Tuesday, December 11, 2007

AWOL Military Justice by Col. Morris Davis

As Anonymous (our prodigious poster) noted, the former Chief Prosecutor for the Military Commissions wrote a letter to the editor of the L.A. Times on Monday, here. While CAAFlog is under his no blogging at work ban, I'll take advantage of the opportunity to opine on an area uniquely in his wheelhouse. For those that support military commissions Col. Davis' brief letter is an interesting insight into the troubles with the process, especially from a government side of the aisle insider. For detractors, this will add fuel to the fire for scrapping the system as it stands. For those of us judge advocates on the sidelines, it reiterates something a few former Judge Advocate Generals have said in the last 10 years, uniformed lawyers have an uphill battle to get their message to civilian leadership in positions of power.

The final paragraph of Col. Davis' letter (which I wish he would expand into a larger full length piece), sums up the Colonel's position and cites my favorite former POW:
Sens. John McCain and Lindsey Graham have said that how we treat the enemy says more about us than it does about him. If we want these military commissions to say anything good about us, it's time to take the politics out of military commissions, give the military control over the process and make the proceedings open and transparent.

19 comments:

Heavy Hermeneus said...

Equally interesting, Col Davis was ordered NOT to testify before the Senate Judiciary Committee.

Jacque Strap said...

Numerous comments over a so-called "frivolous" issue, but zero substantive commentary on one of the most significant legal developments (i.e., the commissions) in recent history. This blog needs a good kick in the shorts.

the real slim shady said...

Well, Jock, allow me to get things going with this query: since when do military officers resign their assignments? I can understand leaving active duty, seeing as though you military officers are volunteers. I didn't think assignments were voluntary, however. Please discuss.

Guert Gansevoort said...

Jacque, I think that the CAAFlog, a blog devoted to military justice, has intentionally not devoted much time to the jury rigged counterpart to military justice operating in Cuba. What would you like to discuss? The rights not afforded an accused, or a system that, in the words of Admiral Hutson, who testified today before the Senate Judiciary Committee, is reverse engineered to secure convictions?

As a part-time-deceased contributor to this blog, I will be happy to post a comment discussing the commissions if you will tell me what about the commissions is either significant or "legal."

Jacque Strap said...

Popquiz, Guert. What is "illegal" about the commissions? After all, the procedures are a matter of statute (you know, passed by Congress). Kind of like the UCMJ. But the key difference is we're not trying US citizens under the commissions. Now, you can call them enemy combatants or whatever else you want, but they ain't Fred P. Smith from Des Moines, if you know what I mean. So, back to the quiz...please cite me one S. Ct. case that says Congress can't enact this system. (It's not lost on me, as I'm confident it's not on you, either, that this system was in response to a S. Ct. case that basically said, "Hey, Congress can do this.")

Guert Gansevoort said...

1) Allowing the use of confessions derived by torture. General Hartman testified today that military prosecutors may use confessions obtained by waterboarding, if the military judge will let them.

2) The admissibility of hearsay evidence.

3) The ability to confront your accusers, or to even know who they are in some circumstances. Do you remember the Supreme Court's decision in Crawford, where the Court repeated Sir Walter Raleigh's demand to the King's Bench: Call my accusers before my face?

4) Oppressive incarceration that may last for years, and which is statutorily excluded from the calculation of any adjudged sentence. And if you should be unlucky enough to be acquitted, the United States still asserts that it has the right to hold you indefinitely.

I can go on if you wish, but any number of law review articles can do a much better job than I. As for your belief that Congress sanctioned this system, I can only assume that you are referring to the Hamdan decision, where the court determined that a previous commissions system was "illegal." Because the present system was not before the Court, it has never ruled that the present system was legal. In fact, the Court held that the Congress could enact a commissions system so long as it complied with the UCMJ and the Geneva conventions. Congress has not done so. The Court permitted deviation only if it was justifiable by necessity, and only time will tell if the deviations enacted by Congress are justified. I am at a loss to explain why it is necessary for the MCA to deviate from the UMCJ's prohibition on the admissibility of coerced statements much less tortured ones. Because only 395 days have elapsed since the MCA was enacted, and since the first cases are only now moving forward, I think it is a bit early to declare victory for the MCA and Congress' naked attempt to circumvent the rule of law. Congress passed the Alien and Sedition Acts too. History will judge the MCA no differently.

John Milius said...

I am an attorney representing four enemy combatants at GTMO. My clients, Patrick Swayze, C. Thomas Howell, Charlie Sheen, and Darren Dalton, were just a group of teenage high school students who have been charged with fighting a guerrilla campaign in the Rockies. They did not wear uniforms or have a clear chain of command - so they have been charged with violating the laws of war and multiple counts of murder. Patrick Swayze confessed after he was "waterboarded." They were not allowed to have any representation for years, the evidence against them is secret, with Russian and Cuban names redacted. Someday justice will prevail and my clients will be released. It will be a new dawn. It will be a just dawn. It will be a...

Takin it up a notch said...

Guert,

Nice dodge. Now, please, get back on topic. Cite one case that requires the UCMJ, per se, for enemy combatants, i.e., non-U.S. citizens. You can cite our Constitution (which only applies to us, i.e., U.S. citizens) and legal policy all you want, but I want precedent. Quit dodging, start citing. If you can't, then, again, I repeat my initial question, why are the commissions illegal?

john millius,
your clients' acting collectively constitutes a crime more reprehensible than any war crime known to man...Dirty Dancing, alone, is punishable by death.

Christopher Mathews said...

As our erstwhile commenter "takin it up a notch" has obliquely noted, the commissions are not UCMJ proceedings, and are therefore off-topic in this blog.

J. Osteen said...

Well, then I guess we're all left to wonder why the powers that be (or at least those who have power to start threads) chose to post this topic? Perhaps there was an implied directive not to respond as the topic is not proper for response per the purpose of this blog. I guess I missed that.

Colonel Klink said...

Yes, Patrick Swayze was an enemy combatant in the Catskill Mountains before he moved his show to the Rockies. He taught his ruthless 'methods' - special Latin techniques - at at a training "camp" in the Catskills. But fortunately, we have arrested all the attendees of that camp. Many of the enemy combatants were teenage girls. But no uniforms, no chain of command, and propogating values meant to undermine America! We will not release them until this war (the culture war) is over.

U - S - A ! U - S - A ! U - S - A!

John O'Connor said...

"Nobody puts Osama in a corner."

Lawrence v Texas said...

Takin it up your notch,

Hey - takin it up the notch is a violation of the UCMJ. But seriously - demanding "precedent" -like your asking the bartender for a drink is a bit hollow. We are not exactly in settled legal terrain. A few sporadic cases...yes...but gimme a break.

Wolverines got pwned said...

Well, Mr. Lawrence v. Steers n' Queers, tickle me with an owl feather and call me Sitting Bull, but I just don't find it to be that novel of a concept that what we accept as traditional legal norms do not apply to those non-US citizens (which is key, and not yet properly accounted for by any poster) who are captured as enemy combatants.

And, while "your" at it, cite me some of those sporadic cases that support your position. No legal precedent to sight? Well, then we have legitimate act of Congress with no precedent - how do we say that's illegal?

Marcus Fulton said...

Good thing we eliminated our "serious and informed discussion" description from the top of our site.

I'm ready to declare commissions ultra vires for purposes of CAAFlog. It's certainly a sufficiently (if not intelligently) covered topic on other blogs, and I'm not sure we're really moving the ball here. I tend to agree with Guert that questions that are as difficult and provocative as military commission are best dealt with in more scholarly forums.

Now that I think about it, that might be the right answer to Jacque's implied question: A frivolous forum like a blog is the right place to deal with frivolous (used here in the non-technical sense) issues. Yeah, that's right. It's a frivolity. Now let's get back to SJAR processing errors.

Dittohead said...

Wolverine,
I guess you drank the neo-con koolaid. Traditional legal norms DO apply to non-US citizens.

Other law reviews provide better coverage, but for an analogy at how jurisdictional and procedural smokescreens (the "who decides" question) can shift the focus away from the underlying substantive claim, start your reading list with United States v. Wong Kim Ark, 169 U.S. 649 (1898).

Then check out, for example, Plyler v. Doe, 457 U.S. 202 (1982) (class action law suit brought on behalf of Mexican children who had entered the United States illegally and resided in Texas).

Seriously, Wolverine, are you for real, are you trying to relitigate Plessy v. Ferguson, or are you just a legal caricature of a radio talk show caller?

No Man said...

To answer all the questions about why this blog doesn't cover Commissions, see Mr. Fulton's articulate . . . articulation of our position. Why is this post here you ask? We also cover significant figures in military justice. Colonel Davis is exactly that and his letter and interview highlighted military justice topics that are also highly relevant here. Note our coverage of his interview in the post after this? What did we focus on? "core mil jus concepts" and the admissibility of evidence. Not the political stuff, that other blogs and law reviews.

The Terminator said...

OK, got it. The original post is legit b/c it deals with a significant figure in miljus. But, all you idiots who posted responses are out of line. How frickin' hard is it for y'all to understand that responses are not authorized on this thread? Get with the program!!!!!

J. DUPREE said...

terminator,

what's your problem, man? why you be hatin'? anyhow, we're here to stay, bizneatch.

BTW, what does snoop dog wash his clothes with?........BLEEAAATTTCHHH!!!!!!