JAG CENTRAL

Greetings and welcome to Blawg Review 32! First of all, I want to thank all the editors at Blawg Review for doing a whiz bang job marketing this very special edition. I feel honored to be hosting the Carnival of the Blawgs during Veterans Day Weekend. With that, I dedicate this edition to all of those who serve or have served in uniform, especially those who have made the ultimate sacrifice for freedom. Without your service, none of this is possible. OK, let the games begin!

Preferring Charges

In the American military justice system, a criminal case begins by the accuser preferring (or pressing) charges. Under the Uniform Code for Military Justice (UCMJ, 10 U.S.C. 801-946), anybody subject to the code may prefer charges. However, usually a soldier's immediate commander will prefer charges.

CrimLaw, the blawgosphere's central clearing house for all things criminal law, gets the ball rolling for us by giving us the weird news of the week. Included in this week's fare: No bail for computer virus makers, animal cruelty liberators with more heart than brains, and how being truly persistent can get you out of jail, if only for a few days.

Of course, when you're thinking about charging, you need to know the system. To that end, Norm Pattis from Crime & Federalism helps to clear up some myths about the criminal justice system. Among them: the cops don't have to read you your rights unless you're in custody, and the effect of CSI on juries helps the state as well as the defense.

So, who's been charged this week? Well, 5 more Guantanamo detainees (from yours truly at JAG Central). On that note, yours truly was charged by UCLA Professor Stephen Bainbridge (a professor I never took because I detest all things Business Law) as engaging in "hot action." Mike Cernovich charges the military justice system as being just, and the JAG Corps as being a golden opportunity for young lawyers. And Lisa Stone from the Law.Com BLOG Network says simply of Blawg Review #32: "I'm looking forward to [it]."

Jurisdiction and the UCMJ

Jurisdiction is easy to establish in the American armed forces. According to Article 2, UCMJ (10 U.S.C. 802), pretty much every service member on active duty is subject to court martial for a violation of the UCMJ, no matter where on Planet Earth (or elsewhere for military astronauts) the offense takes place.

Of course, things shouldn't be that easy, at least according to the United States Senate. In a never-ending effort to ensure poor dolts like me continue to be confused on Federal Courts final exams, the Graham Amendment has reared its ugly head. It aims to strip the federal courts of all ability to hear habeas petitions by Guantanamo detainees. Well, the good ol' folks at PrawfsBlawg (yes, the name says it all) have something to say about that: the floodgates that were supposed to open as a result of habeas litigation by Guantanamo detainees has actually been a tiny trickle. I wrote about the possibility of "lawfare" in this post. It appears from the prawfs that, so far, Phil Carter was right and Eugene Volokh was wrong. In a later post, the Prawfs wonder aloud whether the amendment's passage means the Supreme Court should have immediately dismissed Hamdan's case (which was heard the next day). Katherine, a twentysomething law student & former reporter, over at Obsidian Wings, has not one, not two, not three, not four, not five, but six posts about the Graham Amendment. Of course, Norm Pattis gets his two cents in about the whole Senate shin-dig: "Shame on the Senate for passing this excrement."

Of course, isn't it ironic that, at the same time Senator (Colonel, USAF) Graham is trying to strip the federal courts of jurisdiction, a convicted Air Force Airman is trying to strip him of jurisdiction to hear his case before the U.S. Air Force Court of Criminal Appeals. My co-blogger at JAG Central, LawyerDad, writes about the sticky constitutional and statutory issues over whether a sitting senator can serve in the JAG Corps and hear cases in this post, and sums up the news summaries of oral arguments in this post.

Finally, Holly Manges Jones over at JURIST's Paper Chase tells us about two foreign jurisdiction issues. An Italian prosecutor has filed for the extradition of 22 CIA operatives to face charges for the alleged kidnapping of Egyptian cleric Abu Omar. And, the Federal Court of Canada has decided to hear the asylum appeal of a US Army deserter, who claims that since the American war in Iraq is "illegal," going back to the Army could potentially subject himself to war crimes charges. Nice try, slacker.

Article 39(a) and RCM 802 Sessions

Unlike civilian practice, there are no sidebars in military practice. If the judge advocate needs to address something to the judge outside the presence of the members, the members must be formally excused from the courtroom. The court then has two options. For minor housekeeping matters (such as informing the judge of how long an examination will take, or what motions a JAG expects to make in the future), a Rule for Court Martial (RCM) 802 conference can be held in the judge's chambers or by e-mail. For more formal matters, such as making motions or extended objections, Article 39(a) (10 U.S.C. 839), UCMJ, calls for a formal session to be held on the record but outside the presence of the panel (jury) members.

One extended objection made in the blawgosphere this week was the resurgence of the DoJ's National Security Letter. Sabrina I. Pacifici at beSpacific rounds up the news on the resurgence, arguing that the 30,000 letters issued this year represents a "hundredfold increase over historic norms." Lisa Stone quotes some blawggers as saying: "I am glad to see that some are willing to challenge this practice and hope many others join them."

Clay S. Conrad, the Jury Geek, objects to the fact that lawyers and judges can't deal effectively with juries. Why not? First, "lawyers and judges have a lack of core competence, in that few of them understand the jury system. Secondly, lawyers and judges have an institutional conflict of interest with the jury."

Several blawggers object to our treatment of detainees and casualties this week. Dave Glazier and Jon Holdaway at Intel Dump write about the lawfulness of burning Taliban deceased. Jon Holdaway defends the practice, while Dave Glazier derides his fellow blawgger's "defense counsel" viewpoint. Meanwhile, Marty Lederman at Balkinization urges Juan Non-Volokh from the Volokh Conspiracy to quit living in the CIA Secret Prison past; there's so many other torture stories to write about! Finally, MahanAtma, guest blogging at Crime & Federalism, debunks the ticking time bomb theory he believes is rationalizing detainee torture.

"The Quiet Professionals"

On this Veterans Day, it's important to remember the sacrifices of those who serve quietly, behind the scenes. In Army JAG Offices, those are often the warrant officers who serve as our legal adminstrators. They make the office run, from installing and maintaining IT equipment, to balancing the office's budget. One such quiet professional who made the ultimate sacrifice was Chief Warrant Officer 5 Sharon T. Swartworth (pictured at left). CW5 Swartworth was killed in action on 7 November 2003 in Iraq when her helicopter was shot down while visiting JAG soldiers in the field. Those who knew her agree that she symbolized the finest traditions of the JAG Corps.

When it comes to chronicling the developments of the quiet professionals in civilian law offices, Jim Calloway at Jim Calloway's Law Practice Tips does a bang-up job. This week, he urges young lawyers to support your local bar association, and not to be paralyzed by the prospect of complicated technology purchases. Also, he indulges in a little self-aggrandization (hey, I'm guilty of it too) by writing about the proliferation of his own subgenre, law management blogs.

Nivine Zakhari, a quiet professional over at Tech Law Geek, has a Veterans Day-themed post regarding her earlier work with veterans and Post-Traumatic Stress Disorder. Remembering the veterans, Nivine writes, "This Tech Law Geek will always remember she's in their debt."

Rick Georges at FutureLawyer has a fix for those lawyers still stuck in the past using WordPerfect and trying to communicate with those who have finally gotten with the times. (Sorry; after eight years in the Army, I'm a Bill Gates .doc slave.)

I must apologize again; I don't know much about IP, even with the fine professors we had at UCLA. I'll leave explaining it to those in the know. According to Ronald Coleman at Likelihood of Confusion, the New York Metropolitan Transportation Authority is absolutely obsessed with it. Andrew Raff at IPTAblog notes that Google is giving away nearly 10,000 pieces of IP for free. One author who claimed Dan Brown stole the DaVinci Code from him obviously placed more value on his book than Google. The MassLawBlog explains how one federal judge handled this mess.

Post-Trial Matters

No, I'm not talking about the appeal. In the military justice system, the process provides the convicted service member a whole host of chances to have the findings reviewed, the sentence commuted, or the whole thing thrown out BEFORE appeal. This essentially places another check on the government to ensure that an accused is not railroaded by the likes of someone pictured at the left. Article 60, UCMJ (10 U.S.C. 860) governs the post-trial submissions to the convening authority.

Rounding up the post-trial submissions for this edition of Blawg Review are a series of posts about the BlawgThink conference held this week. Dave Swanner from the South Carolina Trial Law Blog wrote about his hesitance to attend the conference: "This was a tough call for me because I primarily see myself as a trial lawyer who has a weblog rather than a blogger who is also an attorney." Dennis Kennedy talks about his plans for BlawgThink: "What struck me . . . was that the reality of the BlawgThink we have created is far more like the initial vision than I thought." Of those attending the conference, George Lenard of George's Employment Blawg writes up Day 2 of BlawgThink: "It was a bit like an immigrant who never speaks his native language, but only reads it, getting invited to a party at which everyone converses in the mother tongue." Finally, Russ Krajec of Anything Under the Sun offers this post-mortem of BlawgThink: "In essence, this weekend has been an enormous internet dating ritual." Well, I guess my being married disqualifies me.

Thanks to everyone who sent in their posts; I couldn't have done it without you. If you didn't make this week's Blawg Review, try, try again! And this week, take another moment to remember those who serve in far away lands.

Blawg Review has information about next week's host, and instructions on how to get your blawg posts reviewed in upcoming issues.