0 Comments
"In the torturous history of the U.S. government’s black sites, the F.B.I. has long been portrayed as acting with a strong moral compass. Its agents, disgusted with the violence they saw at a secret C.I.A. prison in Thailand, walked out, enabling the bureau to later deploy “clean teams” untainted by torture to interrogate the five men accused of conspiring in the attacks of Sept. 11, 2001. But new information that emerged this week in the Sept. 11 case undermines that F.B.I. narrative. The two intelligence agencies secretly arranged for nine F.B.I. agents to temporarily become C.I.A. operatives in the overseas prison network where the spy agency used torture to interrogate its prisoners." Link here.
Comment: This definitely undermines the concept of the "clean team" evidence. Interestingly, at a recent GITMO conference at Penn it was disclosed that the prosecution could have easily proved its case without any confession evidence. The prosecution's political overlords, though, directed it to use the confession evidence in order to prove the point that the confessions were not derived from what was legally "torture." One would think that the point of the prosecution was to secure convictions, not to "prove a point."
Air Force Court of Criminal AppealsUnited States v. Witt. This was a sentence rehearing in once a DP case, with "An Army military judge due to the fact the Chief Trial Judge of the Air Force had been detailed as trial counsel at Appellant’s initial court-martial." Findings: Seventeen years ago, in the early morning hours of 5 July 2004, Appellant murdered Senior Airman (SrA) AS and SrA AS’s wife, Ms. JS, with a knife. Appellant attempted to murder another Airman, SrA JK, who survived despite suffering grievous wounds inflicted at Appellant’s hands. Later that day, Appellant was apprehended by military law enforcement, and he subsequently confessed to the offenses. Appellant was charged with two specifications of premeditated murder and one specification of attempted premeditated murder, in violation of Articles 118 and 80, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 918, 880.2 These specifications were referred as capital to a general court-martial, and just over a year after his attack, Appellant was found guilty of all three offenses and sentenced to death. Sentence: LWOP, DD, TF, RIR, and a reprimand. Issues: Members, Prosecutorial misconduct during voir dire, abuse of discretion as to some evidence, TC XE of a witness lacking a good faith basis. Abuse of discretion in allowing TC demonstrative slide. Risk assessments. TC errors during sentencing argument. His approach to the argument was to repeatedly ask the members what they “stand for” and where they would “draw the line.” Finding no prejudicial error, the sentence on rehearing was affirmed.
"A Hanging at CAAF
An art symposium was held at 450 E. Street, N.W., this afternoon, as Judge Scott Stucky regaled his assembled well-wishers with the story of what he called “one of the greatest fiascoes in the history of official portraiture”: Graham Sutherland’s 1954 painting of Sir Winston Churchill. SPOILER ALERT: the tale ends with the portrait, which Churchill considered a monstrosity, being driven to a secluded area, where it was hacked to pieces and—just to be careful—burned. Happily, Judge Stucky pronounced himself well-pleased with his official portrait that was unveiled during the ceremony, so there is no need to fire up the wood chipper. In Judge Stucky’s portrait, his hand rests on Winthrop’s treatise, which sits atop the Constitution of the United States of America: Analysis and Interpretation. The event closed with Judge Stucky ceremonially passing the Court’s gavel to Chief Judge Ohlson. Judge Stucky was a larger-than-life presence on the bench. For those of us who follow the military justice system’s appellate courts, he is already missed." After his [Sec Austin] remarks, the House Armed Services Committee announced it would investigate the matter. “Both the incident and the efforts to cover it up are deeply disturbing,” Representative Adam Smith, Democrat of Washington and the chairman of the panel, said in an email to The Times.
Comment: We invite readers to submit in the comments section any questions they believe should be asked at Ms. Johnson's confirmation hearing.
The Hill: Pentagon digs in on vaccine mandate for Oklahoma National Guard
"Austin announced in August that the coronavirus shot would be mandatory for all troops and in mid-September placed the mandate into effect, though the deadline to receive the inoculation varies by branch. The National Guard’s deadline is June 30, but the Air Force and Army require guard airmen and troops to comply by Nov. 2 and Dec. 15, respectively, to allow them to be mobilized on federal orders. The Oklahoma National Guard went rogue, however, when earlier this month it rejected the mandate after Oklahoma Gov. Kevin Stitt (R) unexpectedly ousted its previous head. In their place, Stitt appointed Army Brig. Gen. Thomas Mancino to serve as the state’s adjutant general and National Guard commander. He then directed Mancino to pen a memo that stipulated no member of the Oklahoma National Guard will be required to get vaccinated." "Crime victims are often instrumentalized within the criminal legal process in furtherance of state prosecutorial interests. This is a particularly salient issue concerning victims of gender-based violence (GBV) because victim testimony is typically considered essential for successful prosecution of these types of crimes, especially since the Supreme Court’s 2004 Crawford v. Washington decision requiring declarants to be available for cross-examination on “testimonial” hearsay evidence. Consequently, criminal legal actors often employ highly coercive practices to secure GBV victims’ participation in the criminal legal process as evidentiary tools, including arresting and incarcerating victims through material witness warrants and contempt power, criminally charging and threatening charges against them, and conditioning key assistance measures upon their full cooperation with law enforcement. This Article critically examines paternalistic and utilitarian justifications for these practices and exposes their misalignment with the core principles of each framework. It then examines the state’s approach to GBV victims under three interrelated conceptual frameworks which have thus far been overlooked in this context: deontological ethics, dehumanization constructs, and liberal legal principles. This novel critique argues that the practices at issue are incompatible with foundational principles concerning the dignified treatment of individuals within the liberal legal order. It also contends that the targeted use of these coercive mechanisms operates as punishment for victims who fail to conform to “ideal” and legitimate GBV victim stereotypes, which require full cooperation with criminal legal authorities."
‘Sir, you know what he did to me’ — An open letter to the Marine general handling my sexual harassment case: A Marine’s plea for justice and accountability following a substantiated investigation into her sexual harassment complaint
"Commanders hold the specific duty of proactively preventing such behaviors. At the very least, a documented history of bullying and sexual abuse should be grounds for immediate separation. Any punishment short of this empowers the offender to repeat this unforgivable behavior and continue to hurt other service members. I know that your command is capable of taking such swift action when an offense is deemed reprehensible enough. Just recently, one of your female lieutenants was accused of fraternizing with an enlisted Marine during a training exercise. She was immediately removed from her unit and deemed unfit for command by both her peers and superiors. She will likely never be allowed to lead Marines again. Meanwhile, the male lieutenant who demeaned me with sexually-charged language on a daily basis and sought to destroy my professional reputation — all because I refused to sleep with him — has pursued a successful career within your command and will continue to be eligible for promotion." Pentagon Chief Orders Briefing on 2019 Syria Airstrike That Killed Dozens
"Defense Secretary Lloyd J. Austin III has ordered the military’s top commander in the Middle East to brief him on details of a U.S. airstrike in Syria in 2019 that killed dozens of women and children, the Pentagon said on Monday. The Pentagon’s top spokesman, John F. Kirby, said Mr. Austin, who became secretary this year after the Biden administration took office, requested the briefing after reading an investigative report published over the weekend by The New York Times detailing the strike and allegations that top officers and civilian officials sought to conceal the casualties. ... Mr. Kirby would not comment on details of the strike, a bombing at Baghuz, Syria, on March 18, 2019, that was part of the final battle against Islamic State fighters in the last shard of a once-sprawling religious state across Iraq and Syria....“I’m not going to relitigate a strike that happened back in March of 2019,” Mr. Kirby said." Congratulations and best wishes to Colonel Jackie Thompson, who will be promoted to Brigadier General, and will take leadership over the defense office.
See note here. Dist. Ct. for the Dist. of ColumbiaThe plaintiffs in this case include eighteen federal civilian employees[1] and two active-duty Marines[2] (collectively, "Plaintiffs"). By virtue of their federal civilian and military employment, Plaintiffs are subject to the recent COVID-19 vaccine mandates imposed under President Joseph R. Biden's Executive Order 14043 and Secretary of Defense Lloyd Austin's August 24, 2021 order for the vaccination of military personnel. Plaintiffs now challenge these vaccine mandates on constitutional and statutory grounds and request emergency injunctive relief preventing their enforcement. Dear Editor: LtCol Korsak deserves our respect and support as a community of lawyers. What he appears to have done was his job. His actions are or should be, the norm. Article 1137, U.S. Navy Regulations requires the reporting of offenses, and I suspect the other Services have something similar. Oh, wait, there seems to be an AFI 51-401 of some relevance--duh. So, as I scroll down I get to para. 4.1. 4.1. Individual Responsibilities. All military and civilian personnel who, in the course of their duties, discover information that might reasonably be viewed as a violation of the law of war will report that information to their immediate commander. Such reports may be made through other channels, such as Security Forces, judge advocate, Air Force Office of Special Investigations, or inspector general. Contractors shall similarly require reporting through the chain of command by contractor personnel. If the immediate commander appears to be involved or reporting to that commander is otherwise not feasible, personnel must report the incident to the next higher command authority. In instances where it is unreasonable to report within the chain of command, personnel shall report to the servicing staff judge advocate, Inspector General, Air Force Office of Special Investigations or to a sister Service counterpart of one of these offices. I am struck by the phrase, "might reasonably be viewed[.]" This strikes me as not requiring proof BRD or BaP. That he then took his concerns to the IG and Congress is protected activity (and encouraged by an AFI on point). See also 10 U.S.C. § 1034. As to the correctness of his legal interpretations and advice, I don’t know. Nor do you. Until there is a full public accounting for the strike and its aftermath, I think we should be careful about dumping on LtCol Korsak for following AF regulations and doing his duty. To repeat one of my favorite quotes from Charles Dickens, in Hard Times, “Now what I want is, Facts.. . . Stick to Facts Sir!” Sincerely, Phil Cave.Speaking for himself to himself. "The Baghuz strike was one of the largest civilian casualty incidents of the war against the Islamic State, but it has never been publicly acknowledged by the U.S. military. The details, reported here for the first time, show that the death toll was almost immediately apparent to military officials. A legal officer flagged the strike as a possible war crime that required an investigation. But at nearly every step, the military made moves that concealed the catastrophic strike. The death toll was downplayed. Reports were delayed, sanitized and classified. United States-led coalition forces bulldozed the blast site. And top leaders were not notified." NYT link here. Update from Task & Purpose, here. Comment: Korsak is a hero. This incident demonstrates, yet again, "the downsides of high trust in the military." The problem is not a new one. Here are some comments I have received/seen offline: "Considering LOAC is up there with good order and discipline as the military’s go to argument for command prosecution authority, this seems to eviscerate that argument. Along with everything from My Lai to Haditha." "Special Operations Command needs to be shut down due to track record of impunity for war crimes - AND across DOD prosecutorial discretion shifted to independent lawyer command for ALL crimes including war crimes " Brenner FissellEIC United States District Court, D. KansasThis matter is a petition for a writ of habeas corpus filed under 28 U.S.C. § 2241. Petitioner is confined at the Joint Regional Correctional Facility at Fort Leavenworth, Kansas. Petitioner challenges his conviction by general court-martial. Pros se petitions from those confined at the USDB and JRCF are quite common. The 10th Circuits "full and fair consideration" standard on a federal habeas is tough, and so most petitions from there are pro se. I may be wrong, but I think this is the first in many years where the petitioner has asked for release pending decision. Perhaps this is a case where the court already perceives the petitioner will lose on the merits. Court of Military AppealsUnited States v. Howe. Appellant was charged and convicted of using contemptuous words against the President of the United States and conduct unbecoming an officer. Charges of public use of language disloyal to the United States with design to promote disloyalty and disaffection among the troops and civilian populace, were dismissed pretrial. Appellant was sentenced to a dismissal, TF, and two years at-hard-labor. The CA commuted one year of confinement. On appeal, he challenged his conviction on First Amendment grounds and other legal issues. The Army Board of Review affirmed the findings and sentence. CoMA denied a petition for review and a petition for reconsideration of the denial. There was no direct avenue to the Supreme Court, and there wouldn't be if the case arose today. See also Col Jeremy S. Weber, USAF, The Curious Court-Martial of Henry Howe. 55 Tulsa L. Rev. 109 (2019). The author reviews the character and events leading up to the, so far, only conviction of an active duty officer for violating Article 88, UCMJ. Howe was not on duty and wore civilian clothes. A newspaper report shortly after the demonstration noted that spectators did not notice Howe was a military member. In the interview for this article, Howe stated he believed his actions were in compliance with Army regulations. A review of Army regulations in effect at the time seems to support his position. AV2 v. Cook. Summary Disposition No. 22-0009/AR. AV2, Appellant v. John H. Cook, Colonel, U.S. Army, Appellee and Clinton Murray, Master Sergeant, U.S. Army, Real Party in Interest. CCA 20210409. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is denied. The ACCA opinion does not appear on its public website. Air Force Court of Criminal AppealsIn re KC. In this writ petition, the AFCCA denied the petition finding no abuse of discretion by the miiltary judge. At a Dubay hearing, the government sought to have all witnesses testify remotely. The MJ denied the motion. The complaining witness, contends that her travel to the United States from Australia for the hearing violates: her “right to be reasonably protected from the accused,” see Article 6b(a)(1), UCMJ, 10 U.S.C. § 806b(a)(1); her “right to be treated with fairness and with respect for [her] dignity and privacy,” see Article 6b(a)(8), UCMJ, 10 U.S.C. § 806b(a)(8); and her “right to proceedings free from unreasonable delay,” see Article 6b(a)(7), UCMJ, 10 U.S.C. 806b(a)(7). Petitioner argues that requiring in-person testimony violates her Article 6b, UCMJ, rights because: (1) it will subject her to ongoing fear of TSgt Leipart and his family; (2) requiring her to travel halfway around the world for a hearing during the COVID-19 pandemic is cruel and “defies tenets of basic dignity and fairness;” and (3) delaying the hearing is unreasonable when remote testimony is a viable option. The Dubay issue is whether the CW committed fraud upon the court--a factual and credibility issue. Army Court of Criminal AppealsMilitary CommissionsHere is a link to the transcript for the sentencing hearing in Khan. Unofficial/Unauthenticated Transcript of the Majid Shoukat Khan Motions Hearing Dated 10/29/2021 from 9:52 AM to 4:38 PM CheersA number of great poets and writers came from the experience gained in the trenches of WW-I, among them was Wilfred Owen. He happened to meet up with some others at the famous Craiglockhart Hospital. Having recovered sufficiently, he was returned to duty. On November 4, 1918, he was killed, terminating a promising writing career. His mother received the telegram announcing his death in the afternoon of November 11, 1918. Sgt. Henry Gunther, USA, is reported to be the last soldier from any of the belligerent armies to die on the battlefield (although many died later of their wounds). He died at 1059, November 11, 1918. He was the son of German immigrants to America. Thousands more soldiers, 1,100 of them in one unit, would die during the morning before the Armistice took effect. Augustin-Joseph Victorin Trébuchon, 15 minutes before the Armistice, appears to be the last poiuli to die. I thought we might take a break from current disputes and remember the past. Between August 1914 and 31 March 1920, just over 3,000 men were sentenced to death in British army courts martial. Offences included desertion (by far the most common capital crime), cowardice, murder, espionage, mutiny and striking a superior officer. In roughly 90% of cases, the sentence was commuted to hard labour or penal servitude. Recourse to this most extreme application of military discipline varied among First World War combatants. Britain seems to have fallen somewhere between France - whose much larger army suffered roughly 700 executions - and Germany, whose High Command seems to have deployed firing squads less regularly than its British counterpart. (Yes, sics everywhere.) Th[e following] essay will survey some essential features of military justice in World War One and present some of the key evidence that has emerged from current research about judicial practices. The essay restricts itself to the impact of military justice on soldiers; it excludes any consideration of military justice applied to civilians or to prisoners of war (POWs). After a brief overview of the military codes and procedures in effect during the war, the essay describes the range of punishments available to military authorities, with special attention given to the most controversial aspect of military justice, the use of the death penalty and executions. This is followed by a section on desertion – one of the most frequently prosecuted serious military offences – which offers a convenient way of comparing and contrasting the military justice systems of several of the belligerent countries. Finally, the legacy of military justice in World War One, in particular with regard to the German case, is examined. Steven R. Welch, Military Justice. International Encyclopedia of the First World War, October 8, 2014. “Dans ce pays-ci, il est bon de tuer de temps en temps un amiral pour encourager les autres.” Votaire, Candide. Int'l Collectors Library at 61. You may be familiar with Admiral Byng's execution about which Voltaire gives us the memorable phrase. Voltaire had been present on the quarterdeck of Byng's flagship when the admiral was executed by his own Marines. There had been general displeasure at the admiral's lack of performance in relieving the British garrison on the island of Minorca, and it had been thought necessary to set an example for others. Which brings us to World War I. Much modern writing about military justice during that time has focused on the executions and, ultimately successful, efforts to obtain pardons for many of those executed. The to "encourage others" theme is a common link. The Shot at Dawn Campaign was just one initiative in the UK. Pardon for Soldiers of the Great War Act 2000 was NZ's reaction. And I see there is at least one Shot at Dawn memorial in the UK. We talk a lot about GoD, so I was struck by this comment. “Discipline is a subjective concept and cannot in itself be quantified. However, an indicator of a division’s discipline may be suggested by the number of its soldiers being subject to a court martial.” The conclusion from the article is that tying discipline rates to military efficiency and effectiveness is not easy and any actual conclusion is ambiguous. Discipline in the BEF: An analysis of executions in the British Divisions, 1914-1918. Western Front Association. The writer's conclusion might also extend to the effectiveness of the military justice system to affect discipline. The ANZACs were, allegedly, notoriously ill disciplined, but were considered amongst the most effective of units. See here, here, and here. (Interestingly, the British already had a similar experience with the Australians during the Second Boer War. See, e.g., Peter Fitzsimmons, Breaker Morant. Hachette, Aust. 2021.) Finally, the executions were not justified because they had no deterrent impact. The practice and threat of executions did not prevent men from deserting. The practice was so arbitrarily applied that commanders could not use them as a credible threat. Soldiers did not consider the punishment when deserting, or if they did, they took a calculated risk and determined that if caught they would escape the firing post. With a commutation rate of 90 per cent, this was a wise gamble. Executions did not keep men in the field; this was achieved through sound leadership that balanced strength, kindness and creature comforts, including rations, cigarettes and a steady stream of mail from home. Face to Face: Were the First World War executions of 25 CEF members justified? Legion, Military History Magazine (Canada). Jospin’s reference to a system of military discipline as harsh as battle itself expresses what could be termed the conventional view of military justice in World War One, one well-represented in many scholarly and popular accounts of the war. According to this view, military justice was not only extraordinarily severe, but was often brutally inhumane and unjust, an essential element in a broader set of coercive disciplinary practices designed to intimidate the common soldier and force him to continue fighting in a war of attrition and mass slaughter to the bitter end. From this perspective, soldiers of the various belligerent countries appear as helpless victims of military justice systems that had little regard for the individual or for the principle of justice, but were instead instruments used primarily to maintain discipline and achieve deterrence through harsh and often arbitrary punishment. Welch, who concludes, Overall, the current state of research tends to validate the conventional view of generally harsh military justice in World War One. Revisionist studies have offered some useful qualifications (such as a more favourable evaluation of British and Canadian commanders as a result of examinations of their commutation practices) but have not succeeded in fundamentally undermining the conventional view. Previous research has been heavily concentrated on the highly charged issues of death sentences and executions. While these are very significant issues and do reveal much about the character of military justice, they represent only one aspect of military justice. Future research needs to focus more broadly on the ways in which the various military justice systems affected the overwhelming majority of soldiers who were not among the relatively small group condemned to death. Such studies would provide a much more solid basis for evaluating the role of military justice in maintaining or undermining obedience and morale. "Miscellaneous Docket - Summary Disposition
No. 22-0009/AR. AV2, Appellant v. John H. Cook, Colonel, U.S. Army, Appellee and Clinton Murray, Master Sergeant, U.S. Army, Real Party in Interest. CCA 20210409. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is denied." "About two-thirds of women and half of men in the Air Force experienced “interpersonal violence” within a period of two years, and most who reported it did not believe that their senior leaders were doing anything about it, according to the results of a survey released Tuesday.
The voluntary survey of 68,000 people was carried out over six weeks in the fall of 2020. Air Force officials said they were struck by the gap between how senior officials thought they were doing in responding to incidents that included bullying, harassment and assault, and how rank-and-file troops felt about their commanders’ performance. “It seems to be uniformly true that people at the lower levels who have experience with these things are telling us that there is a problem, and that senior leadership is not receiving that there is that problem,” Air Force Secretary Frank Kendall said in a phone call with reporters. “So, we’ve got an issue right there. At the end of the day, all of this is about leadership.”" Link here. Comment: A bad news cycle for the AF. |
Links
CAAF -Daily Journal -Current Term Opinions ACCA AFCCA CGCCA NMCCA Joint R. App. Pro. Global MJ Reform LOC Mil. Law Army Lawyer Resources Categories
All
Archives
April 2022
|