JAG CENTRAL

While court martials of general officers is rare here in America, it does happen in other countries. Word from the Daily Times (Pakistan) that Indian Major General Chaudry, the Chief of Procurement, is being tried in a court martial for receiving bribes.

The New York Times: Bosnian Serbs Admit Responsibility for the Massacre of 7,000, Army Policy Bars Interrogations by Private Contractors, U.S. Investigating G.I.'s Killing of Iraqi ("The incident unfolded because someone had told the military that the Iraqi man was bragging to his neighbors that he had killed a soldier of the First Cavalry Division, according to a written statement. Soldiers then raided the man's home in the neighborhood of Kamalaya in Baghdad. "It is reported that during the raid, the Iraqi attempted to grab the weapon of a U.S. soldier, who shot and killed the subject," the statement said, adding that "the details surrounding the shooting are under investigation.").

The Washington Post: General Granted Latitude At Prison ("Lt. Gen. Ricardo S. Sanchez, the senior U.S. military officer in Iraq, borrowed heavily from a list of high-pressure interrogation tactics used at the U.S. detention center in Guantanamo Bay, Cuba, and approved letting senior officials at a Baghdad jail use military dogs, temperature extremes, reversed sleep patterns, sensory deprivation, and diets of bread and water on detainees whenever they wished, according to newly obtained documents."), Bosnian Serbs Admit to Massacre, Marine Sergeant to Face Court-Martial in Abuse ("Sgt. Matthew K. Travis, of Paducah, Ky., is the highest-ranking of four Marines who have been charged in the April 13 incident. Two privates pleaded guilty last month to abusing the prisoner and were given prison sentences and bad-conduct discharges. A third private faces a court-martial in late July. At a military hearing Tuesday in western Iraq, Travis was scheduled to face a general court-martial from July 24 to 28. He was charged in May with conspiracy to commit cruelty and maltreatment, conspiracy to commit assault, dereliction of duty, attempted cruelty and maltreatment, making a false official statement, assault consummated by a battery, attempted assault consummated by a battery and disobeying a lawful order.").

The New York Times: Guantanamo: U.S. Charges an Australian With Fighting for Taliban. David Hicks, an Australian, will be tried in front of a military tribunal in August. I previously wrote about his lawyer, Marine Major Michael Mori, in my post with the highest traffic to date, "THIS MARINE HAS BALLS" (on my old blog).

USA Today: Document Warns Guantanamo Employees Not to Talk ("The document, obtained by USA TODAY, says that soldiers and interrogators are not required to give defense attorneys statements about the ''personal treatment of detainees'' or any ''failure to report actions of others.'' It also says that refusing to cooperate with defense attorneys ''will not impact your . . . career.''), Guantanamo Captive Faces Military Tribunal.

The Washington Post: Use of Dogs to Scare Prisoners Was Authorized, 3 Charges Placed Against [Guantanamo] Detainee, Bush: U.S. Expected to Follow Law On Prisoners (regarding the recent uncovered DOJ/DOD memo delineating ways to break the law during interrogation and avoid judicial review), Pentagon Reinforces Policy for Reporting Deaths of Detainees.

News from the Rocky Mountain News that the Air Force has dropped charges of rape against the first cadet brought to court martial in the Academy Rape Scandal. In return, the cadet has pleaded guilty to dereliction of duty and has agreed to pay a fine and leave the academy. The cadet will not have to repay the government for the cost of his education, and will escape any imprisonment. He also escaped a possible dishonorable discharge.

Today, the Army Court of Criminal Appeals handed down an opinion in U.S. v. Bello, No. ARMY20031294. The court unanimously affirmed the conviction and the sentence, and dismissed the assignment of error without even so much as explaining what the assignment was.

Monday, CAAF issued a decision reversing the Air Force order staying the Court Martial of Major Harry Schmidt, the pilot charged with dereliction of duty in the bombing of Canadian troops in Afghanistan. The issue was whether the trial could continue when the accused could not discuss certain classified materials with his own attorney, because his attorney did not possess a security clearance. Since the attorney now has an interim security clearance, the government's objection is now moot, and the trial can proceed. The decision was 5-0.

The Court included some interesting dicta in the decision, basically suggesting, without deciding, that anytime an accused has knowledge of classified information, he or she can share that informaiton with the defense attorney, regardless of whether that attorney possesses the proper clearance. That would be a truly revolutionary development if that dicta is implemented in future decisions. The Court even cites the Sixth Amendment when delivering this dicta, suggesting that the Court thinks such a requirement is constitutionally mandated.

You can find AFCCA's earlier order here. No word yet on when the trial will go forward.

The New York Times: Higher-Ranking Officer Is Sought to Lead the Abu Ghraib Inquiry.

The Washington Post: Detainees' Medical Files Shared, Guantanamo List Details Approved Interrogation Methods, Top Officer Seeks New Head of Iraq Inquiry.

The Wall Street Journal: Rumsfeld Approved Guantanamo Interrogation Methods, Suit Links Contractors to Prison Abuse.

ANALYSIS: While running the risk of preaching to the choir, today's NY Times article on Military Justice just begs for some corrections and balancing commentary (I'll be writing a similar editor to the editor today).

Commanders at every level serve not only as judge and jury, but as prosecutor too, deciding whether charges should be filed and what punishment best fits them.

That statement is only half correct: commanders do serve a prosecutorial function in referring which charges will be tried. However, they never serve as "judge and jury" over their own soldiers. A disinterested officer must serve in all summary and special (non-bad conduct discharge) cases, and a military judge (outside the commander's chain of command) plus a disinterested panel must serve in all general and special (bad conduct discharge) court martials. Sometimes, commanders may serve on court martial panels (our version of juries), but they can't be in the accused soldier's chain of command, and they are almost ALWAYS booted out on peremptory challenges or for cause during voir dire. Just like a defense attorney never wants a prosecutor to serve on a jury, a military defense attorney never wants a field-grade commander to serve on a panel. I've observed many, many trials and have never seen even a junior company commander make it past voir dire.

Also, the statement that commanders "decid[e]...what punishment best fits them" is misleading. In court martial trials, the convening authority can cut down the punishment from what the panel (jury) recommends, but can never add to it.

As a result, justice in the military ultimately depends almost entirely on the judgment of commanders. An offense that sends one soldier to Leavenworth after a public court-martial can end for another soldier in a quiet discharge or retirement, with the exact nature of his or her punishment protected by privacy laws.

The author obviously did not write this with neutrality, but disagreed with the implications of this statement, as the rest of the article tells us. There are several problems with this statement. First, there is no reason to believe that this problem is any different than what happens in the civilian justice system. Civilian district attorneys are even more susceptible to uneven treatment of cases because they are subject to the whims of the electoral process. Every case has the implication of bringing defeat at the polls if it is handed badly; one need only look to Gil Garcetti's resounding defeat after the OJ Simpson not guilty verdict for an example. If this is a problem in the military justice system, it is a problem in ALL justice systems.

Secondly, there is something inconsistent with the author's argument. The same liberal members of the legal academy and the media who decry the fact that the military justice system is too soft and inconsistent on soldiers are the same people who decry that federal sentencing minimums are too harsh and uncaring on civilian defendants and give judges too little discretion. How can one argue for discretion with civilian judges for criminals who do nothing to protect our freedom, and then take away that discretion for commanders who deal with the misdeeds of those who put their lives on the line every day for this country?

The author does make some very good points: mainly the ones dealing with the fact that general officers almost never get sent to trial, but rather are allowed to retire or otherwise leave the service without a conviction. That is an issue that we as military justice professionals will need to grapple with in the future. However, the media and the legal academy should be quick not to uniformly malign a system of justice that Supreme Court Justice Ruth Bader Ginsberg, hardly the most conservative member of the Court, described as "a system of military justice notably more sensitive to due process concerns than the one prevailing through most of our country's history." Weiss v. United States, 510 U.S. 163, 195 (1994) (Ginsburg, J., concurring).

The New York Times: Wide Gaps Seen In U.S. Inquiries on Prison Abuse (see highlights here), Trouble in Private U.S. Jails Preceded Job Fixing Iraq's. And in the Week in Review, a story we all will be reacting to in the coming days: Why Military Justice Can Seem Unjust. More on this story in the next post.

The Washington Post: Wars Put Strain On National Guard, a CORRECTION on June 1st's Abu Ghraib story, and Rumsfeld Shows Concern on Terror War.