JAG CENTRAL

As the end of the term nears, C.A.A.F. is releasing opinions faster than I can keep up. On August 25, the court released its opinion in U.S. v. Rollins, No. 04-313. At the time the case was decided, there was a five year statute of limitations for "indecent acts", a lesser included offense of rape. There was no such limitation on rape or attempted rape.

The members found Rollins not guilty of 2 counts of attempted rape, but guilty of the lesser-included indecent acts offenses. The trouble is, he was convicted of indecent acts "on divers occasions" between 1989 and 1995 in one specification, 1989 and 1987 in the other. Any activity before 1995 was excluded by the five year statute of limitations.

The military judge, relying on a previous AFCCA case, assumed that the SOL for indecent acts had been extended. After trial, but before the convening authority acted, CAAF overruled that AFCCA case (see U.S. v. McElhaney, 54 M.J. 120 (C.A.A.F. 2000)). So the five year SOL applied. What to do?

The convening authority, on the advice of his staff judge advocate, modified the findings so that they now read guilty of indecent acts on divers occasions in 1995, and between 2995-1997. (So the specifications only referred to time periods within the SOL). But given the form of the verdict, we don’t know whether the members believed beyond a reasonable doubt that indecent acts were committed during those periods.

One more issue was addressed: ATTENTION active-duty servicemen and servicewomen: you do not have a First Amendment right to give pornography to a minor in a public place so that you might mutually [aggrandize] yourselves.

It's now five years later. Who knows if the witnesses are still available, and can testify to specific instances during those limited periods. The statute of limitations for indecent acts has been changed, so this exact situation is unlikely to arise again. Furthermore, the MJ was following AFCCA precedent, so it seems like he was doing his job. If anyone could have avoided this situation, it was the government. If you’ve got the goods (evidence) for specific instances, why bother with “divers occasions”?

I’d be happy to hear from any trial counsel who can explain it to me.

Categories: CAAF, Appellate

From the Washington Post, Pentagon Alters Rules in Trials of Guantanamo Detainees:

The Defense Department is changing several rules governing its military trials of terrorism suspects held at the U.S. naval base at Guantanamo Bay, Cuba, department officials said yesterday.

Pentagon officials portrayed the changes as improvements to a process they have repeatedly asserted assures all defendants a full and fair trial. Some private legal experts welcomed the changes but said they did not go far enough and did not address some of the most objectionable features of the trial system.

At a Pentagon news conference in which he announced the procedural changes, Air Force Brig. Gen. Thomas L. Hemingway declined to say whether the adjustments amounted to major changes or minor tinkering.

"This will make for a more orderly process," Hemingway said. Asked whether the changes make the trials more fair, he replied, "Ultimately it might be, in the eyes of some people."

He said the most significant changes pertain to the duties of the presiding officer of the trials, or commissions. Under the new rules, the presiding officer is more like a judge in a court martial or civilian court and is required to rule on all questions of law; the other members of the commission will function more like a jury and are no longer permitted to participate in deciding most legal questions, Hemingway said.

The presiding officer can no longer vote with commission members on findings of guilt or innocence and sentencing. However, a majority of the other commission members may overrule the presiding officer on rulings regarding the admissibility of evidence, as was the case previously.

UPDATE: Dave Glazier at Intel Dump has a stinging criticism of the new rules, stating that "the changes actually do nothing to improve the fairness of the proceedings, and in one key respect actually represent a potential step back."

Categories: Detainees, Tribunals, Guantanamo, Newspapers

Dragan Zelenovic, Bosnian Serb Fugitive (UN.org)

From the NY Times, Bosnian Serb Sought By Tribunal Arrested ("Russian investigators have detained a Bosnian Serb wanted by the international tribunal in The Hague, officials told news agencies. The suspect, Dragan Zelenovic, a paramilitary commander during Bosnia's civil war, faces 14 counts of rape and torture stemming from the Serbian seizure of the town of Foca in 1992. He reportedly lived for several years under an assumed name with a Serbian passport in Khanty-Mansisk, a region in western Siberia, where he was detained on Thursday, the region's police chief, Anatoly Vorotov, told the official RIA Novisti news agency.").

From the Washington Post, Lawyers Seek Release of U.S. Detainee in Iraq:

An Iraqi-born U.S. resident who was arrested in Baghdad in April after a mortar attack on American forces has been detained for months despite a finding by a military tribunal that he had nothing to do with the attack, according to the man's attorneys.

American Civil Liberties Union and private lawyers are demanding the release of Numan Adnan Al Kaby and seeking a declaration that his detention has violated his right to counsel and his right to due process. They are to file a lawsuit in federal court in Washington today.

Al Kaby's plight appears similar to problems faced earlier this year by Cyrus Kar, an Iranian American filmmaker who was arrested in Iraq on suspicions that he was involved in a terrorist plot.

Only after his family petitioned a federal court did the military move to release Kar, a naturalized U.S. citizen and Navy veteran. Like Al Kaby, Kar had been cleared by a military panel but remained in jail even though the military panel had recommended his release.

The two men were housed in adjacent cells at Camp Cropper near Baghdad and were, at least nominally, in solitary confinement. But they were allowed to talk to each other because they had both been "cleared" and they came to know each other quite well, according to the petition.

It was Kar who, after his release in mid-July, told Al Kaby's family what had happened to Al Kaby after his arrest.

Categories: War+Crimes, Iraq, Bosnia, Newspapers

From the NY Times, Air Force Bans Leaders' Promotion of Religion:

The Air Force issued new religion guidelines to its commanders on Monday that caution against promoting any particular faith - or even "the idea of religion over nonreligion" - in official communications or functions like meetings, sports events and ceremonies.

The guidelines discourage public prayers at official Air Force events or meetings other than worship services, one of the most contentious issues for many commanders. But they allow for "a brief nonsectarian prayer" at special ceremonies like those honoring promotions, or in "extraordinary circumstances" like "mass casualties, preparation for imminent combat and natural disasters."

The Air Force developed the guidelines after complaints from cadets at the Air Force Academy in Colorado Springs that evangelical Christians leaders were using their positions to promote their faith.

The guidelines apply not just to the academy, but also to the entire Air Force. They will be made final later this year after Air Force generals meet and consider recommendations from their commanders.

ANALYSIS: The interim guidelines are posted on the Air Force site. Some of the provisions critics are most likely to examine:

B. PUBLIC PRAYER OUTSIDE OF VOLUNTARY WORSHIP SETTINGS.
(1) PUBLIC PRAYER SHOULD NOT USUALLY BE INCLUDED IN OFFICIAL SETTINGS SUCH AS STAFF MEETINGS, OFFICE MEETINGS, CLASSES, OR OFFICIALLY SANCTIONED ACTIVITIES SUCH AS SPORTS EVENTS OR PRACTICE SESSIONS.
(2) COMMON SENSE--AND MUTUAL RESPECT--SHOULD ALWAYS BE APPLIED AND EXTRAORDINARY CIRCUMSTANCES MAY DRIVE EXCEPTIONS. (NOTE: For example, there may be extraordinary circumstances where the potential benefits for the welfare of the command outweigh the potential of causing discomfort. These circumstances might include mass casualties, preparation for imminent combat, and natural disasters.)
(3) CONSISTENT WITH LONG-STANDING MILITARY TRADITION, A BRIEF NONSECTARIAN PRAYER MAY BE INCLUDED IN NON-ROUTINE MILITARY CEREMONIES OR EVENTS OF SPECIAL IMPORTANCE, SUCH AS A CHANGE-OFCOMMAND, PROMOTION CEREMONIES OR SIGNIFICANT CELEBRATIONS, WHERE THE PURPOSE OF THE PRAYER IS TO ADD A HEIGHTENED SENSE OF SERIOUSNESS OR SOLEMNITY, NOT TO ADVANCE SPECIFIC RELIGIOUS BELIEFS. MILITARY CHAPLAINS ARE TRAINED TO DEAL WITH SUCH EVENTS.
(4) IN ADDITION, A MOMENT OF SILENCE FOR PERSONAL REFLECTION DOES NOT REQUIRE THE SAME CONSIDERATIONS AS PUBLIC PRAYER AND MAY BE APPROPRIATE IN OFFICIAL SETTINGS.
C. INDIVIDUAL SHARING OF RELIGIOUS FAITH.
(1) IN OFFICIAL CIRCUMSTANCES, PARTICULARLY SITUATIONS WHERE SUPERIOR/SUBORDINATE RELATIONSHIPS ARE INVOLVED, INDIVIDUALS NEED TO BE SENSITIVE TO THE POTENTIAL THAT PERSONAL EXPRESSIONS MAY APPEAR TO BE OFFICIAL EXPRESSIONS. THIS IS ESPECIALLY TRUE WHEN SUBORDINATES ARE PRESENT AS PART OF THEIR OFFICIAL DUTIES AND OBLIGATIONS.
(2) THE MORE SENIOR THE INDIVIDUAL, THE MORE LIKELY THAT PERSONAL EXPRESSIONS MAY BE PERCEIVED TO BE OFFICIAL STATEMENTS. THE MORE SENIOR THE LEADER, THE MORE RESPONSIBILITY HE OR SHE HAS TO SEND THE MESSAGE THAT WE ARE A TEAM BASED ON TRUST, RESPECT, AND A COMMON MISSION TO DEFEND OUR NATION AND THAT WHAT IS EXPECTED OF ALL OUR PERSONNEL IS TO LIVE UP TO OUR OATHS, EMBRACE OUR SHARED AIR FORCE CORE VALUES, AND DO OUR DUTY.
(3) NOTHING IN THIS GUIDANCE SHOULD BE UNDERSTOOD TO LIMIT VOLUNTARY, PEER TO PEER DISCUSSIONS.

Now, maybe I was just asleep for four years when I went to West Point, but I thought these were already the rules. Did Air Force leaders really believe they were allowed to have prayer during class, or openly praise Jesus during a military class? I never experienced anything like what has been alleged in news reports or what these "new" rules seem to suggest.

Also from the Times, Ruling on Detainees' Identities ("A federal judge ordered the Pentagon to ask the prisoners in Guantánamo Bay, Cuba, if they objected to having their identities disclosed. The decision, by Judge Jed S. Rakoff in Federal District Court in Manhattan, came in a lawsuit filed April 19 by The Associated Press under the Freedom of Information Act. In response, the Pentagon released transcripts of tribunals held at Guantánamo in late 2004 to determine whether all the detainees were correctly classified as enemy combatants, as military officials maintained. The Pentagon blacked out the prisoners' names, arguing that publishing them would violate their privacy and could expose them and their families to reprisals.").


Former Air Force Academy Chaplain Melinda S. Morton, Removed From Her Post After Criticizing the Religious Climate at the Academy (AP)

From the Washington Post, Military Wrestles With Disharmony Among Chaplains:

The growing influence of evangelical Protestants is roiling the military chaplain corps, where their desire to preach their faith more openly is colliding with long-held military traditions of pluralism and diversity.

After accusations this summer that evangelical chaplains, faculty and coaches were pressuring cadets at the Air Force Academy, the Air Force yesterday issued new guidelines on respect for religious minorities. In the Navy, evangelical Protestant chaplains are fighting what they say is a legacy of discrimination in hiring and promotions, and they are bridling at suggestions they not pray publicly "in the name of Jesus."


Much of the conflict is in two areas that, until now, have been nearly invisible to civilians: how the military hires its ministers and how they word their public prayers. Evangelical chaplains -- who are rising in numbers and clout amid a decline in Catholic priests and mainline Protestant ministers -- are challenging the status quo on both questions, causing even some evangelical commanders to worry about the impact on morale.

"There is a polarization that is beginning to set up that I don't think is helpful. Us versus them," said Air Force Col. Richard K. Hum, an Evangelical Free Church minister who is the executive director of the Armed Forces Chaplains Board. "I don't know whether it's an overflow of what's happening in society. But this sort of thing is so detrimental to what we are trying to do in the chaplaincy."

The Rev. MeLinda S. Morton, a Lutheran minister who resigned in June as an Air Force chaplain after criticizing the religious atmosphere at the Air Force Academy, said there has been a palpable rise in evangelical fervor not just among chaplains but also among the officer corps in general since she joined the military in 1982, originally as a launch officer in a nuclear missile silo.

"When we were coneheads -- missile officers -- I would never, ever have engaged in conversations with subordinates aligning my power and position as an officer with my views on faith matters," she said. Today, "I've heard of people being made incredibly uncomfortable by certain wing commanders who engage in sectarian devotions at staff meetings."

Former Army Chaplain Rabbi Jeffrey Goldman, Deserter or Persecution Victim? (WaPo)

In a related story from the Post, Army, Rabbi at Odds Over Departure:

The U.S. Army has listed Rabbi Jeffrey Goldman as a deserter, making him subject to arrest if he returns to the United States. But he maintains that he was driven out of the military chaplaincy by anti-Semitic harassment from Christian colleagues.

Goldman, 33, left Fort Stewart, Ga., in January 2002 to return to his native Canada after just one year as an Orthodox Jewish military chaplain. He said that he believes he resigned legally from the Army and that the desertion charge was a vindictive response to his allegations.

Rabbi Jeffrey Goldman says he was harassed in the Army. (Douglas Struck - Twp)
While he was posted at the Georgia base, Goldman said, he worked in a "poisonous atmosphere" created by three Christian chaplains. One of the men taunted him by displaying Nazi guard uniforms, he said. His supervising chaplain told him, "Rabbi, if you want to survive down here, this is the South, and you'd better forget you are a [expletive] Yankee rabbi from up north," Goldman said.

Also from the Post, Air Force Sets Rules Limiting Religious Expression.

As you might have expected, USA Today pretty much missed the boat on this story, except for a little blurb in Nationline.

Categories: Air+Force+Academy, Religious+Discrimination, AWOL, Guantanamo, Newspapers

In this Eastern District of Pennsylvania case, the court held that Secretary Rumsfeld's recommendation to the BRAC that they disband the Pennsylvania Air National Guard's 111th Fighter Wing was illegal: "Accordingly, we find, as a matter of law, that the Secretary’s recommendation that the 111th Fighter Wing be deactivated without Governor Rendell’s prior consent violated [32 U.S.C.] Section 104(c)."

This case raises a host of interesting issues, including justiciability (standing, ripeness), federalism, and separation of powers. As it turns out, the BRAC did not vote to deactivate the 111th, though they did vote to close the base. It is not clear what the governmet could accomplish with an appeal. However, this is an interesting precedent: the Secretary is not even allowed to recommend dropping a national guard unit without the Governor's consent. See also the A.P. article.

Categories: Air+National+Guard, BRAC