JAG CENTRAL

HUGE day for military law related stories. A lot to digest.
The New York Times: Contractor Indicted in Afghan Detainee's Beating ("A federal grand jury in North Carolina on Thursday indicted a contractor employed by the Central Intelligence Agency who is accused of kicking and beating a detainee over two days at a military base in Afghanistan last June. The detainee died the next day. Prosecutors said the Afghan detainee had voluntarily surrendered at the front gate of the Asadabad base in Afghanistan and was suspected of involvement in rocket attacks on the base. The indictment is the first against any civilian as part of the prisoner abuse scandal that now involves six investigations of military and civilian personnel in Afghanistan and Iraq. At a news conference in Washington, Attorney General John Ashcroft announced that David A. Passaro, 38, a resident of Lillington, N.C., had been indicted in Raleigh on two counts of assault with a dangerous weapon and two counts of assault resulting in serious bodily injury. If convicted, Mr. Passaro faces up to 40 years in prison."), Rumsfeld Admits He Told Jailers to Keep Detainees in Iraq Out of Red Cross View (Senior Pentagon officials acknowledged Thursday that a suspected Iraqi terrorist who was held in a military jail - but kept off prison rosters - should have been registered more quickly with the International Committee of the Red Cross. But the officials said the fact that the secret detention of the captive, who was jailed near the Baghdad airport without records, stretched for seven months was probably attributable to a bureaucratic breakdown. Defense Secretary Donald H. Rumsfeld said Thursday at a Pentagon news briefing that he ordered the detainee held without a registration number at the written request of George J. Tenet, the director of central intelligence."), Annan Rebukes U.S. for Move to Give Its Troops Immunity ("Secretary General Kofi Annan harshly criticized the United States on Thursday for seeking immunity for its peacekeeping troops from the International Criminal Court. He said the Security Council should resist the American move, which he said was "of dubious judicial value" and particularly deplorable this year "given the prisoner abuse in Iraq."), Milosevic Requests Subpoena of Western Leaders in Criminal Trial ("Slobodan Milosevic, the former Yugoslav president, requested Thursday that former President Bill Clinton, Chancellor Gerhard Schröder of Germany and Prime Minister Tony Blair of Britain testify at his war crimes trial."), and Senate Votes to Add 20,000 Soldiers to Army.

USA Today: Dismissal Denied In Espionage Case: Air Force Judge Finds "Mistakes" But Not Malice (an update to the "bungling" of the case I told you about here), and CIA Contractor Charged In Prisoner's Death.

The Washington Post: Civilian Charged In Beating of Afghan Detainee, Rumsfeld Authorized Secret Detention of Prisoner, Annan Opposes Exempting U.S. From [International Criminal] Court, and U.N. Rwanda Tribunal Conviction ("A U.N. tribunal trying the alleged leaders of Rwanda's 1994 genocide convicted a former Rwandan mayor for his role in the slaughter, sentencing him to 30 years in prison. Sylvestre Gacumbitsi, 57, was convicted by the International Criminal Tribunal for Rwanda of genocide, extermination and rape for ordering the killings of minority Tutsis in the southeastern commune of Rusumo, where he was mayor. 'Under Gacumbitsi's instructions the killings took place. . . . He also facilitated the transport of attackers and weapons,' presiding Judge Andresia Vaz said as the verdict was delivered.").

ABA Publishing announces this guide to valuing, dividing and distributing military retirement benefits upon divorce:

From the American Bar Association Section of Family Law:
"Military Retirement Benefits in Divorce: A Lawyer's Guide to Valuation and
Distribution"
By Marshal S. Willick

This guide helps you identify and evaluate actual or potential retirement
benefits when handling a client's divorce. Because these benefits are often
the most valuable assets in military families where frequent moves make it
difficult to build equity in a home, knowing what the retirement benefits
are and how to accurately value and divide them will help protect your
military client or non-military spouse from potentially enormous losses.

"Military Retirement Benefits in Divorce" by Marshal S. Willick is a unique
and completely practical guide to an especially complicated aspect of family
law practice. This book will help you:
-- Value retirement plans and other service benefits
-- Obtain information and payment from military pay centers
-- Manage multi-state and international litigation
-- Handle survivorship benefits
-- Deal with jurisdiction traps
-- Obtain direct payment of benefits
-- Appeal adverse decisions

Giving you quick access to complicated and often hard-to-locate information,
this book provides a clear overview of workings of the military retirement
system. It covers all key legal decisions and details important procedural
limitations and substantive issues, including critical jurisdiction factors,
the ten-year limitation, relevant tax ramifications, bankruptcy court
holdings dealing with military retirement, and problems related to early
retirement options.

"Military Retirement Benefits in Divorce" is written by an experienced
litigator and provides practical tips on handling these cases in court.
Among the dozens of tools available in the book are:
-- Sample decrees, forms, and language
-- A state-by-state review of military benefits
-- "Hands-on" practice tips
-- Checklist for handling military retirement cases
-- Pay charts for active and retired service members
-- Advice on drafting paperwork directed to the military for enforcement
-- Glossary of terms, abbreviations, and acronyms
-- Key statutes and regulations
-- Contact source listings

1998, 392 pages + addendum, 6 x 9, paperback, ISBN: 1-57073-572-7

Price: $89.95 for ABA Section of Family Law members / $99.95 for nonmembers.

Today, the Army Court of Criminal Appeals released this unpublished, memorandum opinion in U.S. v. Ireland, No. ARMY 20040028. In a 2 page opinion, the court affirms the conviction and a reassessed sentence.

From the AP:

WASHINGTON (AP) — A contractor working for the CIA has been indicted by a federal grand jury on charges stemming from the abuse of a prisoner in Afghanistan, the first civilian to face criminal charges in the case, officials said Thursday.
Two federal law enforcement officials, speaking on condition of anonymity, said the indictment was returned by a grand jury in Raleigh, N.C. They identified the defendant as David Passaro and said the case involved the death of a prisoner in U.S. custody.

The prisoner who died in June 2003, identified as Abdul Wali, was being held at a U.S. detention facility in Asadabad, Afghanistan.

The exact nature of the charges could not be immediately be determined. The officials said Passaro was arrested Thursday morning in Fayetteville, N.C., and would appear in federal court later in the day in Raleigh, N.C.

Attorney General John Ashcroft scheduled an afternoon news conference in Washington to provide further details. The case was among three referred by the CIA inspector general to the Justice Department for prosecution.

A CIA spokesman declined to comment on the case.

The charges come amid multiple ongoing investigations by the Defense Department and other agencies into allegations of prisoner abuse at Iraq's Abu Ghraib prison. No civilians have been charged yet in those investigations. Seven soldiers face military charges in that scandal.

Democratic lawmakers and other critics say the Bush administration set the legal stage for the abuse by circulating a series of memos that appear to justify use of torture and argue that the president's wartime powers trump laws meant to protect prisoners.

President Bush and Ashcroft have repeatedly insisted that no orders were given to the military or CIA that would violate U.S. antitorture laws or the protections of the Geneva Conventions.

There have been three confirmed deaths of detainees at prisons in Afghanistan, where allegations of abuse include reports from former prisoners of hoodings, beatings and sexual abuse.

Some 2,000 prisoners have been held at the jails since U.S. troops entered Afghanistan in late 2001 to topple the Taliban regime for granting sanctuary to Osama bin Laden and his al-Qaeda network, according to the military.

The New York Times: Rumsfeld Issued an Order to Hide Detainee in Iraq ("Defense Secretary Donald H. Rumsfeld, acting at the request of George J. Tenet, the director of central intelligence, ordered military officials in Iraq last November to hold a man suspected of being a senior Iraqi terrorist at a high-level detention center there but not list him on the prison's rolls, senior Pentagon and intelligence officials said Wednesday. This prisoner and other "ghost detainees" were hidden largely to prevent the International Committee of the Red Cross from monitoring their treatment, and to avoid disclosing their location to an enemy, officials said."), Genocide Case Against Milosevic Upheld ("The United Nations war crimes tribunal dismissed a mid-trial motion to acquit Slobodan Milosevic on genocide charges, handing the former Yugoslav president a setback three weeks before he is to begin his defense. Three lawyers appointed by the court to ensure fairness had argued that the prosecution failed to provide sufficient evidence to support the genocide charges. The tribunal released its decision one day before it reconvenes for a procedural hearing. The trial, which has been repeatedly interrupted because of Mr. Milosevic's health since it began in February 2002, has been in recess since February, when the prosecution rested its case. Mr. Milosevic, who is representing himself on 66 charges, is to begin presenting his case on July 5.").

USA Today: Rush To Hand Saddam Over To Iraqis Helps No One (OP-ED).

The Washington Post: Prison Guards Dispirited by Scandal: MPs in Iraq Describe Anger Over Abuse By Predecessors, Senate Backs Order on Prison Criteria ("The Senate voted without dissent yesterday to require the Bush administration to issue guidelines aimed at ensuring humane treatment of prisoners at U.S. military facilities and to report any violations promptly to Congress. But, as it plunged into the controversy over abuse of detainees at Iraq's Abu Ghraib prison and whether interrogation methods were sanctioned by U.S. officials, the Senate balked at a Democratic proposal to bar interrogation by private contractors, who have been accused of involvement in the Abu Ghraib scandal. It also rejected another Democratic proposal to make it a crime, punishable by as many as 20 years in prison and substantial fines, to engage in war profiteering. Instead, the Senate approved a Republican alternative extending two anti-fraud criminal statutes to cover overseas business operations."), Detainee Reportedly Was Lost in System, U.S. Sets Conditions for Detainee Transfer ("The United States will turn over detainees to Iraqi authorities as soon after June 30 as U.S. officials determine that they can be held safely and in compliance with international human rights norms, U.S. and Iraqi officials said Wednesday.).

Things are not looking good for the second Guantanamo espionage court martial trial, even after the Army mishandled the first one against Chaplain (CPT) Yee so badly that he was eventually honorably discharged without so much as a letter of reprimand. The bad news comes from this story in the Vallejo Times-Herald, which has been covering the story from nearby Travis AFB, CA:

Charging everything from investigatory incompetence to prosecutorial misconduct, defense attorneys for a young Travis Air Force Base enlisted man facing espionage charges hammered the prosecution Tuesday during six hours of pretrial motions.

Senior Airman Ahmad I. Al Halabi, 25, still faces 17 charges ranging from espionage and disobeying orders to improperly transporting classified information, photographing facilities in and around Guantanamo Bay, Cuba, unauthorized possession of secret documents and credit card fraud.

Appearing before Military Trial Judge Col. Barbara Goodwin Brand at Travis on Tuesday, civilian defense attorney Donald G. Rehkopf Jr. argued for dismissal of the case on the grounds that Air Force Office of Special Investigations personnel had improperly handled evidence in the case.

Rehkopf further charged that prosecutors intentionally had withheld exculpatory evidence from the defense, including known translation errors in a letter used to prove supposedly illicit ties between Al Halabi and the Syrian government and a spurious interpretation of a common Muslim symbol.

"The government did not have a clue as to what was going on," Rehkopf charged.

One problem was that an interpreter admittedly misidentified a Muslim character that the accused wrote:

The letter issue surfaced when former U.S. Air Force staff sergeant and translator Suzan Sultan told prosecutors that there appeared to be a reference to the country of Qatar in a letter to Al Halabi from the Syrian government.

This apparently led to the theory that Al Halabi's planned trip to Syria to marry his fiance last year was a cover for a secret trip to Qatar.

Testifying Tuesday, Sultan said she later realized she'd make a mistake and that "qatar" could also mean a generic "homeland" in Arabic.

Sultan said she told military prosecutor Capt. Dennis Kaw about the errors, but he said to "forget about it" without telling defense attorneys.

But wait, there's more...the hits just keep on coming in this trial. Shoddy investigative work by investigators accused of sexual misconduct enter the mix:

Rehkopf further charged that OSI investigators had botched a search of a package in Al Halabi's mail, drinking beer and opening the parcel, handling its contents without gloves, then closing and reopening the box so they could properly document their find.

The prosecution took yet another blow Tuesday when it was revealed that one of the principal OSI investigators on the case, Air Force Tech. Sgt. Marc A. Palmosina, had been named in a complaint charging him with multiple counts of child molestation and failing to properly safeguard classified documents.

Responding to defense charges, military prosecutor Lt. Cmdr. (Navy) Robert Crow said there was no effort to cover up evidence.

Maybe...but the convergence of sexual misconduct, mishandling of evidence, and mistranslations definitely puts the government's theory of the case in doubt. I think it's absolutely ironic that both the accused and the agent investigating the accused are both charged with mishandling classified information. Prediction: look for the Article 32 hearing officer to recommend that the accused stand trial, since the standard to have charges go forward at this stage is so low. However, the government faces an uphill battle at trial.

The New York Times: Iraq Seeks Custody of Hussein; Bush Has Security Concerns, Auditors Testify About Waste In Iraq Contracts ("Multibillion-dollar Pentagon contracts to support military operations and reconstruction in Iraq have been plagued by "inadequate planning and inadequate oversight," the government's chief budget investigator told Congress on Tuesday, citing management deficiencies that have fostered waste and cost overruns."), Sierra Leone War Crimes Court Hears First Witness ("His identity concealed behind a walled witness stand, a sobbing 52-year-old watch repairman opened testimony in the United Nations-backed Special Court for Sierra Leone by describing how he was tortured and his brother beheaded during a raid by the notorious pro-government militia called the Kamajors. In his opening statement, Sam Hinga Norman, above, a former government minister who headed the Kamajors during the country's decade-long civil war, said the court had no jurisdiction over him. He and two other militia leaders are the court's first defendants.").

USA Today: U.S. Unlikely To Hand Over Saddam Soon: Bush Concerned About Iraqi Security, Army Chief Gives Sobering Review of War On Terror: General Says Fight Will Last A Lifetime.

The Washington Post: U.S. May Cede Legal Custody of Hussein ("The United States intends to transfer legal custody of former president Saddam Hussein to Iraq's interim government if asked by the country's new prime minister, the administrator of the U.S. occupation, L. Paul Bremer, said Tuesday. But Bremer indicated that the U.S. military would continue to retain physical custody of Hussein until the Iraqi government has an appropriate detention facility to hold him."), Prison Tactics A Longtime Dilemma For Israel: Nation Faced Similar Problems as Abu Ghraib, Top Iraqi Official Objects To Treatment as POW.

This week, the Air Force Court of Criminal Appeals released seven unpublished decisions decided in May on their web site. In 6 cases, the sentence and conviction were affirmed, although often the sentence was reassessed. In one, the record of trial was remanded to the Judge Advocate General for further action.

The New York Times: 4 Britons Charged With Abuse Will Face Trial in Military Court, U.S. Is Urged to Charge Hussein Soon ("If the United States government does not bring charges against Saddam Hussein relatively soon it will be technically required, because of his prisoner-of-war status, to release him after the restoration of limited sovereignty, officials with human rights and aid groups said Monday."), Abuse Panel Interviews 6 ("A committee appointed by Defense Secretary Donald H. Rumsfeld to investigate prisoner abuse interviewed more than a half dozen witnesses on Monday, including the Pentagon's top civilian intelligence official, according to an official familiar with the inquiry. The panel did not disclose names of those interviewed Monday, but an official said members met with Stephen A. Cambone, the Pentagon's intelligence chief; Maj. Gen. Donald Ryder, the Army's provost marshal general; Maj. Gen. Geoffrey Miller, who commands American-run prisons in Iraq; and three others."), Boeing Wins Navy Contract to Replace Sub Chasers (PREDICTION: Look for the same charges of contract misconduct on this one by the Democrats and the McCainites as happened on the Air Refueling Lease scandal).

USA Today: 4 British Soldiers Face Trials In Abuse, U.S. Missed Need for Prison Personnel in War Plans: Shortage haunts military months later at Abu Ghraib.

The Washington Post: Iraq Contractors' Testimony Debated: Waxman and Davis Spar Over Allegations of Mismanagement by Halliburton, Family Seeks Justice in Case of Iraqi Slain by U.S. Troops, British Troops Face Abuse Charges, Soldier's Injuries Spur Criminal Probe ("The Army has opened a criminal investigation into injuries suffered by a soldier who was posing as an uncooperative detainee during training with military police at Guantanamo Bay, the soldier's attorney said Monday. Sean Baker, who was a specialist in a military police unit, suffers from seizures he blames on a head injury from the training session in January 2003 at the base in Cuba. He received a medical discharge in April and returned home to Georgetown in central Kentucky."), and Iraqi: U.S. to Transfer Hussein.

From the AP, news that an Army court in Baghdad will conduct Article 32 (10 U.S.C. 832) hearings for three more soldiers charged in the Abu Ghraib prison abuse scandal. The hearings will be held June 21-23. PFC Lynddie England, probably the most infamous of the soldiers depicted in the pictures, will face an Article 32 hearing next week as well at Fort Bragg, NC. An Article 32 hearing is a hybrid between a grand jury investigation and a preliminary hearing. Soldiers have greater rights than at similar civilian hearings, including the right to be present, the right to have assigned counsel regardless of their ability to pay, and the right to present evidence and call witnesses in their defense.

From BBC News, word that four British soldiers will face courts martial in relation to allegations of abuse of Iraqi prisoners. Lord Goldsmith, the British Attorney General, made the announcement today to the House of Lords. Amazingly, the abuses were exposed after a British civilian photomat processor caught the pictures of abuse while developing film from one of the soldiers. NOTE: Ever since the European Court of Human Rights declared the traditional-style British military justice system to be in violation of the European Charter of Human Rights, UK has instituted a civilian-style court-martial system.

In two cases that were posted to the website Thursday after I had already reviewed it, the Court of Appeals for the Armed Forces (CAAF) handed down two related cases dealing with Child Pornography and the relationship of Article 134, UCMJ (10 U.S.C. 934) to Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). In U.S. v. Irvin, No. 03-0224, the Court held 5-0 that Article 134 does not unfairly punish First Amendment protected conduct, and that a judge's instructions during the guilty plea providence hearing that were based on Article 134 did not cause the guilty plea to be improvident, Ashcroft notwithstanding. In U.S. v. Mason, No. 02-0849, the Court held 4-1 that the accused's guilty plea to Article 134 in a child pornography case was provident as to "Clause 1" (prejudicial to the good order and discipline of the service) and "Clause 2" (of a nature to bring discredit upon the armed forces), but improvident as to "Clause 3" (violative of civilian federal law). However, the court's only remedial action was to amend the specification, as they affirmed both the conviction and the sentence. Chief Judge Crawford issued a partial dissent from which she argued that the plea was provident to clause 3, Ashcroft notwithstanding, because the accused waived the issue at trial. This is consistent with her previous jurisprudence and dissents on the providence of guilty pleas.

The New York Times: Unit Says It Gave Earlier Warning of Abuse in Iraq ("Beginning in November, a small unit of interrogators at Abu Ghraib prison began reporting allegations of prisoner abuse, including the beatings of five blindfolded Iraqi generals, in internal documents sent to senior officers, according to interviews with military personnel who worked in the prison. The disclosure of the documents raises new questions about whether senior officers in Iraq were alerted about serious abuses at the prison before January. Top military officials have said they only learned about abuses then, after a soldier came forward with photographs of the abuse."), Recruiters Try New Tactics to Sell Wartime Army, White House Officials and Cheney Aide Approved Halliburton Contract in Iraq, Pentagon Says.

USA Today: Lawyer Wants Rumsfeld, Others to Testify in Prison-Abuse Case (More on this in the next post).

The Washington Post: Contractor Immunity a Divisive Issue ("In an early test of its imminent sovereignty, Iraq's new government has been resisting a U.S. demand that thousands of foreign contractors here be granted immunity from Iraqi law, in the same way as U.S. military forces are now immune, according to Iraqi sources. The U.S. proposal, although not widely known, has touched a nerve with some nationalist-minded Iraqis already chafing under the 14-month-old U.S.-led occupation. If accepted by Prime Minister Ayad Allawi, it would put the highly visible U.S. foreign contractors into a special legal category, not subject to military justice and beyond the reach of Iraq's justice system.").

The New York Times: Commander Swift Objects, a human interest piece on one of the lawyers representing David Hicks, the Australian facing the first military tribunal at Guantanamo. I told you about another one of his lawyers, Major Michael Mori, in this classic post, THIS MARINE HAS BALLS.

The Washington Post: A Look Behind the 'Wire' At Guantanamo, Iraq Tactics Have Long History With U.S. Interrogators.