitution. At issue is the legal effect of retired General Sarath Fonseka's conviction by court-martial. The issue was referred to the Supreme Court by the Court of Appeal. News coverage appears here.

Investigating Officer's Recommendation in Ft. Hood Case

Not that this is a surprise, but news outlets are reporting that the military judge serving as the investigating officer in the Ft. Hood case of Major Hasan recommends the case be referred to trial. While the news is vague, it's a sure bet that the recommendation is that the charges be referred to a general court-martial.

The Article 32 report will first go to the unit commander, who will undoubtedly forward the report to the general court-martial convening authority for action. It's all but certain that Major Hasan will face a general court-martial referred as a capital case when this process ends.

Commanding Officer Serves as Prosecutor in Bangladesh Rifles Mutiny Case

According to this press report, one of the cases arising from the February 26, 2009 mutiny of the 39 Rifle Battalion, Bangladesh Rifles, is being prosecuted by the unit's commanding officer.

Important Decision of Armed Forces Tribunal of India

In a landmark ruling, the Armed Forces Tribunal of India held on Oct. 19, 2010 that it may review a court-martial even if the accused has sought post-trial administrative relief from the Army chain of command. The case, Ex-Havildar Parmeshwar Ram v. Union of India & Ors, Orig. App. No. 471 of 2010, may be found under the AFT's October decisions here.

SCOTUS Declines to Enter Homosexual Conduct Policy Fray

Here is the press release from DoD on the issue.

Breaker

The Times of London reports.

The British government has rejected pleas to grant a royal pardon to Boer War soldier Harry Breaker Morant.  Earlier this year Commander James Unkles, an Australian military lawyer, and Nick Bleszynski, a Scottish-born writer, sent a petition to the Queen, calling for a review of the trials of Lieutenant Morant and his co-accused Peter Handcock and George Witton.

JURIST reports that:


A Lebanese military court on Friday convicted cleric Omar Bakri Mohammed [in absentia] of terrorism and sentenced him to life in prison.


As Bakri lives openly in Tripoli, a city in the north of Lebanon, and appears regularly on television, it is not immediately clear why he was not arrested. Bakri maintains that the charges are fabricated and has refused to turn himself in.

Veterans Day, 2010

November 11th is Veterans Day. NIMJ joins all Americans in saluting our veterans as well as those currently serving our country in uniform. (At left, Balls Bluff National Cemetery, Leesburg, Virginia.)

Military Reporters and Editors Conference

Last week, NIMJ co-sponsored the Military Reporters and Editors Conference with the Medill National Security Journalism Initiative.

Thursday evening featured Michael Hastings, of Rolling Stone magazine's recent General McChrystal interview fame. He spoke to a standing-room-only crowd of students and veteran war correspondents. I even spied a former chief defense counsel for the military commissions in the crowd. Hastings began with short, but powerful, prepared remarks and then took questions for an hour. To say the mood was explosive would be an understatement. It quickly became apparent from the tone of the questions that the students all wanted to be Hastings, while his fellow reporters would have been happier to beat up a guy that some likely saw as a young punk. It did not help matters that Hastings initially chided a woman for not doing her research and not knowing what Hastings had previously said about the McChrystal incident. It was fascinating cinema for this interloper.

Friday's events took place at American University Washington College of Law, and the big-name presenters again took center stage (with the exception of a certain NIMJ staffer on the first panel) to discuss issues that affect our nation's veterans, active servicemembers, and our nation's values. Here is a summary of the topics covered by some of the panels.

Renowned reporter and author Bob Woodward presented the luncheon keynote speech, during which he spoke of interviewing presidents and extolled the virtues of investigative journalism that isn't afraid to question things. His quote that "democracies die in darkness" stayed with me.

The challenges of the military's newly formed Cyber Command were detailed by a star panel that included former CIA Director R. James Woolsey and former Department of Homeland Security Deputy Assistant Secretary for Policy Paul Rosenzweig. Coverage is here.

You can watch Friday's program here.

A Familiar Refrain?

Reported as "breaking news" this afternoon:

The latest decision on which system will be used to try the 9/11 defendants is reportedly "close." This is similar to the timetable given 8 months ago. It isn't likely a good idea to continue hitting "refresh" on your web browser in anticipation of the news just yet.

Preview of Resumption of Major Hasan's Article 32 Hearing

The Washington Post is reporting (not surprisingly) that Major Hasan, the accused Ft. Hood shooter, will not present any evidence at the pretrial hearing when it resumes on Monday.

NIMJ's own Rick Rosen is quoted in the article.

Semper Fi!

Considering our Marine readers probably get up earlier than a certain USAF-trained individual, NIMJ is getting the jump on tomorrow's big day in wishing the United States Marine Corps a happy birthday.

Khadr Wrap-up

With the Omar Khadr military commission already fading into the pre-election background, I thought it was appropriate to highlight the parts of the trial that occurred after I left the island and to provide a number of perspectives that flowed from the case involving the youngest detainee who remains at Guantanamo Bay and one of the few who has been tried.

The writers express the frustration that seems inherent in a trip to GTMO and describe the difficulties of being the eyes and ears of the public there. This comes in addition to documenting such logical inconsistencies as the fact that we've had several thousand of our military members killed by non-uniformed individuals in Iraq and Afghanistan over the past decade, yet the only one who has faced punishment for this was a 15-year-old at the time of the killing. The natural beauty of the sky is so incongruous with life at GTMO.

The recent spate of plea deals at the military commissions also leaves a bad taste in my mouth. While I favor the military justice system incorporating the right to waive appeals as part of a plea agreement, I'm troubled that these detainees have no recourse to reverse convictions for actions that aren't recognized as war crimes. The following documents provide lots of food for thought.

Limits on defense sentencing evidence regarding torture allegations:
http://www.huffingtonpost.com/daphne-eviatar/judge-hides-evidence-of-t_b_775709.html

Mrs. Speer's testimony and Omar Khadr's unsworn statement:
http://www.thestar.com/article/882238--omar-khadr-to-widow-i-m-really-really-sorry
http://www.miamiherald.com/2010/10/29/1897342/soldiers-widow-testifies-in-omar.html

The surreal nature of "justice" at GTMO:
http://www.thestar.com/specialsections/omarkhadr/article/882941

The adjudged sentence:
http://www.latimes.com/news/nationworld/world/la-na-gitmo-khadr-20101101,0,826752.story
Although journalists requested to speak to the commission members after sentencing, it appears they have all chosen to remain anonymous and have not offered comments on the rationale behind their sentence at this time.

Contents of the plea agreement:
http://media.miamiherald.com/smedia/2010/10/31/20/pleabargain.source.prod_affiliate.56.pdf
Copies of the diplomatic notes exchanged between the US and Canada:
http://media.miamiherald.com/smedia/2010/10/31/20/dipnotes.source.prod_affiliate.56.pdf

Khadr's case highlights military commission deficiencies:
http://www.huffingtonpost.com/andrea-prasow/the-trial-that-wasnt-the_b_779310.html

More on prosecuting actions that have never before been recognized as war crimes:
http://www.guardian.co.uk/commentisfree/cifamerica/2010/nov/02/omar-khadr-al-qaida-canada

Khadr down, 170 still in limbo:
http://www.latimes.com/news/nationworld/nation/la-na-gitmo-20101103,0,1647724.story

Tweeting from GTMO:
http://www.jadaliyya.com/pages/index/280/tweeting-from-guantanamo_recording-history-140-characters-at-a-time

How Much Time Will Khadr Serve?

Although military commission prosecutors highlight the eight-year term specified in Omar Khadr’s plea agreement (now available online here), the agreement makes him eligible for transfer to Canadian custody after 1 year, at which point his actual release date will be determined by officials of that nation.

Inmate transfers to Canada from abroad are governed by a Canadian federal statute, the International Transfer of Offenders Act, which calls for treating foreign sentences exactly the same as those handed down by Canadian courts. That means an initial eligibility for “full parole” after serving one-third of the sentence. (A more limited part-time option, equivalent to U.S. work-release and called “day parole” in Canada, is possible six months before eligibility for full parole.) For Khadr one-third of eight years (96 months) is thirty-two months, or twenty months after his repatriation.

Several media accounts have suggested that Khadr could be given credit for the time he spent at Guantánamo before his trial, making him eligible for parole immediately upon repatriation, but these are mistaken. Canadian law is quite explicit that credit is only given for pre-trial confinement in the case of murder convictions resulting in life sentences.

When eligible for parole, Khadr will have to apply to the National Parole Board, an independent body set up specifically to decide applications from prisoners in federal custody. Another Canadian statute, the Corrections and Conditional Release Act sets forth the Board’s procedures and factors to be considered; while these do include the risk to the public, my sense from Canadian commentators is that the Board is unlikely to consider Khadr a serious threat. But, even in the event that he is denied parole (and he can reapply periodically), so long as he does not engage in serious misconduct while imprisoned, Canadian law provides for the “statutory release” of inmates after serving two-thirds of their sentence. So realistically, Khadr’s eight year term is no more than a 64 month sentence.

There is one remote additional possibility - IF Khadr’s conviction for “murder in violation of the law of war” was held to be the direct equivalent of Canada’s “first degree murder,” then the fact that Khadr only received an 8 year term for this offence would be treated as a “youth sentence” under Canadian law, and youthful offenders can be awarded an early release by a juvenile court on the recommendation of the appropriate provincial official. But a killing in the flow of a battle seems extremely unlikely to qualify as first degree murder, and Canadian law provides that a sentence in excess of seven years for the equivalent of second degree murder is to be treated as an adult sentence. A noted Canadian legal scholar suggested to me that this latter rule may explain the eight-year term specified in the plea bargain; by awarding an “adult sentence” it would ensure that Khadr remained outside the authority of any Canadian juvenile authority.

National Institute of Military Justice Welcomes 2010 Military Reporters and Editors Conference

NIMJ is proud to co-sponsor the 2010 Military Reporters & Editors Conference on Nov. 4-5. This year’s event is titled “Fighting on All Fronts, Covering Combat and Its Aftermath.” The Nov. 5 events will take place at American University Washington College of Law. The law school issued this press release about the event.