Thursday, July 28, 2011

More NIMJ Transitions

Tomorrow marks the expiration of NIMJ's association with American University Washington College of Law and the last day for NIMJ's full-time staff.  Fortunately, NIMJ will continue, as it has for the past 2 decades, to provide a voice for military justice reform and education as its new leadership takes the helm.  NIMJ will still post relevant items on this blog also. 

As of tomorrow, our mailing address, e-mail, and phone will all changeOur WCL website will also go away.

For general inquiries, please use our new e-mail address:
Or leave a message:
(415) 581-8862

For media inquiries, please start here:
Victor M. Hansen
Professor of Law
New England Law Boston
(617) 422-7252

NIMJ's new mailing address for hard-copy queries will be as follows:
National Institute of Military Justice
c/o Prof. Elizabeth L. Hillman
UC Hastings College of the Law
200 McAllister Street
San Francisco, CA 94102

Thank you for your support of NIMJ.

No Psy Ops Used Against Political Figures, Investigation Finds

Despite allegations to the contrary by Rolling Stone reporter Michael Hastings last winter, the DoD Inspector General found that LTG William B. Caldwell IV did not use psychological techniques against visiting political figures and dignitaries who came to war zones under Caldwell's command.

Apparently, this is not the end of the situation, as there is still a pending investigation into whether leadership took reprisal actions against 2 officers who questioned information-gathering tactics used by the unit.  The IG claims Caldwell is not the focus of the reprisal investigation.

NIMJ's previous coverage of the allegations is here, here, and here.

Miller Guilty in Afghan Death

After short deliberations on both findings and sentence yesterday, a court-martial panel at Ft. Campbell found SGT Derrick Miller guilty of premeditated murder in the death of an Afghan civilian and sentenced him to the mandatory minimum of life with the possibility of parole. 

Premeditated murder is one of the few crimes under the Uniform Code of Military Justice that carries a mandatory minimum.  Most UCMJ crimes have "no punishment" as an option.

USAF Generals Get Senate Attention

USAF TJAG Lt Gen Richard Harding answered questions from Virginia Senator Jim Webb, former Secretary of the Navy, recently.  Webb's inquiry focused on the proportion of generals per airman in the Air Force versus the proportion of flag officers to total uniformed members in other services.  Harding responded that the higher number of senior officers in the Air Force might be due to the Air Force keeping many of its positions uniformed, while other services have transitioned a number of (presumably senior) positions to civilian jobs.  Expect more hearings on the issue in the fall.

NIMJ's previous coverage of the debate about the number of USAF generals, particularly as it relates to the JAG Corps is here and here.

UPDATED/CORRECTED: Ft. Hood Plot Discovered

At least 3 military members, at least 1 of whom is AWOL from Ft. Campbell, are in custody for allegedly plotting another attack at Ft. Hood, home of 2009's deadly rampage, and for weapons charges.  Details are sketchy right now, so it's not apparent whether the arrest of the AWOL soldier is related to the other 2 arrests.

UPDATE/CORRECTION:  As so often happens with breaking events, it seems only 1 individual is in federal (civilian) custody following a tip from a Killeen gun dealer about a suspicious person.  Authorities are not confirming whether there is any link between the soldier from Ft. Campbell, identified as PFC Naser Jason Abdo, and any purported planned attacks on Ft. Hood.  Abdo was apparently AWOL, after refusing deployment and claiming conscientious objector status.

NIMJ's previous coverage of Abdo, including child pornography allegations, is here.

Wednesday, July 27, 2011

Panel Deliberating in Afghan Civilian Death

The court-martial panel has begun its findings deliberations in National Guardsman SGT Derrick Miller's case at Ft. Campbell.  Miller claims self-defense in last fall's death of an Afghan civilian.

Miller's civilian defense counsel is noted attorney Charlie Gittins, who has been recovering from a skydiving incident.

Severe Diet to Blame for Fellow Soldier's Death?

An attempt to lose a lot of weight fast left Staff Sergeant Rashad Valmont dehydrated and delirious, so he shot Master Sergeant Pedro Mercado 6 times when Mercado denied Valmont's leave request, according to the defense.  The reservist shot Mercado at Ft. Gillem (best known for housing USACIL) a year ago, and now Valmont's court-martial for premeditated murder is underway at Ft. Stewart for the death.

Tuesday, July 26, 2011

Casey Anthony and Military Prosecutions

While the rest of the focus in DC is on the debt crisis, here is my reaction to other recent "big" news--the Casey Anthony verdict:

During the past couple of weeks of over-hyped coverage of the Casey Anthony murder acquittal and her subsequent release from jail, politicians with whom I usually agree have used outrage at the verdict as justification for expanding the use of military trials for suspected terrorists. Recent legislation even seeks to strip citizenship before trial so the defendant is eligible for a military commission.

It is apparent that most favoring such proposals have no knowledge of the traditional military justice system, much less the military commissions. Having attended two military commissions at Guantanamo Bay and spent years prosecuting and defending military cases, please indulge my filling in the gaps.

In their current form, military commissions are untested, seldom-used tribunals of limited jurisdiction, but politicians tout them as if they were the gold standard for prosecuting cases. First, they forget all accuseds in military commissions have uniformed attorneys represent them at government expense, while civilian defendants must show an inability to afford counsel in order to have the government pay their attorney’s fees. Second, the law governing the commissions allows the prosecution of only a handful of crimes, and the most often-charged offenses at these trials may not survive appellate review. Civilian charging options are far broader and have withstood the test of time, thereby preventing victims and their family members from having to relive the horrors of 9/11 and other crimes in yet another trial, should the appeals courts continue to strike down aspects of the commissions system.

One additional point missing from this debate is the matter of sentencing. In civilian court, we often see terrorists sentenced to life in prison without the possibility of parole. The federal judicial system has mandatory minimum sentences, while “no punishment” is the minimum sentence available for nearly all military offenses, including those tried in military commissions. In the six (yes, only six completed trials in nine years) military commissions held to date, the court members have sentenced only one person to life in confinement. One-third of those sentenced were freed years ago, and one more, Omar Khadr, is set for release to Canada this fall.

The Anthony case does highlight a key part of all trials in America—court verdicts are not pre-determined. At the close of the evidence, one can never predict with certainty whether the case will end with a guilty verdict. This is true for military cases also. The jury or panel, as a military jury is called, is always the X factor in a trial. In fact, in the first military commission tried at Guantanamo Bay, the panel acquitted Usama bin Laden’s driver/bodyguard of the most serious charges against him and sent him home to Yemen mere months later.

Nobody in the post-9/11 world wants the responsibility for failing to stop another attack, and that has prompted our fear of the unpredictability that characterizes a free nation’s court systems. There is a means of ensuring convictions for every suspected terrorist. We could just forego trials entirely and confine for life anyone accused of such crimes, or we could go through the charade of a trial whose verdict we know will be guilty because we require such outcomes. Of course, that would place us in league with nations like Iran, which continues to hold two American hikers without trial.

Is that the America the Founders created and today’s military members defend? I hope not.

Monday, July 25, 2011

Behenna Opinion Out

Although it's not yet available on the Army Court's website, our friends at CAAFlog confirmed what we suspected when we saw the Ali opinion late last week--ACCA has decided US v. Behenna.  That's the case of the lieutenant who killed a naked, suspected terrorist in Iraq and was court-martialed for the death.  In affirming the findings and sentenced, the panel found no errors in the military judge's denial of the trial defense counsel's various motions, including a motion for a mistrial. 

The service court found no Brady violation and no issue under RCM 701 or Art. 46, UCMJ, as the defense knew at some point relatively close in time to the formation of the potentially exculpatory evidence that the government's expert witness (Dr. Herbert MacDonell) in forensic science (particularly crime scene reconstruction and blood spatter analysis) had potentially favorable information for the defense.  This evidence consisted of Dr. MacDonell's forensic opinion that would have bolstered Behenna's self-defense argument.

Given MacDonell's curious statement to defense counsel concerning his ability to have been a good witness for the defense, the court noted the defense knew or should have known of the likelihood that the government expert possessed potentially helpful information, yet the defense chose not to pursue the issue until after the defense rested its case.  The court also found no problem with the trial counsel's disclosure of MacDonell's opinion as soon as trial counsel knew of the opinion.

Turning to the issue of the military judge's denial of the trial defense counsel's mistrial motion, the panel referenced RCM 915's admonishment that mistrial motions are to be granted sparingly, and appellate courts will only overturn such determinations upon a showing of a clear abuse of discretion.  Finding none, the court moved on to the military judge's denial of the defense motion for a new trial.  Similarly to RCM 915, RCM 1210 strictly limits the availability of a new trial.  One must show newly discovered evidence or fraud on the court, neither of which the trial judge found, and the panel reasoned the judge did not abuse his discretion in denying the new trial motion.

Ultimately, ACCA held that, even had Dr. MacDonell's opinion testimony been before the members during findings, it would not have changed the outcome of the court-martial, particularly given the fact that the defense had 2 of its own expert witnesses testify along the same lines as MacDonell would have.

Next, the court turned to the matter of the judge's instructions on self-defense.  The defense took issue with the military judge's instructions on one's ability to lose and regain the right to self-defense, but the panel found no error in the instructions under RCM 920 because Behenna's ability to withdraw from the escalating situation wasn't a matter in issue at the court-martial.

Finally, the panel addressed whether the military judge should have sua sponte instructed the members on the LIO of voluntary manslaughter.  Even with a de novo standard of review on this issue, the defense was out of luck.  Finding no adequate provocation to reasonably support the rage or anger needed to mount a voluntary manslaughter defense, the court also disposed of this issue in the government's favor.

Our coverage of the Behenna oral argument is here.

Saturday, July 23, 2011

ACCA Publishes Ali Opinion

In a surprisingly slim opinion issued on Monday, a panel of the Army Court of Criminal Appeals held that civilian contractors accompanying military forces in the field during contingency operations are constitutionally subject to the UCMJ under the expanded Article 2(a)(10) provision.  In U.S. v. Ali, a civilian contractor pled guilty to making a false official statement, wrongful appropriation, and wrongfully attempting to impede an investigation, while continuing to dispute the court-martial's jurisdiction over him based on Fifth and Sixth Amendment due process rights.

The court-martial stemmed from a feud between Ali and another contractor that occurred on an Army base in Iraq. Ali is a dual Iraqi-Canadian citizen.   The court spent a decent amount of time establishing that Ali met the requirements of the new Article 2(a)(10) provisions, specifically that he was accompanying our military forces in the field during a recognized contingency operation.

The panel pointed out that MEJA, which supplies extraterritorial civilian federal jurisdiction for many crimes committed by civilians accompanying our military forces overseas, wouldn't provide a likely alternative to military jurisdiction here, as Ali was a citizen of the host-nation country, an exception to MEJA jurisdiction. The ACCA panel didn't mention whether the Iraqi courts might have pursued criminal charges against Ali.  The court failed to address what has been a significant stumbling block to military jurisdiction over civilians in previous Supreme Court decisions--whether civilian courts were operating at the time the military asserted jurisdiction over Ali.

In holding the exercise of court-martial jurisdiction over Ali was constitutionally permissible, the panel primarily relied on two points:  Previous litigation over the extension of military jurisdiction over civilians involved situations that either occurred during times of peace or were not statutorially amenable to court-martial.  Distinguishing Supreme Court precedent on the issue, the court relied on
Congress' and military commanders' broad powers to regulate the military forces, particularly during times of actual hostilities, and Congress' recently changing the 2(a)(10) language granting jurisdiction over civilians from only applying "in time of war" to also including crimes committed by civilians during specific "contingency operations."

Certainly, this is not the last opinion to be written in the Ali case.  Next stop--CAAF.  I'm willing to bet CAAF grants review of this one.

See our previous coverage of the Ali argument here.

As a side note, this is the same ACCA panel deciding the Behenna case that was argued last December.  Considering Senior Judge Tozzi's departure from the court, I'd guess we'll see that opinion shortly.

Friday, July 22, 2011

DADT End in Sight

Less than a month after taking office, new Secretary of Defense Leon Panetta is set to certify that the military services are ready to have openly gay servicemembers in their midst.  Once he makes this certification, the repeal of the so-called "Don't Ask, Don't Tell" policy will go into effect 60 days later.

Wednesday, July 20, 2011

UPDATED: Galligan Takes Temporary Leave of Absence in Ft. Hood Killing Case

Here's an unexpected twist in the Ft. Hood massacre case involving Major Nidal Hasan.  Civilian defense attorney John Galligan announced he's taking a temporary leave of absence in the case for unspecified reasons.  I've seen plenty of defense attorneys part ways with clients at various points of the representation, but I don't think I've ever heard of a defense counsel temporarily step down from a military case.
UPDATE:  It seems Galligan's departure won't derail Hasan's defense, as the case is set for a March 2012 trial, with 2 uniformed defenders continuing to represent Hasan.

Military Commission Reporter, Volume 2, Pamphlet 3

NIMJ is proud to present the third pamphlet of the Military Commission Reporter, Volume 2The Military Commission Reporter series contains all the publicly available orders, decision, and opinions issued by the judges in the military commissions and the Court of Military Commission Review.  These books are first-of-their-kind publications that serve as resources for practitioners and the public. NIMJ will publish additional volumes as commission cases unfold, as the Depart­ment of Defense does not compile the decisions in a readily available, comprehensive fa­shion.

CNO Reminds Commanders of Their Obligations

In a response to the nearly weekly firing of Navy commanders, the Chief of Naval Operations, Admiral Gary Roughead has issued a memo making clear his requirements for those officers leading the Navy.  He highlights ethics and personal responsibility, which should be no-brainers for military leadership.  At the current pace, the Navy is set to meet or exceed the record 26 commanders fired in 2003.  Just over halfway through the year, 14 commanders have lost their jobs in 2011, compared to 17 for the entire year of 2010. 

The latest Navy leader to find himself in need of a new position is Commander Karl Pugh, who was relieved of command last week for drunken antics during a Bahraini deployment.

Will this new memo lead to fewer individuals being relieved of duty or more?  Time will surely tell.

Friday, July 15, 2011

UPDATE: Ft. Hood Shooting Arraignment Next Week

The Washington Post is reporting that Major Nidal Malik Hasan, the accused in the Ft. Hood mass murder, will be arraigned next week, officially kicking off his capital court-martial.  Because the death penalty is a sentencing option if the members find Hasan guilty, he is prohibited from pleading guilty to the murder charges pending against him.

All the articles I can find about the case are the identical Associated Press version, which doesn't list a date or judge for the case.  I don't see the case set on the Army's docket either.  Anyone have additional info on this one?  Is it a safe bet to assume the Army's incoming chief trial judge would preside over this one?

UPDATE:  The Article 39(a) session is set for July 20, with COL Gregory Gross as the military judge.

CG Court Gets New Judge

NIMJ's previous Executive Director, Captain Kathleen A. Duignan, is getting sworn in as the newest judge on the Coast Guard Court of Criminal Appeals at this very moment.  She currently serves in Germany as part of the US AFRICOM staff.  Congrats to Captain Duignan!

Thursday, July 14, 2011

Respite for 1st Woman Army Officer to Face Court Martial in India

The Times of India reports that Major Dimple Singla, the first woman officer of the Indian Army to face a court martial has been given a reprieve. The Chandigarh bench of the military tribunal on Wednesday commuted her one-year sentence awarded by the general court martial (GCM), in to dismissal from service.  The court upheld her conviction under section 63 (violation of good order & discipline) of the army act but acquitted her from the charges of section 69 read with prevention of corruption act.  Singla was a member of the legal branch of the Army.  She was found guilty by the GCM on March 3 last year for accepting a bribe of Rs 10000 for favouring an accused during a GCM.

Lese Majeste and Facebook

The Bangkok Post reports that the trial of the first military officer to ever be charged with lese majeste began in a military court on Thursday morning in Thailand. Lese majeste is the crime of violating majesty, an offense against the dignity of a reigning sovereign or against a state.   Squadron Leader Chanin Klaiklung is accused of behaviour deemed dangerous to national security.  It is not exactly clear what he is alleged to have done, but it has something to do with postings he made on Facebook, the social media site.  The journalist spoke with the accused after the closed door hearing to get some details.  The article quotes Chanin as saying that it was beyond his imagination that charges this serious were filed against him based on cut-and-pasted messages from his Facebook pages.  According to the article, "The messages referred to in the charges included some various chunks posted in September and October 2010 commenting on the then-on-air soap opera in TV channel 5 Ching Chang (Disgusting hatred) and the song-for-life Thang Thome (Swooping Strike)."  "I was referring to the dictatorial father in the drama that led to problems in the family. The 'Thang Thome' song was also a song that has been heard everywhere in the market place, but they said I was referring to something else, which is ridiculous," said Chanin. The last paragraph of the article reads: "A number of lawsuits involving alleged insults against the Thai monarchy and breaches of the country's 2007 Computer Crimes Act have being filed in the past few years, dropping Thailand's ranking in the Reporters without Borders press freedom index from 107 in 2005, the year before the coup, to 153 last year."

Mexico High Court Limits Military Jurisdiction in Rights Cases

The Latin American Herald Tribune reports that Mexico’s Supreme Court has reduced the armed forces’ privilege to have cases involving alleged abuses by soldiers heard in military courts.  This ruling comes in obedience to a 2009 ruling by the Inter-American Court of Human Rights in a case brought on behalf of Rosendo Radilla, who was “disappeared” by Mexico’s military in 1974.  The Inter-American tribunal urged the Mexican government to modify its Code of Military Justice to ensure it is compatible with “international standards on the subject” and the Inter-American Convention on Human Rights.  The Mexican justices ruled that, in the event of a jurisdictional dispute between civilian and military tribunals in a specific case, it will be up to the Supreme Court to decide where it should be heard.  The article points out that the issues of rights abuses by the military has taken on special urgency since December 2006, when President Felipe Calderon deployed tens of thousands of army soldiers and other federal forces to battle heavily armed, well-funded drug cartels.

Tuesday, July 12, 2011

ECHR Ruling's Impact on UK

The Spectator reports on a European Court of Human Rights ruling that held that the UK's human rights obligations apply to its acts in Iraq, and that the UK had violated the European Convention on Human Rights in its failure to adequately investigate the killing of five Iraqi civilians by its forces there. The judgment overturns a House of Lords majority ruling four years ago that there was no UK human rights jurisdiction regarding the deaths.  The article suggests that with this ruling the British government will be pressured by activists to accept that human rights law applies to its acts anywhere in the world.

Puntland Military Court Sentences 50 Soldiers reports that the military court of the semi-autonomous region of Puntland in Somalia have sentenced 50 soldiers accused for committing different crimes. reports indicate that the soldiers were involved in crimes related to killing and robbing people in the region.  Some of them were sentenced to death while others sentenced life prison.  Ten were found not guilty and freed. 

Military Photographer on Trial for Fraud

The Miami Herald reports that reservist Petty Officer Elisha Leo Dawkins, 26, is charged with a single count of making a false statement on a 2006 U.S. passport application when he did not report that he had started to apply for one a year earlier.  The federal trial opens Tuesday with probable jury selection in a downtown Miami courthouse.  Dawkins, a military photographer, went on to serve honorably in the Army in Iraq and Navy in Guantánamo after he allegedly lied on his passport application.  The article points out that the Dawkins apparently grew up believing he was American and that’s why he enlisted.  The case "has energized pockets of Miami and the military."

Human Rights Watch Calls on Government to Investigate Bush, Other Top Officials for Torture

Human Rights Watch issued a 107 page report today calling on the United States government to Investigate President Bush and other top officials for torture.  Getting Away with Torture: The Bush Administration and Mistreatment of Detainees argues that, "Based on this evidence, Human Rights Watch believes there is sufficient basis for the US government to order a broad criminal investigation into alleged crimes committed in connection with the torture and ill treatment of detainees, the CIA secret detention program, and the rendition of detainees to torture. Such an investigation would necessarily focus on alleged criminal conduct by the following four senior officials—former President George W. Bush, Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, and CIA Director George Tenet."  The report calls for a thorough, impartial and independent investigation into the programs of illegal detention, coerced interrogation, and rendition. 

Friday, July 8, 2011

Kris on Law Enforcement as a Counterterrorism Tool

David S. Kris, the former assistant attorney general for national security, published an article in the Journal of National Security Law & Policy called Law Enforcement as a Counterterrorism Tool.  The article argues that we should continue to use all of the military, law enforcement, intelligence, diplomatic, and economic tools at our disposal, selecting in each case the particular tool that is most effective under the circumstances, consistent with our laws and values.  Appendix 2 offers a very helpful chart comparing federal civilian trials, military commissions and law of war detention.  Kris argues there is no inherent tension between national security and the criminal justice system.  He believes in differing situations one may be the better approach over the other.  he provides a good analysis of where the strengths and weaknesses are in both systems.   

Egypt Army Chief in Lawsuit Over Woman Tried in Military Court reports that on Tuesday, Egyptian human rights groups filed a lawsuit against the head of Egypt’s armed forces.  was filed with an administrative court by the Egyptian Initiative for Personal Rights, the Nadeem Center for the Rehabilitation of Victims of Violence and Torture and the Hisham Mubarak Law Center.  The case arises from an investigation done by Amnesty International.  The human rights group gathered testimonies of women protesters arrested in early March from Cairo’s Tahrir Square.  They were allegedly subjected to forced ‘virginity tests.'  Amnesty wrote to Egypt’s Supreme Council for Armed Forces requesting an investigation. No response was received.  One of the young women arrested off of Tahrir Square was then tried in a military court and was alleged forced to take one of the tests and was tortured. She was tried before a military court without her knowledge of the charges against her. According to the groups who filed the suit, all the female protesters rounded up on March 9 were sentenced within four days.

Thursday, July 7, 2011

Beware Using Legal Prescriptions After 6 Months

It's a good thing I'm no longer on active duty.  Apparently, under a new Army regulation, soldiers who have legitimate prescriptions--good for a year under federal law--are limited to using said prescriptions for a mere 6 months.  Should that soldier pop positive for, say, a controlled substance in a migraine prescription 7 months after the prescription was filled, that soldier can be in UCMJ trouble. 

I guess the drug manufacturers will be happy about this, but I pity those who already endure hours-long pharmacy waits at large military health care facilities.

DoD Contractors Put on Notice Re Sexual Assault Definitions

Here's the link

The DFAR Supplement also extends the prohibition on mandatory arbitration clauses in DoD contracts greater than $1 million.  The mandatory arbitration provision came into disfavor after a highly publicized ordeal of a female contractor (Jamie Leigh Jones, who has apparently allowed her name to be made public) who had limited remedies against her employer stemming from her maltreatment after she made a sexual assault allegation during a deployment.

Wednesday, July 6, 2011

UPDATED: 9th Circuit Tells Military to End "DADT"

Politico has the story on the latest ruling in the "Don't Ask, Don't Tell" challenges.

Update:  DoD intends to comply with the 9th Circuit's ruling to end DADT.

MIlitary Justice News from Around the Globe

Australia Evidence: Cadets had consensual relationship before alleged rape in 2-decade-old case.

Time profiles harsh military court sentences for political activists.

Two soldiers were charged in a fellow soldier's training incident death in Afghanistan.  "The charges against Major Darryl Watts and Warrent Officer Paul Ravensdale each include one count of manslaughter for Corporal Joshua Caleb Baker's death, four counts of unlawfully causing bodily harm for the four soldiers who were injured, and negligent performance of a military duty."

The brother of the new al-Qaeda leader faces a military court.  Mohammad al-Zawahri, who was held for over a decade before the recent political upheaval in Egypt will be retried on charges related to his own al-Qaeda membership.

Defense presents information in Sukna land scam case of Lieutenant General (retired) Awadesh Prakash.

Navy denies recent forced disappearances.

This article provides background on sexual minorities in the Nepalese military and the recent judicial repudiation of the military justice system.

A military court held Lt. Col. Ngabo Rugigana will remain in provisional detention as an investigation into whether he threatened national security.

South Korea
Two Marines face charges in the shooting deaths of four fellow military members.  One is the alleged triggerman, while the other is believed to have helped him obtain weapons for the incident.

President Desi Bouterse claims there's no conflict of interest in nominating individuals to sit as military judges because he doesn't select the judges. By the way, Bouterse's own court-martial for murder begins/resumes in December.

An Army deserter claims he received orders to shoot unarmed protestors.

A court-martial found a Royal Navy medic conscientious objector guilty of disobeying an order for refusing arms training.  The court sentenced Michael Lyons to dismissal from the service, 7 months in confinement, and a demotion in rank.

It seems US service members aren't the only ones who face charges of obtaining allowances to which they're not entitled.  A Royal Navy officer's court-martial is underway for just that.  Who knew the Brits paid for boarding school for military dependents?

Updates on Military Trials in Egypt

Over the past 6 months, we've brought you a number of articles about the use of military courts in Egypt since the fall of former President Mubarak.  Here are the latest entries, none complimentary of the system:

It seems the tally now stands at 10,000 civilians who have faced Egyptian military courts since the end of January, with estimates that 50% of those court-martialed are political dissidents.  Just last week, a military court sentenced 5 former Petrojet employees under a new law that allows for military prosecutions of individuals accused of causing work stoppages.  The secrecy of the courts and the lack of access to attorneys provide further roadblocks for family and human rights advocates.  Some groups have even sued military leaders over their treatment of female protestors.

Meanwhile, frustration mounts over the prosecutions of Mubarak and other former leaders.

Convening Authority Refers Hasan Case as Capital

As long-expected, the general court-martial convening authority referred Major Nidal Hasan's case to a capital court-martial.  Hasan faces the charges as the result of the Ft. Hood massacre in November 2009.  The Ft. Hood Press Center reports a military judge has not yet been assigned to the case.

US Military Justice News

PFC Bradley Manning Claims Military Bullying Over Sexual Orientation
No Pretrial Release for 5th Stryker Brigade's Winfield
Morlock Lied About Holmes for Leniency in "Kill Team" Case?

"Norfolk Four" Convicted of Rape Seek Belated Appellate Exoneration After Investigative Misconduct

Marine Corps
Lesbian Marine and Two Males Face Larceny, BAH Fraud Charges for Sham Marriages

Military Commissions, Civilian Courts, Law of War Detention, and Habeas Cases

On a transparency of the military commissions note (although not necessarily all the substance of the piece), we tip our hats to Lawfareblog's Ben Wittes, who advocates for greater public access to the military commissions, after outlining the significant hurdles the commissions present for those who want to attend these historic tribunals. Having traveled to the commissions twice myself, with the vast majority of both trips comprising "down time" outside the courtroom, I particularly like the idea of a remote feed of the court proceedings to locations within the US. In the mean time, you can read our NIMJ Reports from Guantanamo to get a feel for the commissions.
No doubt most of you have seen the ongoing coverage of the news that the US held a Somali suspected terrorist, Ahmed Abdulkadir Warsame, aboard a Navy vessel for several months before turning him over for civilian prosecution, which is igniting plenty of debate as to when and whether terrorism suspects should move from military to civilian detention and prosecution. 
In response to Senate Minority Leader Mitch McConnell's recent calls for terrorism suspects arrested on US soil to be tried in military commissions, here is an excellent op-ed from NIMJ friend Mason Clutter of The Constitution Project.  In her piece, Clutter counters the notion that civilian courts aren't able to adequately prosecute terrorism cases, and she highlights the relatively light sentences handed down at the modern-day military commissions.
In other detainee news, those who follow the habeas cases for the GTMO detainees know that many of the District Court rulings have been in the detainees' favor.  A front-page article in today's Washington Post proclaims that the DC Circuit has, thus far, reversed each of those decisions, holding the US may continue to hold the individuals.  In at least one case, it seems even DoJ attorneys were surprised at the court's ruling that there was sufficient evidence to continue Hussain  Salem Mohammad Almerfedi's detention.

Friday, July 1, 2011

Military Justice Gazette 117

Military Justice Gazette No. 117 is out!  Get up to date on NIMJ and on the major military justice news stories of the last three months.  You can download your copy here

Nepal Supreme Court Orders Reform of Military Justice reports that in Bhuwan Prasad Niraula & Ors v. Constituent Assembly, Legislative Parliament & Ors, the Supreme Court of Nepal ordered the government to reform Nepal's entire military justice system. The court held that Nepal's military justice system is not in line with an independent judiciary or with international practices in military justice. The Court ordered “the government to form a special taskforce to review the military justice system.”  Eugene R. Fidell and NIMJ, joined with the International Commission of Jurists in filing an amicus brief.