JAG CENTRAL

One more post before I go to Vegas - this one was too good to pass up. Fellow MilBlogger Armchair Generalist gathers inside information to put out alternative theories on why Gen. Byrnes was fired from his TRADOC Command post--standing up for the good of the Army:

What has not been reported is that recently, one of Byrnes' subordinate commands, Fort Rucker in Alabama, had been told to stand by for an influx of 50,000 military trainees -- a level the base has not seen since the Vietnam War. Byrnes' relief of command came on the heels of the Pentagon announcing that it might permit Spanish-language entrance examinations. Byrnes, who was in charge of Army training, would not only face recruits with lower education levels and past criminal records, but a lack of proficiency in English. Pentagon insiders report that it was Byrnes' policy disagreements with the Pentagon neo-cons over the new recruitment policies and the potential for calling up Army retirees and reinstating military conscription without adequate TRADOC funding that resulted in his firing. The personal misconduct charges were concocted by the Pentagon to cover up the fact that there are serious disagreements with Bush and Rumsfeld among the flag officer ranks in the military.

Hmm...adultery seemed too convenient of a reason. The plot thickens. The Daily Kos has a different read on the true reason: a possible upcoming signature by Gen. Byrnes on a very public and critical open letter by 10 retired high-ranking generals:

Gen. Byrnes, scheduled to retire in November, may very well have been just about to add his name to that list. Remember, Gen. Byrnes has an otherwise unblemished 36-year record for service and was the head of TRADOC the Army's training division. Reading his speeches, one can only imagine this man's reaction to Abu Ghraib and Guantanamo if he (correctly, IMHO) perceived that the civilian leadership was scapegoating soldiers and their "poor training" for carrying out the administration's illegal torture policies.

Bush and Rumsfeld (who are meeting tonight in Crawford) had to move quickly to preempt such a credible and high-profile exposure of military dissent that could threaten to tip the balance in the coming debate over the anti-torture provisions in the defense bill and force the President to veto that juicy, pork-filled bill.

Best guess? Rumsfeld learned or surmised how Byrnes felt and anticipated his coming plans to join "the 11" and ordered some quick digging into Byrnes' private life. Turns out Byrnes, separated from his wife over a year ago but not yet officially divorced, had a girlfriend.

Bang bang Gen. Byrnes, your career and reputation are dead.

Categories: Byrnes

No blogging until Sunday.

UPDATE: Up $450 Blackjack, Up $40 Poker, Down $50 Slots. Not bad.

Categories: Miscellaneous

From the NY Times, Officials See Risk in Release of Images of Iraq Prisoner Abuse:

Senior Pentagon officials have opposed the release of photographs and videotapes of the abuse of detainees at Abu Ghraib prison in Iraq, arguing that they would incite public opinion in the Muslim world and put the lives of American soldiers and officials at risk, according to documents unsealed in federal court in New York.

Gen. Richard B. Myers, the chairman of the Joint Chiefs of Staff, said in a statement put forth to support the Pentagon's case that he believed that "riots, violence and attacks by insurgents will result" if the images were released.

The papers were filed in Federal District Court in Manhattan in an ongoing lawsuit by the American Civil Liberties Union to obtain under the Freedom of Information Act the release of 87 photos and four videotapes taken at Abu Ghraib. The photos were among those turned over to Army investigators last year by Specialist Joseph M. Darby, a reservist who was posted at Abu Ghraib.

In world military justice news from the Times, Israel: Jail for Soldier Who Shot British Activist ("A military court sentenced a former Israeli soldier to eight years in prison for the 2003 shooting of a 21-year-old British activist, who died of his wounds. Taysir al-Heib, a sergeant at the time of shooting, was convicted in June on six separate charges, including manslaughter, in the death of Tom Hurndall. Mr. Hurndall, a member of a group called International Solidarity Movement, was working with the Palestinians in the Gaza Strip and was trying to move children away from Israeli soldiers when he was shot in the head on April 11, 2003, according to witnesses. He never regained consciousness and died nine months later.").

From the Washington Post, MilBlogs get their props in the front page article, The New Ernie Pyles: Sgtlizzie and 67cshdocs:

Since the 1850s, when a London Times reporter was sent to chronicle the Crimean War, journalists have generally provided the most immediate first-hand depictions of major conflicts. But in Iraq, service members themselves are delivering real-time dispatches -- in their own words -- often to an audience of thousands through postings to their blogs.

"I was able to jot a few lines in every day, and it just grew from there," Le Bel, 24, of Haverhill, Mass., said in an e-mail. Her Web site has received about 45,000 hits since she started it a year ago.

At least 200 active-duty soldiers currently keep blogs. Only about a dozen blogs were in existence two years ago when the U.S. invaded Iraq, according to "The Mudville Gazette" ( http://www.mudvillegazette.com ), a clearinghouse of information on military blogging administered by an Army veteran who goes by the screen name Greyhawk.

Categories: Detainee-Abuse, Abu-Ghraib, MilBlogs, Newspapers

From the NY Times, an update on the Gen. Byrnes adultery scandal (see yesterday's post) entitled Adultery Inquiry Cost General His Command:

A four-star general who was relieved of command this week said Wednesday through his lawyer that the Army took the action after an investigation into accusations that he was involved in a consensual relationship with a female civilian.

The lawyer, Lt. Col. David H. Robertson, said the case "involves an adult relationship with a woman who is not in the military, nor is a civilian employee of the military or the federal government."

The general, Kevin P. Byrnes, was relieved Monday by the Army chief of staff, Gen. Peter J. Schoomaker, just a few months before General Byrnes was scheduled to retire as head of the Army Training and Doctrine Command.

The findings of an Army inspector general investigation have not been made public; because of that, military personnel who discussed the case asked not to be identified.

The Army is reviewing the case to see if further disciplinary action should be taken, including a possible reduction in rank and loss of some benefits, Army officials said.

Adulterous affairs are prohibited under the Uniform Code of Military Justice.

Two Pentagon officials said that a reduction in rank in General Byrnes's case was unlikely, given his otherwise unblemished record.

General Byrnes contends that he should be allowed to retire at his current rank because an investigation found no evidence that he had used his position as head of the training command in connection with the case, an Army official said.

General Byrnes has told associates that the relationship began after his separation from his wife, Carol Byrnes, in May 2004. General Byrnes, 55, filed for divorce in March, according to documents filed with the Texas district court in Henderson County.

The divorce became final this week, according to the statement issued by his lawyer.

Relieving a four-star general of command is unusual, and several Army officers said they considered the punishment surprisingly harsh for a general who was nearing retirement anyway.

But dozens of members of the military are disciplined every year for adultery and related offenses, and the Pentagon may have wanted to avoid the appearance of a double standard that could have resulted if it let a senior general retire at full rank after the Army had been alerted to the accusations.

From USA Today, General Lost His Job Over Romance, His Lawyer Says.

Categories: Byrnes, Adultery, Newspapers

Army Gen. Kevin P. Byrnes, Relieved of Command (DoD)

From the NY Times, the BIG story of the day: 4-Star General Is Dismissed:

The Army has abruptly relieved the four-star general in charge of training and recruiting after an investigation into unspecified "personal misconduct," Army officials said Tuesday.

The officer, Gen. Kevin P. Byrnes, was dismissed on Monday by the Army chief of staff, Gen. Peter J. Schoomaker, just a few months before General Byrnes was scheduled to retire as head of the Army Training and Doctrine Command.

In that position, which he assumed in November 2002, General Byrnes oversaw Army training programs and the development of the service's war-fighting guidelines. The command, which is based in Fort Monroe, Va., runs 33 training schools and centers on 16 Army installations, and will train 447,000 soldiers this year.

Asked at a Pentagon news conference on Tuesday about the rare disciplinary action taken against such a senior officer, Defense Secretary Donald H. Rumsfeld said: "It's something that's being handled in the proper channels. And it's not something that it would be appropriate for me to get involved with."

Army officials said the Defense Department inspector general handles personal misconduct cases, as opposed to the Criminal Investigation Command, which deals with criminal complaints.

A Pentagon spokesman, Bryan Whitman, told reporters that the investigation involved "matters of personal conduct," but he declined to elaborate. General Byrnes, 55, is married with two adult children.

Senior Army officials are now reviewing the inquiry to determine General Byrnes's retirement rank and benefits, but the officials said it was unlikely any further disciplinary action would be taken.

Reuters elaborated on the reason for the dismissal--the good ol' standby, sexual misconduct:

An Army official, speaking on condition of anonymity, said the disciplinary action followed an investigation by the Defense Department inspector general's office into "allegations of personal misconduct of a sexual nature."

The official offered no further details of the allegations against Byrnes, who is married.
....
Boyce said the investigation into Byrnes had been going on for "a couple of months" but could not say whether it began before Wallace was nominated to replace him. Boyce said he knew of no one else who was investigated for possible misconduct along with Byrnes, adding that any potential further action against Byrnes would be taken by Army officials.

ANALYSIS: Pentagon spokesmen today said they couldn't remember the last time an Army four-star general was relieved. Well, I had a few thoughts off the top of my head: MacArthur, McClellan, Burnside, Hooker, Halleck, among others. But upon further inspection, these don't qualify: MacArthur was a 5-star when Truman fired him, and the rest were 2-star when Lincoln fired them. I can't find any evidence of a 4-star being relieved of command formally. Some might argue that Patton's transfer from Third Army to Twelfth Army (a paper army charged with writing the history of WWII) by Eisenhower was tantamount to a relief of command, but there was no formal announcement like the one today.

What is the law governing relief of command in the Army?

AR 600-20, Army Command Policy, governs how the Army giveth and taketh away commands. Para. 2-17 governs relief for cause. It states that any senior commander may relieve a commander for cause; to be final, it must be approved by the first general officer in the chain of command. For Gen. Byrnes, that would be Gen. Schoomaker, Chief of Staff of the Army.

In other news, Bosnian Serb War Fugitive Arrested in Argentina ("After more than five years on the run, Milan Lukic, a Bosnian Serb militia leader wanted by the United Nations war crimes tribunal, was arrested in Buenos Aires. Mr. Lukic, at left in 1992, was indicted by the tribunal in The Hague in 2000 in connection with the abduction and killing of 20 Muslims in 1993, during the Bosnian war. Last year, he was sentenced in absentia to 20 years in prison by a Serbian court for the abduction, torture and killing of Muslim civilians. His arrest comes three months after another Serb war crimes fugitive, Nebosja Minic, was arrested in Mendoza.")

From the Washington Post, 4-Star General Relieved of Command. Always count on the WaPo to bring the juicy details:

Several defense sources familiar with the case, speaking anonymously because the investigation is not complete, said Byrnes is accused of having an "inappropriate relationship," and some described him as being involved in an extramarital affair.

Byrnes, reached by telephone at his home yesterday, declined to comment. His defense attorney, Lt. Col. David H. Robertson, said the allegation against Byrnes involves an affair with a private citizen. Byrnes has been separated from his wife since May 2004; their divorce was finalized on Monday, coincidentally the same day he was relieved of command, Robertson said.

"The allegation against him does not involve a relationship with anyone within the military or even the federal government," Robertson said, emphasizing that the allegations do not involve more than one relationship. "It does not involve anyone on active duty or a civilian in the Department of Defense."

Having an extramarital affair can be deemed adultery and a violation of the Uniform Code of Military Justice. But such cases rarely go to court-martial and usually end in administrative punishment such as a letter of reprimand, according to military lawyers. Relieving a general of his command amid such allegations is extremely unusual, especially given that he was about to retire.

Should American troops be required to build criminal cases against Iraqi insurgents in order to ensure they stay in jail? That's the focus of today's main story about MilJust in USA Today entitled When Shooting Stops, Troops Turn Detective:

In a little-noticed decision made within months of the U.S.-led invasion in 2003, the United States authorized creation of an Iraqi criminal court that would treat insurgents not as enemy combatants but as criminals.

At the time, the insurgency was in its infancy. Coalition Provisional Authority administrator Paul Bremer described the rebels as "a small minority of bitter-enders." Two years later, U.S. and Iraqi government forces are grappling with a violent and somewhat coordinated resistance that has claimed the lives of more than 1,800 servicemembers and thousands of Iraqi security troops.

The decision to treat insurgents as criminals has forced soldiers to act as cops and has authorities scrambling to build cases against thousands of detainees in U.S.-run prisons. Some soldiers say running rebels through the courts places American forces at a disadvantage, burdening soldiers in a guerrilla war with peacetime rules.

What's the role of judge advocates in all this? A main one is training soldiers how to gather evidence:

Soldiers with the Army's 3rd Infantry Division, responsible for the area in and around Baghdad, are drilled from the moment they arrive on the importance of gathering evidence, getting sworn statements from witnesses and taking good pictures that may later be used in court, says Col. William Hudson, the division's staff judge advocate.

Nearly every Humvee in the division is stocked with an "evidence kit," which includes blank sworn-statement forms, a digital camera, plastic gloves and a spray that detects gunpowder residue, he says.

"The paperwork (needed) for convicting these guys is substantial," says Capt. Bart Nagle, 35, of Richmond, Va., the intelligence chief for the Marine battalion in Ramadi. "The tendency is going to be, increasingly: 'How do you know it is him?' You have to become a police officer."

The files they assemble can include details on informants, diagrams, a summary written by each Marine involved in the case, a chain-of-custody report tracing the handling of evidence and photographs from the scene of an attack or capture.

In other news, Four-Star General Dismissed From Command.

Categories: Byrnes, Adultery, Newspapers, Iraq, Bosnia

More commentary on today's request for certiorari by Hamdan in front of the Supreme Court:

Read the actual brief here. It was written by Navy Lieutenant Commander Charles Swift, an infamous denouncer of the tribunals. I wrote about him a year ago in this post.

Lyle Denniston from SCOTUSBlog writes about the cert request in this post. He writes:

Hamdan's case is the most important war-on-terrorism appeal to reach the Supreme Court so far. Two rulings by the Justices in 2004 established some basic legal rights for detainees, to challenge their detention, and upheld presidential authority to detain foreign nationals -- at least for limited purpose. But the Hamdan case is the first to mount a direct challenge to plans to punish some of the detainees, and it raises legal issues that also will affect the rights of Guantanamo detainees who are not charged with war crimes but face the prospect of being held indefinitely.

Categories: Tribunals, SCOTUS, Hamdan, Swift

Is the failure to demonstrate in the record of trial a personal election of a panel containing enlisted members procedural or jurisdictional error? On Aug. 4, 2005, the U.S. Court of Appeals for the Armed Forces answered that question when affirming a conviction in U.S. v. Alexander, No. 04-0677.

Article 25(c)(1), UCMJ (10 U.S.C. 825(c)(1)), and R.C.M. 903(b)(2) both direct that an accused enlisted servicemember has the right to have a panel containing some members. However, both provisions also require the accused to make a personal election for enlisted panel members.

Both parties on appeal stipulated that the record of trial was silent as to whether a personal election was made by the accused, raising a presumption of error. The parties disagreed, however, as to the effect of the error. The accused argued that the failure to elect the type of panel rendered the court martial without jurisdiction, making him entitled to immediate relief. The government argued that the failure to record such an election is merely procedural error. As such, the accused must demonstrate prejudice in order to secure reversal, and the government argued there was no prejudice.

The court ruled that the error was merely procedural, and there was no prejudice. The court reasoned that previous cases in which a failure to record was present ruled that such an error was procedural when there was substantial evidence that an election took place despite the failure to record. The court held that in this case, since the accused was advised of the right to elect enlisted members, because the members were empaneled in his presence, because he went ahead with the trial in front of these members, and because he never objected, that a personal election was made.

Judges Effron and Gierke dissented, based on their analysis of the facts. They both agreed that, in other cases, such a failure to record the personal election of enlisted panel members could be merely procedural in nature, IF substantial evidence of the election existed. However, the judges disagreed with the court as to whether such evidence existed in this case.

Categories: CAAF, Appellate

From the NY Times, Supreme Court is Asked to Block Terror Tribunals:

Lawyers for a Guantánamo detainee asked the Supreme Court on Monday to consider blocking military tribunals for terror suspects, and to overturn what they called an extreme ruling by Judge John G. Roberts Jr., President Bush's nominee for the Supreme Court.

Judge Roberts was on a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit that ruled last month against the detainee, Salim Ahmed Hamdan, a Yemeni who was Osama bin Laden's driver in Afghanistan.

Mr. Hamdan's lawyers said in their filing that the appeals panel had rejected longstanding constitutional and international law.

"Its decision vests the president with the ability to circumvent the federal courts and time-tested limits on the executive," wrote Neal K. Katyal, a law professor at Georgetown University who represents Mr. Hamdan. "No decision, by any court, in the wake of the Sept. 11, 2001, attacks has gone this far."

The Pentagon maintains that it has the authority to hold military commissions, or tribunals, for terror suspects who, like Mr. Hamdan, were captured overseas and are now being held at the American naval base at Guantánamo Bay, Cuba.

A lower court judge ruled against the government, but Judge Roberts and two colleagues overruled him. Their ruling was handed down shortly before Judge Roberts was nominated for the Supreme Court, to replace Justice Sandra Day O'Connor, who is retiring.

The appeals court held that the 1949 Geneva Conventions governing prisoners of war did not apply to Al Qaeda and its members.

Mr. Hamdan's lawyers said that ruling was sweeping and "held that the president has the power to decide how a detainee is classified, ... how he is treated, what criminal process he will face, what rights he will have, who will judge him, how he will be judged, upon what crimes he will be sentenced and how the sentence will be carried out."

Mr. Hamdan, who was captured in Afghanistan in November 2001, denies conspiring to engage in acts of terrorism and denies he was a member of Al Qaeda. His trial was halted last fall when a district court ruled that Mr. Hamdan could not be tried by an American military commission unless a "competent tribunal" determined first that he was not a prisoner of war under the Geneva Conventions.

Ali Saleh Kahlah Marri, alleging mistreatment (Reuters)

From the Washington Post, U.S. Holding Talks On Return of Detainees ("The Bush administration is nearing agreements with 10 Muslim governments to return their detainees held at Guantanamo Bay, Cuba, part of an effort to quicken the pace of transfers and increase the role of countries whose nationals are alleged terrorists. Washington hopes to conclude the agreements within the next two months, a senior State Department official said. The United States is also pressing to persuade a European country to accept at least 15 Chinese Uigurs and two Uzbeks ready to be released, but who will not be returned to their home countries for fear they might be abused or tortured, the official said. Sweden last year turned down a request, a Swedish envoy said yesterday. Uigurs are a Muslim ethnic group with a large population in western China."); Detainee's Suit Alleges Mistreatment in Brig ("An alleged enemy combatant who has been held in U.S. military custody for more than two years filed a lawsuit yesterday alleging that he has suffered "inhumane, degrading and physically and psychologically abusive treatment" in a military brig in South Carolina. The 30-page complaint by Ali Saleh Kahlah Marri provides a rare glimpse into one of the most secretive facets of the U.S. government's anti-terrorism strategy, which includes a variety of detention tactics aimed at holding suspected terrorists outside the traditional U.S. criminal justice system.").

From USA Today, Detainee from Qatar Sues Over Treatment.

Categories: Guantanamo, Detainees, Marri, Hamdan, SCOTUS, Newspapers

From the NY Times, an important story about the Afghan prisoner abuse trials taking place at Ft. Bliss, TX, entitled Abuse Inquiry Opens Question of Army Tactics:

On Thursday, a 24-year-old military intelligence sergeant pleaded guilty to assault and dereliction of duty for abusing one of the prisoners during an interrogation. Another interrogator, accused of tormenting the same detainee, agreed to plead guilty two days before. Military lawyers said that a plea deal was being negotiated with a third interrogator and that two reservist military policemen who received lesser punishments were cooperating with the inquiry.

Military officials said they hoped the prosecutions would send a message that such abuses will not be tolerated, even in the country's fight against terrorism.

But whatever their long-term implications, the cases have so far tended to illustrate how unprepared many soldiers were for their duties at Bagram, how loosely some were supervised and how vaguely the rules under which they operated were often defined.

Along with other information that has emerged, trial testimony has underscored a question long at the core of this case: what is the responsibility of more senior military personnel for the abuses that took place?

Many former Bagram officers have denied knowing about any serious mistreatment of detainees before the two deaths. But others said some of the methods that prosecutors have cited as a basis for criminal charges, including chaining prisoners to the ceilings of isolation cells for long periods, were either standard practice at the prison or well-known to those who oversaw it.

None of the nine soldiers prosecuted thus far are officers. The 18 others against whom Army investigators have recommended criminal charges include two captains, the military intelligence officer in charge of the interrogation group and the reservist commander of the military police guards.

In the first interview granted by any of the accused soldiers, a former guard charged with maiming and assault said that he and other reservist military policemen were specifically instructed at Bagram how to deliver the type of blows that killed the two detainees, and that the strikes were commonly used when prisoners resisted being hooded or shackled.

"I just don't understand how, if we were given training to do this, you can say that we were wrong and should have known better," said the soldier, Pvt. Willie V. Brand, 26, of Cincinnati, a father of four who volunteered for tours in Afghanistan and Kosovo.

That's awfully hard to swallow, that they are being given training to beat prisoners, especially considering that other guards are saying they were not getting trained at all:

The lawyer for one of the former military intelligence soldiers, Sgt. Selena M. Salcedo, pointed to her lack of preparation as she entered a guilty plea, saying she had no prior training in interrogations and learned that she would be questioning prisoners only after arriving in Afghanistan.

Sergeant Salcedo, 24, said she became frustrated with Mr. Dilawar when he refused to look at her during an interrogation, a problem she said she faced as a woman dealing with Afghan and Arab detainees. She admitted kicking Mr. Dilawar in the knees and thighs, grabbing him by the ears when he looked away, and pulling him up repeatedly when he was unable to hold "stress positions" against a wall because of his injuries.

"She knew that she didn't have the training or experience as an interrogator," said her lawyer, Capt. Mario J. DeRossi. "She never once said, 'I can't do it.' "

Indeed, the only constant appears to be that these criminal soldiers can't keep their stories straight.

The military judge in most of the cases, Army Lt. Col. Mark P. Sposato, is one of the fairest and toughest judges I have ever seen. During my time at Ft. Bliss over two summers, I had the chance to observe over 30 trials that he presided over. He is very fair towards defendants, but at the same time does not tolerate grandstanding or character assassination by the defense. Here's an example:

The judge in the case, Lt. Col. Mark P. Sposato, appeared to be persuaded by those arguments, along with testimony that Sergeant Salcedo, too, had otherwise been a model soldier, finishing first in her training class, volunteering for duty in Iraq and being recommended for several awards. He brushed aside the prosecution's request that she be imprisoned for eight months and dishonorably discharged, and sentenced her instead to a one-grade demotion, a written reprimand and a $1,000 fine.

But like Colonel Pence, Colonel Sposato has thus far entertained few questions about the wider responsibility for abuses at Bagram, denying requests by Private Brand's lawyers to call a string of witnesses who they said could shed light on the orders and training the guards received.

Don't count on Lt. Col. Sposato allowing any defendants to call the likes of the SecDef, Gen. Sanchez or Gen. Abizaid in any future abuse cases.

Categories: Detainee-Abuse, Newspapers