Military commission proceedings resume today at 10:00AM Eastern for the first time since the beginning of the COVID pandemic. I happen to be near Fort Meade and plan to go watch for the morning. You might wonder why. Well, I have the sense that watching these proceedings in 2021 is like watching the dinosaurs roam just before the asteroid hits.
Update: Denied entrance to Fort Meade due to a non-REAL ID NYS driver's license.
The U.S. Government Accountability Office has just issued a report titled Military Training: The Services Need to Ensure That All Commanders Are Prepared for Their Legal Responsibilities.
The report suggests that commanders may not be as legally equipped and trained in military justice matters as some argue.
GAO also found, through analyses of the legal training offered and from discussion groups and interviews with commanders and legal support staff, that perspectives varied on the general preparedness of commanders to address legal issues. In addition, GAO found that the timing, amount, and mix of legal training provided to commanders may not be meeting their needs.\\
All credit to a summary at GMJR.
From Carol Rosenberg at the NYT:
"General Martins submitted his retirement papers on Wednesday after repeatedly butting heads with Biden administration lawyers over positions his office had taken on the applicable international law and the Convention Against Torture at the Guantánamo court, according to senior government officials with knowledge of the disputes....A key point of contention was a recent decision by General Martins to use a statement that a man accused of orchestrating the U.S.S. Cole bombing in 2000 had made to the C.I.A. while being tortured to make a point with the military judge presiding in that case, which is also a death-penalty prosecution."
Recently, the Secretary of the Army reduced Major General Grazioplene's retired grade to second lieutenant--a significant "pay" cut. The action was based on the substantiated allegations that he sexually abused his daughter over a significant period going back to when he was a first lieutenant. He retired in 2015. (Whether that grade reduction can be challenged at the Court of Federal Claims is not my question.)
2 LT Grazioplene can still face court-martial--can he not?
Charges for rape were preferred against Grazioplene in 2017, and in November he was arraigned on his then alleged sexual misconduct; offenses committed while he was on active duty and at three different duty stations. (He was not placed in pretrial confinement and he was not recalled to active duty.)
Military prosecutors alleged in the August hearing that Grazioplene assaulted the girl at or near each of his duty stations from 1983 to 1989, which included Fort Leavenworth, Kansas; Bindlach and Amberg, Germany; Woodbridge, Virginia; and Fort Bragg, North Carolina.
Grazioplene was arraigned in November 2017. Then came United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018). As a result of CAAF's decision, the military judge dismissed the charges against Grazioplene. That was not the end of Grazioplene's legal difficulty.
Thank you Army Times.
Pending Appellate Cases
United States v. Madera-Rodriguez. A military jury found a Marine Raider on trial in the 2017 death of a Green Beret staff sergeant in Mali guilty of hazing, false official statements, conspiracy charges and involuntary manslaughter. He was found not guilty of felony murder. Sentencing is expected to finish after Independence Day.
United States v. Army (O-3). A chaplain assigned most recently to a Fort Leonard Wood, Missouri, basic combat training unit will face a court-martial next week on charges that he repeatedly raped a child.
United States v. Naughton.
In total, Naughton had been charged with dumping 3,724 cartridges of 5.56 ammunition with a value of about $1,079; 6,000 cartridges of .45 caliber ammunition with a value of about $2,041; 1,826 cartridges of 9 mm ball ammunition with a value of about $401; 120 cartridges of 12 gauge ammunition with a value of about $60; 160 cartridges of 12 gauge door breaching ammunition with a value of about $350; 80 cartridges of frangible 5.56 ammunition with a value of about $31; 200 cartridges of 9 mm hollow point ammunition with a value of about $70; two grenades and one smoke grenade, Marine Corps Times previously reported.
For this he was sentenced to 16-months and a BCD (with PTC credit).
Read the brief here.
Editor's note: Was anyone involved in the early days of setting up the commissions? As early as Military Order No. 1? I am interested in any evidence that some of the motivation for a separate system was to experiment with a more expedited process that might be translatable to domestic civilian cases. This may have been motivated by the tough-on-crime rhetoric of the 90s. I once asked Bill Lietzau whether this was an early motivation and he responded with a single word: "No." Of course, the primary motivation was a hunch that one day a case like Al-Hela would be decided.
The Shadow Advisory Report Group of Experts (SARGE), has released a statement on the DoD Independent Review Committee (IRC) report from last Friday.
SARGE focuses on the Accountability section of the IRC report. In the BLUF, SARGE suggests that,
Hard Truths does not purport to address the broader changes Congress is currently considering. As a result, it should not be read as having rejected those changes. Congress should proceed with consideration of legislation transferring disposition authority over all offenses for which the maximum punishment exceeds a year’s confinement to judge advocates who are independent of the chain of command[.]
SARGE goes on to say, correctly, that,
Additionally, if, as the report observes (App. B at 6), “junior enlisted Service members hav[e
Should any changes to military justice practice be limited to the IRC recommendations, we will have a "ununiform" bifurcated system of military justice. This will further add to the already complex and confusing investigative and accountability process. There will become two major classes of victims: the classes identified by the IRC (Chart, Appendix B, at 10), and other victims who will remain within the commander-centric system--the mother of a murdered Sailor, the Soldiers who are victims of a barrack's thief, the Airman suffering abusive (toxic) leadership on the flight line; or the taxpayer whose money is taken in allowances fraud or military property theft.
An actual or perceived unequal justice system is unlikely to be helpful to good order and discipline. The recommendations may, if enacted or implemented alone, have a perverse effect on ensuring trust in the system and in creating and supporting necessary cultural change. No one doubts the need to address acts and words of sexual aggression--Senator Gillibrand's bill is the much better, if not complete, approach Congress should follow.
Cheers, Phil Cave
The Wall Street Journal has a short piece on what might be the White House thinking on the MJI&IPA. There seems to be some ambiguity on the breadth of any reform.
The establishment of the IRC letter is here. Rumors abound that the IRC "results" will be out today.
From the CAAFlog Newspeak Bureau desk.
CAAF appears to be clearing out some of the trailer-park cases on alleged post-trial "errors."
Summary Dispositions 29 June 2021. There are eight, with a similar disposition to,
No. 20-0358/AR. U.S. v. Carlos Muniz, Jr. CCA 20200092. On further consideration of the granted issue (80 M.J. 401 (C.A.A.F. 2020)), and because the charges were not preferred in this case until after January 1, 2019, we conclude that the convening authority did not err in taking "no action" on the sentence, and the United States Army Court of Criminal Appeals had jurisdiction to review Appellant's case. See United States v. Brubaker-Escobar, 81 M.J. __ (C.A.A.F. June 4, 2021). Accordingly, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.
From the CAAF Desk.
Today [30 June 2021], the United States joined global partners – including governments, civil society, and the private sector – in making commitments to the Generation Equality Forum, reasserting U.S. leadership on gender equity and equality on the world stage.
The commitment is related to,
The Generation Equality Forum (GEF), convened by UN Women and co-hosted by the governments of France and Mexico, marks the anniversary of the United Nation’s Fourth World Conference on Women held in Beijing over 25 years ago, where the world recognized that “women’s rights are human rights” and adopted an ambitious Platform for Action to achieve equality and opportunity for women around the world. While tremendous progress has been made since the Beijing Conference, serious gaps remain, which have been exacerbated by the COVID-19 pandemic. The Generation Equality Forum offers an opportunity to make bold, measurable commitments to build back better and accelerate progress towards the Beijing Platform and the Sustainable Development Goals.
From the CAAFlog Newspeak Bureau desk.
Over the years there has been concern about members of Congress making public statements and judgments on specific pending courts-martial. Folks may remember the various statements surrounding the Hamdania cases and similar ones of that time. Even before then there were occasional forays with comments about a particular case. Of course, we may remember the Franklin/Wright issues also. Now someone has written on the subject in an item worth the read.
The Taliban captured Sergeant Robert “Bowe” Bergdahl in 2009 after he walked off of his post in Afghanistan. For five years, he was held hostage, tortured, and brutalized when he repeatedly attempted to escape. Once he returned home, he was investigated and court-martialed for desertion, among other offenses. Under the Uniform Code of Military Justice (UCMJ or “the Code”), the governing law for courts-martial, Bergdahl’s trial should have been free from outside influence. But, long before the case had come to a close, John McCain, the chair of the Senate Armed Services Committee (SASC), pronounced his own verdict. “If it comes out that he has no punishment,” he announced, “we’re going to have to have a hearing . . . . And I am not prejudging, OK, but . . . [he] is clearly a deserter.”
The writer goes on,
Congress’s relationship with the military justice system is at a critical juncture. A crisis of sexual assault in the military has attracted intense congressional scrutiny, and the resulting legislation has radically transformed the system.The days of drumhead military justice are largely behind us, as military justice increasingly resembles the civilian system thanks to productive congressional oversight. But heightened congressional attention has come at a cost. Congress-members have often meddled with the administration of military justice in ways they would never do with respect to proceedings in civilian federal courts. This congressional interference undermines the system’s integrity and, while individual instances have garnered some media attention, the underlying systemic problems have been ignored.
Max Jesse Goldberg, Congressional Influence in Military Justice. 130 YALE L. J. 2110 (June 2021).
The Make Rules Clause, Article I, Sec. 8(14), certainly give Congress the authority to create a military justice system and dictate ways in which it will operate. As part of their authority, they certainly can "investigate," observe, and monitor how the system is working. But where is the line of what is appropriately within their "lane" and what might be considered an abuse of power and authority to the detriment of individual accuseds? That is the question--to do or not to do. From the abstract,
The Note reveals how Congress has become more willing over time to alter the structure and function of military justice, shaping a system that increasingly resembles the civilian courts. But congress-members also have interfered with the everyday administration of military justice in ways that they would never dare to do in the civilian system. This Note proposes legislative reforms to preserve Congress’s legitimate oversight of the enduring problems in military justice and to prevent congress-members from meddling with pending cases in ways that undermine the system’s integrity.
Cheers, Phil Cave.
United States Supreme Court
Pin v. United States, a petition to watch.
QP: Whether an appellate court reviewing a cold criminal trial record may determine that an error at trial was harmless by applying an “overwhelming evidence of guilt” test that considers only the potential effect of the error on the government’s case and not on the defense.
This case raises an important and recurring question of criminal law: Can a trial error be held harmless based on the government’s “overwhelming evidence of guilt” without considering the error’s potential effect on the jury’s view of the defendant’s case? In holding that it can, the divided decision below deepens an entrenched lower-court split left unresolved in Vasquez v. United States (No. 11-199), dismissed as improvidently granted, 566 U.S. 376 (2012). Further, the decision conflicts with this Court’s precedents, and reviewing it will allow the Court to clarify a doctrine affecting more criminal appeals than any other.
The frequent commenter (in his individual capacity) celebrates eight years at DoD. Let's get that "Like" count higher if you are on LinkedIn!
Rachel E. VanLandingham, American Democracy, Coups and Retired Generals, today at LAWFARE.
"Despite this national strength of free speech, Flynn’s comment, as well as other recent public statements by former senior military leaders, has garnered much negative attention. This has included calls for criminal prosecution, recommendations that former military officers be stripped of their government pensions for their speech, and even general concern expressed for the health of civilian control of the military, all because of former military officers’ engagement in the polity. Such condemnation must be resisted: Not only is it not warranted, but it also is the wrong tack to take in America’s democratic, pluralistic national experiment, as I explain in this post."
Congratulations to NIMJ General Counsel Frank Rosenblatt, who has been elected President of the Committee on Military Justice at The Int’l Society for Military Law and the Law of War.
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