Update on Civilian UCMJ Proceeding

We have not received a torrent of inquiries or complaints about our post on the first ever preferred charges under the amended Art. 2(a)(10), however, we have decided to further redact the charge sheet. The nature of the case makes the issue a bit incendiary. Thus, while the link has not changed, here, the document you view has. It also looks more like a product of a professional redactor than my 4 year old and those big fat crayons---though he is coloring in the lines these days.

If anyone is interested in filing friend of the court briefs in the court martial, for the defense, you can contact Army DCAP by email here. Not sure who would coordinate government friend of the court briefs. If anyone from Army TCAP or the CA's legal office is reading, and wants to solicit friend of the court briefs, let us know and we will post the link.

The Paducah double booking continued

Please be sure to check out the comments to our previous post about the American Quilter's Society show disrupting the trial in United States v. Green, the federal capital case of the Mahmoudiya suspect who had been discharged. When I saw Bonnie B Quilter's entry, I naturally assumed that JO'C had a calendar malfunction and thought today was April Fool's Day. But, no, it seems that we have received a legitimate explanation from the Show Director of the upcoming Paducah quilt fest. Here is a link to her look at the quilt show/ murder trial scheduling conflict on her blog.

And Bonnie B, if you are still reading CAAFlog, thanks for the insight.

Army DAD files cert petition in Rhoades

Army DAD has filed a cert petition seeking review of United States v. Rhoades, 65 M.J. 393 (C.A.A.F. 2008). Rhoades v. United States, No. 07-1248. Here's the QP:

Whether the Court of Appeals for the Armed Forces properly held that a military judge, in granting a government motion to disqualify petitioner's civilian counsel on the basis of an alleged violation of the 18 U.S.C. § 207(a)(2), did not deny petitioner his Sixth Amendment right to civilian counsel of his choice.

This Amendment need not apply?

On Monday, in a response to a FOIA request by the American Civil Liberties Union, the Acting DoD General Counsel declassified a March 14, 2003 memorandum authored by then-Deputy Assistant Attorney General John C. Yoo (formerly of the Department of Justice Office of Legal Counsel and now a professor at Berkeley's Boalt Hall School of Law). Professor Yoo is well-known as a proponent of the "unitary executive" theory of Presidential power, and his memorandum addresses that theory in the context of the constraints, or lack of constraints, on the interrogation techniques that can be employed by Defense Department personnel when questioning persons deemed unlawful combatants.

As is the case with many legal documents, it's worth paying close attention to the footnotes. In particular, footnote 10 of the Yoo Memorandum contains a tantalizing reference to yet another memorandum, dated October 23, 2001, and summarizes its key conclusion thusly: in the context of the Global War on Terror,

... our Office recently concluded that the Fourth Amendment had no application to domestic military operations.

(emphasis in original)

There are, of course, two questions that flow naturally from Professor Yoo's assertion: (1) how far does this doctrine extend, and (2) has anyone told CAAF?



The March 14, 2003 memorandum can be found online here: [PDF]

Practicing law in an online age

The most recent issue of The Green Bag, which bills itself as "an entertaining journal of law," has an interesting short piece about a 2007 Chilean Constitutional Court opinion's citation to Wikipedia's entry on piracy. See Elise Hendrick, Wikipedia: The New Consensual Reality, 11 Green Bag 2d 187 (2008). Hendrick concludes by observing: "Say what you might about citing as authority a source that once, for a brief time, credited the U'wa people of Venezuela and Columbia with the invention of puff pastry, but there are definite advantages to being able to cite an authority that you can always rewrite to suit your current needs."

Quilt show delays capital trial in Mahmoudiya case

I am loath to bump the No Man's scoop from the top of CAAFlog, but I heard this story on the radio on the way home and had to share.

The federal capital trial of former Army Private Steven D. Green arising from the alleged rape of a 14-year-old girl in Mahmoudiya and the murder of the girl and her family has been delayed for two weeks because the National American Quilt Show is in Paducah, Kentucky at the same time the trial was originally scheduled to start. The quilt show is expected to tie up all the hotel rooms in Paducah, leaving none for trial participants and observers.

Here's a link to an AP story about the delay.

BREAKING NEWS: Contractor Charged Under UCMJ

I think we may have scooped the world on this one, but the Army has charged a civilian contractor for the first time under the amended Art. 2(a)(10), UCMJ. The charge sheet is available here, brought to you by CAAFlog.com.

Based on the information I have, apparently DoD could not refer the case to DOJ because the contractor is a Canadian national and his victim was a non-US national. Though I don't know the details, it is curious that the offense was committed at Contingency Outpost 4 in Iraq, but Special Maritime and Territorial jurisdiction wasn't considered . . . or maybe it was.

Anyone else think that the exchanges between DoD and DoJ that are part of the preferral process under the new SecDef withholding memo, available here, are similar to Art. 34 advice and should be turned over to the defense--or at least to military justice bloggers?

On-base 911 = official; off-base 911 = generally not official

In United States v. Day, __ M.J. ___, No. 07-0690/AF (C.A.A.F. Apr. 1, 2008), CAAF holds that for Article 107 purposes, statements made to on-base emergency medical personnel were "official," but statements made to a civilian 911 operator weren't. Judge Baker wrote for a unanimous court.

CAAF construes Article 107 broadly. For example, CAAF emphasizes that "[f]alse official statements are not limited to line of duty statements." Day, slip op. at 7. Applying its broad interpretation of Article 107, CAAF holds that statements are official where "they were made to civilian personnel who were members of the base fire department charged with performing an on-base military function." Id., slip op. at 8.

But Article 107 is not so broad that it reaches Airman Basic Day's false statements made to an off-base 911 operator. CAAF holds: "On this record the evidence is not sufficient for us to conclude that the statements to the 911 operator were official, but this conclusion does not affect the finding of guilt as to the charge and specification." Id. But CAAF adds this caveat: "In theory, statements made to an off-base 911 operator might implicate Article 107, UCMJ, in situations where, among other things, there is a predictable and necessary nexus to on-base persons performing official military functions on behalf of the command." Id., slip op. at 8 n.4.

The Air Force Court's opinion in the case is available here.

Moorefield

CAAF heard oral argument in United States v. Moorefield on 10 March. Yet it has already resolved the case, via a short per curiam opinion issued today. United States v. Moorefield, __ M.J. ___, No. 07-0503/MC (C.A.A.F. Apr. 1, 2008) (per curiam).

In Moorefield, CAAF holds that the mere fortuity that the staff judge advocate had previously served as the military judge presiding over an unrelated court-martial of the same accused did not require his disqualification from making the R.C.M. 1106 recommendation.

We previously discussed Moorefield here. Normally I would post the NMCCA opinion here since it isn't available via LEXIS or WESTLAW, but I can't access NKO tonight. Is anyone else having the same problem?

CAAF issued two opinions today (no fooling)

United States v. Day, __ M.J. ___, No. 07-0690/AF (C.A.A.F. Apr. 1, 2008), and United States v. Moorefield, __ M.J. ___, No. 07-0503/MC (C.A.A.F. Apr. 1, 2008) (per curiam).

More later.