JAG CENTRAL

In this Bloomberg News column, Amy Woolner argues that some Supreme Court justices may be swayed by the recent Abu Ghraib prison scandal when writing their opinions in the Padilla and Guantanomo Bay prisoner cases.

Lots of military justice-related stories today to digest.

The New York Times: U.N. Rights Chief Says Prison Abuse May Be War Crime, Aide to Qaeda Suspect Captured in Iraq, 17 Ex-P.O.W.'s Set Back Again in Claim Against Iraq, Cheney Reportedly Interviewed in Leak of C.I.A. Officer's Name. And in Tomorrow's NY Times, Abuse Inquiries Seen as Leaving Significant Gaps.

Of particular note in tomorrow's article are these statements from RAdm John D. Hutson (ret.), the former Navy JAG:

"They have created a patchwork with cracks in it, and a lot will fall through it," said John D. Hutson, who served as the Navy's judge advocate general from 1997 to 2000 and is now the dean of the Franklin Pierce Law Center in New Hampshire. "There's no umbrella or overarching investigation that has the power to go wherever it leads."
...
"I think in a very narrow sense we'll see that justice was done for the seven low-level soldiers, or whatever number it ends of being," he said. "Whether justice is done for the more senior people implicated remains to be seen. I don't hold out great hope that any of these investigations are going to result in that."

The Washington Post: Records Paint Dark Portrait of Guard: Before Abu Ghraib, Graner Left a Trail of Violence, Padilla Case Puts Lawyers in Limbo, Too: Defense Attorneys Unable to Rebut Justice's Claims, E-Mail to Cheney Called a Courtesy: Note on Halliburton Deal Sent by Army Corps Official, U.S. Gulf War POWs Denied Settlement, and More Probes of Troops in Iraq, Afghanistan Announced.

The Honolulu Advertiser reports that the Commanding General of 25th ID/Schofield Barracks, MG John Batiste, is considering charging PFC Edward Richmond with Article 118, unpremeditated murder, in the killing of an Iraqi cowherder:

On Feb. 28, 1-27 soldiers were conducting a morning search for known terrorists around Al Huwijah — a city of more than 85,000 people, mostly Sunni Muslims, about 40 miles southwest of Kirkuk.

According to reports, the middle-age Iraqi man was running and "resisting apprehension," but the Army did not elaborate.

Richmond, 20, a native of Gonzales, La., had his weapons confiscated and is suspended from active duty but is not being detained, said his father, Edward Richmond Sr. He said his son is at the Kirkuk Air Base.

The Los Angeles Times today ran this story about a witness to the abuse of prisoners by Military Intelligence soldiers. Until now, the only hard, eyewitness testimony about abuses has been by and towards military police:

In a telephone interview with The Times, Rivera described his involvement in the case for the first time, saying that he visited the cellblock largely out of curiosity and that he was stunned by what he saw: detainees being stripped naked, made to crawl on their stomachs and chained into a ball of limbs and flesh on the prison floor.

Rivera, 20, is the first military intelligence soldier to come forward publicly and say that he witnessed a fellow intelligence soldier, Cruz, taking part in the abuse of prisoners in the isolation cellblock at Abu Ghraib. Cruz has also been cited in testimony by Sgt. Samuel J. Provance III, another intelligence officer, who said Cruz "was known to bang on the table, yell, scream, and maybe assaulted detainees during interrogations in the booth."

Cruz could not be reached for comment this week.

Because they are among only a handful of intelligence soldiers directly tied to the abuse in photographs, Rivera and Cruz are potentially important witnesses for military investigators seeking to determine the scope of the scandal — specifically whether the torture of detainees had any connection to the interrogation operation at Abu Ghraib.

Rivera disputed such claims, saying the abuse he witnessed had nothing to do with "softening up" prisoners to get information from them.

He insisted that his superiors did not know about the abuse, let alone sanction it.

Rivera said that as he got ready to leave the cellblock amid anguished pleas for help from the prisoners, Cruz stopped him to make sure he didn't plan to talk.

"Before I walked out of that bay, he looked at me and asked me, 'Izzy, you're not going to tell anybody, are you?' " Rivera said, speaking by telephone from Baghdad this week.

"And I looked at him and I said: 'No, absolutely not, Cruz. You have nothing to worry about.' "

Rivera said he never informed his superiors and still hasn't shared his account with military investigators.

When he met with an Army Criminal Investigation Division agent in January, he refused to talk unless he was provided with an attorney.

"The big reason I'm doing this [speaking publicly] is there's a big sense of guilt that I have," Rivera said. "I didn't know there was a huge conspiracy [of abuse at Abu Ghraib], but I did know about that one night…. I should have said to my sergeant, 'Hey Sergeant, I saw this,' and a lot of it would have been dealt with if I had."

According to this article from the AP:

An appeals court panel threw out a $959 million verdict Friday for U.S. prisoners of war who say they were tortured by the Iraqi military during the 1991 Gulf War, ruling Congress never authorized such lawsuits against foreign governments.

The U.S. Court of Appeals for the D.C. Circuit overturned a lower court ruling that said 17 former POWs and 37 family members were entitled to the damages under a federal statute allowing suits involving countries which financed or aided terrorists.

The three-judge panel said the statute only allows lawsuits for pain and suffering if they are filed against agents and officers of those foreign states responsible for the torture who are not acting on behalf of their government.

Thus, even though the lawsuit also names Saddam Hussein, he is immune because the POWs sued him for his alleged activities as Iraq's president, the panel said.

You can find the opinion in Acree v. Republic of Iraq here.

Today, the Army Court of Criminal Appeals released this unpublished opinion in U.S. v. Bresnahan, No. ARMY20010304. The case involved a soldier convicted of involuntary manslaughter in the child abuse death of his son. During trial, uncharged misconduct evidence was presented, over the accused's objection, as to injuries caused by blunt force trauma that occurred four to eight weeks prior to the death. The medical testimony was offered to prove mens rea as to the death. ACCA held 3-0 that the evidence was improperly admitted because there was no evidence that the accused caused the injuries and therefore the evidence was irrelevant. However, it also held that because of the strength of the government's case, the error was harmless, and it affirmed both the conviction and the sentence (six years confinement).

The New York Times: A Pentagon Plan Would Cut Back G.I.'s in Germany, Sierra Leone War Crimes Trial Opens Without Chief, Mistreatment: Abu Ghraib Inquiry Is Said to Focus on Head of Interrogation Center, Representatives Urge Military to Respond to Sexual Assaults.

The Washington Post: Kerry Says He Would Add 40,000 to Army, Methods Used on 2 at Guantanomo ("Intensive interrogation techniques approved by Defense Secretary Donald H. Rumsfeld were used to elicit information from two prisoners at the U.S. detention facility at Guantanamo Bay, Cuba, a senior Army general said yesterday. Pentagon officials previously said Rumsfeld helped approve a list of intense interrogation techniques for Guantanamo, but Army Gen. James T. Hill said for the first time yesterday that Rumsfeld had granted permission to use those techniques in two cases"), and 2 Marines Guilty of Abusing Prisoner.

60 Minutes II last night ran this report on Staff Sgt. Camilo Mejia, the Army soldier convicted of going AWOL and sentenced to one year in jail, a dishonorable discharge, and reduction to E-1:

He went AWOL, he told 60 Minutes II, because he was morally opposed to a war that has killed or wounded nearly 5,000 United States soldiers.

Mejia’s commanding officer and fellow National Guardsmen told us a different story: that he went AWOL because he’s a coward.

The AP reports PFC Lynndie England, the female soldier depicted in many of the Abu Ghraib prison photos, has retained a Denver civilian criminal defense attorney. The previous civilian lead attorney was fired due to legal problems of his own, including an ongoing disbarment hearing. PFC England's Article 32 hearing (the military equivalent of a preliminary hearing) is scheduled for June 21.

The New York Times: CHALABI INVESTIGATION: "Federal investigators have begun giving polygraph test to civilian employees at the Pentagon in an effort to determine who may have disclosed highly classified intelligence to Ahmad Chalabi, the longtime Iraqi exile leader," Complaint Seeks Data on Prisoners ("The American Civil Liberties Union, the Center for Constitutional Rights and three other organizations filed a federal civil complaint yesterday against the Pentagon and other government agencies, alleging that they illegally withheld information about the condition of prisoners in Iraq and Guantánamo Bay, Cuba"), Bush Finds Lawyer to Use if Called in Leak Case, and With Some Strings Attached, Senate Approves War Money.

USA Today: Marine Privates Sentenced For Abusing Iraqi Prisoner, Bush Consults Lawyer in CIA Leak Case, Army Extends Duty for Soldiers.

Washington Post: Soldiers Facing Extended Tours: Critics of Army Policy Liken It to a Draft, Sexual Assaults In Army On Rise: Report Blames Poor Oversight And Training, Lott Defends Treatment of Iraqi Prisoners (Sen. Trent Lott (R-Miss.) proved he has not lost his knack for inflammatory rhetoric when he defended "really rough" treatment of Iraqi prisoners by U.S. soldiers, including the use of dogs against a prisoner "unless the dog ate him"), House Democrats Call for Halliburton Inquiry, and Bush Addresses Air Force Grads (DON'T MISS the photo of our commander-in-chief striking a pose with a cadet).

Phil Carter writes this post about today's announcements about evidence against Padilla, and the inability to square the tactics used in gaining such evidence with the Fifth Amendment. His post is thorough and compelling as usual. Unfortunately, I think it misses a key point. The government has never claimed that its actions were Constitutional if Padilla could seek protection under that document. Rather, it argues that Padilla can seek no such protection because he is an enemy combatant, notwithstanding the fact that he is a US Citizen. I think that is the key issue in this debate, and not whether the government's actions violate the 5th amendment in the first place.

According to this article from the AP, some military law experts take issue with the fact that Maj. Gen. Ryder, the Army Provost Marshal, both reported last year there was no mistreatment at Abu Ghraib and also commands criminal investigators now pursuing such cases. Some believe this creates a key conflict of interest. They also take issue with the fact that this investigation coincided with his promotion to Major General. The previous JAG, MG Huffman, is one such critic. The JAG before him, MG Nardotti, however, believes there is no such appearance of impropriety.

A story in today's Baltimore Sun about the soldiers who found the $760 million of Saddam's money - and took a little bit for themselves. The ironic part of the story is that the soldier who turned himself in to the authorities and agreed to identify the other soldiers who stole money, ended up getting kicked out of the Army while the soldiers who did not cooperate initially got to stay in - and two even got promoted!

The Naples Daily Eagle reports:

Meester, a Lely High School graduate, is slated to face a court-martial June 7 on charges that he raped an underclass female cadet in his dorm room at the academy in October 2002 after he shared shots of tequila with her.

He is the first cadet to be sent to trial in an ongoing sex scandal at the academy.

If convicted, Meester faces a maximum term of life in prison.

The US Court of Appeals for the Third Circuit has set the date for oral arguments in Fair v. Rumsfeld, the case challenging the constitutionality of the Solomon Amendment, for June 30 at noon in philadelphia. The Solomon Amendment requires schools that receive federal funding from key federal agencies to provide equal access to military recruiters. FAIR is an association of law schools, professors, and administrators claiming the law infringes on their First Amendment right of free expression. Howard Bashman of How Appealing fame, represents three law school veterans groups acting as amici in the case, and he may be alotted time to argue in a rare move by any court of appeals. Thanks to Howard for the heads up. You can access the brief Howard filed for the amici (which I helped write) here.

The New York Times: Afghan Prison Review ("The top American general in Afghanistan on Tuesday promised "rapid action" on an internal review of Afghan jails where at least three prisoners have died, but said details of techniques used there will remain classified."), and Australian May Face US Tribunal (David Hicks, the Australian who Major Michael Mori, the "Marine With Balls" I wrote about here, is defending).

The Washington Post: U.S. Details Case Against Terror Suspect, Faces of The Fallen, a pictorial of those who have died in the War in Afghanistan, and E-Mail Links Cheney's Office, Contract [With Halliburton].

USA Today: Army To Keep More Soldiers After Their Tours Expire, Soldier Arrested After Police Find Wife's Body In Van, President Outlines Ideology of War On Terror To Air Force Graduates.

Today, CAAF handed down an opinion in U.S. v. Simmons, No. 03-0369. The case involves a assault & battery (Art. 128, 10 USC 928) and conduct unbecoming an officer (Art. 133, 10 USC 933) conviction stemming from an apparently homosexual live-in relationship between the convicted officer and an enlisted soldier, culminating in a knock-down fight. As to Art. 133, the decision is 4-1 to affirm (5-0 perhaps?); as to Art. 128, the decision is 3-2 to reverse.

Judge Erdmann writes again for the majority. The issue in contention is that, after 1LT Simmons was arrested for the assault against "PFC W", a Killeen Police Department detective found a manila envelope in a medicine cabinet containing an apparent homosexual love letter in Simmons' handwriting. The trial judge held that the letter was admissible. The Army Court of Criminal Appeals held that, although the seizure of the letter violated Simmons' 4th Amendment rights, such a legal error was harmless, and affirmed both convictions.

The CAAF majority found that, using the Chapman test (where the government must prove beyond a reasonable doubt that the illegally seized evidence did not contribute to a finding of guilty), that the error was harmless as to the fraternization charge, but was prejudicial to the assault charge. As to fraternization, J. Erdmann held that even though suppressing the letter suppresses all evidence of a homosexual relationship, there was still overwhelming evidence that an improper relationship between officer and enlistedman existed. As to assault, the Court found that the only unambiguous evidence pointing to a lack of self-defense justification was the letter pointing to the homosexual relationship. All other witnesses either did not clearly witness the assault, or claimed that PFC W had in some way provoked it. Since the letter was the only evidence present, the government did not meet its burden of proving harmlessness beyond a reasonable doubt.

Judge Baker concurred with the affirmance of conduct unbecoming, but dissented with the reversal of the assault conviction. His opinion rests on an apparent ambiguity in harmless error analysis that has been developing in recent Supreme Court opinions. Chapman v. California, 386 U.S. 18, 24 (1967), is the landmark case in the field, and contains language that a reasonable doubt of a legal error "contibuting" to a guilty verdict is all that is necessary for reversal. However, in a more recent case, Neder v. United States, 527 U.S. 1 (1999), the Court held that if the Government's case is very strong, this may prove beyond a reasonable doubt that the "impact" of the tainted evidence is negligible, even if such evidence may theoretically "contribute" to a guilty verdict. Judge Baker, while agreeing that the illegally seized letter could theoretically "contribute" to a guilty verdict, found that the overwhelming evidence in the case passed the Neder "impact" test.

When one compares the Neder and Chapman cases, it appears that the difference in language between "impact" and "contribution" seems to be a distinction without a difference. Still, this highlights the problems when the Supreme Court does not stick with its own terms of art.

In a departure from the rest of the court, Chief Judge Crawford dissented and held that the search was not illegal in the first place, and thus there was no legal error at all. This whole dissent seems puzzling. As the majority points out, while CAAF does have to power to raise assignments of error sua sponte, it only does so when it would cause "a manifest injustice." How would holding that the search was illegal cause a "manifest injustice" against the accused? Moreover, both the government and the accused assumed that the search was illegal for purposes of this appeal.

Today's Colorado Springs Gazette has a human interest story on Frank Spinner, one of the civilian lawyers defending the soldiers implicated in the Abu Ghraib scandal. Some past victories: acquittals in the Marine Italian Gondola Clipping, the Air Force Blackhawk Shootdown, as well as involvement in the Aberdeen Proving Ground Basic Training Rape scandal. An excellent piece on what a worldwide military defense practice is like.

Saturday's Chicago Tribune published an article quoting several high level military experts that the current investigation into the abuses at Abu Ghraib is flawed, and that an external panel is necessary. Interesting paragraph where Eugene Fidell, the "Johnnie Cochrane" of the military justice world (he got the Gitmo chaplain off on all counts), shoots down this proposed external panel before it ever materializes:

Eugene Fidell, a military law expert and president of the National Institute of Military Justice, said the panel would likely accomplish little.

"It's great to have former secretaries of defense, but we're dealing with military legal matters. I think you need substantial legal talent," he said.

BBC News reports,

The last person you might expect to find in North Korea is an American soldier, especially one who has chosen to stay there voluntarily.
But Charles Robert Jenkins has been in the isolated North since 1965. When offered a ticket to Tokyo by visiting Japanese Prime Minister Junichiro Koizumi last month, he refused.


No-one knows for sure how Mr Jenkins arrived in North Korea
He desperately wants to be reunited with his Japanese wife, who returned to her homeland in 2002 after Pyongyang admitted kidnapping her and several others in the 1970s.

But if he joined her, he would risk arrest by the US military, which accuses him of desertion.

CAAF: U.S. v. Allen, No. 03-0691. 5-0 opinion. Judge Effron held that a confession to child abuse given subsequent to a family court hearing where testimony was given under grant of state immunity was not a product of that hearing but rather the appealant's own willingness to confess, thus meeting the Kastigar test. QUERY: Although the facts of the case were compelling, did CAAF actually follow the Kastigar test and require that the government prove an independent source by a preponderance of the evidence? Or rather, did CAAF, in fact, require the appellant to make such a showing?

The New York Times: Liberian Ruler Can Be Tried, Court Rules, Madrid Bombing Warrant ("A Spanish high court judge has issued a . . . warrant for an Algerian whose fingerprint was foundon a platic bag . . ."), and Bosnia: Serbs Pledge [more] War Crimes Arrests.

The Washington Post: Dates on Prison Photos Show Two Phases of Abuse, Army Investigates Wider Iraq Abuses: Cases Include Deaths, Assaults Outside Prisons, ISTANBUL: "The Trial of 69 suspected members of a Turkish al Qaeda cell accused in a string of suicide bombings in Istanbul last November was postponed after the court ruled that it did not have the authority to hear the case," and FREETOWN, Sierra Leone -- "A U.N.-backed court ruled that ousted Liberian leader Charles Taylor is not immune from prosecution for war crimes. He is accused of backing Sierra Leone's rebels in a brutal civil war".

The Wall Street Journal: At Abu Gharib, Soldiers Faced Pressure to Produce Intelligence.

USA Today: Evidence of Beatings Abounds("The Pentagon says 37 prisoners have died in U.S. custody in Iraq or Afghanistan since December 2002. Here are some specifics on 15 deaths that have been classified as homicides...."), and 3rd [33%] of Detainees Who Died Were Assaulted, Shot, Strangled, Beaten, Certificates Show.