JAG CENTRAL

From NBC-17, Raleigh-Durham, NC:

Fifteen members of the jury panel -- nine officers and six non-commissioned officers -- were selected Friday after the military judge excused five potential panel members based on requests made Thursday by the government and defense counsel.

After the judge excused the jury for the weekend, Akbar requested that one additional panel member be excused. The judge held a brief discussion with lawyers for both sides and called a recess so Akbar could discuss the issue further with his counsel.

When the hearing resumed Friday afternoon, Akbar withdrew his request.

The trial is expected to begin at 9 a.m. Monday.

Related Posts:
1. "Fragger" Trial Jury Selection Update
2. Jury Selection Begins in Army SGT. Akbar "Fragging" Case
3. Akbar Competent to Stand Trial
4. Fragger Tries to Escape
5. "Fragger" Court Martial Date Set (OLD BLOG)
6. Alleged "Fragger" Faces Court Martial (OLD BLOG)

From the Pittsburgh Post-Gazette: Navy RADM Donald J. Guter (Ret.), the Judge Advocate General of the Navy from 2000 to 2002, has been named Dean of the Duquesne University Law School. Congratulations!

In what will be the hot-button topic of the year in military courts, the U.S. Air Force Court of Criminal Appeals weighed in by affirming a sodomy conviction in U.S. v. Gamez. No. ACM 35576. 1LT Gamez was convicted as a result of several sexual encounters with a female enlisted airman, to include oral copulation (the basis of the sodomy charge). 1LT Gamez was married at the time. The Court noted that since 1LT Gamez was guilty of both adultery and of violating the military's policy on fraternization between enlisted and officers, the oral sex, even though consensual and between a man and a woman, lied squarely outside the type of liberty interests the Supreme Court envisioned in Lawrence v. Texas.

From the NY Times, Army Cadet Pleads Guilty in Sex Case at West Point:

West Point cadet was sentenced on Thursday to four years in a military prison and dismissed from the Army after pleading guilty to a series of sex-related charges stemming from his breaking into the rooms of four female cadets in the middle of the night.

The cadet, Tracey L. Rivers, a sophomore from Superior, Wis., was initially charged with one count of rape along with other violations. But the charges were reduced after prosecutors examined all the evidence, said a spokesman for West Point, Lt. Col. Kent P. Cassella.

Instead, Mr. Rivers, at his court martial on Thursday, pleaded guilty to a long list of lesser, though still serious, charges, including indecent assault, indecent acts with another, accessing pornographic material on the government computer network, leaving his room after taps and entering female cadets' barracks rooms without their permission.

From the Washington Post, Padilla Appeals to High Court ("Lawyers for "dirty bomb" suspect Jose Padilla want the Supreme Court to step in and rule on the U.S. citizen's indefinite military detention, arguing that the judiciary needs to rein in the Bush administration's conduct in the war on terrorism. "Delay increases the chance that Padilla could be faced with an unconstitutionally coerced choice -- for example, whether to plead guilty to a crime or to give up other rights in order to avoid further months of detention as an enemy combatant," Padilla's lawyers wrote in papers filed Thursday.").

New from the U.S. Army Court of Criminal Appeals, a published opinion in U.S. v. Embry, No. ARMY 20011179. The defendant was convicted of taking a handgun from his wife's apartment, holding her hostage at gunpoint overnight, raping her, and forcing her to withdraw money from her ATM. and other sordid offenses. A key issue at trial was whether certain admissions he made to a social work assistant should be suppressed or admitted. One piece of evidence relating to these was the counselor's intake notes. The military judge denied the suppression motion on Article 31 (military equivalent of Miranda) and Military Rule of Evidence 513 (the psychoanalyst-patient privilege) grounds. At issue on appeal was whether the omission of these intake notes from the appellate record made the record so incomplete as to preclude the Court of Criminal Appeals from making an effective adjudication. The Court ruled that the omission was substantial enough to set aside the conviction.

From The BBC, this story about the Army pilots accused of smuggling cocaine from Columbia (which I first told you about in this post):

Colombian senators have been calling for the men, who were based in the country, to be extradited from the US.

But US ambassador William Wood said the soldiers are immune from prosecution.

More than 200 Colombian citizens have been extradited to the US to face trial for drug trafficking, under a bilateral deal between the two countries.

Colombian politicians have asked the government to push for the US to hand over the men, arguing that the extradition agreement works both ways.

ANALYSIS: That's big talk from Columbian politicians, but in reality the government had no choice. Our military presence in Columbia is governed by a Status of Forces Agreement (SOFA). SOFA's generally provide that US soldiers will only be tried by American courts-martial, not by local courts. This is in exclusion to any extradition treaty that may apply to American civilians.

From the NY Times, Administration Urges Appeals Court to Let Guantánamo War Crimes Trials Resume ("A senior lawyer in the Bush administration urged a federal appeals court on Thursday to allow the resumption of war crimes trials in Guantánamo Bay, Cuba, as part of the effort to defend against terrorists. The lawyer, Peter D. Keisler, the assistant attorney general who heads the civil division of the Justice Department, said the trials that a federal judge halted on Nov. 8 were an important part of the fight against terrorism. The trials, Mr. Keisler said, "send a message that if you commit terrible crimes, we will capture you, we will give you a fair trial, and if you're convicted, we will impose a just sentence."); Anthrax Shots Can Resume, Judge Rules ("The Pentagon can resume giving anthrax vaccinations, but only to troops who volunteer for them, said a federal judge who banned the shots in October amid questions about their safety. Judge Emmet G. Sullivan of Federal District Court ruled that the shots could be restarted on a voluntary basis under a 2004 law that he said appeared to allow use of unapproved drugs when health and defense officials declare a military emergency or the potential for one. Before the ban, the Pentagon had given anthrax vaccine shots to 1.1 million troops since 1998, and hundreds of people have been discharged from the military for refusing them.").

From the Washington Post, Pentagon Drafting Policy for Detention ("Pentagon officials are developing an overarching doctrine for wartime prison operations that would detail a strict chain of command and clearer detention rules, seeking to eliminate the confusion that contributed to detainee abuse in Iraq, according to a draft of the policy that is working its way to the secretary of defense. The draft, which is being prepared by the office of the Joint Chiefs of Staff, recognizes that commanders in Iraq did not plan for what became extensive detention operations and intelligence gathering, with tens of thousands of detainees landing in U.S. custody. It points out that because the personnel and material needed for the operation "were not prioritized," problems followed."); Justice Dept. Defends Value of Military Trials; Anthrax Vaccinations Allowed to Resume.

From NBC-TV 17 in Raleigh-Durham, NC:

Jury selection in the court-martial of Army Sgt. Hasan Akbar on Thursday focused on religion, the death penalty and mental health.

Akbar is charged with killing two officers in a 2003 grenade attack in Kuwait.

The chief prosecutor asked a member of the jury pool if his religious beliefs support his view of the death penalty, and the soldier responded, "Yes, they do."

When defense lawyers asked one of the potential jurors about Muslims, the soldier said he didn't have close friends who were Muslim but considered himself pretty fair-minded. He also said he thought some members of that faith interpret it the way they want to.

Testimony is scheduled to start Monday after lawyers reduce a pool of 20 soldiers into the panel of 12 that will hear the case. Nearly half the pool, mostly officers and high-ranking sergeants, had been questioned by mid-morning Thursday.

From the Seattle Times:

His lawsuit, Santiago v. Secretary of Defense Donald Rumsfeld, will be heard today in a special sitting of the 9th Circuit Court of Appeals in Seattle.

It will be the highest court review of the Army's "stop-loss" policy, which affects about 14,000 soldiers nationwide.

Of the 4,200 citizen soldiers in the state's 81st Brigade Combat Team, the deployments of 412 were extended through stop-loss, according to National Guard officials.

Santiago's legal battle has attracted national attention but is most loudly trumpeted by groups opposing the war, adding a political dimension to what his lawyer says is ultimately a case about fairness.

In November 2002, the Army implemented stop-loss to ensure reserve units ordered to active duty would not lose key personnel.

UPDATE: Amazingly, the Ninth Circuit issued this very short opinion summarily affirming the court below and refusing to give Santiago his injunction. Santiago will deploy to Afghanistan as scheduled. Thanks to Gene Vorobyov at Appellate Law & Practice for the pointer.

Army SGT Hasan Akbar, Accused of "Fragging" (CNN)

From the AP (via ABC News):

Jury selection began under tight security Wednesday for the court-martial of a sergeant accused in the grenade attack that killed two U.S. military officers in Kuwait in the early days of the Iraq war.

Sgt. Hasan Akbar who struggled with guards before a pretrial hearing last week arrived shackled and surrounded by armed guards. Military police were posted at every entrance to the court building and a bomb-sniffing dog searched all spectators.

It is the first time since the Vietnam War that a soldier has been prosecuted on charges of murder or attempted murder of another soldier during wartime.

Akbar, 33, is charged with stealing grenades and using them and a firearm in a March 2003 attack on fellow members of the 101st Airborne Division at Camp Pennsylvania in Kuwait.

In early questioning, none of the 20 soldiers in the juror pool said they had a religious objection to the death penalty or had ever been on the jury in a murder trial. One acknowledged having served at Camp Pennsylvania.

Akbar has allegedly confessed more than once to the attack and could get the death penalty if convicted. He has said he was worried that United States forces would harm Muslims in the war, authorities said.

Akbar is charged with two counts of first-degree murder and three counts of attempted premeditated murder. Army Capt. Christopher Seifert, 27, and Air Force Maj. Gregory Stone, 40, were killed and 14 other soldiers were injured.

Akbar's lawyers planned to use an insanity or diminished capacity defense. They also say Akbar has sleep apnea and has had problems staying awake at pretrial hearings.

A jury of 12 is to be selected. Testimony is scheduled to start Monday.

The panel will be allowed to see photos of the dead officers, which the defense had opposed. They also will see passages from Akbar's personal diary dating back to 2003. Prosecutors asked to show passages dating from 1992, but the judge wouldn't allow it.

Defense lawyers have said Akbar lacked the mental clarity to plan the attack. A military doctor said last week after examining Akbar that the soldier was competent to stand trial and assist his lawyers.

Related Posts:
1. Akbar Competent to Stand Trial
2. Fragger Tries to Escape
3. "Fragger" Court Martial Date Set (OLD BLOG)
4. Alleged "Fragger" Faces Court Martial (OLD BLOG)

UN Secretary-General Kofi Annan and ICC Chief Prosecutor Luis Moreno-Ocampo (New York Times)

From the New York Times, International War-Crimes Prosecutor Gets List of 51 Sudan Suspects ("The chief prosecutor of the International Criminal Court received a list of 51 suspects in the ethnic killing campaign in the Darfur region of Sudan from Secretary General Kofi Annan on Tuesday, opening the way for war crimes trials in The Hague. The confidential list, said to include the names of senior Sudanese government officials, militiamen, army officers and rebel commanders, was compiled by a United Nations commission in January. It reported then that war crimes "no less serious and heinous than genocide" had been committed in Darfur, and it recommended trial by the international court."); White House Has Tightly Restricted Oversight of C.I.A. Detentions:

The White House is maintaining extraordinary restrictions on information about the detention of high-level terror suspects, permitting only a small number of members of Congress to be briefed on how and where the prisoners are being held and interrogated, senior government officials say.

Some Democratic members of Congress say the restrictions are impeding effective oversight of the secret program, which is run by the Central Intelligence Agency and is believed to involve the detention of about three dozen senior Qaeda leaders at secret sites around the world.

By law, the White House is required to notify the House and Senate Intelligence Committees of all intelligence-gathering activities. But the White House has taken the stance that the secret detention program is too sensitive to be described to any members other than the top Republican and Democrat on each panel.

UPDATE: Phil Carter blogs about this trend of reigning in intelligence oversight, arguing that Congress hasn't been doing it's job in controlling the ultimate carrot and stick in this fight, the power of the purse.


Army SPC Wayne S. Grimm, Charged With Murder (Washington Post)

From the Washington Post, U.N. Gives Hague Court List of Suspects; Fairfax Defers to Army on Charge in Soldier's Killing:

An involuntary manslaughter case against a soldier charged with killing his roommate in Annandale has been dismissed so that the Army can pursue a murder charge against him, authorities said yesterday.

Spec. Wayne S. Grimm, 22, had been held without bond in the Fairfax County jail since the fatal shooting Feb. 13 of Spec. Michael Kenagy, 24.

But Fairfax Commonwealth's Attorney Robert F. Horan Jr. said yesterday that he received a letter from the Army, asking that Grimm be turned over to military authorities for prosecution on a murder charge. At Grimm's preliminary hearing Monday, prosecutors moved to dismiss the case, and Fairfax General District Court Judge William J. Minor threw out the manslaughter charge and released Grimm from jail.

"I was willing to defer to the Army," Horan said, "because they are dealing with service members, both the defendant and the victim. They certainly have a first-rate interest, and Virginia couldn't get any bigger penalty than they [the military] could get."

Sgt. Daniel Lee Galvan, CW3 Rogers's Alleged Victim (Honolulu Advertiser)

News from the Honolulu Advertiser:

A veteran Schofield Barracks helicopter pilot faces court-martial on charges including negligent homicide and reckless endangerment after a Black Hawk crash in Afghanistan last August that killed the helicopter's crew chief, the Army said.

Chief Warrant Officer 3 Darren R. Rogers also is charged with violating an order and negligent destruction of government property, the Army said. Trial is set for May 3 at Schofield Barracks. Rogers is with Company B, 2nd Battalion, 25th Aviation Regiment.

Sgt. Daniel Lee Galvan, a 30-year-old father of two from Moore, Okla., was killed in the Aug. 12 crash near the Pakistan border. Three other crew members and 11 Marines were injured.

Initial reports said the Black Hawk developed mechanical problems and went down outside Camp Salerno near Khowst.

However, Galvan's widow, Sonya, said the crash actually occurred in a "nap of the earth" low-level pass while the troop-carrying chopper piloted by Rogers was waiting to take part in a "quick reaction force" demonstration for a visiting VIP.

Nap-of-the-earth flying is the closest to the ground, trees or other obstacles conducted by the Army, usually at 25 feet or less.

"They were on standby for a maneuver ... and during that time that they were waiting, (Rogers) decided that he was going to show the Marines nap of the earth," Galvan said. "He did a dive, and on the second dive he couldn't recover."

Galvan said that in the transition to a dive, which momentarily created zero gravity, wheel chocks in the cabin floated in the air and came down on the helicopter's collective, which is used to control rotor blade pitch, and the chopper crashed.

Galvan said the wheel chocks coming down on the control was partly to blame, "but regardless of the chock blocks, they were at an altitude too low to ever recover the helicopter."

Rogers, reached at home on O'ahu Friday, said "that (the nap-of-the-earth dive) wasn't what caused it," but referred all other questions to his military attorney, Capt. Darwin Strickland. Strickland, a trial defense attorney at Schofield Barracks, declined to comment.

Sonya Galvan said her account is based on Army reports that she has obtained on the accident. The Advertiser could not independently verify her account.

ANALYSIS: If the widow's account is accurate (note that this is a hearsay account of a supposed Army report that may or may not exist), this is a classic case of "cowboying." This is a term that Army Aviators use to describe pilots who fly outside the rules and outside the mission as briefed. According to Army Regulation 95-1, before every flight, each pilot must get a mission briefing and risk assessment signed by their company commander or a higher ranking officer in the chain of command. On the mission briefing, the pilot must state the route of flight, flight altitude categories (or as Army aviators call them, flight modes), and other information. If CW3 Rogers is being charged with violating an order, this is probably the result of deviating from the mission briefing and flying "nap of the earth" (treetop level).

That said, it is extremely rare, if not completely unheard of, for military leaders to actually charge negligent pilots with a crime, even when death results. Usually, administrative sanctions are chosen, including temporary grounding, permanent disqualification from flight service, or even getting administratively discharged from the Army.

From the NY Times, Top Serbian Suspect to Face Tribunal ("Sreten Lukic, a former Serbian paramilitary commander who served as deputy interior minister from 2001 to 2003, was flown from Belgrade to the United Nations tribunal, accused of committing crimes against humanity during the 1999 war in Kosovo. A Serbian government statement said he had surrendered, but his lawyer told the Beta news agency that Mr. Lukic had been "approached by two men and taken." Mr. Lukic is one of the most senior Serbian suspects to be sent to face charges this year.").


Family of Army SFC Paul Ray Smith Receives Medal of Honor (Washington Post)

From the Washington Post, Soldier Killed in Iraq Gets Medal of Honor.

From USA Today, Missing Soldier's Case to Be Reviewed:

On Wednesday, almost exactly a year after Spc. Matt Maupin disappeared, the Army is scheduled to convene a panel to decide whether he should remain classified as a captive or be considered dead.

“We don't want him to be forgotten,” Carolyn Maupin said. “I am just afraid that if they move on, then what will we say when he shows up alive and we aren't there waiting for him?”

Top Army officials said Maupin has not been forgotten.

“We continue to look for Spc. Maupin, but we cannot provide any further details about those efforts,” said Lt. Col. Pamela Hart, an Army spokeswoman.

Still, the law requires the Army to re-examine his case after a year, and a panel of officers will meet in Washington to review evidence linked to Maupin's disappearance.

They will decide whether to reclassify him as “deceased, body not recovered.”

If reclassified, he would join 1,531 other servicemembers who have died in the war in Iraq.

In other news, First Medal of Honor in Iraq War Awarded.

From the Washington Post, POW Claims Bump Into Public Policy:

In April 2002, Tice, now a retired lieutenant colonel, and 16 other former POWs and their families sued the Saddam Hussein government in U.S. District Court in Washington. Iraq refused to contest the charges, and in 2003, Judge Richard W. Roberts determined that the plaintiffs were entitled to $959 million in damages, which would have to come from assets now controlled by the new U.S.-backed Iraqi government.

Yet today, the Bush administration is urging the Supreme Court to oppose the former prisoners of war. Resisting payment to war heroes forces the administration to walk an awkward political line, but it argues that the reconstruction of post-Hussein Iraq would be set back if the new government had to pay almost a billion dollars to the Americans.

"Whereas subjecting Iraq to suit . . . served the United States' foreign policy interests by threatening large damage awards for the wrongs of the Hussein regime, in the immediate aftermath of the removal of that regime by military force, such judgments would hinder crucial foreign policy objectives," the Justice Department told the court in a brief filed March 21.

The administration stance has drawn bipartisan fire from 20 members of Congress. The group, headed by Sens. George Allen (R-Va.), Patty Murray (D-Wash.) and Tom Harkin (D-Iowa), has signed a friend-of-the-court brief supporting the plaintiffs. It includes Maryland Reps. Elijah E. Cummings (D) and Roscoe G. Bartlett (R) and Virginia Rep. Virgil H. Goode Jr. (R).

The National League of Families of American Prisoners and Missing in Southeast Asia and the National Commander & National Adjutant of American Ex-Prisoners of War have joined in another brief backing the POWs; that brief was co-signed by former secretary of the Navy John F. Lehman, former national security adviser Anthony Lake and retired Adm. Thomas H. Moorer, a former chairman of the Joint Chiefs of Staff.

And a Web site affiliated with the POWs, www.stoppowtorture.org, charges the Bush administration with hypocrisy: "Despite Secretary [of Defense Donald H.] Rumsfeld telling Congress last summer that 'the right thing to do' was to pay Iraqi detainees injured by U.S. troops at Abu Ghraib, the U.S. government continues to fight in court to deny compensation paid out of Iraqi assets to the American Desert Storm POWs."

On Thursday, the U.S. Court of Appeals for the Armed Forces (CAAF) released an opinion in U.S. v. Brooks, No. 04-0348. CAAF was called upon to determine whether 18 USC 2422(b), as incorporated in Article 134, UCMJ, requires the defendant to directly induce a minor into having sex, or if inducing an adult intermediary to produce a minor for sex is enough for liability. The defendant communicated with an adult woman asking for her to bring her 8 year old sister to have sex. The appellant argued that the plain-meaning principle should dictate an interpretation that direct inducement of a minor is required. CAAF disagreed, instead deciding to bring the UCMJ in line with the Sixth and Eleventh Circuits' interpretation of 18 USC 2422(b).

From the NY Times: Soldiers Death in Iraq Ruled Accident ("A Bulgarian soldier in Iraq was killed accidentally by American forces last month when combat patrols from each country shot at each other in the dark in response to what each side thought was a hostile attack, an American military investigation has concluded. The soldier, Jr. Sgt. Gardi Gardev, died from gunshot wounds suffered in the incident that occurred on March 4 near the southern city of Diwaniya.).

From the Washington Post: Akbar Competent to Stand Trial ("Army Sgt. Hasan Akbar, who is charged with killing two fellow officers in a grenade attack in Kuwait two years ago, is competent to stand trial, a military judge ruled Friday. If convicted in a court-martial of two counts of premeditated murder and three counts of attempted premeditated murder, Akbar, 33, could get the death penalty."); Beating of Iraqi General Alleged in Army Hearing:

FORT CARSON, Colo., April 2 -- Previously secret court testimony indicates that an Iraqi general imprisoned by U.S. forces was badly bruised and may have been severely beaten two days before he died of suffocation during interrogation.

References to the alleged beating appear in a transcript, released under court order, from a preliminary military hearing for three soldiers charged with murder and dereliction of duty in the death of Maj. Gen. Abed Mowhoush on Nov. 26, 2003. A fourth soldier faces the same charges but waived a hearing.

During the interrogation, Army prosecutors said, Mowhoush was put headfirst into a sleeping bag, wrapped with electrical cord and knocked down before the soldiers sat and stood on him. The cause of death was determined to be suffocation.

The defendants -- Chief Warrant Officers Lewis Welshofer and Jefferson Williams, Sgt. 1st Class William Sommer and Spec. Jerry Loper -- have all denied wrongdoing. They said commanders had sanctioned their actions.

In other news, Sudanese President Vows to Defy U.N. Vote ("President Omar Hassan Bashir said Saturday that Sudan would not allow any national to be tried in courts outside the country, after the U.N. Security Council voted to send those accused of war crimes to the International Criminal Court for trial. In a speech broadcast on Sudanese radio, Bashir said the Sudanese justice system was good enough to try any Sudanese for crimes and that trials had already started for crimes in Darfur.").