JAG CENTRAL

JAG CENTRAL Coming Back?

Centrist — Fri, 04 Apr 2008 04:38:00 +0000

Stay tuned... new posts on their way soon. I promise I have a good reason for being gone so long...

Categories: Miscellaneous

CAAFLOG

Lawyer Dad — Mon, 03 Dec 2007 20:31:00 +0000

This will probably come as no surprise to anyone who still has this blog on their RSS reader or otherwise stumbles across this post, but Dwight Sullivan has started a new blog related to military justice issues - - caaflog.blogspot.com

I recommend that you check it out right now!

new jagcentral site

Lawyer Dad — Thu, 21 Sep 2006 21:33:00 +0000

Go HERE for additional posts (temporary fix). Go down to the first post, entitled "temporary fix," to alert the authors that you are still reading.

MILITARY COMMISSIONS DECLARED ILLEGAL

Lawyer Dad — Thu, 29 Jun 2006 19:07:00 +0000

So once again a long delay between posts. I'm sure everyone reading this blog already knows that the Supreme Court struck down the Military Tribunals. Specifically, the opinion says that the Congressional AUMF did not authorize the commissions, and also found that the Commission procedures established by M.C.O. 1 fell short of the requirements imposed by Article 36 of the UCMJ.

If I might hazard a personal opinion, I think the Court got the answer right in this case. Article 36 allows the President to set the rules of procedure for tribunals, but those rules "may not be contrary to or inconsistent with" the U.C.M.J. Theoretically, I am more interested in the broader constitutional question - - under Ex Parte Quirin, the government can create military commissions to try people for violation of the laws of war, but Congress has to authorize it. And, I agree that Art. 36 imposes at least some restrictions on the President's procedural rules. In Quirin, the Court wasn't sure whether Congress really could restrict the Presidents power in that way and sort of punted. (317 U.S. 1, 47-48) ("We need not inquire whether Congress may restrict the power of the Commander in Chief to deal with enemy belligerents. For the Court is unanimous in its conclusion that the Articles in question could not at any stage of the proceedings afford any basis for issuing the writ [of habeas corpus]. But a majority of the full Court are not agreed on the appropriate grounds for decision").

Apparently, Hamdan says they can. And did.

A few of the many commentators:

Marty Lederman of Akin Gump and SCOTUSblog

Orin Kerr's comment and a good summary.

Stuart Benjamin at the Volokh Conspiracy. There are always colorful commentators at the VC, and Prof. Benjamin's post is no exception.

I enjoyed looking through those links and scanning the syllabus of the opinion. Of course, that's 30-45 minutes I should've spent working. I have to make the time up somehow, probably during the upcoming long weekend. No matter how much I complained about law school, it was much easier to blog.

GOOD OLD FASHIONED CRIMLAW ISSUE

Lawyer Dad — Mon, 01 May 2006 16:40:00 +0000

My favorite class in the first year of law school was criminal law. I had a great professor, but more than that it was the most, ermm, "philosophically satisfying" course we took. I was soon disappointed to discover that very little criminal practice concerns itself with substantive questions - where substantive means the definition of the crimes, elements, etc. Most of the attention and energy is spent on procedural stuff, especially constitutional procedure (how many years have passed without a "newsworthy" 4th or 5th amendment case?).

If you are like me, and you still have a special place in your heart for 1L criminal law stuff, you might enjoy reading United States v. Simmons, No. 05-0263 (C.A.A.F. April 24, 2006). Simmons was a 3-2 decision with 5 (yes, FIVE) separate opinions. The issue: Aider and Abettor Liability for failing to act / failing to prevent. As you may recall from crimlaw, or more likely from torts, one can be held liable for failing to act ONLY if some duty runs from the defendant to the victim. The court originally granted review of the "Was there a duty?" question, but the defendant conceded that there was a duty. The actual opinion concerns whether the guilty plea was provident:

Baker & Gierke: IMPROVIDENT because there was no evidence that Simmons shared a criminal purpose with the "real perp," ("R.P.") as required by Article 77.

Effron & Gierke: IMPROVIDENT because there was no questioning about whether the RP knew about Simmons's inaction. But for Simmons to be guilty, the inaction has to encourage the RP. (I don't really understand this. Simmons told the Judge that he thought his inaction encouraged it). One sentence seems to suggest even MORE is required...
"Here the plea was improvident because the military judge
did not explain to Appellant that it was necessary for the
perpetrator to be aware of Appellant’s nonperformance of a duty."
Effron, concurring in result (slip op. at 2; PDF file at 17). So, to be guilty of aiding and abetting assault, the RP has to KNOW the defendant has a duty to the victim? That's kind of wacky. Aiding and Abbetting already has a kind of double mens rea - the defendant must have criminal purpose, and the RP must be "encouraged" or whatever. But does he also have to know that there's a legal duty to act?

CRAWFORD: PROVIDENT because the surrounding circumstances establish the criminal intent (Simmons had been involved in hazing the victim).

ERDMANN: PROVIDENT because the facts admitted establish the criminal purpose (but by the way, not so sure there WAS a duty to act here.)

Interviews?

Lawyer Dad — Sat, 15 Apr 2006 06:31:00 +0000

Would anyone reading this site be interested in seeing interviews from various semi-famous JAG-type people? Maybe attorneys from big cases of the past, or civilian journalists who have covered big cases, or scholars who study military law? If so, please respond in he Comments section. Thanks!

SCOTUS UPHOLDS SOLOMON AMENDMENT

Lawyer Dad — Mon, 06 Mar 2006 15:17:00 +0000

An 8-0 opinion by Chief Justice Roberts. Here's a link to the opinion.
Sorry I haven't written more lately, perhaps this decision will be exciting enough to push me out of my 3L malaise.

Previous Posts:
A debate between the Centrist and a commenter; Centrist's comments on the cert. grant; and my post about enforcement of the SA.

U.S. V. ROSENTHAL - ON NEW ACTION BY THE CONVENING AUTHORITY

Lawyer Dad — Fri, 06 Jan 2006 16:43:00 +0000

Imagine this: you're a trial defense counsel, with 10,000 cases on your desk, no time to stay catch up, when you find another file on your desk - a two-year-old guilty plea to a drug case in which the CCA ordered new action by the convening authority. As you flip through the file, you discover a note from the client (written before the original CA action) instructing TDC not to file clemency papers with the CA. Well, that makes your job easier, right?

Not really. You better check with the client. In U.S. v. Rosenthal, No. 05-0244, C.A.A.F. held that failure to contact the client was reversible error - in the two years since original CA action, the client might have done something to improve his chances for clemency. The standard for prejudice in clemency matters is pretty low - just a colorable showing that the result might have been different.

But if you're DEFENSE counsel, does this affect you? I suppose your ethical duty to communicate with your client , as well as your general duty to not slow down the justice system, requires you to take this step. But it's the government that loses here. I wonder if this ruling means SJA's will have to call up TDC and say "Are you going to file clemency matters? Have you checked with your client again???"

SWIFT JUSTICE? - LOVING V. UNITED STATES (RE-REPRISE)

Lawyer Dad — Wed, 21 Dec 2005 08:32:00 +0000

NOTE: If you just want to know the holding of the case, skip down! I'll tell you where to stop!

Tuesday, Dec. 20, CAAF released its first two opinions of the 2006 term. The first was Loving v. United States, No. 03-8007. Yes, you read that case number right - 2003. Here's a quick run down of the history:

On December 12, 1988, petitioner Dwight Loving, an Army private
stationed at Fort Hood, Texas, murdered two taxicab drivers from the
nearby town of Killeen. He attempted to murder a third, but the driver
disarmed him and escaped. Civilian and Army authorities arrested
Loving the next afternoon. He confessed. After a trial, an eight-
member general court-martial found Loving guilty of, among other
offenses, premeditated murder and felony murder under Article 118 of
the Uniform Code of Military Justice (UCMJ).

Loving v. United States, 517 U.S. 748 (1996). Yes, that case made it all the way to the U.S. Supreme Court on direct review, where the Court upheld the military death penalty. In 2003 and 2004, Loving filed two writs of coram nobis with C.A.A.F. The court hear oral arguments a few months later in each case. So what took so long to get the opinion out?

There are several factors, but mostly: (1) this is a death penalty case, and (2) these writs present some terribly thorny procedural issues. If you're a law-nerd, and you're interested in things like jurisdiction, collateral review, and the relationship between Article I courts and Article III courts, then by all means read all 59 pages of the opinion.

What? No takers? Well, that's o.k. Just because I like that junk doesn't mean that you have to. You'll have to wait until my big book on military jurisdiction is released sometime in the fall of 2009.

OK NOW IT'S TIME FOR THE HOLDING(S) - YOU CAN STOP SCROLLING

First, C.A.A.F. has jurisdiction to grant collateral review in a death case (and probably any other case) until the President has made final approval of the death sentence. Second, the proper mechanism is the WRIT OF HABEAS CORPUS, as authorized by THE ALL WRITS ACT, rather than the "writ of coram nobis." What does this mean for Loving? Well, the court pretty much encouraged him to file the SAME claims again, but in a "motion for habeas corpus." So, there will be more litigation on these same claims. However, with the procedural business out of the way, the next appeal really should address the merits. And, we can only assume that the judges have vigorously discussed the merits in conference already - so it might not take them so long to issue a ruling next time.

What does this mean for military justice? Well, the idea of extraordinary writs at C.A.A.F. had been somewhat confusing. Maybe some of the confusion survives, but I think this is a step in the right direction. We know now that the proper writ to raise collateral challenges after the court has heard direct appeal is the "habeas corpus" writ; we also know that the court is asserting jurisdiction under the "All Writs Act" (holding that under that statute it has authority to grant extraordinary writs "in aid of" its jurisdiction.). After my quick reading of the case, it looks like that assertion would survive US Supreme Court scrutiny (under Goldsmith), while preserving the right (to whatever extent it exists) for Article III review. Basically, if you buy the court's reasoning that "final" action on a DP case is the President's approval, then the rest of the opinion looks good.

But that's all theoretical. What about the practical issues? All of this time, all of this litigation, and we still don't know whether Loving's constitutional challenges will be successful or not. Also, all of this is for naught if the President approves Loving's death sentence before a decision on the soon-to-be-filed habeas petition is released. How likely is this? It's not at all clear. I can't imagine that the people advising the President want a new sentencing hearing for Pvt. Loving. When he was Governor of Texas, the President demonstrated that he believed in the death penalty once the courts did their business.

3ID CONFIRMS CIVILIAN CASUALTIES

Centrist — Mon, 21 Nov 2005 13:02:00 +0000

Breaking news from Reuters:

U.S. troops opened fire on a crowded minivan north of Baghdad on Monday, fearing a car bomb attack, and killed at least three members of the same family, including a child, the U.S. military and survivors said.

The U.S. army's 3rd Infantry Division confirmed the incident, saying its troops had opened fire after first trying to wave the minivan to a stop and then firing warning shots.

"This is a tragedy," said Major Steve Warren, a spokesman for U.S. forces in Baquba, near where the shooting occurred.

"But these tragedies only happen because Zarqawi and his thugs are out there driving around with car bombs," he added, referring to Abu Musab al-Zarqawi, a militant leader in Iraq.

Warren said three people -- two men and a child -- were killed and three were wounded, but the survivors disputed that, saying five members of the family, including two children, were killed and four were wounded.

One of the survivors told Reuters the family was traveling from Balad, a town about 80 km (50 miles) north of Baghdad, to the nearby city of Baquba for a funeral when they were shot at by a U.S. patrol as it approached them on the road.

"As we tried to move over to one side to let them pass, they opened fire," one survivor said. None of them would give their names but said the head of the family was a Mohammed Kamel.

Warren said the incident occurred near a U.S. military forward operating base as vehicles were entering the camp. He said U.S. troops frequently set up impromptu roadblocks in such cases and force all nearby vehicles to come to a halt.

The U.S. military took the minivan away immediately after the incident, Iraqi police and the U.S. army said.

Reuters television footage showed two dead children in a morgue in Baquba and relatives kissing another dead body on a morgue trolley. One child's head appeared to have been been blown off.

NATIONAL NEWSPAPERS - 21 NOV 05

Centrist — Mon, 21 Nov 2005 12:52:00 +0000

From the NY Times, Defense of Phosphorus Use Turns Into Damage Control:

On Nov. 8, Italian public television showed a documentary renewing persistent charges that the United States had used white phosphorus rounds, incendiary munitions that the film incorrectly called chemical weapons, against Iraqis in Falluja last year. Many civilians died of burns, the report said.

The half-hour film was riddled with errors and exaggerations, according to United States officials and independent military experts. But the State Department and Pentagon have so bungled their response - making and then withdrawing incorrect statements about what American troops really did when they fought a pitched battle against insurgents in the rebellious city - that the charges have produced dozens of stories in the foreign news media and on Web sites suggesting that the Americans used banned weapons and tried to cover it up.

The Iraqi government has announced an investigation, and a United Nations spokeswoman has expressed concern.

"It's discredited the American military without any basis in fact," said John E. Pike, an expert on weapons who runs GlobalSecurity.org, an independent clearinghouse for military information. He said the "stupidity and incompetence" of official comments had fueled suspicions of a cover-up.

"The story most people around the world have is that the Americans are up to their old tricks - committing atrocities and lying about it," Mr. Pike said. "And that's completely incorrect."

From USA Today, CIA Chief: Methods 'Unique' But Legal:

CIA interrogators use “a variety of unique and innovative ways” to collect “vital” information from prisoners but strictly obey laws against torture, CIA Director Porter Goss said.

In his first interview since the clash this month between the Bush administration and the Republican-controlled Senate on restricting interrogations, Goss said the CIA remains officially neutral on the proposal by Sen. John McCain, R-Ariz., to ban “cruel, inhuman or degrading” treatment of detainees by CIA or military officers. But Goss made clear that techniques that would be restricted under McCain's proposal have yielded valuable intelligence.

“There is a huge amount of misinformation swirling about on the subject of detainees. That would include alleged activities of this agency,” Goss said in an interview Friday in his office at agency headquarters in Northern Virginia.

“This agency does not do torture. Torture does not work,” Goss said. “We use lawful capabilities to collect vital information, and we do it in a variety of unique and innovative ways, all of which are legal and none of which are torture.”

Goss declined to describe interrogation methods exclusive to the CIA. Rep. Duncan Hunter, R-Calif., said the problem with McCain's proposal is that the restriction on “degrading” treatment might bar psychological techniques, such as calling a prisoner a coward or isolating a detainee in a very small room. Hunter, chairman of the House Armed Services Committee, is a close ally of the administration in the interrogation debate.

MILITARY CONVICTIONS ARE CONVICTIONS

Lawyer Dad — Sat, 19 Nov 2005 04:41:00 +0000

O.k., so the issue in Oliver v. State, No. 1887-04-01 (Va. Ct. App. Oct. 18, 2005) wasn't as simple as the title of this post makes it out to be - but it was pretty close. "Oliver objected to this evidence [of his court-martial prior conviction], arguing that the criminal convictions were not convictions 'under the laws of . . . the United States' for purposes of Code § 19.2-295.1." (Id., slip. op. at 1). The court cites a list of cases in footnote 1, which is more than I could muster... I would probably say "But this is dumb. See 10 United States Code § 801-946."

The defense attorney had something interesting to say - suggesting that procedural protections under the UCMJ might violate the Constitution - but (1) that is a high hill to climb given Supreme Court and CAAF precedent, and (2) he didn't bother challenging Oliver's convictions. Thanks to Ken Lammers / CrimLaw for the link.

By the way: CONGRATULATIONS TO THE CENTRIST. I am insanely jealous.

CENTRIST, ESQ.

Centrist — Sat, 19 Nov 2005 02:42:00 +0000

From www.calbar.org:

July 2005 California Bar Examination
Application Number: ***
Registration Number: *********
Name: Centrist
The name above appears on the pass list for the July 2005 California Bar Examination.

NATIONAL NEWSPAPERS - 18 NOV 05

Centrist — Fri, 18 Nov 2005 13:51:00 +0000

From the NY Times, Issuing Contracts, Ex-Convict Took Bribes in Iraq, U.S. Says:

A North Carolina man who was charged yesterday with accepting kickbacks and bribes as a comptroller and financial officer for the American occupation authority in Iraq was hired despite having served prison time for felony fraud in the 1990's.

The job gave the man, Robert J. Stein, control over $82 million in cash earmarked for Iraqi rebuilding projects.

Along with a web of other conspirators who have not yet been named, Mr. Stein and his wife received "bribes, kickbacks and gratuities amounting to at least $200,000 per month" to steer lucrative construction contracts to companies run by another American, Philip H. Bloom, an affidavit outlining the criminal complaint says. Mr. Stein's wife, who was not named, has not been charged with wrongdoing in the case; Mr. Bloom was charged with a range of crimes on Wednesday.

Also from the Times, Torture Charges Deepen Rift Between U.S. and Iraqi Leader:

At a news conference, the Iraqi interior minister, Bayan Jabr, a conservative Shiite, accused the government's political opponents of bolstering the insurgency by exploiting the American military's discovery of torture at a secret police prison in the capital. Virtually all of the prisoners were Sunni Arabs, and Sunni groups have exploded in fury, saying that the discovery confirms their long-held suspicions that the Shiite-led government has been abducting and torturing or killing Sunnis.

But Mr. Jabr, speaking of the prison in an angry, sarcastic tone, said, "There has been much exaggeration about this issue." He added, "Nobody was beheaded or killed."

Later in the afternoon, the American Embassy issued its statement, saying that "detainee abuse is not and will not be tolerated." In addition, "We have made clear to the Iraqi government that there must not be militia or sectarian control or direction of Iraqi security forces, facilities or ministries."

Finally from the Times, 2 U.S. Soldiers Face Court-Martial For Alleged Abuse ("Two American soldiers will be court-martialed in Afghanistan on charges of beating two Afghan detainees at a base in Uruzgan Province in July, military officials said. The charges against the two, Sgt. Kevin D. Myricks and Specialist James R. Hayes, include conspiracy to maltreat, assault and dereliction of duty, the officials said. It would be the first court-martial of Americans to take place in Afghanistan. No date has been set.").

From the Washington Post, U.S. Accuses Pair of Rigging Iraq Contracts, and U.S. to Probe All Iraqi-Run Prisons:

The United States on Thursday expanded its probe of alleged prison abuses to include all Iraqi-run detention sites, saying the Shiite-led government had agreed to the move after U.S. forces uncovered a secret Interior Ministry chamber in Baghdad where Sunni Arabs allegedly were tortured and starved.

Early Friday, two large bombs exploded just outside that Interior Ministry facility, knocking down concrete barriers, collapsing nearby buildings and leaving a huge crater in the street. Rescue workers, surrounded by burning vehicles and bloodied people, were climbing over the wreckage in search of trapped victims and pulling women and children from the debris. There was no immediate word about casualties.

Law enforcement officials from the FBI, Justice Department, U.S. Embassy and U.S.-led military forces will aid an Iraqi-appointed citizens group in the prison investigation, slated to cover all of at least 1,100 sites across the country where Iraqi security forces and justice officials are holding detainees.

The breadth of the crackdown -- and involvement by top U.S. officials including Army Gen. George Casey, Ambassador Zalmay Khalilzad and others -- indicated the gravity with which American leaders here viewed the torture allegations and the scandal's possible impact on the already marginalized Sunni community, whose support is vital to ending the insurgency.

Also from the Post, Detainee's Conditions Upheld:

Government lawyers contend that Jumah Dossari, a suicidal detainee held at Guantanamo Bay, Cuba, has been receiving appropriate mental health care and has "adequate" amounts of human interaction, exercise and intellectual stimulation, according to papers filed in federal court this week.

The lawyers and officials at the U.S. military prison said that Dossari is not in isolation or solitary confinement, though he is held in a cell with solid walls and can communicate verbally with other detainees only through the narrow food tray slot in his door when it is left open. They also said that Dossari has established "a cordial relationship with members of his interrogation team" and has eaten pizza, watched movies and played checkers with them during 29 interrogation sessions over the past two years.

Dossari, 32, a Bahraini national, is under close medical supervision at the U.S. Naval Hospital at the Guantanamo Bay base after a suicide attempt. He tried to hang himself with a makeshift noose and slashed his right arm in a bathroom during a visit from his attorney on Oct. 15.

Dossari tried to kill himself again on Monday by ripping the stitches out of his arm wound, according to an affidavit filed Wednesday by Capt. John S. Edmondson, the hospital's commander.

NATIONAL NEWSPAPERS - 17 NOV 05

Centrist — Thu, 17 Nov 2005 14:15:00 +0000

From the NY Times, American Faces Charge of Graft for Work in Iraq:

The man, Philip H. Bloom, who controlled three companies that did work in Iraq in the multibillion-dollar reconstruction effort, was charged with conspiracy, wire fraud, conspiracy to launder money and interstate transportation of stolen property, all in connection with obtaining up to $3.5 million in reportedly fraudulent contracts.

The complaint, unsealed in the Federal District Court of the District of Columbia, also cites two unnamed co-conspirators who worked in the Coalition Provisional Authority, the American administration that governed Iraq when the contracts were awarded in early 2004. These were the officials who, with their spouses, allegedly received the payments.

"This is the first case, but it won't be the last," said Jim Mitchell, a spokesman for the Special Inspector General for Iraq Reconstruction, an independent office. Mr. Mitchell said as many as a dozen related cases had been referred to the Justice Department for possible prosecution.

Also from the Times, Iraqi Rift Grows After Discovery of Prison:

The discovery of the prison by the American military in a raid on Sunday has galvanized Sunni Arab anger and widened the country's sectarian divide just a month before elections for a full, four-year government.

The American general responsible for securing Baghdad said Wednesday that Sunni Arab leaders were supportive of the operation, which ended Wednesday afternoon. The commander, Maj. Gen. William G. Webster Jr. of the Third Infantry Division, said that American officers would help scrutinize the evidence seized from the prison, and that his troops were prepared to investigate other complaints of secret detentions by Iraqi security forces.

The American raid forced the prime minister of Iraq, Ibrahim al-Jaafari, who is a Shiite, to announce Tuesday that the government would investigate accusations of torture at the detention center, where many of the 173 prisoners were found in weakened, malnourished states. A former prisoner said in a telephone interview on Wednesday that he and other inmates, mostly Sunni Arabs, were regularly beaten and subjected to electric shocks. He was blindfolded for the entire duration of his stay, more than three months.

The Interior Ministry acknowledged on Tuesday that "instruments of torture" had been found and that torture had occurred.

Related to that story in the Times, Sunnis Tell of Abuses in Iraqi-Run Detention Sites. And, following up on the willie-pete news from yesterday, Pentagon Justifying Incendiary Arms Use:

Army Lt. Col. Barry Venable, a Pentagon spokesman, acknowledged that the United States military had used the weapons, but only against insurgents, he said. He denied that the flammable weapons had been used against civilians. An Italian state television report this month said such munitions had been used against men, women and children in Falluja who were burned to the bone.

"We categorically deny that claim," he said. White phosphorus weapons are not outlawed or banned by any convention, he said.

A protocol to an accord on conventional arms, which took effect in 1983, forbids using incendiary weapons against civilians. It also forbids their use against military targets in concentrations of civilians, except when the targets are clearly separated from civilians and "all feasible precautions" are taken to avoid civilian casualties.

The United States is a party to the overall accord, but has not ratified the incendiary arms protocol.

Again, as I said yesterday in this post, even if WP rounds are not specifically prohibited by convention, their use in certain circumstances is likely illegal anyways because the use of them is not necessary or proportional. If they were being used within close proximity of civilians, this may very well be the case.

Finally from the Times, Curbs on Insurance for Military are Urged:

In a report to be released today, the Government Accountability Office strongly urges Congress to act to protect military personnel from the deceptive sales practices and unsuitable investments and insurance policies that the report says have been a disturbing fact of military life.

The Senate Committee on Banking, Housing and Urban Affairs will examine the study at a hearing today in Washington. The report's delivery to Congress clears the way for the Senate to consider a bill that has been pending since early this year. The bill has twice passed the House with strong bipartisan support.

Senator Richard C. Shelby, Republican of Alabama and chairman of the banking panel, has said that passage of a law to protect troops from financial exploitation was a priority in the current session of Congress.

You can find the GAO study here.

From the Washington Post, Europeans Probe Secret CIA Flights:

The aim is to determine whether U.S. officials secretly used local airports and military bases to transfer terrorism suspects under conditions that violate local and international treaties.

This week, officials in Spain, Sweden, Norway and in the European Parliament said they had either opened formal inquiries or demanded answers from U.S. officials about CIA flights, in response to growing public opposition in Europe to U.S. anti-terrorism tactics.

In other countries, criminal probes have deepened into the alleged kidnapping of terrorism suspects by the CIA. In Italy, prosecutors last week filed a formal extradition request for 22 U.S. citizens alleged to be CIA operatives who are charged with kidnapping a radical Muslim cleric in Milan in 2003 and flying him to his native Egypt, where he said he was tortured.

The Post's World Briefing has two updates on war crimes tribunals in the Balkans:

THE HAGUE -- The trial of Slobodan Milosevic was adjourned until next week after the former Yugoslav president said he was feeling too ill to continue. The interruption came a day after Milosevic, 63, requested a six-week recess, citing a medical report that his heart condition has not stabilized. He has chronic high blood pressure.

AMSTERDAM -- The U.N. war crimes tribunal acquitted Sefer Halilovic, the highest-ranking Bosnian Muslim to stand trial in The Hague. The wartime Muslim commander was charged with murder for failing to prevent a massacre of Bosnian Croats in 1993, during the country's 1992-95 war.

Also in the Briefing, this update about a trial of a U.S. Airman in Japan ("A Japanese court on Thursday convicted a U.S. Air Force serviceman of molesting a 10-year-old Japanese girl on the island of Okinawa earlier this year. The Naha District Court gave Staff Sgt. Armando Valdez, 28, a suspended prison sentence of 18 months, a court spokesman said."). And, proving that war crimes have no statute of limitations, from the Post, Perpetrators of Ancient War Crime Sought.

NATIONAL NEWSPAPERS - 16 NOV 05

Centrist — Wed, 16 Nov 2005 12:17:00 +0000

From the NY Times, Torture Alleged at Ministry Site Outside Baghdad:

Iraq's government said Tuesday that it had ordered an urgent investigation of allegations that many of the 173 detainees American troops discovered over the weekend in the basement of an Interior Ministry building in a Baghdad suburb had been tortured by their Iraqi captors. A senior Iraqi official who visited the detainees said two appeared paralyzed and others had some of the skin peeled off their bodies by their abusers.

Prime Minister Ibrahim al-Jaafari held a hurriedly organized news conference to announce the official inquiry. He also said there would be a second investigation, including a comprehensive count of the thousands held in Iraqi jails, to determine whether there was a wider pattern of abuse, as many opponents of his government have claimed. He said the detainees had been moved to another location and had been given all necessary medical care.

A joint statement by the American Embassy and the United States military command called the situation "totally unacceptable" and said American officials "agree with Iraq's leaders that mistreatment of detainees will not be tolerated."

From the Washington Post, U.S. Used Phosphorous Munitions in Fallujah:

Lt. Col. Barry Venable, a Pentagon spokesman, said U.S. forces in Fallujah "employed white phosphorus . . . as an incendiary weapon against enemy combatants," but said that "suggestions that U.S. forces targeted civilians with these weapons are simply wrong."

Defense officials acknowledged that they could not rule out the possibility that the phosphorous munitions accidentally hit civilians during the Fallujah offensive, which involved the heaviest U.S. combat since the March 2003 invasion of Iraq.

U.S. troops who took part in the Fallujah battle recounted in detail their use of white phosphorus -- most commonly employed to obscure troops during an assault or to mark targets -- as an effective weapon for routing out insurgents from "trench lines and spider holes," according to an article written by three of the soldiers and published in the March-April 2005 issue of Field Artillery magazine.

Venable said munitions containing white phosphorus are not illegal and are considered conventional, not chemical, weapons.

Maybe... but lots of things are "conventional" weapons that may not be kosher depending on how they are used. Proportionality and necessity apply when employing any weapons system. Was it "proportional" and "necessary" to use WP artillery rounds when other rounds were available? I'm sure that will be a matter for investigation.

Also from the Post, Torture Alleged After U.S.-Led Raid Uncovers Iraqi-Run Prison.

From USA Today, Senate Votes To Ban Torture of Terrorism Detainees:

The Senate passed a defense bill Tuesday that would ban torture of terrorism detainees and grant them limited access to federal courts.

The Senate passed an amendment, 84-14, that would allow the roughly 500 detainees at the U.S. prison at Guantanamo Bay, Cuba, to file one appeal of convictions by military tribunals if they face the death penalty or at least 10 years in prison. The appeals would be heard in federal court. Detainees also would be allowed to appeal their designation as enemy combatants.

The proposal would allow the court review in place of the right to file challenges to the constitutionality of their detention in federal courts, a right affirmed by the Supreme Court in 2004. The Bush administration has said the detainees have no right to appeal. Tuesday's vote set a middle ground.

The proposal by Sen. Lindsey Graham, R-S.C., was attached to a defense bill that the Senate passed 98-0. The amendment asks President Bush to push Iraq to take over its own security and to get U.S. troops home as soon as possible.

NATIONAL NEWSPAPERS - 15 NOV 05

Centrist — Tue, 15 Nov 2005 15:10:00 +0000

From the NY Times, Senate Republicans Push for a Plan on Ending the War in Iraq:

The Senate is also scheduled to vote Tuesday on a compromise, announced Monday night, that would allow terror detainees some access to federal courts. The Senate had voted last week to prohibit those being held from challenging their detentions in federal court, despite a Supreme Court ruling to the contrary.

Senator Lindsey Graham, the South Carolina Republican who is the author of the initial plan, said Monday that he had negotiated a compromise that would allow detainees at Guantánamo Bay, Cuba, to challenge their designation as enemy combatants in federal courts and also allow automatic appeals of any convictions handed down by the military where detainees receive prison terms of 10 years or more or a death sentence.

UPDATE: Katherine at Obsidian Wings has been the blawgosphere's biggest watchdog on the Graham Amendment, writing her latest post here and posting a copy of the amendment here. You can join in an ongoing discussion about the "amendment to the amendment" at the Volokh Conspiracy by placing a comment (currently 43) to the original post by co-Volokh Conspirator Orin Kerr.

UPDATE II: The Times published this op-ed from Anthony Lewis entitled Prisoners from the Senate, which likens the Graham Amendment to Ex Parte McCardle. Probably not the best comparison to make if you're criticizing a jurisdiction-stripping statute, since the government won in that case.

Also from the Times, Pentagon's Fuel Deal Is Lesson in Risks of Graft-Prone Regions:

Now the two businesses are under scrutiny by Kyrgyz prosecutors and F.B.I. agents who are looking into whether the president at the time, Askar Akayev, and his family pocketed hundreds of millions of dollars, partly from Pentagon fuel contracts, before he was ousted this year.

The family's involvement at the base, a critical site for refueling Air Force aircraft flying over Afghanistan, is a story of everyday cronyism in an impoverished country where the coming of the Americans was seen as a financial windfall for the well connected.

But the case also illustrates the risks of alliances with nations that are unstable and rife with corruption. Mr. Akayev's abrupt departure in March has put the Pentagon in an awkward bind. It needs continued access to the base, but the $207 million spent on fuel contracts has created resentment among the country's new leaders, some of whom contend that the United States knew where the proceeds were going.

From the Washington Post, Senators Agree on Detainee Rights, and Abuse Included Use of Lions, Iraqis Allege:

Two Iraqi men who were arrested in Iraq in 2003 but never charged with crimes say that U.S. troops put them in a cage with lions, pretended to execute them in a firing line and humiliated them during interrogations at multiple detention facilities.

Sherzad Khalid, 35, and Thahe Sabber, 37, say they were brutally beaten over several months at U.S. facilities such as Camp Bucca, Abu Ghraib prison and another detention facility at the Baghdad airport. They said the abuse occurred when they were unable to tell U.S. troops where Saddam Hussein was hiding and did not know about weapons of mass destruction in Iraq.
....
The two men are plaintiffs in a lawsuit filed by the American Civil Liberties Union and Human Rights First against Defense Secretary Donald H. Rumsfeld and top military commanders in Iraq. The suit contends that U.S. policies during the war allowed abuse and torture. Both men say that they were tortured and degraded for months before they were released.

From USA Today, Abuse of Detainees Undercuts U.S. Authority, 9/11 Panel Says:

The 10 members recommended the United States work with friendly nations to develop a detainee policy acceptable to all and to give detainees protections they do not currently have.

The 9/11 Commission was disbanded last year. Its members then formed a group called the 9/11 Public Discourse Project, which monitors response to the attacks. This is the group's third report.

BLAWG REVIEW #32

Centrist — Mon, 14 Nov 2005 05:59:00 +0000

Greetings and welcome to Blawg Review 32! First of all, I want to thank all the editors at Blawg Review for doing a whiz bang job marketing this very special edition. I feel honored to be hosting the Carnival of the Blawgs during Veterans Day Weekend. With that, I dedicate this edition to all of those who serve or have served in uniform, especially those who have made the ultimate sacrifice for freedom. Without your service, none of this is possible. OK, let the games begin!

Preferring Charges

In the American military justice system, a criminal case begins by the accuser preferring (or pressing) charges. Under the Uniform Code for Military Justice (UCMJ, 10 U.S.C. 801-946), anybody subject to the code may prefer charges. However, usually a soldier's immediate commander will prefer charges.

CrimLaw, the blawgosphere's central clearing house for all things criminal law, gets the ball rolling for us by giving us the weird news of the week. Included in this week's fare: No bail for computer virus makers, animal cruelty liberators with more heart than brains, and how being truly persistent can get you out of jail, if only for a few days.

Of course, when you're thinking about charging, you need to know the system. To that end, Norm Pattis from Crime & Federalism helps to clear up some myths about the criminal justice system. Among them: the cops don't have to read you your rights unless you're in custody, and the effect of CSI on juries helps the state as well as the defense.

So, who's been charged this week? Well, 5 more Guantanamo detainees (from yours truly at JAG Central). On that note, yours truly was charged by UCLA Professor Stephen Bainbridge (a professor I never took because I detest all things Business Law) as engaging in "hot action." Mike Cernovich charges the military justice system as being just, and the JAG Corps as being a golden opportunity for young lawyers. And Lisa Stone from the Law.Com BLOG Network says simply of Blawg Review #32: "I'm looking forward to [it]."

Jurisdiction and the UCMJ

Jurisdiction is easy to establish in the American armed forces. According to Article 2, UCMJ (10 U.S.C. 802), pretty much every service member on active duty is subject to court martial for a violation of the UCMJ, no matter where on Planet Earth (or elsewhere for military astronauts) the offense takes place.

Of course, things shouldn't be that easy, at least according to the United States Senate. In a never-ending effort to ensure poor dolts like me continue to be confused on Federal Courts final exams, the Graham Amendment has reared its ugly head. It aims to strip the federal courts of all ability to hear habeas petitions by Guantanamo detainees. Well, the good ol' folks at PrawfsBlawg (yes, the name says it all) have something to say about that: the floodgates that were supposed to open as a result of habeas litigation by Guantanamo detainees has actually been a tiny trickle. I wrote about the possibility of "lawfare" in this post. It appears from the prawfs that, so far, Phil Carter was right and Eugene Volokh was wrong. In a later post, the Prawfs wonder aloud whether the amendment's passage means the Supreme Court should have immediately dismissed Hamdan's case (which was heard the next day). Katherine, a twentysomething law student & former reporter, over at Obsidian Wings, has not one, not two, not three, not four, not five, but six posts about the Graham Amendment. Of course, Norm Pattis gets his two cents in about the whole Senate shin-dig: "Shame on the Senate for passing this excrement."

Of course, isn't it ironic that, at the same time Senator (Colonel, USAF) Graham is trying to strip the federal courts of jurisdiction, a convicted Air Force Airman is trying to strip him of jurisdiction to hear his case before the U.S. Air Force Court of Criminal Appeals. My co-blogger at JAG Central, LawyerDad, writes about the sticky constitutional and statutory issues over whether a sitting senator can serve in the JAG Corps and hear cases in this post, and sums up the news summaries of oral arguments in this post.

Finally, Holly Manges Jones over at JURIST's Paper Chase tells us about two foreign jurisdiction issues. An Italian prosecutor has filed for the extradition of 22 CIA operatives to face charges for the alleged kidnapping of Egyptian cleric Abu Omar. And, the Federal Court of Canada has decided to hear the asylum appeal of a US Army deserter, who claims that since the American war in Iraq is "illegal," going back to the Army could potentially subject himself to war crimes charges. Nice try, slacker.

Article 39(a) and RCM 802 Sessions

Unlike civilian practice, there are no sidebars in military practice. If the judge advocate needs to address something to the judge outside the presence of the members, the members must be formally excused from the courtroom. The court then has two options. For minor housekeeping matters (such as informing the judge of how long an examination will take, or what motions a JAG expects to make in the future), a Rule for Court Martial (RCM) 802 conference can be held in the judge's chambers or by e-mail. For more formal matters, such as making motions or extended objections, Article 39(a) (10 U.S.C. 839), UCMJ, calls for a formal session to be held on the record but outside the presence of the panel (jury) members.

One extended objection made in the blawgosphere this week was the resurgence of the DoJ's National Security Letter. Sabrina I. Pacifici at beSpacific rounds up the news on the resurgence, arguing that the 30,000 letters issued this year represents a "hundredfold increase over historic norms." Lisa Stone quotes some blawggers as saying: "I am glad to see that some are willing to challenge this practice and hope many others join them."

Clay S. Conrad, the Jury Geek, objects to the fact that lawyers and judges can't deal effectively with juries. Why not? First, "lawyers and judges have a lack of core competence, in that few of them understand the jury system. Secondly, lawyers and judges have an institutional conflict of interest with the jury."

Several blawggers object to our treatment of detainees and casualties this week. Dave Glazier and Jon Holdaway at Intel Dump write about the lawfulness of burning Taliban deceased. Jon Holdaway defends the practice, while Dave Glazier derides his fellow blawgger's "defense counsel" viewpoint. Meanwhile, Marty Lederman at Balkinization urges Juan Non-Volokh from the Volokh Conspiracy to quit living in the CIA Secret Prison past; there's so many other torture stories to write about! Finally, MahanAtma, guest blogging at Crime & Federalism, debunks the ticking time bomb theory he believes is rationalizing detainee torture.

"The Quiet Professionals"

On this Veterans Day, it's important to remember the sacrifices of those who serve quietly, behind the scenes. In Army JAG Offices, those are often the warrant officers who serve as our legal adminstrators. They make the office run, from installing and maintaining IT equipment, to balancing the office's budget. One such quiet professional who made the ultimate sacrifice was Chief Warrant Officer 5 Sharon T. Swartworth (pictured at left). CW5 Swartworth was killed in action on 7 November 2003 in Iraq when her helicopter was shot down while visiting JAG soldiers in the field. Those who knew her agree that she symbolized the finest traditions of the JAG Corps.

When it comes to chronicling the developments of the quiet professionals in civilian law offices, Jim Calloway at Jim Calloway's Law Practice Tips does a bang-up job. This week, he urges young lawyers to support your local bar association, and not to be paralyzed by the prospect of complicated technology purchases. Also, he indulges in a little self-aggrandization (hey, I'm guilty of it too) by writing about the proliferation of his own subgenre, law management blogs.

Nivine Zakhari, a quiet professional over at Tech Law Geek, has a Veterans Day-themed post regarding her earlier work with veterans and Post-Traumatic Stress Disorder. Remembering the veterans, Nivine writes, "This Tech Law Geek will always remember she's in their debt."

Rick Georges at FutureLawyer has a fix for those lawyers still stuck in the past using WordPerfect and trying to communicate with those who have finally gotten with the times. (Sorry; after eight years in the Army, I'm a Bill Gates .doc slave.)

I must apologize again; I don't know much about IP, even with the fine professors we had at UCLA. I'll leave explaining it to those in the know. According to Ronald Coleman at Likelihood of Confusion, the New York Metropolitan Transportation Authority is absolutely obsessed with it. Andrew Raff at IPTAblog notes that Google is giving away nearly 10,000 pieces of IP for free. One author who claimed Dan Brown stole the DaVinci Code from him obviously placed more value on his book than Google. The MassLawBlog explains how one federal judge handled this mess.

Post-Trial Matters

No, I'm not talking about the appeal. In the military justice system, the process provides the convicted service member a whole host of chances to have the findings reviewed, the sentence commuted, or the whole thing thrown out BEFORE appeal. This essentially places another check on the government to ensure that an accused is not railroaded by the likes of someone pictured at the left. Article 60, UCMJ (10 U.S.C. 860) governs the post-trial submissions to the convening authority.

Rounding up the post-trial submissions for this edition of Blawg Review are a series of posts about the BlawgThink conference held this week. Dave Swanner from the South Carolina Trial Law Blog wrote about his hesitance to attend the conference: "This was a tough call for me because I primarily see myself as a trial lawyer who has a weblog rather than a blogger who is also an attorney." Dennis Kennedy talks about his plans for BlawgThink: "What struck me . . . was that the reality of the BlawgThink we have created is far more like the initial vision than I thought." Of those attending the conference, George Lenard of George's Employment Blawg writes up Day 2 of BlawgThink: "It was a bit like an immigrant who never speaks his native language, but only reads it, getting invited to a party at which everyone converses in the mother tongue." Finally, Russ Krajec of Anything Under the Sun offers this post-mortem of BlawgThink: "In essence, this weekend has been an enormous internet dating ritual." Well, I guess my being married disqualifies me.

Thanks to everyone who sent in their posts; I couldn't have done it without you. If you didn't make this week's Blawg Review, try, try again! And this week, take another moment to remember those who serve in far away lands.

Blawg Review has information about next week's host, and instructions on how to get your blawg posts reviewed in upcoming issues.

KUDOS TO BLAWG REVIEW

Centrist — Fri, 11 Nov 2005 00:14:00 +0000

Thanks to the editors at Blawg Review for the very kind words previewing our Monday edition of Blawg Review #32. We at JAG Central hope to live up to their lofty write-up. Also, the JAGs-Central join the editors in celebrating Veterans Awareness Week.

NATIONAL NEWSPAPERS - 9 NOV 05

Centrist — Wed, 09 Nov 2005 12:22:00 +0000

Hussein Trial's Defense Team, Under Attack Again (NYTimes.com)

From the NY Times, Ambush of Defense Lawyers in Hussein Trial Kills One:

Gunmen ambushed two of the defense lawyers in the Saddam Hussein trial on a Baghdad street on Tuesday, killing one and seriously wounding the other. Coming after another defense lawyer was killed on Oct. 20, the latest attack brought immediate demands from other lawyers in the case for the trial to be halted and moved to a location outside Iraq.

An Interior Ministry official said the drive-by shooting in a western suburb of Baghdad had killed one of two lawyers who represented Taha Yassin Ramadan, a former vice president under Mr. Hussein, and Barzan al-Tikriti, Mr. Hussein's half-brother and former head of the secret police. Both men are defendants with Mr. Hussein in the first trial to be held for the mass killings under his rule.

The trial opened briefly in Baghdad three weeks ago and quickly adjourned. It is set to resume Nov. 28.

Also from the Times, U.N. Extends Mandate in Iraq for U.S. Troops ("The Security Council on Tuesday unanimously adopted a one-year renewal of the United Nations mandate for the United States-led multinational force in Iraq. The resolution, sponsored by Britain, Denmark, Japan, Romania and the United States, extends the mandate until Dec. 31, 2006, but calls for a review of the decision by June 15 and allows for the ending of the mandate at any point if Iraq requests it.").

From the Washington Post, Pair of Attorneys in Hussein Trial Shot in Ambush, and Defense Document Bans Detainee Torture:

Pentagon officials released a new directive yesterday on Defense Department intelligence interrogations, mandating that all questioning of detainees in U.S. military custody include "humane" treatment and banning "acts of physical or mental torture."

The eight-page document for the first time pulls together a number of departmental policies on interrogations and the prevention of detainee mistreatment, exemplified by the Abu Ghraib prison abuse in late 2003. The directive largely sets out how future policies will be developed, emphasizes proper treatment and lays out requirements for reporting violations as they occur.

You can access the new DoD Directive 3115.09 here.

From USA Today, Another Lawyer on Saddam's Defense Team Killed, and Pentagon Interrogation Rules Allow Exceptions:

A new Pentagon policy governing the interrogation of prisoners allows for exceptions if authorized in writing by top Defense Department officials.

The new directive, signed by Deputy Defense Secretary Gordon England last week, formalizes many rules created since U.S. troops' abuse of prisoners at Abu Ghraib prison outside Baghdad was revealed in April 2004.

Elisa Massimino, Washington director for Human Rights First, a group that has lobbied for stricter limits on interrogations after Abu Ghraib, says the exceptions could lead to abuses: “This is what got us into problems in the first place.”

Massimino described the exceptions as similar to one that Vice President Cheney has advocated for CIA personnel interrogating prisoners in the war on terrorism.

Sen. Lindsey Graham, R-S.C., who has backed legislation to bar torture during interrogations, said there should be no loopholes allowing questionable methods.

Pentagon spokesman Bryan Whitman, however, said the provision for exceptions doesn't amount to a loophole in the policy, which “reiterates humane treatment” for all prisoners in military custody.

The overall policy directive establishes new restrictions on U.S. military and civilian personnel who interrogate prisoners:

•All physical and mental torture is prohibited.

•The use of guard dogs — which were used at Abu Ghraib to intimidate prisoners — is banned during interrogations.

•Interrogations will be conducted only by trained and certified interrogators, and all suspected abuses will be reported by medical personnel and others up the chain of command. Prison guards are also barred from participating in interrogations.

•Any other U.S. government agencies or foreign government representatives who ask to interrogate prisoners held by the Defense Department must agree to abide by Pentagon policies before being granted access to them.

UPDATE ON U.S. V. LANE

Lawyer Dad — Wed, 09 Nov 2005 01:29:00 +0000

C.A.A.F. heard oral arguments today in the U.S. v. Lane case (see my original post). As discussed in Centrist's post yesterday, USA Today ran a story about the case which was picked up by the Army Times. Today, the Congressional newspaper Roll Call got in on the action. And, JUST RELEASED: the Associated Press story about the oral argument.

From what I've heard, the judges didn't ask many questions about whether Lane had standing. Also, though it wasn't mentioned in their briefs, Judge Effron asked counsel about Article 66(g)! I wish this blog could claim some credit for that, but by all reports he is an extremely bright and well-read person. I'm sure he picked it up on his own, without the help of this very fine blog.

NATIONAL NEWSPAPERS - 8 NOV 05

Centrist — Tue, 08 Nov 2005 12:09:00 +0000

Busy day for Guantanamo News.

From the NY Times, Justices to Rule on a Challenge to U.S. Tribunals:

The Supreme Court announced on Monday that it would decide the validity of the military commissions that President Bush wants to use to bring detainees charged with terrorist offenses to trial.

Pentagon Charges 5 More in Guantánamo Bay Camp (November 8, 2005)
Roberts's Recusal Is One of Several (November 8, 2005) The case, to be argued in March without the participation of Chief Justice John G. Roberts Jr., places the court back at the center of the national debate over the limits of presidential authority in conducting the war on terror. Last year, the Supreme Court rejected the administration's position that the federal courts had no jurisdiction over those held as enemy combatants at the United States naval base at Guantánamo Bay, Cuba.

This time, once again, the justices acted over the vigorous opposition of the administration, which urged the court to stay its hand and defer any review until after a detainee had been tried by a military commission and convicted.

Lawyers representing Salim Ahmed Hamdan, the Yemeni who brought the challenge to the commissions, argued however that the issues of domestic and international law raised by the case were sufficiently important to be heard and resolved without further delay.

Chief Justice Roberts is recusing himself, likely because he wrote opinions similar to this one at the Court of Appeals.

Also from the Times, Pentagon Plans Tighter Control of Interrogation:

The Pentagon has approved a new policy directive governing interrogations as part of an effort to tighten controls over the questioning of terror suspects and other prisoners by American soldiers.

The eight-page directive, which was signed without any public announcement last Thursday by Acting Deputy Defense Secretary Gordon R. England, will allow the Army to issue a long-delayed field manual for interrogators that is supposed to incorporate the lessons gleaned from the prisoner-abuse scandals last year.

The Army intends, for example, to ensure that interrogation techniques are approved, up to the highest levels in the Pentagon, that interrogators are properly trained and that personnel in the field are required to report any abuses, Army officials said.

And finally from the Times, Pentagon Charges 5 More in Guantanamo Bay Camp:

Within hours of the Supreme Court decision on Monday to consider the legality of special military commissions to try detainees for war crimes, the Defense Department announced that it had brought charges against an additional five prisoners at Guantánamo Bay, Cuba.

The announcement brings to nine the total of detainees at Guantánamo who are facing war crimes charges under the military commission system. The newly charged detainees include Omar Ahmed Khadr, 19, a Canadian accused of throwing a grenade that killed an American medic, Sgt. First Class Christopher Speer, near Khost, Afghanistan.

Mr. Khadr's case is well known because his lawyers have said that he was mistreated at Guantánamo and that his initial capture and detention when he was 15 violated United States obligations under treaties on treating young people in wartime.

The charges against Mr. Khadr say that his father was a close friend of Osama bin Laden and that he, too, was acquainted with Mr. bin Laden, the Qaeda leader.

You can find the charge sheet for Khadr and the other four here on the DoD Military Commissions Website.

From the Washington Post, High Court to Hear Case on War Powers, and 5 Soldiers Charged With Abuse of Detainees:

Five U.S. soldiers with the 75th Ranger Regiment in Iraq have been charged with abusing three detainees as they were preparing to transfer them to a prison in September, according to U.S. military officials in Baghdad.

The incident occurred in an unspecified "battlefield collection point" in the Baghdad area on Sept. 7, when the five soldiers allegedly beat the detainees they were assigned to guard, said Chief Petty Officer Greg Frazho, a spokesman for Multinational Forces in Iraq. "The detainees got bruises and contusions, caused by striking with a closed and open hand, and hitting with an object described as a broomstick," Frazho said yesterday.

It was unclear yesterday how officials learned of the alleged incident, but Army officials said an investigation began as soon as it came to light. Officials did not release the names of those charged.

Each soldier was charged on Saturday with assault and battery, maltreatment and dereliction of duty. Those charges have been sent to higher officers for evaluation. Frazho said all of the soldiers have been assigned to administrative duties while the charges are pending.

Also from the Post, U.N. Approval Sought To Extend Iraq Stay:

The Bush administration pressed the U.N. Security Council on Monday to pass a resolution extending the mandate of the U.S.-led military coalition in Iraq, providing a legal basis for U.S. and allied troops to remain for at least a year after Iraqis elect their first government under the new constitution on Dec. 15, according to U.S. and European diplomats.

Administration officials said they are seeking the resolution now to spare a new government the politically challenging burden of explicitly approving the continued presence of foreign troops in Iraq. They also hope a U.N. mandate authorizing troops through 2006 would encourage the United States' coalition partners to remain in Iraq, and would avoid a potentially contentious battle within the Security Council next year over whether to renew the authorization even though a new Iraqi government has taken power.

From USA Today, Supreme Court Steps Into Debate Over Detainee Tribunals, 5 Terrorism Suspects at Guantanamo Charged, and Five Soldiers Charged With Abusing Iraqis.

NATIONAL NEWSPAPERS - 7 NOV 05

Centrist — Mon, 07 Nov 2005 21:41:00 +0000

Senator/Colonel Lindsey Graham, USAF, Pictured Before His Promotion (Metrobeat.com)

From USA Today, Senator's Service as Military Judge Scrutinized:

In a case that could help determine whether citizen-soldiers have a place in Congress, a federal court on Tuesday will weigh whether a U.S. senator who helps make Pentagon policy and has spoken out on issues such as Iraqi prisoner abuse can also serve as a military judge.

The case before the U.S. Court of Appeals for the Armed Forces here involves Sen. Lindsey Graham, R-S.C., an Air Force Reserve colonel appointed two years ago to the lower Air Force Court of Criminal Appeals.

Lawyers for Airman 1st Class Charles Lane are seeking to throw out Lane's cocaine conviction on the grounds that Graham, one of three appellate judges who reviewed his case, is “constitutionally and ethically disqualified” to serve.

In court papers, Lane's lawyers argue that “Senator/Judge Graham cannot be an impartial and disinterested judge” because he is “politically accountable to his constituents for anything he does.” Graham declined to comment on the case's merits. “We'll live with whatever the court says,” he said.

The senator began his Air Force career on active duty in 1982 and served as both a prosecutor and defense lawyer. In 1988, he transferred to the Reserves before serving a five-year stint in the South Carolina Air National Guard. Graham went back to the Reserves in 1995, after he was elected to the House of Representatives.

You can read LawyerDad's earlier post about Senator/Colonel Graham here.

NATIONAL NEWSPAPERS - 5 NOV 05

Centrist — Sat, 05 Nov 2005 16:45:00 +0000

From the NY Times, Soldier Cleared in Abuse Case ("A military jury in Fort Bliss, Tex., cleared an Army sergeant of charges that he had abused a detainee at the Bagram Air Base detention center in Afghanistan in 2002. The sergeant, Duane M. Grubb, became the third soldier from the 377th Military Police Battalion, a reserve unit based in Cincinnati, to be acquitted on charges of striking and otherwise abusing detainees at the center. Six soldiers from the unit have been charged in a separate abuse investigation involving the deaths of two detainees there in 2002.").

From the Washington Post, Lawyers Seek Improved Conditions for Suicidal Detainee:

Lawyers for Jumah Dossari, a detainee held at the U.S. prison at Guantanamo Bay, Cuba, filed a motion in federal court yesterday asking for improvements in the conditions of their client's confinement, arguing that his nearly complete isolation from human contact has led him to become suicidal.

Dossari, one of about 500 detainees held without criminal charges at the U.S. military base, tried to commit suicide on Oct. 15 by hanging himself with a makeshift noose and by gouging his right arm. Dossari's lawyer found his client dangling in a cell after he did not return promptly from a bathroom break during their meeting.

The lawyer, Joshua Colangelo-Bryan, said he believes Dossari, 26, timed the attempt so that an outsider would witness it. Military officials have said Dossari's condition is stable; his lawyers have since had no contact with him.

The suicide attempt came as two dozen detainees are being force-fed at the facility because of a lengthy hunger strike protesting conditions and treatment at Guantanamo Bay. Military officials at the base say that 27 detainees are engaged in a hunger strike that began in August, a strike that at one point had 131 participants.

In a motion filed in U.S. District Court in Washington yesterday, the legal team working for the Center for Constitutional Rights argued for a face-to-face meeting with Dossari as soon as possible, and sought to have independent medical professionals assess his psychological condition and medical records.

The lawyers also asked that Dossari be allowed to have regular telephone calls with a member of his family and be allowed to view a digital video recording from his relatives containing "personal greetings and expressions of concern," a statement from the center said.

Specifically, the motion also asks that Dossari's "near complete isolation" in the Guantanamo prison be changed to include regular interaction with other detainees, that the lights in his cell be turned off or dimmed during sleeping hours and that he be allowed at least one hour of exercise a day. The lawyers also ask that Dossari be allowed to receive English-language children's books and English textbooks, so he can learn English, along with traditional religious texts and Arabic-language novels.

NATIONAL NEWSPAPERS - 4 NOV 05

Centrist — Fri, 04 Nov 2005 15:08:00 +0000

From the NY Times, U.N. Court Faces Fairness Issue at Milosevic Trial:

More than three years into the trial, the judges have warned that Mr. Milosevic has now used up close to 75 percent of his allotted time and that he will get no extension.

But the former Yugoslav president, who acts as his own defense lawyer, has barely addressed one-third of the charges against him and has demanded more time to do so. After presenting his first 40 witnesses, he has given the court a list of 199 more witnesses, "the absolute minimum" he said he needed to lay out the rest of his case. The list, he told the judges, had been pared down from 1,630 names.

Some lawyers at the United Nations tribunal say that the judges may have little choice but to give Mr. Milosevic more time. The trial, which began in February 2002, has already set a record for longevity in international law. In keeping with the present schedule, it is expected to conclude in March 2006. But under Mr. Milosevic's new plan, it could go on for another year or more.

Mr. Milosevic has focused thus far only on the 1999 war in Kosovo, the Serbian province, for which he faces charges of war crimes and crimes against humanity. But he also faces a long list of charges of killing and torture in Croatia and two counts of genocide in Bosnia.

Also from the Times, U.S. Marines Held in Rape ("Five United States marines who participated in joint counterterrorism exercises were barred from leaving the Philippines after being accused of raping a woman they met at a disco near Subic Bay, the former naval base, officials said. Philippine authorities briefly delayed the departure of the amphibious assault ship Essex while searching for the marines accused of assaulting a 22-year-old woman. They were placed under the custody of the American Embassy for investigation."); and House Delays Vote on U.S. Treatment of Terrorism Suspects.

From the Washington Post, British Soldiers Acquitted ("A judge dismissed charges against seven British soldiers accused of murdering an Iraqi civilian, ruling that some Iraqi witnesses lied and that there was insufficient evidence to proceed.").