Monday, February 28, 2011
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.
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
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.
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.
Friday, February 25, 2011
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).
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.
Thursday, February 24, 2011
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.
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.
Miller's court-martial is scheduled for June 6.
Wednesday, February 23, 2011
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
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.
Monday, February 21, 2011
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.
Sunday, February 20, 2011
Saturday, February 19, 2011
Friday, February 18, 2011
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.
Thursday, February 17, 2011
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):
From DoD (evening):
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.
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
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.)
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.
Tuesday, February 15, 2011
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.
Monday, February 14, 2011
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.