Tuesday, December 28, 2010

Thank you, and Happy New Year!

Thanks to everyone who donated to NIMJ in 2010. We rely on your support to do our job.

Contributions -- large or small -- are welcome any time of year. Please send yours to the National Institute of Military Justice, Washington College of Law, 4801 Massachusetts Avenue, N.W., Washington, D.C. 20016.

Wednesday, December 22, 2010

Tuesday, December 21, 2010

Inter-American Court Ruling on Military Justice in Mexico

Human Rights Watch reports that the Inter-American Court of Human Rights ruled that the civilian justice system should handle all cases of military abuses. The ruling calls on Mexico to stop using the military justice system for human rights abuses by the military.

Only a Spanish version of the decision is available at this time.

NIMJ Files Amicus at ACCA

NIMJ filed an amicus brief in Holmes v. U.S in the Army Court of Criminal Appeals. You can read the brief here. Holmes is charged with the murder of an Afghan civilian. An order precluded Holmes from being allowed to use photographs of the deceased in the Article 32 hearing. The brief argues that the order does not accord with the Constitution. The right of public access to judicial proceedings and records is protected by both the First and Sixth Amendments.

Monday, December 20, 2010

Military Justice Round-up

The Marine Times reports that Janis Karpinski, former brigadier general who was demoted in the wake of the Iraq prisoner abuse scandal, says that she won’t rest until she is cleared of wrongdoing. In a public statement in Hilton Head, she stated she expects to achieve exoneration, including regaining her general’s star. She has long maintained that military intelligence was in charge of the prison and that senior officials, including then-Defense Secretary Donald Rumsfeld, authorized methods of interrogation that led to the abuse.

Steven Green, an Iraq War veteran serving five life terms for raping and killing a 14-year-old Iraqi girl and killing her parents and sister says he didn’t think of Iraqi civilians as humans. The Army Times reports that Green apologized for his actions in a telephone interview. Green claimed that "he didn’t think of Iraqi civilians as humans after being exposed to extreme war zone violence."

The Navy Times reports that Command Master Chief Gerard Nicholson of Special Projects Patrol Squadron 1 was fired last week as the result of an ongoing investigation into allegations of an improper command climate. He was relieved because it was determined that he “could not continue to serve in the unique position of trust and confidence that a command master chief enjoys; therefore, Master Chief Nicholson could not be effective as VPU-1’s role model for leadership and integrity.”

Hennis Seeks a New Court-martial

The FayObserver reports that lawyers for Timothy Hennis have asked a military judge to grant a new court-martial. A hearing has been tentatively scheduled for January. Hennis was sentenced to death in April for the 1985 killings of a Fayetteville woman, Kathryn Eastburn, and her two daughters. The court-martial was Hennis' third time standing trial for the killings. Hennis was originally convicted of the killings in a civilian court in Fayetteville in 1986 and sentenced to death. He won an appeal and was acquitted at a trial in 1989. The Army began its prosecution after a 2006 DNA test linked Hennis to semen collected from the victim in 1985.

The decision to proceed with the court-martial is currently the subject of a federal appeal. A copy of the brief filed in that appeal is available at Caaflog.

Prof Corn Op-ed on the Law of Armed Conflict

Geoffrey S. Corn, NIMJ advisor and professor at South Texas College of Law, wrote an interesting and important piece in JURIST recently. The article, called Is All Fair in War? Congressman-Elect West and the Limits of Military Necessity, uses the case of retired U.S. Army Lieutenant Colonel Allen West (now Congressman-elect) as a means for discussing the law of armed conflict and its adherence by soldiers and commanders on the battlefield. In 2003, West was investigated for firing his weapon over the head of an Iraqi detainee in an effort to elicit information about a possible attack on U.S. forces. Prof. Corn writes, "This incident brings into sharp focus the reality of imposing absolute constraints on the treatment of captured or detained opponents during armed hostilities, and how those constraints are often perceived as conflicting with the duty of combat leaders to do whatever they can to protect their own." While understanding the thought process that led West to his decision, Prof. Corn explains the problem with West's action. The article goes on to explain the origins of the law of armed conflict. "The law of armed conflict has become a ubiquitous component of contemporary international legal discourse, and a critical aspect of national security decision-making. However, Lieutenant Colonel West's conduct is a reminder that at its core, the law remains a critical check on the brutality of war, reflecting a carefully tailored balance between the power to inflict harm and the constraints imposed upon that power."

Prof Corn's thoughtful piece is a must-read for anyone interested in the law of armed conflict.

Saturday, December 18, 2010

With Senate Passage of Repeal, DADT Will Be History Next Week

The Senate voted by a more than 2 to 1 margin to allow openly homosexual servicemembers in the US military, joining the House's repeal of the so-called "Don't Ask, Don't Tell" law earlier this week. The President is expected to sign the legislation into law next week, but the DoD policy changes are predicted to take place early in 2011.

US Military's Homosexual Policy on the Verge of Reversal

Word has it that the Senate will vote this afternoon to repeal the statute that deems openly gay individuals incompatible with military service. The House has (twice) voted to repeal the statute, and the Senate voted to allow a full vote earlier today.

Friday, December 17, 2010

Military Justice Gazette 115

Military Justice Gazette, No. 115 is out! You can download your copy here. Be sure to check out all of NIMJ's free publications.

Thursday, December 16, 2010

Lakin Post-Sentencing Analysis

Upon hearing of the Lakin sentence, I thought it was a bit light on confinement, given that he'd skipped a 1 year deployment that 2 others had to fill (1 on very short notice).

On further analysis, I reasoned that the members had given the harshest, longest-impact option in the dismissal because that will preclude Lakin from seeing a dime of military retirement. It also dawned on me that the members might have fashioned the sentence to confinement by showing a measure of compassion for the LTC's stay-at-home wife and 3 young children. After all, the convening authority can give the forfeitures of pay and allowances to the family for up to six months.

Lakin Sentenced: 6 months...

Caaflog is reporting that Lakin's sentence includes: "dismissal, confinement for 6 months, and total forfeitures." I am certain Caaflog's in-depth analysis and commentary will continue.

Lakin Panel Deliberates on Sentence After Arguments

Here's the scoop from the Baltimore Sun and more analysis from our friends at caaflog. We should have a sentence before long.

Proposed Ban on GTMO Detainee Transfers to US Opposed

The New York City Bar Association has joined Attorney General Holder in denouncing legislation currently working its way through Congress that would prevent detainees currently held at Guantanamo Bay from being transferred to the United States for any purpose, including for prosecution. Defense Secretary Gates also expressed his opposition to such a restriction a number of months ago.

As the letters explain, if such legislation is enacted, it puts a significant and unnecessary roadblock in the way of bringing justice to the victims of 9/11, among many others.

Article 32 hearing in case of the death of Spc. McBeth

Army Times reports that Spc. Tyler Cain is scheduled for an Article 32 next Wednesday. The 21-year-old is accused of obstructing justice in the investigation into the death of 19-year-old Spc. Morganne McBeth of Fredericksburg, Va. McBeth died of a stab wound to the chest at a military base in Iraq on July 2. Spc. Nicholas Bailey of Pflugerville, Texas, has been charged with involuntary manslaughter and obstruction of justice in the case. Bailey's Article 32 hearing is scheduled for Jan. 4.

Wednesday, December 15, 2010

More on Today's Testimony in the Lakin Sentencing Case

CAAFlog has been covering the blow-by-blow on LTC Lakin's case today. Sounds like a disaster for the defense, as the military justice experts predicted all along. More on the case from Dwight Sullivan and NIMJ Director Phil Cave at blogtalkradio tonight.

Recent Sexual Assault Stats from the Service Academies

It looks like reporting of sex crimes is up at the nation's service academies. The genesis of the increased reports isn't likely to be determined with any kind of specificity.

I did find it interesting that the end of the DoD news release references 8 categories of sexual assault and harassment under the UCMJ, including for indecent assault. Sexual harassment, per se, appears nowhere in the UCMJ, and indecent assault hasn't been listed as an offense in the UCMJ for several years. Article 120, where most of the military's sex offenses are now grouped, contains 14 crimes. I wonder what the 8 categories of offenses are and who provided this information.

Lakin Convicted of Missing Movement

The AP is reporting that the panel of colonels deciding "birther doc" LTC Lakin's court-martial case has convicted him of the charge of missing movement for deliberately failing to get on a flight in preparation for his scheduled deployment to Afghanistan.

Important ruling from New Zealand on government appeals of court-martial sentences

The Courts Martial Appeal Court of New Zealand has decided a landmark case on government appeals of court-martial sentences. The decision in R. v Murfitt can be found here.

Dateline: Fort Meade, Maryland

Check here for New York Times columnist Maureen Dowd's take on the Lakin general court-martial. Great lede: "He can't handle the truth."

Tuesday, December 14, 2010

USAF blocking websites that posted WikiLeaked documents

This just in: according to the New York Times, the Air Force is blocking access to websites that have posted WikiLeaked documents.

More Lakin Updates

Check out the day's courtroom wrap-up at caaflog and Phil Cave's blog. CAAFlog (Marine Reserve Colonel Dwight Sullivan) and our own Phil Cave will be on blogradio at 9pm EST to chat more about the case.

Our observer should be back at Ft. Meade tomorrow to provide additional commentary.

The Lakin Court Members

There are eight members--all of whom are full-bird colonels. The O-5 was challenged because he'd studied the Lakin case for a while and had an opinion on the charges.

Lakin Court-martial Update

Our courtroom observer reports from a lunch break that LTC Lakin pled guilty to the specifications of Charge II for violating Article 92, UCMJ, by failing to obey lawful orders. Apparently, Judge Lind ruled the 4th specification was multiplicious for sentencing (see more on this at caaflog) with other specifications, so that spec is now gone.

LTC Lakin didn't have a pretrial agreement, so he pled "naked." He also pled not guilty to Charge I for missing movement in violation of Article 87, UCMJ.

The court members (aka panel, better known as the jury in the civilian world) have been seated. During voir dire, the defense successfully challenged the lone O-5 for cause, and the defense counsel used its sole peremptory challenge to excuse one of the O-6s.

The trial counsel will start proving up the missing movement specification when court resumes around 3 this afternoon.

Stay tuned for more...

LTC Lakin Partial Plea

We're hearing word that LTC Terrence Lakin, the Army doctor who refused to deploy to Afghanistan because he wasn't satisfied that President Obama was legally qualified to be the commander-in-chief, has pled guilty to some of the specifications against him related to deployment preparation. We have an observer at the court-martial who will provide additional information as the proceeding unfolds.

Monday, December 13, 2010

Military Justice News from Around the Globe

Post-traumatic stress cited in court-martial

Call for special court for terrorist suspects--sound familiar?

Note to self--not a good idea to steal a weapon and credit card from the military chief of staff

Use of military courts for West Bank Palestinian minors criticized by Brits.

Pardoned for mutiny, but still held.

Palestinian Authority:
Military death sentences draw fire.

The Philippines:
Focusing on human rights and following rules for military arrests in wake of health worker crackdown.

Alleged leaker hypnotized by interrogator?

Military justice system on the brink of extinction?

Sunday, December 12, 2010

Lawfare Blog Access

The WikiLeaks controversy has taken many an odd turn already. One of the oddest is a Defense Department effort to block access to the highly-regarded Lawfare blog. For a recent post by the Brookings Institution's Benjamin Wittes (at left), with links to earlier reports, click here.

Friday, December 10, 2010

Vic Hansen at it again

Hansen on Evidence Obtained During Extraordinary Renditions
This article considers and questions the ways in which grand schemes of rights infringement such as extraordinary rendition can translate into specific but also corrosive questions of accommodation in the law of evidence. This article enables us to see the extents to which questions considered to be either ‘grand’ or ‘minor’ in the context of counter-terrorism and human rights protections are, in fact, inter-connected. The article focuses on the use of information obtained from detainees who were subjected to extraordinary rendition. The article examines how the information obtained during these periods of extraordinary rendition might be used in any subsequent criminal prosecutions of the detainees. The article explores the rules in both U.S. Federal Court and the Military Commissions which govern the admissibility of evidence obtained during extraordinary renditions and questions whether evidence obtained under this practice should be admissible in any subsequent prosecutions of the detainees. The paper examines the likely corrosive impact that the use of this evidence could have on fundamental due process protections and concludes that while the admissibility of this evidence is problematic in any forum, trying these suspects in federal court is the best option available.

Hat-tip CrimProfBlog.

Closed Art 32 Hearing on Guam?

We received a report from Guam that there's a closed-door pretrial hearing for a Navy member accused of stealing laptops from the base exchange there. Anyone have better intel on this case? At first blush, this doesn't seem to involve anything that would tend to require the hearing to be private.

Classified Systems Crackdown in Response to Wikileaks

It seems the lives of those who use the SIPRNET (DoD's classified computer network) will face additional challenges in completing their missions as the result of the Wikileaks fiasco. Stars and Stripes is reporting that all removable media (thumb drives, disks, etc.) have been banned from use on SIPRNET computers.

Thursday, December 9, 2010

Behenna ACCA Argument Recap

I went to the Behenna oral argument at ACCA this morning. As expected, it was a full house with plenty of family and family friends, congressional staffers (this case has generated high-level interest in the Sooner State), uniformed appellate lawyers, media, and random interested observers. I even caught a glimpse of the trial judge in the LTC Lakin case.

ACCA’s Panel 4, which consisted of Judges Tozzi, Sims, and Gallagher, will decide the case. Veteran military attorney Jack Zimmermann, now a civilian defense attorney, argued the case for LT Behenna, while Captain Madeline Yanford argued on behalf of the government. Not surprisingly, both were polished and ready for the panel’s questions.

Zimmermann began his argument by asking whether Ali Mansur, the deceased, was standing or sitting when LT Behenna fired the shots, calling this critical information because it goes to the issue of escalation of force as it relates to self-defense. Yanford countered by stating that it didn’t matter what the victim’s position was—Behenna had no justification for killing him.

All three judges were particularly “hot” during Zimmermann’s argument. Tozzi, the senior judge on the panel, asked the first question. It concerned when the defense believed the trial counsel’s duty to disclose government expert Dr. MacDonell’s theory arose. The response was on Wednesday afternoon when the initial demonstration was done, or, at the latest, on Thursday, after the accused testified consistently with MacDonell’s theory. This prompted additional questions from Judges Sims and Gallagher, Sims verifying that the government’s expert consultant had said on Wednesday that his theory of Mansur rising from the rock that fit the evidence was an unlikely scenario. Gallagher clarified that none of the experts were able to definitively state where Mansur’s right arm was at the time of the shooting, but it was not at his side.

Zimmermann next addressed the allegations of errors by the military judge, after first stating that Colonel Dixon was a good judge. Zimmermann began with the argument that Dixon’s finding that MacDonell didn’t tell the trial counsel “that’s what I told you” after Behenna’s testimony was a clearly erroneous ruling. Given the unique Article 66, UCMJ, factfinding powers ACCA has, it could overturn the judge’s factual determination of the matter.

Next, Judge Tozzi turned to the issue of prejudice, presuming for the moment that there was a Brady discovery violation in that the trial counsel should have turned over MacDonell’s conclusions earlier.
At that point, the argument turned to the use of deadly force and escalation of force, with the judges focusing on whether Mansur had a right to use equal force in self-defense when threatened with deadly force (weapon pointed at him) by Behenna. Given the amount of force Behenna showed, the assertion from the judges was that there was no room for Mansur to escalate the level of force such that Behenna could reclaim a right to use deadly force in self-defense after using unjustified force resulting in an assault on Mansur by threatening to kill Mansur while the accused had his weapon drawn. Zimmermann responded that there was no need for escalation of force on Mansur’s part if Behenna hadn’t lost the right to self-defense in the first place. During the government’s argument, Tozzi asked why the military judge instructed on regaining the right to self-defense if it was so clear that Behenna didn’t have such a right. I had to smile when Judge Sims conceded “This is confusing stuff” when discussing the self-defense instruction.

The issue of having a right to self-defense was a key part of both arguments, with the defense arguing that the judge had muddled up the oral (members asked for written instruction, but request was denied) instruction regarding requirements of being able to claim self-defense all along or reclaim it after the accused’s committing an earlier assault, while the government countered that, under an objective standard, there was no reasonable fear that Behenna, in full body armor with 2 weapons, could be in danger at the hands of Mansur, who had been stripped naked (except for flip-flops) and had no weapon other than, arguably, a rock.
One judge was visibly skeptical of the defense argument that Behenna feared for his life before he shot Mansur, and there was discussion as to what role, if any, Behenna’s subjective belief that Mansur was a terrorist who had killed 2 of Behenna’s fellow soldiers and Behenna’s diagnosis with a precursor to post-traumatic stress disorder (making him hypervigilant and prone to an exaggerated startle reflex).

Zimmermann also argued that the military judge erred in failing to sua sponte instruct on the lesser-included offense of involuntary manslaughter because it the evidence clearly raised this possibility, to which Gallagher inquired why none of the counsel requested such an instruction at trial if it was so clear. The defense also took issue with various definitions the military judge gave, as well as whether certain matters should have been decided by the members, rather than the military judge.

The panel allowed Zimmermann to complete his explanation as to the harm done by the alleged discovery violations, although his time had expired, a relatively routine accommodation. MacDonell’s potential testimony was either exculpatory in corroborating Behenna’s testimony or it was mitigating in ensuring that the members did not view the shooting as an execution, the defense argued.

The panel was noticeably less active during Yanford’s argument. In fact, Judge Gallagher did not ask a single question until Yanford was wrapping up. Yanford started strong and stayed strong, beginning by contrasting the images of the 2 men—an Army Ranger in full battle-rattle with an M4 and a glock takes Mansur to a remote desert location, strips him naked, and threatens to kill him before following through on the threat by pulling the trigger twice.

The government argued there was no Brady violation, despite the judges making the case that MacDonell’s conclusions regarding the evidence were material to the defense theory because MacDonell’s testimony would be “inadmissible human lie detector” evidence. Judge Tozzi picked up on the distinction between admissibility of evidence and evidence that is discoverable (discoverable evidence covering a much broader range of facts) and the notion that Dixon didn’t fully address that in his ruling. The appellate government counsel also found no error in the military judge’s instruction on self-defense or his failure to instruct on involuntary manslaughter, and the government believed that Behenna admitted to assaulting Mansur before the shooting by violating various rules. Yanford argued that the panel could find there was no initial assault while still finding the killing unjustified because Behenna didn’t have a reasonable fear, and he set up the scenario that might have inspired any fear he experienced.

The government advocated using an “abuse of discretion” standard in deciding whether the military judge erred in denying the motions for mistrial and a new trial, while the defense asserted that the proper standard of review was de novo. Of course, it’s no surprise that it’s difficult (albeit not impossible) to find that a trial judge stepped outside his wide latitude in making a ruling even if the appellate judges themselves might not make the same rulings, and it’s much better for the defense in this case if the panel takes a whole new look at the evidence and draws its own conclusions. Zimmerman also emphasized the standard of review for the discovery violations required the government to prove the violations were harmless beyond a reasonable doubt—a tough standard if the panel finds a violation—because the defense had made a specific request for the evidence.

On rebuttal, the judges inquired whether Zimmermann (the trial defense counsel) had done all he needed to do in order to ferret out MacDonell’s assessment of the evidence. In his ruling, the military judge found that Zimmermann had adequately performed, and Zimmermann admitted the conviction would be invalid for ineffective assistance of counsel if he hadn’t done so.

In conclusion, Zimmermann argued that the trial court and ACCA each have no evidence of the trial counsel’s mindset. The motions for mistrial and new trial only contained MacDonell’s testimony, with no government evidence contradicting his assertions.

It will be interesting to see how this decision comes out.


JURIST - Legal News & Researchis reporting:  The US House of Representatives voted 212-206 [roll call vote] Wednesday in favor of a defense spending bill [HR 3082] that includes a provision preventing Guantanamo Bay detainees from being transferred to the US for trial.

Wednesday, December 8, 2010

LT Behenna ACCA Argument Tomorrow

It's expected to be a packed house at tomorrow morning's Army Court of Criminal Appeals argument in the Behenna case that we've previously discussed regarding the lieutenant convicted of killing a detainee in Iraq. There are several issues that could prove fruitful for the defense--discovery issues involving potentially exculpatory expert testimony and instructional error regarding self-defense are the most salient. Here are the defense brief and reply. Here is the government's brief. The case has also been covered at caaflog.com, which has additional case documents on its site. The family has set up a page at http://www.defendmichael.com/ that has more background.
H/t to a friend of NIMJ for providing the briefs.

Targeted Killing Suit Tossed

US District Court Judge Bates held that the father of the American-born cleric believed to be in Yemen who has links to al-Qaeda and a number of terrorism suspects in the US does not have standing to sue over Anwar al-Awlaki's unconfirmed (but widely speculated) inclusion on a government "kill" list. Bates did not address the legality of such a list.

Around the Services

This past week's news brings word of the young, mid-career, and the not-so-wet-behind-the-ears military members finding themselves in trouble, plus another seasoned veteran getting his conviction wiped out.

It turns out that one of the midshipmen accused of kicking in a door at a private residence is the son of the admiral who commands the carrier group that includes the USS Abraham Lincoln. How awkward must that have been to learn of your son's arrest as you're preparing to host the Secretary of Defense?

While news of drunken follies and "buzzing" a stadium isn't entirely unique, they pale in comparison to the testimony of the senior chief stapling his subordinates. Then there is this week's court-martial of the guy charged with being a serial rapist in the Ft. Bragg area. This case initially garnered attention several months ago because the base had a policy that media organizations weren't allowed to publish the names of the victims of break-ins that were also attributed to Aaron Pernell.

Trying to find additional information about the newly pardoned, now-retired MSgt Edgar Leopold Kranz, Jr., has proved elusive. Anyone have info on what made Kranz's case stand out from the hundreds of other pardon applications on the President's desk? By the way, when is the last time you saw a specification for writing rubber checks charged?

As always, send comments/queries to nimj@wcl.american.edu.

Tuesday, December 7, 2010

More Holes in the Sieve

While most of the media attention is focused on self-confessed classified information leaker Army PFC Bradley Manning, there's another classified documents case unfolding at Ft. Bragg. This time, the recipient of the documents was an undercover agent, rather than Wikileaks, and the accused is Navy Petty Officer Brian Minkyu Martin.

Wikileaks and GTMO

In a confluence of military justice stories, the (now under arrest for unrelated charges) Wikileaks founder Julian Assange is threatening to reveal secret documents about the military detentions at Guantanamo Bay. Army PFC Bradley Manning is facing UCMJ charges for mishandling the hundreds of thousands of classified documents he purportedly gave Wikileaks, many of which the website has already posted.

Former GTMO Chief Prosecutor Back in the News

Retired USAF JAG Colonel Morris "Moe" Davis is the most senior prosecutor to have quit the military commissions. In fact, he was the chief prosecutor when he resigned from his position in 2007 over questions of the fairness of the tribunals. Now, he is fighting to get his job back--no not the one with the commissions--he's fighting his firing from the Congressional Research Service at the Library of Congress. Davis claims he was wrongfully fired for documents he wrote about the Obama Administration's detainee policy. The ACLU, New York Times, and fellow USAF JAG Senator Lindsey Graham all support Davis.

Monday, December 6, 2010

ICTY conviction

JURIST reports:
The International Criminal Tribunal for Rwanda (ICTR) [official website] on Monday sentenced former Rwandan Armed Forces lieutenant Ildephonse Hategekimana[case materials] to life imprisonment after convicting him on charges of genocide and crimes against humanity.

Thursday, December 2, 2010

Guilty Plea in Stryker Brigade Case

On Tuesday, Staff Sgt. Robert Stevens acknowledged his guilt in a case arising out of Afghanistan. He pleaded guilty to reckless endangerment for throwing a grenade from a Styker vehicle, aggravated assault for firing his M4 in the general direction of two Afghan civilians, but missing, dereliction of duty and two specifications of making a false official statement. The military judge sentenced Stevens to be reduced in rank to private and to serve nine months of confinement, but retained him in the service. In other words, Stevens was not kicked out of the Army. His deal requires him to testify against other defendants.

News first broke about the Stryker brigade soldiers months ago. Some of them are accused of killing unarmed civilians in Afghanistan and keeping body parts of their victims as war trophies. Stevens is not one of the soldiers accused of murder. He acknowledged following an order from Staff Sgt. Calvin Gibbs to shoot at two Afghans who posed no threat. There was no evidence presented that those Afghans were injured.

Some of the media have given the misimpression that Stevens pleaded guilty to murder. For example, CNN's headline reads, Soldier pleads guilty to some charges in Afghan killing; gets 9 months. This gives the impression that Stevens is guilty of more than his actual conviction. This reporting has spread overseas. The headline at channelnewsasia.com reads, US soldier gets nine months for killing Afghan civilians. Stevens' lawyer, Stephen H. Carpenter, Jr., wanted to set the record straight. He stressed that, "Stevens neither harmed or murdered anyone."

NIMJ Reports from GTMO

NIMJ is proud to announce the publication of NIMJ Reports from Guantanamo, Volume 3. The report can be downloaded on our publications page. You may request a hard-copy version by emailing nimj@wcl.american.edu.

This volume includes pieces by Gary Solis, one of the preeminent experts on the law of armed conflict, Elizabeth Hillman, professor of law at University of California Hastings College of Law, Stephen Vladeck, professor of law at American University Washington College of Law and one of the nation's leading national security law gurus, and Michelle McCluer, NIMJ executive director. Their pieces provide in-depth analysis of the military commission proceedings they witnessed in Guantanamo as well as general criticisms and assessments of the system. The reports cover the guilty pleas and sentencing hearings of Omar Khadr and Ibrahim al Qosi.
As the debate continues on if, how, and where to try the remaining Guantanamo detainees, the reports in this publication provide a great deal of food for thought.

Security Forces Supervisor Acquitted in Suicide Case

In a not-too-surprising verdict, MSgt Lisa Mashburn was acquitted Tuesday at Grand Forks AFB of dereliction of duty for security lapses at the law enforcement desk after an airman in trouble accessed a weapon at the desk to kill himself. MSgt Mashburn was the assistant flight sergeant on duty at the time of the suicide.

Apparently, the security code at the entrance to the LE desk hadn't been changed in a decade, among other issues. Given the facts, it's curious why MSgt Mashburn, rather than the flight sergeant, the ops officer, or the squadron commander, was on the hot seat.

McBeth Murder Mystery Gets Some Clarity

When Spc Morganne McBeth died in Iraq in July, her family began a quest for answers to how this happened. Over the course of the next several months, her family heard various stories of an accidental self-stabbing, an accidental stabbing by a fellow soldier, and then that the death was a homicide. Now comes news of the preferral of charges against two Ft. Bragg soldiers in McBeth's killing. Spc Nicholas Bailey faces a specification of involuntary manslaughter, plus various conspiracy, false official statement, and obstruction charges. Spc Tyler Cain appears to have been charged with conspiring to cover up the crime by making false official statements. See the full report at Fox5.

When I first heard of this case, I wondered why the two subjects weren't in pretrial confinement. Given the charges, this now appears to make a bit more sense. We welcome additional information from anyone with more facts about this case. Just send them to nimj@wcl.american.edu.

Wednesday, December 1, 2010

The Crawford/Melendez-Diaz Line of Cases and CAAF

CAAF today released its second opinion in the case of United States v. Blazier, a case in which NIMJ wrote an amicus brief in support of the defense. The issue in Blazier involved a standard case of an airman popping positive for illegal drugs and the government bringing in Dr. Vincent Papa (a nice guy, even to defense counsel), a laboratory certifying official from the Air Force's Brooks Lab, as an expert to explain the urinalysis tests and conclusions. Dr. Papa's testimony came despite the fact that he did not write the reports forming the basis for the conclusions.

Writing for a unanimous court, Judge Ryan first set out that the reports were testimonial evidence which triggers Confrontation Clause rights, although the machine-generated data was not testimonial. Judge Ryan's words echoed those of Justice Scalia in Crawford v. Washington, making clear that the issue is not one of reliability but of the right to confront one's accusers. "The right of confrontation is not satisfied by confrontation of a surrogate for the declarant." Rather, CAAF held that the declarant is one whom the accused has the right to cross-examine.

After establishing that, the Court analyzed the extent of the leeway given to experts in forming their conclusions based on the works of others, noting that experts are not permitted to bootstrap otherwise inadmissible testimonial statements into evidence. Given these limits, the Court found the part of Dr. Papa's testimony based on his own conclusions from the machine-generated data admissible, while deeming his repetition of the reports' contents inadmissible hearsay.

Finding error of a constitutional nature, the Court turned to whether the introduction of inadmissible statements was harmless beyond a reasonable doubt, in light of the entire record. On this issue, the Court punted, as the parties had not briefed that specific point, and the Air Force Court had not ruled on it.

So, stay tuned for Blazier III.

(As a side note, a large group of us JAGs happened to be sworn into SCOTUS the day Crawford was published. While the rest of us were admiring the courthouse and identifying justices, the then-Chief Judge of the Air Force Court of Criminal Appeals remarked that it sounded like this was a big case. Indeed.)

First Stryker Brigade Court-Martial to Begin Today

CNN is reporting that an Army E-6 who is part of the group of a dozen soldiers at Ramrod Five who are charged with a variety of offenses allegedly committed in Afghanistan faces a general court-martial today. It's interesting to note that the article mentions crimes that include endangering fellow soldiers, in addition to Afghan civilians. It's worth mentioning that SSGT Stevens does not face a murder charge, although several of his fellow accuseds do.