It's alive!

As countless mad scientists have exclaimed in countless horror flicks: "It's alive!" (That reminds me; I must buy tickets to the Young Frankenstein musical on Broadway.)

Yes, I learned today that the Air Force Law Review is still alive (thanks, Fitz!). In fact, I actually held a hard copy of volume 59, the 2007 edition, in my own two hands. Here's what's in it:

Religion in the Military: Navigating the Channel Between the Religion Clauses

The Interception of Civil Aircraft Over the High Seas in the Global War on Terror

Official Time as a Form of Union Security in Federal Sector Labor-Management Relations [I haven't the foggiest idea what that means]

More Effective Federal Procurement Response to Disasters: Maximizing the Extraordinary Flexibilities of IDIQ Contracting

Reemployment Rights for the Guard and Reserve: Will Civilian Employers Pay the Price for National Defense?

And while the Air Force JAG School's link to Air Force Law Review issues is inoperative, through a massive effort of trial and error while drafting a snarky e-mail, I stumbled across a web page with links to volumes 38-59 of the Air Force Law Review. Enjoy!

(Now if only the Air Force JAG School would link that page ot its Air Force Law Review page . . . .)

LTC Jordan describes his encounter with the military justice system

From Josh White's article in today's Washington Post:

"When they're playing pin-the-tail-on-the-donkey, that's a fun game until you're the donkey," Jordan said. "That's how I've felt these last 3 1/2 years, that I was the donkey."

Navy JAG Corps solicits applicants for military justice litigation career track

The Navy JAG Corps has established a military justice litigation career track. Oddly enough, the instruction setting up the program, JAGINST 1150.2 (3 May 2007), isn't available on the Navy JAG Corps web site's Navy JAG Instructions and COMNAVLEGSVCOM Instructions page. But in keeping with CAAFlog's constant quest to be helpful to our readers, we provide a link to the instruction on our new web page.

The program allows those meeting certain criteria to apply to be designated as military justice litigation experts or specialists, and most high-level military justice jobs are reserved for those who have been so designated (though, if I read the instruction correctly, a military justice litigation designation isn't necessary to be assigned as an NMCCA judge). The program is also expressly advertised as a means of ensuring that military justice specialists are competitive for promotion.

The deadline for receipt of applications is 12 October.

Does any other service recognize a comparable specialty?

Shining a spotlight on the SJA

We previoulsy noted what appears to be a new trend in NMCCA cases: naming the SJA who issued the SJAR. The most recent issue of JAGMAG (see below) shines more light on this practice.

The esteemed CAPT Reismeier, the head of Code 20, explains that the Judge Advocate General of the Navy "requested that the Chief Judge of NMCCA specifically include the name of the cognizant SJA in the title of each case the court reviews, just as the Court lists the military judge, appellate counsel, and convening authority. Effective June 12, 2007, the Chief Judge adopted this new procedure." CAPT Christian Reismeier, SJA’S Beware: Errors In Courts Martial Post-trial Processing, JAG Magazine, May/June 2007, at 10. Sure enough, the practice ssems to have caught on. 9 of the 10 latest opinions on NMCCA's public web site include the name of the SJA following the military justice's name immediately under the case's caption.

Military legal publications

The Navy JAG Corps now publishes a bi-monthly periodical called JAG Magazine -- which in naval nomenclature is no doubt abbreviated as JAGMAG. The first three issues are available here and the current issue is available here. The Navy JAG Corps' web page has also been redesigned.

While we are talking about military legal publications, can anyone tell us whether the Air Force JAG School still put out the Air Force Law Review? I can't find an issue on line more recent than 2005.

CAAF continuously considers Crawford

CAAF has granted review of yet another Crawford v. Washington issue. This grant was posted on CAAF's daily journal today:

WHETHER, IN LIGHT OF CRAWFORD v. WASHINGTON, 541 U.S. 36 (2004), THE ARMY COURT OF CRIMINAL APPEALS COMMITTED REVERSIBLE LEGAL ERROR BY AFFIRMING THE ADMISSION OF TESTIMONY BY A SEXUAL ASSAULT NURSE EXAMINER, WHO SERVED AS A CONDUIT FOR THE INADMISSIBLE HEARSAY STATEMENTS OF AN ABSENT BUT AVAILABLE VICTIM.

United States v. Aguilar, __ M.J. ___, No. 07-0519/AR (C.A.A.F. Aug. 28, 2007). CAAF ordered the parties to brief the issue.

4 of the 45 cases in which CAAF has granted review and ordered briefs this calendar year have involved Crawford issues. Aguilar; United States v. Harcrow, __ M.J. ___, No. 07-0135/MC (C.A.A.F. June 15, 2007); United States v. Pack, __ M.J. ___, No. 07-0085/MC (C.A.A.F. June 5, 2007); United States v. Foerster, __ M.J. ___, No. 07-0093/AR (C.A.A.F. Feb. 20, 2007). CAAF's opinion in Foerster is published at 65 M.J. 120 (C.A.A.F. 2007). Pack will be orally argued on 25 October at Indiana University School of Law-Bloomington. Harcrow will be orally argued on 6 November on E Street.

United States v. Jordan sentencing hearing

In a comment to the post about LTC Jordan's court-martial below, Anonymous alertly calls our attention to the article linked here.

The article includes the following:

In an unusual move, trial judge Colonel Steven Henley rejected a US newspaper column last week that portrayed the court-martial as a humiliation for prosecutors and claimed they had been reluctant to charge Jordan at all.

'The prosecutors and the defence confidently presented their cases,' Henley said in closing the trial. 'That is it - no more, no less.'

No doubt the article is referring to Dana Milbank's "Washington Sketch" column from the Washington Post, which we previously noted here.


Anonymous comments:

Interesting that the trial judge would specifically refute published newspaper article (the Dana Milbank Washington Post article from last week). I don't think I've ever seen that happen before. For whatever it's worth, I know MAJ Pavlovcak (one of the prosecutors criticized in the article) and he's a good attorney. I also know the defense team quite well. I had heard something to the effect that they recommended Article 15 for this case.

Based on how things turned out in court, I am not surprised by the sentence.

Verdict in Abu Ghraib Trial of Lt Col Jordan

The Washington Post and AP are reporting that LTCOL Jordan, the former commander of the Joint Interrogation Briefing Center at Abu Ghraib, was acquitted of the most serious charges. Most sources are reporting LTCOL Jordan was found guilty of a single specification of disobeying an order to not talk about the investigation of abuse at Abu Ghraib. Sentencing is scheduled to begin this afternoon.

Anyone at the verdict announcement? Any inside information/ preview available on the likely sentencing strategy by either side?

Pick of the Week: Ashby and Schweitzer headed back to NMCCA

The long and tortured sage of United States v. Schweitzer and United States v. Ashby is not over yet. They may have to recall a certain Marine Major to re-litigate these. On May 10 and June 27, the N-MCCA decided Schweitzer and Ashby, respectively. For those that don't remember the tortured saga of these two Marine aviators a few words will refresh your recollection, EA-6B Prowler meets ski gondola in Aviano, Italy.

Ashby and Schweitzer ultimately pled guilty to relatively minor charges for the 1998 offenses, but more than a year after the tragedy in the Italian Alps (1999). A year later the sentences were approved by the convening authority (2000). Two to three years later the defense counsel filed their briefs (2002 and 2003). The government filed answers in 2003 and 2004. And, as noted above, N-MCCA expeditiously decided the cases in . . . . 2007. As one of our astute commenters noted, the Schweitzer and Ashby opinions include the following quote, "A sentence should not be disturbed on appeal, 'unless the harshness of the sentence is so disproportionate as to cry out for sentence equalization.' United States v. Usry, 9 M.J. 701, 704 (N.C.M.R. 1980)." Glad to see someone thought through including that quote in those particularly tortured cases. CAAF should grant sentence relief just for delaying the case, yet again. Considering the six months confinement/dismissal that one officer received and dismissal that the other officer received, any meaningful relief would essentially be a pardon and/or windfall for those officers. I know some N-MCCA court clerks, please tell me you guys didn't drop that quote in there?

Upcoming training

We previously noted that CAAF would be holding an orientation program for new appellate counsel on 6 September.

Here's another date to add to your calendar. On Friday, 19 October the Judge Advocates Association is presenting a one-day appellate advocacy seminar at the George Mason University School of Law.