Pentagon Chief Orders New Inquiry Into U.S. Airstrike That Killed Dozens in Syria
"The investigation by Gen. Michael X. Garrett, the four-star head of the Army’s Forces Command, will examine the strike, which was carried out by a shadowy, classified Special Operations unit called Task Force 9, as well as the handling of the task force’s investigation by higher military headquarters and the Defense Department’s inspector general, the official said. General Garrett will have 90 days to review inquiries already conducted into the episode, and further investigate reports of civilian casualties, whether any violations of laws of war occurred, record-keeping errors, whether any recommendations from earlier reviews were carried out, and whether anyone should be held accountable, said the official, who spoke on condition of anonymity because the investigation had not been announced."
Comment: This is a welcome indication that SECDEF is taking this matter seriously. The question on the mind of many, though, is whether an internal investigation is sufficiently independent. Some reactions below.
Ninth Circuit Court of Appeals
Erickson v. Blanckensee, No. 19-16165, 2021 U.S. App. LEXIS 34289 (9th Cir. Nov. 18, 2021) .
Kelly Erickson appeals pro se from the district court's order denying his 28 U.S.C. § 2241 habeas petition.
United States v. Erickson, 63 M.J. 504 (A.F. Ct. Crim. App. 2006) aff'd 65 M.J. 221 (C.A.A.F. 2007) cert. denied Erickson v. United States, 552 U.S. 952 (2007). A GP case in which the MJ sentenced him to Life w/poss. of parole.
The appellant initially asserted four errors for our consideration: (1) sentence is inappropriately severe; (2) ineffective assistance of counsel because his trial defense counsel erroneously advised him that he would be eligible for parole in 10 years so he rejected a pretrial agreement (PTA) that would have limited his confinement to 38 years; (3) MJ erred by admitting uncharged misconduct; and (4) trial counsel improperly compared him to Osama Bin Laden, Adolph Hitler, and the Devil during his sentencing argument. In a supplemental filing, the appellant raised four additional errors: (1) pleas were improvident because of his mental and emotional state at trial; (2) the court-martial lacked jurisdiction to try him because Article 3(a), UCMJ, 10 U.S.C. § 803(a), is unconstitutional as applied; (3) his plea to Charge I and its Specification was improvident; and (4) his plea to Charge IV, Specification 5 was improvident.
63 M.J. at 505.
Following military court proceedings, a federal court may only grant a writ of habeas corpus to "guard against the military courts exceeding their jurisdiction, and to vindicate constitutional rights." Broussard v. Patton, 466 F.2d 816, 818 (9th Cir. 1972) (citations omitted). Review of habeas proceedings "involving military convictions is limited to determining whether the court-martial had jurisdiction of the person accused and the offense charged and whether it acted within its lawful powers." Id. at 818 (citing Sunday v. Madigan, 301 F.2d 871 (9th Cir. 1962)). "[O]nce it has been concluded by the civil courts that the military had jurisdiction and dealt fully and fairly with all such claims, it is not open to such courts to grant the writ simply to re-evaluate the evidence." Id. (quoting Sunday, 301 F.2d at 873). "[I]t is not the duty of civil courts simply to repeat that process—to re-examine and reweigh each item of evidence . . . . It is the limited function of the civil courts to determine whether the military have given fair consideration to each of these claims." Burns v. Wilson, 346 U.S. 137, 144, 73 S. Ct. 1045, 97 L. Ed. 1508 (1953).
2021 U.S. App. LEXIS 34289, at *1-2.
The American Society of International Law has issued a CALL FOR PAPERS FOR THE 2022 LIEBER SOCIETY RICHARD R. BAXTER MILITARY WRITING PRIZE.
The paper should have written/published no earlier than the year prior to the award year, meaning for the 2022 Baxter Prize, papers should have been written or published in 2021.
Information at this link.
Since 2007, the Lieber Society on the Law of Armed Conflict, an interest group of the American Society of International Law, has annually recognized a paper that significantly enhances the understanding and implementation of the law of war (also known as international humanitarian law, IHL). The Richard R. Baxter Military Prize is awarded for exceptional writing in English by an active member of the regular or reserve armed forces, civilian employees of an armed force/ Ministry of Defense (or Department of Defense for the United States), or military service veterans, regardless of nationality.
"[P]laintiffs claim the regulations — governing in each respective branch the availability of a religious exemption from the COVID vaccine and purporting to comply with the demands of RFRA — in reality disguise an unlawful and pervasive policy of the Secretary of Defense and each branch of the armed forces to deny individual consideration of each claim for a religious exemption, to instead “deny them all,” and to punish, possibly by discharge, without exemption and without accommodation, those who assert a sincere religious objection and accordingly refuse the vaccine....
[T]he data produced by the defendants show that more than 16,643 requests for a religious exemption pend. The military has granted no exemptions but has denied hundreds. This disparity, although susceptible to a benign explanation is, as well, susceptible to an explanation actionable and remediable under RFRA."
Navy lieutenant commander arrested on sex trafficking charges in Virginia
"In an audio recording of an all-hands meeting with hundreds of sailors which Military Times obtained, then-Vice Adm. John Aquilino, who was responsible for Navy operations in the Middle East at the time, is heard saying that the cases of trafficking “have spanned rates and ranks, and the large number of them are senior and khakis.”
“Who thinks it’s okay to bring foreign nationals into this nation and take their passport and push them out for service to both yourself and anyone else, one of your buds?” Aquilino asked. “Who thinks that’s okay?”
“Floors me,” he said, according to Military Times. “Absolutely floors me.”"
Link to audio.
"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 Appeals
United 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."
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.
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