A Legal Blog for the rest of us!

Friday, April 23, 2004

Fox News runs a story today about the progress (or lack of) of negotiating a Status of Forces Agreement (SOFA) with the emerging Iraqi government. After the transfer of authority on June 30, Iraqis will be in charge of the criminal justice system. Without a SOFA, US troops who commit crimes in Iraq could, at least in theory, be tried by Iraqi courts. Although a SOFA was originally supposed to be in place by March 30, three months before sovereignty transfer, members of the governing council have indefinitely shelved the issue (I wrote about that development here and here). Some options in place of a sofa:

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 Since prior UN resolutions governing Iraq have never been technically repealed, US forces could cite the language in them describing us as an "occupying force," granting us exclusive criminal jurisdiction over our own troops.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

You heard it on MSNBC's Countdown; you heard it this morning on NPR. Now hear it yourself. That's right, The Poetry of Donald Rumsfeld a collection of songs by an enterprising Santa Monica musical duo, of which the lyrics are taken verbatim from Pentagon press briefings with Secretary of Defense Donald Rumsfeld. Click here to hear the most popular song, "The Unknown:"

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

Today, ABCNEWS.com ran a story regarding the warning memorandum issued to Chaplain James Yee, which I told you about here. The story reads:

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.

Well, maybe... but, the Army isn't treating him any different than any other soldier either. The memo, after every item, cites the source of the warning. The particular orders in the memo correspond almost verbatim to the cited regulation. Chaplain Yee is simply being warned of the restrictions on speech that apply to any soldier. Mr. Fidell's statement that his client doesn't know "where the mines are" is simply not true. Chaplain Yee spent 4 years at West Point. He knows exactly when to keep his mouth shut and when it's OK to open it. Besides, he has the Johnnie Cochrane of the military world to talk for him. Click here to see the memo for yourself.

Monday, April 19, 2004

Nearly 33 years after the My Lai massacre in Vietnam and the court-martial of Lieutenant Calley, the US Court of Appeals for the 10th Circuit upheld (from AP) the dismissal of a civil suit against Calley and other soldiers by Vietnamese citizens. The sole basis for the ruling appears to be that the 10-year statute of limitations has well passed, and that the poverty and unfamiliarity with the American legal system of the Vietnamese survivors cannot overcome this procedural bar. No word yet on whether or not the group will petition for certiorari.
...of a heart attack. My condolences go to the Cantalupo family. That said, does anyone else see the irony?