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Wednesday, May 12, 2004
June 1, look for the new weblog, JAG Central, the world's first weblog devoted to military justice and military law issues! Reviews of court opinions, recent developments, as well as "hot topics" such as military tribunals and the Iraqi prison scandal. A resource you can't miss!
Friday, April 23, 2004
1. Prior UN Resolutions. Since prior UN resolutions governing Iraq have never been technically repealed, US forces could cite the language in them describing us as an "occupying force," granting us exclusive criminal jurisdiction over our own troops.
2. SOMA (Status of Mission Agreement). Assuming that the US is successful in getting the UN a greater role in the development of a successor Iraqi government, a SOMA could grant us exclusive criminal jurisdiction. A SOMA is an agreement with the UN similar to a SOFA with a specific nation.
As I wrote earlier, we need to promulgate some theory of exclusive criminal jurisdiction soon, to ensure that our troops our not stuck in a legal "no-man's land."
Thursday, April 22, 2004
As we know,
There are known knowns.
There are things we know we know.
We also know
There are known unknowns.
That is to say
We know there are some things
We do not know.
But there are also unknown unknowns,
The ones we don't know
We don't know.
Wednesday, April 21, 2004
The letter, received on April 6, informed Yee that as a soldier he is ordered — with threat of punishment under the Uniform Code of Military Justice — to refrain from any speech violating what sound like fairly vague and malleable criteria.
"Speech that undermines the effectiveness of loyalty, discipline, or unit morale is not constitutionally protected," Whitaker wrote. "Such speech includes, but is not limited to, disrespectful acts or language, however expressed, toward military authorities or other officials."
(Read the letter sent to Yee.)
Yee is also barred from any "(a)dverse criticism" of the Department of Defense "or Army policy that is disloyal or disruptive to good order and discipline."
Yee's attorney, Eugene Fidell, told ABCNEWS: "The punch line is, 'Pal — you're walking in a minefield and we're not going to tell you where the mines are, proceed at your own risk.' "
Fidell says the letter defines prohibited speech so broadly, Yee is effectively barred from saying anything about his ordeal since "adverse criticism" of the "Army policy" that resulted in his detention would certainly qualify in the list of forbidden topics.
Monday, April 19, 2004
Monday, April 12, 2004
Justice Scalia really ought to apologize to the reporters whose recordings of his speech were illegally seized and erased by federal marshals.Nikki Maute writes in the Hattiesburg American at 1:41 p.m. CDT (11:41 p.m. PDT): "SCALIA CHANGES PRESS POLICY; Plans to apologize to American reporter."
Saturday, April 10, 2004
If Yee has a problem with any of this, the Army has advised him to keep it to himself. This week his commander wrote Yee, advising him to squelch any ``adverse criticism'' or face possible discipline.
. . . .
What Yee has received from higher-ups is a memorandum from the commander at his new assignment near Seattle advising him to be careful what he says in public.
``Speech that undermines the effectiveness of loyalty, discipline, or unit morale is not constitutionally protected'' under military law, Lieutenant Colonel Marvin Whitaker said in the memo released by Fidell.
``Adverse criticism'' of the military ``that is disloyal or disruptive to good order and discipline'' is also restricted.
What in the world could Yee possibly say that might be the least bit critical of the military?
Friday, April 09, 2004
Thursday, April 08, 2004
According to the Supreme Court as laid out in Strickland v. Washington, 466 U.S. 668 (1984), the claim of ineffective assistance of counsel has two components. First, a convictee must prove both deficient performance and prejudice. To the court's credit, they correctly pointed out that after the trial judge allowed the confession in, the defendant pled guilty in a provident manner, thereby waiving the ability to challenge the ruling on appeal. Since the ruling could not be challenged, and that was the only assignment of error that was raised on appeal to CAAF, the court had no choice but to find that there was no prejudice. If the court had stopped there, everything would be fine.
Unfortunately, Judge Erdmann included some truly troubling dicta that threatens to erode the court's jurisprudence on ineffective assistance of counsel, only days after the Army Court of Criminal Appeals ruled the other way in the Fort Bragg Ranger Murder death penalty case. First, the court suggests that simply because a military lawyer was assigned, and because he filed some cursory paperwork, that this was effective assistance:
Addressing those facts, we said, “Where, as in this case, appellate counsel do nothing, an appellant has been effectively deprived of counsel, and prejudice is presumed.” May, 47 M.J. at 481.
Adams, however, was not wholly unrepresented before the Court of Criminal Appeals. At all times he had detailed military appellate defense counsel who undertook various actions in the case. The initial military counsel communicated with Mr. Cassara, ascertained that Mr. Cassara would represent Adams before the Army court and thereafter filed several motions for continuance. The next military counsel did not contact Adams or Mr. Cassara, but did file three motions for continuance.
Second, the court (as have previous courts in case after case) relies heavily on the Strickland v. Washington doctrine, developing a body of case law that largely parallels that of the various civilian Courts of Appeal. This alone should be cause for concern. Civilian courts have been very hostile to ineffective assistance of counsel claims. Military appeals courts face a different set of public policies. Military members "ha[ve been] provided . . . with counsel rights broader than those available to their civilian counterparts . . . [because of the] unique nature of military life, in which members are subject to worldwide assignment and involuntary deployment under circumstances when civilian counsel are not readily available." U.S. v. Spriggs, 52 M.J. 235, 237 (C.A.A.F. 2000). Military members receive rights greater than civilian defendants in the areas of rights warnings and pretrial discovery. In the realm of counsel, military members receive military counsel regardless of the ability the pay, unlike the civilian arena where you only get one if you can't afford an attorney, and only at the "critical stage." Given this background of broad rights, and after the Army Court's opinion two weeks ago in Kreutzer, why would CAAF write such dicta? Why doesn't the court depart from civilian jurisprudence (a doctrine that is almost uniformly assailed by the academic community) and fulfill the promise of the UCMJ in guaranteeing truly effective assistance of counsel?
Tuesday, April 06, 2004
Three Marines nearly died when they used parachutes allegedly damaged at the behest of Cpl. Clayton A. Chaffin, a 28-year-old air delivery specialist from Franklin, Ohio. Reserve chutes slowed their descent. He's charged with conspiring to cut the lines on at least 13 parachutes used during a Sept. 21, 2002 training exercise. The prosecution also accuses Chaffin of trying to frame another Marine for the crime.
Gunnery Sgt. Keith Johnson, a former 2nd Air Delivery Platoon sergeant, testified on Monday that Chaffin's command frequently counseled him about his finances and certain military issues. He also said officials declined to recommend Chaffin for promotion to sergeant five or six times before incident.
Johnson testified that pre-jump equipment protocol focused on external checks, meaning "any internal tampering would go undetected."
Another thing about this case catches my attention. The article notes that the accused Marine's platoon sergeant thought that "pre-jump equipment protocol focused on external checks, meaning 'any internal tampering would go undetected.'" That may be so, but there usually is another check on this process. I know that in Army Airborne units, riggers must be Airborne qualified. This is because they are subject to no-notice jumps when they must jump with a randomly-selected parachute that that very rigger has packed. Does this procedure exist in the Marines? If not, I think this case would be argument for it to be instituted. Riggers are less likely to screw with the chutes if their own lives are on the line.