JAG CENTRAL

The New York Times: Briton Condemns Proposed U.S. Trials ("Britain's top legal officer on Friday condemned as "unacceptable" military tribunals proposed by the United States for Guantánamo Bay prisoners. The comments by the attorney general, Lord Goldsmith, represented one of the bluntest statements yet of London's disquiet over America's handling of terrorism suspects at the American base in Cuba. "While we must be flexible and be prepared to countenance some limitation of fundamental rights if properly justified and proportionate, there are certain principles on which there can be no compromise,"the prepared text of Lord Goldsmith's speech said. "Fair trial is one of those."), C.I.A. Contractor to Be Held Till Trial ("A C.I.A. contractor accused of beating an Afghan detainee who later died will be held without bond until his trial, a federal magistrate ruled Friday. The magistrate, William Webb, linked a 1990 assault by the contractor, David A. Passaro, when he was a police officer in Hartford, Conn., and the beating of the detainee, Abdul Wali. Mr. Passaro, of Lillington, N.C., is charged with four counts of assault and assault with a dangerous weapon, a large flashlight.").

The Washington Post: More GIs at Prison May Face Charges; Abu Ghraib Investigators Examine Intelligence Unit ("Army investigators continue to sift through photographs and evidence of alleged abuse of detainees at Abu Ghraib prison to try to identify more soldiers who were involved, possibly including members of military intelligence, and sources close to the investigation said more soldiers would likely be charged. Investigators are looking closely at the actions of three Army junior reservists with the 325th Military Intelligence Battalion -- Spec. Roman Krol, Spec. Israel Rivera and Spec. Armin J. Cruz, the sources said. All seven soldiers charged to date were members of a military police unit. Investigators have identified the three military intelligence soldiers in a photograph taken in late October in a hallway in a cellblock on Tier 1 at the prison, where most of the abuse is alleged to have occurred, according to the sources. The picture shows three shackled detainees naked and splayed on the floor, while a military police officer leans over them and the three intelligence soldiers and others stand nearby."), Former CIA Contractor to Be Jailed Until Trial in Afghan Prisoner Assault, U.N. Investigators Appeal to U.S. ("A group of 31 U.N. human rights investigators issued a rare joint appeal to the United States to give them access to detention centers in Iraq, Afghanistan and Guantanamo Bay, Cuba. The request came at the end of a week-long meeting in Geneva on the impact of the U.S.-led counterterrorism campaign on human rights. It signaled mounting frustration over the Bush administration's refusal to open the doors of its detention centers to U.N. human rights monitors. The statement asks that four specialists -- trained to check for evidence of torture, arbitrary detention, medical and physical abuse, and judicial independence -- be invited to Iraq, Afghanistan and Guantanamo Bay "at the earliest possible date" to determine whether the human rights of prisoners are "properly upheld." They would present their findings to the U.N. Commission on Human Rights. "The way prisoners are treated in Iraq, Afghanistan and Guantanamo is totally contrary to international law and humanitarian law," said Doudou Diene of Senegal, the United Nations' special rapporteur for racism and discrimination. We want to "send a team of special rapporteurs to go and visit those places.").

QUESTION: When a servicemember is convicted pursuant to a guilty plea, sentenced to confinement, and has his adjudged forfeitures waived pursuant to a plea agreement and sent to his wife for six months, in clear violation of Army regulations (which states forfeitures can only be waived when confinement or discharge is waived as well), and DFAS doesn't pay up as a result, is the guilty plea provident? The unanimous opinion from the U.S. Court of Appeals for the Armed Forces: Maybe, Maybe Not. Yesterday, in U.S. v. Lundy, No. 03-0620, CAAF remanded the case to the Army Court of Criminal Appeals to determine if remedial action can cure the government's breach of the plea agreement, or if the plea must be thrown out.

This case is similar to U.S. v. Perron, 58 M.J. 78 (C.A.A.F. 2003) in that it also involved a plea agreement with waived forfeitures that were supposed to go to a spouse, but could not due to pay regulations. However, the outcomes were slightly different; in Perron, the appellant was unwilling to accept a later payment as specific performance to cure the breach, and the Perron court held an appellant can not be made to accept a curative, alternative action. Since none was offered in this case, CAAF decided it must be remanded for further action. Both the majority and the concurring opinion by Judge Crawford seem to intimate that specific performance may be enough in this case to cure the breach of the plea agreement.

In yet another Abu Ghraib court martial, this piece from Britain's ITV:

A female soldier shown in some of the abuse photographs at Baghdad's Abu Ghraib jail is due to hear if she will face a court martial.

Specialist Sabrina Harman was photographed grinning beside a dead prisoner in one of the images that sparked worldwide outrage over abuse by US soldiers at the prison.

She is one of seven US soldiers charged in connection with the atrocities. Specialist Jeremy Sivits, has already been sentenced to a year's imprisonment.

Harman is charged with conspiracy to maltreat subordinates, dereliction of duty, maltreating subordinates, making a false official statement, assault, desecration of a human corpse and an indecent act.

Specialist Israel Rivera, a military intelligence analyst, also testified that in another incident, Harman shouted "homosexual slurs" at three naked detainees, and ordered them to crawl along the ground.

"I knew...this was something not condoned, something illegal," he said, adding the detainees were "very, very frightened" and "screaming, shouting, crying, begging".

The New York Times: Soldiers to Take Lie Test in Colombia Deaths ("Soldiers who shot dead a Colombian family of five, including a 6-month-old baby, will take lie-detector tests to determine whether they really thought they were firing at rebels, the government said Thursday. The polygraph tests, unprecedented in a Colombian military investigation, follow a report released Tuesday showing that at least one of the five slain peasants was shot execution-style."), Legal Scholars Criticize Memos on Torture ("Legal scholars asked to assess the recently released Justice Department memorandums concerning torture all but unanimously agreed that the quality of the legal work in them is poor. It is unsurprising that law professors, who are generally liberal, should differ with the conclusions reached in the memos, which take a broad view of presidential power. But their attack on the professional quality of the memos was unusually sharp. Harold Hongju Koh, dean of the Yale Law School, called the memorandums "embarrassing" and "abominable." Martin Flaherty, an expert in international human rights law at Fordham University, said, "The scholarship is very clever and original but also extreme, one-sided and poorly supported by the legal authority relied on." Cass Sunstein, a law professor at the University of Chicago, said: "It's egregiously bad. It's very low level, it's very weak, embarrassingly weak, just short of reckless."), Testimony Ties Key Officer to Cover-Up ("The company commander of the unit charged with abusing prisoners at Abu Ghraib testified Thursday that the top military intelligence officer at the prison was in the cellblock the night a prisoner died during interrogation. His testimony suggested the officer, Col. Thomas M. Pappas, was aware of efforts to conceal the death."), U.S. Seeks a Deal to Shield Americans From Iraq's Courts ("The Bush administration is negotiating an agreement with Iraqi leaders to continue shielding Americans from criminal prosecution by Iraqi courts, but without the the new government's formal adoption of the arrangement, administration officials said Thursday. The officials said the arrangement, which is expected to be agreed upon in the next few days, just before the United States officially cedes power to the Iraqis at the end of June, was intended to immunize Americans from prosecution without forcing Iraqi leaders to suffer any adverse political consequences."), Traditional Courts for Genocide Cases ("President Paul Kagame officially inaugurated a traditional court system that has been tested for three years to speed up prosecution of those who carried out the genocide of 1994. The so-called gacaca courts are faced with trying some of the 100,000 defendants charged in the massacre of an estimated 800,000 Tutsi and moderate Hutu."), and No Court Martial in Mistaken Bombing (which I told you about here.

The Washington Post: Charges Against Pilot in Bombing Dismissed, MP Captain Tells of Efforts to Hide Details of Detainee's Death, Abuse of Ukrainians at Abu Ghraib Alleged ("Two Ukrainian merchant seamen, who ended up in Iraq's Abu Ghraib prison after they were detained in August, were kept naked and hooded for hours during their 10-month imprisonment, a top human rights official said Thursday."), and London: Tribunals Unacceptable ("The U.S. plan to use a military tribunal to prosecute terrorism suspects imprisoned at Guantanamo Bay, Cuba, is unacceptable because it would not provide a fair trial by international standards, Britain's attorney general said. "There are certain principles on which there can be no compromise," Peter Goldsmith said in copy of a speech he planned to make to the International Criminal Law Association on Friday. "Fair trial is one of those, which is the reason we in the UK have been unable to accept that the U.S. military tribunals proposed for those detained at Guantanamo Bay offer sufficient guarantees of a fair trial in accordance with international standards.").

USA Today: Charges Considered in Death of Iraqi General ("The Army is building a case against two of its officers and two enlisted personnel in the fatal interrogation of an Iraqi general who was suffocated last November while in custody in Iraq, an Army official said Thursday. The official, who has direct knowledge of investigations into prisoner abuses and deaths, said investigators have completed their preliminary work in the case but have not yet sent their report to the base commander. The commander decides whether to proceed with the case.").

The U.S. Court of Appeals for the Federal Circuit issued two opinions regarding the current ban on federal funding for abortions by military health care providers. In Britell v. U.S., No. 03-1282, the court upheld the constitutionality of the abortion funding ban. This was a really tough case because the Air National Guard family member was carrying a fetus with anencephaly, a neural tube defect in which gelatinous tissue grows in place of a brain, making it impossible for a fetus who happens to be carried to term to gain consciousness. The court held that the funding ban passed rational-basis review. In the other opinion, Doe v. U.S., No. 03-1350, the court punted jurisdiction over the exact same issue and fact pattern to the U.S. Court of Appeals for the Ninth Circuit. Given the court's previous rulings on similar issues in the abortion arena, this may be the beginning of a circuit split on the military abortion funding ban for fetuses with severe genetic defects. The Federal Circuit punted the case because it only has jurisdiction for appeals asking for money damages; while in Britell, the appellant was asking for money compensation for an abortion she already payed for, the appelant in Doe was asking for an injunctive court order to force TRICARE to pay the hospital, even though she had not already payed out of pocket.

Howard Bashman pointed me to the opinions and has a post on the decisions here.

Breaking News from the AP:

The Air Force has decided not to court-martial a U.S. fighter pilot who mistakenly dropped a 500-pound, laser-guided bomb that killed four Canadians in Afghanistan in 2002.

Maj. Harry Schmidt, 37, will face nonjudicial punishment and four dereliction-of-duty charges against him will be dismissed in court, the Air Force said Thursday.

He could face punishment including 30 days confinement or loss of one month's pay, about $5,600, Air Force spokeswoman Col. Alvina Mitchell said.

Schmidt originally was charged with manslaughter and aggravated assault and faced up to 64 years in prison. Military officials recommended against a court-martial on those charges last June, saying Schmidt could face nonjudicial punishment instead.

Schmidt turned down the offer, saying he wanted to clear his name in a court-martial instead. He was ordered to be tried on the lesser charge of dereliction of duty.

But the agreement announced Thursday meant the dereliction charges will be pursued in a lesser, nonjudicial forum, beginning July 1.

ANALYSIS: It's notable that Article 15 (10 USC 815) non-judicial punishment was originally offered to Major Schmidt in lieu of court martial, but Schmidt demanded the court-martial to clear his name, as is his right under Article 15. Regular readers of my old blog, LAW FROM THE CENTER, know that the Major Schmidt trial was a topic of high interest in these parts. Here's a listing of my previous posts on this issue:

HEARING IN FRIENDLY-FIRE COURT MARTIAL POSTPONED (3/1/04)
FRATRICIDE BECOMES POLITICIZED - AGAIN (2/29/04)
DATE SET ON FRIENDLY FIRE COURT MARTIAL (1/27/04)
UPDATE ON AIR FORCE FRIENDLY FIRE COURT MARTIAL (1/24/04)

The New York Times: Author of '02 Memo on Toruture: 'Gentle' Soul for a Harsh Topic ("The Bush administration is distancing itself from a memorandum prepared two years ago by a government lawyer asserting that the president's power to use torture to extract information from suspected terrorists is almost unlimited. Before the recent controversy concerning his work, however, some of the officials who received the memorandum worked diligently to elevate the lawyer, Jay S. Bybee, to the federal bench. Nominated by President Bush in 2002 and confirmed by the Senate last year, he now sits on the United States Court of Appeals for the Ninth Circuit. Former colleagues say the judge, whose chambers are in Las Vegas, is a serious, soft-spoken, reflective man. They say it is difficult to reconcile his discussion of torture in clinical, dispassionate detail with his background. A former legal academic, Judge Bybee told Meridian, a Mormon magazine, last year that he hoped to be remembered for his probity. "I would like my headstone to read, `He always tried to do the right thing,' " Judge Bybee said."), Review of Guantanamo ("Navy Secretary Gordon R. England is to serve as the senior civilian official with final authority over the status of hundreds of detainees at the American military prison at Guantánamo Bay, Cuba, the Pentagon said Wednesday. Mr. England will oversee a review of the status of most of the prisoners. The exceptions are those prisoners who President Bush determines should face military tribunals. Three have been charged with terrorism-related offenses."), Immunity Bid Fails ("The United States, facing opposition on the United Nations Security Council, dropped its effort to gain immunity for its troops from prosecution by the International Criminal Court. Resolutions granting a year's exemption had passed the council in each of the past two years, but this year the renewal ran into difficulties because of the prison scandal in Iraq."), Court-Martial Ordered ("A United States soldier accused of trying to help Al Qaeda has been ordered to stand trial at a court-martial but will not face the death penalty, Army officials said. The trial for the soldier, Specialist Ryan G. Anderson, was ordered on June 9 by Lt. Gen. Edward Soriano, commander at Fort Lewis, south of Seattle. Specialist Anderson, 26, who was raised as a Lutheran but converted to Islam, was charged with five counts of trying to provide the terrorist network with information.").

The Washington Post: U.S. Immunity in Iraq Will Go Beyond June 30 ("The Bush administration has decided to take the unusual step of bestowing on its own troops and personnel immunity from prosecution by Iraqi courts for killing Iraqis or destroying local property after the occupation ends and political power is transferred to an interim Iraqi government, U.S. officials said."), U.S. Struggled Over How Far to Push Tactics, Navy Boards to Assess Detainees for Release, Lawyer for State Dept. Disputed Detainee Memo: Military Legal Advisers Also Questioned Tactics, Senate Rejects Request for Abuse Documents, U.S. Abandons Plan for Court Exemption.

USA Today: Nothing miljustlaw-related today.

Yesterday, the Army Court of Criminal Appeals issued two memorandum opinions, U.S. v. Carpenter, No. ARMY 20020894, and U.S. v. Maciel, No. ARMY 20000970. In both, ACCA performed minor clean-ups of the record, and affirmed the convictions and sentences.

The New York Times: White House Says Prisoner Policy Set Humane Tone ("In a February 2002 directive that set new rules for handling prisoners captured in Afghanistan, President Bush broadly cited the need for "new thinking in the law of war." He ordered that all people detained as part of the fight against terrorism should be treated humanely even if the United States considered them not to be protected by the Geneva Conventions, the White House said Tuesday."), Legal, Not Physical, Hussein Transfer Described by Aide ("The United States will transfer legal custody of Saddam Hussein and other top prisoners to Iraqi authorities as soon as Iraqi courts issue the necessary warrants, an American official said Tuesday. But American forces will not let go of the former dictator, even after Iraq regains sovereignty next week, because it does not have a prison strong enough to hold him, the official said, speaking on condition of anonymity."), Files Show Rumsfeld Rejected Some Efforts to Toughen Prison Rules ("Beginning in late 2002, a top general and a Pentagon working group sought permission to use much harsher interrogation techniques against Qaeda and Taliban prisoners than Defense Secretary Donald H. Rumsfeld ultimately approved, according to newly released documents. Among the techniques proposed by a two-star Army general for use at the American-run detention site at Guantánamo Bay, Cuba, were "the use of scenarios designed to convince the detainee that death or severely painful consequences are imminent" and actions designed "to induce the misperception of suffocation," the documents released by the White House on Tuesday showed. Those two proposals, endorsed by Maj. Gen. Michael B. Dunleavey, the commander at Guantánamo, in October 2002, were rejected by Mr. Rumsfeld in December of that year. But among the interrogation procedures that Mr. Rumsfeld did approve was the removal of prisoners' clothing, although he rescinded permission for this and some other techniques in January 2003."), U.S. Rewords A Resolution on Immunity for Its Troops ("The United States circulated a reworded resolution among Security Council members on Tuesday evening to try to overcome broad opposition to its effort to keep its troops immune from any prosecution by the International Criminal Court. The measure, introduced last month and then withdrawn, would extend such protection to American soldiers participating in United Nations-approved peacekeeping forces. The current expiration for such immunity is June 30.").

The Washington Post: Memo on Interrogation Tactics Is Disavowed ("President Bush's aides yesterday disavowed an internal Justice Department opinion that torturing terrorism suspects might be legally defensible, saying it had created the false impression that the government was claiming authority to use interrogation techniques barred by international law."), U.S. Liability Key Concern in '02 Debate on Detainees, U.S. Alters Its Plan for Exemption at [International Criminal] Court, and Spirited Debate Preceded Policies: Pentagon Lawyers Urged Restraint.

USA Today: General Promised Quick Results if Gitmo Plan Used at Abu Ghraib ("The general who pushed for more aggressive interrogation tactics at Iraq's Abu Ghraib prison predicted better intelligence within a month if his strategies were adopted, according to a copy of his classified plan obtained by USA TODAY. In the plan, sent in early September to top military officials in Iraq, Maj. Gen. Geoffrey Miller promised that ''a significant improvement in actionable intelligence will be realized within 30 days.'' His strategy involved having military police acting as prison guards ''setting the conditions to exploit internees to respond to questions.'' The recommendations in Miller's 12-page report were based on the interrogation operation he supervised at the U.S. Naval Base at Guantanamo Bay, Cuba, where suspected members of al-Qaeda are held. The report lists a roster of the 17-person team culled entirely from the Guantanamo operation. The team spent 10 days at Abu Ghraib with Miller in late summer, before he submitted the plan. Several interrogation teams from Guantanamo subsequently trained those at Abu Ghraib. By Oct. 12, the Army moved ahead with Miller's strategy to team guards and interrogators, an approach at odds with long-established military doctrine. But commanders were slow to implement other aspects of Miller's plan that might have helped prevent misconduct. Those recommendations called for increasing the number of guards and interrogators, improving their training and assigning a legal adviser to Abu Ghraib who was dedicated to monitoring the intelligence-gathering operation."), Rumsfeld OK'd Harsh Treatment: Interrogation Documents Made Public, White House Responds to Critics With Policy Disclosure.

News from CNN that PFC Lynddie England, the female soldier depicted in many of the Abu Ghraib scandal photos, has been delayed for one month. An Article 32 pretrial hearing was scheduled for today. Evidently, plea bargain talks began yesterday.

The other soldiers in her unit are being tired in Iraq; evidently, she was sent back to the United States because she got pregnant in an affair with a fellow soldier who is also charged. Pregnant soldiers are not allowed to serve in combat areas.

News yesterday from the Los Angeles Times about the Pentagon study of last year's homosexuality discharges:

Even with concerns growing about waning numbers of military troops, 770 people were discharged for homosexuality last year under the military's "don't ask, don't tell" policy, a study to be released today shows.

The figure, however, is significantly lower than the record 1,227 discharges in 2001 — just before the attacks on Afghanistan and Iraq. Since "don't ask, don't tell" was adopted in 1994, nearly 10,000 military personnel have been discharged — including linguists, nuclear warfare experts and other key specialists.

The statistics, from the Defense Manpower Data Center and analyzed by the Center for the Study of Sexual Minorities in the Military at UC Santa Barbara, gives a detailed profile of those discharged, including job specialty, rank and years of service.

Aaron Belkin, author of the study, said: "For the first time, we can see how [the policy] has impacted every corner of the military and goes to the heart of the military readiness argument."

"Don't ask, don't tell" allows gays and lesbians to serve in the military as long as they keep their sexual orientation private and do not engage in sexual acts.

The study, which analyzed military discharges between 1998 and 2003, found that the majority of those let go under "don't ask, don't tell" were active-duty enlisted personnel in the early stages of their careers.

Of the nearly 6,300 people discharged during that period, 75 were officers. Seventy-one percent were men.

The study found that the Army, the largest of the services, was responsible for about 41% of all discharges. The Army has invoked "stop-loss" authority to keep soldiers from retiring or otherwise leaving if they're deployed to Iraq or Afghanistan.

About 27% of the discharges came from the Navy, 22% from the Air Force and 9% from the Marines.

Hundreds of those discharged had held key positions, including 90 nuclear power engineers, 150 rocket and missile specialists, and 49 nuclear, chemical and biological warfare specialists.

Of 88 linguists let go, at least were seven Arabic specialists.

Professor Balkin has a post on this here.

The New York Times: Top Commanders Face Questioning on Prison Abuse (I commented earlier on this development in this post), NATO Tries Ads, Again, to Capture War Suspect ("After trying for almost nine years to help find and arrest the region's most wanted war crimes suspect, NATO peacekeeping forces in Bosnia are renewing their effort. The military alliance paid for a billboard advertising campaign to coincide with Radovan Karadzic's birthday last Saturday. He is the most wanted suspect, the former Bosnian Serb leader. The advertisements offer him a free one-way plane ticket to The Hague, the home of the United Nations war crimes tribunal. Advertising campaigns have been tried before, but without success. Dr. Karadzic is accused of genocide by the tribunal, a charge that includes the accusation that he ordered the killings of more than 7,000 Muslim men and boys in the town of Srebrenica near the end of the 1992 to 1995 war. "Radovan, we didn't forget," reads the advertisement, which was also placed in the country's two leading newspapers, above a picture of an airline ticket with Dr. Karadzic's name written on it."), Rules on Prisoners Seen as Sending Mixed Messages to G.I.'s ("Since the Sept. 11 attacks, the Bush administration's new rules governing treatment of foreign prisoners have been contradictory and have sent mixed messages to American soldiers, according to military personnel and documents. Six investigations are under way into abuses of detainees; none are expected to produce any conclusions soon. A close review of recently disclosed documents and interviews with soldiers, officers and government officials find a broader pattern of misconduct and knowledge about it stretching into the middle chain of command. But there is no clear evidence to date that the highest military or civilian leaders ordered or authorized the mistreatment of prisoners at American-run prisons in Iraq, Afghanistan and Guantánamo Bay, Cuba. Still, the ever-shifting rules, in which lists of accepted interrogation tactics were widened drastically before being reined in over 17 crucial months, helped foster a climate in which abuse could flourish. Starting with the 17 interrogation techniques approved in a standard Army manual, commanders at the Guantánamo prison doubled the permitted methods by late 2002, before shrinking the list. In Iraq last fall, directives on treatment of prisoners were changed at least three times in six weeks. Some of the procedures authorized in Iraq had been banned as too harsh months earlier at Guantánamo. Some officers skirted international treaties governing prisoner treatment, some soldiers have said, instructing subordinates to hide detainees from monitors sent by the International Committee of the Red Cross. In one instance, Defense Secretary Donald H. Rumsfeld approved an order to hold a suspected Iraqi terrorist but to keep his name off the prison rolls, effectively shielding the "ghost detainee" from Red Cross inspectors. Lacking clear guidance, soldiers at various jails were apparently confused about the rules. In Iraq, some guards were such sticklers that they demanded paperwork to take away detainees' blankets, while others did not understand that they needed written authorization to intimidate prisoners with dogs.").

The Washington Post: Judge Says Generals Can Be Questioned in Abu Ghraib Case.

USA Today: Generals Ordered to Testify On Abuse (adds to previous coverage that the trial will remain in Iraq), Abu Ghraib Images Bring Lessons Closer to Home (opinion column arguing for taped interrogations nationwide).

The Court of Appeals for the Armed Forces (CAAF) handed down 3 opinions today: U.S. v. Seider, No. 04-0082, U.S. v. Pinero, No. 03-0279, and U.S. v. Jenkins, No. 03-0473. Seider and Pinero deal with relatively mundane criminal procedure issues, resulting in remands to the service court. However one, Jenkins, contains some truly remarkable facts and statements.

The facts of the trial don't really matter here: a navy sailor was convicted of rape and sodomy and sentenced to about 12 years. On appeal, the case made its way to the Navy-Marine Corps Court of Criminal Appeals (NMCCA). The court affirmed two of three charges and affirmed pretty much the entire sentence. United States v. Jenkins, NMCM 200101151, slip op. at 7 (N-M. Ct. Crim. App. 2003). The first assignment of error on appeal to CAAF is truly remarkable:

WHETHER THE LOWER COURT’S VERBATIM REPLICATION OF SUBSTANTIAL PORTIONS OF THE GOVERNMENT’S ANSWER BRIEF AS THAT COURT’S OPINION CONSTITUTES AN ABUSE OF DISCRETION, NEGATES ANY APPEARANCE OF JUDICIAL IMPARTIALITY AND SUBSTANTIALLY UNDERMINES THE INTEGRITY OF THE OPINION.

WOW...that's a pretty substantial charge. It basically alleges that the government has either colluded with the court to "ghost write" an opinion, or that the author got lazy and committed downright plagiarism. What's even more amazing is that CAAF decided to confront this charge directly and "call out" their fellow judges below.

Take this opening section from the Jenkins opinion's background portion:

The CCA opinion in Appellant’s case is 15 pages in length. It consists of 45 paragraphs, not including record excerpts. Thirty-one of these paragraphs are taken virtually or wholly verbatim from 29 of the 33 paragraphs in the Government’s nineteen-page Answer before the CCA. This is done without attribution.

WOW...Those 4 little sentences are packed with little knives and sabers. Let's unpack that:

1. 31 out of 45 paragraphs (69%) were written by the Government and taken verbatim from the Answer brief,
2. 29 out of 33 paragraphs (88%) from the answer brief make their way into the NMCCA opinion, largely verbatim, and
3. It is done without attribution (i.e. it was plagiarized!!!)

This is quite a shocking case. Senior judges of the NMCCA (of whom Judge Baker, the CAAF opinion author, is careful not to name), who are O-5s and O-6s with over 20 years of service, have been caught essentially plagiarizing their opinion! And, if that wasn't bad enough, they choose to copy the government brief right in front of them, abandoning all semblance of impartiality! Judge Baker tries to be subtle when writing the opinion, but the facts scream loudly enough:

As a result, neither we nor the parties can be sure where and perhaps whether the Government’s argument ends and the lower court’s independent analysis begins. This conclusion is not based on a mathematical calculation of replication. Nor need we look within the lower court’s deliberations to make such a determination. It is based on the manifest demonstration on the face of the CCA’s opinion that substantial portions are derived wholly or virtually verbatim from a party’s brief.

The NMCCA does not allow access online to its opinions without a Naval JAG-issued password. I will work on getting the opinion uploaded to the website, so the authors of the opinion can be identified.

UPDATE: I found and posted a copy of NMCCA's opinion, which you can access here. The author of the opinion is R.C. Harris. Online searches for background on Judge Harris has been fruitless so far. Anybody out there have a link to information on NMCCA Judge Harris?

The Article 32 (10 USC 832) Investigative Hearing for PFC Lynddie England, the soldier depicted in many of the Abu Ghraib abuse scandals, begins tomorrow. This preview from News 14 Carolina:

These days the main topic of conversation at coffee shops around Fayetteville is Army Reservist Lynndie England.

For weeks she has made the headlines worldwide. Controversial photos of Private England show her posing with naked Iraqi prisoners and holding a leash that's attached to someone.

"The pictures here on TV are really bad, it's really bad," said Sandy Hintze. "It portrays a bad image."

As England’s hearing is set to begin, people in Fayetteville said they will be paying close attention.

"I think it was wrong and cruel for them to do such a thing to anyone. In the long run someone is going to have to answer for it," James Monroe said.

People hope the England situation will make other American troops realize that actions like this won't be tolerated.

Deanna Pipolla expressed her views. "If our troops were getting abused in other countries we would be like, ‘Oh my God!’ We would think it was wrong, but we're doing it to other troops."

But some hope the actions of a few won't impact troops currently deployed overseas.

"There is so many media and people over there are seeing that this happened to prisoners," Hintze added. "The G.I.'s that are out there in the fields and everybody else the civilians are in jeopardy and the retaliation."

As the hearing gets underway, this is sure remain a hot topic, in the headlines and at coffee shops around Fayetteville.

July's military court action is called an "Article 32" hearing. The court will hear testimony and arguments from England's defense and military prosecutors. Then it must decide whether to recommend a full court-martial.

In tomorrow's New York Times, this report about developments in the ongoing Abu Ghraib courts martial. Evidently, the military judge has ruled that the defense can question senior military leaders:

Three American soldiers accused in the Abu Ghraib prisoner abuse scandal faced initial hearings in Baghdad today, and the judge said their lawyers could interview top commanders as part of the defense.

The judge, Col. James Pohl, also declared that the prison was a "crime scene" and should not be demolished as suggested by President Bush after the prison scandal broke in April.

Today's hearings dealt with legal issues involving Sgt. Javal S. Davis, Staff Sgt. Ivan L. Frederick II and Specialist Charles A. Graner Jr., who were arraigned in May on charges stemming from their suspected abuse of Iraqi prisoners and who face general courts-martial.

Motions in Sergeant Frederick's hearing were rescheduled today for next month, because he declined to waive his right to civilian representation after his civilian lawyer did not appear.

The judge granted the defense request to interview top officials in the chain of command, including Gen. John P. Abizaid, the commander of American forces in the Middle East, Lt. Gen. Ricardo S. Sanchez, the ground commander in Iraq, and others.
The pre-trial hearings also indicated that the defense lawyers would try to show that the highest levels of the government created an atmosphere in which any technique was acceptable to get information from detainees.

Lawyers also asked to be provided with Justice Department and Pentagon memorandums on what treatment is acceptable for detainees and when the Geneva Conventions are applied. The judge denied the requests.

Sergeant Frederick and Specialist Graner, who appeared in desert camouflage uniforms during the hearings, are the most prominent of those accused of the abuse, but they are not the first to face trial.

ANALYSIS: This is a classic strategy used by military defense lawyers whenever there appears to be political pressure or "scapegoating" from senior commanders at play. However, it almost always fails. For instance, in the Lt. Calley My Lai Court Martial, the defense tried to get senior generals to testify about their condoning of certain tactics; that was denied. For a popular culture example, in The Court Martial of Billy Mitchell, Gary Cooper plays the embattled father of military aviation. He asks that every member of his chain of command, all the way up to the President, be called in to testify whether they authorized the bringing of charges. That motion too was denied.

That's what is so shocking about this order: usually generals, especially 4-stars, "don't have time to waste" on court martials of enlisted personnel. But this is no ordinary court martial. Military Rule of Evidence 703(a) states that "the ... defense and the court-martial shall have equal opportunity to obtain witnesses and evidence, including the benefit of compulsory process." However, Rule 703(b)(3) carries an important caveat: the defense is not entitled to witnesses if they are deemed "unavailable." In addition to the normal, Federal Rules-style meaning of the word unavailable, military courts generally deem high-echelon commanders like General Abizaid and General Sanchez to be "unavailable" because of their military duties, unless they are actually an eyewitness to a crime.

And that's what makes this order amazing. What happens now? 3 things:
1. The generals comply with the order. This will probably not happen right away and may not be likely.
2. The generals do not comply with the order. Although military judges in theory do have "compulsory process", it is unclear what power they have against people they do not outrank. Perhaps, the generals could be tried for unlawful command influence (Article 98, UCMJ, 10 USC 898). However, no single commander has ever been prosecuted under this article in the 54 year history of the UCMJ. So, in reality, there is no recourse against a commander's decision to not testify, other than to dismiss the charges against the soldier. Of course, it is more likely that the judge would simply find them "unavailable" and make the trial move along.

The New York Times: U.S. Said to Overstate Value of Guantanamo Detainees ("But as the Supreme Court prepares to rule on the legal status of the 595 men imprisoned here, an examination by The New York Times has found that government and military officials have repeatedly exaggerated both the danger the detainees posed and the intelligence they have provided. In interviews, dozens of high-level military, intelligence and law-enforcement officials in the United States, Europe and the Middle East said that contrary to the repeated assertions of senior administration officials, none of the detainees at the United States Naval Base at Guantánamo Bay ranked as leaders or senior operatives of Al Qaeda. They said only a relative handful -- some put the number at about a dozen, others more than two dozen -- were sworn Qaeda members or other militants able to elucidate the organization's inner workings."). Of course, I have to link to what will probably be the most (in)famous book review of our lifetimes, the "Pastiche of A Presidency, Imitating a Life, In 957 Pages" (The Clinton Book Review) ("The book, which weighs in at more than 950 pages, is sloppy, self-indulgent and often eye-crossingly dull — the sound of one man prattling away, not for the reader, but for himself and some distant recording angel of history.")

The Washington Post: Believe it or not, they gave Abu Ghraib a one day reprieve!

USA Today: Again, nothing!