LAW FROM THE CENTER

Yesterday, I told you about the middle ground the JAGS at Headquarters took in their Amicus Brief. Well yesterday, we got word that Marine Major Michael Mori, the defense attorney for an Australian prisoner being held at Camp X-Ray in Cuba, held a press conference calling the tribunal system "created and controlled by those with a vested interest only in convictions." CNN.com - Hicks defense slams trial process - Jan. 21, 2004. His two main beefs with the system are that it provides a lower standard of proof, and that it may cause retribution from future enemies holding US prisoners of war.

My own personal views are that we have a duty to provide unlawful combatants with lower treatment than lawful ones; otherwise, there will be no incentive for enemy soldiers to comport their behavior with the Geneva Convention and other accords of international law. But I want to shift the focus to the TRULY remarkeable thing about this story.

HE HELD A FRIGGIN PRESS CONFERENCE!

Ever see The Court Martial of Billy Mitchell? He held a press conference calling the generals "criminally negligent" in their lack of funding for the air forces, leading in the deaths of scores of pilots. He was rewarded with a guilty conviction and a dismissal from the service. Military First Amendment issues are very complicated. While "men and women in the Armed Forces do not leave constitutional safeguards . . . behind when they enter military service," Weiss v. US, 510 US 163, 194-95 (Ginsburg, J. concurring), the governmental interest in restricting that speech is much higher than in civilian life, and therefore the balancing of the right and the interest wins out more often with the government. Specifically, with press conferences, Army regulations generally require that, when a soldier is speaking in the fulfillment of his official duties, such speech much be coordinated with a Public Affairs Office. The idea behind this is that the command should speak with one voice.

However, our civilian intuition tells us that the defendant should be able to speak publicly through his attorney, and when the only one available is military, he should be able to speak freely to the public in order to defend his client in the court of public opinion. No such right exists, though. "The Judge Advocate General has issued a policy letter instructing that the public affairs office will normally answer news media inquiries. Judge Advocates assigned to the US Army Trial Defense Service (USATDS) are reminded to refer media to the installation public affairs officer. No member of the US Army Trial Defense Service (USATDS) will 'provide a written statement for publication, provide information for publication, or permit himself to be quoted on official or legal matters without the prior approval of the Chief, USATDS." See, e.g., Jack B Patrick, USALSA Report, Army Lawyer, May 1988, at 24, 25. Other services have similar regulations. It's highly unlikely that anyone in this Marine's chain of command authorized that kind of high profile, extremely critical statement. Usually, all a TDS lawyer can do is say the client's name, the nature of charges, and a general claim of innocence. This goes far beyond that.

No word yet on whether this attorney will receive a reprimand or other discipline, but you can bet your bippy though the military won't let him pipe up again. That kind of thing just doesn't happen around here. And that's why that Marine has one big pair on him.