Thursday, March 31, 2011
Wednesday, March 30, 2011
An Iraqi-Canadian civilian contractor working with the US military in Iraq found himself the accused at a general court-martial in 2008. Ali was charged with assaulting another contractor, but the assault charge was dismissed as part of a plea to lesser offenses. As his sentence fell below the required jurisdictional requirement, he was not eligible for an automatic appeal. Fortunately for military justice groupies like me and the constitutionally curious, the Army TJAG decided to certify the case to ACCA. We did not anticipate this; it's a rare occasion that the TJAG wants an appellate court to decide a case challenging the government's jurisdiction. Here are the briefs from the government and defense.
This will be a historic argument to put on your calendar.
In a nutshell, the whole US system of military justice is headed to the fiery pit of Gehenna because the statutory prohibition on homosexual conduct in the military is on its way out. Specifically, the findings (such as the recognition that the military is a separate society and military service is not a right) underpinning 10 USC 654 are so vital to military justice and personnel issues that military lawyers won't be able to prosecute cases anymore after the repeal becomes effective because the military relies on 10 USC 654 for guidance in dealing with all sorts of challenges to its policies.
Here's more analysis (including from NIMJ President Eugene Fidell).
Tuesday, March 29, 2011
John T. (“Til”) Hazel, Jr., Esq., Recipient of the Judge Advocates Foundation Chief Justice Marshall Lifetime Achievement Award. Hazel is known for being one of the prime movers behind the development of Tysons Corner in Fairfax County, Virginia, but he was also an Army JAG early in his career.
Lt Gen Jack L. Rives, USAF (Ret.), former Judge Advocate General of the Air Force, ABA Executive Director, Recipient of the JAA Robinson O. Everett Distinguished Life Service Award. Rives led the Air Force JAG Corps during a critical period in which faith in leadership had been shaken and the Corps transformed itself for a new century.
Colonel Stephen R. Henley, Chief Trial Judge, United States Army Trial Judiciary, Recipient of the JAF
MG William K. Suter Distinguished Judicial Service Award. Henley has presided over some of the most high-profile military commissions and was the judge for the court-martial of a sister-service senior JAG.
Buy your tickets today!
I happened on this earlier version of the charge sheet for Howell's case and found it an interesting read as a military justice "junkie." For those like me who have read Article 110 a million times but had never seen "improper hazarding of a vehicle" charged before, Howell's charge sheet provides as example. I also found interesting the number of assault specifications charged, but the charge that really intrigued me was that the charge pertaining to the boy's death wasn't under Article 118 or 119. It was charged as an Article 134 offense.
Monday, March 28, 2011
The state of North Carolina gave up jurisdiction of the case due to a "credibility gap" between the alleged victim and perpetrator. McCaffrey's mental health and the Army's responses to his mental health should be key to the resolution of this case. Ironically, the man who fought to save his Army career after his injuries now seeks a medical discharge.
(H/t to our loyal reader Charlie F. for alerting us to this case.)
Given government appellate counsel's acknowledgment that it was impossible to determine which allegation the military judge found occurred beyond a reasonable doubt, it's no surprise that ACCA reversed the conviction for that specification. Faced with the next question, which was whether to send the case back for a sentencing rehearing or to reassess the sentence itself, the panel determined it could reassess the sentence itself, reducing the confinement time from 6 years to 4 years. Having been involved in military justice as long as I have, I don't think I will ever fully understand the confidence required for a service court to do the reassessment itself: "if the court can determine to its satisfaction that, absent any error, the sentence adjudged would have been of at least a certain severity, then a sentence of that severity or less will be free of the prejudicial effects of error."
I'm not sure why we're still litigating the issues raised in Daniels, as it's been several years since CAAF held that, when deleting "on divers occasions" from a specification, the finder of fact must make clear on which fact pattern they convicted. See US v. Walters, 58 M.J. 391 (C.A.A.F. 2003); United States v. Seider, 60 M.J. 36 (C.A.A.F. 2004). That no one (military judge, trial counsel, defense counsel) recognized this at trial is troubling.
Japanese-American WWII Veterans
Monday, March 28, 7:30 p.m., Hughes Formal Lounge
Two Japanese-American WWII veterans and one Japanese-American who was sent to an internment camp will share their powerful experiences. This is a great opportunity to learn about a unique piece of American history.
Sponsor: AU Veterans
U.S. Armed Forces Wheelchair Basketball Game
Thursday, March 31, 6:00 p.m., Bender Arena
Attend this year's annual Armed Forces Wheelchair Basketball Game and help raise money and awareness for wounded veterans and people with disabilities. Proceeds go to the Wounded Warrior Project and Push America charities.
Sponsor: Pi Kappa Phi
Contact: Nameir Abbas, firstname.lastname@example.org or 303-875-4992
Friday, March 25, 2011
Imagine my horror when, a couple of years later, I learned Mills resigned amid all the turmoil that accompanied his last days at USACIL--allegations that he pencil-whipped his work, falsified results, or otherwise failed to meet testing standards--culminating in missed DNA evidence or inaccurate results. Mills analyzed evidence in over 450 cases (for all the services, not just the Army) during a 10-year period, nearly 1/4 of which were found to have problems upon further review. (AFCCA affirmed the conviction in my case, and I'm comfortably convinced of the appellant's guilt.)
To make matters far worse, the evidence in a number of cases no longer existed by the time the lab began investigating Mills, so the magnitude of his errors will never be fully known. The thrust of the recent articles is that the investigation results weren't provided to the individuals most affected by Mills' work--the convicted military members and their attorneys. With only a 2-year post-convening authority action window in which to petition for a new trial based on newly discovered evidence under Article 73, UCMJ, after a court-martial conviction, the very belated release of this news makes the defense attorneys' jobs even more difficult.
I was a tenacious prosecutor who felt no remorse in ensuring that lawbreakers paid for their crimes, but I have no use for those who believe it's OK to cut corners when lives, freedom, and the integrity of the system are on the line. No one should have their conviction based on false evidence, particularly coming from an expert witness employed by DoD, and, when problems arise, a full probe of the problem and transparency are the best means of restoring faith in the system. (Anyone followed the work of the Dallas DA who espouses that motto? It's fascinating.)
Thursday, March 24, 2011
UPDATE: Further details appear to confirm that this was a RILO, although, unlike most RILOs, it sounds like Kopacek will be allowed to separate/retire on his own. Usually, you see an involuntary discharge with an Under Other Than Honorable Conditions characterization.
A recent Fox News article highlights the "Catch-22" nature of the uncertainty that hangs over the 9/11 defendants' attorneys. Although the decision to try KSM and company in civilian federal court is now nearly 1.5 years behind us, the defendants remain at Guantanamo Bay, and we have yet to see new charges filed after the determination that they would no longer face military commissions. So, that means the co-accuseds continue to retain their appointed defense counsel who represented them when they faced military commission charges. Realizing the vast amount of preparation needed in order to properly defend what will likely be capital cases, the defense counsel have sought resources in order to do just that.
This usually routine process of requesting travel money, experts, or other preparation necessities has become a huge problem for the 9/11 defense attorneys, as DoD views the cases as DoJ matters now, despite DoD retaining physical control over the detainees. Of course, with no civilian charges pending, DoJ isn't eager to spend its finite resources for these cases.
To complicate matters further, even if the uniformed defense counsel receive the resources needed to prepare their cases for military commissions, they will almost certainly not represent KSM or his co-accuseds if the case does, indeed, end up in civilian court. That is because the TJAGs (and SJA to the Commandant of the Marine Corps) have policies not to allow their JAGs to continue to represent clients once the clients are outside the military justice jurisdiction. In fact, when Ghailani attempted to keep his JAG lawyers after his transfer to the Southern District of New York, Judge Kaplan reaffirmed the TJAGs' prerogative to sever the attorney-client relationship when cases moved from the military commissions to the federal district courts. (Of interest: One of Ghailani's attorneys (now-Col Jeffrey Colwell) at issue in the litigation is now the chief defense counsel for the commissions.)
Meanwhile, these attorneys have clients to represent. On top of the protective order described in this blog earlier this week, the question increasingly has become one of how can you be diligent for your clients if your hands are tied? Just a couple more examples of the need to make decisions about the future trajectory of these cases ASAP, in the interests of all involved.
Apparently, Morlock's plea agreement is based, in part, on Morlock testifying against his co-accuseds at later courts-martial. Given previous information about Morlock's mental state at the time of the offenses and conflicting statements, I'm curious to see how effective Morlock's testimony will be. Of course, having been a prosecutor, I'm well familiar with the fact that you don't often have the "choir boys" as your star witnesses.I've also found interesting that it appears Morlock had at least 2 high-profile civilian defense counsel representing him, although I'd only seen one in the press until today. Geoffrey Nathan and Frank Spinner represented Morlock at his court-martial. Nathan made some comments about military justice after the sentencing hearing, phrases I'm reasonably certain retired USAF JAG Lieutenant Colonel Spinner didn't approve.
We're trying to get a copy of the pretrial agreement in this case, so, if you have access, feel free to send to email@example.com.
Wednesday, March 23, 2011
Tuesday, March 22, 2011
We hope to see you tomorrow!
According to the article, the Chief Defense Counsel Marine Colonel Jeffrey Colwell said Friday afternoon the Pentagon was delaying implementation of the order. Colwell issued a response to the order. He wrote, the document "unreasonably and unlawfully interferes with the attorney-client relationship" between the captives in the Guantánamo camps and American defense lawyers in uniform of their enemy. He noted the "absurd" requirement that lawyers tell the military beforehand what language they will speak with the captive.
Monday, March 21, 2011
Friday, March 18, 2011
The Wall Street Journal cites to a warrant in the case as indicating that Martin accepted a total of $3,500 from an undercover agent in exchange for dozens of pages of documents that were classified as either secret or top secret. The warrant further states that in the initial meeting with the agent at a North Carolina hotel, Martin told the agent he would be a valuable source since we would one day work for the Defense Intelligence Agency.
Thursday, March 17, 2011
2. Is the offense of aiding the enemy limited to those who have betrayed an allegiance or duty to a sovereign nation?
The appellant's (Bahlul) argument centered around notice of the charge. Is the offense charged a war crime? If not, what is the jurisdictional basis? If jurisdiction didn't arise till the MCA was enacted, is this ex post facto criminality? Central to the defense argument was the idea the standard of review for determining whether an offense is a war crime should be as follows: it must be plain and unambiguous that the offense was a war crime when the act was carried out. The appellant argued also that the JCE theory of liability has no source and is not recognized in the law of war. The "common plan" theory of liability referred to in the Army Field Manual is not the same as JCE, argued the appellant. An example was given of the chief Nazi Propagandist that was acquitted because he was not part of actually carrying out the genocidal plan.
The appellant also argued that JCE is not a stand-alone crime. They argued that no actual crime was a part of the case against al Bahlul--there were offenses but no war crimes that he intended to commit. The central issue is whether Material Support for Terrorism (MST) and inchoate assistance to al Qaeda were war crimes. The argument was that there has been a conflation of jurisdiction with the actual crime being tried. The factual predicate to coming before a military commission is being a member of al Qaeda; but being a member of al-Qaeda is not enough to sentence someone to life in prison.
In answering Question 2, the appellant argued that "duties matter" and the government gave no good authority to the contrary. One of the cases the government relied on (a Civil War case involving the execution of two abolitionists) is "bad law" and the court "should not breathe life into this case to save the conviction."
The government argued that in answering Question 1, The Military Commissions Act can decide this issue and Congress is owed great deference. They argued that al Bahlul's conduct was considered a war crime when it was committed (joining, participating in a JCE, knowing, and intending that the conspiracy be carried out). One of the CMCR judges took issue with the idea that intending to commit a crime is enough without completion of the crime. The government responded simply that al Bahlul knew at the time that he could be punished for his actions. The government could not give specific examples of how this crime existed before the 2006. But the MCA states itself that it is codifying preexisting law. One judge asked specifically for an example of a tribunal in which an inchoate conspiracy charge where no underlying act was committed was tried. The government did not provide an example. The government did argue that U.S. practice should be given weight to show that al-Bahlul was on notice. The government relied on Field Manual 27-10, Leiber Code, trials following the Lincoln Assassination, and Quirin.
In rebuttal the appellant argued that the SS were tried for "desire, intent to contribute" to the crime, but there was an underlying crime that took place . It is inappropriate to rely on domestic law, like auto theft. Just because a crime is considered a crime everywhere does not mean that it is a war crime. If the government wants to proceed under domestic law, they should do so through the federal courts. The appellant also argued that the Court is bound by the rule of law and should follow the tribunals in Nuremberg, Dachau, Tokyo, and Baghdad, which all rejected incohate liability. Such liability "cheapens" the idea of war crimes.
The second hearing was in Hamdan.
According to the appellant, three propositions are under appeal and each independently are a reason to vacate the material support for terrorism charge:
1. MST is not, and has never been, a law of war offense
2. Even if MST is today a war crime, it is ex post facto because it was not at the time of the commission of the underlying acts
3. A trial by military commission has less protections and violates the rights of Hamdan.
The appellant wanted a strict standard of review: PLAIN and UNAMBIGUOUS. They argued that a line of cases calls for close policing of military tribunals and a high standard. Common law of war says that an offense must be plain and unambiguously a war crime at the time of the acts committed. The appellant also argued that JCE is not a separate offense, but a theory of liability to hold a perpetrator responsible where he is part of a common plan. He must contribute to the underlying act. Even if it were accepted, it is the liability for an underlying offense. If a common plan is not itself an offense, there is no culpability. The appellant also argued that providing material support is not in international law a crime. There was also a discussion about how terrorism is the attacking/murder of protected people for the purpose of intimidating, coercing or retaliating against government conduct; whereas MST is the intent to provide material support (as defined in the MCA) to an organization who committed terrorism in the past.
The appellant said that we should not conflate jurisdictional predicates with the substantive offense; to find jurisdiction over a person, the defendant must be an alien, unprivileged, enemy combatant (there has been a finding he is a member of al-Qaeda); but this is not sufficient to find culpability. Instead, we must look at the elements of MST and compare it with the government's authorities provided. The conduct targeted by the government is not criminal in this way (providing service, driving, acting as a bodyguard. None of the acts committed by Hamdan are violations of the law of war. Congress has the authority to define the laws of war, but this means they are supposed to make the laws of war more clear and precise; they do not have the ability to "make" international law, as these laws arise out of norms.
In response, the government provided a factual account of Hamdan's actions in Afghanistan (joined Al-Qaeda knowing about the Fatwas, took Osama to meetings where he planned various attacks, etc.). The appellant subsequently took issue with several of the facts. For example, the appellant insisted that there is no evidence Hamdan pledged loyalty to Osama and he felt the need to remind the court that Hamdan was acquitted of several things the government mentioned.
Returning to the government's argument, it was foreseeable, when Hamdan joined al-Qaeda, that there would be killings of unarmed civilians. He knew of past killings and the likelihood of more. Congress merely codified existing law. The government was asked to name a case where MST was tried before a tribunal. The government could not name a specific case; instead, the government said to look at the conduct that is being tried under the name MST. It is merely "aiding the enemy" that has been re-named in the present conflict. The government named several instances of military commissions wherein crimes similar to the conduct of MST were tried: commissions in Florida by General Jackson (future U.S. President) where they called it "savage acts of cruelty against civilians"; trying Cherokee Indian supporters; and the prosecutions of industrialists who furnished gas to the Nazi SS to conduct their genocide.
The government also argued that deference to Congress is necessary. The MCA was enacted under 2 different Presidents, 2 different Congresses, 2 different political parties. Following the principle of Youngstown, when the President and Congress act together, presidential power is at its apex. The government concluded that "if there is no recognition of codifying MST, the rationale for civilized international law is bankrupt" - it would be an example of what you CALL an offense trumping substantive conduct
The appellant's rebuttal highlighted the testimony of the General Counsel for the DoD before the Senate Armed Services Committee in 2009 - in which he said that MST is NOT traditionally a violation of the laws of war. Obama made clear military commissions are for trying the laws of war; yet, Congress ignored that.
The court ruling said that members of the Westboro Baptist Church are constitutioanlly protected to picket military funerals. Westboro members claim troops’ deaths are divine retribution for the nation’s tolerance of homosexuality.
Wednesday, March 16, 2011
The Pentagon has barred women from serving in any unit below the brigade level whose primary mission is direct ground combat. Women can serve in units that might face combat-related action. Last week, a commission mandated by Congress recommended that the Pentagon end the ban in order “to create a level playing field for all qualified service members.” Congress chartered the Military Leadership Diversity Commission as part of the annual defense authorization bill in 2009. The report issued 20 recommendations designed to prepare a higher percentage of women and minorities to serve in top military leadership positions.
Tuesday, March 15, 2011
Manning has been held at the Quantico Marine base in Virginia since July. According to the editorials, Manning has been confined to "maximum custody" and subject to a "prevention of injury" order. The result is that he is kept in his cell 23 hours a day. According to his attorney, he is also denied sheets, forbidden to exercise in his cell and not allowed to sleep between 5 a.m. and 8 p.m. There have also been reports that he is forced to strip naked at night.
[T]he closure of the Guantanamo detention facility may raise complex legal issues, particularly if detainees are transferred to the United States. The nature and scope of constitutional protections owed to detainees within the United States may be different from the protections owed to those held elsewhere. The transfer of detainees into the country may also have immigration consequences. Criminal charges could also be brought against detainees in one of several forums—that is, federal civilian courts, the courts-martial system, or military commissions. The procedural protections afforded to the accused in each of these forums may differ, along with the types of offenses for which persons may be charged. This may affect the ability of U.S. authorities to pursue criminal charges against some detainees. Whether the military commissions established to try detainees for war crimes fulfill constitutional requirements concerning a defendant’s right to a fair trial is likely to become a matter of debate, if not litigation. The issues raised by the proposed closure of the Guantanamo detention facility have broad implications. Executive policies, legislative enactments, and judicial rulings concerning the rights and privileges owed to enemy belligerents may have long-term consequences for U.S. detention policy, both in the conflict with Al Qaeda and the Taliban and in future armed conflicts.
Monday, March 14, 2011
Anyone involved with international humanitarian law -- academics, commanders and Soldiers, cadets, concerned citizens -- should be delighted that Professor Solis has devoted his expertise to writing [this] textbook...He combines academic rigor and expertise with experience as a combat Marine to communicate how these issues unfold on the ground...The broad coverage of essential international humanitarian law should make it a vade mecum for upper division undergraduate students as well as those in law school...Any tactical legal advisor should make sure this is the first item packed in his or her rucksack...With this outstanding textbook, Professor Solis makes a broad contribution to the study of an area of the law that is critical to the manner in which countries, armed forces, and individuals conduct themselves.
The transitional road is not without its obstacles in Egypt. The Christian Science Monitor reports that "the very institution in charge of transitioning to a more democratic Egypt – the Army – has been acting quite unrevolutionary itself. Replicating Mubarak-era policies, the Army has severely beaten protesters on at least two occasions in the past week, and since Jan. 28 has been trying civilian protesters in military courts, denying them basic rights."