After taking in 5 days in the sun at the little hidden getaway known as Navy Rec Center Solomon's Island, I am back at the computer. Lots o' irregular Mil Jus news since I was gone. I'll see if I can catch our readers up on the busy week.
Also, since I now have some stake in the direction of the Committee, I encourage all of our readers with an interest in Mil Jus and/or government contracts to join a little merry band of government and private practitioners known as the Battle Space and Contingency Procurements Committee of the ABA Section of Public Contract Law. The Mil Jus experts on the Committee are growing in light of application of Art. 2, UCMJ to certain government contractors, now more than 2 years ago.
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Sunday, August 17, 2008
WaPo reports DOJ is moving toward MEJA prosecutions of 6 Blackwater security guards
Today's Washington Post reports here that DOJ has sent target letters to six Blackwater security guards arising from a September 2007 firefight in Iraq that reportedly resulted in 17 Iraqi civilian deaths. According to the article, "The sources said that any charges against the guards would likely be brought under the Military Extraterritorial Jurisdiction Act, which has previously been used to prosecute only the cases referred to the Justice Department for crimes committed by military personnel and contractors overseas. Legal experts have questioned whether contractors working for the State Department can be prosecuted under its provisions."
The article also reports, "Lawyers for the Blackwater guards have argued in ongoing discussions with prosecutors that the Military Extraterritorial Jurisdiction Act, known as MEJA, can be applied only to contractors working for the Defense Department, two sources said. That position appeared to be buttressed by the Congressional Budget Office, which said in a report on contractors in Iraq released last week that MEJA 'does not apply to civilians working . . . for federal departments or agencies other than DOD [the Department of Defense].'
"Legislative proposals to extend MEJA's provisions beyond the Defense Department -- which have been repeatedly opposed by the White House -- have made the same point.
"But the question has never been tested in court. Some outside legal experts said that prosecutors would be able to make a compelling argument that MEJA covers Blackwater guards involved in the shooting under a 2005 amendment that expanded MEJA's provisions to include contractors 'supporting the mission of the Department of Defense.'"
The article also reports, "Lawyers for the Blackwater guards have argued in ongoing discussions with prosecutors that the Military Extraterritorial Jurisdiction Act, known as MEJA, can be applied only to contractors working for the Defense Department, two sources said. That position appeared to be buttressed by the Congressional Budget Office, which said in a report on contractors in Iraq released last week that MEJA 'does not apply to civilians working . . . for federal departments or agencies other than DOD [the Department of Defense].'
"Legislative proposals to extend MEJA's provisions beyond the Defense Department -- which have been repeatedly opposed by the White House -- have made the same point.
"But the question has never been tested in court. Some outside legal experts said that prosecutors would be able to make a compelling argument that MEJA covers Blackwater guards involved in the shooting under a 2005 amendment that expanded MEJA's provisions to include contractors 'supporting the mission of the Department of Defense.'"
Saturday, August 16, 2008
To paraphrase Horace Lee Logan, CAAFlog is leaving the building
I'm leaving tomorrow for a couple of days of reserve duty. I'll have at best diminished Internet access while I'm gone. As always, I invite my CAAFlog colleagues to keep you informed while I'm gone -- particularly if CAAF updates its daily journal web page or if the Coast Guard Court's web site returns from whatever black hole it's currently sucked into. I'll be back in the CAAFlog saddle Wednesday night.
Reporters Committee for Freedom of the Press's report on court-martial dockets
The Reporters Committee for Freedom of the Press has released a fascinating white paper, available here, on journalists' access to information about court-martial dockets.
This excerpt will give you a flavor of the report:
The Tully Center also breaks the stats down by branch. Which branch do you think was the most forthcoming and which the least? Here they are, from most to least informative: Coast Guard (78%), Army (65%), Air Force (63%), Marine Corps (43%), Navy (42%).
The Reporters Committee white paper calls for either a UCMJ amendment or an RCM change to formalize the release of docket information. Under the proposal, DOD would set up a public interservice web site (presumably also including Coast Guard data) that would list "[e]ach and every military court proceeding" two weeks in advance (or as soon as reasonably possible where two weeks' notice is impossible).
The report concludes:
This excerpt will give you a flavor of the report:
Unlike civilian courts, which routinely supply the public with detailed dockets, most military courts release docketing information sporadically at their own self-interested discretion, if at all. This policy of secrecy has frustrated the press in its attempts to report on important military justice proceedings, while enabling some government officials to hide criminal cases that could be embarrassing or damaging to the military. Perhaps most alarmingly, the public has been left critically uninformed as to the competence and fairness of the military justice system.The report was prepared in conjunction with the Tully Center for Free Speech at Syracuse University. The Tully Center conducted a study in which its researchers contacted 25% of the military installations of each service (excluding the National Guard) seeking schedules for upcoming courts-martial and Article 32s. It found that 57 percent of the installations surveyed provided partial or full information about their court-martial dockets while 37 percent provided no information. (The rest were spread between a couple of categories that appear to boil down to "not applicable.") For Article 32 investigations, 49% of installations provided partial or full information while 45% provided no information.
The Tully Center also breaks the stats down by branch. Which branch do you think was the most forthcoming and which the least? Here they are, from most to least informative: Coast Guard (78%), Army (65%), Air Force (63%), Marine Corps (43%), Navy (42%).
The Reporters Committee white paper calls for either a UCMJ amendment or an RCM change to formalize the release of docket information. Under the proposal, DOD would set up a public interservice web site (presumably also including Coast Guard data) that would list "[e]ach and every military court proceeding" two weeks in advance (or as soon as reasonably possible where two weeks' notice is impossible).
The report concludes:
NIMJ released this statement endorsing the white paper's proposal that Congress "require DOD to establish a public website in order to provide accurate and timely information to the public and the news media about upcoming courts-martial."Regardless of the precise legislative form by which these reforms occur, the most significant characteristic of the reforms must be their standardized, indelible nature. The current system appears to operate at the discretion of individual branch officials, and, in many cases, the discretion of individual military court judges. To provide the American public with a fair and competent military justice system, the new military court docketing system must be operated independently from the whim and motive of individuals and enforceable by law.
An idiosyncratic military justice expression
Judge Beal's ruling holding that a portion of the new Article 120 is unconstitutional, about which the Kabul Klipper posts below, is an important development. But the ruling sparks a completely trivial thought in my mind.
Have you noticed the Courts of Criminal Appeals' tendency to refer to CAAF as "our superior court"? I've always assumed that this phrase was used mainly to finesse CAAF's name change. If a CCA wants to discuss an opinion by CMA or a couple of opinions, one issued in the CMA age and one issued in the CAAF age, it can use the phrase "our superior court" without having to specifiy "CMA" or "CAAF." And a couple of LEXIS searches tend to support that theory. Before 1 October 1994, the CMRs and Boards of Review used the phrase "our superior court" 15 times in opinions available on LEXIS. Since then, the CCAs have used the phrase 1,795 times.
Use of the phrase has also expanded beyond the CCAs. In the two appellate systems in which I litigate -- the Air Force and the Navy-Marine Corps -- I've noticed appellate government counsel's filings using the phrase "our superior court." That phrase always struck me as a bit odd, since CAAF is the CCA's "superior court," not the Appellate Government Division's "superior court." In fact, both the CCA and CAAF are Code 46's and JAJG's superior courts. By referring to "our superior court," an appellate government division seems to be semantically putting itself at the same level as the CCA.
Now Judge Beal -- a former appellate government counsel -- takes use of the "our" construction a step further, referring to "our Supreme Court." That phrase appears in just four CCA/CMR/Board of Review decisions available on LEXIS -- and in one of them, it was used to refer to CMA. United States v. Arrington, 5 M.J. 756, 758-59 (A.C.M.R. 1978) (Cook, J., concurring).
While I've never particularly cared for the phrase "our superior court" -- especially when used by appellate government counsel -- there's something oddly charming about the phrase "our Supreme Court." It's a reminder that, yes, Supreme Court precedent is applicable to the military, though sometimes it applies differently in the military than in other contexts.
We'll watch to see whether the phrase "our Supreme Court" catches on with other military legal writers.
Have you noticed the Courts of Criminal Appeals' tendency to refer to CAAF as "our superior court"? I've always assumed that this phrase was used mainly to finesse CAAF's name change. If a CCA wants to discuss an opinion by CMA or a couple of opinions, one issued in the CMA age and one issued in the CAAF age, it can use the phrase "our superior court" without having to specifiy "CMA" or "CAAF." And a couple of LEXIS searches tend to support that theory. Before 1 October 1994, the CMRs and Boards of Review used the phrase "our superior court" 15 times in opinions available on LEXIS. Since then, the CCAs have used the phrase 1,795 times.
Use of the phrase has also expanded beyond the CCAs. In the two appellate systems in which I litigate -- the Air Force and the Navy-Marine Corps -- I've noticed appellate government counsel's filings using the phrase "our superior court." That phrase always struck me as a bit odd, since CAAF is the CCA's "superior court," not the Appellate Government Division's "superior court." In fact, both the CCA and CAAF are Code 46's and JAJG's superior courts. By referring to "our superior court," an appellate government division seems to be semantically putting itself at the same level as the CCA.
Now Judge Beal -- a former appellate government counsel -- takes use of the "our" construction a step further, referring to "our Supreme Court." That phrase appears in just four CCA/CMR/Board of Review decisions available on LEXIS -- and in one of them, it was used to refer to CMA. United States v. Arrington, 5 M.J. 756, 758-59 (A.C.M.R. 1978) (Cook, J., concurring).
While I've never particularly cared for the phrase "our superior court" -- especially when used by appellate government counsel -- there's something oddly charming about the phrase "our Supreme Court." It's a reminder that, yes, Supreme Court precedent is applicable to the military, though sometimes it applies differently in the military than in other contexts.
We'll watch to see whether the phrase "our Supreme Court" catches on with other military legal writers.
Friday, August 15, 2008
Time to print up more milk cartons?
I haven't been able to access CGCCA's opinions for several days now. Does anyone else have an Internet address for them that actually works?
Military Judge rules new Article 120 unconstitutional
On August 12, Marine Corps Lieutenant Colonel Raymond Beal ruled that the new Article 120, UCMJ violated an accused's Fifth Amendment right to due process of law.
Machinist's Mate Second Class William Fairley, USN, is charged under with aggravated sexual assault under Article 120(c) for allegedly engaging in a sexual act with another person while that person was substantially incapable of declining participation in the sexual act. Under the new Article 120, which became effective on October 1, 2007, the question of consent on the part of the alleged victim is not an issue in this case unless the accused can affirmatively prove that the alleged victim consented.
The issue facing the court-martial was whether making the accused prove that the victim consented is tantamount to making him disprove the second element of the offense--that the other person was incapable of consenting. The military judge ruled that since an accused "cannot logically assert the affirmative defense of consent without denying the second element of the offense," imposing the requirement on the accused to prove consent shifted the burden of proof to the accused in violation of due process.
The military judge's ruling is available here.
Machinist's Mate Second Class William Fairley, USN, is charged under with aggravated sexual assault under Article 120(c) for allegedly engaging in a sexual act with another person while that person was substantially incapable of declining participation in the sexual act. Under the new Article 120, which became effective on October 1, 2007, the question of consent on the part of the alleged victim is not an issue in this case unless the accused can affirmatively prove that the alleged victim consented.
The issue facing the court-martial was whether making the accused prove that the victim consented is tantamount to making him disprove the second element of the offense--that the other person was incapable of consenting. The military judge ruled that since an accused "cannot logically assert the affirmative defense of consent without denying the second element of the offense," imposing the requirement on the accused to prove consent shifted the burden of proof to the accused in violation of due process.
The military judge's ruling is available here.
CAAF schedules orientation session
CAAF will hold an orientation for new appellate counsel (though not-so-new counsel are also welcome and this rather well-worn counsel will be there) at 0900 on 9 September. According to Mr. DeCicco's announcement, "Topics will include the Court's Rules of Practice and Procedure, bar admissions, drafting and filing of pleadings, the petition process, joint appendices, the new rule on withdrawal of petitions, electronic filing, the Court's website, Project Outreach, and a question and answer session."
Second judge disqualifies Hartmann as Gitmo legal advisor
Two cases do not make a trend, but this news from Guantanamo is disturbing: the military judge presiding over the trial of detainee Mohammed Jawad has disqualified Air Force Brigadier General Thomas Hartmann, the legal adviser to convening authority Susan Crawford, from any further participation in the case. Hartmann was also barred from participation in the Salim Hamdan case in an earlier ruling.
The presiding judge in the Jawad case, Army Colonel Steve Henley, found that Gen. Hartmann compromised his objectivity by aligning himself with the prosecution, and more specifically that he failed to communicate Jawad's counsel's analysis of "mitigating and extenuating circumstances" to Crawford. The judge remanded the case to the convening authority for consideration of those circumstances.
The hearing also saw testimony from Army Brigadier General Gregory Zanetti, who testified that Hartmann was "abusive, bullying and unprofessional" in promoting the tribunals, and the assertion of Article 31 rights by Army Lieutenant Colonel Diane M. Zierhoffer, a psychologist called to testify about interrogation techniques applied to Zawad in which she had apparently taken part.
The presiding judge in the Jawad case, Army Colonel Steve Henley, found that Gen. Hartmann compromised his objectivity by aligning himself with the prosecution, and more specifically that he failed to communicate Jawad's counsel's analysis of "mitigating and extenuating circumstances" to Crawford. The judge remanded the case to the convening authority for consideration of those circumstances.
The hearing also saw testimony from Army Brigadier General Gregory Zanetti, who testified that Hartmann was "abusive, bullying and unprofessional" in promoting the tribunals, and the assertion of Article 31 rights by Army Lieutenant Colonel Diane M. Zierhoffer, a psychologist called to testify about interrogation techniques applied to Zawad in which she had apparently taken part.
Wednesday, August 13, 2008
Incinerated frog meat tastes just like a big chicken dinner
Think of the weirdest case you ever handled at a court-martial. Okay, got it? Now compare it to United States v. Wilson, No. ACM S31348 (A.F. Ct. Crim. App. Aug. 11, 2008) (per curiam). SSgt Wilson was convicted of willful dereliction of duty for intentionally violating his duty not to -- and I swear I'm not making this up -- throw a small frog in front of an F-16 jet engine, allowing it to be sucked into the intake. That's got my weirdest case beat hands down (or flippers down, as the case may be). Rather than charging SSgt Wilson with willful dereliction, I wonder if there was any thought to charging him under the ADA -- the Amphibian Disintegration Act.
SSgt Wilson was unhoppy with his sentence, which included a big chicken dinner. AFCCA nevertheless found the sentence appropriate, reasoning: "The appellant correctly points out that the frog ingested into the engine was small, soft, and ultimately caused no damage. Nonetheless, the offenses of which he stands convicted are serious." The court noted that after the incident came to light because one of the frog fryers put video of the cookout on the Internet, 41 planes of "the famed Wolf Pack," as AFCCA colorfully calls the 8th Fighter Wing, were grounded for two days for inspections, forcing "hundreds of personnel to work extra hours to ensure the aircraft were safe."
How do you suppose the French Air Force cooks its frog legs?
SSgt Wilson was unhoppy with his sentence, which included a big chicken dinner. AFCCA nevertheless found the sentence appropriate, reasoning: "The appellant correctly points out that the frog ingested into the engine was small, soft, and ultimately caused no damage. Nonetheless, the offenses of which he stands convicted are serious." The court noted that after the incident came to light because one of the frog fryers put video of the cookout on the Internet, 41 planes of "the famed Wolf Pack," as AFCCA colorfully calls the 8th Fighter Wing, were grounded for two days for inspections, forcing "hundreds of personnel to work extra hours to ensure the aircraft were safe."
How do you suppose the French Air Force cooks its frog legs?
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