Tuesday, November 30, 2010
From the Army Times, officials are weighing whether to try a 20-year-old Fort Carson soldier on the charge of premeditated murder in the death of an Afghan prisoner. The defense is arguing that the soldier is taking medication for schizophrenia and isn't mentally fit to stand trial.
From the Air Force Times, the special court-martial for Master Sergeant Lisa Mashburn began Monday. The prosecution lawyers told the panel that the former assistant flight sergeant was derelict in her duties in the weeks leading to the suicide death of Airman Cory McCord on Aug. 6. This case “is about deflecting responsibility,” said Guy Womack, Mashburn’s civilian defense attorney. “Officers and senior enlisted, who as a result of a tragic event, a suicide, decided someone needs to be blamed for this.”
From the Marine Corps Times, the Drug Enforcement Agency used its emergency powers Wednesday to ban Spice and other "fake pot" products that mimic the effects of marijuana. The DEA is authorized to take emergency action to avoid "an imminent public health crisis" while research continues.
By S.S. Selvanayagam
The Court of Appeal yesterday issued notice on the three-member General Court Martial GCM) and other respondents cited in the Writ Application filed by former Army Commander Sarath Fonseka challenging the first General Court Martial verdict ordering him to be cashiered from the army. The Bench comprising Justices Rohini Marasinghe and Upali Abeyratne issued notice returnable on December 17 on the submission made by retired General Fonseka’s Counsel Romesh de Silva PC. Notice was issued on Army Commander Jagath Jayasuriya, the Court Martial panel comprising Maj. Gen. H.L. Weeratunga, Maj. Gen. A.L.R. Wijetunga, Maj. Gen. D.R.A.B. Jayatilake, Solicitor General (Rear Admiral) W.J.S. Fernando and the Attorney General.
The Defence Counsel asked that five grounds submitted by General Fonseka before Court be considered – that notices had already been issued on the respondents in respect of the writ application challenging the Court Martial proceedings against him and his continuous military custody; that he was not subject to military law. Any person who is no more in the service of the army cannot be tried before the court martial. He cannot be cashiered from the army. If he is not in the army, he cannot be charged; that even if he is subjected to army law, under the law of proportionality, the sentence to be cashiered imposed by the said Court Martial cannot stand. He could be subject to some other sentence; Are the charges traitorous/disloyal words as well as neglect to obey garrison or other orders. What is the sin? Even if it is an offence, he could not be thrown out from the Rank of General; sentence has only been confirmed but the conviction has not been confirmed by the competent authority.
Presiding Judge Ms Rohini Marasinghe said the conviction is interim and it had to be confirmed by the competent authority and that it would become valid only after it is confirmed.
Romesh de Silva PC with Riad Ameen and Eraj de Silva instructed by Paul Ratnayake Associates appeared for General Fonseka. Deputy Solicitor General Sanjay Rajaratnam with Senior State Counsel Nerin Pulle appeared for the Attorney General.
Monday, November 29, 2010
Wednesday, November 24, 2010
Tuesday, November 23, 2010
Pondering the juxtaposition of these news items, I stumbled across this piece in Salon from the week before. While it's written in the context of security measures for air travel alone, I think it highlights a larger reflection that's worth noting. What about 9/11 so fundamentally changed the US's response to terrorist acts and our principles? Was it the fact that it was committed on US soil? The Murrah building bombing in my hometown of Oklahoma City didn’t cause us to doubt the ability of our civilian federal courts to prosecute McVeigh and Nichols. Was it the mass murder of fellow Americans by foreign citizens? We saw that before over Lockerbie, but those events didn't manifest themselves in a wholesale change in our form of justice or visions of right and wrong.
Are there limits to what we're willing to sacrifice in the name of an elusive sense of safety? Food for thought during this week of Thanksgiving.
CALL FOR PAPERS: The Lieber Society, an Interest Group of the American Society of International Law, has, through its Lieber Society Military Prize, annually recognized a paper that significantly enhances the understanding and implementation of the law of war. The prize is given for exceptional writing in English by an active member of the regular or reserve armed forces, regardless of nationality.
The winner will receive a certificate confirming that he or she has won the 2011 Lieber Society Military Prize, $500.00, and a one-year membership to the American Society of International Law (ASIL). The judges may also select additional persons to receive Lieber Military Prize Certificates of Merit.
Papers for the 2011 competition must be received no later than Friday, December 31, 2010.
For more information, click here.
Friday, November 19, 2010
Reporters Without Borders condemns blogger Ahmed Hassan Basiouny’s trial by court martial, which is scheduled to take place tomorrow, and calls for the immediate withdrawal of the charges against him. He is the second blogger to face a court martial in Egypt.
Basiouny is being prosecuted for creating a Facebook page in 2009 that offered advice and information to young people thinking of enlisting in the Egyptian army.
Thursday, November 18, 2010
ABC quoted a senior administration official: "[Ghilani] was convicted by a jury of a count which carries a 20-year minimum sentence... He will very likely be sentenced to something closer to life... He will never be paroled (there is no parole in the federal system)... So, we tried a guy (who the Bush Admin tortured and then held at GTMO for 4-plus years with no end game whatsoever) in a federal court before a NY jury with full transparency and international legitimacy and -- despite all of the legacy problems of the case (i.e., evidence getting thrown out because of Bush-Admin torture, etc,) we were STILL able to convict him and INCAPACITATE him for essentially the rest of his natural life, AND there was not one -- not one -- security problem associated with the trial."
This conviction will certainly increase debate on what to do with the alleged 9/11 mastermind.
Wednesday, November 17, 2010
Tuesday, November 16, 2010
Friday, November 12, 2010
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.
Wednesday, November 10, 2010
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.
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.
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.
Tuesday, November 9, 2010
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.
Limits on defense sentencing evidence regarding torture allegations:
Mrs. Speer's testimony and Omar Khadr's unsworn statement:
The surreal nature of "justice" at GTMO:
The adjudged sentence:
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:
Copies of the diplomatic notes exchanged between the US and Canada:
Khadr's case highlights military commission deficiencies:
More on prosecuting actions that have never before been recognized as war crimes:
Khadr down, 170 still in limbo:
Tweeting from GTMO:
Wednesday, November 3, 2010
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.