Thursday, March 31, 2011

Discharge Boards Still Working on Homosexual Cases

Despite hearing the death knell of the military's homosexual policy, the services are still processing discharges for homosexual conduct under 10 USC 654.  Stars and Stripes reports that a Navy discharge board was to be convened today with a view towards involuntarily separating a sailor (PO2 Derek Morado) who apparently posted a photo of himself kissing another male on a social networking page.

Ft. Bragg CID Agents on Other End of Investigation

Four members who work narcotics issues in the Army Criminal Investigation Division at Ft. Bragg are under investigation by the FBI over allegations of kidnapping and threats to a civilian whom the agents believed had had a relationship with the wife of a CID agent.

New Hood Commander Likely to Make Decision in Hasan Case

We earlier noted that Ft. Hood is pending a change of command that might affect the anticipated convening of a court-martial for Major Nidal Hasan, the officer charged with opening fire there in November 2009.  It now appears the incoming commander, MG Donald Campbell, rather than current commander LTG Robert Cone, will make the decision as to whether to convene a court-martial and whether to refer it as a capital case.

Wednesday, March 30, 2011

TJAG Certifies Civilian Court-Martial Verdict to ACCA

The Army Court of Criminal Appeals has scheduled a May 24 oral argument for a case that had flown under the radar (and, quite frankly, I thought it was dead) after its high-profile beginning.  US v. Ali involves the only (as far as I know, but see above) conviction of a civilian under the recently expanded jurisdiction of Article 2, UCMJ.

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.

DADT End Equals Death of Military Justice???

Time highlights an article put out (dated last fall, but apparently just published) by the Army War College's publication Parameters that left me scratching my head.  I probably should have stopped reading when I noted the reference to the UniformED Code of Military Justice.  (No, the Code doesn't wear a uniform.  It's a set of laws that applies to all military members.)  Or, perhaps the fact that the author doesn't appear to be a lawyer (not always a requirement for legal analysis), and I'm not sure he has military experience.

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.

Gregor even cites the pre-shooting failings in Maj Hasan's case (supervisors didn't focus on "the whole person" in deciding not to write him up during his schooling) in arguing that military leaders won't be able to correct off-duty behavior after "Don't Ask, Don't Tell" ends:  "Unfortunately, since Section 654 was rescinded, the military will not have authority to assess an officer’s conduct if it does not occur in his or her place of duty." He bases this on a notion that we'll return to the O'Callaghan days of requiring a service connection in order to have military jurisdiction over offenses without the statutory findings of 654.  What the ????

Here's more analysis (including from NIMJ President Eugene Fidell).

Court-Martial without a Transcript?

The Colombo (Sri Lanka) Daily Mirror reports that the Army Commander has informed the High Court that a court-martial that convicted retired General Sarath Fonseka had not maintained any notes of its proceedings.

"Spice" Cases Get Senate's Attention on Readiness

The synthetic marijuana drug more commonly known as "spice" now has the attention of lawmakers from both sides of the aisle.  Senators Charles Grassley and Dianne Feinstein have asked DoD Secretary Robert Gates for additional information regarding military readiness, in light of the recent high-profile "spice" busts in the Navy.  (I'm not sure why the other services escaped such close scrutiny, as it's not just Navy members using the drug.)

No Confinement for Coast Guard Petty Officer

With the bulk of the charges dropped, a military judge sentenced PO2 Ian Howell to a reduction in rank, modified restriction to base for 30 days, and forfeiture of 2/3 of his pay for 1 month for a dereliction of duty charge in connection with the Christmas parade collision between a pleasure boat and a Coast Guard craft that left a boy dead.

Tuesday, March 29, 2011

JAA Awards Dinner Announced

The Judge Advocates Association invites you to attend its annual dinner May 12 at the Army-Navy Country Club (Arlington location) at which the following JAGs (past and present) will receive awards:

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!

When will DADT really end?

The Washington Times reports that gay rights advocates filed a challenge to a request by the Obama administration to keep the repealed "don't ask, don't tell" policy in place while the Pentagon prepares for an end to the ban. In a brief filed in the 9th U.S. Circuit Court of Appeals in San Francisco, lawyers for Log Cabin Republicans said keeping the policy in place was “absurd.” At issue is the constitutionality of Congress allowing the policy to stay in effect to give the Pentagon time to train troops and take other steps to end the ban. Under the new policy, the restrictions remain until the Pentagon certifies that the change won’t damage combat readiness. Before the repeal, a federal district judge issued an injunction barring enforcement of "don't ask, don't tell." The Obama administration requested to keep the policy in place in its brief challenging the injunction.

Military Justice Gazette 116

The latest edition of the Military Justice Gazette is out!  You can download your copy here.

If you would like to subscribe to the Gazette, please email nimj@wcl.american.edu.

NIMJ's Summer Program

NIMJ is proud to announce the Military Justice Summer Program. This week-long program offers a broad range of seminars on international and domestic military law. The program engages law students and practitioners from around the world in intensive training and discussion over a one-week period. The program focuses on important and developing issues within military law, including a number of sessions focused on national security law. Participants learn from expert practitioners from the U.S. military, government agencies, and leading international human rights non-profit organizations. Several sessions will be led by leading academics in the field of military law. Student can earn 1 or 2 credits and attorneys can earn CLE credits. Site visits, guest lecturers, and other activities provide participants with additional learning and networking capabilities.

You can learn more about the program here. You can register here.

Manning on Frontline

Here's another profile of accused Wiki___ leaker, PVT Bradley Manning.  This one is from Frontline.

Article 32 Hearing Concludes for Former Cherry Point Commander

While it's unusual to see a military member face state and military criminal charges for actions arising out of the same set of facts (not a Double Jeopardy violation, but a policy matter), the case of the former MCAS Cherry Point commander who was stopped last year for DUI is an exception.  Colonel Douglas Denn recently pled guilty to speeding, having an open container in a vehicle, and the DUI in the state case.  An Article 32 investigation for making a false official statement and what appears to be (don't have access to the charge sheet) obstruction of justice, violating a lawful order (for violation of the "bottle to throttle rule"), and having an inappropriate relationship with a female just wrapped up.  The investigating officer is currently writing up the report to the convening authority.

One More Court-martial in Coast Guard Death Case

The court-martial for PO2 Ian Howell, the most senior accused in the case involving the death of an 8-year-old boy after a collision between a Coast Guard vessel and the boy's family boat, begins today.  The convening authority recently dropped the serious charges (including for negligently causing the death of the child) against Howell, so now he faces only a dereliction of duty charge.  The punishments for the others Coast Guard members are included in the article.

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

Rolling Stone Publishes Additional Photos from Afghan "Kill Team"

Following on the heels of Der Spiegel's publication of a handful of photos of members of the 5th Stryker Brigade posing with their conquests, Rolling Stone has now published additional, graphic (viewer warning) photos (and some of the same ones Der Spiegel published).  The Army issued this statement in response.

Green Beret Charged with Assaulting Homeless Man Using Prosthetic Hand

This is not a joke, and it's not a reference to The Fugitive.  An Army Special Forces member (SFC Andrew T. McCaffrey) who had one hand blown off in an accident in Afghanistan is charged with aggravated assault for allegedly stabbing a homeless felon using his prosthetic hand.  In addition to the assault charge, McCaffrey faces court-martial for drunk driving, missing a medical appointment, and other allegations. 

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.)

Bozicevich Voir Dire Under Way

In what is anticipated to take 3 weeks, voir dire in the capital court-martial for Sgt Joseph Bozicevich began today at Ft. Stewart.  Bozicevich is on trial for allegedly killing 2 fellow soldiers in Iraq.  He has repeatedly challenged the credentials of his defense team, none of whom have capital litigation experience.

ACCA Reverses Child Sex Crime Conviction on Walters-Seider Grounds

The Army Court of Criminal Appeals issued an unpublished opinion in US v. Daniels last week. In a judge-alone general court-martial, the military judge found Daniels guilty of performing a sexual act on his stepdaughter when she was 12, among other sex crimes committed on the stepdaughter. On appeal, ACCA considered whether the military judge's guilty finding on that specification by exceptions (deleting "on divers occasions") sufficiently identified the facts constituting the offense of which Daniels was found guilty.

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.

Upcoming Events at American University

American University has 2 events of interest for our readers this week:

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
Contact: bg5795a@student.american.edu


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, nameir.abbas@gmail.com or 303-875-4992

Friday, March 25, 2011

Mills Scandal Still Haunts Appellants, USACIL

After being away from the office for a week, I was shocked to see a familar name in the news again upon my return.  I first ran across Phillip Mills when I was an appellate counsel.  Switching jobs with a circuit trial counsel (traveling senior prosecutor) temporarily, I found myself prosecuting a court-martial.  Like many others I'd prosecuted and defended in the past, this one involved a sexual assault allegation.  Unlike many of my previous cases, this one had DNA evidence.  Yes, you've guessed which analyst at USACIL (US Army Criminal Investigation Laboratory) served as our expert witness at trial.  Mills was a genial guy; I even shared lunch with him before his testimony, as I'd been assigned to the case late in the game and hadn't met Mills before.

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.)

Vicenza Army Brigade Commander Permanently Relieved After Investigation

Colonel James H. Johnson III, the 173rd Airborne Brigade commander, was permanently relieved of his command after a temporary suspension began last month.  An investigation into a series of substantiated allegations prompted his removal.  While Army leadership haven't revealed the subject(s) of the allegations, nor whether additional corrective actions will follow, sources claim the problems stem from allegations of adultery and fraudulent activities.  Anyone who can provide more information about this case is invited to write to mmccluer@wcl.american.edu.

Medal of Honor Day

Let us pause a moment today to remember those who gave their lives so selflessly so that we might continue to live the American ideals of freedom and justice for all, and we send a huge "thank you" to the living recipients of America's highest military honor.

Thursday, March 24, 2011

UPDATED Fly-By Fini Flight?

You'll recall the uproar over what was undoubtedly a great experience for the spectators, if a tad dangerous, when the 4-ship of Air Force T-38s did a (routine) fly-by of a football game (Iowa-Ohio State) last fall in which the jets flew less than 200 feet above the ground and less than 20 feet above part of the stadium at one point (not-so-routine).

After an investigation into the incident, the media reports sound as if the Air Force may (can't confirm it just by reading the news, but that's what it looks like to me) have granted the flight lead a RILO (resignation in lieu of court-martial). Major Christopher Kopacek accepted non-judicial punishment, agreed not to fight an FEB (flight evaluation board--basically a determination whether he should ever get to fly again in the military), and will separate from the military. In addition to the allegations regarding the fly-over itself, Kopacek faced false official statement specifications.

The other pilots received lesser administrative paperwork. It's not clear whether they will fly again. As for Kopacek, it looks like the November fly-by will also serve as his fini flight, traditionally the last flight a pilot makes before moving to a new duty station, separating, or retiring.

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.

Military Justice Reforms Urged for Angola

Angola's Navy leader, Admiral Augusto da Silva Cunha, recommended reforms to Angola's military justice system in an address this week in which he appeared to advocate for a highly-professionally trained, commander-centered system. This sounds like the US system; perhaps we can be of assistance.

Australian Cases Involving Afghan Deaths Sound Familiar

As we digest the first court-martial of the rogue US soldiers accused of killing Afghani civilians for sport, we hear of similar cases from our coalition partner Australia in which several soldiers are facing courts-martial for the deaths of Afghani civilians. The Australian special ops members are even accused of killing children.

A second set of Australian cases also has a familiar cautionary tale. When posting items on social media or other public places, engaging the brain before hitting "send" is a good idea. This is particularly pertinent in situations in which you're mentioning your nation's leader or the denizens of the country whose hearts and minds you're trying to win over. (Warning: Offensive language.)

Somali Court Adjudges Death Sentences (Again)

In a series of courts-martial in Somalia, a military judge sentenced 2 soldiers (Ali Mohamed Nur and Ahmed Mohammed Sahalto, ranks unknown) to death for murdering fellow soldiers, while a third got 2 years of confinement for selling his issued weapon, and a fourth was acquitted.

The Somali government executed 3 convicted soldiers in January.

Women in Egypt Detail Horrors of Military Detention

The LA Times and The National reported allegations that Egyptian soldiers subjected over a dozen female detainees in the Tahrir Square protests to sexually degrading procedures before the women were released after appearing in a military court earlier this month. In addition to military charges which included disorderly conduct, destroying private and public property, obstructing traffic and possessing weapons, some women were allegedly accused of being prostitutes and all were forced to undergo "virginity tests."

Careful not to Yawn in Formation

This case from our Kiwi friends takes this week's prize for "Stupid Human Tricks in Uniform." Incensed about a junior member's yawning in morning formation, Army Sergeant David Thomas Peachey decided to remedy the situation by head-butting and kicking the soldier. At a court-martial this week, Peachey lost 2 stripes for this outburst.

UCMJ Charges in Kadena NCO's Death

We saw the writing on the wall for this one: The Air Force is now identifying the airman who's been held in pretrial confinement since shortly after the gruesome death scene of a fellow airman was found at an off-base apartment near Kadena AB. SSgt Nicholas Cron and TSgt Curtis Eccleston, the deceased, were in the same squadron there. Eccleston's wife faces charges in Japanese court, and Cron's commander preferred charges of conspiracy to commit murder, obstruction of justice, and premeditated murder against him today. This is at least the second case since 2002 in which a Kadena airman is charged with killing a fellow airman.

These charges follow the completion of another tragic case from the Air Force. Earlier this week, a general court-martial (officer panel) at Scott AFB convicted A1C Kevin Books of negligent homicide (but acquitted of involuntary manslaughter), DUI, reckless operation of a vehicle, and underage drinking. The convictions stemmed from a high-speed, alcohol-fueled crash that killed a fellow airman and injured 2 additional passengers. The panel sentenced Books to a bad-conduct discharge, 18 months in confinement, reduction to E-1, and total forfeitures of pay.

Paging Joseph Heller: the 9/11 Defense Counsel

We often hear about the frustrations involved in the detainee cases at Guantanamo Bay--mainly from the point of view of the detainees, and, many times, family members and victims of the detainees' crimes. We rarely get insight into the defense counsel themselves and their efforts on behalf of their clients.

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.

Morlock's Sentence

A military judge sentenced SPC Jeremy Morlock, the first of the accuseds from the Afghan "kill team" to face court-martial for the deaths of civilian Afghanis, to a dishonorable discharge, life with the possibility of parole, reduction to E-1, and total forfeitures of pay (thanks to caaflog and its readers, at least one of whom was in the courtroom) yesterday. However, due to the provisions of a pretrial agreement Morlock had negotiated in the case, the convening authority can approve no more than 24 years of confinement. Given "good time" credit and the possibility of parole, Morlock will likely serve far less than 24 years.

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 mmccluer@wcl.american.edu.

Wednesday, March 23, 2011

Morlock Pleads Guilty in 5th Stryker Brigade Case

As expected, accused "kill team" member SPC Jeremy Morlock pled guilty at a general court-martial today before a military judge sitting alone. He admitted his guilt of three specifications of murder, and one charge/specification each of conspiracy, obstructing justice and using illegal drugs.

It took me a minute to figure out why the articles on the plea all said this was the first court-martial related to the Stryker Brigade Afghan investigation. Of course, courts-martial have already convicted several unit members (interestingly, all before the same military judge) for lesser crimes related to the investigation, but Morlock is the first to stand trial for any of the murders themselves.

Media outlets report that Morlock reached a pretrial agreement with the general court-martial convening authority that limits his sentence to 24 years in confinement. Given the judge-alone nature of the court-martial, these reports must come from information obtained outside the courtroom, as the military judge won't know the contents of Appendix A of the agreement until after he adjudges a sentence on his own.

NYC Bar Association Outlines Problems with Proposed Detainee Restrictions

In a well-written, persuasive letter to Senate leaders, the New York City Bar Association spells out the numerous problems with pending legislation that seeks to place further restrictions on the Executive Branch's ability to deal with the detainees at Guantanamo Bay. If implemented, the new rules would, in essence, make trial by military commission the only available forum for trying the detainees. The legislation would also make repatriating any of the detainees currently at GTMO virtually impossible. That means the dozens of individuals "cleared" by the Bush and Obama administrations would face the same fate as those deemed "the worst of the worst"--unending detention.

Of course, proposed restrictions on the attorneys representing the detainees present another troubling set of problems, as Jon Tracy noted here earlier in the week.

Tuesday, March 22, 2011

Tomorrow's ASIL Program Focuses on LOAC

Tomorrow the American Society of International Law's Lieber Society on the Law of Armed Conflicts and the Center for Human Rights and Humanitarian Law are holding an event at WCL to honor the recipients of the first ASIL writing award and to share the expertise of some of the biggest names in the field regarding the Law of Armed Conflict. Panelists include Lieber Society Chair COL (ret) Richard (Dick) Jackson; the founding Chief Prosecutor for the Special Court for Sierra Leone, Prof. David Crane; Col (ret) Morris (Moe) Davis, the Executive Director and Counsel for the Crimes of War Project (a former Chief Prosecutor for the military commissions); Mr. Jamie Williamson, the Regional Legal Advisor for the International Committee of the Red Cross; NIMJ's own Dr. Gary Solis (who literally wrote the book on LOAC); and Jonathan Tracy, who spent 14 months as a JAG in Iraq; and many other experts.

We hope to see you tomorrow!

GTMO Gag Order

The Miami Herald's GTMO reporter, Carol Rosenberg, reports that the military commission uniformed defense lawyers are protesting the new Guantánamo protective order.  Last week, Retired Vice Admiral Bruce MacDonald, the convening authority for the commissions, issued a 26-page "protective order and procedures" for military and civilian lawyers who represent the detainees in the commissions. The lawyers have been ordered to sign the new ground rules that "not only gag what they can say to their alleged terrorist clients but also to the public." One section of the new rules requires a lawyer to get the CIA’s blessing to ask a detainee about a confession made at a secret overseas interrogation site.

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

Ungranted issues in granted cases

The Supreme Court today denied certiorari in Diamond v. United States, No. 10-922. NIMJ filed an amicus brief in Diamond on whether certiorari jurisdiction exists to review issues as to which the Court of Appeals has not granted review, where review has been granted with respect to other issues in a case. Also at issue was the validity of the Court of Appeals' recent rule change requiring some petitioners for a grant of review to state the issues they hope to include in a certiorari petition if the Court of Appeals were to grant their petition for review. Despite the denial of certiorari in Diamond, these systemic issues need clarification. Counsel considering whether to seek certiorari with respect to ungranted issues in granted cases are therefore invited to contact NIMJ for possible submission of an amicus brief in support of certiorari. NIMJ reminds readers that we will also file in support of the government in an appropriate case, as we did in Clinton v. Goldsmith, 526 U.S. 529 (1999).

Photos Released in Afghan "Kill Team" Case

The Washington Post reports that a German news organization, Der Spiegel, published a series of photographs in the Afghan "Kill Team" case.  One shows a U.S. soldier smiling as he posed with the bloodied and partially naked corpse of an Afghan civilian. The photos were among several seized by Army investigators looking into the deaths of three unarmed Afghans last year. Five soldiers based at Joint Base Lewis-McChord have been charged with murder and conspiracy in the case. The Army had been trying to keep the photos under wraps. In fact, a protective order was issued in the courts-martial. Some defense teams had been granted copies but were not allowed to disseminate them.

Reuters reports that one of the pictures shows Army Specialist Jeremy Morlock. Morlock agreed last month to plead guilty to murder charges and testify against his co-defendants. According to the article, the deal calls for Morlock to serve no more than 24 years in prison.

Friday, March 18, 2011

Court-martial set in Espionage Case

The Virginian-Pilot reports that the court-martial for the Navy reservist accused of trying to sell classified documents has been set for May 19 at Norfolk Naval Station. Petty Officer 2nd Class Bryan Minkyu Martin, 22, of New York was arraigned Thursday afternoon at the base. He faces four counts of attempted espionage and 11 counts of mishandling classified information.

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.

HASC Guantanamo Hearing

According to an article in the Miami Herald by Carol Rosenberg, "The Obama administration is still deciding where to stage the 9/11 mass murder trials of five alleged co-conspirators now held at Guantanamo." At a hearing before the House Armed Services Committee yesterday, Pentagon General Counsel, Jeh Johnson, urged Congress to allow both the possibility of civilian courts as well as military commissions to prosecute the detainees. Proposed legislation from the Committee Chairman, Rep. Buck McKeon, would further limit Obama’s efforts to close GTMO. It also would give the defense secretary rather than the attorney general final say on keeping a detainee in military custody.

Thursday, March 17, 2011

CMCR Oral Arguments

The Court of Military Commission Review heard two arguments today and NIMJ student interns were there to watch. Here is their report:

The first argument was in Bahlul. Bahlul is the convicted propagandist for al-Qaeda. The questions at issue were:

1. Assuming that the charges allege underlying conduct that violate the law of armed conflict and that "joint criminal enterprise" (JCE) 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 the Court's determinations of whether Charges 1-3 constitute offenses triable by military commission and whether those charges violate the Ex Post Facto clause of the constitution?

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 Colorado Springs Gazette reports that a major at Air Force Space Command is set to be court-martialed in May on charges of rape and assault. Major Jared R. Burdin, a 13-year veteran of the Air Force, is charged with raping a woman last summer at his home. A second charge accuses Burdin of assaulting a woman in September. According to the article, "Burdin was charged with sexual assault in 4th Judicial District Court last year after he was arrested by El Paso County sheriff’s deputies. The charges were dismissed by prosecutors on Dec. 21, eight days after Air Force prosecutors filed their rape charge."

Reconsideration of Westboro Decision?

NavyTimes.com reports that the Iowa City mother of a soldier whose funeral was picketed by members of the controversial Kansas church wants the U.S. Supreme Court to reconsider its ruling that such protests are constitutionally protected. Ms. Sourivong has started a petition campaign.  According to the article, she had 72 signatures as of Thursday morning.

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.

Benning Soldier Arrested for Possession of Child Porn

ArmyTimes.com reports a Georgia soldier was arrested after authorities say they found child pornography on his computer. The Georgia Bureau of Investigation says 33-year-old Sergeant Leonard Talley was taken into custody at his home in Columbus on Wednesday.

Wednesday, March 16, 2011

Women in Combat

The Washington Post reports that according to a new Washington Post-ABC News poll, 7 in 10 Americans support permitting women in the military to serve in ground units that engage in close combat. The poll findings include: Seventy-three percent "of respondents support giving women direct combat roles and 25 percent oppose the move. Seventy-three percent of women and 72 percent of men favor extending formal combat roles to women, as do 80 percent of self-described Democrats, 62 percent of Republicans and 73 percent of independents."

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.

ABA luncheon to feature Brian Jenkins of RAND

The ABA Standing Committee on Law and National Security will be sponsoring an April 13 luncheon program with Brian Jenkins, Senior Advisor to the President at the RAND Corporation and expert on terrorism and security. Mr. Jenkins has been analyzing terrorism for nearly four decades and recently published a paper entitled “Would-be Warriors.” He will discuss the most recent data and analysis on the homegrown threat in his address. The luncheon will be held at the Army and Navy Club, 901 17th Street NW in Washington, DC and will begin at 12:00 Noon.

They expect this luncheon to sell out. You can register early here.

Navy reservist faces espionage charges

The Virginian-Pilot reports that a Navy reservist is being accused of trying to sell classified documents. Petty Officer 2nd Class Bryan Minkyu Martin, 22, of New York has been charged with four counts of attempted espionage and 11 counts of mishandling classified information. Martin is an intelligence specialist and was arrested on December 1st. He was at Fort Bragg training to deploy to Afghanistan.

According to the article, Martin accepted a total of $3,500 from an undercover FBI agent in exchange for dozens of pages of documents that were classified either as secret or top secret.

Tuesday, March 15, 2011

Private Manning's Confinement

Today, both the NY Times and the LA Times published editorials on the confinement conditions of PFC Bradley Manning, the alleged source of the documents released by WikiLeaks.  In the wake of the resignation of former State Department spokesman, P.J. Crowley, both newspapers took the opportunity to question the manner of Manning's confinement.   Crowley was pushed out after referring to DoD's handling of Manning as "ridiculous and counterproductive and stupid."

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.

CRS Report on Closing GTMO

The BeSpacific blog linked to a new Congressional Research Service report discussing legal issues surrounding the closing of the detention facility at Guantanamo Bay. The report's conclusion reads:
[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.

Military Commissions and the Death Penalty

There was an interesting article in the Miami Herald last week about the death penalty and military commissions by Carol Rosenberg. The article asks: "How does the Pentagon plan to execute war criminals condemned to death?" The Manual for Military Commissions does not spell out a method or venue for imposing a death sentence. Rosenberg pointed out an interesting dilemma: "Where to hold an execution could also present a problem. Bush administration era consideration of using the federal facility at Terra Haute, Ind., may be mooted by Congress’ ban on the Defense Department’s use of federal funds to move any war on terror captive from the base to U.S. soil."  This issue will likely present itself when the commissions restart the case against Abd al Rahim al Nashiri, the alleged terrorist behind the USS Cole bombing.  The suicide bombers killed 17 American soldiers in that attack.   

New Details In Coast Guard Boat Crash

A local news outlet in San Diego released a home video that shows the U.S. Coast Guard boat crash that killed a young boy at a boat parade on Dec. 20, 2009. According to the news report, 13-year-old Megan Swanson was videotaping the Holiday Festival of Lights Parade off Harbor Island. The Coast Guard boat is seen with flashing lights and a man’s voice can be heard saying, “Why are these guys going 20 knots? It just doesn't make any sense.”  The actual collision is not seen on the video. The attorney for the victim's family played the home video during the court-martial of the driver of the Coast Guard boat, Petty Officer Paul Ramos. Ramos said he was responding to a stranded yacht.  He is facing negligent homicide and involuntary manslaughter charges.

Monday, March 14, 2011

Congratulations to Prof Gary Solis

Congratulations are in order for NIMJ Advisor and law of armed conflict expert, Gary Solis.  Professor Solis was named the winner of this years The American Society of International Law's Certificate of Merit in a specialized area of international law for his book "The Law of Armed Conflict."

You can purchase your copy here.

Patrick Finnegan, Brigadier General, United States Army, Academic Dean, United States Military Academy gave a ringing endorsement of the book:
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.

Military Courts in Egypt

In the aftermath of the overthrow of Hosni Mubarak and the assumption of control by the Supreme Council of the Armed Forces in Egypt, there have been continued reports of protesters disappearing or being convicted by military courts.

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."

Friday, March 11, 2011

Bozicevich Seeks Death-Qualified Counsel

With the military judge at the trial level rebuffing motions for the appointment of a "death-qualified" counsel in the double-murder trial of Sgt Joseph Bozicevich, he is now seeking relief from the Army Court of Criminal Appeals. Anyone have a copy of the documents filed at ACCA that you'd like to share with us? Please send to nimj@wcl.american.edu.

This case raises an issue that the first Cox Commission identified a decade ago and one that LCDR Stephen Reyes wrote about just a few months ago. Unlike most civilian jurisdictions within the US (including, to some extent, the military commissions), the court-martial system does not have specific "learned counsel" requirements for defense counsel representing accuseds in capital cases. Given the oft-repeated mantra that "death is different," this is, to say the least, troubling.