Thursday, June 30, 2011

Two Charged in MEPS Plot

The Army Times reports that Two men accused of plotting to attack a Seattle military recruiting station have been ordered to remain in custody pending their trials, after neither contested their detentions during hearings Wednesday. Abu Khalid Abdul-Latif, also known as Joseph Anthony Davis, and Walli Mujahidh, also known as Frederick Domingue Jr., each face up to life in prison.  According to the complaint the two men were inspired in part by the massacre at Fort Hood and the ongoing prosecutions at Joint Base Lewis-McChord of the "Kill Team" deaths of three Afghan civilians.  Apparently they planned the attack for weeks and fantasized about the media attention they’d receive. The two men were arrested in an FBI sting after they arrived at a warehouse garage to pick up machine guns.  The pair is charged with conspiracy to murder officers and employees of the United States, conspiracy to use a weapon of mass destruction, and possession of firearms in furtherance of crimes of violence. 

Wednesday, June 29, 2011

Coast Guard Hazing

The Navy Times reports that seven crew members of the cutter Venturous have been punished for hazing fellow Coast Guardsmen.  The Coast Guard started investigating after two former crew members came forward with allegations of hazing. According to a Coast Guard spokesman quoted in the article, crew members were “tied down, stripped, coated in foreign substances and called derogatory names,” with “inappropriate sexual contact” in some cases. The seven Venturous crew members considered the “most culpable” were convicted at court-martial, according to a press release, and other crew members received administrative punishments.   The article provides the sentences.

'Kill Team' Witness Admitted Lying

Stars and Stripes reports that Pvt. Jeremy Morlock, a key government witness in the case of U.S. soldiers accused of murdering Afghan civilians for sport, lied about two of the defendants in hopes of winning leniency.  Pvt. 1st Class Ronald Darnell Washington, a man who was locked up with Morlock, provided a sworn statement that Morlock told him that Spc. Michael Wagnon and Pvt. Andrew Holmes had nothing to with staging the unjustified killings. Morlock was a leader of the plot and has been sentenced to 24 years in prison in the case. Wagnon, of Las Vegas, and Holmes, of Boise, Idaho, both claim that they believed they were responding to legitimate threats during the killings last year.  Wagnon's attorney, Colby Vokey, filed Washington's statement in court Tuesday.  Morlock insisted during that hearing that Wagnon did, in fact, know of the plot in advance. 

From the Board Chairman: NIMJ Transitions

Ronald Meister, Chairman of the Board of Directors for the National Institute of Military Justice, is pleased to announce the following news:

On August 1, 2011, NIMJ will move into its third decade of advancing the fair administration of military justice and fostering improved public understanding of the military justice system with new leadership at the helm.

After two decades as NIMJ’s President, Eugene R. Fidell, one of NIMJ’s co-founders, is stepping down from his position. Gene, who is a Coast Guard veteran and is Of Counsel with Feldesman Tucker Leifer Fidell, will continue to sit on the organization’s board of directors and plans to remain active in NIMJ’s work as he continues as the Senior Research Scholar in Law and Florence Rogatz Lecturer in Law at Yale Law School.

Gene leaves NIMJ in great shape as he turns the reins over to current NIMJ Vice-President Elizabeth L. Hillman. Beth is a professor at University of California Hastings College of the Law. She attended Duke University on an Air Force ROTC scholarship and served as a space operations officer and professor at the US Air Force Academy before leaving the military to attend law school at Yale. With Gene Fidell and Dwight Sullivan, she has authored the only US textbook on military justice.

Victor Hansen will succeed Beth as NIMJ Vice-President. He is a professor at New England Law Boston. A career Army officer, Vic served as a judge advocate for most of his uniformed life. He has military capital litigation experience. Vic previously taught at The Army Judge Advocate General’s School and has published a number of articles on military law topics.

NIMJ is excited to move forward into its second generation of leadership under the direction of Beth and Vic, and also pleased that our outgoing President is by no means retiring but will remain engaged in our efforts. At this time of the resumption of high-profile military commissions at Guantanamo Bay and other substantial developments in military law, our mission is more important than ever, and we will be proceeding with increased vigor.

Tuesday, June 28, 2011

CAAF Issues Article 134 Opinion in Phillips

CAAF decided a Project Outreach case today. Judge Stucky wrote for the majority, and Judge Ryan wrote a dissent for herself and Judge Erdmann in US v. Phillips.

Judge Stucky’s opening paragraph summarizes the issue and holding:

To establish a violation of clause 2 of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006), the government must prove beyond a reasonable doubt that (1) the accused engaged in certain conduct; and (2) that the conduct was of a nature to bring discredit upon the armed forces. We granted review to consider the necessary quantum of proof to establish the second element. We hold that evidence that the public was actually aware of the conduct is not necessarily required. Furthermore, proof of the conduct itself may be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that, under all the circumstances, it was of a nature to bring discredit upon the armed forces. The evidence was legally sufficient in this case.

Here's a key fact from this litigated (at least on this specification) case:  No witnesses testified that they found Appellant’s conduct to be service discrediting. No witnesses testified that they had become aware or would have become aware of Appellant’s conduct, absent Appellant’s admission to SA Bonilla.

Airmen Use DADT As a Sword

As we edge closer to the Secretary of Defense's certification that the military services are ready to implement the repeal of the law that has kept openly gay individuals out of the military since the 1990s, AP reports that 3 airmen sought discharges under the policy within the past month. 

Apparently, the 2 female E-5s and the male O-1 each requested expedited processing of their discharges so they will be out of the military by the time the policy changes.  Servicemembers United Executive Director Alexander Nicholson opined that something else might have propelled these 3 to take such actions. 

I seem to recall a spate of individuals who couldn't quite get their family care plans together when they realized "parenthood" was a ticket to an honorable discharge.  A few years before that, some folks realized a certain mental health provider could provide any "easy out" if you acted just enough "off" in that person's office.  And, before the implementation of recoupment procedures, stating you were gay was the rage for those who sought to avoid further service.  (Of course, I've personally witnessed plenty of individuals who voluntarily revealed their sexual orientations in order to end the tortured secrecy that the military's homosexual conduct policy requires, and I don't intend this post to demean or question their sincere efforts.)

It seems we've come full circle, but the end of "Don't Ask, Don't Tell" will eliminate this option in the near future.

Lakin Article About Appeals

The Army released LTC Terrence Lakin from confinement last month, but he's still making news.  This time it's an article about his appellate and retirement prospects (slim). 

I found it interesting that the article mentioned Lakin getting back the retirement benefits he lost due to his court-martial conviction and sentence.  Considering Lakin hadn't reached 20 years of service at the time of his conviction, he didn't lose any retirement benefits; he'd never qualified for them in the first place. 

While the convening authority declined to grant clemency in Lakin's case, his dismissal from the Army has yet to take effect.  That won't come unless, and until, that part of the sentence survives appellate review.  If the dismissal is wiped out on appeal, then Lakin could attempt to finish his 20 years of service.

Monday, June 27, 2011

SCOTUS Declines to Review Feres Doctrine

While some had high hopes that the heart-wrenching case of SSgt Dean Witt would provide impetus for the US Supreme Court to overturn the decades-old Feres doctrine, today the Court declined to grant certiorari of Witt's family's claim. 

Feres prevents military members from suing the federal government for injuries suffered incident to one's service.  While military dependents can bring suits for their own injuries, they are not allowed to sue in the place of a deceased uniformed family member if Feres would bar the military member himself from seeking judicial redress for the grievances.  NIMJ's previous coverage of this case is here.  You can find the filings in the case at SCOTUSblog by scrolling down to the Witt case.

Bozicevich Sentencing Proceedings Delayed Until August

With civilian defense counsel Charles Gittins still recovering from his skydiving wounds, the military judge in the formerly-capital case of SGT Joseph Bozicevich agreed to delay the resumption of the court-martial's sentencing phase until at least August 8.  Court members previously convicted Bozicevich of killing two fellow soldiers in Iraq in 2008.  Our earlier posts on the case are here, here, here, here, here, here, here, here, here, and here.

Two with Military Ties Named DC's Most Influential

The National Law Journal just named DoD General Counsel Jeh Johnson one of Washington, DC's Most Influential In-House Counsel.  Overseeing the on-going end to "Don't Ask, Don't Tell," the revitalization of military commissions, and weighin in on the legality of the US action in Libya helped propel this former Air Force General Counsel onto the list.  Johnson is also a former NIMJ board member.

The list of 20 also includes an familiar name.  Mars, Inc's Vice-President and General Counsel Alberto Mora is best known for his time as General Counsel of the Navy.  Mora is an outspoken critic of detainee policies deemed to include torture.

Congrats to both men on their selections!

UPDATED: CMCR Decides Hamdan

Here is the lengthy, en banc (well, sort of--considering recusals, retirements, new judges, etc.) Court of Military Commission Review opinion in U.S. v. Hamdan.  This is the first post-trial appeal the court has completed in its history. 

We'll provide additional analysis after we've had time to more fully digest the opinion, but the bottom line is that, 17 months after the initial oral argument in this case, the CMCR unanimously decided Hamdan's appellate issues on such matters as whether the military commissions have jurisdiction under the US Constitution to try offenses that haven't traditionally been considered law of war offenses lacked the requisite merit that would necessitate reversal of his military commission conviction for providing material support for terrorism. 

UPDATE:  Here is Professor Robert Chesney's Lawfareblog analysis of the opinion, in which he notes some shortcomings in the court's reasoning.  Also of interest, the court cites NIMJ's own advisors Professors Richard Rosen and David Glazier in the opinion.

We're still awaiting the decision in US v. al Bahlul.  I'd guess we'll see that opinion shortly.

Mishandling Classified Info Brings Down Sub Commander

CDR Michael Varney's relief as the skipper of the Connecticut submarine earlier this month was based on his taking home classified information on a number of occasions, failing to properly carry classified information, and lying about his actions related to mishandling classified documents. 

The Navy Times reports the outcome of the investigation into the matter: On June 6, Varney received nonjudicial punishment for making a false official statement, interfering in an adverse administrative proceeding and failure to obey a lawful general order.  According to the article, the likelihood that any classified information reached unauthorized individuals is remote.

Russian Colonel Convicted of Giving Up Spies to US Officials

A military court in Moscow convicted Colonel Alexander Poteyev of high treason and desertion today and sentenced him to 25 years in prison.  Poteyev was not present at the closed court, as officials believe he is hiding in the US.  Former Russian spies who lived undetected in the US for years before their discovery last summer, including Anna Chapman, have pointed the finger at Poteyev as the only individual who could have revealed the spy ring.

Our previous coverage is here.

Two More McClatchy Articles About USACIL

In its series of stories about the Army Crime Lab (USACIL) at Ft. Gillem, Georgia, McClatchy Newspapers has highlighted a number of issues at the lab, from analysts who falsified test results to extreme dissention in the staff.  These latest articles reveal additional information about trouble between lab leadership and its employees regarding management styles, racial discrimination complaints, and a perceived bias against  military veterans in hiring practices.  The lab problems have even prompted recent congressional attention. 

Our previous coverage of the lab woes is here and here.  (And, yes, this is the official lab insignia.  I'll refrain from making the obvious comment.)

Friday, June 24, 2011

CAAF Affirms in Martinez

In a case that garnered a bit of attention due to its unique granted issue (and later, because of a new JAG family member's arrival that delayed the oral argument), CAAF has affirmed the service court in US v. Martinez, finding error in the supervising judge's interference in the case, but failing to find any prejudice.  Based on the judges' questions at the argument, this result is not surprising.

This excerpt from Judge Erdmann's opinion provides a good summary of the problematic fact pattern:

Judge Boudreau’s communications with the trial counsel concerning the legal sufficiency of the providence inquiry and/or the legal sufficiency of the inquiry into the pretrial agreement involved substantive matters and it was plain and obvious error for her to initiate those ex parte communications with trial counsel during the trial. Compounding this error, Judge Boudreau entered the judge’s chambers during a recess she initiated as well as during the deliberations, and failed to inform Judge Molloy that she had been communicating ex parte with the prosecution.

While a portion of the oral argument focused on the question regarding at what point in time is appropriate to gauge the reasonable observer "knowing all the circumstances [would lead one] to the conclusion that the judge’s impartiality might reasonably be questioned,” the opinion doesn't seem to directly address this.  However, it seems the Court adopted the standard that the "reasonable observer" saw what took place in the courtroom, rather than any subsequent clemency or appellate remedies later fashioned, for part of the analysis, while the Court envisioned a "reasonable person" who knew of the post-trial actions in deciding whether to reverse the case for "appearance" reasons.

Speaking of clemency and appellate action, the appellate defense counsel's most difficult hurdle in getting the case overturned, one that ultimately proved insurmountable, remained the fact that the convening authority granted Martinez clemency based upon the appearance of partiality inherent in the rater judge's actions.
In addition, there was no allegation that either the concluding presiding military judge, nor the supervising judge, were actually biased against the appellant in this case.

In affirming ACCA's decision to uphold the conviction and sentence, CAAF undertook 2 analyses--first, determining whether Martinez suffered any substantive prejudice as the result of the supervising judge's improper actions, and 2) whether, even finding no prejudice, whether public confidence in the military justice system required granting any relief in this case.  For the second question, CAAF looked to the Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988), case from SCOTUS, which set out a 3-pronged test:  1) consider the risk of injustice to the parties in the particular case, 2) the risk that the denial of relief will produce injustice in other cases, and 3) the risk of undermining the public’s confidence in the judicial process.

New Report says DOD Lacks Oversight on Sexual Assaults

Reuters reports that a new Government Accountability Office report found that there is no evidence that the Department of Defense office mandated to oversee military sexual assault investigations does so.  In 2005, the DOD established the Sexual Assault Prevention and Response Program (SAPR) to address military sexual assault.  For fiscal year 2010, 3,158 incidents were reported, a slight decrease from FY2009, but the trend over the prior three years had been an increase in reported cases from when the program was launched.  The GAO report also found no monitoring exists to assure personnel pursuing sexual assault allegations meet competency standards.

You can find the GAO report here

New Detention Rules from Senate Committee

The New York Times reports that the Senate Armed Services Committee has voted for a "sweeping and bipartisan package redefining the rules for detaining terrorism suspects, including giving military judges the power to review the cases of prisoners in Afghanistan and mandating military detention for important Qaeda suspects — even if they are captured on United States soil." One section would direct the military to set up a system of status hearings for prisoners it intends to hold in “long-term custody” in places like Bagram Air Base in Afghanistan. Another provision would mandate military detention for people suspected of being “high value” terrorists from Al Qaeda: members of the organization who participated in planning or conducting attacks on the United States. The mandate would exclude United States citizens, and it would allow the secretary of defense to send detainees to the civilian criminal justice system at his discretion.

Private Changes Story at Article 32

The Army Times reports that Pvt. Jeremy Morlock testified at an Article 32 hearing for Staff Sgt. David Bram, who is one of six soldiers charged in connection with what prosecutors say was a plot to murder civilians for sport.  Morlock apparently changed his tune.  At the 32 he testified that he assumed Bram approved of the killing but that the two did not discuss it in advance.  He previously said he and Bram had discussed killing them before the incident.  Bram is charged with solicitation to commit premeditated murder, failing to report crimes, participating in discussions about murdering noncombatants, planting evidence near a corpse and assaulting a fellow soldier.

Thursday, June 23, 2011

New Chief Prosecutor for Military Commissions

DoD announced today that well-respected Army Brigadier General Mark Martins is taking over as the chief prosecutor for the military commissions.  He will bring unique, recent experience with rule of law initiatives in Afghanistan to the position.  Martins also had a hand in crafting some of the reforms enacted in the Military Commissions Act of 2009.  In the interim, USAF Col Mike O'Sullivan will serve as the acting chief prosecutor for OMC.  We look forward to working with both gentlemen.

Congo Military Court Sentences 4 to Death

The Associated Press reports that a military magistrate in Congo has sentenced four policemen to death over the killing of a prominent human rights campaigner.  Col. Camile Masungi also sentenced one defendant to life imprisonment and acquitted another three in the case. Bahizire headed Voix des Sans Voix, or Voice of the Voiceless. His body was found in his car in Kinshasa.  Congo’s government also announced they would pay tens of thousands of dollars to his family and colleagues and to those of Bahizire’s driver, who disappeared.

Nigerian Army to Court-martial 7 Soldiers

The Nigerian Tribune reports seven soldiers with the 3 Armoured Division, Jos, are to be court-martialed.  The General Officer Commanding the Division, Major General Sunday Idoko, who disclosed this while inaugurating the general court martial in Jos said the step was part of efforts by the military to instil discipline and root out bad elements. The accused are alleged to have aided the escape of suspects in their custody in Bauchi and Maiduguri prisons.  President of the general court martial, Brigadier General Donald Orji will lead other senior military officers in the trial of the accused and are expected to commence soon. 

Bye, Bye, Naked Urinalysis Cases

Our friends at CAAFlog brought us the news that SCOTUS reversed the lower court decision in Bullcoming regarding the use of "substitute" experts to testify at trial about laboratory results.  Bullcoming is the latest in a string of Confrontation Clause cases dating back to the Justice Scalia opinion in Washington v. Crawford in March 2004.

Not having had the time to read the opinion yet, I foresee the end of the "naked" urinalysis court-martial in which the only evidence of the individual's use of illegal drugs is the urine test itself.  Requiring all the lab analysts to testify in each case would shut down the labs.  Look for these cases to go the administrative discharge route in the future, which is what some of the services do already anyway.

With Lusk and Sweeney still awaiting opinions at CAAF, Bullcoming may require some rewriting on the part of the CAAF bench.

Wednesday, June 22, 2011

Marine Reservist to be Charged for DC-Area Military Shootings

I wasn't brave enough to say this on camera a few days ago, but it seems Yonathan Melaku will be charged with shooting at various military-related buildings last fall.  Melaku is apparently a Marine reservist (many of the targets had Marine connections) who was found in Arlington National Cemetery last week during hours in which the cemetery was closed.

Petitioner's CAAF Brief in Callwood

We alerted readers to CAAF's recent grant of review of a unique Ineffective Assistance of Counsel issue the other day.  Although getting access to all the briefs remains elusive, we did manage to get our hands on the petitioner's supp pet.  While there's a "completeness of the record" issue, the juicy matters surround the IAC claim.  Captain Callwood alleges his civilian defense counsel, who put Callwood on the stand unsworn in the Article 32 hearing (!), didn't adequately prepare for the Article 32 hearing, nor for the court-martial itself.  Callwood argues these lapses resulted in the preferral of additional charges against him. 

During the trial itself, the defense counsel apparently declined to cross-examine nearly one half of the government's witnesses.  Having been on the receiving end of IAC complaints that lacked merit, I'll withhold judgment on whether the defense could have gained any tactical advantage by cross-examining additional witnesses.

Note to self after reading the brief: If you're going to have your client testify at any point during adverse proceedings, but particularly on matters such as "Have you ever been in trouble for something like this before?" it's a good idea to know what your client's answer will be--and what the facts are.

Have you ever noticed that most IAC complaints (emphasizing that I don't mean to imply the courts substantiate these complaints, just noting the complaints are made) in the military seem to involve civilian counsel?  Is this because the client feels the double whammy of having paid for an attorney and getting convicted?

Bahrain Protests Flare after Activists Sentenced in Hybrid Court

Bahraini protesters took to the streets after a security court sentenced eight Shiite activists to life in prison. Fourteen of the 21 convicted are in custody while the rest were sentenced in absentia by the security court, which uses military prosecutors and a military-civilian tribunal. The report said those sentenced to life include prominent Shiite political figures Hassan Mushaima and Abdul Jalil al-Singace and rights activist Abdulhadi al-Khawaja.  "The court has presided over a series of cases linked to the protests, including issuing two death sentences against men accused of killing police officers during the demonstrations. Earlier this month, it sentenced a 20-year-old woman to a year in prison for reading poetry critical of Bahrain's king."  Next week, the trial against 30 doctors and nurses accused of supporting the protests will continue. Some of the medical personnel claim they were abused while in custody.

DC Circuit Affirms Dismissal in Ali v Rumsfeld

The D.C. Circuit Court of Appeals issued its opinion in Ali v. Rumsfeld.  Judge Karen LeCraft Henderson delivered the opinion which affirmed the district court’s dismissal of the case.  Four Afghan and five Iraqi citizens captured and subsequently held in Afghanistan and Iraq, respectively, by the United States military sued Donald Rumsfeld, former Secretary of the United States Department of Defense, and three high-ranking Army officers (collectively, defendants) under the Fifth and Eighth Amendments to the United States Constitution, the Alien Tort Statute (ATS), 28 U.S.C. § 1350, and the Third and Fourth Geneva Conventions, 6 U.S.T. 3316 and 6 U.S.T. 3516, seeking damages and declaratory relief as the result of their treatment while in U.S. custody.

NIMJ filed an amicus brief in support of the plaintiffs' claims.  

Drug Bust for Substance Abuse Program Director

This story out of Carlisle Barracks is a defense counsel's dream and a prosecutor's nightmare.  Daniel Hocker was in charge of the post's Army Substance Abuse Program for 2 years until his arrest on drug charges.  The program oversees drug testing, education, and substance abuse counseling there.  Hocker was picked up for distributing cocaine as part of a sting resulting in 20 arrests.  Even though it appears Hocker wasn't directly involved in the urine sample collections, that will make for some fun direct and cross-exams in future drug cases.

Tuesday, June 21, 2011

Marine Corps Reservist is Suspect in Pentagon Scare

Two local D.C. news outlets, ABC and CBS, covered the story about the northern Virginia man whose suspicious behavior near the Pentagon prompted a security scare last Friday.  Yonathan Melaku apprehended near the Pentagon with suspicious items in his backpack. He is now facing more felony charges for an unrelated case and new questions have emerged about his background, including why his security clearance had not been revoked.  Michelle M. Lindo McCluer, NIMJ's Executive Director was interviewed by the D.C. CBS affiliate in the story.  She commented on the fact after his recent arrest, Melaku's security clearance was valid.  She explained, "That background investigation is good for secret clearance for ten years, good for top secret for five years. So, you're usually not going to have any records check in the interim."  Melaku was arrested May 26, 2011 in Leesburg in connection to 27 vehicle tampering cases there. He posted a $5,000 bond and was initially released. But his bond has now been revoked and he's back behind bars in Loudoun County.

Two More Journalists Brought Before Military Court

Reports without Borders reports on Adel Hammuda, the editor of the newspaper Al-Fajr, and Rasha Azab, one of his reporters.  The two Egyptian reporters appeared yesterday before a military prosecutor in connection with an article about torture that quoted an army officer. They are to be tried before a military court on a date that has not yet been set. Azab is facing a possible jail sentence on a charge of publishing “false information liable to disturb public security” in the article she wrote for Al-Fajr’s 12 June issue. Hammuda is facing a possible fine for alleged negligence in his role as editor.  Reporters without Borders details several other similar cases. 

Monday, June 20, 2011

Navy CO Firings Continue, but One Former CO Rocks the Boat and Wins

The Washington Post had a front-page story over the weekend about what we in the military justice world already noticed--Navy commanders are getting fired at an impressive rate. 

One of the commanders fired 2 years ago now has is record restored, thanks to his efforts before the Board for Correction of Naval Records.  LCDR Matthew Tucker, who commanded the Crew Persistent onboard the anti-mine vessel Devastator, will now have all official records of his detachment for cause erased.

While commanders losing their jobs seems to be routine in the Navy, getting one's records upgraded afterwards is, apparently, a novelty:

Tucker’s case is the first successful appeal in at least 30 years, said Garas, noting that according to the board’s executive director, “this is the first time that the BCNR has granted the removal of a DFC.”

Drinking, Driving Get Military and Civilian Attention at Misawa

At every base, there seems to be a drunk driving cycle--few incidents, then an increasing number which builds to a critical mass when multiple incidents occur in a single, short period or tragic consequences ensue.  At that point, command leadership makes DUI prevention a high-priority issue.  It seems Misawa AB, at the northern end of Japan's largest island of Honshu, is at the top (bottom?) of that cycle right now.  Last week, we heard there have been 8 recent drinking and driving-related incidents involving Misawa airmen, with NCOs comprising 7 of the 8 accused.

Stars and Stripes also had a sobering article from the perspective of a soon-to-be-former airman whose decision to drive while drunk landed him in Japanese confinement.  Unlike the US, where the DUI cut-off is usually .08, Japan's legal limit for driving with alcohol in one's system is a mere .03, something briefed to all of us newcomers as soon as we set foot in the country.

Feres Doctrine Revisited

Our own (and CAAFlog's) Mike Navarre (aka No Man) and Major General (retired) John Altenburg are both quoted in a Stars and Stripes article yesterday that presents the heart-wrenching facts of the latest cases stemming from allegations of military medical malpractice.  In the most prominent pending case, SSgt Dean Witt's family hopes to overturn the Feres doctrine at the US Supreme Court.  Witt died after a colossal series of medical mistakes stemming from an appendectomy.  Here are the brief filed on behalf of Witt's widow at the 9th Circuit and the 9th Circuit opinionHere are the briefs filed at SCOTUS.

For decades, the Feres case has blocked military members (and, by extension, their family members asserting the servicemembers' claims) from being able to successfully sue the government for wrongs done to the member connected to their military service or occurring while the individual is in the military.  I don't see the law changing any time soon.

Friday, June 17, 2011

Criticism of Military's Treatment of Sexual Assault Cases at Panetta's Confirmation Hearing

Here's one entry on the military's handling of sexual assault cases, spurred by questions during this week's Senate Armed Services Committee hearings, featuring testimony from CIA Director Leon Panetta (recently nominated to replace Robert Gates as Secretary of Defense).  I'll update this post with some of my reactions later.  In the mean time, my earlier thoughts on the subject are here.

"Entrepreneur" Sailor and Navy Family Members at Rota Busted for Drug Distro

You'll recall the commander of Naval Station Rota was fired several months ago.  Now we learn more details about what prompted the action.  A sailor and a dozen dependents at Naval Station Rota faced discipline over allegations they distributed marijuana on the base.  The Navy Times reports "Electronics Technician 2nd Class Kelly Mayo was charged with conspiracy to distribute marijuana, making a false official statement and possessing and distributing marijuana."  Mayo's discharge in lieu of court-martial was approved last week.

A second sailor who knew of the drug ring and failed to take action is pending disciplinary measures.  It appears the dependents are subject to Early Return of Dependents or at least barment from the Rota facility.

Something tells me this gal didn't get her Off-Duty Employment Letter approved for this venture.

Thursday, June 16, 2011

Behenna Film Screened

Although 2 of my hometown sources notified me of this last week, I neglected until now to call attention to the premiere of a movie about 1Lt Michael Behenna, the Army officer convicted in 2009 of killing a suspected terrorist he was leading back home after others determined the US need not hold Ali Mansur any longer. Purple Hearts - Requiem for Mad Dog 5 was screened in downtown OKC on Saturday.  Jeremy Irons narrates the film.

Meanwhile, we wait for ACCA to release its decision in this high-profile case.  Previous coverage here, here, and here.

h/t to RDG II and CMF

War Powers

The Washington Post has a link to the 32 page report the White House sent to Congress regarding the legality of authorizing force in Libya.   

Panel Selection Begins in Death of Lejeune Marine

Jdnews.com reports that panel selection has begun in the court-martial of Cpl. William C. Dalton.  Dalton, 23, of Camp Lejeune’s 2nd Battalion, 6th Marines, faces charges of murder and manslaughter in the July 16, 2010, death of Cpl. Dave Santos, 21.  According to eyewitness accounts and testimony, an altercation began about the next shift of a radio watch at the outpost where both Marines were stationed.  It seems that Dalton’s defense counsel will continue to assert the defendant acted in self-defense.





Article 32 in 'Kill Squad' Case

Military.com reports on Private Andrew Holmes' Article 32 that was held this week.  Holmes is accused of the premeditated murder of a teenage boy in a poppy field near a small Afghan village in January 2010. The 19-year-old, a member of a rogue Stryker Brigade unit, also stands accused of using hashish and possessing photos of the incident and war trophies, specifically fingers taken from corpses. The hearing opened with testimony from Private Jeremy Morlock, who pleaded guilty last November and is now serving a 24-year sentence.  Morlock said he summoned the Afghan man and then threw a grenade at him while Holmes shot at him. After the hearing, Holmes's attorney highlighted testimony that his client was nearly killed by the grenade in the incident, saying: "That alone proves he was not a willing participant."  A recommendation as to whether the Army will pursue charges against Holmes will likely be announced in the next several weeks.

Wiki___ Witness Won't Testify

David House, who helped found the Bradley Manning Support Network, reportedly invoked his 5th Amendment right not to testify before a civilian grand jury in the Eastern District of Virginia yesterday.  The grand jury is investigating Wiki____'s publication of thousands of sensitive and classified documents on its website.  Army PFC Manning has been held in various military pretrial confinement facilities for over a year in relation to the document leaks, although he has yet to have an Article 32 investigation (often referred to as being akin to a grand jury, but it isn't really a very close match) conducted.

Here's an excerpt:
House said he was not asked any questions about Wiki___ founder Julian Assange.

The Justice Department, House said, "is very frantically trying to link Bradley Manning and Julian Assange, and they're casting a very wide net."

His lawyer Peter Krupp said that while House has done nothing wrong, he invoked his right against self-incrimination because "any testimony he would give would be manipulated to be used against him." Krupp also accused prosecutors of using the grand jury to trample on House's right to freely associate with Manning or other Wiki___ supporters.

Am I missing something?  How do we get the conclusion that the Justice Department is "frantically trying to link" Manning and Assange when the DoJ lawyers didn't mention Assange?

Wednesday, June 15, 2011

CAAF Summarily Sets Aside ACCA Decision in IAC Case

In addition to adding yet another trailer to the Fosler park (see previous coverage here), on Monday CAAF granted review of an interesting Ineffective Assistance of Counsel issue in the same case and sent it back the Army for additional fact-finding:

No. 11-0431/AR. U.S. v. Clyde E. CALLWOOD. CCA 20080577. Review granted on the following issue:

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, WHERE HIS TRIAL DEFENSE COUNSEL'S ACTIONS DURING THE PRETRIAL HEARING LED DIRECTLY TO APPELLANT'S CONVICTION OF ADDITIONAL CHARGES AND SPECIFICATIONS, AND WHERE HIS TRIAL DEFENSE COUNSEL FAILED AT TRIAL TO CALL TWO WITNESSES WHO WOULD HAVE UNDERMINED THE CREDIBILITY OF THE GOVERNMENT'S KEY WITNESSES.

and on the following specified issue:

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT'S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT'S RECENT OPINIONS IN MEDINA, MILLER, AND JONES. SEE UNITED STATES v. FOSLER, 69. M.J. 490 (C.A.A.F. 2011).
 The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry and consideration on the granted and specified issues. The Court of Criminal Appeals will obtain affidavits from the civilian and military trial defense counsel relating to the assigned issue. If the court, after reviewing the affidavits, determines that a fact-finding hearing is necessary, see United States v. Ginn, 47 M.J. 238 (C.A.A.F. 1997), that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will conduct its Article 66(c), UCMJ, review. Thereafter, Article 67, UCMJ, shall apply.

We'd love to hear from anyone who has insight as to the IAC allegations.  If there's any truth to the allegations--yikes!

Admitted Affair Causes Some to Question Guard Leader's Fitness

As the tantalizing Rep. Anthony Weiner story (hopefully) fades, we read a post questioning South Carolina Comptroller General Robert Eckstrom's temporary appointment as the head of South Carolina's state National Guard.  Brigadier General Eckstrom has admitted to having an affair while he was separated from his wife.  The affair is causing some concern among those who say such actions, which could be prosecuted under the federal Uniform Code of Military Justice (if the acts occurred while he was on Title 10 federal orders--something not mentioned in the article), make him unfit to command the state Guard. 

Even if we assume (SC Guard members please feel free to fill in the details) that there is an active state version of the UCMJ that contains an adultery offense similar to that in Manual for Courts-Martial Article 134, my money is on Eckstrom not getting prosecuted for committing adultery.

Three indicted in Navy Health Care Pay Schemes

The Navy Times reports that a federal grand jury has indicted three people in Virginia on multiple charges relating to fraudulent marriages that prosecutors say allowed them to receive Navy benefits they weren't entitled to.  Jeanette F. Shimkus of Chesapeake and Jeffery Marshburn of Hampton entered into a fraudulent marriage so Shimkus could receive additional housing payments as a married officer. Shimkus is an active duty Navy doctor. According to the indictment, Marshburn entered into the fraudulent marriage so he could get health care as a military dependant. Retired Navy corpsman Kristopher Graham-Marshburn of Hampton was also indicted.  He entered a fraudulent marriage with a Florida woman that allowed him to get extra housing money and the woman and her son health care.

Conscientious Objector facing Charges of Child Porn Possession

The Associated Press reports that an Article 32 is taking place today at Fort Campbell. Pfc. Naser Abdo, a 21-year-old infantry soldier, applied for conscientious objector status last year after he decided Islamic standards would prohibit his service in the U.S. Army in any war. The Deputy Assistant Secretary, Army Review Boards Agency, recommended he be separated from the Army as a conscientious objector. But the discharge is delayed until the criminal charge is resolved. When he joined the Army in 2009, Abdo said he initially felt he could be a soldier and a Muslim at the same time. But he said his understanding of Islam changed as he went through training ahead of a planned deployment to Afghanistan and he worried whether going to war was the right thing to do. The military charge says 34 images of child pornography were found on his computer.  Abdo denies the charge.  "It is because I am a conscientious objector and am fighting against going to Afghanistan that I have been charged with this crime," he said.

Major Charged with Keeping a Secret Stash at Home

In England, the Yorkshire Post reports that Major Robert Armstrong appeared at Bulford Military Court, in Wiltshire, Monday charged with four counts of conduct to the prejudice of good order and military discipline.  Armstrong is an Army officer decorated for his bravery in Afghanistan.  He allegedly kept top secret documents at his home.  Armstrong had kept the files, which fell under the Official Secrets Act, on a storage device and used them on his personal laptop.  Evidence was also presented that a weapon and a cache of ammunition were also found at Armstrong's home.  The trial continues this week. 



Egyptian Woman Facing Military Trial

Ahramonline reports that a civilian woman facing a military trial for attacking a policeman is arguing that she was the victim of a brutal attack by the police.  Lawyers and activists gathered at the military court in Haram to support the case of May Metwaly.  When she regained consciousness, Metwaly found herself in a police station accused of insulting a policeman. She was kept in custody for two days before being transferred to the military court. In a video on the Internet, Metwaly’s mother claimed that her daughter was singled out by the policeman simply because she is unveiled. She added that the policeman dragged her by the hair and told her she should be stoned to death. Following yesterday's session, the trial was adjourned to today when the military court will hear testimony from witnesses for the police.

Argument in Gen. Sarath Fonseka's challenge to 2d court-martial

The Court of Appeal of Sri Lanka is considering former Chief of Army Staff Gen. Sarath Fonseka's challenge to his second court-martial (at which he was sentenced to 30 months' confinement). Click here for an account in the Daily Mirror:

"Deputy Solicitor General Mrs. Bimba Tilakaratne appearing for the Attorney General contested the maintainability of the application in view of there being no final determination by the Court Martial but it was a recommendation by it.


"She contested even if the conviction and sentence were set aside, the confirmation of the convening authority namely the President survives.

"She argued it cannot be challenged because the President was having blanket impunity and he could not even be cited as Respondent. She maintained the Court could not grant relief prayed for in the application."



Tuesday, June 14, 2011

Hennis Jurisdiction Issue Set for Fall Argument

It looks like it will be a race to see whether the 4th Circuit or ACCA decides convicted capital appellant Timothy Hennis' appeal first.  The Fayetteville Observer reports that the 4th Circuit Court of Appeals has tentatively set the case, which challenges the Army's jurisdiction over him, for argument in September.  My bet is that the 4th Circuit will win this horse race.  Of course, to be fair, the civilian federal appellate court is dealing with a much narrower issue than ACCA will be. 

Previous NIMJ coverage of this procedurally unique case is here, here, and here.

Air Force Discharges 30 for Spice

Thanks to Caaflog for pointing out this story found at newsok.com.  Air Force officials are discharging 30 airmen at Tinker Air Force Base for possession or use of “Spice,” a synthetic version of marijuana.  Spice is a mixture of herbs sprayed with chemicals that mimic THC and produces a high when smoked. The Drug Enforcement Administration temporarily banned the drug last year, and it was permanently added to the federal government's list of banned substances in March.

Sky Soldiers Commander Relieved for Inappropriate Relationship with an Iraqi, Investigation Reveals

The Stars and Stripes reports on the Army investigation into Col. James H. Johnson III.  The investigation alleges that the former commander of the 173rd Airborne Brigade misused government resources, filed fraudulent travel vouchers and had “an inappropriate relationship” with the wife of his cultural adviser. The Stars and Stripes received a copy of the 15-6 investigation.  The article claims the investigation "paints a picture of a warrior infatuated with an Iraqi national who, besides being married to his cultural adviser, assisted him at times as a translator." Army officials began investigating Johnson in January after his wife sent an email to authorities.  In the email she claimed her husband was having “an adulterous affair with an Iraqi woman that he met while in Iraq” in 2005-06. The couple is now apparently going through a divorce in New York.  Johnson was relieved of command of the brigade March 25.  Johnson is accused of misusing government resources and filing false travel vouchers to perpetuate the relationship with the woman.  He apparently made trips to the Netherlands, where the woman lives with her husband.  Johnson is currently stationed at USAREUR. 

Previous NIMJ coverage of this case is here and here.

Air Force Whistle-blower Passed Over

There is an interesting article in the Air Force Times on Col. Klesa Christian.  She was passed over for blowing the whistle on what she described at the service's "broken" personnel system.  She wanted the job to overhaul the system.  Her qualifications seemed to make her an ideal candidate.  However, Maj. Gen. James Rubeor passed her over. According to the article, "He told other officers he passed Christian over because she was 'in the doghouse' for criticizing the system."  Christian believed Rubeor was exacting revenge and filed a complaint with the Air Force Inspector General’s office.  The IG investigation found in favor of Christian: "Rubeor had violated the federal Military Whistle-blower Protection Act." He received a letter of reprimand.  But by the ruling came down, Christian had retired.  The article gives details of the investigation and the rocky professional relationship between Christian and Rubeor.   

Amputees and Continued Military Service

Over the past 24 hours, I've read 2 articles about injured service members and their bids to continue to serve in uniform.  One trumpets the first USAF officer (1Lt Ryan McGuire) to complete initial pilot training as an amputee.  (The first US officer (Lt Col Andrew Lourake) returned to the cockpit after an above-the-knee amputation less than 7 years ago.)  Those are inspiring feats. 

Less inspiring is our northern neighbor's response to similar situations.  Corporal Ryan Elrick lost both his legs 5 years ago in an IED attack in Afghanistan.  Despite proving his fitness to remain in the military, apparently the National Defence Act requires Canadian Forces members to be what we in the US call "worldwide qualified" at all times, meaning those members who aren't deployable must be discharged.  Elrick was discharged from the service 3 months ago, but he's fighting the action in the courts, calling it unconstitutional. 

One thing that struck me as I read this article was that pregnant and immediately post-partum military members aren't worldwide qualified.  Do they get discharged?  We'd be happy to hear from our Canadian readers who might have more insight as to the NDA provisions at play here.

Happy Birthday, Army!

Crisply saluting from the bill of an ACU patrol cap (buh bye, beret) the service that gave birth to my own service today as the Army celebrates its 236th birthday on Flag Day.  Thanks for sacrificing so much from the Revolutionary War to today's wars so that America remains the Land of the Free.

Monday, June 13, 2011

Convicted Doctor Allowed to Maintain Florida Medical License

Stars and Stripes reports that a "former Kunsan Air Base military doctor convicted of rape in 2008 will be able to practice medicine again in Florida if he complies with a settlement agreement, according to a June 3 decision made by the state’s board of medicine."  Mark Seldes must complete 300 hours of community service, pay a $10,000 fine, undergo evaluation and complete an education requirement before practicing medicine again.  A military jury found Seldes guilty of rape, conduct unbecoming an officer and a gentleman, and adultery in connection with the Nov. 4, 2006 attack on a female civilian. He was sentenced to three years’ confinement and dismissal from the service.  Seldes and the victim knew each other for a short while before the rape.  He gave the victim a sleeping pill as they watched television before the attack.


Decline in Courts-martial in Navy

The Navy Times reports that the Navy has seen a steady decline in the number of sailors who have faced the most serious court-martial proceedings in the past decade.  “A busy military is military that doesn’t have a lot of time to commit a lot of crime,” said Eugene Fidell, president of the National Institute of Military Justice.  The article also quotes other attorneys saying that sailors are behaving better.  However, they also point out that commanders are increasingly opting to dispose of cases at the lowest form of court-martial or through administrative means. The independent panel’s February report didn’t provide statistics on lower-level disciplinary actions.  The article provides the following statistics: "The Navy tried 252 cases at general court-martial in fiscal 2000, a figure that fell to 108 in fiscal 2010. A total of 755 cases were tried at special court-martial in fiscal 2000, a number that plummeted last fiscal year to 127."

Pakistan Court Martial of 11 Accused in attack on GHQ Completed

Onlinenews.com reports that a military court in Pakistan has completed the trial of eleven civilians accused of attacking the Army headquarters.  According to the article, the military court conducted the hearing at an unidentified place for five months and completed the court martial on Monday.  On October 10, 2009 ten assailants armed with heavy ammunition and hand grenades broke into the GHQ main building after killing the guards at the central gates. Inside they took dozens of hostages and held them for many hours. Military forces were called in. Nine of the ten assailants were killed. One militant, Aqeel alias Dr Usman, was injured. The sentence has not yet been announced but is expected any moment.  In Pakistan, a military court’s decision cannot be challenged in the country’s courts.

Absent Navy Petty Officer Jailed

NZ Herald reports that New Zealand Navy Petty Officer Norman Anderson appeared at a Court Martial at the Devonport Navy base yesterday and pleaded guilty to five charges. Anderson drank up to 17 beers and cycled away from his ship while on guard duty. He pleaded guilty yesterday to five charges including leaving his post, drinking while on duty and stealing food from the ship's stores. He also tried to cover up leaving the ship by signing the ship's security register ahead of time. Judge Johnson acknowledged Anderson's previous clean record after 19 years' service, his remorse and that his commanding officer had agreed to take him back. He was sentenced to 21 days.

Friday, June 10, 2011

Post-Trial Appeals

McClatchy has two stories on Brian Foster and some of the problems of post-trial appeals available here and here.  Brian Foster is a Marine Corps gunnery sergeant and a military policeman.  A military jury convicted Foster of spousal rape in late 1999 and sentenced him to 17 years. In February 2009, the U.S. Navy-Marine Corps Court of Criminal Appeals dismissed the charge as flimsy and denounced the excruciatingly long post-trial delays. He spent nearly a decade in Leavenworth for a crime he didn't commit.  His first wife, whose accusations amid a bitter divorce led to his conviction, now has custody of his two sons. They were young when he went to prison; one son, at the age of 6, was summoned to testify at the court martial. Now, Foster's sons are teenagers and don't deal with him much.  His appellate attorney David Sheldon said, "represents one of the gravest miscarriages of justice I have known in the Uniform Code of Military Justice."  The article details the sad saga of his appeals.  While Foster's experiences were extreme, they were not entirely unique. A McClatchy review of thousands of pages of court and military documents reveals persistent delays.