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Sunday, October 19, 2008
New contributor
It is with great joy that I call everyone's attention to a new name in the "Contributor" list to the right of this post. I am thrilled to announce that Gene Fidell, the Florence Rogatz Visiting Lecturer in Law at Yale Law School and the President of the National Institute of Military Justice (among other claims to fame), has agreed to irregularly share some of his thoughts with us as a CAAFlog contributor. While the many demands on his time will necessarily prevent frequent blogging, I will savor the wisdom he shares with us.
Saturday, October 18, 2008
Online military justice journal invites submissions
The William & Mary Military Law Society's online Journal of Military and Veteran Law has asked us to announce that it is now accepting submissions for its 2009 issue. The Journal seeks articles and essays of any length about national security law, military law, and veteran law. Submissions should be sent to mlwsoc@wm.edu with the subject line, "JMVL Submission." Additional information about the Journal, including past issues, is available at
http://www.wm.edu/law/publications/mlwsoc/.
http://www.wm.edu/law/publications/mlwsoc/.
Hamdan Pre-trial Confinement Issue Papers
For those following the Hamdan pre-trial confinement issue, I give you the government's motion for reconsideration here and the defense opposition here. Not a lot of time for analysis, but I will say two things. It is amazing how the defense and government are changing positions in this case compared to the normal course of things. The government arguing error that was not preserved at trial and defense arguing deference to the actions of the commission. Second, the defense says little if anything on the merits about Geneva or other go to arguments for the Hamdan camp. Interesting how that works when you already have the upper hand.
Friday, October 17, 2008
Trick or treat
CAAF disposes of third orally argued case
At this rate, CAAF will be done issuing this term's opinions before it's heard all of the oral arguments. Just one month into oral argument season, CAAF today decided a third argued case. In United States v. Brown, __ M.J. ___, No. 08-0260/AF (C.A.A.F. June 17, 2008), CAAF specified this issue:
CAAF observed:
WHETHER THE EVIDENCE ON THE ELEMENT OF SERVICE-DISCREDITING CONDUCT WAS LEGALLY SUFFICIENT WHEN: (1) THE SEXUALLY EXPLICIT CONTENT AT ISSUE INVOLVED VIRTUAL MINORS; (2) THE IMAGES OF VIRTUAL MINORS WERE VIEWED ON APPELLANT'S PRIVATELY-OWNED COMPUTER, AND (3) APPELLANT'S ACTIVITY WAS KNOWN ONLY TO LAW ENFORCEMENT PERSONNEL INVOLVED IN THE INVESTIGATION. SEE U.S. v. MASON, 60 M.J. 15 (2004), AND U.S. v. O'CONNOR, 58 M.J. 450 (2003).Today, two days after hearing oral argument in the case, CAAF vacated the order granting review as improvidently granted. United States v. Brown, __ M.J. ___, No. 08-0260/AF (C.A.A.F. Oct. 17, 2008). In Supreme Court practice parlance, CAAF DIGged it.
CAAF observed:
On examination of the record, we have determined that the granted issue was based on an incorrect premise, namely that the evidence in the record of the sexually explicit content at issue involved only virtual minors. The record reveals, and the parties agree, that the record includes testimony that the sexually explicit content at issue includes depictions of actual minors.
Under these circumstances, the issue granted by this Court cannot be answered on the facts presented in this case. Upon further consideration of Appellant's petition for review, we conclude that the record does not establish good cause for review . . . .
Hamdan's Pre-Trial Confinement: Gov't Says Not So Fast Judge Allred
The WSJ Law Blog reports today (and is also reported in the WSJ online here) that the government has moved for reconsideration of the decision to award pre-trial confinement credit to GITMO detainee Salim Hamdan. According to the reports, the motion contends that Captain Allred "lacked authority to credit Hamdan for the time he served in pretrial confinement." It also provides this somewhat baffling quote from the chief GITMO prosecutor, "'The length of the sentence is a matter of indifference to us,' [Col. Lawrence] Morris said. He said that if the jury still wants Hamdan released on Dec. 31, it could re-sentence him to however many days remained until then."
There is no provision in the Military Commission rules for awarding pre-trial confinement credit. Servicemembers are, however, entitled to pre-trial confinement credit at courts-martial for confinement served in a military brig. See United States v. Allen, 17 M.J. 126 (C.M.A. 1984). However, as CAAF noted, that policy is based solely on a Department of Defense regulation, not any constitutional guarantee. See United States v. Smith, 56 M.J. 290 (C.A.A.F. 2002). We'll see how Captain Allred resolves this and, more than likely, how this issues works out on appeal---which will likely be too late to provide total relief to detainee Hamdan.
There is no provision in the Military Commission rules for awarding pre-trial confinement credit. Servicemembers are, however, entitled to pre-trial confinement credit at courts-martial for confinement served in a military brig. See United States v. Allen, 17 M.J. 126 (C.M.A. 1984). However, as CAAF noted, that policy is based solely on a Department of Defense regulation, not any constitutional guarantee. See United States v. Smith, 56 M.J. 290 (C.A.A.F. 2002). We'll see how Captain Allred resolves this and, more than likely, how this issues works out on appeal---which will likely be too late to provide total relief to detainee Hamdan.
Thursday, October 16, 2008
Uncomfortable SOFA
Just in time for Halloween, this is scary:
"Iraq would have the first crack at prosecuting American troops and Pentagon contractors accused of major, premeditated crimes committed outside U.S. bases and when they were off duty under a draft security pact governing military operations in the country, Iraqi officials said Wednesday."
The rest of the article, courtesy of AP, the Air Force Times, and NIMJ in turn, is available here.
"Iraq would have the first crack at prosecuting American troops and Pentagon contractors accused of major, premeditated crimes committed outside U.S. bases and when they were off duty under a draft security pact governing military operations in the country, Iraqi officials said Wednesday."
The rest of the article, courtesy of AP, the Air Force Times, and NIMJ in turn, is available here.
CAAFlog exclusive: new published AFCCA opinion [UPDATED]
Here's a link to United States v. Cofer, __ M.J. ___, No. ACM 37075 (A.F. Ct. Crim. App. Oct. 16, 2008), a new published Air Force Court opinion rejecting a challenge to a guilty plea to an Article 107 false official statement charge arising from an Airman's statement to a civilian police detective.
Senior Airman Cofer torched his own car as part of an insurance scam. He badly burned himself in the process. To cover up for his misdeeds and resulting injuries, which were committed off-base, he concocted a story about being kidnapped and forced to torch his own car.
A civilian police detective from a jurisdiction near the base interrogated him. Unbeknownst to SrA Cofer, an Air Force OSI agent was observing. Cofer began the interrogation by delivering his rather fantastic tale and ended it by confessing. In addition to facing a charge resulting from his arson, he found himself also facing a false official statement charge.
AFCCA affirmed, noting that the military judge had concluded the statement was official based on factors including the offenses' proximity to the base (though committed a few miles from Luke Air Force Base), the civilian police department's proximity to the base, the civilian detective's knowledge that Cofer was in the Air Force, and the civilian detective's decision to involve AFOSI in the case.
Applying CAAF's decision in United States v. Day, 66 M.J. 172 (C.A.A.F. 2008), which was decided after SrA Cofer was tried, AFCCA affirmed.
I hope that CAAF will grant review of this case. I find treating Cofer's statements as "official" for UCMJ purposes a bit of a stretch. But I'm less interesting in whether Cofer can or can't get out of his guilty plea than I am in getting a better understanding of Day. Day involved an Airman Basic who injured his child and then lied to emergency responders about the causes of the injury. The opinion does a good job of explaining why AB Day was guilty of making a false official statement to the firemen who came to his house even though they were civilians and he was off-duty. But the case summarily sets aside the finding of guilty to making a false statement to the off-base operator who dispatched the emergency providers. While that is probably the right result, the opinion doesn't make clear why the result is different for the off-base operator than for the emergency responders. And it muddies the water further by dropping a footnote indicating that in some cases, false statements to off-base operators can violate Article 107. We need more guidance concerning when statements to off-base civilian government officials do and don't fall within Article 107. Cofer provides a good opportunity for CAAF to further clarify its case law in this recurring area.
Senior Airman Cofer torched his own car as part of an insurance scam. He badly burned himself in the process. To cover up for his misdeeds and resulting injuries, which were committed off-base, he concocted a story about being kidnapped and forced to torch his own car.
A civilian police detective from a jurisdiction near the base interrogated him. Unbeknownst to SrA Cofer, an Air Force OSI agent was observing. Cofer began the interrogation by delivering his rather fantastic tale and ended it by confessing. In addition to facing a charge resulting from his arson, he found himself also facing a false official statement charge.
AFCCA affirmed, noting that the military judge had concluded the statement was official based on factors including the offenses' proximity to the base (though committed a few miles from Luke Air Force Base), the civilian police department's proximity to the base, the civilian detective's knowledge that Cofer was in the Air Force, and the civilian detective's decision to involve AFOSI in the case.
Applying CAAF's decision in United States v. Day, 66 M.J. 172 (C.A.A.F. 2008), which was decided after SrA Cofer was tried, AFCCA affirmed.
I hope that CAAF will grant review of this case. I find treating Cofer's statements as "official" for UCMJ purposes a bit of a stretch. But I'm less interesting in whether Cofer can or can't get out of his guilty plea than I am in getting a better understanding of Day. Day involved an Airman Basic who injured his child and then lied to emergency responders about the causes of the injury. The opinion does a good job of explaining why AB Day was guilty of making a false official statement to the firemen who came to his house even though they were civilians and he was off-duty. But the case summarily sets aside the finding of guilty to making a false statement to the off-base operator who dispatched the emergency providers. While that is probably the right result, the opinion doesn't make clear why the result is different for the off-base operator than for the emergency responders. And it muddies the water further by dropping a footnote indicating that in some cases, false statements to off-base operators can violate Article 107. We need more guidance concerning when statements to off-base civilian government officials do and don't fall within Article 107. Cofer provides a good opportunity for CAAF to further clarify its case law in this recurring area.
CAAF issues this term's first opinion of the court
CAAF has only been holding oral arguments this term for a month and already it has decided two of the argued cases. The first was a summary disposition; today CAAF announced the term's first opinion of the court, reversing NMCCA in a unanimous opinion written by Judge Ryan. United States v. Burch, __ M.J. ___, No. 08-0092/MC (C.A.A.F. Oct. 16, 2008).
NMCCA's decision in Burch seemed like an opinion in search of a smack-down. NMCCA held that even though the accused was actually confined for seven months beyond what the plain language of the convening authority's action allowed, the error was harmless because we all know that the CA meant to order that extra seven months executed. United States v. Burch, No. NMCCA 200700047, 2007 CCA LEXIS 351, 2007 WL 2745706 (N-M. Ct. Crim. App. Sept. 13, 2007). NMCCA's opinion contained the classic line, "At first blush, our two-part analysis may appear internally inconsistent." Id., slip op. at 8. But no, argued NMCCA, it isn't. Yes, held CAAF, it is.
CAAF held: "[W]here a clear and unambiguous action is the convening authority's last action delimiting the period of confinement to be served, an accused is prejudiced by being confined for a period in excess of the authorized sentence. The United States Navy-Marine Corps Court of Criminal Appeals (CCA) erred in relying on facts and circumstances predating the convening authority's unambiguous action to find that Appellant was not prejudiced." Burch, No. 08-0092/MC, slip op. at 2.
CAAF reasoned: "The CCA's conclusion that Appellant was not prejudiced explicitly rests on facts extrinsic to and predating the convening authority's action, ignoring the significance and timing of the action itself and our holding in" United States v. Wilson, 65 M.J. 140 (C.A.A.F. 2007). Id., slip op. at 4.
CAAF also delivered this rebuke: "The CCA cited no legal authority for the novel precept that confinement not authorized by a convening authority's action does not prejudice an accused because events preceding the action suggest that at one time the convening authority 'did not intend to release Appellant from confinement prior to completion of his adjudged sentence.'" Id., slip op. at 5. Contrary to NMCCA's view, CAAF concluded that "the prejudice in this case is both obvious and apparent and may not be attenuated by facts predating the final action of the convening authority." Id., slip op. at 6.
As a remedy, CAAF ordered the record returned to NMCCA "to determine and award meaningful sentence relief to Appellant." Id., slip op. at 7.
NMCCA's decision in Burch seemed like an opinion in search of a smack-down. NMCCA held that even though the accused was actually confined for seven months beyond what the plain language of the convening authority's action allowed, the error was harmless because we all know that the CA meant to order that extra seven months executed. United States v. Burch, No. NMCCA 200700047, 2007 CCA LEXIS 351, 2007 WL 2745706 (N-M. Ct. Crim. App. Sept. 13, 2007). NMCCA's opinion contained the classic line, "At first blush, our two-part analysis may appear internally inconsistent." Id., slip op. at 8. But no, argued NMCCA, it isn't. Yes, held CAAF, it is.
CAAF held: "[W]here a clear and unambiguous action is the convening authority's last action delimiting the period of confinement to be served, an accused is prejudiced by being confined for a period in excess of the authorized sentence. The United States Navy-Marine Corps Court of Criminal Appeals (CCA) erred in relying on facts and circumstances predating the convening authority's unambiguous action to find that Appellant was not prejudiced." Burch, No. 08-0092/MC, slip op. at 2.
CAAF reasoned: "The CCA's conclusion that Appellant was not prejudiced explicitly rests on facts extrinsic to and predating the convening authority's action, ignoring the significance and timing of the action itself and our holding in" United States v. Wilson, 65 M.J. 140 (C.A.A.F. 2007). Id., slip op. at 4.
CAAF also delivered this rebuke: "The CCA cited no legal authority for the novel precept that confinement not authorized by a convening authority's action does not prejudice an accused because events preceding the action suggest that at one time the convening authority 'did not intend to release Appellant from confinement prior to completion of his adjudged sentence.'" Id., slip op. at 5. Contrary to NMCCA's view, CAAF concluded that "the prejudice in this case is both obvious and apparent and may not be attenuated by facts predating the final action of the convening authority." Id., slip op. at 6.
As a remedy, CAAF ordered the record returned to NMCCA "to determine and award meaningful sentence relief to Appellant." Id., slip op. at 7.
Wednesday, October 15, 2008
Capital court-martial sitrep
According to this article from the lower Hudson Valley's Journal News, the ongoing capital court-martial of Army Staff Sergeant Alberto Martinez is mired in the member selection stage. While the trial on the merits was expected to start at Fort Bragg this week, opening statements have now "been postponed until further notice." Staff Sergeant Martinez is charged with two specifications of premeditated murder arising from the deaths of his company commander and another officer from the 42nd Infantry Division in Tikrit, Iraq.
In other Fort Bragg capital court-martial news, the Fayetteville Observer reports here that the retrial of Sergeant William Kreutzer, expected to start in January, will likely be pushed back further. When ACCA originally reviewed the case, it affirmed the findings of guilty to offenses to which Kreutzer had pleaded guilty and set aside the findings of guilty to premeditated murder and 18 specs of attempted premeditated murder and set aside the death sentence. United States v. Kreutzer, 59 M.J. 773, 784 (A. Ct. Crim. App. 2004). CAAF affirmed. United States v. Kreutzer, 61 M.J. 293 (C.A.A.F. 2005). From the Observer article, it appears that the issue of whether Sgt Kreutzer should be allowed to withdraw his pleas of guilty that ACCA has already affirmed is somehow back before ACCA. But the article doesn't suggest what procedural mechanism returned the case to ACCA. Can anyone shed further light on this? Army Lurker? Bueller? Bueller?
In other Fort Bragg capital court-martial news, the Fayetteville Observer reports here that the retrial of Sergeant William Kreutzer, expected to start in January, will likely be pushed back further. When ACCA originally reviewed the case, it affirmed the findings of guilty to offenses to which Kreutzer had pleaded guilty and set aside the findings of guilty to premeditated murder and 18 specs of attempted premeditated murder and set aside the death sentence. United States v. Kreutzer, 59 M.J. 773, 784 (A. Ct. Crim. App. 2004). CAAF affirmed. United States v. Kreutzer, 61 M.J. 293 (C.A.A.F. 2005). From the Observer article, it appears that the issue of whether Sgt Kreutzer should be allowed to withdraw his pleas of guilty that ACCA has already affirmed is somehow back before ACCA. But the article doesn't suggest what procedural mechanism returned the case to ACCA. Can anyone shed further light on this? Army Lurker? Bueller? Bueller?
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