Friday, April 29, 2011

CAAF Releases Arriaga Opinion

Today CAAF released an Air Force case (US v. Arriaga) that dealt with 2 hot-button items for the Court--lesser-included offenses and post-trial appellate delay.  Judge Erdmann wrote for the majority, and Judge Stucky wrote a partial concurrence/partial dissent (dissenting in the result) for himself and Judge Ryan.

The same military judge (Col Tom Cumbie) from the last CAAF opinion (Beaty) was the trial judge for this case.  Arriaga lost on the argument that Housebreaking isn't an LIO of Burglary, but he won on the post-trial delay issue.  CAAF sent the case back to the Air Force Court for action in conformance with its opinion.

On the LIO issue, Arriaga argued that an element of Housebreaking was broader in scope than that of Burglary, in that Housebreaking requires an intent to commit any offense within the building, while Burglary is limited to an intent to commit only selected crimes.  The Court applied the law to the charged specification in this case and to the facts presented at trial and held that the theoretical variance in the scope of the elements didn't prevent Housebreaking from being an LIO of Burglary.

On the appellate delay issue, Arriaga asserted that the 243 day lapse between completion of his court-martial and the date the convening authority took action on his case prejudiced him, particularly given the Air Force Court's halving his confinement and reducing his dishonorable discharge to a bad-conduct discharge.  Arriaga served nearly 2 months longer in confinement than he would have served, had the appellate processing been more expedient.

The length of the delay, alone, was sufficient, under Moreno (63 MJ 129), to presume unreasonable delay.  When the Court examined the government's explanations for the delay, the reasoning boiled down to "personnel issues" that could plague any legal office--nothing terribly novel or extraordinary.  As we've known since at least 2003, CAAF isn't too keen on "personnel issue" appellate delay excuses.  AFCCA now gets to decide what remedy is appropriate for Arriaga's additional days spent in confinement due to the delay.

The dissenters agreed with the LIO analysis, but they found no prejudice from the appellate review delay.  On the delay issue, the dissenters rejected the 120-day presumption-of-prejudice rule from Moreno and cited the complexity of the case and this particular clemency process as justifications for the delay.  The dissent also points out the 2 30-day enlargements of time the Defense sought for filing its AFCCA brief.

RCM 706 Board Finds Manning Fit to Stand Trial

Accused Army Wikil___er PFC Bradley Manning is fit to stand to trial, declared the medical experts comprising the mental health review board assigned to determine Manning's competency to face a court-martial.  To reach this conclusion, the board had to answer 4 questions.  Merely determining whether Manning has or had a mental illness is not sufficient for finding an individual "insane" under Rule for Court-Martial 706.

While the article notes the 22 new specifications against Manning, it doesn't count the initial ones preferred before that.

Presumably, now an Article 32 pretrial investigation date will be set.

In Honor of Today's Royal Wedding News...'s the latest article on supposed British subject PFC Bradley Manning.  It seems Manning's current pretrial confinement conditions at Ft. Leavenworth are far less restrictive than those he experienced at Quantico.  He'll apparently be allowed to interact with the other pretrial confinees there and will escape the "suicide smock" at bedtime.

The end of this article mentions that subpoenas have been sent for the grand jury proceedings.  Unless there's a separate civilian criminal investigation of Manning, this statement is incorrect for multiple reasons.  As Manning's case hasn't been referred to a court-martial, there is no military subpoena power (despite recent legislative efforts to give the military enhanced subpoena authority) at this stage.  Those "subpoenas" are likely really invitational travel orders that can't force any civilian to do anything.  That "grand jury" mentioned is actually an Article 32 hearing that is a far cry from a grand jury investigation--and far more defense-friendly.

CAAF Trailer Cases

For those who don't practice appellate law, "trailer" cases are those which present an issue identical to one on which an appellate court has already granted review or decided.  As noted by our friends at CAAFlog, we're currently seeing the Court grant quite a few Fosler trailer cases raising the issue below:


Per CAAF practice, CAAF will grant review of the trailer cases, but it won't require full briefing of the issue in the trailers because the outcome of the main case will determine the outcome of the trailers.

One of CAAFlog's avid readers noted that CAAF is building a trailer park of Fosler cases.  Having grown up in Tornado Alley, I'm familiar with twisters' affinities for trailer parks.  It's a good thing the CAAF courthouse has a basement.

Problems with Army Records of Trial

First it was Gaskins, in which CAAF last week ordered the government to show cause why CAAF shouldn't bar a sentence rehearing in a carnal knowledge case in which the exhibit containing all Gaskins' "good" paperwork for sentencing was lost.  Now, CAAF is dealing with a case in which part of a record of trial never got authenticated:

No. 11-0391/AR. U.S. v. Steven K. SHAFER. CCA 20090650. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we note that there is no evidence of the authenticity of pages 1 - 102 of the record of trial. “Neither this Court nor the court below may review and act on such a record.” United States v. Vasquez, 44 M.J. 52 (C.A.A.F. 1996) (summary disposition). Accordingly, it is ordered that said petition is granted on the following specified issue:


The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for resubmission to that court for further review.

Thursday, April 28, 2011

Judge dismisses manslaughter charge against Canadian soldier

According to The Vancouver Sun:

A military judge has dismissed a manslaughter charge against a former Canadian soldier accused of fatally shooting one of his colleagues four years ago.

But former corporal Matthew Wilcox will still be tried on charges of criminal negligence causing death and negligent performance of military duty in the shooting death of Cpl. Kevin Megeney in Afghanistan in March 2007.

Prosecutors submitted the manslaughter charge as an alternative to the charge of criminal negligence causing death after Megeney, 25, was killed in a tent the two men shared at Kandahar Airfield.

This is the second court martial for Wilcox, after a manslaughter charge against him was stayed in 2009. At that trial, a jury found Wilcox guilty of criminal negligence causing death and negligent performance of a military duty. He was sentenced to four years in prison and was kicked out of the armed forces, after the judge said he was satisfied Wilcox and Megeney "were engaged in a consensual game of quick draw" when the shooting happened.

Lesbian cadet ends fight to return to academy

Army Times reports:

A lesbian former cadet who left the U.S. Military Academy, saying she couldn’t live a lie, was rejected for re-admission Wednesday because of the lingering military ban on gays and said she is giving up on her dream of graduating from the academy. Katherine Miller said in a statement that she plans to graduate from Yale University, which she’s now attending, and join the military through officer candidate school.

Taiwan official sentenced for spying for China

According to an article by Associated Press, Taiwan's Defense Ministry says a military court has sentenced a defense intelligence official to life in prison for leaking secrets to China.The ministry said in a statement Thursday that the court found that Lo Chi-cheng spied for China in exchange for money. It said the ruling could be appealed.

Lo was arrested last October after an investigation by the Military Intelligence Bureau. Local media have reported that Lo was recruited by China in 2007 and the secrets he leaked included a list of his colleagues working on the Chinese mainland.

Azerbaijani Army’s two high-ranking officers arrested for reception of bribe

APA reports that two officers of Azerbaijani Defense Ministry’s Shamkir Military Junction were arrested, the Baku Military Court told APA.

According to the information, the officers of the National Army Azer Khaligov and Azer Huseynov are accused in the Criminal Code’s article № 311.3.1 (Reception of a bribe - on preliminary arrangement by group of persons or organized group). Pre-trial detention of the two officers was ordered by the Baku Military Court.

Bahrain's military court convicts 4 Shiite protesters to death for uprising

The Canadian Press reports:

A military court in Bahrain on Thursday convicted four Shiite protesters and sentenced them to death for the killing of two policemen during anti-government demonstrations last month in the Gulf kingdom, state media said.

Three other Shiite activists, who were also on trial, were sentenced to life in prison for their role in the policemen's deaths.

The verdicts — which can be appealed — were the first related to Bahrain's uprising, which was inspired by revolts in the Arab world. The kingdom's Shiite majority has long complained of discrimination and is campaigning for greater freedoms and equal rights in the tiny Sunni-ruled island nation, which is home to the U.S. Navy's 5th Fleet.

Nine Americans gunned down at Kabul airport

According to Stars and Stripes, eight U.S. servicemembers and an American contractor working for the International Security Assistance Force were gunned down by an Afghan pilot at Kabul airport early Wednesday, in what officials term the deadliest such incident to date. A senior defense official confirmed to The Associated Press that all the victims were American, but could not say what branch of service the military members were. ISAF Joint Command released statements throughout the day confirming the incident, but would go no further, pending family notifications.

Guard brigade commander in Iraq relieved of duties

Stars and Stripes reports that the commander of the 67th Battlefield Surveillance Brigade, Col. Philip Stemple, was relieved of duties on Saturday after U.S. Forces-Iraq leaders lost confidence in his ability to command, according to a U.S. Forces-Iraq spokesman.

“USF-I took this action following the completion of an administrative investigation which documented a negative command climate within the 67th BfSB,” Army Col. Barry Johnson wrote late Wednesday in an email to Stars and Stripes.

Media Gets View Inside Manning's Confinement Facility

In an effort, presumably, to quell some of the outcry about PFC Bradley Manning's conditions and treatment while in pretrial confinement, Ft. Leavenworth officials are allowing the media to tour the facility where Manning was recently transferred.

Wednesday, April 27, 2011

D.C. Circuit Reinstates Blackwater Charges

In a surprising unanimous opinion last week the U.S. Court of Appeals for the D.C. Circuit reinstated the manslaughter charges of four former Blackwater security guards accused of killing 17 unarmed Iraqi civilians in Nissour Square back in 2007. The D.C. Circuit held that U.S. District Judge Ricardo Urbina improperly dismissed the indictments despite his findings of prosecutorial misconduct in relying on the compelled testimony of the accused security guards in violation of the Fifth Amendment. A copy of the redacted public decision is found here.$file/10-3006-1304592.pdf

The Fifth Amendment privilege against self-incrimination prohibits the government from compelling any person to give testimony that could be used to incriminate himself in a criminal trial. In Kastigar v. United States, 406 U.S. 441 (1972) the Supreme Court made clear that where a defendant has been compelled to give statements waiving his Fifth Amendment privilege, the government must prove that any evidence it uses to prosecute that defendant is “derived from a legitimate source wholly independent of the compelled testimony.”

Judge Urbina previously found that (a) the prosecutors’ reliance on the security guards compelled statements improperly motivated the prosecutor’s to seek the indictments; and (b) that the government’s use of other witnesses who knew of those compelled statements, were tainted and thus failed to show the evidence came from an independent source. Accordingly, the District Court dismissed the indictments against all of the guards both because the prosecutors relied on those compelled statements in deciding whether to seek an indictment and because the prosecutors presented evidence to the Grand Jury that was tainted by those compelled statements.
The D.C. Circuit vacated the District Court opinion finding that (a) that the District Court had failed to determine, as to each defendant, what evidence—if any—the government could obtain by independent evidence separate and apart from the compelled statements; (b) the Fifth Amendment does not prohibit non-evidentiary uses of compelled testimony, such as a prosecutor’s decision to seek an indictment.
The D.C. Circuit’s decision was surprising in that it largely disregarded the District Court’s three week evidentiary hearing where it found that the testimony of the witnesses were exposed to the compelled testimony could not be relied on because their testimony was inextricably tainted by their exposure to the compelled statements. The D.C. Circuit directed the District Court to parse through each witnesses testimony (again) and decipher what parts of their testimony (if any) may not have been impermissibly tainted by their exposure to the compelled testimony. After directing the District Court to go back and determine, as to each defendant, what evidence—if any—was tainted as to him, the D. C. Circuit also directed the District Court to determine whether or not the government has shown that any tainted evidence was harmless beyond a reasonable doubt.

This decision is concerning in that even common experience demonstrates that a person who is exposed to tainted testimony but also has independent recollection of events may not fully know which exposure (tainted or personal) forms his current basis for testimony. By rejecting the District Court’s prior findings after lengthy testimony that the witnesses were impermissibly tainted, the D. C. Circuit’s decision subtlety encourages both prosecutors and District Courts to find ways to permit potentially tainted testimony, as long as it is possible that the witness can articulate that the evidence came from an independent source. Such an approach could lessen the government’s burden under Kastigar of proving that its evidence is derived from a “wholly independent” source and erode the Fifth Amendment Privilege.

Less surprising was the D. C Circuit's finding that the prosecutor’s use of compelled testimony for non-evidentiary uses—such as the prosecutor’s personal reliance in choosing to pursue an indictment—is not barred by the Fifth Amendment. While there is disagreement among Appellate courts as to whether or not the Fifth Amendment bars the government’s use of compelled testimony for these non-evidentiary uses the majority of courts have held that the Fifth Amendment does not protect against the internal prosecutorial decision-making process.

The case is now returned to the District Court for further proceedings. Only time will tell whether this relook at the evidence will result in admissible “independent” evidence allowing the prosecutions to go forward, or if the District Court will once again find that the government’s case is impermissibly tainted by its reliance on the compelled testimony of the defendant security guards.

Obama: Born in the USA; Too Late for Lakin

Well, the news comes about 5 months (actually, more like a year) too late for LTC Lakin, who sacrificed his once-promising Army medical career at the birther altar and will be greeted with a hero's welcome when he's released from the Disciplinary Barracks next month, but President Obama has now released his long-sought long-form birth certificate to the public, proving what most of America (regardless of political affiliation) already knew.

Whew!  That's a relief.

h/t to No Man.

CAAF: "Virtual" Child Pornography Specs OK, But Can't Look to CPPA for Max Sentence

Having defended a fair share of individuals accused of child pornography offenses as a defense counsel and argued a number of these cases for the government as an appellant counsel (including the companion case to United States v. Mason [CAAF's post-Free Speech Coalition Article 134 pronouncement] and United States v. Leonard [at AFCCA], the CAAF opinion of which is cited repeatedly in CAAF's latest opinion), I've been following the evolution of the charging and sentencing of child pornography cases for a while now.  Yesterday, the Court of Appeals for the Armed Forces released another Air Force case on the subject. 

In United States v. Beaty, the defense challenged the military judge's calculation of the maximum punishment for possession of what "appears to be" minors engaged in sexually explicit activity, arguing that it was inappropriate for sentencing purposes for the military judge (one of the most experienced judges in the entire USAF, if not THE most experienced) to equate the charged possession of virtual child pornography with actual pornography, as defined in the Child Pornography Prevention Act (as amended by the PROTECT Act).  The government countered that, if it was error to rely (as is usual practice) on the CPPA's sentencing provisions by analogy, Beaty suffered no prejudice because the maximum punishment could have been set as high as life without possibility of parole under Article 18, UCMJ.

The majority at CAAF, in another Judge Ryan opinion, agreed with the defense that there is a substantive difference for sentencing purposes, capping the maximum sentence for possession of virtual child pornography at the maximum for disorderly conduct, resulting in a huge reduction from the maximum punishment available under the CPPA.  Here are some relevant portions of J. Ryan's opinion on the issue:

Because Appellant’s offense is (1) not listed in the MCM, (2) not included in or closely related to any other offense listed in Part IV of the MCM, and (3) not provided for in the United States Code, the maximum
punishment is that “authorized by the custom of the service.” See R.C.M. 1003(c)(1)(B)(ii). As in Leonard, we are unaware of any “custom of the service” specific to Appellant’s offense, see 64 M.J. at 383.

...when confronted with Article 134, UCMJ, offenses not specifically listed, that are not closely related to or included in a listed offense, that do not describe acts that are criminal under the United States Code, and where there is no maximum punishment “authorized by the custom of the service,” they are punishable as
“general” or “simple” disorders, with a maximum sentence of four months of confinement and forfeiture of two-thirds pay per month for four months.

The second quote refers to the principle of lenity, noting that it wouldn't make sense to have such a large exposure to punishment under ambiguous provisions of the UCMJ for actions that Congress didn't even criminalize for civilians.

Judge Baker, as he has done a number of times this term, dissented, in part, asserting that the specification in Beaty was "the same offense" as possession under the CPPA and noting that First Amendment protections for military members have long been less than those afforded to civilians.

Detainees’ Lawyers Can’t Look at Leaked Documents

The New York Times reports that hours after WikiLeaks, the Times and other news organizations began publishing leaked documents regarding Guantánamo detainees online yesterday, the Justice Department informed Guantánamo defense lawyers that the documents remained legally classified even after they were made public. The lawyers have security clearances and are obligated to treat the readily available files “in accordance with all relevant security precautions and safeguards.”

Joseph Margulies, a Northwestern law professor who represents a detainee, told the Times that the prohibition has serious implications.  He explained that decisions about who gets released have been influenced by politics and public pressure as much as by legal standards.  “It’s important to be able to use these documents to shape and inform the discussion in the public square,” he said.  He further stated that if a leaked risk assessment contains clearly disproved accusations about a prisoner, a lawyer should be able to publicly refute it.

Destroyer squadron boss fired on deployment

San Diego Tribune reports:

A senior officer deployed with the Carl Vinson Carrier Strike Group operating in the Arabian Sea was fired Saturday while an investigation looks into allegations of an “inappropriate relationship,” the Navy announced Monday.

Capt. Donald Hornbeck, commodore of San Diego-based Destroyer Squadron 1, was relieved by the Vinson strike group commander, Rear Adm. Samuel Perez, Navy officials said.

“There is an investigation into an allegation of an inappropriate relationship,” Lt. Beth Teach, a 3rd Fleet spokeswoman, said Monday. The Navy provided no other details.

Cherry Point Lance Corporal sentenced in death of his 2-year-old

Sun Journal reports:

A Cherry Point Marine Lance Cpl. Preston D. Walker was sentenced Tuesday at a general court-martial aboard Cherry Point to 25 years in the brig after his court-martial on charges that he killed his 2-year-old daughter late last May.

Marine Gunnery Sgt. Reina Barnett, Cherry Point public affairs officer, said Walker earned his rank May 1. He worked as a warehouse clerk in MAG-14. Walker’s rank was reduced to private, he received a dishonorable discharge and he must forfeit pay and allowance. The death occurred in base housing and was considered to be suspicious. The child allegedly fell down a flight of stairs on May 31, 2010. She died June 10.

Tuesday, April 26, 2011

Canadian court martial begins for second time

A Canadian court martial began for the second time in the killing of a tentmate in Kandahar, Afghanistan.  The Canadian Press reports that a new court martial for a former soldier charged in the fatal shooting of a fellow reservist in Afghanistan began today.  Matthew Wilcox was found guilty in July 2009 of criminal negligence and negligent performance of duty in the death of Cpl. Kevin Megeney.  However, the Court Martial Appeal Court of Canada set aside the guilty verdict last year after Wilcox's lawyers argued the makeup of the military jury was unfair.  Wilcox's legal team argued the military panel hearing the case should have consisted of five members, instead of only four. One member on the panel was excused due to a conflict with a work commitment but he wasn't replaced with an alternate.  During the first trial, the prosecution put forward the theory that Wilcox and Megeney were playing a game of "quick draw'' in their tent at the Kandahar Airfield base when Wilcox's loaded pistol accidentally fired, hitting Megeney in the chest.

Top Two Navy Officers of the USS Ponce Were Relieved of Command

Stars and Stripes reports that the top two officers of the USS Ponce were relieved of command Saturday after an investigation into accusations of poor leadership, including multiple incidents of hazing as the ship sailed in the Mediterranean in support of missions in Libya, a Navy spokesman said.

Cmdr. Etta Jones, the commanding officer of the Austin-class amphibious transport dock, was relieved “due to her demonstrated poor leadership and failure to appropriately investigate, report and hold accountable sailors involved in hazing incidents,” said Lt. Nathan Potter, a spokesman for the Navy’s 6th Fleet. “Additionally, she failed to properly handle a loaded weapon during a security alert, which endangered some of her crew.”

Her executive officer, Lt. Cmdr. Kurt Boenisch, also was relieved for failure to effectively support the command and ship’s commanding officer, Potter said. Both were relieved by Vice Adm. Harry Harris, commander of 6th Fleet.

Motions Hearing in Holmes "Kill Team" Case

LTC Kwasi Hawks considered evidence from a motions hearing in the general court-martial of PFC Andrew Holmes, one of the accused "Kill Team" members of the 5th Stryker Brigade.  Holmes' defense attorneys brought motions challenging the cause of death for the Afghan civilian Holmes is accused of killing, and they seek Holmes' release from pretrial confinement.

Monday, April 25, 2011

Leaked Classified Files Offer Insights into Detainees

The New York Times reports that more than 700 classified military documents have been leaked.  The documents were made available to The New York Times and several other news organizations.  They  provide "new and detailed accounts of the men who have done time at the Guantánamo Bay prison in Cuba, and offers new insight into the evidence against the 172 men still locked up there."  The documents include assessments of detainees written between February 2002 and January 2009.  Among other details, the documents meticulously record the detainees’ possessions at the time of capture, illnesses, and infractions committed at GTMO.  The Times reports that the documents are "largely silent about the use of the harsh interrogation tactics at Guantánamo — including sleep deprivation, shackling in stress positions and prolonged exposure to cold temperatures — that drew global condemnation."  However, the article also points out that the documents "show the seat-of-the-pants intelligence gathering in war zones that led to the incarcerations of innocent men for years in cases of mistaken identity or simple misfortune."  

U.S. sailor accused of raping teacher in a Kampala hotel

New Vision Online reports that an American sailor is being charged with raping a Peace Corps volunteer teacher in a  hotel in Kampala, Uganda. Camaren Walker faced an Article 32 hearing in Norfolk, Virginia on Thursday and Friday.   The 26-year-old accuser teaches at a girls’ school in a remote town in northern Uganda.  The incident reportedly occurred in November, while Walker, a builder, was assigned to a construction project for a SEAL team.  According to the article, the accuser testified that what began as a consensual sexual encounter in Walker’s hotel room turned violent after she insisted that he use a condom. According to the testimony, the accuser met Walker on a night-out with three other young women, all American Peace Corps volunteers. The three other women testified for the defence, two of them by telephone. They apparently testified that the conversation during their night out turned to how long it had been since each of the four women had sex. After it was determined that the accuser had been abstinent the longest, there was a consensus that she should pair up with Walker for the night. 

Saturday, April 23, 2011

President Obama: Manning Broke the Law

NIMJ President Eugene Fidell weighed in on President Obama's assertion that Private Bradley Manning "broke the law" after protesters confronted Obama about Manning's pretrial confinement conditions at a high-dollar fundraiser earlier this week. 

The comments raised the specter of unlawful command influence in the case by having the individual (the President) who would be required to approve a death sentence if Manning is convicted and capitally sentenced prejudge Manning's guilt before the case is even referred to court-martial.  While the UCI argument might not win in this case, it's certain to be closely examined by Manning's defense counsel as the case moves forward.

Friday, April 22, 2011

Court-Martial for Gettysburg XO

The former executive officer of the USS Gettysburg, CDR Joseph Baxter, who was relieved of his duties as XO last fall has had charges of sexual assault, assault and sexual harassment referred to a general court-martial.  No court-martial date is yet set.

Convening Authority Takes Action on Lakin Case

CAAFlog broke the news first, but now The Republic and Army Times are also reporting that the general court-martial convening authority for the Military District of Washington, MG Karl Horst, has taken action on LTC Terrence Lakin's case by approving the adjudged sentence of 6 months in confinement and a dismissal from the service.  Anyone have a copy of the action to send to

UPDATE: Pretrial Confinement to End for Kill Team Soldier?

After 10 months in pretrial confinement, accused 5th Stryker Brigade soldier, SPC Michael Wagnon, is seeking release from confinement from the military judge presiding over his case.  Wagnon is alleged to be one of the participants in the "Kill Team" that pursued civilian Afghanis.  Wagnon still faces a murder charge, although the obstruction of justice charge has been dropped.  His court-martial is scheduled for June.

UPDATE:  LTC Kwasi Hawks ordered Wagnon released from pretrial confinement to be restricted to the limits of his on-base home (with electronic monitoring).

Special Call for Papers for The Military Law and the Law of War Review

The Military Law and the Law of War Review presents Call for Papers:

The Role and Responsibilities of Legal Advisors in the Armed Forces: Evolution and Present Trends
Articles related to this topic should in principle be between 2500 and 6000 words long(footnotes included) and should be submitted by 15 July 2011 at the latest.The Editorial Board welcomes in particular contributions from current/former civilian/military legal advisors who have experience in this field. Contributions should focus on legal questions associated with the conduct of operations (taking jus in bello and international human rights law, as applicable, duly into account) and may embrace one or more of the strategic, operational, or tactical level perspectives.

The Editorial Board will select papers for publication in The Military Law and the Law of War Review by 31 August 2011.

Military Operations in Libya
Articles discussing legal questions associated with the current military operations in Libya should be submitted by 15 September 2011. The Editorial Board welcomes brief contributions (about 3000 words – footnotes excluded) as well as larger contributions (about 6500 words – footnotes excluded) from practitioners and scholars. Focus areas may include – but are not limited to – questions regarding the interpretation and application of Chapter VII of the UN Charter (e.g. the measures carried in the framework of the ‘No-Fly Zone Plus’ and the embargo operations),including in relation to the Responsibility to Protect (in the context of which recent UN Security Council Resolutions regarding Cote d’Ivoire may also be considered relevant); the manner in which Balkans/Rwanda Lessons Learned have been taken into account in the decision-making process concerning UN Security Council Resolutions 1970 and 1973; the conduct of operations; and the legal ramifications of the recognition of and cooperation with the Libyan insurgency.

The Editorial Board will select papers for publication in The Military Law and the Law of War Review by 1 November 2011.

Thursday, April 21, 2011

Significant Clemency for Chief Gurney

The 18th Air Force commander, Lt Gen Robert Allardice, reduced CMSgt William Gurney's confinement by 80% (20 months to 4) and reduced the adjudged dishonorable discharge to a bad-conduct discharge when he took action on Gurney's case this week.  (Of course, any punitive discharge won't take effect until the completion of appellate review, if the sentence survives the review.)  The former Air Force Materiel Command chief's court-martial stemmed from a series of allegations of sexual predation upon subordinates, described in the article as follows: 

Gurney was convicted or pleaded guilty to 15 specifications involving 10 women during court-martial, including charges of maltreatment, failing to maintain a professional relationship, adultery, misuse of a military computer and cell phone and indecent conduct. He was acquitted of groping a senior airman without her permission and misuse of his office.

It's not clear from the Air Force Times piece whether the 18th Staff Judge Advocate, Col David Dales, recommended in his SJAR that Allardice grant clemency or not.  I remember Col Dales from his time as the SJA at Kunsan AB in South Korea.

Our previous coverage of this case is here and here.

Bozicevich Findings Case Underway

The government made its opening statements yesterday in the capital court-martial for accused double-fragger SGT Joseph Bozicevich.  The trial counsel described Bozicevich as shouting his intent to kill soldiers who had just reprimaned him before firing 27 rounds of ammunition in the melee that left the 2 fellow soldiers dead.  Bozicevich's defense counsel chose to reserve his opening statements until the close of the government's findings case.

Additional Information on the Nashiri Charges

Courtesy of the Miami Herald's Carol Rosenberg (because, of course, she provides far more timely information on the military commissions than comes from DoD itself), we have a copy of the charge sheet preferred against accused USS Cole bombing mastermind Abd al Rahim Hussayn Muhammad al Nashiri yesterday and his defense counsel LCDR Stephen Reyes' response to the preferral.  Reyes points out some serious issues with bringing potentially capital charges in this case, notably, Nashiri's waterboarding and the uncertainty surrounding capital litigation in the commissions (such as whether pleas are allowed and execution methods).

Manning Moved to Leavenworth

As predicted earlier in the week, PVT Bradley Manning, the accused Wiki___er, was transferred from the Marine brig at Quantico to a new pretrial confinement facilityat Ft. Leavenworth.

Wednesday, April 20, 2011

DOD Announces Charges Sworn Against Nashiri

After Obama's announcement and executive order earlier this month, the military commissions seem to be finally starting back up.  The Department of Defense announced today that military commissions prosecutors have sworn charges against Abd al Rahim Hussayn Muhammad al Nashiri of Saudi Arabia. The chief prosecutor has recommended that the charges against Nashiri be referred as capital. The charges allege that Nashiri was in charge of the planning and preparation for the attack on USS Cole in the Port of Aden, Yemen, on Oct. 12, 2000.  The attack killed 17 sailors, wounded 40 sailors, and severely damaged the ship by blowing a 30-foot by 30-foot hole in her side.  In accordance with the Military Commissions Act of 2009, the sworn charges will be forwarded to the Convening Authority, Bruce MacDonald.  The convening authority will make an independent determination as to whether to refer some, all, or none of the charges for trial by military commission. 

CAAF Rule Changes Take Effect May 1

Some "housekeeping" rules changes at CAAF take effect May 1, 2011.  Changes to Rule 9(e) reflect the status of the current security personnel assigned to the Court, while Rule 41(b) acknowledges Congress' recent passage of contempt powers for military judges, now codified at Article 48, UCMJ.

Bozicevich Opening Statements Today

With panel selection complete, opening statements in SGT Joseph Bozicevich's capital court-martial for a double fratricide in Iraq are scheduled to begin today at Ft. Stewart.  While attempting to find out how many members will hear this case, I stumbled onto a blog written by the widow of another double-fratricide-in-Iraq incident.  Barbara Allen has been attending the Bozicevich hearings, and she reports there are exactly 12 members on the panel.

Tuesday, April 19, 2011

UPDATED -- Khadr Clemency Allegations

I wondered why the defense counsel didn't attack the government expert witness more thoroughly in the Omar Khadr military commission last fall.  We now learn that Khadr's defense counsel alleges in clemency matters submitted to the convening authority that the defense counsel claim to have believed the pretrial agreement they'd worked out for their client could fall apart if they challenged Dr. Michael Welner during cross-examination in sentencing.  You can review in-depth coverage of Welner's testimony here.  Let's just say Welner's conclusions and areas of purported expertise were expansive.

UPDATE:  Here are additional descriptions of the contents of the clemency matters, including a report that Administration officials don't want Welner to testify in future commission hearings.  I found a couple of excerpts from Michelle Shephard (Toronto Star reporter) amusing:

Army Col. Patrick Parrish, the judge presiding over Khadr’s case, allegedly quipped to the defence that “Dr. Welner would have been as likely to be accurate if he used a Ouija board,” according to the motion.
In an emailed response to the Star Monday, Welner characterized the defence document as “slimy and pathetic.”

Manning on the Move

After nearly a year in confinement in Kuwait and then Quantico, PVT Bradley Manning will soon move to a new pretrial confinement facility at Ft. Leavenworth, Kansas.  Here's the DoD briefing transcript from unusually high-level officials.

UPDATE: Reportedly, the move comes at the conclusion of the RCM 706 sanity board proceedings, and Manning's case will remain under the jurisdiction of the Military District of Washington as the general court-martial convening authority.

NY City Bar Letter to DoD Regarding GTMO Protective Order

The Association of the Bar of the City of New York sent a letter to Jeh Johsnon, DoD General Counsel Regarding the Protective Order Governing Guantanamo Defense Counsel.  The letter expresses the Associations concern with the Protective Order and Procedures for Counsel Access to Detainees Subject to Military Commission Prosecution at the United States Naval Station in Guantanamo Bay, Cuba, dated March 4, 2011 (the “Protective Order”). They urged delay of the effective date of the Protective Order until the matters raised in the letter can adequately be addressed.  The Association is most concerned with the Protective Order’s provisions that threaten the attorney-client relationship by dramatically restricting and burdening communication between an attorney and his or her client, and by requiring counsel, under certain circumstances, to forfeit the protections of the attorney-client privilege in order to provide representation consistent with the terms of the Protective Order.

Fidell's Letter to NY Times

Eugene Fidell, NIMJ's president and military law teacher at Yale law school, wrote a letter to the editor of the New York Times that was published today.  You can read the letter here.  It is a response to William Shawcross' Op-Ed, “Lessons From Nuremberg,” published on April 10.  Fidell points out that, "If Congress were willing to lavish as much time and effort on improving military justice for G.I.’s as it has on preventing the closing of Guantánamo and tying the president’s hands in selecting a forum for 9/11 cases, it would give military personnel the same untrammeled access to the Supreme Court as the terrorist suspects."   

Rota Latest Naval Facility to Lose Commander

Naval Station Rota's commander, CAPT William Mosk, was relieved of duty for issues surrounding an ongoing NCIS investigation regarding drug use by the station's members.  Although apparently not personally implicated in the investigation, Mosk's boss, RADM Tony Gaiani, lost confidence in Mosk's ability to handle the investigation.  Considering Mosk was scheduled to PCS (translation: move to a new assignment) 2 months from now and the investigation is only 6 weeks old (meaning command action would likely take place after Mosk's regularly scheduled departure from command), whatever triggered the loss of confidence must have been significant.

PJ Crowley and PVT Manning--Crowley Speaks (Again)

Politico brings us insight from and about career Air Force officer and former State Department spokeman PJ Crowley.  Crowley, you'll recall, recently stepped down from his post after calling accused Wiki___er PVT Bradley Manning's pretrial confinement treatment "ridiculous, counter-productive, and stupid."  Not to be confused with those who label Manning's actions heroic, Crowley believes Manning should be punished harshly--after he gets court-martialed.

Monday, April 18, 2011

Case Study: How Not to Command a Unit

The Air Force Inspector General released a report on Brig Gen Thomas Botchie, former commander of the Ohio ANG's 121 Air Refueling Wing, that serves as a good case study for a commander's course.  In addition to numerous reports of fraternization and unprofessional relations, the report details a "toxic" command climate, misuse of government resources, and allegations of sexist, "imperial," and boorish behavior by the wing king. 

I guess we shouldn't be surprised by the additional article that alleges the entire unit was rife with unprofessional actions.  My favorite quote comes from one of Botchie's subordinate commanders, Col Stephen McMahon.  Skinny-dipping “is a practice I’ve partaken in all my life at my family farm, and I foolishly allowed myself to do it in this setting,” McMahon explained in response to reports he'd gone swimming in his birthday suit with subordinates while on a temporary duty trip.  Gee, I grew up in a rural area with water in my backyard; I guess I missed out by not considering skinny-dipping while TDY.

Botchie and McMahon both retired last year.

UPDATED: DoD IG Report Clears McChrystal and his Staff

A certain hastily-retired 4-star might respond "It's a little late now," but the Department of Defense Inspector General has now confirmed the results of an Army Inspector General investigation.  Both investigations cleared General Stanley McChrystal, then the senior US military officer in Afghanistan, and his staff of all chargeable offenses related to the Rolling Stone article Michael Hastings wrote last year about "The Runaway General" that got McChrystal fired over allegations of comments reflecting negatively on senior Administration officials, to include Vice-President Biden.  Neither McChrystal, nor Hastings, made statements to the investigators in this latest inquiry, relying on their previous statements.
Ironically, President Obama recently tapped McChrystal to head a new initiative devoted to helping military families, so I guess there are no hard feelings between the 2 men.

UPDATED:  DOD/IG has now posted a redacted copy of the report.

Obama would prefer civilian court for alleged 9/11 co-conspirators

USA Today provides excerpts from an interview President Obama did with the Associated Press.  In the interview, Obama states he thinks the 9/11 case should have been handled in civilian court in New York.  Here is some of what he said:     
I know that it's a very emotional issue for folks. But one of the things -- I was speaking to a group, and somebody from New York asked me about this issue because of Attorney General Holder's decision to try KSM -- Mohammed -- who was the planner of 9/11.

And they said, we're glad you're not doing it in New York. And I said it was important for us to make a decision to go ahead and prosecute this guy -- it's been 10 years now, the families deserve justice. But I'm -- I remain convinced we could have handled this in New York. We could have handled it in a normal court.

I think it's very important for us not to elevate folks who are murderers and thugs into something special. Our criminal justice system is -- and our trial system is capable of prosecuting terrorists. We've done it before; we can do it again. And I think that we do a disservice to the cause of America's security when we elevate these guys into some special category. They're just a bunch of people who had no regard for human life and are willing to kill people, and we've got to go after them with everything we can ...

Military Court for Anti-government Protestors in Bahrain

The Associated Press reports that seven detained anti-government protesters will go on trial before a Bahrain military court for the killing of two policemen.  A military prosecutor charged seven suspected opposition supporters Sunday with premeditated murder of the two policemen.  The group's defense attorney himself has been arrested. Security forces took Mohammed al-Tajer, described as one of the most prominent human rights attorneys in Bahrain, into custody on Saturday. The group has a court hearing scheduled for tomorrow.
Other opposition leaders also face military charges. The editors of Al Wasat have been charged with "publishing fabricated news," ''harming public safety" and "damaging national interests."

Earlier this month the authorities banned media from covering legal proceedings in the country's military courts. There has been a harsh crackdown on dissent in the Gulf kingdom.  Hundreds of protesters, opposition leaders and human rights activists have been taken into custody since Bahrain imposed martial law last month.  Human Rights Watch reports that since March 15, Bahrain "has been subject to martial law, officially labeled a state of 'National Safety,' that gave authorities wide powers of arrest, censorship, and prohibitions on freedom of movement and association." 

CAAF Denies Writ on Bozicevich Counsel Issue

We previously tracked (here, here, here) Sgt Joseph Bozicevich's attempts to force the government to provide him with counsel experienced in capital litigation for his double-murder general court-martial.  It seems he won't get his request, as CAAF denied his writ-petition on Thursday, making him ineligible for Supreme Court review.  Here's the docket entry from CAAF:

Misc. No. 11-8020/AR. Joseph C. BOZICEVICH, Jr., Petitioner v. Tara A. Osborn, Colonel, U.S. Army, Convening Authority, The United States Army, and the United States, Respondents. CCA 20110173. On consideration of Petitioner’s petition for extraordinary relief in the nature of a writ of mandamus and his motion for a stay of the proceedings, it is ordered that said petition is hereby denied without prejudice to raising the issues presented during the normal course of appellate review should Petitioner be convicted, and said motion is denied as moot.

Sunday, April 17, 2011

Louisiana Court Upholds State Special Court-Martial Conviction

In State v. Davis, the Louisiana Court of Appeal, First Circuit, in an opinion by Guidry, J., affirmed a state special court-martial involving recruiter misconduct. Issues raised included post-trial delay, speedy trial, unlawful command influence, prosecution by someone other than the DA or a designated assistant, personal jurisdiction, and failure to consider clemency matters.

Saturday, April 16, 2011

Sri Lanka CJ Denies Political Influence on Fonseka Case

According to the Colombo [Sri Lanka] Daily Mirror, outgoing Chief Justice Asoka de Silva has said in an interview with the BBC's Sinhala service that the court was not subjected to political influence in the case of Gen. Sarath Fonseka. Chief Justice de Silva explained that Gen. Fonseka was subject to trial by court-martial for six months after retiring. The Daily Mirror story appears here.

Friday, April 15, 2011

CAAF Decides Trio of LIO Cases

In 3 opinions (1 each from the Army, Navy, and Air Force) released yesterday, the Court of Appeals for the Armed Forces applied United States v. Jones, 68 MJ 465 (CAAF 2010), and United States v. Alston, 69 MJ 214 (CAAF 2010), its reinterpretations of the standards for determining whether offenses constitute valid lesser-included offenses that put the defense on adequate notice of what elements and legal theory they are defending against.  As the result of Jones, crimes charged under Clauses 1 and 2 of Article 134 that were previously considered LIOs of enumerated offenses found in the rest of the UCMJ's punitive articles are no longer valid LIOs.

Judge Ryan wrote 2 of the opinions, and Judge Stucky wrote one.  Judge Baker dissented from the Ryan opinions and concurred in the result in the third case.

United States v. Girouard, a Judge Ryan opinion, appears to be the main case of the 3 decided yesterday; in any event, it is by far the longest.  Girouard deals with a squad leader implicated in the killings of 3 Iraqi civilians.  While Girouard was charged with premeditated murder for the deaths, Girouard's trial defense counsel convinced the military judge to instruct the members on the lesser-included offense of negligent homicide, which was listed as an LIO in the Manual for Courts-Martial at the time of the trial.  The members found the appellant guilty of the LIO.  After Jones, the appellate defense counsel challenged the LIO instruction on the basis that the offense of negligent homicide has at least 1 statutory element not included in the offense of premeditated murder.  CAAF agreed with the defense argument and reversed the convictions for negligent homicide while Judge Baker repeated his objections from his Jones dissent regarding the Court's testing for prejudice and the return to a statutory elements test.

In United States v. McMurrin, the majority, in an opinion written by Judge Ryan, holds that negligent homicide is not a lesser-included offense of involuntary manslaughter for much the same reasons laid out in Girouard.  Accordingly, Judge Baker dissented.

In United States v. Bonner, Judge Stucky wrote for the majority in finding that assault consummated by a battery was a legitimate LIO of wrongful sexual contact, reaffirming Alston's holding that the statutory language of the elements of the 2 offenses need not be identical in order for the Court to determine the elements of the lesser offense are included in the greater offense's elements.  Judge Baker summarily concurred in the result, again citing his Jones dissent.

NIMJ's Global Reach

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Rape Allegation Against Midshipman Goes to Article 32 Hearing Next Week

With the renewed focus on sexual assault in the military, you knew it was only a matter of time before an allegation came from one of the service academies.  Somehow, I doubt the Naval Academy is pleased that the attention it received for the expulsions of a number of midshipmen for spice use has been replaced by publicity about the first "mid" to face a sexual assault charge in the past 3 years.  Midshipman 4th Class Patrick Edmond's Article 32 investigation is scheduled to begin on Monday.  He's alleged to have assaulted a fellow midshipman in the dorms.  Originally, the complainant made a restricted report last fall, but she later changed to an unrestricted report, which allows for prosecution.

High-Level Attention for Ultra-Low Flyover

We're all familiar with "constituent service"--you ask your Congress member for assistance in getting your Social Security check or cutting through other red tape, and it's in the member's interest (read: votes) to attempt to solve your problem.  In the military justice world, we see letters to local Congress members requesting help in righting a perceived wrong (translation: help get my rank back or stop my court-martial).  I've rarely seen much in the way of a response besides "We looked into this.  Here's what the military told us. Thank you for your service."

So, I was somewhat surprised to read that retired Army helicopter pilot U.S. Rep. Leonard Boswell, of Iowa, wrote a letter on behalf of the now-infamous flight lead for the ultra-low football game flyover last fall.  Boswell wrote the letter to the investigating officer assigned to review Maj Christopher Kopacek's actions in the flyover, touting Kopacek's great USAF record (apparently unaware of previous issues) and what a shame it would be if Kopacek's career ended over this incident. 

UCI, anyone?

Marines Lose Jobs After Instructor's Drowning

The January death of Assault Amphibian School Battalion instructor Sgt Wesley Rice in a training accident has led to the firing of the school's commander, Lt Col James Harris IV, and 7 others.  Rice drowned when the amphibious vehicle (amtrac) in which he was riding sank.  An investigation found "a mechanical failure on the vehicle, nonstandard training and operating procedures, and ultimately a lack of sufficient oversight within” the school as contributing factors to Rice's death.

Ft. Hood Victims to get Combat Status?

Here's a piece from Stars and Stripes that mentions a Texas representative's attempts to get the victims of the Ft. Hood massacre designated as combat veterans.  That will open up additional benefits, medal eligibility, and special pay opportunities, if passed. 

The end of the article is clearly incorrect in proclaiming that Major Nidal Malik Hasan's court-martial is scheduled to begin later this month.  The last time I checked, the case hasn't even been referred to a court-martial, and the general court-martial convening authority won't make that decision until late April.  By that point, it's almost certain (and clearly part of the defense strategy) that a new commander will be the one to make the decision whether to send Hasan's case to a court-martial and whether it will be a capital case.  Given the myriad of issues in this case, I can't see this case getting to a court-martial before the November anniversary of the shootings.

Military Justice on the Big Screen: The Conspirators

Looking for a good movie to see this weekend?  While out in some theaters before now, today is the official opening day for The Conspirator, Robert Redford's depiction of the military commission for Mary Surratt on charges that she aided in the plot to assassinate President Abraham Lincoln.  While the tale is not new, it's based on previously little-known real events, and it's perfectly timed for today's 146th anniversary of Lincoln's assassination.  (A bit of trivia--Lincoln was shot on April 14, but died the next day.)  Last Sunday's Parade magazine cover story was on the film.

Here's an extensive review of the film written by a researcher.  (Spoiler alert--for those who don't know how the saga ends, you might not want to read this.)  Of particular note for military justice practitioners is the portrayal of Surratt's attorney, Frederick Aiken, who fought for the Union during the Civil War.

An avid reader alerted us to the fact that Colonel Fred Borch (retired), currently the regimental historian at the Army JAG School and Legal Center, had a hand in the filmHere is his short biography of Mary Surratt and an interview with Borch.  National Geographic did a special on the story to mark the start of the Civil War.  Here are some YouTube clips on the case, and you can find reviews and additional interviews in the Washington Post and the PBS NewsHour.

This might not be another A Few Good Men (also based--loosely--on a true story), but the film has lessons that resonate even today.

H/t to RDG II.