JAG CENTRAL

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In another battle over the Solomon Amendment (10 USC 983), a federal judge from Alabama has decided not to hire students for clerkships from Yale Law School, traditionally a leading source of federal clerks. Judge William M. Acker, Jr. cites for his reason the fact that Yale has barred access to interview programs from military recruiters in protest for Congress's policy of "Don't Ask, Don't Tell." (Story via AP and Newsday.com) The US Court of Appeals for the Third Circuit ruled in January that the Solomon Amendment was unconstitutional, meaning that the Federal Government could not withhold funding from schools that bar access to military recruiters. NOTE: The Centrist helped write an amicus brief on behalf of the UCLAW Veterans Society, arguing in favor of upholding the Solomon Amendment.

From the New York Times: U.S. Is Examining Plan to Bolster Detainee Rights:

The Defense Department is considering substantial changes to the military tribunals that the Bush administration established to prosecute foreign terror suspects at Guantánamo Bay, Cuba, military and administration officials say.

The proposed changes, many of which are detailed in a 232-page draft manual for the tribunals that has been circulating among Pentagon lawyers, come after widespread criticism from the federal courts, foreign governments and human rights groups.

Those changes include strengthening the rights of defendants, establishing more independent judges to lead the panels and barring confessions obtained by torture, the officials said.

The draft manual has renewed a sharp debate within the Bush administration between military and civilian lawyers who are pushing to overhaul the tribunals and other officials who have long insisted that suspected terrorists held at Guantánamo are not entitled to many of the basic rights granted defendants in United States courts.

ANALYSIS: This story only highlights an extreme rift between many high level military practitioners, and higher-level civilian lawyers in the Department of Defense. Many military practitioners have argued that having relatively light procedural protections for detained enemy combatants (1) is unacceptable in a nation based on laws, and (2) encourages similar treatment by those who detain our troops. For an academic statement of this argument in a military journal, see David L. Herman, A Dish Best Not Served At All: How Foreign Military War Crimes Suspects Lack Protection Under United States and International Law, 172 MIL. L. REV. 40 (2002). It appears in recent months that the White House, mindful of the fact that the courts have failed to embrace the extreme position that they have no jurisdiction in enemy combatant matters, and eager to use its political capital for more productive projects, are willing to compromise on enemy combatant legal matters.

In other news, Pentagon Will Not Try 17 G.I.s Implicated In Prisoners' Deaths:

Despite recommendations by Army investigators, commanders have decided not to prosecute 17 American soldiers implicated in the deaths of three prisoners in Iraq and Afghanistan in 2003 and 2004, according to a new accounting released Friday by the Army.

Investigators had recommended that all 17 soldiers be charged in the cases, according to the accounting by the Army Criminal Investigation Command. The charges included murder, conspiracy and negligent homicide. While none of the 17 will face any prosecution, one received a letter of reprimand and another was discharged after the investigations.

To date, the military has taken steps toward prosecuting some three dozen soldiers in connection with a total of 28 confirmed or suspected homicides of detainees. The total number of such deaths is believed to be between 28 and 31.

From the Washington Post: Detainees Abused In N. Iraq, Army Papers Suggest ("Guards and military intelligence personnel allegedly tortured detainees at a U.S. Army holding facility in northern Iraq in late 2003, according to Army criminal investigative documents released yesterday. The treatment, intended to soften up detainees for interrogations, involved hours-long physical exercise sessions, hoods and beatings at the same time guards at the Abu Ghraib prison near Baghdad were carrying out similar tactics."); Khalid Jailed in France ("A court ordered the imprisonment of Ridouane Khalid, 36, who was released this month from the U.S. military prison at Guantanamo Bay, Cuba, his attorney said. Khalid was caught three years ago trying to enter Afghanistan at the height of the U.S. war there.").

From the Stars and Stripes: PFC Gregory D. Robertson will face charges of murder, obstructing justice, and disobeying an order in connection with the February stabbing of another soldier. He is also being charged with a November 2004 burglary and indecent assault of a female soldier. PFC Robertson is a member of the 20th Area Support Group, Camp Henry, Korea.

From the AP (via Lexington Herald-Leader (KY):

An Army captain was charged with dereliction of duty for allegedly failing to stop the abuse of basic training recruits under him, the Army said yesterday.

Capt. William C. Fulton, 35, also is charged with maltreatment for allegedly punching a soldier in the chest.

From Feb. 3-8, 25 new recruits in Company E, 1st Battalion, 81st Armor (Regiment) at Fort Knox were kicked, pushed and slapped, according to the Fort Knox Public Affairs Office. Four drill sergeants under Fulton have been charged with abuse in the case.

Fulton was the commander of the unit.

Army leaders will decide whether Fulton will face a court-martial or other disciplinary action under the Uniform Code of Military Justice.

The drill sergeants will appear before a special court-martial, and if convicted, could be sentenced to a year in military confinement, the Army said yesterday.

Sgt. 1st Class David H. Price, 36; Sgt. 1st Class Ricky L. Stauffer, 35; Staff Sgt. Michael G. Rhoades, 33; and Staff Sgt. Bryan G. Duncan, 26; were each charged with maltreatment of soldiers and obstruction of justice. Price also faces an additional charges of violation of lawful regulation.

From the New York Times: France Asking U.N. to Refer Darfur to International Court ("France, in a direct challenge to the United States, proposed a resolution on Wednesday referring war-crime cases from Sudan to the International Criminal Court. This presented Washington with the choice of validating a tribunal it strongly opposes or casting a politically awkward veto."); Bosnian Serb General Surrenders (To UN Tribunal); Guantanamo Detainees Make Their Case ("A 30-year-old Sudanese prisoner listened with barely concealed anger on Tuesday and slouched deeper into his seat as an Air Force officer told a military panel why the man remained a threat to the United States and should not be released from the prison camp here. The slight and scraggly bearded Sudanese, hands cuffed and feet shackled to the floor, is among more than 500 prisoners from the fighting in Afghanistan who remain here and whose cases are being reviewed under the latest military legal proceeding intended to reduce Guantánamo's prison population and meet the terms of a Supreme Court decision allowing them to challenge their detention.").

From the Washington Post: Army Documents Shed Light on CIA "Ghosting" ("Senior defense officials have described the CIA practice of hiding unregistered detainees at Abu Ghraib prison as ad hoc and unauthorized, but a review of Army documents shows that the agency's "ghosting" program was systematic and known to three senior intelligence officials in Iraq. Army and Pentagon investigations have acknowledged a limited amount of ghosting, but more than a dozen documents and investigative statements obtained by The Washington Post show that unregistered CIA detainees were brought to Abu Ghraib several times a week in late 2003, and that they were hidden in a special row of cells. Military police soldiers came up with a rough system to keep track of such detainees with single-digit identification numbers, while others were dropped off unnamed, unannounced and unaccounted for."); France Offers U.S. a Dilemma on Sudan.

From the NY Times: Rights Group Reports Thousands of Disappearances in Chechnya ("A prominent human rights organization said in a report released Monday that kidnappings and extrajudicial detentions had become so rampant in Chechnya that they amounted to crimes against humanity. Human Rights Watch, based in New York, reported that an estimated 3,000 to 5,000 civilians from the region had disappeared since Russia's second war in Chechnya began in 1999, and it linked a majority of the cases to Russian or Chechen security forces."); More of FBI Memo Criticizing Guantanamo Methods Is Released ("The Justice Department on Monday released an F.B.I. memorandum dated May 10, 2004, in which departmental lawyers dismissed intelligence obtained by coercive methods used by the military at Guantánamo Bay, Cuba, as "suspect at best." The existence of the memorandum has been known for months. But when it was first made public by the government, the memorandum was released in heavily edited form, in response to a Freedom of Information Act request by the American Civil Liberties Union.").

From the Washington Post: Justice Redacted Memo on Detainees, FBI Criticism of Interrogations Was Deleted ("U.S. law enforcement agents working at the military prison in Guantanamo Bay, Cuba, concluded that controversial interrogation practices used there by the Defense Department produced intelligence information that was "suspect at best," an FBI agent told a superior in a memo in May last year. But the Justice Department, which reviewed the memo for national security secrets before releasing it to a civil liberties group in December, redacted the FBI agent's conclusion."); High Court Declines To Hear (Moussaoui) Terror Case, and this must-read fascinating story of the judge who presided over Saddam Hussein's first court appearance:

When the disgraced but unrepentant old man sat down in front of Raid Juhi last summer, the young judge did not know what to expect. Like most Iraqis, he knew Iraq's former leader only from television, where he always appeared a brave, confident and much-feared hero.

Now, Saddam Hussein was making his first appearance as a defendant before the Iraqi special tribunal that will judge officials of Iraq's toppled government for crimes against humanity. Petulant and defiant, the haggard leader claimed immunity from any prosecution, ranted on about the court's illegality and refused to sign an acknowledgment that he had been read his rights.

Juhi, who let Hussein vent before cutting him off, recalled feeling two strong forces during that 26-minute session. One was wonder at how the tables had turned. The other was duty.

"I had worked as a judge under Saddam. I never thought I would be in a position questioning him," Juhi, 34, said in a recent interview. "At the same time, our studies and careers taught us how to be objective in our work and to not consider names or ranks but to look at the evidence only. We have a saying in the judiciary system: The evidence talks."

Juhi is the only tribunal judge publicly identified so far because of threats from insurgents, many of whom supported Hussein's government. Though the former leader's trial is not imminent -- Juhi said there is no way to know how long pretrial investigations will take -- one judge on the tribunal has already been assassinated.

"It's not bravery," the Baghdad-born judge said of his decision to allow his name to be made public. "It is important for the Iraqis to know that Iraqis are handling the case and that the judicial system is taking up its role."

From USA Today: Moussaoui Loses Bid To Question Captives.

From Reuters (via ABC News): The Supreme Court has refused to here alleged September 11 conspirator Zacharias Moussaoui's appeal in his death penalty case. Moussaoui argued that he cannot get a fair trial without being allowed to cross-examine enemy combatants who helped provide evidence against him. More to follow...

From USA Today: Court-Martial of Navy SEAL Begins Today:

The court-martial of a Navy SEAL lieutenant accused of abusing a prisoner in Iraq begins in San Diego today. The SEAL faces charges of assault, dereliction of duty and conduct unbecoming an officer. He is accused of punching an Iraqi detainee in the arm and allowing his men to abuse the prisoner, who died later during CIA interrogation at Abu Ghraib prison outside Baghdad.

The Navy is taking extraordinary precautions to protect the identity of the members of its elite force. The lieutenant will be referred to only by the first letter of his last name, as will all SEALs in the courtroom.

During a pretrial hearing in January, a SEAL officer testified that the SEALs were taught it was OK to use force to get a detainee's attention and were authorized to use deadly force. Prosecutors, however, insist they must be held accountable for a mission that got out of hand.

In November 2003, the SEALs went after Iraqi Manadel al-Jamadi, a suspect in the bombing of Red Cross offices in Iraq that killed 12. The Navy opened an investigation in May when a former SEAL reported seeing the abuse of al-Jamadi and others. According to the former SEAL, the lieutenant who faces trial saw his men abusing al-Jamadi, smiled and said, “Glad I'm not him.” The ex-SEAL was kicked out of the unit for theft, and several SEALs have contradicted his account.

UPDATE: The Lieutenant has postponed the trial until late May or June in order to work out several issues, including how classified evidence is going to be handled, according to this story from the AP (via the San Diego Herald-Tribune). According to the AP, they are in possession of several documents that point the blame at the CIA, not the SEALs.

From the AP (via ABC News):

The court-martial of a Navy SEAL lieutenant accused of abusing a prisoner in Iraq is a case full of secrets even the defendant's name is classified.

The SEAL is accused of punching an Iraqi detainee in the arm and allowing his men to abuse the prisoner, who later died during CIA interrogation at Baghdad's Abu Ghraib prison.

He faces a trial set to begin Monday on charges of assault, dereliction of duty and conduct unbecoming an officer.

The Navy is taking extraordinary precautions to protect the identity of its terrorist-hunting SEALs, members of an elite force named for Sea, Air, Land. The lieutenant will be referred to only by the first letter of his last name, as will all SEAL personnel in the courtroom a step experts on military law say is virtually unprecedented.

More to follow...

From the NY Times: States and Communities Battling Another Round of Base Closings. Vulnerable named bases include Waterlivet Arsenal, NY, Rock Island Arsenal, IL, Marine Corps Logistics Station, Albany GA, and Goodfellow AFB. The commission is also considering consolidating contiguous bases, such as Pope AFB/FT Bragg, and McChord AFB/Fort Lewis.