Monday, February 28, 2011

Gender and Sexuality in the Military Panel

American University is hosting a panel titled "Gender and Sexuality in the Military." Food will be provided.

When: Wednesday, March 2nd at 7:30 pm

Where: EQB Lounge (Old School of International Service Lounge)

According to the event notice this event "aims to bring together diverse student voices and experiences in a discussion of pressing human rights and policy issues in our military, as related to gender and sexuality. Through expert and personal testimonies, presentations, and stories, we hope to increase awareness and understanding of how these issues impact the US military and the individual members who serve. Last, we hope this forum, which will provide time for questions, can help members of the student body better connect in a civil, meaningful way despite their differences."

You can find more information here.

Al Bahlul update in CMCR

Appellant's filed their Response to the Specified Issues and an accompanying motion at the Court of Military Commission Review in United States v. Bahlul. On Thursday I will provide analysis of the answers provided. As a reminder, here are the two specified questions the Court asked:

Question 1: 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).

Question 2: 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? See Hamdan v. Rumsfeld,548 U.S. 557, 600-01, n. 32, 607, 693-97 (2006).

Saturday, February 26, 2011

Another Court-Martial, Another Punitive Discharge for 5th Stryker Soldiers

It seems the same military judge is set to preside over all of the courts-martial arising out of the 5th Stryker Brigade Afghan "kill team" investigation. So far, they've resulted in punitive discharges for the soldiers in addition to reductions in rank. This week's court-martial of SPC Adam Kelly followed the pattern, with LTC Kwasi Hawks adjudging a sentence of a reduction to E-1, 60 days of hard labor without confinement, and a Big Chicken Dinner (Bad Conduct Discharge). While the military charged Kelly with assaulting a fellow soldier, conspiracy, obstruction of justice, and use of a controlled substance (hashish) in Afghanistan, he was acquitted of the obstruction and drug specifications. It's interesting to note that the military judge favors punitive discharges, yet not confinement, choosing hard labor without confinement in 2 of these cases so far.

Additional cases related to this investigation are set for court-martial next week. The recent revelation that Christopher Winfield alerted SSGt James Michael Beck to his son's (SPC Adam Winfield--also accused in a killing) allegations about soldiers killing civilians in Afghanistan is bound to figure into future cases.

Spy Sentenced to Death in Lebanon

Abrahim al-Baba was convicted of spying for Israel and was sentenced to death by a military court last week. He was charged with operating an internet cafe through which he would send information to Israel. He is the sixth man to receive such a sentence in the past two years.

British Navy Rape Trial Starts, Stops

A court-martial proceeding recently began in England regarding a rape that took place in July 2010 at an accommodation block at the Navy headquarters at Portsmouth. After a night of drinking with several female seaman, an Enginering Technician crawled into bed and had intercourse with one of them, who verbally objected after realizing that the man kissing her was not the man she had been friendly with earlier that evening. He was arrested after service police overheard the victim saying “no.” The case was later halted for undisclosed "legal reasons."


Questions Raised in Pakistani Court-Martial of Civilians

Seven men are being tried in a Pakistani military court for their involvement in a terrorist attack on army headquarters in Rawalpindi two years ago. The lawyer for the defense insists that the military does not have jurisdiction to try civilians based on these charges (civilians can only be tried for spying on the military for an enemy state or inciting a mutiny); and six of the seven accuseds maintain that they were not involved in the attack.

This trial is shrouded in controversy because the accuseds had been held by the army's “secret agencies” and their relaties were left in the dark about where they were being held. In addition, the defense lawyer has compained that he has been unable to meet separately with his clients throughout the procedings.


30 Years of Litigation Brings No Comfort to an Indian Air Force Corporal

After thirty years of litigation on this issue, the Indian Supreme Court ruled that dismissal from the armed forces is a lesser punishment than three months of jail term. An Indian Air Force corporal preferred imprisonment over a punitive separation after being found guilty of consuming ganja on duty and leaving his place of duty unattended for half an hour. The Court, however, found that the confinement time could be "reduced" to a dismissal from the service. The Court based this decision on a plain reading of the scale of punishment provided in Section 73 of the IAF Act.

Justice Elusive for Nepal's Civil War Casualties

The seventh anniversary of the murder of a teenage girl (Maina Sunuwar) during the civil war, allegedly by a military member, is the subject of ongoing controversy in Nepal. Maj. Niranjan Basnet has been charged with murder, but several others thought to be involved have not yet been apprehended. Given the Nepalese military's record on punishing its own members who kill civilians, it's unlikely Maina's supporters will soon see justice done.

Marksmanship Training In Kyrgyzstan Can Be Dangerous

Four teachers at a Military Institute in Kyrgystan pleaded guilty to Negligence charges after two cadets were killed during routine marksmanship training. Two additional cadets were injured. Each teacher received a conditional sentence of four or five years in confinement.



Friday, February 25, 2011

DoJ Bids Adieu to Former DoD Officials in Padilla Case

Politico (courtesy of the Georgetown Security Law Brief) reports that the Department of Justice is farming out the representation of former Defense Department leaders Donald Rumsfeld, Paul Wolfowitz, and others in the long-running suit by Jose Padilla, a US citizen convicted on terrorism charges. Padilla's suit focuses on his treatment in military custody before his transfer to the civilian federal system. DoJ's move apparently stems from undisclosed "conflict concerns."

This Week's CAAF Grants

Blazier rears its head (several times) in the latest batch of cases in which CAAF granted review.

Wednesday:
No. 09-0660/AF. U.S. v. Moises GARCIA-VARELA. CCA S31466. On further consideration of the granted issues, 68 M.J. 241 (C.A.A.F. 2009), and the briefs of the parties, it is ordered that the decision of the Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for consideration of the granted issues in light of United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010), and United States v. Blazier, 68 M.J. 439 (C.A.A.F. 2010), and to determine whether the erroneous admission of the cover memorandum of the drug testing report was harmless beyond a reasonable doubt.

Just a guess, but I'm thinking this next case might get reversed.
No. 10-0461/NA. U.S. v. Joseph A. SWEENEY. CCA 200900468. On further consideration of the granted issues, 69 M.J. 270 (C.A.A.F. 2010), and the briefs of the parties, it is ordered that the petition is hereby granted on the following additional specified issue:
WHETHER THE COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW IN DECLINING TO APPLY MELENDEZ-DIAZ v. MASSACHUSETTS, 129 S. CT. 2527 (2009), IN ASSERTING THAT UNITED STATES v. MAGYARI, 63 M.J. 123 (C.A.A.F. 2006), “FOUND DRUG LABORATORY REPORTS TO BE NON-TESTIMONIAL IN NATURE,” AND IN HOLDING (1) THAT DRUG LABORATORY DOCUMENTS WERE NON-TESTIMONIAL IN NATURE, (2) THAT THE LAB REPORT WAS A RECORD OF A REGULARLY CONDUCTED ACTIVITY OF THE NAVY DRUG SCREENING LABORATORY THAT QUALIFIED AS A BUSINESS RECORD AND FIRMLY ROOTED HEARSAY EXCEPTION UNDER M.R.E. 803(6), AND (3) THAT THERE WAS NOTHING TO SUGGEST THAT THE LAB REPORT WAS GENERATED FOR COURT-MARTIAL USE. SEE UNITED STATES v. BLAZIER, 69 M.J. 218 (C.A.A.F. 2010); UNITED STATES v. BLAZIER, 68 M.J.439 (C.A.A.F. 2010); AND UNITED STATES v. HARCROW, 66 M.J. 154 (C.A.A.F. 2008).

Tuesday:
The Court ordered no briefs to be filed in this granted case. Trailer case?
No. 11-0154/CG. U.S. v. Wilson MEDINA. CCA 1325. Review granted on the following issue:
WHETHER THE GOVERNMENT VIOLATES THE APPELLANT'S CONSTITUTIONALLY PROTECTED LIBERTY INTERESTS BY FAILING TO MEET THE MANDATORY FACTORS IDENTIFIED BY THIS COURT FOR A CONVICTION UNDER UCMJ, ARTICLE 125.

Full Daily Journal available here.

Code Committee Meeting Tuesday

Have a complaint about the UCMJ? Then Tuesday is your chance to voice it when the Code Committee on Military Justice will hold its annual meeting at the CAAF Courthouse. Details are here. See you there!

Thursday, February 24, 2011

U.S. Court of Appeals for the Armed Forces Conference


The U.S. Court of Appeals for the Armed Forces will hold its annual Judicial Conference and Continuing Legal Education Program, at The Catholic University of America, Columbus School of Law, on March 9 & 10, 2010. Confirmed speakers include Andrew J. Pincus, Partner, Mayer Brown; Professor Bernard J. Hibbitts, University of Pittsburgh School of Law; Professor Douglas A. Berman, The Ohio State University, Moritz College of Law; Dr. Robert Heinssen, Ph.D., Acting Director, Division of Services and Intervention Research, National Institute of Mental Health; General Peter W. Chiarelli, Vice Chief of Staff, U.S. Army; Brigadier General Blaise Cathcart, Judge Advocate General of the Canadian Forces; and Professor Stephen Gillers, New York University School of Law. Detailed program and registration information is available at www.armfor.uscourts.gov.

GTMO Forever!

All signs indicate that the detention facility at Guantanamo Bay is not closing. Despite promises to the contrary and the short-lived prospect of moving the GTMO detainees to a vacant Illinois state prison, it appears the Obama administration will not be able to close the controversial site on the Cuban island. Despite that political reality, the LA Times reports that senior Republican lawmakers "want a guarantee — in writing from the president — that the White House will not change its mind and later transfer terrorism suspects [to Illinois]." They want this guarantee before voting on a budget request to acquire and renovate the Illinois state prison for ordinary federal inmates.   

After a wave of executive orders during the first few days of his administration, President Obama has had to abandon his plans for dealing with the suspected terrorists being held at GTMO. Since 2009, he brought only one detainee to the United States for a civilian trial and was answered with abrupt obstruction after Attorney General Holder announced plans to transfer the 9/11 defendants to NYC.  That plan died quickly.

NIMJ held a very interesting panel discussion last week titled "The Guantanamo Detainees: What Next?" A webcast of the event is available here. It seemed clear to the panelists and audience that political realities would ensure the continued operations of the GTMO detention facility. Jack Goldsmith, Harvard law professor and former Bush administration official, opined that we have already seen the last civilian trial for a GTMO detainee.  The trial he was referring to was the one held last year for Ghialani, who received a life sentence for his participation in the bombings of two U.S. embassies in Africa in 1998.  By most measures that trial should be viewed as a success.  Yet, Goldsmith's assumption seems true.  Not only was the specific transfer of the 9/11 detainees blocked with outrage by certain political leaders, but Congress has severely limited the President's options in moving any detainees out of GTMO.  Steve Vladeck questioned the constitutionality of those measures.  Unfortunately, having the law on your side does not seem to be enough.  Goldsmith is probably right when he states that the administration will not force a detainee on U.S. soil for trial against Congress' objection. 

If we cannot move the detainees to the States for civilian prosecution, what can we do?  Goldsmith believes we will likely see more military commissions.  Of course, one must assume that process will continue to move at glacial speed.  In fact, there are no current cases on the docket.  Even with more military commissions, not every detainee will be tried.  The government often claims not everyone can be tried.  The government will continue to hold that group without trial.  Their only process will be the habeas proceedings mandated after the Supreme Court decision in Boumediene.

What next for GTMO detainees?  More of the same. 

Maryland Guardsman facing a court-martial


The Washington Post reports that an Army National Guardsman is facing a court-martial on a charge of murdering an Afghan civilian in September. Sergeant Derrick Anthony Miller, who has deployed twice to Iraq and once to Afghanistan, allegedly shot an unarmed Afghan man in the head at close range. According to the report, Miller had detained the Afghan, Atta Mohammed, for questioning after the man entered a security perimeter. Army prosecutors allege Miller had threatened to shoot Mohammed if he did not cooperate and later did so after the victim became agitated. Miller claims he acted in self-defense.

Miller's court-martial is scheduled for June 6.

Hastings' Latest Army Article Sparks Investigation into Psy Ops

Well, that didn't take long. National Journal is reporting that General Petraeus has ordered an investigation into allegations that Lieutenant General William Caldwell IV had psy ops officers use their techniques on senior officials who visited Afghanistan last year.

Got Military Legal Experience? Looking for a Job?

The Judge Advocates Association is looking for a new Executive Director. In the past, this has been a part-time PAID (hourly rate) position, but the ad doesn't indicate whether it's still a part-time job or if it's a full-time gig now. The current JAA President (Marc Warren) has undertaken efforts to make JAA more attractive to a new generation of JAGs, and that will undoubtedly be part of the Executive Director's duties going forward.

Naval Academy Grad Conscientious Objector Success

For anyone who's dealt with a conscientious objector case, you know they're not easy. You also know it's not a given that a military member will have the military officially recognize him or her as a conscientious objector.

So, it was with some interest that I read about the Navy granting this status to a 2008 Naval Academy graduate who was in submarine training at the time that he realized his moral views didn't jive with the military. Specifically, Ensign Michael Izbicki argued (as is required in order to have a successful conscientious objector package) that he was opposed to all wars. The Navy's investigations into Izbicki's claims rejected his application. After Izbicki sued the Navy in federal court, the Navy granted Izbicki the objector status and an honorable discharge. The article reports Izbicki will have to repay part of the costs of his training, as he did not fulfill his contract with the Navy.

Psy Ops Used to Influence Afghan Budget and Troop Levels?

Rolling Stone reporter Michael Hastings (of General McChrystal "Runaway General" fame) is now alleging that psychological operations (psy ops) officers worked their magic on DVs (distinguished visitors--military-speak for VIPs), including US congressmembers, diplomats, and senior military leaders, on trips to Afghanistan in 2010. This time the Army general in the spotlight is 3-star William Caldwell. According to Hastings, Caldwell ordered his troops to use psy ops on the visitors in order to get more troops and money dedicated to the war effort in Afghanistan.

Here's a quote that sums up the controversy: "My job in psy-ops is to play with people’s heads, to get the enemy to behave the way we want them to behave," says Lt. Colonel Michael Holmes, the leader of the IO unit, who received an official reprimand after bucking orders. "I’m prohibited from doing that to our own people. When you ask me to try to use these skills on senators and congressman, you’re crossing a line."

And another quote from the piece: Federal law forbids the military from practicing psy-ops on Americans, and each defense authorization bill comes with a "propaganda rider" that also prohibits such manipulation. "Everyone in the psy-ops, intel, and IO community knows you’re not supposed to target Americans," says a veteran member of another psy-ops team who has run operations in Iraq and Afghanistan. "It’s what you learn on day one."

Apparently, Holmes contacted a JAG about his qualms with Caldwell's policies, and the JAG suggested Holmes retain a defense counsel, while agreeing that Caldwell's orders made the JAG nervous.
Stay tuned for what is bound to be another high-profile ride.

Edging Closer to Referral in Ft. Hood Shooting Case?

The lead attorney (John Galligan) for Major Nidal Hasan, the accused Ft. Hood shooter, met with Hasan's unit commander yesterday in an attempt to persuade Colonel Morgan Lamb not to recommend a capital referral for the case. Colonel Lamb is expected to pass his official recommendation regarding the case to the general court-martial convening authority soon. The convening authority will make the final decision whether to refer the case to a court-martial and whether that referral will allow the death penalty as a sentencing option if the members find Hasan guilty.

Chairman of Joint Chiefs of Staff Prospect Cleared in IG Investigation

As the Vice-Chairman of the Joint Chiefs of Staff, Marine General James Cartwright, is viewed as a top candidate to replace current Joint Chiefs of Staff Chair Navy Admiral Mike Mullen. Until yesterday, there was an outstanding question that might have derailed such a nomination. An IG investigation into an anonymous allegation of an inappropriate relationship with a female assistant has cleared Cartwright of wrongdoing. It seems the assistant had a bit of a penchant for causing a stir when she'd had too much to drink, including one incident in which she slept for a while in Cartwright's hotel room/traveling office with plenty of security just outside the door, which was left ajar.

Wednesday, February 23, 2011

NIMJ SCOTUS Amicus in Diamond v. U.S.


NIMJ filed an amicus brief in the cert petition at the Supreme Court this week in the case Diamond v. United States. You can read the brief here.

NIMJ argued that a certiorari petition may be filed on all issues presented in a case in which CAAF has granted review or relief, regardless of whether that court identified them when when it granted review, and revised Rule 21(b)(5)(G) is unlawful to the extent that it purports to allow CAAF to consider what issues a litigant might include in a certiorari petition in deciding whether there is good cause for CAAF review under Article 67(a)(3).

Tuesday, February 22, 2011

American’s Panel Discussion on Guantanamo

On Friday, February 18,2011, the Program on Law and Government and the National Institute of Military Justice presented "The Guantanamo Detainees: What Next”, at American University Washington College of Law.

According to an article in Opinio Juris:

It felt like a lively discussion Friday at the panel hosted by American University scholar Dan Marcus on “Guantanamo Detainees – What Next?” (Many thanks to Ken for plugging it earlier in the week. I take it the session will at some point be available among webcasts on the law school website.) Jack Goldsmith gave a keynote address to a very full house, and then Bobby Chesney (UTexas), Steve Vladeck (American) and I had a chance to respond and interact. It felt a little like old home week with folks like Gene Fidell, Marty Lederman, Geremy Kamens (Hamdi’s defense counsel) and Ken Troccoli (Moussaoui’s defense counsel) in the audience. Good to see everyone, and thanks to all for an engaging conversation.

For those of you who’ve been following this for a while, I’m not sure we broke any major new ground, but a few points may be worth mentioning. Jack Goldsmith is no longer arguing in favor of a statutory fix to the Guantanamo problem in the form of a clearer AUMF-type authorization. As he rightly notes, the D.C. courts have now in key respects answered questions of what habeas hearings look like procedurally, and even who may be detained. I hardly agree with the courts’ answers in all these respects, but I wholeheartedly agree that congressional involvement at this point to try to “clarify” the law in those habeas cases would only set back the litigation clock another 8 years. We were also quite in agreement about many of the deficits of the military commissions. And there was vigorous, bipartisan consensus on the panel about Congress’ foolhardiness – either as a matter of constitutional power or as disastrous policy or both – in trying to prevent the criminal prosecution of any of the Guantanamo detainees under any circumstances.

To read the rest of the article, please click here.

Libyan Upheaval Has Military Justice Lessons

We've talked about the duty to obey lawful orders and the duty to disobey illegal orders in class recently. This week's outbreak of violence in Libya highlights this concept. You may have heard about the 2 Air Force pilots who flew their fully armed jets to Malta as defectors, rather than following orders to kill civilians. There is also word coming from Tripoli that soldiers who refused to open fire on civilians were killed for disobeying orders.

Japanese Police Find Alleged Murder Weapons in Kadena Killing

Using information gleaned from a still-unidentified airman held in pretrial confinement on Okinawa, Japanese police officers located knives authorities believe TSgt Curtis Eccleston's wife (and, likely, the airman in pretrial) used to kill the Kadena AB E-6 in an off-base apartment 2 weeks ago.

Monday, February 21, 2011

Clarification on Colonel Russell Williams and Canadian Military Jurisdiction

A friend of NIMJblog's who has served as a uniformed attorney in Canada's military provided us with clarification as to the jurisdictional limits of military jurisdiction in Canada after my post about the murderous Colonel Williams last week. David McNairn provided this note:

Under s. 70 of Canada's National Defence Act (NDA), the military justice system has no jurisdiction over three types of offences committed in Canada: murder, manslaughter and certain child abduction offences. These offences, if committed in Canada, must be tried and dealt with in the civilian criminal justice system. If, on the other hand, these offences are committed outside of Canada by a person subject to military law, they can be tried and dealt with in the military justice system.

In the case of Col Williams, his matter was dealt with in the civilian system even though one of the victims was a female service member who was employed at the base where he was the commander. Had the offence occurred outside of Canada (e.g., at a Canadian military installation in another country), Williams could have been charged with murder and tried in the military justice system.

Another small point. Section 130 of our NDA gives the military justice system concurrent jurisdiction over any offence under a federal law. In Canada jurisdiction over criminal law and procedure rests with the federal Parliament. With the exceptions noted above, the military justice system has concurrent jurisdiction over virtually any criminal offence. The jurisdiction is even broader in the sense that, in addition to criminal offences, the military's concurrent jurisdiction extends to any offence under a federal law which covers a host of other things as well.

As a practical matter, you won't find any prosecutions of Income Tax Act offences in the military justice system. Generally, you won't find a matter in the military justice system unless there is some disciplinary aspect to it. For example, an off duty soldier caught for drunk driving on a weekend would be dealt with in the civilian justice system (notwithstanding concurrent jurisdiction over the offence), whereas if he were caught driving drunk while operating a military vehicle there is a good prospect that he would be court martialed.

This follow-up correspondence reminds me to mention that we always appreciate additional information about our posts, particularly if they provide pertinent background information or explanations of policies with which you are familiar. Please send these to nimj@wcl.american.edu.

In "Rape Capital of the World," Commander and Others Convicted of Crimes Against Humanity

In the Democratic Republic of Congo, Lieutenant Colonel Kibibi Mutware, a local commander, was convicted and sentenced to 20 years in prison by a military court for ordering (and participating in) the rapes of dozens of women in a Congolese village on New Year's Day. A number of his soldiers were also convicted and sentenced to between 10 and 20 years of confinement for their related crimes. Rape is a frequent tool of war in the DRC, and it is a crime that often goes unpunished, making this case front-page news.

Army Rape Subject Tracked to Daytona

While racing fans' attentions were focused yesterday on a certain 20-year-old who won the Daytona 500, civilian and Army CID law enforcement agents had their eyes on a different 20-year-old in the same vicinity earlier in the weekend. Trevor Bayne took the checkered flag in the race, and Pvt Daniel Brazelton took a trip from Daytona Beach back to jail. Suspected in the 2009 sexual assault of a minor in California, Brazelton escaped from military custody near Ft. Stewart, Georgia, and led officers on a week-long chase that ended with his re-apprehension Friday evening.

Sunday, February 20, 2011

Residual Hearsay Survives Crawford at NMCCA

CAAFlog's Marcus Fulton brought a new unpublished Navy-Marine Corps Court of Criminal Appeals decision to our attention. United States v. Sparks is the child sexual abuse case many of us have seen before--young child makes allegations to day care provider, family member or trusted friend. When the authorities start investigating, the child clams up. She bursts into tears at the Article 32 hearing and the court-martial.

Of course, the prosecutors, understandably, don't want to risk the likelihood that a servicemember (here, the complainant's own father) who they believe is a child molester will walk free. So, they bring in grandma, to whom the child initially revealed the allegations. The military judge finds that grandma's (mother of Appellant's estranged wife)testimony is admissible under the residual hearsay exception in MRE 807. NMCCA agrees, after reviewing for clear error (using abuse of discretion standard) the military judge's decision to admit the statements.

The NMCCA panel recognizes the statements are clearly hearsay, but finds the grandmother's testimony meets the 807 elements for admissibility, according indicia of reliability and circumstantial guarantees of trustworthiness based on:
1) declarant's mental state,
2) statement's spontaneity,
3) use or lack of suggestive questioning,
4) whether the statement can be corroborated,
5) declarant's age, and
6) circumstances under which the statement was made.

Given the fact that the complainant was barely 4 at the time she made the statements (competence to testify issue?), the strained relationship between Appellant and the complainant's mother (although grandma was apparently only recently reconciled with the mother herself), I'd say there's reason to question the reliability of the statements. On the other hand, the military judge found the statement was spontaneously delivered without leading questions. Oh, and the Appellant confessed to the allegations, but the military judge didn't take that into account, so I fail to see the corroboration element applied in this case.

I do agree with the Court that this hearsay doesn't appear to be "testimonial" under the definition used in Crawford v. Washington; however, I'm not convinced there were sufficient indicia of reliability, given that the mother and grandma were the only ones who apparently heard the girl list the allegations. The only way I can get to sufficient indicia of reliability is to consider the dad's confession (which the military judge didn't consider). Of course, the reason the girl's statements were needed was to corroborate the Appellant's confession. Can you corroborate a confession with residual hearsay that is admissible because you rely on the confession? It seems pretty circular to me.

NIMJ Board Meets at Washington College of Law

Members of the NIMJ board of directors and advisory board and staff met on February 19 at American University Washington College of Law (clockwise from left, John Carr, Steve Saltzburg, Vic Hansen, Michelle Lindo McCluer, Brian Baldrate, Hardy Vieux, Ron Meister, John Paul Jones, Gary Solis, and Jon Tracy). Beth Hillman also attended, and Rick Rosen participated by phone. Many thanks to everyone who was able to participate, to NIMJ staff for the excellent preparations, and to our luncheon speaker, Lt Col Joshua E. Kastenberg, USAF, who shared some of his experiences in writing his remarkable and definitive biography of Colonel Winthrop, "The Blackstone of Military Law" (Scarecrow Press 2009).

20/20 Update on "Astronaut Love Triangle"

It must be "O-6s Gone Bad Weekend" on TV. Last night's 20/20 episode presented an update on jealous former astronaut then-Navy CAPT Lisa Nowak and her victim Colleen Shipman (a USAF captain at the time). You'll remember this case for the love triangle and the allegations that CAPT Nowak wore a diaper for her multi-state drive to confront her rival.

Less publicized was the Navy's response to the crime. While Nowak faced civilian justice, the Navy took administrative action through a Board of Inquiry last year by recommending her discharge with an Under Other Than Honorable Conditions characterization and a determination that she had not served honorably in the grade of O-6.

Saturday, February 19, 2011

Killer Canadian Commander Profiled on Dateline

I fell asleep about 3/4 of the way through this episode which presented a profile of the deaths and rapes of Canadian women (including an Air Force member) that police ultimately linked to the commander of Canada's largest Air Force base. It's a chilling tale of horrors, especially watching Colonel Russell Williams' cool demeanor in his police interrogation. What's more--Colonel Williams even flew Queen Elizabeth.
It's worth noting that the civilian justice system prosecuted Colonel Williams. Although Canada does have a separate military justice structure, the military courts lack jurisdiction over some crimes--such as murder.

Commission Members Adjudge Maximum Sentence for Noor

Yesterday (information dissemination delayed due to the ever-present technology issues at GTMO) the military commission members in the case of Noor Uthman Muhammed adjudged the maximum sentence of 14 additional years in confinement for Noor after 5+ hours of deliberating.

Of course, a plea agreement will reduce that sentence. After the members announced the adjudged sentence and were excused, the military judge revealed the contents of the pretrial agreement to the courtroom. Noor will serve less than 3 more years at GTMO (34 months) if he cooperates in the prosecution of fellow terror suspects. An ironic twist in the story is the fact that Congress' ban on using DoD funds to bring detainees to the US for any reason, prosecution included, means that prosecutors would have to fashion a constitutionally sound alternative to live testimony, should Noor's input be needed for any prosecutions in the US.

Courtesy of the Miami Herald's Carol Rosenberg, here is a copy of Noor's unsworn statement to the panel, read by his Army defense counsel earlier this week.

Friday, February 18, 2011

Padilla Can't Sue Over Detention

Yesterday a judge in the federal District of South Carolina dismissed a suit Jose Padilla filed against former Secretary of Defense Donald Rumsfeld, former Attorney General John Ashcroft, and others for wrongs he alleged occurred when he was held as an "enemy combatant" in the Navy confinement facility in Charleston. The judge found that Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), gave the defendants qualified immunity for their alleged actions.

Indian General Sent to Jail

Apparently U.S. military members don't have a lock on procurement fraud. A retired lieutenant general from the Indian Army faced a court-martial for supplying expired food to troops in remote, high-altitude locations. In a historic court-martial, Lieutenant General SK Sahni received a sentence of 3 years in prison.

This marked the first time an officer of his rank received jail time in India, although it is the second court-martial of an Army lieutenant general there in recent weeks. Lieutenant General SK Rath was convicted in a building scam.

Noor Commission Members Deliberating

After the government and defense witnesses presented closing arguments in Noor Uthman Muhammed's military commission this morning, the court members are now deliberating on his sentence. Predictably, the prosecution (Navy LCDR Arthur Gaston) used his argument to attempt to tie Noor to the "worst of the worst" terrorists, while the defense (Marine CPT Chris Kannady) tried to paint Noor as a low-level guy looking for a way out of poverty, but he ended up at Bagram.

Although there are no sentencing guidelines or even mandatory minimum sentences in the military commissions system, the military judge instructed the members that they could adjudge a sentence to confinement of between 10 and 14 additional years in confinement (no credit for the 8.5 years already spent in confinement under Military Commissions Act of 2009). Presumably, this instruction was part of the pretrial agreement between Noor and the government.

Was General Fonseka's Court-Martial Valid?

Mr Elmore Perera (left) has written this interesting discussion of legal issues in the court-martial of retired Sri Lankan General Sarath Fonseka.

EVENT TODAY: Guantanamo Detainees: What Next?

Today at American University Washington College of Law from 12 – 2 p.m. NIMJ is co-presenting with the Program on Law and Government an event titled “The Guantanamo Detainees: What Next?”

As we approach the tenth anniversary of the 9/11 attacks, there are still almost 200 detainees at Guantanamo Bay. Basic questions as to their trial for alleged war crimes and their continued detention are still the focus of political and legal debate and have yet to be resolved. This program will address these important issues.

The keynote speaker will be Jack Goldsmith, Henry L. Shattuck Professor of Law at Harvard. Goldsmith is a former assistant attorney general for the Office of Legal Counsel and is the author of “The Terror Presidency: Law and Judgment Inside the Bush Administration”, an inside look at legal policy surrounding national security during the presidency of George W. Bush.

Panelists include Robert Chesney, professor of law, University of Texas School of Law, Deborah N. Pearlstein, visiting faculty fellow, University of Pennsylvania Law School, and associate research scholar, Woodrow Wilson School for Public & International Affairs, Princeton University, and Stephen I. Vladeck, professor of Law, American University Washington College of Law. The panel will be moderated by Daniel Marcus, fellow in Law and Government, American University Washington College of Law.

Details here.

Navy Senior Petty Chief Retires in Grade After Dog Kennel Harassment Investigation

Stars and Stripes reports that the Navy has completed its grade determination for Senior Petty Chief Michael Toussaint and determined that he can keep his current rank in retirement. Toussaint's most recent reenlistment paperwork was rejected after an investigation into allegations that he had led others in harassing then-Petty Officer 3rd Class Joseph Rocha about his sexual orientation by using dogs at the kennel that Toussaint supervised in Bahrain. The Navy also censured Toussaint for fraternization violations.

In the end, the Navy cited numerous flaws in the investigation as contributing to Toussaint being allowed to retire in grade with an honorable discharge, finding a number of the allegations unsupported by evidence.

NLSO Commander Fired, Staff Reprimanded Over VWAP Failures

The Navy's DJAG, RADM Nanette DeRenzi, fired Navy Regional Legal Services Office (RLSO) Japan commander CAPT Rex Guinn yesterday, and others from the RLSO office received reprimands. The actions followed in the wake of an investigation into the prosecution of an O-4 doctor who was convicted of a series of sexual assaults and harassment of his female patients in Japan and Kuwait.

The problems with the case centered on the mishandling of the Victim Witness Assistance Program, which the RLSO managed for LCDR Anthony Velasquez's case. It seems RLSO officers were involved in negotiating a sweet pretrial agreement for Velasquez without getting the required input from the victims, several of whom had already endured the Navy dropping the ball on their allegations at various junctures over a 1-2 year period. In fact, Velasquez pled guilty to just a handful of charges, while the Navy dismissed over 2 dozen other specifications as part of the deal.

In the end, Velasquez's deal had him serving a mere week in confinement with his $28,000 adjudged fine suspended. The military judge sentenced Velasquez to 2 years in confinement, the fine, and a dismissal from the service. The RLSO notified victims of the adjudged sentence, but not the plea agreement terms.

Stars and Stripes reports that former Special Assistant for Transformation CAPT Dawn Tompkins is replacing CAPT Guinn. Interestingly, CAPT Guinn prosecuted the high-profile case of another JAG, the Valentine's Day card leaker of Guantanamo detainee names, LCDR Matthew Diaz.

Thursday, February 17, 2011

Recaps of Today's Pre-sentencing Case in Noor's Military Commission

The government and defense presented their pre-sentencing cases today at Noor Uthman Muhammed's military commission. The government presented a stipulation of fact (see post below) detailing Noor's involvement in terrorist camp training, a video of an interview with "high-value" detainee Abu Zubaydah and a statement from "20th hijacker" Zacarias Moussaoui, both detailing their roles in the camp where Noor trained others.

Noor's Army defense counsel, Major Amy Fitzgibbons, who had to fight the Army at one point in order to remain Noor's defense counsel, read an unsworn statement from Noor that told of his mistreatment at Bagram AB after his capture and asked the members to send him home to live in peace. His Navy defense counsel CDR Katharine Doxakis showed Noor's family photos. No witnesses testified for either side.

From Carol Rosenberg (midday):
http://www.miamiherald.com/2011/02/17/2071904/guantanamo-war-court-screens-waterboarded.html

From DoD (evening):
http://www.defense.gov/news/newsarticle.aspx?id=62854

In all likelihood, the members will adjudge a sentence for Noor tomorrow. The day will start with sentencing instructions from the judge and argument from both sides, then the members will retire to deliberate in closed session.

Stipulation of Fact from Noor Commission Released

Here is the Stipulation of Fact between detainee Noor and the prosecution in his military commission, courtesy of the Miami Herald's Carol Rosenberg. More later.

Thursday's Thought

The sixth conviction produced by the military commission system in Guantanamo Bay provides another chance to evaluate the system. Noor Uthman Muhammed pleaded guilty earlier this week to charges of conspiracy and supporting international terrorist groups. A panel of nine military officers is currently considering his sentence.

Noor is the third person convicted in the past six months. Only three cases were resolved between 2001 to 2008. This increase in activity might give the impression that past problems have been resolved and justice will now continue to operate smoothly. That assumption, however, does not seem warranted given the facts on the ground. A major test for the system has yet to be resolved. We are still waiting for the appeals in Hamdan and Bahlul to be decided by the Court of Military Commission Review. Who knows what the CMCR, or what the civilian appellate courts, will say in those cases. Substantial parts of the Military Commissions Act may be invalidated. That would jeopardize the recent "successes."

In light of Noor's conviction, Navy Captain David Iglesias, a spokesman for the military commission prosecutors, applauded the process and outcome to the American Forces Press Service. A number of his comments are worth examining in detail.

Iglesias defends the use of a military court over a civilian court. He is quoted as saying the Department of Justice "has a 35-year history of trying terrorism cases, going back to the mid-1980s." However, he says, the civilian system "does not have a long history of prosecuting war crimes.” He rightly gives credit to DOJ for prosecuting international terrorism cases. It has been well-documented by groups like Human Rights First that DOJ has prosecuted hundreds of complex terror trials. At the same time, however, Iglesias indicates DOJ could not handle the "war crimes" cases currently before the military commissions. Consider Iglesias' comment in light of the facts. Noor basically admitted to working at a terrorist training camp in Afghanistan and escaping to Pakistan after Operation Enduring Freedom began in 2001. He was later caught in a safe house in Pakistan. Contrast that with the case against Aafia Siddiqui. Siddiqui was convicted in federal civilian court last year of two counts of attempted murder after she snatched an assault rifle while in an Afghan police station and opened fire on U.S. military personnel. Which of those two cases sounds more like a war crime? It is also noteworthy that Noor was held for eight years before trial and conviction and Siddiqui was tried within months of capture.

Iglesias goes on to say that the U.S. military "has a history of prosecuting war crimes going back to the Revolutionary War in the 1770s." Yet, he also admits that the last time the United States convened military commissions was at the end of World War II. Can we say that the military attorneys serving in the commissions are really better able to handle these cases than DOJ? NIMJ observers have consistently written that the military attorneys working in the commissions are professional and competent. At the same time, NIMJ has regularly pointed out that the military commission system has been less than perfect. For example, as pointed out here, a new trial manual was dropped on the attorneys on the eve of a significant hearing in Omar Khadr's case. Also, the law governing military commissions has been significantly changed three times in the last decade. In contrast, the federal civilian courts are well-established and can readily handle these cases.

Next, Iglesias attempts to answer critics of military commissions who complain they don’t stand up to the rights observed in civilian courts or courts-martial. He believes those issues were resolved with the passage of the Military Commissions Act of 2009. He claims the new act "gives greater rights to detainees." While there were some improvements to the system, significant deficiencies remain. This NIMJ report and NIMJ's amicus briefs in the Hamdan and Bahlul cases identify some of those concerns. For example, there are concerns with the government's ability to rely on evidence obtained through coercion, there is a potential that individuals can be prosecuted ex post facto for conduct not considered a violation of the law or armed conflict, and there are compelling arguments that certain crimes defined in the law are not violations of the law of armed conflict. These and other issues cannot be easily glossed over.

It appears that despite serious legal concerns, the military commissions at Guantanamo Bay will continue.

Wednesday, February 16, 2011

If al Qaeda Top Leaders Found, GTMO Detainee Population Will Expand

While the US government hasn't placed any new detainees in the military prison at Guantanamo Bay for several years, the camp would likely make room for al Qaeda leaders Osama bin Laden and Ayman al-Zawahiri, should they be captured alive, testified CIA Director Leon Panetta today.

Opening Statements in Noor Commission

Navy LT CDR Arthur Gaston gave the prosecution's opening statement, emphasizing Noor's role in molding future terrorists in training camps in Afghanistan and Noor's connections to "high-value" detainee Abu Zubaydah and convicted 9/11 plotter Zacarias Moussaoui.

Noor's pro bono civilian counsel Howard Cabot is presenting the opening statement for the defense, using his opportunity to describe Noor as a low-level functionary cooking and giving arms training to recruits long before 9/11. Cabot's son has written a fascinating sketch of his father's defense of Noor in Esquire. Cabot's political and professional background is not what one might presume. (I can personally vouch for the description of Noor's arraignment, as I sat several rows behind Cabot and Noor that day just over 2 years ago.)

Noor Members Seated

The defense counsel in Noor's military commission challenged 6 potential members for cause. It appears the government didn't challenge any prospective members unless the military judge presiding over the commission didn't grant all of the defense challenges. The 9 officers sworn in as the panel that will adjudge a sentence in the case are currently hearing opening statements of counsel.

This Morning's Noor Proceedings at GTMO--Updated

Following his guilty plea yesterday (which our observer, GW Law Professor Mary Cheh described to Carol Rosenberg as "glossing over" fundamental legal issues), voir dire is in full swing at Noor Uthman Mohammed's military commission this morning.

Defense and prosecution attorneys are questioning fifteen (11 males, 4 females) US military officers from the four non-Homeland Security branches to see if they should sit as the commission panel which will decide Noor's adjudged sentence. I trust the Air Force didn't solicit volunteers again. While none of the potential members seem to have in-depth, formal knowledge of Middle Eastern culture, at least 2 of the colonels have deployed to Iraq.

Rumor has it that Noor has negotiated a "3 additional years at GTMO" plea deal, so the adjudged sentence will likely be mostly irrelevant when the case reaches the convening authority for post-trial action.

For live-blogging from the trial, check out Carol Rosenberg's and Muna Shikaki's Twitter pages.

UPDATE: The Office of Military Commissions has posted many new documents related to Noor's case on its website this week.

Two Held in Connection with Okinawa Airman's Death

Maybe I watch too many true-crime murder mysteries, but details of the suspected homicide of a Kadena AB airman last week immediately pointed me to the late airman's wife. A friend found TSgt Curtis Eccleston's body in an off-base apartment that Eccleston shared with his wife. Now the civilian wife is in Japanese custody and an airman is in pretrial confinement at Okinawa's military brig on Camp Hansen.

Despite the investigation remaining in an early stage, given the vastly differing jurisdictions, it should be interesting to see how this case plays out. Will the Japanese try the wife? Will MEJA have any role in prosecuting either individual?
In other news from my former stomping grounds in the Land of the Rising Sun, Petty Officer 1st Class Jason Mark Conrady faces Japanese charges of DUI and manslaughter for a low-speed wreck that killed a Japanese national motorcyclist. A word of warning to those stationed in Japan--check out Conrady's BAC.

Tuesday, February 15, 2011

Hutchins' Freedom to End After Appellate Roller Coaster

After seeing his conviction for killing an Iraqi civilian in Hamdania tossed by the Navy-Marine Corps Court of Criminal Appeals last year, Marine Sgt. Lawrence Hutchins is now preparing to return to confinement. The Court of Appeals for the Armed Forces reinstated the conviction that the Navy-Marine Corps Court vacated, overturning the service court's presumption of prejudice due to finding Hutchins' attorney-client relationship with one of his trial defense counsel was improperly severed just before the court-martial began.

Noor Pleads Guilty at Commission

As anticipated, Noor Uthman Mohammed pled guilty at a military commission hearing in Guantanamo Bay, Cuba, today. Here is the DoD press release. From the schedule, my guess is that the court members are flying to GTMO this afternoon. More details later.

What Happens after a Military Commission Sentence?


The Miami Herald's Carol Rosenberg reports that a Pentagon spokeswoman stated that Ibrahim al Qosi will not automatically go home to his native Sudan when his sentence ends in 2012. Al Qosi is a confessed al Qaeda cook serving a two-year sentence after pleading guilty at his military commission last year. He pleaded guilty to providing material support for terrorism. A military jury sentenced him to 14 additional years at Guantánamo. However, his plea deal capped his prison term at two years.

The relationship between military commissions and the government's asserted power to indefinitely detain has long been a point of contention. The spokeswoman explained that after al Qosi completes his sentence, it will be up to the detention authorities if he can be released. The article points out another interesting fact and major obstacle in dealing with al Qosi (as well as Noor who is also Sudanese and whose military commission recommences this week). Sudan is a country on the government's State Sponsors of Terror list. Congress has limited the President's ability to sending cleared captives to states on the list.

UPDATED--Tuesday's Two Cents' Worth: Women in Today's Military

Over the past few weeks, we've seen quite a bit of news about women in the military. This builds on last year's decision by the Navy to begin allowing women to serve on submarines, a report that showed the military's homosexual policy resulted in a disproportionate number of females discharged from the service, and new efforts by the Veterans Administration to recognize the unique needs of female veterans, particularly young veterans. Last month, we heard that a panel will soon recommend removing the "combat exclusion" that technically (but not actually) keeps women out of certain "front-line" career fields.

All this attention leads to considerations of how best to accomplish the military's mission while ensuring its female members are appropriately valued. Much as we are seeing DoD gear up for training on integrating openly homosexual members, sexual harassment awareness and sexual assault prevention campaigns have been a part of military life for several decades. However, the perception remains that women in the military get short shrift when it comes to prosecuting those who wrong them.

Just within the past month we've seen parents of a number of female servicemembers killed during deployments join to force an accurate accounting of their loved ones' deaths. The ACLU has filed suit to get DoD documentation of sexual assault cases, and yesterday a group of veterans (male and female) filed a class-action suit to bring attention to the perennial issue of dealing with sexual assault in the military. They allege that the complainants in sexual assault cases are often the ones who get punished, that victims aren't adequately protected from their attackers, and that investigators and commanders don't take their claims seriously.

Having prosecuted and defended these types of cases in the military, I must admit I have mixed feelings about sexual assault claims in the services. Generalities in this area are fraught with danger, and there are certainly exceptions to every generality. Having said that, I'll dive into the shark tank and share my observations.

Alcohol overindulgence by both parties played a part in the vast majority of the cases on which I worked, making it difficult to discern the facts, particularly when neither participant could fully recall the chain of events. With little, if any, forensic evidence and, often, no witnesses, how is one to decide what really happened?

There are also the cases of "I woke up in the wrong bed," as a fellow defense counsel called them. Those are the ones in which the complainant alleged rape because of a fear that a boyfriend or husband might find out about the liaison or a fear of repercussions for violating alcohol, fraternization, or sleeping quarters policies manifests itself. Given the close quarters and wildfire nature of rumor spreading in the military, these cases may (caveat: I have no actual data) contribute to higher rates of false reporting than in civil society. During my time as a defense counsel, I saw a case in which the complainant's dad was expected to be a witness for her character for UNtruthfulness, couples' "swinging" gone bad, a scratched-up complainant who simply liked a bit of "adventure," and a complainant claim that she was raped while she was on top. I wish I could say these were isolated incidents, but that is not the case.

Some of the hardest cases to deal with were the "serial victims," those who had been sexually assaulted before (sometimes multiple times) and found themselves victims again. Their mental state and self-confidence shattered, they were easy prey, and defense counsel looked for opportunities to introduce prior sexual acts or mental health records to cast doubt on the complainants' stories. Does it make sense to punish a complainant for underage drinking? What about the victim who was too scared to come forward because she'd been in trouble before or the one who kept quiet so as not to risk having his sexual orientation revealed? Relatively recent reforms in the sexual assault reporting system in the military and in protecting mental health discussions have made some positive impacts in this area, but they have not solved the problems.

All of these factors make it quite difficult for commanders and their legal advisors to figure out the best course of action in individual cases. Some commanders sent virtually every sexual assault case to court-martial, fearful of being labelled soft on crime or insensitive to victims' rights. Other commanders seemed reluctant to send cases forward without the CSI-type evidence that is usually elusive in such cases. Some split the difference, preferring charges against all accuseds, but relying on the Article 32 investigation to sort out the facts.

I'm always torn when I read about sexual assault in the military; it's such a high-stakes set of criminal allegations that carries life-long consequences for all involved. How do you best protect true victims, whether they're the complainant or the accused? How would you handle these situations if you were the commander?
UPDATE 2/16/2011: Here is the initial DoD response to the suit filed this week.

Monday, February 14, 2011

Noor Military Commission Back in Session Tomorrow

NIMJ Director Mary Cheh (better known as DC Councilwoman Cheh or GW Law Professor Cheh) is our observer for the military commission hearing of Noor Uthman Mohammed (preferred name: Noor) this week. As reported in the Washington Examiner, she's traveling in her NIMJ capacity, not her DC Council capacity.

Rumor has it that commission members (jurors, in civilian parlance) are being flown to GTMO this week, so it appears a plea deal is in the works for this case.

We'll post updates as we're able, conditions at GTMO being what they are. (Challenging, at best.) For live-blogging of court action, check out Miami Herald reporter Carol Rosenberg's Twitter page. Unfortunately, NGO observers aren't allowed the live-blogging, remote courtroom access afforded to the media.

Getting Spicier

When I was a defense counsel, rings of servicemembers taking ecstasy obtained at raves was the hot topic of drug prosecutions. Today, it's that pseudo-marijuana drug known as "spice" getting all the attention. Here are the latest Air Force warnings (and changes to its drug policy) and news of locations being placed off-limits for Marine Corps personnel, due to "spice" connections.











Army Angst

Family members of servicemembers killed in Ganjgal, Afghanistan, in 2009, have now learned that a couple of unnamed officers involved in that fatal mission received "severe" reprimands (not sure how a severe reprimand differs from any other, unless we're talking "desk drawer" v. filed in their official personnel files) for their roles. This incident was widely critiqued for the lack of provision of close air support and other aid for the beleaguered soldiers and marines, and one survivor has been nominated for the Medal of Honor. I thought it was interesting that the Army spokesperson stated that the names weren't made public because the individuals weren't facing charges under the UCMJ. Of course, if they'd received Article 15 nonjudicial punishment, we still likely wouldn't know their names.

In other Army news...

Those of us who deal with military justice matters on a daily basis often forget that the vast majority of military members are law-abiding, good people. Here's a snippet I read over the weekend that symbolizes the unsung folks who do their job without seeking glory. It's nothing like the actions of Dakota Meyer, cited above, but it's a good reminder to us all that we shouldn't get too big for our britches. While this didn't ruffle General Chiarelli, you can bet Valerie Jarrett's angst level was maximized.

With the Iraq drawdown, this personnel news from the Army is probably inevitable. After the plus-ups in manpower a few years ago, we're now headed for the bottom of the pendulum swing that is military manning. Stricter rules for enlisted soldiers reaching "high-year tenure" due to non-promotion to the next grade are not good news for those who might have been administratively demoted or demoted via nonjudicial punishment.

Navy Naughtiness

I shouldn't be surprised by the ingenuity of the criminal element, but...

Get kicked out of the Marine Corps. Steal your brother's identity so you can enlist in the Navy. Fake your brother's death and leave his SGLI to yourself. This guy really wanted to be in the military, or at least make a lot of money.

In other Navy news...

Another command master chief has lost his position already this year. The Ashland's commander fired Command Master Chief (SW/AW) Ron Burnett last week over allegations of "inappropriate touching" of a female sailor.

The Navy recently banned smoking aboard its submarines. Unlike some locations, which are moving towards outlawing all forms of tobacco, the sailors can still "chew" onboard, and they can light up when they leave the vessels. How are the nicotine-addicted coping? Read here.

Padilla Challenges "Enemy Combatant" Label and Brig Treatment

Jose Padilla has a hearing in federal court today regarding the lawsuit he filed against the US government for his designation as an "enemy combatant" and for civil rights violation allegations incurred during his 4 years in the Navy confinement facility at Charleston, South Carolina. The former government officials named in the suit would like to see it dismissed.

You may recall Padilla's case because he was a civilian US citizen arrested in Chicago (on the information of Abu Zubaydah--one of the water-boarded detainees) as the would-be "dirty bomber" and placed into military confinement before ultimately being turned over to civilian authorities and convicted of terrorism-related charges in federal district court in 2007. Previous court filings are located here.

Saturday, February 12, 2011

CAAF Posts Agenda for Annual Judicial Conference

While the registration information for the annual CAAF Judicial Conference has been posted for a while, the full agenda for the 9-10 March event is now available here. As previous years' attendees have, no doubt, recognized, the fall JAA/CAAF symposium generally provides more of the "how to be an appellate attorney" material, and the spring program usually strays into unrelated areas of the law. Perhaps in response to criticism of that divergence, this year's conference appears to mainly include topics that will be relevant for military justice attorneys.

Friday, February 11, 2011

Preview of Next Week's Military Commission Hearing?

It appears that what we thought would be a pre-trial hearing regarding jurisdictional issues at Guantanamo Bay next week could end up like the past couple of hearings for GTMO detainees--with a PTA. Here's the latest on Noor Uthman Mohammed's case from ever-reliable GTMO source Carol Rosenberg.

Whatever happens at the military commission next week, we'll do our best (GTMO internet access and DoD "babysitter" rules sometimes make this a challenge) to provide daily coverage of the proceedings from our observer who will attend the hearing.