JAG CENTRAL

Australian David Hicks, Guantanamo Detainee (ABC, Australia)

From the NY Times, Australian Group Campaigns to Free Guantanamo Prisoner:

In a little more than a week, a new grass-roots political movement here has gathered more than 7,000 names of supporters on its Web site in a campaign to free David Hicks, an Australian citizen being held in Guantánamo Bay, Cuba.

The organization, GetUp!, was founded this month by two young Australians. They collected the names for a letter to the Australian foreign minister, Alexander Downer, demanding that he take action to have Mr. Hicks, 30, brought back to Australia to stand trial.

Mr. Hicks was taken prisoner in Afghanistan in December 2001 and sent to Guantánamo. In June 2004, American prosecutors charged him with conspiracy to commit war crimes, attempted murder and aiding the enemy.

Australian officials have said repeatedly that he has not violated any Australian laws, so bringing him back would likely be tantamount to giving him his freedom.

"We're blown away," Lachlan Harris, a spokesman for GetUp!, said about the response to the campaign. "Signing a letter for someone accused of serious crimes is not something one does lightly."

A spokesman for Mr. Downer dismissed the campaign. "It's another group attacking the Howard government," said the spokesman, Chris Kenny, referring to Prime Minister John Howard. "What's new?"

GetUp! describes itself as a progressive organization - its founders say they were inspired by the left-leaning American advocacy group MoveOn.org, - but its campaign coincides with a growing discomfort among Australians across the political spectrum over the lengthy detention of Mr. Hicks and the fact that American officials plan to try him in a secret military tribunal rather than in open court. In closed-door meetings of Mr. Howard's center-right Liberal Party, increasing numbers of party members are expressing concern.

In a break from the normal practice of not speaking on political issues, the chief justice of the Supreme Court for the country's most populous state, New South Wales, who is a Labor government appointee, this week offered a glancing criticism of the American procedures. "Military justice bears the same relationship to justice as military music does to music," the justice, Jim Spigelman, told The Sydney Morning Herald.

VERY ORIGINAL, Justice Spigelman...would you like to make a joke about military intelligence while you're at it? They should give him his own show on Comedy Central...moron. By the way, I happen to like a little John Philip Souza now and then...

From the Washington Post, S. Korea Says Papers Prove War Crimes:

South Korean officials said documents declassified on Friday offer proof that the Japanese government remains legally responsible for crimes it committed during its 1910-1945 occupation of the Korean Peninsula, including forcing Korean women into sexual slavery.

The documents stem from secret talks between South Korea and Japan in 1951 and 1965, which led to the establishment of diplomatic ties and a Japanese payment of $800 million in compensation to South Korea.


In a statement, the South Korean prime minister's office said it would pursue efforts to force Japan to take responsibility for what it says were crimes against humanity committed before and during World War II.

"The illegal activities against humanity, including the issue of comfort women, committed by the Japanese government and army cannot be seen as resolved by the [1965] treaty," the statement said. Comfort women is a euphemism for the estimated 200,000 women, most of them Koreans, who were forced into sexual slavery by the Japanese occupation army.

Categories: Hicks, Australia, Guantanamo, Tribunals, South+Korea, War+Crimes, Japan, Nespapers

In a story that's likely to keep the military appellate courts busy for the foreseeable future, AP is reporting (via MSNBC) that an Army DNA analyst has admitted to falsifying DNA results in at least one case:

The Army is investigating allegations that a civilian forensic examiner at the Army Criminal Investigation Laboratory at Fort Gillem, Ga., falsified DNA test results.

The allegations, if true, would throw into doubt hundreds of criminal cases dating back at least a decade.

The examiner on June 2 admitted to making a false entry on a control sample used during one DNA examination, and the laboratory is now reviewing 479 or more cases the accused examiner has worked on since he began in 1995, according to an announcement Friday by the Army Criminal Investigation Command, or CID.
....
The lab at Fort Gillem is the only Army facility that performs forensic examinations in support of military criminal cases. It provides services to all military investigative agencies and is the only accredited full-service crime lab in the federal government outside the FBI.

This was not the first indication of potential problems at Fort Gillem. The examiner now under investigation was temporarily suspended from DNA case work in January 2004 when contamination was detected in his testing process, officials said. After “remedial action and retraining” he was returned to work in September 2004.

No other details of the earlier suspension were released Friday.

“We are taking every step necessary to ensure we have an independent, impartial review of the issues at hand,” said Chris Grey, a CID spokesman. “At this time the incident appears to be isolated to one individual examiner, but we want to take very step necessary to make certain that is the case.”

The CID investigation is being led by the command’s Standards of Conduct Office, and the Pentagon’s inspector general has been asked to conduct an independent review of the CID probe once it has been completed.

Categories: CID, Army, DNA

West Point First Captain Cadet Stephanie Hightower (USMA)
Despite Cadet Hightower's High Ranking Position, Female Cadets Continue To Report Harassment

From the NY Times, Two Academies Faulted on Treatment of Women:

Hostile attitudes and inappropriate treatment of women persist at the United States Military Academy and the Naval Academy, a committee appointed by the Pentagon said in a report issued Thursday.

The panel called on the academies to improve training of prospective officers, saying the value of women in the military should be better emphasized. It said present training regarding sexual harassment and assault was inadequate, resulting in misunderstandings by cadets and midshipmen about how to obtain medical care, counseling and legal assistance.

The report was compiled by the Defense Task Force on Sexual Harassment and Violence at the Military Service Academies, which was made up mostly of military officers and experts on sexual harassment and assault. It is the latest to deal with sexual issues and cultural attitudes at the academies since a rape scandal at the Air Force Academy surfaced in January 2003.

From the Washington Post, Military Academies Faulted on Harassment, 5 Chinese Detainees Given More Freedom at Guantanamo:

Officials at the U.S. detention facility at Guantanamo Bay, Cuba, have moved five ethnic Uighurs into a less restrictive area of the prison while the United States tries to find a way to free the Chinese separatists in a third country.

The Uighurs are part of a group of 15 who have been held at Guantanamo Bay for three years but have been found to pose no threat to the United States or its allies. Last week they were transferred from cells to an area known as Camp Iguana, where they have use of an entertainment room, a kitchen and an outdoor recreational area, U.S. lawyers told a federal court judge at a hearing yesterday.


But they are still surrounded by a fence, have minimal contact with the outside world and are uncertain when their legal limbo will end.

Although five have been found not to be enemy combatants and all 15 have been cleared for release from Guantanamo Bay, the United States has found no country to accept the Uighurs (pronounced wee-gurs ), Muslims who are seeking their own homeland on territory that is now part of northwestern China. The United States will not return them to China for fear that the government would persecute or torture them. The Uighurs have fought the Chinese government and are accused of terrorist attacks there.

From USA Today, Pentagon: Academies Set Climate For Abuse, and this editorial entitled, Military Academies and Sex Abuse: 15 Years of Failure:

The ugly bottom line: Nearly 30 years after women were finally admitted to the academies, and when women are being increasingly relied on in combat situations, too many cadets and some officers are lost in the past.

In a survey last year, more than 50% of the women at the three academies reported being sexually harassed.

The task force offered more than four dozen recommendations, ranging from tougher consequences for violators to putting more women in visible positions of leadership. Most should have been obvious long ago. But the record is one of addressing the issue only sporadically and incompletely. It is, in short, a failure of military leadership.

Despite the musings of misogynists, women are in the military to stay. Sexual harassment is, in the words of the task force, not a “fix and forget” problem. “What is needed now is a long-term, sustained effort.”

Categories: Newspapers, Sexual+Harassment, West+Point, Annapolis, Guantanamo

"The medics always have the best drugs!" - Matt Damon in Courage Under Fire (Yahoo Movies)

From Stars and Stripes, this article about an Air Force Captain in Germany who has skipped town facing a court martial for taking a little too much from the medicine cart:

Air Force investigators are looking for an officer they suspect skipped town to avoid a court-martial on drug charges, an Air Force spokesman said.

Capt. Michael Anthony Kaczorowski has been missing since Aug. 15, when he didn’t report to work, base spokesman Capt. Tom Crosson said Thursday. Kaczorowski, 38, is a clinical nurse assigned to the 52nd Medical Operations Group, which serves Spangdahlem Air Base.

Investigators believe that Kaczorowski may have left due to his upcoming court-martial, but they aren’t certain and probably won’t know until they find him and talk to him, Crosson said.

He was scheduled to face a court-martial in October on charges of wrongful use of a controlled substance. He now could face an additional charge of flight to avoid prosecution, but Air Force officials are more concerned about finding why he went missing.

“At this stage, we just want to get him back,” Crosson said. “We want to make sure he’s OK, that he’s safe.”

You gotta love those flyboys...they really know how to screw up. Before, he was probably just facing a GOMOR and a dismissal. Now, he's looking at hard time. Hope stealing from the medicine cart was worth it.

Categories: Drugs, Air+Force, AWOL

Last Friday, C.A.A.F. released its opinion in U.S. v. Deisher, No. 04-0555. Deisher was convicted of several offenses, including failure to obey a lawful order. Deisher was involved in an altercation with another airman. A security forces Staff Sergeant told him three times to stay away from the other airman, and apparently Deisher defied him.

The defense made a pretrial motion to dismiss the failure to obey specification. C.A.A.F. had just released its opinion in U.S. v. New, 55 M.J. 95 (C.A.A.F. 2001) (which is a really cool case) (whether an order is lawful is a legal question, to be decided by the military judge, reviewed de novo by the appellate court). The military judge thought the question (whether the order was lawful) was too factually specific, and over the objection of the defense, passed the issue on to the members.

The majority held that this was reversible error. Rather than reviewing the record (de novo) to determine whether the order was lawful, the court held that the military judge should make the determination himself after hearing the testimony of witnesses. He’s not allowed to punt to the members, but he does need to take into account the persuasiveness of the witnesses.

Judges Crawford and Baker filed dissenting opinions. The main thrust of Judge Crawford’s dissent was that the error was harmless because the members of the court martial found beyond a reasonable doubt that the order was lawful (so of course the judge would have found by a preponderance that it was lawful).

Judge Baker, however, thought that the court should exercise its de novo power to determine whether the order was lawful. If it is a legal question, there is no reason to remand to the trial court.

I found Judge Baker’s opinion to be the most persuasive. Lots of legal questions (admissibility of evidence, which jury instructions to give, etc.) cannot be submitted to the jury / members. Imagine a judge who said, “I can’t decide whether this warrant was supported by probable cause or not. I’m going to submit the question to the jurors, and I will instruct them to consider the resulting confession ONLY IF the arresting officers had probable cause.” It seems that the jury’s decision would not render that error harmless. Judges apply the law, not jurors. (But note, before the UCMJ was amended to create the Military Rules of Evidence, in the mid 1980s I think, confessions were admitted under a similar “two-tiered” process, where the members decided whether the confession was admissible. Even then, the judge had to make a threshold determination.) Judge Crawford did not convince me that the juror’s decision on a legal question should render the judge’s refusal to answer that question harmless. (Isn’t that a mouthful?)

On the other hand, this is a very fact-sensitive question. Under MRE 104 (and the corresponding Fed. R. Evid. 104), the judge has to do some fact-ish things. It’s sort of a quasi-legal inquiry, and maybe (contrary to Judge Baker’s opinion) there are questions that are too factually specific for an appellate court to answer, but still legal enough that a jury finding won’t satisfy. What do you think?

Categories: CAAF, Appellate

Army Gen. Peter J. Schoomaker, Chief of Staff of the Army (Wikipedia)

Today, Gen. Peter J. Schoomaker, Chief of Staff of the Army, ordered all soldiers to tighten up operational security (OPSEC) on personal web sites and blogs. Because the message was marked For Official Use Only (FOUO), I cannot publicly release the text of the message. However, the general gist was that the enemy reads the internet just like we do, so we need to be careful about what we put out publicly. Gen. Cody, Vice Chief of Staff of the Army, put out a similar message regarding photos on web sites and blogs.

Listen up MilBloggers - Blog all you want, but don't hurt your unit or the one next to you. Save your camera for the MWR Tent and the Iraqi School visits. Don't post a picture of a burnt out tank - you just might be causing another one to burn.

Categories: MilBlogs, OPSEC, First+Amendment

Army CPL Patrick Tillman, Whose Death Is Receiving A New Inquiry (AP)

From the NY Times, Soldier Sentenced in Detainee Death ("A military intelligence interrogator was sentenced to two months in prison after admitting that he abused an Afghan detainee who later died. The interrogator, Specialist Glendale C. Walls, pleaded guilty to dereliction of duty and assault. In addition to the prison sentence, he was reduced in rank and pay and will receive a bad-conduct discharge. He admitted that he stood by as Sgt. Selena M. Salcedo lifted a detainee known as Dilawar by the ear and as Specialist Joshua R. Claus made another detainee roll around on the floor and kiss Specialist Walls's boots. Specialist Walls also admitted to pushing Dilawar against a wall during the interrogation in which Sergeant Salcedo abused him."). ANALYSIS: I commented on the trial of PFC Brand, another interrogator being tried with SPC Walls, SGT Salcedo, and SPC Claus, in this post. A key issue has been the inability of the accused interrogators to call high-ranking officers as defense witnesses. Their theory is that these officers sanctioned and at sometimes even ordered the abusive tactics they are accused of concocting themselves. Lt. Col. Mark Sposato, the military judge in these cases at Fort Bliss, TX, has dismissed the defense requests as irrelevant and cumulative.

In other news from the NY Times, Soldiers Death Under Review ("The Pentagon's inspector general is reviewing the Army's investigation into the death of Cpl. Pat Tillman, a former professional football player, a spokesman said. Corporal Tillman joined the Army after the Sept. 11 attacks. On April 22, 2004, he was killed in Afghanistan by fellow soldiers who mistook him for the enemy, military officials have said. A report by Brig. Gen. Gary Jones of the Army Special Operations Command found that the Army knew within days how Corporal Tillman died but kept the news secret for weeks and destroyed evidence."); Military Database is Hacked ("A hacker tapped into a military database containing Social Security numbers and other personal information for 33,000 Air Force officers and some enlisted personnel, an Air Force spokesman said. The figure represents about half the officers in the Air Force, but no identity theft had been reported as of early Tuesday, said Tech. Sgt. James Brabenec, a spokesman at the Air Force Personnel Center at Randolph Air Force Base in Texas. The case is under investigation."); Three Detainees Are Released ("The Pentagon said three detainees at its prison in Guantánamo Bay, Cuba, had been sent home to Iran, Yemen and Tajikistan. It said the Iranian detainee was recommended for release by an annual administrative review board. The Iranian Foreign Ministry said the man, Muhammad Anuarkord, required treatment for mental disorders that he developed in the prison. The State Department disputed the accusation.").

From the Washington Post, Investigations Into Tillman's Death Reviewed.

Categories: Detainee+Abuse, Tillman, Afghanistan, Guantanamo, Identity+Theft, Newspapers

Opening a new front in the struggle against the military's ban on open homosexual service, the Oregon State Bar has voted (via the Oregonian) to ban advertisements by the National Guard in its monthly journal:

The Oregon State Bar board has voted to ban the Oregon National Guard from advertising in the bar magazine because of the military's controversial policy on homosexuals.

In an 11-3 vote Friday in Klamath Falls, the board turned against a recommendation from its advisory committee that would have allowed the Oregon State Bar Bulletin to resume accepting recruitment ads from the Guard.

The committee last month had urged the board to exempt the military from the bulletin's policy of prohibiting ads for employers that discriminate in hiring.
....
The bulletin had become a prime recruiting tool for the Guard, which sought judge advocates through ads published once or twice a year for the past five years at a cost of $30 each. Now, Caldwell said, the Guard will depend more on law schools and word of mouth to attract new judge advocates.

The Guard employs about 15 judge advocates, but recent deployments abroad have left half a dozen openings, Caldwell said. The judge advocates provide legal defense to soldiers and their families during trials and aid with other legal matters.

The bar's ban on military advertising also sends what Caldwell called a conflicting message. In recent years, dozens of Oregon lawyers have "leaned over backwards" to offer part-time pro bono assistance to the Guard, he said.

"But on the other hand, now they don't want to support people coming in internally," he said.

Categories: Don't+Ask+Don't+Tell, State+Bars

In a case that sort of hits home to this former aviator, the Biloxi Sun-Herald ran this article about an Air Force instructor pilot who decided to give the answers to a very important test to his student pilots:

Capt. Richard Brimer, allegedly a key figure in a cheating scandal at Columbus Air Force Base last year, Thursday waived his right to a hearing and now faces court-martial, base officials said.

Brimer, an instructor pilot with the 41st Flying Training Squadron, initially was accused of failure to obey a lawful regulation, making a false official statement and conduct unbecoming an officer by distributing controlled test answers, according to an earlier base statement.

Officials said Brimer waved an Article 32 hearing, the military equivalent of a civilian grand jury hearing, and the commander of the 14th Military Flying Wing accepted the decision.

The Air Force will proceed with court-martial although a final decision on the actual charges still is being negotiated, said Sonic Johnson, chief of public affairs at CAFB.

This wasn't any ordinary test, either:

Eleven officers in the T-37 phase of specialized undergraduate pilot training were accused of cheating on emergency procedures examinations that are a small but important part of pilot training. Brimer was the pilots' instructor on the training jet.

The pilots, ranging in rank from second lieutenant to captain, received nonjudicial punishments including forfeitures of pay ranging from $250 to $1,675 per month for two months and reprimands for unacceptable conduct offenses.

The investigation began when base officials were alerted that the officers may have been given answers to at least one and possibly more of the tests.

Johnson, a former instructor at the base, said pilots need to know emergency procedures "off the top of their head for when they fly solo. Not knowing them, they may not be able to properly recover an aircraft in an emergency situation."

ANALYSIS: No kidding. An inability to perform emergency procedures verbatim from memory in an actual emergency could prove disastorous. There's no time to consult the checklist when an engine flames out. Unlike other parts of the manual, which can be demonstrated through general knowledge, the student pilot must be able to recite emergency procedures verbatim. Any deviation is considered a serious deficiency and usually will hold someone back during flight training. It's even more important in the Air Force, where competition for the top fighter slots is fierce. Obviously, the potential for abuse exists, and CPT Brimer allegedly took advantage of that opportunity.

Categories: Air+Force, Cheating

On Tuesday, The U.S. Court of Appeals for the Armed Forces (CAAF) affirmed the Army Court of Criminal Appeals, which had overturned the findings and sentence of Sgt. William J. Kreutzer [See the Centrist's original post]. The case could be considered an exercise in limited scrutiny.In 1996, Kreutzer hid himself in the woods with two rifles at Ft. Bragg and waited for his brigade to begin a scheduled morning run. When they emerged from a nearby stadium, he opened fire, wounding 18 and killing one officer. He assumed he would kill himself or be shot by the MPs, but some special forces soldiers running in the area found and subdued him. At a capital court martial, Kreutzer was charged with premeditated murder and attempted premeditated murder. He pleaded guilty to lesser included offenses, so the trial itself was "limited" analysis- whether the acts were premeditated, thus meriting capital punishment. He was convicted of all counts and sentenced to death. The Army CCA set aside the sentence due to ineffective assistance of counsel, but also set aside the findings and sentence because the military judge erroneously denied Kreutzer's request for a "capital mitigation specialist". That second ruling was certified (appealed) by the Army's TJAG. TJAG did not appeal the CCA's holding that denial was error; only the decision that the error was not 'harmless'.
[[A "capital mitigation specialist" is an investigator / strategist who works for the defense. The opinion suggests that it's usually someone with a social science background. See this article from NACDL.]] Here's my synopsis of the case: Assume that the military judge erred when he denied Kreutzer’s request for a mitigation specialist (the government waived any objection to that part of the decision). The Army CCA held that this error was not “harmless”. Was the CCA correct? Held: The error was not harmless. A constitutional error is reversible unless it was "harmless beyond a reasonable doubt." Because the mitigation specialist might have uncovered evidence relevant to the findings of premeditation, and that evidence might have led at least one member to change their vote to not guilty, the error was not harmless.

Some interesting things about the opinion:
(1) The court assumed that the military judge violated due process when he denied the request for a mitigation specialist. TJAG did not appeal that portion of the CCA's decision, and the court chose not to reach it (note 2). That is why J. Crawford dissented; she thought the majority should have addressed that ruling, and she would hold that there is no right (constitutional or otherwise) to a mitigation specialist.

(2) Though the court "assumed" the decision was error, it described that error as one of "constitutional magnitude" and strongly encouraged MJs to grant such motions in the future (note 7).

(3) At the CCA, Kreutzer won a resentencing due to ineffective assistance. No one contested that at CAAF- all this was about whether he should receive a new trial on the merits, too.

(4) The court discusses two types of harmless error analyses. For non-constitutional trial errors, an error is harmless unless it had "substantial influence" on the result. But for constitutional errors (and errors with constitutional dimensions or constitutional magnitude), the party benefiting from the error must prove beyond a reasonable doubt that the result would have been no different if the error hadn't happened.

(5) Both of these inquiries are distinct from the "prejudice" prong of Strickland's ineffective assistance of counsel test. To establish the counsel was ineffective, the defendant must show that there is a reasonable probability that the result would have been different if counsel had not been deficient. The defendant (who did NOT benefit from the error) bears the burden.

(6) The CCA ruled that ineffective assistance invalidated the sentence, but not the findings (of premeditation). The ineffective assistance at issue was counsel's failure to discover the mental health info. So, under the CCA ruling, would the mental health info change the result on findings? The government could not prove that it wouldn't (substantial influence), so the mitigation specialist error was reversible. But the defendant couldn't prove that it would, so there was no prejudice and thus no ineffective assistance.

CAAF's ruling is a little easier to swallow - it is possible that the info would have changed one member's vote on premeditation; but it is not reasonably probable.

At the end of the day, what does this mean?
(1) Sgt. Kreutzer will get a retrial, not just a resentencing, (2) MJs who pay attention will start liberally granting mitigation specialist requests, and (3) MJs might be more likely to admit mental health evidence on issues of premeditation.

UPDATE: Capital Defense Weekly posted about Kreutzer. See also the AP article.
Categories: Death+Penalty, CAAF, Appellate

JAG Central is pleased to introduce co-blogger LawyerDad. His first post is below.

LawyerDad brings a new perspective to the blog. He is a third-year law student at the University of Arkansas and may join the JAG Corps in the future. His experience in military justice comes from a summer interning at the U.S. Court of Appeals for the Armed Forces. He hopes to blog in-depth on cases before the various military appellate courts. Welcome LawyerDad!

Categories: Miscellaneous

Former Army SGT Kayla Williams (NY Times)

From the NY Times Magazine, 21 Questions with former Army SGT Kayla Williams, the author of a new book and a self-admitted prison abuser in Iraq:

Q: Your new book,''Love My Rifle More Than You,'' brings a chick-lit sensibility to your stories about life in Iraq and essentially characterizes our male soldiers as so many frat boys groping women.

I just couldn't believe that guys would hit on me when I was the dirtiest that I ever was in life, with dirt caked into my hair. We only had enough water to bathe once a week.

Your book describes an appalling game played by the soldiers, in which they toss rocks at you and aim for your breasts.

They would also throw rocks at each other's penises for fun. It was very strange to see. But in a way it was natural. When you're in Iraq, you search for just about anything to ease the mind-numbing tedium of having nowhere to go and nothing to do.

As a college-educated American who originally enlisted to study Arabic and national security, couldn't you think of any other way to spend your free time? Why not read a book or play baseball?

I read a book a day. And we played fake baseball using a stick and rocks.

What is the Army policy on sex between soldiers?

It isn't covered in General Order No. 1A, which is the main order for soldiers deployed in Iraq, which says you can't drink alcohol or have porn or keep pets, which everyone does anyhow. My personal chain of command said if you are married, don't do it, and if you're not married, just don't get caught. A lot of girls got sent home pregnant.

Categories: Detainee+Abuse, Iraq, Newspapers