Monday, January 31, 2011
He is definitely not going quietly into retirement as many in his boat (pun intended) do.
Sunday, January 30, 2011
Saturday, January 29, 2011
Friday, January 28, 2011
UPDATED: The story link is up now at the Air Force Times.
Thursday, January 27, 2011
Despite halting all military commissions shortly after his inauguration two years ago, it appears President Obama cannot solve the previous administration’s quandary of what to do with the Guantanamo detainees. With the revamping of the military commission system in 2009, it is not surprising that we will be seeing more. One wonders, however, if they will remain on their glacial pace. It is also worth remembering that the legal status of the commissions is not on solid ground. They may yet be torn apart by the courts. There have only been a handful of convictions, and two appeals are pending before the review court. Here is what will be argued in the al-Bahlul case:
I. Assuming that Charges I, II, and III allege underlying conduct (e.g., murder of protected persons) that violates the law of armed conflict and that “joint criminal enterprise” is a theory of individual criminal liability under the law of armed conflict, what, if any, impact does the “joint criminal enterprise” theory of individual criminal liability have on this Court’s determinations of whether Charges I through III constitute offenses triable by military commission and whether those charges violate the Ex Post Facto clause of the Constitution? See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 611 n. 40 (2006). See Hamdan v. Rumsfeld, 548 U.S. 557, 600-01, n. 32, 607, 693-97 (2006).
II. In numerous Civil War and Philippine Insurrection cases, military commissions convicted persons of aiding or providing support to the enemy. Is the offense of aiding the enemy limited to those who have betrayed an allegiance or duty to a sovereign nation?
As you may recall, al-Bahlul was convicted in a military commission that he refused to participate in or acknowledge. The government presented evidence that he was a propagandist and recruiter for al-Qaeda. Who knows what the CMCR will decide and who knows what further appeal would bring? The only certainty is that these are very interesting issues.
On the other side of the equation we see something very different. We see the relatively speedy conviction and sentence of an al-Qaeda operative in U.S. District Court. Ghailani was sentenced to life in prison for his role in the 1998 U.S. Embassy bombings in Africa. This case joins the ample amount of evidence that our civilian courts stand ready and able to handle terrorism cases. Not everyone sees it that way. Jack Goldsmith wrote on the lawfare blog: “Many will claim that Ghailani’s life sentence vindicates the trial system as a vehicle for incapacitating terrorists…But we must also remember that the basic outcome (long term detention for Ghailani) was foreordained: Both the Attorney General and the trial judge stated that Ghailani would likely be placed in military detention if acquitted. Civilian trial supporters must ask themselves how legitimate the Ghailani verdict and sentence are against this background.”
I must admit that he is right: the conviction must be viewed in light of the government’s view on detention power. This administration, like the previous one, believes it can hold these detainees forever, with or without a trial. In fact, we will likely see a new executive order outlining that power.
The first detainees began arriving in Guantanamo Bay nine years ago. We continue to watch the legal and policy fights unfold that were born from the decision to use Guantanamo Bay and they will likely continue for many years. In next Thursday’s column I will discuss in more detail the proposed executive order and what International Humanitarian Law says about indefinite detention.
Wednesday, January 26, 2011
However, we're still awaiting the convening authority's decision whether to refer the pending charges and specifications to a court-martial and whether such a court-martial will be a capital case. Although we'd seen notices over the past week that suggested the convening authority would make his decision public any day, we're now learning that the decision is on hold for another 4 weeks. (Not sure what the news report means by "hearing delayed" since referral of charges doesn't involve a hearing.) Of course, all indications are that the convening authority will refer the case as a capital general court-martial.
Despite this delay, details are emerging about the findings of the sanity board. As with most sanity boards, it appears this board found Hasan sane, although his civilian defense counsel (John Galligan) calls the results flawed because the board did not have all the documents Galligan believes were necessary for the board to consider. It's interesting to note that the Army Times article on the topic talks about the sanity board report being released. Unless Hasan releases the report himself or his mental health status is put into play at a court-martial, the only part of the report that even the trial counsel will see will be the answers to the 4 questions asked of the board, previously discussed here. Also of note, our own Geoff Corn's analysis of the case appears in the AFP article above.
Tuesday, January 25, 2011
However, it's time to move these cases along and get them resolved before additional cases get referred to trial, which is rumored to be imminent. While the First Amendment issue raised in al Bahlul seems to have been dealt a setback with the SCOTUS opinion in Holder v. Humanitarian Law Project (interestingly, HLP was argued after the CMCR cases, and that opinion was published months ago), both al Bahlul and Hamdan raised issues of relevance to most of the other potential commission accuseds.
First among these is whether the accuseds may lawfully face charges such as conspiracy and providing material support for terrorism at the commissions. This analysis requires a knowledge of the constitutional underpinnings of the military commission system. These courts fall under Article I of the Constitution, while most federal courts, including SCOTUS, fall under Article III. As such, Article I courts have a much more limited jurisdictional scope than do their sister courts. For our purposes here, military commisions under Article I have jurisdiction over offenses that are violations of the law of war. In determining whether offenses constitute "Offenses against the Law of Nations," we generally include those crimes that have been traditionally recognized in international customary law. With the Military Commissions Acts of 2006 and 2009, Congress tried to legislate that offenses such as conspiracy and material support for terrorism constitute war crimes, despite a nearly complete lack of historical recognition of either offense as a war crime. With conspiracy and material support for terrorism featuring prominently in the military commission charges anticipated to be brought against future detainees, it is incumbent upon the Court to decide the jurisdictional issue ASAP.
Alas, more delays lie ahead. Just yesterday, we learned that two judges on the CMCR have recused themselves from participating in Hamdan and al Bahlul, and an en banc panel of the CMCR will now decide both cases, with an additional briefing schedule and re-arguments set for March 17, 2011--nearly 14 months after the original oral arguments. One of the recused judges, CAPT O'Toole, wrote a lengthy explanation of his reasons for recusing himself from further involvement in the cases, despite his insistence that he was properly sitting on the Court.
It's time to bring these cases to a close.
Saturday, January 22, 2011
Thursday, January 20, 2011
NIMJ filed a brief at the Court of Appeals for the Armed Forces arguing that the court should grant a writ in Holmes v. United States. PFC Holmes is charged with murdering an Afghan civilian. He was not allowed to use photographs of the deceased in the Article 32 hearing. NIMJ argued that the Limitation Order does not accord with the Constitution. The brief argues that the right of public access to judicial proceedings and records is protected by both the First and Sixth Amendments.
Tuesday, January 18, 2011
Friday, January 14, 2011
Thursday, January 13, 2011
Wednesday, January 12, 2011
Tuesday, January 11, 2011
Monday, January 10, 2011
Pfc. Andrew Holmes, is one of five soldiers at Joint Base Lewis-McChord charged in the deaths of three civilians in Afghanistan last year. Holmes is accused of participating in the killing of the first victim.
The Post reports that Holmes' attorney, Dan Conway, said he would appeal to the Court of Appeals for the Armed Forces. Conway says the photographs could help show that the injuries were not caused by his client's weapon. Eugene Fidell, NIMJ's president, is quoted as saying the denial did not mean that the appeals court found Holmes' arguments to lack merit. And that he didn't read too much in this decision. He believes the appeals court may just be saying, "Take it to the trial judge."
Friday, January 7, 2011
Thursday, January 6, 2011
This award honors an outstanding scholar and peerless advocate of reform: our dear friend, the late Kevin J. Barry. Kevin was a founder and director of NIMJ who retired as a Coast Guard captain after 25 years of service that included duty as an operations officer, navigator, staff judge advocate, trial and defense counsel, staff judge advocate, and trial and appellate judge. As a lawyer, scholar, citizen, and gentleman, Captain Barry was a model for military justice advocates.
Now comes an IG report that found the excessive delays were still apparent in early 2010. From a quick review of the report, many issues contributed to the lapses, among the most serious was a lack of adequate oversight at multiple levels. The absence of any consistent system of tracking courts-martial also figured prominently in the critique. For the Air Force folks who get tired of hearing about AMJAMS inputs and court processing metrics, this lack of oversight and transparency to higher headquarters is a completely foreign concept.
Here is some rather harsh language from the report's summary:
We determined that Navy JAGs have not fully accomplished their post-trial military justice mission as required in statute and regulation. There have been consistent failures in leadership, supervision and oversight at all organizational levels, impacting military justice in both the Navy and Marine Corps. The failures resulted in inadequate institutional vigilance to ensure process health and, in many instances, failures to exercise the diligence and competence required of legal professionals. Serious post-trial processing problems persisted for at least the last two decades, and some old Navy and Marine Corps cases with lengthy post-trial processing delays still find their way into the appellate courts.
Fortunately, progress is being made in correcting the problems:
Over the last 3-4 years, many significant improvements have been instituted, including initiatives not yet completed, or still in planning or development stages. However, unless addressed appropriately, issues remain that could preclude enduring reform. The principal issues are summarized below.
Wednesday, January 5, 2011
The fact that the videos were more than three years old and that the man was, by all public accounts, a great leader, is mitigating in terms of any further disciplinary or non-punitive action that may be taken. But these facts don't terribly bear on the immediate question ADM Harvey had to answer less than a month before deployment, can he lead? Many a DFC has resulted in no further "punishment" for a CO for exactly the same reason that further action against the CAPT is not a fait accompli here, DFC is about the ability to lead, period. I think much will be made in the future of the CAPT's legacy and success of the ship. But I think the determination that the CAPT had a lapse of judgment that, 3 years later, led to inevitable snickering behind the
CAPT's back and loss of respect by some members of the current Big "E" crew are the facts that more likely, and by regulation must have had an impact on the DFC decision today.
The rest of the story, as the other Harvey would say, shall be very interesting because many officers were apparently aware of (made cameo appearances in) these videos. Action against those officers will have to answer different questions of how far they should have gone to edit
or stop these videos and the much debated question of whether the videos in their larger context were appropriate for shipboard consumption.
“Special defense—unprotected victim. A superior commissioned officer whose conduct in relation to the accused under all the circumstances departs substantially from the required standards appropriate to that officer’s rank or position under similar circumstances loses the protection of this article. That accused may not be convicted of being disrespectful to the officer who has so lost the entitlement to respect protected by Article 89.”
Isn’t this the subtext when a senior officer seeks to be “one of the guys/gals”? Alternatively, are the fateful “XO’s Movie Night” tapes a new kind of fraternization, highlighting once again (e.g., digital cameras at Abu Ghraib, ubiquitous fast internet access, blogging, even WikiLeaks) the challenges of managing military operations in a digital era? Not that either of these ways of seeing things will be part of the official conversation as the follow-on proceedings unfold, but still perhaps they will be useful as we all try to figure out what to make of this situation.
Tuesday, January 4, 2011
During the interview, Gene expressed dismay at the content of the videos. "An aircraft carrier is not a fraternity house," he said, "and the kind of non-leadership displayed in the making of these videos is pretty startling."