Monday, January 31, 2011

Captain Honors Honors Us With His Statement

The Navy Times has now posted Captain Honors' (of the USS Enterprise XO Movie Night fame) extensive statement in response to the investigation launched by the Navy at the time of his firing as the Enterprise commander on the eve of its deployment to the Middle East. The statement includes a life history, as well as allegations that the raunchy XO Movie Night presentations were approved by Navy brass. Honors laments that the videos were selectively edited and released to the media--presumably by someone whom Honors had disciplined. The article also contains links to Honors' fitness reports from his time as the Enterprise XO.

He is definitely not going quietly into retirement as many in his boat (pun intended) do.

Monday's Musings

With the world's attention focused on Egypt, I thought it relevant to do some digging into Egypt's military justice system. After all, Egypt is a strategically important country, and we conduct joint military exercises there every couple of years (Operation Bright Star), in addition to having a small contingent of troops there today. There is quite a bit of criticism of the country's use of military courts to try civilians. Here is one semi-recent analysis from the International Commission of Jurists, which points out that the Egyptian president can refer virtually any type of criminal case to a court-martial. The LA Times reported on the court-martial last year of a blogger, and there are similar cases still in the news.

Given the past week's events in Egypt and my own preparation for today's class on U.S. military jurisdiction, I've been thinking about what an ideal military justice system would look like. Would it have any jurisdiction over civilians? Would it only operate extra-territorially? Would it be commander-based discipline? Should there be standing courts-martial? What should the appellate process look like?

If you have a vision of the perfect military justice system, we'd love to hear from you. Just drop us a few lines at nimj@wcl.american.edu with details of your proposed system's framework, and we'll compile the suggestions for a future post.

Sunday, January 30, 2011

Holmes Case Referred to Court-Martial

Although there is an interlocutory appeal related to the non-disclosure at the Article 32 hearing of photos of the deceased currently pending at CAAF, Army PFC Andrew Holmes' case was referred to a general court-martial late last week. Reportedly, news of the referral went to the media before Holmes' attorney. No trial date has yet been announced.

Saturday, January 29, 2011

Thoughts on the CMCR’s Questions in al-Bahlulby Kevin Jon Heller.


H/T Opino Juris

Friday, January 28, 2011

Chief Gurney Sentence Announced

Court members have sentenced CMSgt William Gurney, formerly the Command Chief for AFMC, to 20 months in confinement, a dishonorable discharge, and a reduction in rank to airman basic for a series of crimes involving inappropriate and adulterous relationships with more junior military members in AFMC.

UPDATED: The story link is up now at the Air Force Times.

Spice, Spice...

Our friends at caaflog reported the expulsion of 7 midshipmen from the Naval Academy earlier this week. Now comes an article reporting that the USAFA cadets seem to be competing for similar dubious honors. More than 2 dozen cadets are being investigated for using the banned marijuana-wanna-be drug.

Don't Ask, Don't Tell Repeal Implementation

Secretary of Defense Robert M. Gates has issued a memorandum setting the terms of reference for the Department's Repeal Implementation Team. The memorandum is available here.

Thursday, January 27, 2011

Thursday's Thought

A great deal of activity in the last two weeks offers more food for thought in the debate over how and where to try alleged terrorists being held at Guantanamo Bay. We saw the announcement that military commissions will recommence, Ghailani’s sentence in U.S. District Court, and the order by the Court of Military Commission Review for oral argument in al-Bahlul’s case.

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.

Sri Lanka decision on whether court-martial is a court

Thanks to Sri Lankan public interest lawyer and senior media columnist Kishali Pinto-Jayawardena, the decision in Fonseka v. Kithulegoda & Ors, SC Ref. No. 1/2010 (Sri Lanka Jan. 10, 2011) is now available. The opinion of the court, by De Silva, C.J. (left), joined by three other justices, is here. Marsoof, J. (right) concurred separately.

Wednesday, January 26, 2011

Gibbs Arraigned, Findings Case Start Date Set

The alleged mastermind of the "kill team" of 5th Stryker Brigade soldiers in Afghanistan was arraigned yesterday. From news reports, it sounds like no motions were heard during SSGT Calvin Gibbs' courtroom appearance. The judge set April 4 as the date for resumption of the court-martial. The speculation is that the remainder of the dozen soldiers implicated in the killings and other related offenses will use the time between now and the Gibbs findings case to cut pretrial agreements in exchange for their testimony against Gibbs.

Ft. Hood Shooting Case Updates

The Article 32 investigation and report have been written. The sanity board examination for Major Nidal Hasan, the accused in the 2009 Ft. Hood mass shooting, is done, and the medical experts on the board have completed their report.

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.

Complainants Detail Sexually Charged Relationships at Chief's Court-Martial

The court-martial for USAF CMSgt William Gurney, formerly the command chief for Air Force Materiel Command, continued Tuesday at Scott Air Force Base. (AFMC headquarters is located at Wright-Patterson AFB in Ohio, but the case was moved to Air Mobility Command's headquarters base to avoid potential conflicts.) While Chief Gurney pled guilty to a host of specifications regarding inappropriate relationships, the United States chose to press forward with evidence of the other specifications to which Gurney pled not guilty. Here's coverage of yesterday's sexually charged testimony from several of the complainants. Not AFMC leadership's best day, to be sure.

Court-Martial is Legal, Sri Lanka Supreme Court Decides

Details are beginning to emerge about the Sri Lanka Supreme Court's ruling that a court-martial is a court for purposes of disqualification to sit in Parliament. The ruling was disclosed by the Court of Appeal, which had referred the question to the Supreme Court. Two justices wrote opinions, but these are still not available. NIMJ has requested copies from the Supreme Court. The Court of Appeal will take up the case again on February 11, 2011.

Tuesday, January 25, 2011

Tuesday's Two Cents' Worth: CMCR Delays

Tomorrow marks a year since counsel argued the cases of United States v. Hamdan and United States v. al Bahlul at the Court of Military Commission Review. These are the first two post-trial appeals considered by the Court. Considering that the Court is interpreting recent statutes and dealing with a newly created commission system, it should not be surprising that the Court has been deliberative in its processing of these two cases.

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.

Yes, Virginia, a General Court-Martial is a Court

The Supreme Court of Sri Lanka has ruled that retired General Sarath Fonseka's September 2010 general court-martial was a court, and that as a result his conviction bars him from sitting in Parliament, to which he was elected last April, and voting. The text of the Supreme Court's decision is not yet available online.

Saturday, January 22, 2011

New GAO Report on DADT Personnel and Cost Impacts

The Government Accountability Office has released a January 2011 report on the personnel and other costs associated with implementation of the Don't Ask, Don't Tell policy. The eport was submitted to Representative Susan A. Davis.

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.

Coming Soon? More Military Commission Prosecutions

Several media outlets have stories out today that additional detainee cases will be referred to military commission after a 2-year hiatus from referring new cases to the Guantanamo court. (Note, the CBS story cites an inaccurate detainee number--the correct number being held in Cuba is currently 173.)

As of right now, Noor Uthman Mohammed is the sole detainee facing a commission, despite the fact that many of the individuals held at GTMO have been cleared for release and most have been imprisoned without trial for the better part of a decade.

When future commissions come to fruition, stay tuned to NIMJ for reports from the hearings themselves.

Tuesday, January 18, 2011

Special Presentation at WCL on WWII Mass Court-Martial and Justice Delayed

We proudly announce that award-winning author Jack Hamann will be at American University Washington College of Law at 10:00 Thursday (1/20) morning to present a talk on his book On American Soil: How Justice Became a Casualty of World War II. This book depicts the decades-long struggle to clear the names of a group of African-American soldiers court-martialed at Fort Lawton in Washington State for rioting and the death of an Italian POW during World War II. For more information about the case, please visit Mr. Hamann's website.

Please RSVP to Irina Vayner at ivayner@wcl.american.edu if you plan to attend.

Around the Services

Here are some of the top headlines of interest to military justice practitioners. The latter two quote NIMJ's own--President Gene Fidell.

http://www.kwch.com/news/kwch-dmk-court-martial-for-hiv-infected-01182011,0,2428364.story

http://www.africom.mil/getArticle.asp?art=5838

http://www.marinecorpstimes.com/news/2011/01/marine-panel-says-more-jag-officers-needed-011511w/

http://www.bellinghamherald.com/2011/01/16/1819039/many-but-not-all-of-kill-team.html

World Military Justice Round-Up

Here are some recent articles of interest about military justice abroad. Some cheer reforms in the military justice system, while others highlight the need to advance the fair administration of justice...

Bangladesh:

Brazil:
http://www.soros.org/initiatives/justice/focus/foi/news/araguaia-gomes-lund-ruling-20110113

Palestinian Authority:
http://www.maannews.net/eng/ViewDetails.aspx?ID=352054

Rwanda:
http://www.google.com/hostednews/afp/article/ALeqM5h8Qbn-Dp-lM5Zd6_BG2MTSrUh8Zg?docId=CNG.a0fecf3288ed5701a75b9cd49cf8dca6.9d1

http://www.bbc.co.uk/news/world-africa-12215849

Somalia:

Friday, January 14, 2011

Latest Volume of Air Force Law Review Published

I don't know if I'm just getting old, but I know nearly all of the USAF authors who are published in Volume 66 of the Air Force Law Review, which includes several articles of interest to military justice wonks, as described at caaflog.

Article 32 hearing set for Platero


A pretrial hearing for Spc. Neftaly Platero, the 3rd Infantry Division soldier accused of shooting and killing two fellow soldiers and wounding a third, has been set for March 14, according to bryancountynews.net. The shootings occured on September 23 in Fallujah, Iraq. Platero deployed with the 4th Brigade to Iraq in July. Platero is currently being held at the Camp Arifjan Theater Field Confinement Facility in Kuwait.

Thursday, January 13, 2011

National Security Assistant AG David Kris Leaving

On the heels of a reorganization of President Obama's key staff, the Department of Justice just announced that Assistant Attorney General for National Security is stepping down from his post in March.

Bozicevich Capital Court-Martial Delayed

A capital case that involved the shooting deaths of two Army soldiers in Iraq in 2008 has largely flown under the radar of the media. The news out of Ft. Stewart today reports that Sgt. Joseph Bozicevich's court-martial is set for (presumably, additional motions hearings) March 28, although some motions hearings have already taken place. The findings case is scheduled to begin on April 18. The military judge granted the delay in order for witnesses to have sufficient time to travel from Iraq and for the defense experts to review additional evidence in the case.

Wednesday, January 12, 2011

Formerly AWOL Soldier Gets Treatment, Rather than Another Deployment

A Fort Campbell soldier who went AWOL instead of returning to a deployment after mid-tour leave was scheduled to deploy again next week, and he planned to obey that deployment order. This was despite his claims of suffering PTSD. Now comes word that SPC Jeff Hanks will receive mental health treatment instead.

Tuesday, January 11, 2011

Holmes Case (Afghan "Kill Team") Goes to CAAF

One of the accuseds in a 5th Stryker Brigade case arising from deaths of civilians in Afghanistan has requested a stay of the Article 32 investigation of his case and a writ from CAAF making public photos from the alleged crime scene.

Holmes' defense counsel filed the documents after last week's action at the Army Court in which ACCA refused to provide the requested relief.

Monday, January 10, 2011

Code Committee Meeting Set

The Code Committee on Military Justice will hold its annual public meeting at the CAAF Courthouse on March 1.

NIMJ plans to send a representative to this meeting. If you have suggestions to pass along that you'd like NIMJ to mention at the meeting, please forward them to nimj@wcl.american.edu and we'll review them for possible inclusion in our remarks.

ACCA will not order release of Afghan corpse photos


The Washington Post reports that ACCA declined to order that gruesome Afghan corpse photographs taken by Washington state-based soldiers be made public. NIMJ filed an amicus in this case, which can be read here.

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."

Referral of Charges in 5th Stryker Brigade Case


Lewis-McChord Stryker Soldier Referred To Trial On Premeditated Murder, among other charges. Staff Sgt. Calvin R. Gibbs is one of five soldiers from the 5th Stryker Brigade of the second infantry division accused of killing civilians in Afghanistan. According to news accounts, the charging papers indicate that Gibbs was the ringleader and joked about how easy it would be to "toss a grenade at someone and kill them." It is also reported that Gibbs will not face the death penalty. Lt. Gen. Curtis Scaparrotti, the commanding general at Joint Base Lewis-McChord, chose to limit the punishment to life. The Olympian journalist opines that this decision "reflects reluctance in the military to pursue the death penalty for murder in a combat theater."

Friday, January 7, 2011

New Stolen Valor Act Ruling

A federal court judge in Virginia has issued a thoughtful opinion in a case in which the defendant sought to have an indictment quashed on the grounds that the Stolen Valor Act is an unconstitutional restriction of Free Speech. Denying the motion, the judge cited military discipline among other reasons for finding the alleged speech (joining the VFW, wearing medals that proclaimed his Vietnam service, and citing such service in campaign literature) unprotected.

Thursday, January 6, 2011

Barry Writing Award!



NIMJ is seeking submissions for the annual Kevin J. Barry Award for Excellence in Military Legal Studies. This award honors an outstanding article published in the 2010 calendar year. If you read an interesting article and you think it has merit, please email it to nimj@wcl.american.edu.

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.

Unanimity not required for UK courts-martial

On reference from the Judge Advocate General, the Court Martial Appeal Court ruled last month in R. v Twaite, [2010] EWCA Crim 2973, that court-martial boards need not be unanimous when rendering a verdict. Flight Lieutenant Twaite nonetheless prevailed: the court overturned his conviction and refused to order a retrial.

IG Cites Lengthy Delays for Navy-Marine Corps Appeals

In our Lakin exuberance last month, we neglected a DoD IG report on military justice in the DoD sea services.

Those who have followed the military appellate dockets in the past decade or two already know of the systemic delay problems that have plagued the Navy-Marine Corps appellate offices. Appeals lingered for years and years without resolution, prompting CAAF to step in at several points to provide relief and admonish those making personnel decisions to adequately staff the NMCCA and Code 45 (Appellate Defense) offices.

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.

Updates from Stryker Brigade Cases

One more soldier out of the dozen connected with the Stryker Brigade Afghan civilian deaths investigation has pled guilty under a pretrial agreement that capped his punishment exposure, and another has waived his right to an Article 32 investigation into the charges against him. It appears the prosecutors are getting the "small fish" courts-martial done now in order to maximize their ammunition against the alleged ringleader(s) later by having the "small fish" testify later.

Hennis Motion for New Trial Moved to Leavenworth

The thrice-tried Hennis case's next hearing will be held later this month at Ft. Leavenworth. On January 21, Army judge COL Patrick Parrish will convene a post-trial hearing in this case in which Tim Hennis was brought out of retirement to face a court-martial for the deaths of 3 military dependents 25 years ago. Convicted and sentenced to death, Hennis is seeking a new trial, while also challenging the military's jurisdiction over him in civilian court.

Wednesday, January 5, 2011

CAAFlog's No Man With More Thoughts on Big E Firing


NIMJ Advisor Mike "No Man" Navarre, of caaflog fame, writes in response to Gene Fidell's questions posed earlier this morning:

A little more on the Detachment For Cause (DFC) of the USS ENTERPRISE CO. In my humble opinion XO Movienight Affair is nothing more than a 21st century twist on a very old theme for Navy leaders, and lawyers. While the circumstances of this case involve 21st century movie making and viral videos, the real question is age old--could the CAPT remain the CO and still command the respect of the men and women of the USS ENTERPRISE?

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.

Stryker Brigade Court-Martial Begins Today


One of the dozen Stryker Brigade members implicated in the "kill team" allegations from Afghanistan faces what appears to be a special court-martial today at Joint Base Lewis-McChord. It appears Corporal Emmitt Quintal cut a deal in exchange for cooperating in the prosecutions of his fellow soldiers.

The USS Enterprise Case (cross-posted from CAAFlog)

Mulling over this case (which would have been a dandy exam question), it is interesting to try to sort out the competing considerations even if the outcome is easy to have predicted (try a Google search for the Cat Futch/USS Finback episode, 1975). It’s fine for the management to announce it no longer has confidence in Capt Honors’ ability to lead others, but there’s more to say about it than that, which is merely a conclusion (and by all accounts, he ran a happy and effective warship). For example, the Manual includes in para 13c(5) the following special defense to disrespect of a commissioned officer:

“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

Honors Stripped of Honor of Commanding Enterprise


For those who have seen the videos of Captain O.P. Honors' "XO Movie Nights," you will likely not be surprised to learn that he has been relieved of command of the USS Enterprise, as DoD and caaflog, among other outlets, are reporting.

Eugene Fidell on Democracy Now!


Eugene Fidell spoke on Democracy Now! yesterday about the videos created by Captain Owen Honors aboard the USS Enterprise in 2006 and 2007. Video of the interview can be see here. The interview also also includes commentary from Corinne Reilly, a reporter on military affairs for The Virginian-Pilot. It was The Virginian-Pilot that broke this story and first released the videos.

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."

Sanity Board for PFC Manning


The Washington Times has a front-page story this morning about PFC Bradley Manning of Wikileaks fame. Although I thought this was already underway, the Army (through an unrelated COL Manning) announced that Manning will undergo a sanity board conducted under Rule for Court-Martial 706. Not surprisingly, the timetable for the board's work isn't listed.


Of some note, the article mentions that the sanity board answers 2 questions. In reality, the board answers four:

1) At the time of the alleged offenses, did the accused have a severe mental disease or defect?

2) If so, what was that disease or defect (clinical psychiatric diagnosis)?

3) Was the accused, at the time of the alleged criminal conduct and as a result of such severe mental disease or defect, unable to appreciate the nature and quality or wrongfulness of his or her conduct? (I.e., did he know right from wrong at time offenses committed?)

4) Is the accused presently suffering from a mental disease or defect rendering him unable to understand the nature of the proceedings against him or to conduct or cooperate intelligently in that defense? (I.e., is he sane at time of trial and trial prep?)


See RCM 706(c)(2).

Monday, January 3, 2011

Enterprise Commander in Hot Water for Videos


Various news outlets are reporting that Captain Owen Honors, the ironically named commander of the USS Enterprise (not the one on Star Trek, the nuclear-powered aircraft carrier), produced and starred in sexually suggestive, profane, and derogatory videos (viewer warning of objectionable material, although the Virginian-Pilot has done some editing) that were broadcast aboard the vessel when Honors was the number 2 officer on the ship. While a number of sailors have defended the videos as morale boosters or clips taken out of context, an investigation is now underway about how Honors was allowed to command after airing such videos.


Our own Gene Fidell, NIMJ President, had some comments on the recently opened Navy investigation into the videos on ABC News last night. What strikes me as odd is that the videos were made in 2006 and 2007, but they're only now coming to light. Anyone with insight as to why this is just now making headlines is welcome to contact us at nimj@wcl.american.edu.