The Joint Service Subcommittee’s Prosecutorial Authorities Study recently completed its report. This is the conclusion: “The JSS-PAS finds that implementation of the alternative military justice system defined by Section 540F is neither feasible nor advisable.”

The Report is 92 pages long, but the theoretical foundation of this defense of commander discretion is discernable in a short section on the “Purpose of Military Justice.” The military justice system’s non-justice additional purpose is (of course) invoked: “good order and discipline.” Commendably, the PAS notes that this should not be considered a “mere platitude,” and the authors go on to more precisely describe their understanding of the concept. In doing so, though, they lay the groundwork for their own refutation.

Here it is: “Military discipline, simply put, is the respect for authority and absolute obedience to lawful orders. The purpose of discipline stems from the necessity of combat. Against their natural instincts and personal risk, service members must adhere to the orders of their superiors to kill other human beings and risk being killed in harsh and chaotic battlefield conditions…. [M]ilitary justice is meant to inculcate service members in the necessity of good order and discipline. The UCMJ must be an effective tool for commanders to quickly reinforce the absolute necessity for their unit personnel to follow orders.”

The distillation of the concept of good order and discipline into a form of obedience to authority is a somewhat sweeping proposition, and the report is tellingly sparse on citations that would support it (either as a historical or normative matter). The one citation given, to an article by Prof. Lederer, gives the example of the system’s demand for “compliance with positive instruction, e.g., ‘take that hill.’” Fredric I. Lederer, From Rome to the Military Justice Acts of 2016 and Beyond: Continuing Civilianization of the Military Criminal Legal System, 225 Mil. L. Rev. 512, 515 (2017). But let’s take the authors at their word: the point of this separate criminal system is to ensure obedience during wartime.

If that is true, then one wonders why the current system looks and functions like it does.

We are in a post-Solorio world: conduct that forms the core of state criminal codes, and is totally unrelated to military service – and especially unrelated to obedience – is routinely punished. Take the example of Chief Petty Officer Jerry White in the case argued yesterday; White purchased online child pornography. Does this undermine our expectation that he will follow orders when asked to act against his “natural instinct[]” for self-preservation during a wartime combat situation? Of course not, and moreover, it seems far-fetched to apply this rationale to all military members, most of whom are not in combat roles. It is especially farfetched to apply it in peacetime. The possibility that the cook at Fort Benning might one day be asked to “take that hill” seems too remote to stand as the theoretical justification for why his commander should decide whether he is prosecuted for using a stolen debit card. 10 U.S.C. § 921a. If the point of the system is mere obedience, then PAS should recommend repealing all offenses other than Arts. 88-92.

The PAS authors want it both ways: they want a post-Solorio system (they reject treating different offenses differently) in which civilian-type offenses can be punished with lengthy terms of incarceration, but they want civilian-like procedures dispensed with in place of the commander’s discretion at both the front and back end of the trial. They want a “justice” system with respect to conduct punished and form of punishment, but a “discipline” system with respect to its procedures.

N.B. Page 58 contains this astonishing admission: "In the case of the U.K., Australia, and New Zealand, the change was a direct result of an increased willingness on the part of their courts to view commander driven courts-martial as inconsistent with their obligations under international human rights treaties. While the motivation for Section 540F is not necessarily clear, ensuring the military justice system complies with human rights obligations is undoubtedly not a U.S. concern." 

​Here is a link to D. G. Rehkopf, The Investigation Omissions Defense: Some thoughts for Defense Counsel. Don prepared this post at CAAFLog’s request. Check it out.

Below is Sgt. Bergdahl's reply to the Government's opposition to the motion to supplement the record with Judge Nance's employment application.

After a long summer of social distancing, CAAF's 2020 term begins in person tomorrow. Best of luck to counsel and to the judges in adapting to these strange circumstances.

To all observers of Yom Kippur, have an easy fast.

Disclaimer: The author of this post helped in the preparation to the Appellant's filings at CAAF.    

    In United States v. White, the government appealed a military judge’s decision to suppress evidence seized pursuant to a command authorized search and seizure.  The military judge found there was insufficient nexus between the crimes alleged and the place to be searched.  The military judge refused to apply the good-faith exception because the affidavit was so lacking in evidence there could not have been a reasonable belief that there was probable cause.
    The N-MCCA reversed, finding no probable cause, but applying the good-faith exception under Perkins. Specifically, the Court relied on the fact that the NCIS agents emailed the SJA the affidavit before applying for the CASS.
     CAAF now grants review on the following question: did the lower court err in determining the good faith exception applied when the Military Judge found so little indicia of probable cause existed that no reasonably well-trained officer would rely on the search authorization?

The supplement and argument information is available here.

   Amici urge CAAF to grant Bergdahl's motion to supplement the record and motion for reconsideration. They argue that ACCA and CAAF, could not have fully assessed whether an intolerable strain on the military justice system existed, given the recent revelation of Nance's application to be a U.S. Immigration Judge. 

Dateline: 25 September 2020 (as of 0900).
 
CAAF
 

• Two grants this week.

 
No. 20-0252/AF. U.S. v. Rodney M. Tyler. CCA 39572.
 
WHETHER THE MILITARY JUDGE ERRED WHEN HE PERMITTED TRIAL COUNSEL TO ARGUE FACTS NOT IN EVIDENCE; NAMELY, THE UNSWORN VICTIM IMPACT STATEMENTS WHICH WERE NOT ADMITTED AS EVIDENCE UNDER RULE FOR COURTS-MARTIAL 1001(b)(4).
  
No. 20-0340/AF. U.S. v. Eric R. Proctor. CCA S32554.
 
AT AN ALL-CALL PRIOR TO APPELLANT'S COURT-MARTIAL, APPELLANT'S SQUADRON COMMANDER SOUGHT TO ADDRESS HIS "NCO PROBLEM" BY HIGHLIGHTING THE NEGATIVE CAREER IMPACTS SOMEONE COULD SUFFER IF THEY PROVIDED A CHARACTER LETTER FOR AN ACCUSED AIRMAN. DID THE AIR FORCE COURT ERR WHEN IT FOUND, BEYOND A REASONABLE DOUBT, THAT THIS UNLAWFUL COMMAND INFLUENCE DID NOT PLACE AN INTOLERABLE STRAIN ON THE PUBLIC'S PERCEPTION OF THE MILITARY JUSTICE SYSTEM?

I am frequently asked what the JAG corps is looking for in aspiring law student applicants. What should I tell them? Could anyone who has served on a selection board shed light on this process? Any help appreciated.

"What do you folks think, other than looking forward to all the Foxtrots, Novembers, Quebecs, and Uniforms? Worthwhile promotion of privacy, serious interference with public right of access to court records, both, neither? Does it matter that this is the military justice system, rather than normal state or federal court.
Rumors that the NMCCA almost opted for the alternative of using witnesses' porn star names appear to be unfounded."
​

​Original Post Here.

The primary argument is that Bergdahl should have known about Nance's Spath issues earlier and included the argument in regular briefing. The case is distinguished from Nashiri​ in only one footnote. The Government wisely refrained from relying on their personal opinions about Nance's reputation for integrity. The brief contains no warning to "tread lightly."

The AFCCA affirmed the findings and sentence of SSgt Kaleb D. Willman, finding that he suffered no prejudice to his substantial rights.
​
Willman opinion here.

Editor's Note: This case raises interesting issues about remedies for prisoners.

In anticipation of the start of the court's term, CAAFlog is seeking to add two interns to its staff.

If you, or someone you know, is interested in applying to become an intern at CAAFlog, please send an email with your resume (include class rank) to Elizabeth Berecin at [email protected]. In the subject field, please write “CAAFlog Internship Application." Resumes will be accepted on a rolling basis. 

CAAFlog interns can expect to gain writing experience and invaluable knowledge about the military justice system. Primary duties will be the analysis of new developments in the law--especially new opinions from the CCAs. Additionally, interns may be asked to help CAAFlog editors with research projects.  Interns can expect their weekly time commitment to not exceed six (6) hours a week, unless additional responsibilities are undertaken. All internship duties will be conducted remotely.

If you have any questions, please refer them to Elizabeth Berecin at [email protected].

 The AFCCA held that Nicholas A. Matichuk's findings and sentence were correct in law and fact, and that no error materially prejudiced his substantial rights..  Accordingly, the findings and sentence were affirmed.

Matichuk opinion here.
​

"A colonel in the Marine Corps was named Thursday to preside as the military judge in the long-running death penalty trial of Khalid Shaikh Mohammed and four other prisoners at Guantánamo Bay, Cuba, who are accused of plotting the Sept. 11, 2001, attacks.

The colonel, Stephen F. Keane, is currently serving as the circuit military judge at Camp Pendleton, Calif., the senior judge on the West Coast for the Marine Corps. Before that he was commanding officer of Security and Emergency Services at Camp Pendleton, responsible for the brig, firefighting and policing on the sprawling 125,000-acre installation with 38,000 residents and about 30,000 commuters."  -- Phil Cave @ GMJR

MJ Editor Phil Cave recently learned in a correspondence with the NMCCA clerk of court that "We now use pseudonyms (instead of initials) for all witnesses, not just for victims and minors..... Rather that [sic] redact out all names, the filings, opinions, and orders will use the same pseudonyms for a given case so that they can be more easily understood than if we redacted all names as the other CCAs plan to do. This is reflected in NMRAP Rule 17.5, Table of Pseudonyms. See attached. Note that the “first filer,” typically the appellant, will be responsible for creating the Table of Pseudonyms that the government and Court will use for the given case."

Pseudonyms for all witnesses in court documents? "Tables" of pseudonyms? This is going overboard. In fact, it may be creating constitutional problems.

There is generally a presumption of transparency in a court opinion; this is rebutted only in special cases such as minors. The reasons for the transparency presumption are obvious, and are rooted in the right to publicity in criminal proceedings. "The rule rather is that under appropriate circumstances anonymity may, as a matter of discretion, be permitted. This simply recognizes that privacy or confidentiality concerns are sometimes sufficiently critical that parties or witnesses should be allowed this rare dispensation. A necessary corollary is that there is a judicial duty to inquire into the circumstances of particular cases to determine whether the dispensation is warranted." James v. Jacobson, 6 F.3d 233, 238 (4th Cir. 1993) (courts should consider the following factors: "whether the justification asserted by the requesting party is merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a matter of sensitive and highly personal nature; whether identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties; the ages of the persons whose privacy interests are sought to be protected; whether the action is against a governmental or private party; and, relatedly, the risk of unfairness to the opposing party from allowing an action against it to proceed anonymously"); see  In re Sealed Case, No. 19-1216, 2020 WL 4873248, at *2 (D.C. Cir. Aug. 20, 2020) ("The presumption of openness in judicial proceedings is a bedrock principle of our judicial system....That presumption is both 'customary and constitutionally-embedded[.]'")(applying Jacobson factors).

​Good news. NMCCA will shortly follow the example of CGCCA and be posting appellate filings on line.

Briefs can help at trial--ideas flow from briefs into your motions at trial.

There is one interesting change in Rule 17 (which I believe a post will follow).

The AFCCA, finding error in the military judge’s analysis, reversed Senior Airman Matthew C. Harrington’s motion to dismiss for a violation of his speedy trial rights.

​afcca.law.af.mil/afcca_opinions/cp/harrington_-_misc._dkt._no._2020-02.u.pdf

The AFCCA affirmed the findings and sentence of Airman First Class Antonio V. Simon, finding no error materially prejudiced Appellant's substantial rights.

Simon opinion here.

A pleading in the Bergdahl case (filed today) reveals that the military judge, Jeffery Nance, was pursuing employment with the US Dept. of Justice while presiding over the case. Of course, the same conduct by military commission judge Vance Spath led the D.C. Circuit to vacate most of his rulings in the case of the alleged USS Cole bomber. In the words of Judge Tatel, Spath's conduct "cast an intolerable cloud of partiality" over the proceedings.

Here, Nance used the ruling in which he denied Bergdahl's first UCI motion as his writing sample in his job application. Thus, in his employment application to an executive branch agency headed by the President, Nance highlighted his writing ability by producing a motion in which he beat back a claim that the President had acted improperly.

​Does an "intolerable cloud" equate with an "intolerable strain?" 

Here is the accompanying reply to the Govt's reconsideration opposition:

Given that there is no PACER system or online docket access at CAAF or the CCAs, please feel free to email filings you think are worth sharing with the broader community.

The NMCCA affirmed the findings and sentence of SSgt William J. Scott, finding Appellant's substantial rights were not materially prejudiced. 
Scott opinion here.

The issue: what mens rea should be inferred when an element is textually silent on the required mens rea?​