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:
Brenner FissellEIC
Poster
9/18/2020 03:55:09 pm
Tread lightly here. Jeffrey Nance is not a friend of UCI.
Brenner M. Fissell
9/19/2020 02:50:17 pm
Poster—This isn’t personal, and as I’m sure you know his reputation is irrelevant to the legal issue here. Perhaps you should explain your admonition to “tread lightly.”
Omar
9/19/2020 11:36:57 pm
BMF, I agree with you fully. This has nothing to do with his legal acumen or personal traits. In the only case I practiced before him (an initial capital case) found him to be very well versed in the law, and more than fair in his judicial conduct and rulings. But "tread lightly?" Poster? My ass. This is Spath redux and the same was said about him: great guy, great judge, etc.... That isn't the point. The point is that until one (or all) of these MJ's get their nutz crushed by CAAF (figuratively) for what is arguably conduct that is clearly wrong and in fact inconsistent with their reputations, it will continue. And that is unacceptable. A problem with such an easy fix
Poster
9/20/2020 12:11:27 pm
Sure.
Poster
9/20/2020 12:32:59 pm
And Omar.
Anon
9/18/2020 05:34:52 pm
"New documents show that on that same day [as SGT Bergdahl's pleas] Judge Nance applied for a position as an immigration judge" at DoJ. Wow. Coincidence?
Nathan Freeburg
9/18/2020 09:53:32 pm
Although I agree that Nance was not a judge to succumb to UCI (I actually enjoyed practicing in front of him), this is not a good look for military justice. Kudos to Frank and co for tracking this down.
2400 Pentagon
9/19/2020 08:06:44 pm
A conversation in the Pentagon:
2400 Pentagon
9/19/2020 08:07:02 pm
A conversation in the Pentagon:
Marcus Fulton
9/20/2020 09:51:50 am
Al-Nashiri opinion focuses on DOJ involvement in commissions. Assuming DOJ wasn’t involved in Bergdahl prosecution, is his isn’t on all fours with al-Nashiri.
Scott
9/20/2020 04:33:56 pm
I had the same thought - the direct involvement of DOJ in Al-Nashiri seemed to be a significant factor. If I remember correctly there was significant focus on that point during the oral argument as well.
MJ2016
9/20/2020 06:25:55 pm
One of the benefits of moving CAAFlog to this site and under Professor Fissell’s custodianship is that legal discussions can be had in an intellectual environment free from the vitriol and name-calling that cluttered the old site. I am not sure what “tread lightly” means – I knew what it meant in ROTC or when a colonel yelled it at me, but here it has no place if it is designed to curb the purpose of this site.
Poster
9/20/2020 07:02:01 pm
MJ2016. Comments are closed.
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