Tuesday, May 31, 2011

UPDATED: 9/11 Case Military Commission Charges Coming Today

NBC reports that the military is reinstating military commission charges against Khalid Sheikh Mohammed and his fellow alleged 9/11 co-conspirators as early as today, a move we expected and the first step towards getting these cases to trial, nearly a decade after the horrible events of that September morning.

The commission charges against these 5 men were dismissed early last year when it appeared the cases were headed for civilian federal court.

UPDATE: DoD now reports the charges have been re-preferred

UPDATE 2:  Here's a copy of the charge sheet.

Reminder: Historic Civilian Contractor Argument at ACCA

Don't forget tomorrow afternoon's historic Army Court of Criminal Appeals' argument in US v. Ali.  The argument will begin at 1400 hours in the ACCA courtroom (right above the Ballston Metro).  The issue is whether the military judge at the court-martial properly determined that the Army had court-martial jurisdiction over a civilian contractor in Iraq.  NIMJ's previous coverage (including briefs of the parties) is here and here.

Egyptian Military Leaders Admit, Defend "Virginity" Checks for Protestors

Nearly 3 months after female protestors in Egypt alleged the military had subjected them to "virginity" tests upon their arrests, a senior general admits that such checks did occur.  However, the general defended the tests as a means of defending against any subsequent allegations of sexual assault while the women were held in military custody.  According to the general, none of the women were determined to be virgins.  (So, I guess that means it would be OK for the military to assault them, using that logic?)  The women faced military trials for their protests and many were sentenced to a year in confinement before the government reversed course.

Here's our earlier coverage of the highly demeaning situation.

Cyber Attacks are Acts of War

The Wall Street Journal reports that the Pentagon has concluded that computer sabotage coming from another country can constitute an act of war.  This is a finding that for the first time opens the door for the U.S. to respond using traditional military force to cyber attacks.  The WSJ article explains that unclassified portions of DoD's report are expected to become public next month and "represents an early attempt to grapple with a changing world in which a hacker could pose as significant a threat to U.S. nuclear reactors, subways or pipelines as a hostile country's military."  The report apparently concludes that the Laws of Armed Conflict apply in cyberspace as in traditional warfare.

Friday, May 27, 2011

Some Gave All

As we enjoy all that is summer in America this holiday weekend, let's not forget that the freedom to travel wherever we want, enjoy the pool with people of all races, and say the silliest things without repercussions came at the price of thousands of our nation's men and women sacrificing their lives. Remember the veterans who gave all for us this Memorial Day.  CAAFlog has a tribute to the members of our JAG family who have made the ultimate sacrifice over the past decade.  Thank you to all of you who continue to guard our way of life and bring it to others around the world.  FREEDOM ISN'T FREE.

(Disclaimer:  I'm not a huge Billy Ray Cyrus fan, but this song sums up my sentiments.)

Civilian Extra-Territorial Jurisdiction Act Hearing before Senate Committee

The following report was written by NIMJ summer intern Richard Weiland who attended the Senate Committee on the Judiciary's hearing on CEJA.  You can listen to the hearing or read the transcripts from the Committee's Web site.

On Wednesday, 25 May 2011, the Senate Judiciary Committee, under Chairman Patrick Leahy (D-Vermont), held a hearing entitled “Holding Criminals Accountable: Extending Criminal Jurisdiction to Government Contractors and Employees Abroad.” I had the privilege of observing the hearing on behalf of NIMJ.  The heaing was called to discuss the new Civilian Extraterritorial Jurisdiction Act of 2010, or CEJA, which is an effort on the part of Congress to extend U.S. jurisdiction to contractors overseas who are not employed directly by the Department of Defense. It intends to ensure that all Americans overseas are covered by criminal law, and that they remain accountable for their actions despite currently being in a jurisdictional grey area. The connection of this law to improving national security and foreign relations with host nations was also stressed.

Senators present included Patrick Leahy, (D-VT), Chuck Grassley (R-IA), Sheldon Whitehouse (D-RI), Al Franken (D-MN), and Richard Blumenthal (D-CT). Those testifying in front of the committee included Tara Lee, Partner and Global Co-Chair of Transnational Litigation for DLA Piper LLP (US); Geoffrey Corn, Associate Professor of Law, South Texas College of Law; Michael Edney, Of Counsel for Gibson, Dunn & Crutcher; and the Honorable Lanny A. Breuer, Assistant Attorney General, Criminal Division of the U.S. Department of Justice.

Beginning with Chairman Leahy’s statement, the overwhelming consensus was that CEJA would be beneficial for providing judicial continuity overseas and would do much to cut down on the feeling of a “culture of impunity” by those in the United States, and in host nations, as long as the bill is specifically tailored not to go against the current authorities of the intelligence community.

Professor Corn explained the history of CEJA and similar legislation. Previously, the only legislation covering civilians supporting the military overseas was the Uniform Code of Military Justice. U.S. v Averette (1970) significantly changed its applicability, as the Court of Military Appeals decided that the UCMJ only applied to civilians in times of formally declared war. MEJA—the Military Extraterritorial Jurisdiction Act of 2000—began to cover this gap, but according to Mr. Breuer, “MEJA leaves significant gaps in our enforcement capability.” Congress attempted to address this by resurrecting UCMJ applicability to contractors in 2006 by including “contingency operations,” but Professor Corn asserts that this “raises significant constitutional questions.” As a result, no law exists that clearly extends jurisdiction to contractors overseas. CEJA, much like MEJA, is designed to extend US jurisdiction to contractors overseas, but unlike MEJA, CEJA covers contractors and related employees working for groups other than the DOD. Without CEJA, this gap in jurisdiction will remain.

This gap has created problems due to the increasing reliance upon civilian contractors in the field. All contractors overseas who are not working for DOD are currently under the jurisdiction of the host nation, but according to Mr. Edney, the U.S. “customarily seeks immunity for all its employees and contractors” from that jurisdiction, citing non-existent mechanisms of accountability. Ms. Lee explained that as a result, that contractors exist in a sort of grey area, making “the obligation to provide [the contracting community] with clarity…especially strong.” But she holds that CEJA “has the potential to provide more certainty regarding the application of U.S. criminal law to overseas contractors,” closing the gap. Professor Corn held similar views, stressing that “CEJA will contribute to the deterrence of contractor misconduct by placing contractors on clear notice that such misconduct is subject to federal criminal sanction.” He also stated that this clarity “will reduce the risk that the credibility of U.S. operations will be compromised by a perception of impunity for contractor misconduct.”

Passing CEJA would also save resources. According to Mr. Breuer, as “cases that would otherwise be straightforward can turn into complex investigations focusing not just on the underlying criminal conduct, but also on the scope of the defendant’s employment, his or her specific work duties, and other jurisdiction-related facts,” especially if classified information is needed to establish such facts. Expanding jurisdiction through CEJA would make such cases straightforward. In this respect, Professor Corn brought up the idea of detailing Judge Advocates as Special Assistant US Attorneys in questioning, which would save more resources, and allow the original investigator and prosecutor to follow the case from start to finish. This would bridge the gap created by the process of having such cases—as seen in MEJA—investigated by the military overseas and then actually litigated by US Attorneys stateside.

Mr. Edney urged caution in passing this law “to protect ongoing and future intelligence and other national security operations,” a position supported by Senators Blumenthal and Whitehouse. Traditionally, intelligence officers commit what would be considered crimes in sanctioned actions, as the business of intelligence is to obtain unauthorized access to secret information. Mr. Edney’s point is that CEJA must “explicitly exempt national security and intelligence activities from the contemplated expansion of criminal law abroad.” However, all parties involved agreed that intelligence officers should be held accountable for unsanctioned acts, which would be crimes. So the final consensus was that if CEJA preserved the authorizations already in place, this would help clarify their boundaries, much like the contractor community.

In short, passing CEJA would help to close the gap in jurisdiction over civilians left by MEJA, a gap which is becoming increasingly important as greater numbers of contractors employed by groups other than DOD are used in military and other operations overseas. If successful, it would bring US law to all persons involved in US operations overseas and help to squash any perceptions of impunity at home and abroad.

Extra-Long Holiday Break in Bozicevich Court-Martial

The court members who will decide SGT Joseph Bozicevich's sentence won't hear any testimony today.  The court-martial is in recess until Tuesday.  Earlier this week, the members returned a finding of guilty on 2 counts of premeditated murder; however, because the vote was not unanimous, the court-martial, which was referred to trial as a capital case, became a non-capital case.

You'll recall that this case already has an extensive appellate history, as Bozicevich attempted to force the Army to provide him with trial defense counsel who had capital litigation experience.  Given the findings verdict, it appears that appellate issue is now mooted.

No Booze for Okinawa Military Members this Holiday Weekend

Here's a JAG School instructor's dream scenario drawn from reality:  We often hear that the military can limit military members' freedoms that might otherwise be problematic in civilian life.  With Super Typhoon Songda scheduled to hit Okinawa this weekend, US military leaders have issued an order that does just that.  While Americans living stateside celebrate the start of summer with backyard barbeques and the requisite brewskies, servicemembers on Okinawa, even those on leave, are prohibited from partaking of alcohol for a specified period until the storm passes.  It's all about operational readiness, making this a legal order.

Honors Fights Move to End Navy Career

The former commander of the aircraft carrier USS Enterprise now faces a board of inquiry to recommend whether his Navy career should end over the raunchy and sophomoric videos he created as the executive officer aboard the Enterprise a number of years ago.  Captain Owen (O.P.) Honors is the subject of a website supporting his efforts to remain in the Navy.  Contrary to the insinuation in the article that a board of inquiry is like a court-martial, a board of inquiry cannot result in a federal conviction, nor a dismissal (punitive discharge for officers) from the service.

Khadr Clemency Bid Denied

Despite leveling fairly serious allegations of prosecutorial misconduct, Guantanamo detainee Omar Khadr, the youngest prisoner remaining at the base in Cuba, and his defense attorneys failed to persuade military commission convening authority Bruce MacDonald (retired Navy TJAG) to grant Khadr any clemency stemming from his commission guilty plea to a wide range of offenses, including the killing of Army Special Forces SGT Christopher Speer in Afghanistan.  See our previous coverage here and here.

Thursday, May 26, 2011

Yonkers Army private pleads guilty in wife's accidental shooting death

Lohud.com, of New York's lower Hudson Valley, reports an Army private from Yonkers pleaded guilty to involuntary manslaughter in the accidental shooting death of his wife at Fort Polk, La. Pvt. Luis Ortiz's wife of 10 months, Samantha Zippo Ortiz, 20, was shot with Ortiz's personal shotgun in their Fort Polk home Oct. 10. Ortiz said the gun went off accidentally. Ortiz pleaded guilty and has been sentenced to 38 months' incarceration with no pay, a bad conduct discharge and a demotion to entry level from a specialist. The parents of the victim are not pleased with the outcome.  "I don't feel justice was served at all," the victim's father said. "They plea-bargained behind our backs."  According to the article, "Ortiz, who had been scheduled for deployment to Afghanistan on Oct. 22, was either removing his privately owned shotgun from a closet or holding it while on the phone before packing it up when the shooting occurred, according to accounts he gave to family members."

Holmes' 32 in Stryker Brigade Case

AFP reports that Private Andrew Holmes's attorney argued at the Article 32 hearing that his client should not be court-martialed.  Holmes is accused of the premeditated murder of a teenage boy in a poppy field near a small Afghan village in January 2010.  He also stands accused of using hashish and possessing photos of the incident and war trophies, specifically fingers taken from corpses.

Wednesday's hearing opened with testimony from Private Jeremy Morlock, who pleaded guilty last November and is now serving a 24-year sentence as part of a deal which gives him immunity from further prosecution. Morlock said he summoned the Afghan man and then threw a grenade at him while Holmes shot at him. He added that he held no malice towards Holmes, whom he treated like "a little brother." Morlock admitted to a history of alcohol and drug problems as well as a record of petty crime, including an assault on his then-wife.  There was also testimony that Morlock was not a "truthful person and a masterful manipulator."

A recommendation by Investigative Officer Major Michael P. Lyles will likely be announced in the next two months.

Wednesday, May 25, 2011

Canadian Ex-Soldier Covers Up Past Court-Martial Convictions

Winnipeg Free Press reports that Paul Young, a former Canadian soldier, was sentenced to a suspended jail term for stealing C$32,000 from a Winnipeg community club, without any knowledge that he had been convicted in court-martial cases during his career. During the trial, Young was treated as a first-time offender, with a clean record; after the trial, he admitted to fraud and convictions for similar offenses that he received in the military.  The Free Press reports that it "uncovered new details about Paul Young's past that raise questions about the plea bargain he struck with justice officials."

A previous court-martial convicted him for selling Canadian Forces computers to pawn shops in the mid-2000s to raise money to cover his debts, along with a 2001 conviction and fine for “offenses of dishonesty.” Neither Young nor the Crown prosecutor brought up these prior offenses during the trial.
Young allegedly stole the money to fuel a gambling addiction, which he developed after returning from peacekeeping missions in Bosnia. Treatment he had been receiving from the military ended with his discharge in 2006 for medical reasons. He stated that it was “a daily struggle” to keep from gambling; this crime and others enabled him to continue.

Young must now pay restitution to the community club, as well as serve community service hours and adhere to a curfew.

(Credit: Richard Weiland)

Army Private Pleads Guilty in Case involving Death of Taliban Commander

Denverpost.com reports that PFC David Lawrence pleaded guilty to murdering Taliban Commander Mullah Mohebullah back on October 17, 2010. Lawrence stated point-blank to the judge that he planned the murder, and simply “went into the cell and…shot him in the face.” He felt that in doing so, he avenged the death of his chaplain and six others who had died the week before the murder. His plea was accepted and he was sentenced to life imprisonment with the possibility of parole along with a dishonorable discharge at the grade of E-1.

Lawrence himself expressed disappointment in his actions; how he dishonored his religion, his country, and his family. Those in court said that he went against all American military values, that his actions exemplified “dishonor…betrayal…cowardice…[cold-bloodedness].” His defense attorney asked for mercy, holding that he joined for the right reasons, but while deployed, he confronted “a faceless enemy, [one] which killed indiscriminately” and “for the first time [that day], the Taliban had a face.”

Psychiatrists deemed Lawrence unable to appreciate the wrongfulness of his actions, finding that he suffered from PTSD and schizophrenia the day of the murder. Despite this evidence and the pleas of his attorney, successive hearing officers found no grounds “to believe that the accused was not mentally responsible for the offense” or “not competent to participate in the defense.” Charges were preferred in accordance with these decisions.

(Credit: Richard Weiland)

Bozicevich Guilty, But Non-Unanimous Findings Vote Takes Death Off the Table

Story here.

Tuesday, May 24, 2011

Moving Towards an Article 32 Hearing in Manning Case?

I don't believe I've ever seen a potential witness' meeting with a trial counsel broadcast across the world before, but there's a first time for everything, I guess.  Wired reports that a key figure in the PFC Bradley Manning (alleged Wiki___er) case will meet with Army JAG officers next week to discuss the case.  Adrian Lamo, the former hacker who alerted authorities about Manning, is set to talk with prosecutors the first 2 days in June, according to the article.

Members Begin Deliberation in Capital Case

The members in the capital court-martial for SGT Joseph Bozicevich are now deliberating on findings in the case.  They must determine whether Bozicevich's shooting of 2 fellow soldiers in Iraq nearly 3 years ago was self-defense or premeditated murder.  The Miami Herald article doesn't mention whether the members were instructed on any lesser-included offenses that might have been reasonably raised by the evidence, although I would imagine the defense would welcome any LIOs available, as an LIO would put the death penalty out of reach on sentencing.

Egyptian Military Court Releases Protestors, Mubarak to be Tried in Court

Wiredupdate.com reports that an Egyptian military court released protesters arrested by the military on March 9, in the Tahrir Square protest. That day, the Egyptian military put down a protest in Tahrir, held because the people’s demands of January 25th had not been met. Another protest was held last Friday in favor of the release of the detainees and other political figures, over 120 people. Other detainees in other incidents have not been released.

Those sentenced to greater than one year of prison had their terms reduced to suspended sentence of one year, and those who had less than a year had their terms reduced to a suspended sentence of six months.

While this is occurring, the LA Times is reporting that an Egyptian newspaper, Al Shorouk, is reporting that former President Mubarak will soon be tried in a criminal court for his actions, mainly corruption and the deaths of anti-government protesters. He should be transferred within seventy-two hours, which goes against his purported deal with the current Egyptian government to trade his assets for amnesty in an attempt to avoid a trial.  It appears the current charges will be in civilian court, although the military is looking into other charges against Mubarak.

(Credit: Richard Weiland)

Army Private to Plead Guilty Despite Evidence of Mental Illness

The LA Times reports that PFC David W. Lawrence will receive a reduced sentence his trial for premeditated murder in death of Mullah Mohebullah. Mohebullah was a senior Taliban commander; Lawrence shot him in the face last October while Lawrence was a guard at the US detention facility in Kandahar. This incident led to increased tensions between the US and Afghanistan, with Karzai asking for a separate investigation and calling on the US to better screen the mentally ill from its units, especially those in forward positions.

The plea agreement is expected to remove the possibility of life sentence without parole from consideration, which would have reflected poorly on the Army if chosen for a twenty-year-old, mentally ill defendant. Army doctors diagnosed him with schizophrenia and PTSD. At the beginning of his tour, Lawrence was profoundly affected by the death of his chaplain, which led to his asking to see a mental health specialist. The Army quickly moved him to a hospital in Kandahar for treatment. Lawrence killed Mohebullah soon after he was released from the treatment. The defense intended to argue not guilty by reason of insanity based on this evidence.

Despite this, evidence did exist to show that Lawrence did in fact premeditate the murder and was conscious of the decision. A board of Army doctors declared that he was “unable to appreciate the nature and quality or wrongfulness of his conduct,” but that he was fit to stand trial.

(Credit: Richard Weiland)

Pre-Trial Confinement of Rwandan Officer Extended

AllAfrica.com reports that a Rwandan military court has ruled to extend the provisional detention of Lt. Col. Ngabo Rugigana, a former head of the Engineering Regiment in the Rwanda Defense Forces, by thirty days. He is currently being detained by that state for allegedly aiding his brother in forming a subversive militia group. The prosecutors, in making their request, argued that if released, Rugigana would escape and “jeopardize” investigations. While those investigations are currently underway, there appears little evidence to continue to detain him; his lawyers had applied for his release accordingly. The judge denied the request, holding that the prosecutors’ request for an extension was “presented in a manner and time that respects the law.”

Rugigana’s brother is Faustin Kayumba Nyamwasa, who was convicted and sentenced last year to twenty-four years in prison for “allegedly forming a terrorist group, threatening state security, undermining public order, promoting ethnic divisions and insulting the person of the President.” Prosecutors hold that Rugigana was aiding his brother, and that in doing so, he has threatened national security.

(Credit: Richard Weiland)

Bozicevich Findings Arguments Today

The Washington Post is reporting that the trial and defense counsel in the SGT Joseph Bozicevich capital murder case will each present their findings arguments today.  This comes after nearly a week of mistrial motions from the defense (all denied, obviously, since the case is continuing). 

Interestingly, a comment on CAAFlog appears to tie the Bozicevich case to the Army crime lab analyst woes.  Bozicevich's civilian defense counsel Charlie Gittins writes that the military judge instructed the members in his capital murder case (presumably Bozicevich, as Gittins earlier in the case argued he didn't have capital litigation experience) to disregard testimony from the USACIL fingerprint expert the government called to the stand.  According to Gittins, this was due to the lab and the expert herself failing to reveal that she had been decertified from certain aspects of her job.  With the various Brady violation allegations in Army death cases (see Behenna), it might be time for a refresher course on the duty to turn over potentially exculpatory information.

Monday, May 23, 2011

Uganda: does conviction for contempt of a general court-martial bar civilian attorney from running for mayor?

Member of Parliament Erias Lukwago (left) has petitioned the Constitutional Court of Uganda for review of a ruling barring him from running for mayor of Kampala because of a 2005 conviction for contempt of a general court-martial. His offense at the GCM was talking without permission in a treason case in which he was defense counsel. The report from In2EastAfrica appears here.

SCOTUS Denies Cert in USACIL-Tainted Case

As anticipated, the US Supreme Court denied cert in the Navy court-martial case of US v. Luke.  Hospital corpsman Ivor Luke sought review by the Court in hopes of overturning his 1999 conviction for indecent assault on a pregnant patient.  Luke's argument focused on the destruction of the evidence now-discredited US Army Criminal Investigation Laboratory (USACIL) analyst Phillip Mills purportedly tested for DNA in the case, arguing that the post-trial revelations about Mills' work should have sufficiently called the verdict into question such that it should have been overturned on appeal.

UPDATED: Ali Appellate Argument Rescheduled

We've now confirmed the rumor we saw reported on CAAFlog. There's been a bit of a shuffle in the appellate court schedules over the past couple of weeks due to the newest member of the military appellate family making his/her appearance.  With the CAAF oral argument for US v. Martinez now set for 11AM tomorrow, the Army Court of Criminal Appeals has moved the historic Ali (first civilian court-martialed by the US in decades) argument to June 3 at 10AM.

UPDATE:  CAAFlog (and the ACCA website) now list the Ali argument as 2PM on June 1.  Needless to say, you might want to double-check the date/time before you head out to this one.

Reports of Inappropriate Slides and Skits in the Army

The Army Times reports on two stories reminiscent of last year's story of inappropriate videos made aboard the USS Enterprise. 

The first article reports that on Nov. 7, 2009, in Afghanistan, a PowerPoint slide appeared in the daily battle update briefing of a battalion from the 82nd Airborne Division. The slide, reportedly meant as a joke, bore the photo of a black college basketball player crying in victory with a basketball net around his neck; draped over his shoulders is the arm of his white coach. The text beneath the photo reads, “Slavery Reinstated,” and “Catch yourself a strong one.” The picture sparked a formal equal-opportunity complaint and a division-level investigation. Five months into a yearlong deployment, Lt. Col. Frank Jenio and Command Sgt. Maj. Herbert Puckett, were fired from their positions. Other slides, which had appeared in the morning briefings for about two months, showed scantily clad women in provocative poses, a cartoon of a man kicking a pregnant woman in the stomach, and on the day after the racially charged slide, a man was shown hitting a woman in a slide above the words, “Slap a bitch.” Apparently the battalion leadership felt that the hour long briefings, which included grim casualty updates, could be depressing.  Therefore, Jenio had his battalion operations shop insert one humorous slide each day.  The Army Times reports that earlier this month, the Army released portions of a 224-page investigative report into the incident in response to an Army Times Freedom of Information Act request filed in January 2010.

In the second article, the Army Times reports that the Army has reprimanded three colonels who performed a skit that mocked homosexuals and parodied new rules meant to protect gays in the military. At a dinner attended by top officials from the Eighth Army in Korea, the officers used effeminate gestures as they portrayed musicians Elton John and George Michael as soldiers; then they lip-synched to a song by Boy George. The skit was performed at an informal dinner and lip-synching exhibition March 22 at the Dragon Hill Lodge at Yongsan Garrison. Following a strategic planning conference held by Johnson, it was attended by top officers in the Eighth Army, their senior enlisted advisers and their spouses.

Tanzanian Army Officer Sentenced to Jail for Requesting Voluntary Release from Army

Abdon Rwegasira, a lieutenant in the Tanzanian People’s Defence Force, TPDF, was sentenced to jail for trying to voluntarily separate from the army. Moving towards a path of service from childhood, Rwegasira was able to obtain a commission as an army officer after school, and eventually earned a Master’s of Law degree while a member of the TPDF. But seeing that his situation would be better outside of the army, he applied for a voluntary release, which, under Tanzanian law, must be approved by the Chief of Defence Forces. Such releases need not be granted, and his superiors denied every request he made. He attempted to obtain a redress through the legal system, but the army arrested, convicted, and sentenced him to a year in jail at a general court-martial before he could get to court.

The GCM cited that his retention protected the “good order and conduct of the Defence Forces” by not setting a precedent that anyone could apply for release from service. Otherwise, the GCM did not state any reasons for his conviction and sentence. Conditions in the jail were equally frustrating, where Rwegasira alleges prison officials actively supported corruption and overlooked prisoner abuse. Now free, his legal team has sought to overturn his conviction, and the Court-Martial Appeal Court did so, citing that the GCM effectively blocked Rwegasira’s access to the court system, access which is protected under Tanzanian law. However, the TPDF is contesting this purportedly final conclusion, and Rwegasira’s case is now pending in the Tanzanian Court of Appeals.

(Credit: Richard Weiland)

Call for Papers: ISMLLW

The Military Law and the Law of War Review is seeking papers on two topics: 1) The Role and Responsibilities of Legal Advisors in the Armed Forces: Evolution and Present Trends and 2) Military Operations in Libya.  The Military Law and the Law of War Review is a journal specialised in matters of interest for both civilian and military legal advisors as well as legal scholars and academics. It is among the oldest publications at the international level in the areas of military/security law and the law of war. For decades, the Review has been an important forum of discussion for scholars and practitioners from all over the world. The Review is produced by the Belgian Centre for Military Law and the Law of War, under the auspices of the International Society for Military Law and the Law of War, with the support of the Belgian Ministry of Defence.

The Editorial Board invites practitioners and scholars to submit articles dealing with these topics by e-mail to: soc-mil-law@scarlet.beArticles related to the topic the Role and Responsibilities of Legal Advisors in the Armed Forces: Evolution and Present Trends should be submitted by 15 July 2011 at the latest.  Articles discussing legal questions associated with the current military operations in Libya should be submitted by 15 September 2011.

You can learn more about the call for papers and about the International Society for Military Law and the Law of War here

Sunday, May 22, 2011

It's Alive!

CAAFlog is back online.

Saturday, May 21, 2011

Nicholas v. Commonwealth of Australia, S 183 of 2010 (pending)

Nicholas v. Commonwealth of Australia is pending before the High Court. The case concerns the validity of the Interim Measures Act Parliament passed in response to Lane v. Morrison, [2009] 239 CLR 230. For a sense of the issues in Nicholas, with an interesting Guantanamo military commission hypothetical, see the plaintiff's reply submissions.

Friday, May 20, 2011

34 Years in Confinement for Sailor Who Admitted Attempted Espionage

Navy Captain Moira Modzelewski sentenced PO2 Bryan Minkyu Martin to a dishonorable discharge and 34 years in confinement for his admitted attempts to transfer classified US military information, including items pertaining to the current wars, to an individual he believed was a Chinese government agent.  Of course, the "agent" part was correct--"Mr. Lee" was an FBI agent.  The exchanges of information for cash were captured on government videotape, which the trial counsel played for the military judge earlier today.

Today's CAAFlog Status

For those (like me) who have our friends at CAAFlog on their frequent "refresh" list, you've already noticed that the site is currently down due to "technical difficulties."  At the present time, the administrators are dismayed to report that they don't have an ETA (that's an expected fix time, for the non-fliers in the crowd) for the site's repair.  As soon as we hear any additional word, we'll pass it along.

Bozicevich Mistrial Motions Update

This week's and last week's hearings in the Bozicevich capital court-martial can be summed up by 2 words: mistrial motions.  The motions stemmed from potentially exculpatory evidence that wasn't timely revealed to the defense, including an allegation from the ex-wife of 1 of the deceased soldiers that appeared to impact his character for peacefulness, and the delayed disclosure of records of Bozicevich's mental health history. 

While the military judge found error in the late discovery of the evidence, she denied repeated mistrial motions made by Bozicevich's civilian defense counsel, Charlie Gittins, choosing to limit the government's ability to counter defense evidence related to the late disclosures.  It appears the trial counsel requested a break in the court-martial in order to determine whether to take a government interlocutory appeal to the Army Court of Criminal Appeals.  (My guess is such an appeal wouldn't be fruitful for the government.)

Of course, the media doesn't seem to be following this case, so our only sources of information are from an anonymous commenter on CAAFlog, the widow of another soldier killed during a deployment, and the link above.

Egyptian Military Court Hands Down Death Sentence to Teen

This week, an Egyptian military court has sentenced a 17-year-old boy to death, marking an upswing in a disturbing trend in Egyptian justice. Due to the military’s central role in ruling the country after Mubarak’s departure, those in power are increasingly turning to military tribunals to carry out civilian justice, allowing military judges to get around Egyptian civil law—e.g., sentencing a minor to death, even one implicated in a kidnapping case.

Senior officials still have the ability to go to civilian courts, have representation, and prepare a defense. Most persons in the justice system are subjected to harsh military detention, are denied the ability to choose representation, and have secret trials as short as five minutes.

Under former President Mubarak, civilians could be brought in front of a military court due to the state of emergency in place since the 70’s, but this was rarely used. Now, with the Army running the country, military courts are used with alarming frequency to punish civilians.

Some have spoken out against the system, asked judges for more time to prepare, even appealed sentences, but the system continues its work. Over 7,000 cases have been heard already since the end of January 2011, with at least five defendants per case; these numbers will cretainly increase.

(Credit: Richard Weiland)

Russian Dock Workers Demand End to Nerpa Court-Martial Case

A group of dock workers have demanded that a case against the captain and the chief engineer of a Russian submarine be dropped, dismissing the charges of professional negligence, and have also called for a formal investigation into the incident.

In 2008, 20 crew members on the Nerpa were killed by an unplanned release of a fire suppressant, an action which also injured 21. The sub was undergoing sea trials in the Sea of Japan, and carried 208 people, mostly civilians, more than three times its normal compliment. Those on board say that the fire suppressant—FGeon gas mixed with poisonous trichloroethylene—was released without warning, but that it was due to the actions of Captain Dmitry Lavrentyev and the engineer Dmitry Grobov that no one else was killed.

The dock workers believe that shoddy workmanship on parts in the sub is to blame, not the actions of the captain and the engineer, a view supported by others in the Russian military. A former doctor with the Pacific Fleet has also stated that if pure Freon gas was used, as opposed to the mixture, more people would have survived. Michael Armstrong, a former British Royal Navy submariner, has held that casualties would also have decreased if the civilian crew members were trained in emergency procedures, like the usage of emergency breathing devices.

No responsive actions have been taken by the Russian Defense Ministry so far in relation to the request.

(Credit: Richard Weiland)

Alleged Israeli Collaborator Sentenced to Death in Lebanese Military Tribunal

One of the defendants currently in front of a Lebanese military tribunal was sentenced to death in absentia on Monday for allegedly collaborating with the Israeli government. Each of the two defendants is charged with collaborating with Israeli intelligence services and providing them with information on Hezbollah before, during, and after the July 2006 war between the two countries. The second defendant received ten years of hard labor.

The tribunal also has three other defendants before it; the tribunal has decided to postpone their cases until late June. One of the defendants is also charged with giving Israeli operatives security information on his company, Alfa, a Lebanese cell phone company. The other two are charged with giving up sensitive information on sites in the south of the country. They could receive three to fifteen years of hard labor each.

Tareq Rabaa’s lawyer had moved to throw out preliminary investigations as there is evidence that Rabaa—the Alfa cell employee—was tortured; however, the motion was rejected. A postponement was granted instead.

(Credit: Richard Weiland)

Court-Martial Charges for Australian Commandos Dismissed

An Australian military judge dismissed charges against two Australian commandos related to the death of six civilians. These Army Reserve soldiers were involved in a raid on a Taliban compound in Afghanistan in February 2009, during which six civilians were killed, including five children. They were soon charged with manslaughter.

The military judge, Brigadier Ian Westwood has said that, even though charges were dropped, this does not detract from the personal tragedy of the incident, nor should the decision diminish the importance of those killed, though many pro-defense groups have spoken out against this trial. The reservists’ case is now with the Director of Military Prosecutions, Brigadier Lyn McDade, who will decide whether to press on with different charges. The charges against the commanding officer, set to be tried after his subordinates, may be dismissed as well, in light of these events.

These two cases recognize that soldiers must be held accountable, as minimization of civilian casualties is especially important in a counterinsurgency campaign in which the civilian population must be secured from harm as much as possible. But the dismissal seems to acknowledge that such things do occur in war: civilians can be killed in the line of fire.

(Credit: Richard Weiland)

Outside Review for Canadian MJ System

Retired Chief Justice of the Ontario Supreme Court, The Honourable Patrick J. LeSage, will review the past 15 years or so of changes to Canada's National Defence Act in an effort to ensure the military justice system isn't too far out of step of the civilian system and is fair overall.

New Redaction Rules for Filing Documents at CAAF

If you're filing documents at CAAF, to include a Joint Appendix, you'll want to check out the new rules regarding redaction of privacy information.  On the recommendation of the Rules Advisory Committee, the CAAF judges approved new rules that place the responsibility on counsel, not the Clerk of Court, for redacting the designated information from electronic and paper copies of documents filed with the Court.  In addition to requiring the redaction of such items as social security numbers and home addresses, yesterday's order also includes the following:

Names of Complainants and Victims in Sex Offense Cases. If the involvement of a complainant or victim in a sex offense case must be addressed, only the initials of the complainant or victim should be used.

If you have questions or comments about the new rule, please let me know by writing to mmccluer@wcl.american.edu.  (Full disclosure:  I am on the RAC.)

Convening Authority Meets with Hasan's Counsel

In a final attempt to have their client's case referred as a non-capital court-martial, Major Nidal Malik Hasan's counsel met with LTG Donald Campbell, the general court-martial convening authority, yesterday.  Campbell is expected to decide soon whether to refer the case to a court-martial and whether the death penalty will be an available punishment, should the accused Ft. Hood shooter be convicted at such a trial.

Naval Academy Rape Case Referred to Trial

The convening authority has referred sexual assault charges against a midshipman at the US Naval Academy to a general court-martial.  Patrick Edmond is accused of rape, sodomy (presumably non-consensual, although it's possible to charge consensual under Article 125, UCMJ), and "issuing a false statement" (making a false official statement sounds more like it).  The acts are alleged to have taken place in an academy dormitory.

In other Naval Academy news, spice use has ended the careers of 2 more students, bringing to 15 the total expelled for spice use this school year.

Thursday, May 19, 2011

UPDATED: Espionage Court-Martial for Sailor Convenes Today

A sailor who allegedly accepted money from undercover FBI agents faces a general court-martial in Norfolk today for 4 specifications of attempted espionage and 11 specifications of mishandling classified material.  Navy Reserve PO2 Bryan Minkyu Martin is charged with giving Secret and Top Secret documents to investigators whom Martin believed were foreign agents in 3 different meetings last year.  The Virginian-Pilot article predicts the case will last 2 days, which sounds like a judge-alone plea deal to me.

UPDATE:  As I'd suspected, Martin pled guilty this morning to most of the charges pending against him.  Apparently, he believed he was passing secret information to Chinese spies.  The motive appears to have been money.

H/t to Viking.

CAAF Reverses Rape Conviction

Earlier this week, CAAF decided an (ostensibly, check out the CAAFlog comments) MRE 412 case, US v. Savala. This case involves a familiar military rape allegation (with additional, related charges) in which the complainant is drunk and doesn’t remember significant portions of the alleged incident.

At the court-martial, the defense counsel (NIMJ’s own Phil Cave) made motions to admit evidence of a prior (allegedly false) sexual assault allegation the complainant had made. The military judge, wanting to avoid a mini-trial on the validity of the previous allegation, denied the pretrial motion to introduce the evidence. Upon the trial counsel eliciting testimony from the complainant that she had delayed reporting the incident at issue in Savala’s case because she’d been the victim of a previous sexual assault that hadn’t resulted in any type of prosecution, the defense made a motion requesting permission to cross-examine the complainant about the previous incident because the trial counsel had “opened the door.” The military judge denied the motion, finding the evidence irrelevant, not covered by MRE 412’s provisions, and not constitutionally required.

On appeal, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) held that the military judge should have allowed the defense counsel to cross-examine the complainant about the earlier rape allegation because the trial counsel had opened the door to the testimony. However, the NMCCA affirmed the conviction, finding the error harmless beyond a reasonable doubt due to the “overwhelming evidence” of Savala’s guilt. That evidence included the discrepancies between Savala’s testimony and that of a fellow seaman (Townsel), DNA evidence, and the fact that Savala had never met the complainant before the sexual encounter. The service court found Townsel credible, despite the fact that Townsel had initially lied to investigators and was under suspicion himself for sexually assaulting the complainant. The Court also reasoned that the defense counsel was able to adequately impeach the complainant’s credibility without using the previous sexual assault allegation information.

At CAAF, the majority (CJ Effron writing) presumed error in the military judge’s denial of the second defense motion at trial, based on “the law-of-the-case” doctrine, because the appellate government office didn’t challenge the service court’s holding regarding the Confrontation Clause error. So, CAAF looked to the prejudice question, relying on the Toohey balancing test that weighs (1) the strength of the government’s case; (2) the strength of the defense case; (3) the materiality of the excluded evidence; and (4) the quality of the evidence in question. Van Arsdall also requires consideration of whether, “assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.”

Deeming witness credibility an essential issue in this case, the majority found “the ruling by the military judge enabled the prosecution to enhance the credibility of its version while handcuffing the defense.” Holding that the court members could have decided the complainant had made a previous false rape accusation that would have significantly damaged her credibility regarding the rape claim at issue in the court-martial, the Court reversed the findings.

Judges Stucky and Baker dissented, rejecting the majority’s “law-of-the-case” analysis and finding no prejudice from the military judge’s erroneous evidentiary ruling. On the “law-of-the-case” doctrine, the dissenters pointed out the seemingly illogical nature of requiring the government to appeal a lower court’s ruling in which the government prevailed. Agreeing that the military judge erred in finding that the trial counsel hadn’t opened the door to the potential falsity of the previous rape claim, the dissenters nonetheless highlighted the “strong circumstantial case” the trial counsel built against Savala. For the dissenters, Townsel’s credibility was key, and his initial, false statements regarding the night assisted his friend Savala. The complainant’s previous rape allegation’s aftermath also didn’t lead to the necessary conclusion that the complainant had made up the previous claim, according to Judge Stucky.

A rehearing on the findings is authorized.

It may be my imagination—we’ll see what the end-of-term statistics are--but it seems to me that CAAF has handed down quite a few 3-2 opinions this term.  Here's NIMJ Director Phil Cave's post on the current breakdown of this term's CAAF opinions.

Indian Army to Court-Martial Retired General Officer Involved in Land Scam

The Indian Army will prosecute former Military Secretary LTG Avadesh Prakash for illegally transferring government land to a private company. Prakash, who served at the Sukna military station in West Bengal in 2008, purportedly illegally transferred 70 acres of the base to a private realtor so that the company could build an educational facility.

The court-martial itself will be presided over by the Indian Army’s Director General, LTG Philip Compose; the members will be six army major generals. It is set to begin in mid-June. Despite retiring last year, Prakash will be recalled to duty, and punishments could be severe--reprimanding him, stripping him of rank, medals, even affecting his pension.

Others involved in this case have received severe punishments, but two have only been censured. The court will decide which fate Prakash will share.

(Note:  We have rising Firstie [senior] Richard "Rick" Weiland from the US Coast Guard Academy interning with us this month.  He wrote this blog post--and the others in this series--in his personal capacity.  Any opinions expressed herein do not necessarily reflect the official views of the US Coast Guard or the Department of Defense.)

NGO Support for Conscientious Objector British Sailor

Michael Lyons, a Royal Navy medic, will be court-martialed tomorrow (May 20) related to his conscientious objector status and refusal to register for a rifle course. Dedicated to medical ethics, Lyons objected to treating non-British casualties differently than British casualties, and to serving in Afghanistan.

This has prompted Christian charity groups like the Fellowship of Reconciliation, the UK’s oldest Christian peace charity, to resolve to support him in public. Forces Watch, a group dedicated to observing ethical issues in the armed forces, has already come out and criticized the charges against Lyons.

The Advisory Committee on Conscientious Objection had denied his request as being “political” as opposed to “moral,” and the military is requiring him to adhere to military discipline while still in the Navy.

UK law allows for a discharge if one develops a conscientious objection, but this is not told to recruits upon joining. Forces Watch in particular wants to see a change in the law to make this more open and accessible.

(Credit: Cadet Richard Weiland)

Shooting at Ft. Drum

Wife shot on Ft. Drum last night; soldier in custody.  No word on the wife's health, but the soldier is identified as SGT Jason Seeds.

Mead Murder Case Survivor Speaks

In a candid interview with the Fayetteville Observer, Melissa Younce-Mead expressed mixed emotions at the court-martial conviction and sentence of life without the possibility of parole for her husband, SPC Eric Mead, for the murder of Younce-Mead's lover (Mead's sister's husband) and Mead's attempt to kill Younce-Mead.  The fact that Eric and Melissa share a daughter contributes to the pendulum of feelings in the case.

Wednesday, May 18, 2011

Additional Charges in Stryker "Kill Team" Case

After a year in which the 5th Stryker Brigade soldiers implicated in the "Kill Team" conspiracy against civilian Afghanis trudged, one by one, to court-martial, yesterday new charges appeared that raise the stakes for one soldier who was previously accused of lesser offenses related to the scandal.  Reuters reports the news:

Staff Sergeant David Bram, 27, was newly charged with a single count each of "solicitation to commit premeditated murder," of "failure to report crimes including murder," and of "planting evidence near the body of an Afghan national."

He also is charged with "unlawfully engaging in murder scenario conversations with subordinates" and with "aggravated assault with a dangerous weapon" on Afghan civilians.

Bram has 5 additional charges pending, including partaking in a plot to assault a fellow soldier whom the others feared would expose the group's illicit drug use during the deployment.

I'd like to see the charge sheet because I don't believe the maximum punishment listed in the Reuters article is correct if the solicitation of which Bram is charged actually led to a murder.  If murder did occur as the result of the solicitation, under Article 82, UCMJ, it seems Bram could face life without the possibility of parole (assuming this is referred as a non-capital case) because that is the maximum punishment for the solicited crime's commission.