Wednesday, August 31, 2011

Wilcox court-martial reveals routine weapons abuses at KAF

Testimony during the second court-martial of Canadian Cpl. Matthew Wilcox is revealing that the kind of weapons abuses that allegedly resulted in Wilcox shooting and killing Cpl. Kevin Megeney are somewhat routine at Kandahar Air Field. For example, although all weapons inside the base must be unloaded, this rule is “consistently violated by Canadian and other coalition troops . . . on a daily basis.”

Capt. James Young, an infantry instructor, partially blames the “incredibly busy, congested and complex environment” at KAF. Currently, 10,000 soldiers occupy the base which was built for only half that many people.

Details on the testimony of Master Cpl. Andrew Noseworthy can be found here.

Court-Martial Proceeds for Marine Involved in 2005 Haditha Raids

The court-martial of Staff Sgt. Frank Wuterich, accused of leading a team of Marines in a raid that killed 24 Iraqis in 2005, will proceed without further delay. Wuterich wanted his former lawyer who had left for private practice to return to represent him, but the NMCCA decided that he had “sufficent representation” and “it is time to place this matter before a trial court for a verdict.”

Six other Marines charged in this matter had their charges dismissed, and one was found not guilty.

Tuesday, August 30, 2011

Koşaner Defends Statements as “Self Criticism” Rather Than “Confessions”

In two recordings published on dailymotion.com, Former Chief of General Staff Işık Koşaner is heard making several contraversial statements, including recounting that the military had violated the law in its fight against the PKK and confirming the authenticity of certain documents that describe the Sledgehammer Coup Plot. This week, it was reported that Koşaner admitted the voice belonged to him.

Many of the published conversations are from discussions he had with other high-level state officials and speeches he made during his visits to various units. Some are calling for an inquiry into some of the statements, but Koşaner insists that he made most those statements only in an effort to help the military “learn from its mistakes.”

More details can be found here.

Behenna Publicly Criticizes the Military Justice System

Last week, in a letter that Behenna wrote to his supporters, he criticized the “unchecked and ‘under the table' injustice that runs rampant in our military justice system.”

Behenna's full letter can be read here on a website created by his parents and dedicated to his defense.

Sunday, August 28, 2011

British inquiry (apparently) concludes no systemic torture of Iraqi prisoners by British forces

Like the U.S., the British and Australian forces in Iraq have had their share of detainee and prisoner abuse allegations.  It appears that the British government will soon release the results of an official inquiry to determine whether there were systemic abuses.  Now The Sunday Telegraph reports:  
A three-year inquiry into how a prisoner died in British custody in Iraq will clear the Army of operating a systematic regime of torture.

According to The National
The report in The Sunday Telegraph - whose accuracy was later confirmed by government officials - said the inquiry will criticise the brutal conduct of individual soldiers and the "numerous failures" of officers to tackle the problem.
 Publication of the report, scheduled for September 8, is expected to lead to calls for a full public inquiry by lawyers representing 40 Iraqis who claim to have been tortured by British forces.  
Sir William Gage, a retired Appeal Court judge, chaired the three-year inquiry, which focused on the death of Baha Mousa, 26, a Basra hotel worker, and the abuse of nine other Iraqis arrested with him six months after the invasion.

(Emphasis added.)
[N]ext month's report will not end legal action over British Army conduct in Iraq; so The Telegraph opines.
Human rights lawyers, who represent up to 40 Iraqis who claim to have been tortured as well as the family of Baha Mousa, are expected to call for a full public inquiry and may bring legal action in an attempt to force one.
It will be interesting to see if these litigants fare better than those who have attempted to sue in U. S. courts. 


Here are some additional points from The Guardian.


Gage is expected to point to a catalogue of failings that led to the death of 26-year-old Mousa, who was arrested with nine other Iraqis at the Haitham hotel in Basra by soldiers of the 1st Battalion The Queen's Lancashire Regiment (QLR).


Mousa died after 36 hours in detention. A postmortem found he had suffered asphyxiation and at least 93 injuries to his body, including fractured ribs and a broken nose. Sir Michael Jackson, Britain's top general at the time, described the episode as "a stain on the character of the British army".

Saturday, August 27, 2011

New GitMo commander

Miami Herald reports:
Rear Adm. David B. WoodsThe Pentagon has quietly installed a Navy aviator who lost classmates in the 9/11 attacks as the 11th commander of its Guantánamo detention center in Cuba.
Here is a 2011 biography of RADML Woods

Thursday, August 25, 2011

Air Force Sergeant from Vandenberg Air Force Base Court-Martialed for Exposing Himself

Staff Sgt. Ivan Flores pleaded guilty to charges laid against him for exposing himself twice at a burger restaurant drive-through window in California. One of the employees who witnessed the event was a minor. He was sentenced to sixteen months and reduced in rank to airman.

Related stories can be viewed here and here.

Victory for Indigenous Women in Mexico Over Military Rape Cases

The investigation of the rape of two indigenous women in Mexico has been moved to civilian court after Mexico's Military Prosecutor's Office stated that it lacked jurisdiction over the case due to the fact that members of the military are charged with human rights violations. This statement is based on a finding by the Supreme Court, which followed an Inter-American Court of Human Rights ruling, that criticized Mexico for not prosecuting human rights violations in civilian courts up to this point.

Widespread human rights violations by the military have been reported, and many cases remain in the military justice system; but this case a positive step in a new direction.


Wednesday, August 24, 2011

Nigerian Brig. Gen. Faces Court-Martial

Brig. Gen. Muriana Raji was arraigned before a Special Court-Martial after two detainees escacaped from detention where he served as Commander. Raji was allegedly complicit in the escape. The detainees were suspected members of the Boko Haram.

Interestingly, soldiers directly in charge of overseeing the detention facility were not tried, supposedly because responsibility is being put on the superior officer whose duty it was to ensure that those below him did their jobs correctly.

1902 War Crimes Trial May Go Back to Court

The war crimes trial of three soldiers over a century ago is back in the spotlight in Australia. The families of three men, who believe they were not given a fair trial, are seeking judicial review of the case.

In 1902, during the Boer War, the three men were court-martialed after twelve unarmed civilians were killed over a period of four days because the commanding officer was killed and his body was mutilated. The families of these men argue that they did not have the opportunity to consult with a lawyer until right before the court-martial, they were denied the right to appeal, and they were kept in solitary confinement for three months.

An Australian military lawyer, James Unkles, is leading the effort to post-humously pardon these men. He believes the soldiers were scapegoats used to cover up certain orders given by Lord Kitchener, the commander of the British forces in South Africa, not to take prisoners.

Sunday, August 21, 2011

University of Illinois Law Review header
Afsheen John Radsan & Richard Murphy, 
Measure Twice, Shoot Once: Higher Care for CIA-Targeted Killing, 2011 U. Ill L. Rev. 1201 (2011).

Guantanamo Redux, somewhat

 David Hicks at Sydney booksigning
FORMER Guantanamo Bay prisoner David Hicks is going to the United Nations to clear his name and get compensation.   [T]the submission calls for Australia to "request the US authorities to formally overturn Hicks' conviction under US law and to nullify the plea agreement".  It also asks for the Federal Government to begin an independent investigation "into allegations that David Hicks was tortured or subjected to cruel, inhuman or degrading treatment in US custody".



An Empty Regard, by William Deresiewicz


Today's New York Times Sunday Review leads off with "An Empty Regard," a thought-provoking essay by William Deresiewicz. See what you think. Oddly, the photograph of the faceless soldier that accompanies the article is different between the print (far left) and online (near left) versions. For Army readers: if you were conducting a personnel inspection, would either soldier pass? If not, why not?

Friday, August 19, 2011

Egypt Plans to End Emergency Rule

More than six months after protests broke out in Egypt, the cabinet said it would end the thirty year long emergency rule in Egypt. The continuation of a state of emergency after Mubarak's fall from power was widely criticized by those in Egypt hoping for democratic change.

After Anwar Sadat was assassinated in 1981, emergency rule in Egypt allowed police to hold people for months in prison without charge. Beating and torture of detainees was not uncommon. Now, Deputy Prime Minister Ali al-Silimi announced that the government is trying to draft a document of constitutional principles, including commitment to a democratic and civilian state, to help guide Egypt during this transitional period.

Officers Discharged Under “Don't Ask, Don't Tell” Go To Court

Three officers, discharged from the US military for being homosexual under “Don't Ask, Don't Tell,” are suing the Justice Department, demanding they be reinstated and hoping the federal appeals court upholds a previous ruling that declared “Don't Ask, Don't Tell” unconstitutional.

There are concerns that such a ruling could lay the groundwork for a class action suit for all those discharged under the policy. As it stands, there is nothing in place to compensate officers discharged under these circumstances; and since the poor economy has made joining the military very competitive, it may be difficult for discharged soldiers to get back into the military otherwise.

The 9th Circuit Court of Appeals will hear argument on this issue in September. For details, click here.

Thursday, August 18, 2011

Sgt. Bozicevich Will Not Get the Death Penalty

Bozicevich was sentenced to life in a military prison without parole after he was convicted of killing his infantry squad leader and another soldier. He will be demoted to private and he will receive a dishonorable discharge. Charles Gittins, Bozicevich's attorney, was happy with the result because his main concern was sparing his client the death penalty. He also indicated he may appeal, believing there are "numerous viable issues on which to base a successful appeal.”

Details can be read here.

Behenna's Case Going to CAAF

The case of 1st Lt. Michael Behenna, convicted of killing Ali Mansur in 2009, may be moving to the CAAF after the Army Court of Appeals denied him a new trial, disregarding new evidence.

Behenna's supporters believed he was denied the right to a fair trial when a prosecution witness who could confirm Behenna's account of the events surrounding Mansur's death, was not permitted to testify. The witness was Dr. Herbert MacDonell, who says he told the prosecution that based on the evidence, Mansur must have been reaching for Behenna's gun when he was shot, making Behenna's actions in shooting Mansur justified. Defense attorneys were not informed about the possible exculpatory evidence until after Behenna was convicted when MacDonnell approached them.

Behenna is currently serving a 15 year prison term in Ft. Leavenworth. The details of this controversy can be accessed here.

Monday, August 15, 2011

Military Prison at Bagram Airfield Will Remain Under US Control

U.S. officials decided not to transfer control of Parwan Detention Center near Bagram Airfield in January 2012, stating that Afghanistan's justice system remains too weak.

Although the facility has long been criticized for detaining suspected insurgents without trial, and has been seen by Afghans “as a sign of imperial overreach,” the number of detainees has tripled over the last few years and U.S. officials are concerned that many Taliban insurgents will “slip through the cracks of an undeveloped legal system” if power is pre-maturely transfered to Afghan officials.

The transfer of authority over this prison was supposed to be part of a broad transition of power over to Afghan officials; but now the U.S. will retain authority over the prison until 2014, when all foreign troops are set to leave Afghanistan.

Military Justice Around the World

Indonesia

Recently, three soldiers were court-martialed after a Papuan priest was killed. Last week, they were sentenced to up to 15 months in jail after being convicted of various charges, including insubordination, disobeying orders, and abuse. Details about this story can be found here and here.

Nigeria

After an innocent woman was shot during the arrest of Boko Haram suspects in northern Nigeria, the government has ordered an investigation of wide-spread military misconduct against civilians. The Minister of Defence, Dr. Bello Haliru Mohammad, attributed such acts to “a few bad eggs” who “sometimes over-reacted to situations.”

Pakistan

Sentences have been handed down to seven men responsible for an attack on Pakistan's army headquarters in 2009, which killed eleven soldiers. A retired Army serviceman was sentenced to death, while another former serviceman received life in prison. Five civilians who assisted in the attack received prison sentences ranging from seven years to life imprisonment.

Tunisia

Amnesty International reports that four civilian men who were arrested during raids in a town in northern Tunisia in July will face a court-martial. They are being charged with creating or leading armed groups, inciting violence, and assault with the intention of changing the government. Eight other men will be tried in absentia.

Amnesty International criticized these courts-martial, stating that “civilians should never face trial before a military court.” They are facing courts-martial because three security officers were reportely injured during the events, and Tunisian law allows civilians to be tried by the military when a member of the military is involved, if an offence is committed in an military area, or if the offense is related to terrorism or national security.

Friday, August 12, 2011

High Court of Australia Upholds 2009 Military Justice Interim Measures Legislation

In decisions handed down on August 10, 2011, Haskins v. Commonweath [2011] HCA 28, and Nicholas v. Commonwealth [2011] HCA 29, the High Court of Australia held that a saving provision of the Military Justice (Interim Measures) Act (No. 2) 2009 (Cth) was valid and provided lawful authority for action taken under legislation ruled unconstitutional in Lane v. Morrison (2009) 239 CLR 230, [2009] HCA 29. Justice Heydon dissented in each case.

Thursday, August 11, 2011

Former Guantanamo Detainee Goes to Court in Australia

Last week, the Supreme Court in Australia froze the profits of the published memoir of David Hicks, former Guantanamo detainee. The Commonwealth Director of Public Prosecutions applied to seize the profits as proceeds of crime.

Although this action will not be an examination of his case or his guilt, Hicks' family is pleased that he will have the chance to be heard in court. Some lawyers have said that the legitimacy of Hicks' conviction will be in the spotlight of this case because the military tribunal that convicted him may not fall within the Act as a court. In addition, he pled guilty to providing material support for terrorism, an offense that some in Australia have argued was "an offence invented by Congress after the fact; it did not exist at the time he allegedly committed it.”

Sgt. Burke Faces a Court-Martial

Sgt. Brent Burke, accused of murdering his wife and mother-in-law in 2007, will face a general court martial. He was originally tried in civilian court, but this resulted in two hung juries and two mistrials.

This story can be read about here and here.

Wednesday, August 10, 2011

Civilianization of the Military in Turkey Continues . . .

After the recent military resignations in Turkey, a lot of changes are in the works.

The Turkish Court of Accounts began auditing military-run firms after a long-standing law that kept military expenditures outside of civilian oversight was amended last year. Not all military spending is affected by the amended law and many defense expenditures remain outside of its reach; but this move has been hailed as a step in the right direction by many observers.

On another note, a photograph taken of the new seating order at this year's Supreme Military Council that shows the prime minister alone at the head of the table (without the chief of the General Staff sitting next to him) is causing a stir. Government officials insist that this is symbolic of the democratic changes taking place in Turkey and that this seating arrangement will become a 'permanent scenario.'

In addition, the government may be planning to abolish Article 35 of the Turkish Armed Forces Internal Service Law that provides a legal basis for military takeovers in Turkey. A previous proposal to amend this law, submitted by the main opposition party, the Republican People's Party, was criticized as being undemocratic. The new proposal will be formulated after Parliament resumes on Oct. 1. The last time this law was used was in 1997 when the military staged an unarmed intervention which overthrew the Refah-Yol coalition government. Significantly, both the government and the military agree that this kind of a law needs to be amended.

Finally, last week, the Prime Minister announced the the Military Supreme Court of Appeals will be abolished and the General Staff will report directly to the Ministry of Defense. The Prime Minister argued that the dual system of justice was inappropriate and undemocratic, while a retired chief prosecutor added that officers, even those with legal educations, cannot be impartial in the face of command hierarchies, and the right to a fair trial is always at risk.

September Events at the Court of Appeals

On September 7, 2011, the Clerk of Court and the Director of the Central Legal Staff will conduct the annual briefing for counsel. These are very useful sessions, both for experienced members of the Court's bar and for newly assigned appellate counsel.

On September 27, 2011, at 1:00 p.m., the Court will conduct a ceremony at which the gavel will be passed from outgoing Chief Judge Effron to incoming Chief Judge Baker. Congratulations and best wishes to each.

Tuesday, August 9, 2011

Ringleader of Abu Ghraib Abuses Released Early For Good Behavior

Charles Graner, the so-called 'ringleader' of the abuses at Abu-Ghraib, was released from Fort Leavenworth this weekend after serving a six year sentence. Graner was convicted of conspiracy to commit maltreatment, dereliction of duty and assault consummated by battery and indecent acts.

He will be on probation until December 2014.



Monday, August 8, 2011

German Court Sentences Military Wife to 5 Years in Prison

The court-martial of Air Force Airman First Class Horace Wickware begins on September 8th. He is charged with murder, manslaughter, assault, negligent homicide and child endangerment after the death of his infant son. He was living on a base in Germany at the time.

Social workers in Germany became concerned about the child after a base pediatrician made note of a suspicious burn on the child's shoulder. They were scheduled to visit Wickware's home a second time on the day that the child was brought to the German hospital with fatal brain injuries. He had been violently shaken and had fractures on his arms and legs.

Surprisingly, the mother, Jennifer Wickware, was charged by German authorities with failing to protect the child and sentenced to 5 years in prison. Usually women in her position are only charged if they are being uncooperative; and in the US, such charges rarely result in actual jail time.

Behenna's Case Going to CAAF

The case of 1st Lt. Michael Behenna, convicted of killing Ali Mansur in 2009, may be moving to the CAAF after the Army Court of Appeals denied him a new trial, disregarding new evidence.

Behenna's supporters believed he was denied the right to a fair trial when a prosecution witness who could confirm Behenna's account of the events surrounding Mansur's death was not permitted to testify. The witness was Dr. Herbert MacDonell, who says he told the prosecution that based on the evidence, Mansur must have been reaching for Behenna's gun when he was shot, making Behenna's actions in shooting Mansur justified. The defense attorneys were not informed about the possible exculpatory evidence until after Behenna was convicted when MacDonnell approached them.

Behenna is currently serving a 15 year prison term in Ft. Leavenworth. The details of this controvery can be accessed here.

Friday, August 5, 2011

Immunity from Prosecution for American Troops Remaining in Iraq Next Year

Joint Chiefs chairman Adm. Mike Mullen recently said that any agreement to keep American troops in Iraq beyond 2011 must provide immunity from prosecution for those troops, and that such a deal must be approved by Iraq's parliament.

This statements comes after Washington approved a deal to allow 10,000 US troops stay in Iraq to continue to train Iraqi forces on various military equipment.

Stryker Brigade Investigation Moves Forward

Adam Winfield, the 'whistleblower' in this case, has agreed to plead guilty to involuntary manslaughter and a minor drug charge. He also agreed to testify against Gibbs, who prosecutors believe is the 'ringleader' of the kill team.

Winfield will testify along with Pvt. Jeremy Morlock, who pled guilty to three murders and was sentenced to 24 years in prison last March. He has been cooperating with prosecutors since then. The credibility of Morlock's testimony has recently been called into question by investigators and defense attorneys, in light of 'inconsistent testimony' and the fact that Morlock recently requested court transcripts and investigative documents, saying they help him remember the relevant events. Since last year, Morlock said that it was Gibbs who would randomly choose civilians to kill and plan scenarios to make it look like they were killed in action.

More information about Winfield's plea deal and his role in the crimes can be accessed here.


Thursday, August 4, 2011

NIMJ Blog's Future

With the downsizing of NIMJ there have been many changes to the organization and NIMJ Blog. But, have no fear, exciting announcements are in the works.

While posts may be a little less frequent in the next week (or two), keep checking back for new content and announcements.

And thanks to all of the great contributions from Jon Tracy, Michelle Lindo McLuer, Freda Carmack, and all the others that have been contributing to NIMJBlog.

Top Military Leaders in Turkey Resign

On July 29, top military leaders in Turkey resigned, including the commanders of the army, navy and air force. The chief of the general staff, Isik Kosaner refused to continue serving in light of the continued detention of 250 retired and active-duty military officers who are being held for their alleged involvement in the Ergenekon and Sledgehammer coup plots.

Surprisingly, the financial markets and the government were 'unfazed' by this move. Prime Minister Recep Tayyip Erdogan named General Necdet Ozel as the new head of land forces and acting deputy chief of the general staff, but otherwise gave no response to the military's action.

The resignations have been described by some as the 'moment the Turkish military was finally civilianized.' In previous months, Erdogan refused to endorse many of Kosaner's suggestions on military appointments and promotions, perhaps in an effort to show the military no longer has the same political influence that it once did. Still, some military analysts are concerned that military morale and military capability will suffer greatly as a result of the resignations.

Courts-Martial Result After the Attack on the PSN Mehran

Three Pakistani naval officers are being court-martialed for their alleged negligence during a terrorist attack on a naval airbase in Karachi; and charges may be brought against more officers as details of the attack come out during the trials. Some members of the military have been critical of these prosecutions, noting that senior officers are being let of the hook for what was a 'colossal intelligence failure.'

The commanding officer of PNS Mehran, the security officer of the airbase, and the naval aviation commander are those currently facing a court martial.


Mubarak on Trial in Egypt

The trial of Hosni Mubarak began yesterday in Cairo. The former President is accused of corruption and ordering the police crackdown in February that resulted in the deaths of hundreds of protestors. He pled not guilty to all charges.

Mubarak appeared in court lying on a hospital bed and placed behind the bars of an iron mesh cage. Though he looked better than expected, he was pale and exhausted, showing Egyptians a much different side of himself than they are used to seeing.

This is the first time that the people of an Arab country put their own leader on trial, leading many to call this the 'trial of the century.'

The trial is adjourned until August 15.

Wednesday, August 3, 2011

Big Names Debate Long-Standing Issues in the War on Terror

This weekend, the Aspen Security Forum hosted a panel discussion about law and the war on terror. Among the speakers were former Attorney General Alberto Gonzales, and John Yoo of 'torture memo' fame. They spoke at length about military commissions and the use of torture.

During the discussion, Anthony Romero, executive director of the ACLU, reviewed instances of what he viewed as the Bush Administration's “utter lawlessness” and he criticized the Obama Administration for not adequately dealing with these issues. John Yoo took issue with Romero's contention that “lawlessness or broad unconstitutionality” is the biggest threat to American national security, blaming this view on a lack of understanding in the US of the rules of war. He said that the real threat to civil liberties is not the system of enhanced interrogation under the Bush Administration, but rather the targeted drone killings taking place under Obama's Administration. He credited the use of what he called “coercive interrogation” for acquiring the intelligence that led to the death of Osama Bin Laden, adding that he still does not believe that enhanced interrogation methods are torture.

With regard to the continuing use of military commissions, Alberto Gonzales explained that despite Congressional efforts to the contrary, he does not believe criminal trials for all suspected terrorists are necessarily “off the table.” He noted that he prefers this to military commissions, since it is “available and appropriate.”

Other speakers included David Cole from Georgetown University Law Center and Bill Bratton, former chief the LAPD and former commissioner of the NYPD. The panel discussion can be viewed in full on the Aspen Institute's Website.

Death of Judge Matthew J. Perry

Judge Matthew J. Perry, who served with distinction on both the United States Court of Military Appeals and the United States District Court for the District of South Carolina, has died. He was 89. Click here for a news article. Thanks to Francis X. Gindhart, former Clerk of the Court of Military Appeals, for passing the word.