JAG CENTRAL

I really should be studying for the bar, but since NPR's Talk of the Nation devoted an entire hour (click here to listen) to this topic today, I really must comment.

From the AP, word that a federal court has issued an arrest warrant against Jennifer Bier, the counselor who provided post-traumatic counseling to a female cadet who alleged that cadet Joseph Harding raped her. Apparently, she felt that the subpoena for her counseling records was not valid because Military Rule of Evidence 513 and the Constitution protected these records from disclosure. Two guests appeared on Talk of the Nation to discuss the case. The first was retired Navy RADM John Huston, the former JAG of the Navy and currently the President and Dean of Franklin Pierce Law School. He defended the legality of the subpoena and the arrest warrant:

Theoretically it is an appropriate thing to be doing...court martials are federal courts, the judges have worldwide jurisdiction, so this is an entirely legal thing to do.

Wendy Murphy, the attorney for Jennifer Bier, disagrees:

Counseling she provided is protected not only by Colorado law but by military law, MRE 513...and none of the explicit exceptions apply.

ANALYSIS: There are several layers of analysis to explore here. The first level was whether the military judge was right in issuing the subpoena. MRE 513 does provide a limited psychotherapist-patient privilege. However, there are exceptions. It appears that the only relevant exception to privilege is #8, which reads, "when admission or disclosure of a communication is constitutionally required." It appears here that the military judge has decided that the production of such records is required by the constitution to ensure that 1LT Harding receives a fair trial. Bier's attorney argues that while the accused might have a right to a fair trial, there is no constitutional right to pretrial production of civilian records that are otherwise constitutionally protected. Whether or not she is right may never be litigated because of the following procedural issues.

First of all is whether the military judge had the power to issue an arrest warrant. Military courts-martial do have the power of subpoena, according to 10 U.S.C. 847 and Rule for Court Martial 703. Any military judge may issue a warrant of attachment according to the UCMJ to any person within the U.S. to appear in a court-martial taking place in the U.S. Ms. Bier claims that the military judge is not interpreting the law correctly and therefore refuses to honor the subpoena duces tecum. However, this does not excuse her from violating the subpoena. Her only recourse is to try to argue this in front of the court martial. If she loses, she may appeal the matter to the Army Court of Criminal Appeals, but she can't disobey the order and seek relief in federal court.

But that's exactly what she's doing this week. Wendy Murphy, Ms. Bier's attorney, is seeking an emergency order to rescind the arrest warrant. Look for precedent-setting law depending on how the federal district court rules. Stay tuned...

From the Washington Post, word that the first convicted abuser at Abu Ghraib has finished his term ("Former Army Sgt. Javal S. Davis, the first Army reservist to be freed after serving time in the Abu Ghraib prisoner-abuse scandal, said he is a good person who was under tremendous stress amid horrific conditions in and around the prison. In his first interview since being released, Davis said the open sewage and constant fear of death from rockets and bombs around Abu Ghraib would "drive the most docile soldier from 'Gomer Pyle' into 'Full Metal Jacket.' " Davis was released from military prison Sunday after serving less than four months for mistreating detainees.").

From USA Today, Rumsfeld: Criticism of Gitmo Inaccurate ("Defense Secretary Donald Rumsfeld denounced Amnesty International for saying the U.S. military prison at Guantanamo Bay, Cuba, was “the gulag of our time.” Rumsfeld called the human rights group's characterization “reprehensible.” He said the U.S. military has done more than any other force to liberate oppressed people and has gone to great lengths to ensure that detainees are free to practice their religion.").

From the NY Times, Iraq to Move Up Trial of Hussein and Start It in Summer:

Jalal Talabani, the Kurdish politician who is the country's transitional president, said in a CNN interview from his headquarters in northern Iraq on Tuesday that he expected Mr. Hussein to be put on trial "within two months," a move that would break with earlier plans to defer his trial until later this year or next.

Further testimony from the alleged victim in the rape trial of Air Force Academy Cadet Benjamin Kuster:

The club outing was in part a celebration for the woman, who was graduating from the academy that month, and she admitted to participating in the revelry.

At a Saturday night dinner following a scuba dive, the woman and Kuster's fiancee linked arms in a champagne toast, and some of the male cadets talked of making the night "memorable."

Back at the cadets' motel, the woman consumed nearly a fifth of rum.

At one point, the woman pulled up her blouse and let cadets drink "body shots" off her torso.

Goaded on by male cadets, the woman kissed Kuster's fiancee, then kissed the woman and Kuster on a bed as other cadets took pictures.

"I think it was the environment of the room," the woman said when asked why she engaged in those activities.

She also said that during the bedroom episode, Kuster put his hand inside the back of her panties but she pulled back to discourage him.

Another cadet, Matthew Lare, disputed the woman's account, saying Kuster held his hand inside her panties for several minutes.

Asked by Kuster's attorney if the woman objected, Lare replied, "No, sir."

The woman testified she later went to sleep on the floor of a motel room. Kuster and his fiancee arrived soon after and slept beside her on the floor.

The woman said she was awakened about 1:30 a.m. by someone having sex with her.

She testified that she did not see the man's face but knew from his kiss that it was Kuster.

"I remember being confused," she said.

But she did not cry out, push or hit her attacker to tell him to stop, the woman told Kuster's attorney, Capt. Gwendolyn Beitz.

The woman said she did ask, "What about Kat?" in reference to Kuster's girlfriend.

The woman said the man quickly stopped having sex with her at that point and moved away.

Beitz sought to undercut the woman's testimony with a series of questions about why she did not wake up until she was having sex with her alleged attacker.

Kuster's attorneys suggested the woman concocted the rape charge for fear of being punished and prevented from graduating.

After the sexual assault scandal of 2003, academy policy was changed to grant amnesty to rape victims to encourage reporting of the crimes. Amnesty also erases a victim's own offenses related to a rape, such as underage drinking.

Kuster's attorneys said the woman had been scolded that evening by the club's sponsor, Maj. Adrian Michalicek, following the bedroom episode saying, "I'm not sure how this is going to affect your future."

The woman was the highest ranking cadet on the trip, and Kuster's attorneys said she was responsible for misconduct on the trip, which included underage drinking and her own kissing of another woman, which might be construed as lesbian behavior by the Air Force.

The woman said she delayed reporting the assault for a day because she knew another academy cadet "who had come forward with a rape case and was ostracized."

Boy, Niagara Falls is awesome. You should go if you haven't been. Take the Mrs.

After a week away from blogging and the littlest centrist, it's time to take stock of what's happened in the world of military justice:

1. All charges against Marine 2LT Ilario Pantano were dropped. He had been facing two counts of premeditated murder. Going one step further than the investigating officer, the convening authority also decided not to pursue any administrative charges against Pantano.

2. Jury selection began in the court martial of Air Force Academy Cadet Benjamin D. Kuster. He is charged with having sex with an intoxicated cadet. The government has charged him with full rape, and he faces a life sentence.

3. Navy SEAL Lt. Andrew K. Ledford was acquitted of any wrongdoing related to the alleged abuse by his team of Iraqis. The government had previously refused to release even the accused's name, as I wrote about here.

4. We think we heard the littlest centrist say "mama" last night, but it was in between a bunch of other baby babble.