LAW FROM THE CENTER

JAG CENTRAL - Launches June 1st!

2004-05-12T09:21:00.000-07:00

Law From The Center will be discontinued May 30!

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!

SOFA NEEDED SOON FOR US TROOPS IN IRAQ

2004-04-23T16:00:00.000-07:00

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 Since prior UN resolutions governing Iraq have never been technically repealed, US forces could cite the language in them describing us as an "occupying force," granting us exclusive criminal jurisdiction over our own troops.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

MY BOSS, THE "SECRETARY OF SWEET TUNES"

2004-04-22T21:59:00.000-07:00

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.

CENTRIST MEDIA WATCH: SETTING THE CHAPLAIN "GAG ORDER" STRAIGHT

2004-04-21T20:57:00.000-07:00

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.

10TH CIRCUIT UPHOLDS MY LAI CIVIL SUIT DISMISSAL

2004-04-19T20:17:00.000-07:00

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.

McDONALDS' CHIEF PASSES AWAY...

2004-04-19T19:46:00.000-07:00

...of a heart attack. My condolences go to the Cantalupo family. That said, does anyone else see the irony?

WHY YOU SHOULD ALWAYS CHECK GOOGLE NEWS BEFORE YOU BLOG

2004-04-12T16:21:00.000-07:00

David Bernstein from the Volokh Conspiracy writes at 12:08 p.m. PDT:

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."

ARMY TELLS GUANTANOMO CHAPLAIN TO KEEP QUIET

2004-04-10T01:30:00.000-07:00

Ann Woolner of Bloomberg News writes a fairly partisan column about the supposed inability of the Bush administration to "apologize." Without getting into the politics of the matter, her column uncovers another key fact in the Chaplain Yee case. Chaplain Yee's superiors have told him to shut his mouth about the case:

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?

I hadn't heard about the memo yet, but I must say that I'm not the least surprised, nor do I disagree with the memo. The memo falls short of prior restraint by merely advising Chaplain Yee on the state of military law regarding disloyal statements about the chain of command. Since it's not a gag order, it seems appropriate. Until the day Chaplain Yee takes off his uniform (which will be as soon as his reprimand appeal is over), he is an officer in the US Army and is expected to maintain the highest standards of personal discipline. It may seem like a slap in the face to shove this memo in Chaplain Yee's face after he has been subjected to pretrial confinement for a capital offense, only to have all charges dropped later. But it remains Chaplain Yee's duty to support the service until he leaves. I'm confident he'll let old Mr. Fidell do the talking for him.

CENTRIST PROPAGATING THE SPECIES

2004-04-09T09:58:00.000-07:00

It's official - the Centrist is going to be a daddy. What to plan for the new child? Dave Barry suggests handing it to famous people and taking photos.

UPDATE - MARINE CLEARED OF PARACHUTE SABOTAGE CHARGES

2004-04-08T20:55:00.000-07:00

A court-martial panel cleared a Marine Rigger Sergeant of charges involving the sabotage of 13 parachutes. Story from The New Bern Sun Journal. I predicted the opposite result here. Shows what I know.

CAAF CLARIFIES (OR MUDDLES) INEFFECTIVE ASSISTANCE OF COUNSEL

2004-04-08T20:20:00.000-07:00

Today, the Court of Appeals for the Armed Forces (CAAF) handed down an opinion in U.S. v. Adams, a case involving ineffective assistance of counsel. The case involves an Army Specialist who was convicted of rape and adultery. At trial, he contested the voluntariness of his confession. He wished to assign error to the trial military judge's refusal to exclude the confession, and hired a civilian lawyer to represent him before the Army Court of Criminal Appeals. Unfortunately, the civilian lawyer never confirmed that the military lawyer (you always keep your military lawyer even if you hire a civilian lawyer as lead counsel) actually filed the appeal after he sent it over e-mail. To make matters worse, the civilian lawyer and the two subsequent military lawyers never communicated to each other or tried to fix the mistake. Pretty ineffective, right? NO. CAAF held that for many reasons, the error did not rise to the level of "ineffective assistance of counsel."

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.

Frankly, the notion that simply filing motions of continuance equates to effective assistance of counsel is troubling, especially considering the horrific performance of the attorneys in this case. It certainly comes closer to "doing nothing" than it does to actively defending the client.

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?

MARINE RIGGER BEGINS DEFENSE IN SABOTAGE COURT-MARTIAL

2004-04-06T00:34:00.000-07:00

Via the AP, word comes that the prosecution has rested in the court-martial of a Marine accused of conspiring to sabotage military parachutes:

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."

This is truly a bizarre case. The article says that the Marine is only being charged with, among other things, assault likely to produce grievous bodily harm (Art 128, UCMJ, 10 USC 928). Not having the case before me, I think a good case could be made for attempted murder (Arts. 80 & 118, UCMJ, 10 USC 880, 918). Any rigger would know that cutting the lines on a parachute would be likely to cause death, and I think an argument is easy that because of this knowledge, the rigger premeditated the deaths of the jumping Marines.

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.

JOKE'S OVER...

2004-04-02T23:14:00.000-08:00

...How Appalling is no more.

WHAT'S IN A (FIRST) NAME

2004-04-02T14:45:00.000-08:00

Will Baude of CrescatS writes about using blogger's first or last names. Speaking specifically about professors like Eugene Volokh:

Co-bloggers nearly always refer to one another by first name, but I can't imagine referring to a post by Volokh with "Eugene says," even if I were commenting on a Jacob Levy post that used precisely that phrase.

Being a UCLA student and having Prof. Volokh as a professor, I must add that I couldn't imagine calling him Eugene. He has invited me to several times. For instance, when he calls me on the phone to discuss Law Review stuff, he always says, "Eugene here." But I always call him Prof. Volokh. It's the same with my Law Skills prof; he always says Jason but I call him Prof. Light. Maybe it's my long years in the military, or just my desire to be a professor myself someday, but I just can't shake the social order of the university.

WHY I'M GLAD I'M GOING TO UCLA...

2004-04-02T11:28:00.000-08:00

...I get to escape infantile BS like this. David Bernstein talks about rankings hysteria not only in law school, but when looking for a job. How sad.

MORE THOUGHTS ON NEWDOW

2004-03-30T23:03:00.000-08:00

DC Law Studentwrites:

I agree with the Government that recital of the pledge is a patriotic exercise, not a religious one. Just because "under God" is contained in the pledge does not alter the inherent patriotism of the event. Students are affirming their belief in the values and ideals of our country, and vowing to honor the symbols that reflect those beliefs. If they disagree with the notion that belief in a supreme being heavily influenced the founding of our Nation, they can simply not recite those two words in the Pledge, or not recite it at all. But I do not buy that these two options amount to an unconstitutional coercion. Yes, peer pressure sucks, but there must be more than a stare, giggle, or finger-pointing to violate the First Amendment.

Finally, I want to mention the fact that I am an adherent to the concept of "ceremonial deism." I believe that there are some religious words, phrases and practices that, although appearing religious on their faces, and perhaps orginally started as a purely religious matter, after continuous repetition throughout history in a secular manner become non-religious in nature.

This reminds me of an interview President Reagan did on TV. He was telling a story about how he met Gorbachev in Reyjavik, Iceland during the famous summit there. He was having a "private" conversation with Gorbachev, and Reagan heard the translator say, "God willing." Reagan was taken aback. Don't Communists disavow God as a construct of the bourgeoisie to persecute the proletariat? Reagan asked about the phrase, and Gorbachev told him that it was just a figure of speech, and that he had no belief in a higher being.

Even in Communist Russia, the leader of the world's most powerful Marxist regime used the word "God". Using the word does not turn you into Pat Robertson.

GOVERNMENT FILES BRIEF IN HAMDI CASE

2004-03-30T22:17:00.000-08:00

Late Monday, the Solicitor General filed a brief in the Hamdi case, challenging the ability of the government to hold US citizens labeled enemy combatants without contact with a lawyer or a prompt filing of charges.

"When the commander-in-chief has dispatched the armed forces to repel a foreign attack on this country, the military's duty is to subdue the enemy and not prepare to defend its judgments in a federal courtroom," wrote Solicitor General Theodore Olson, on behalf of the government, which is seeking affirmation of a lower court ruling saying the detention of Yaser Hamdi is constitutional.

The brief continues:

"In this extraordinarily sensitive national security context, the [Supreme] Court should be wary of adopting a means of testing the validity of an enemy combatant's detention that defeats one of the important military functions served by that detention," Olson wrote.

The actual brief can be found here. The Government's arguments seem rather solid. First, it argues that the Court has said in two cases during the WWII/Korea War era that US citizenship provides no immunity from detainment in a POW camp. Classic stare decisis, and wartime stare decisis is the strongest kind. Second, it argues that, in accordance with Justice Jackson's opinion in Youngstown Sheet & Tube Co., the President's power is at its zenith during times of war. Since determining whether someone is a enemy combatant is an area where the military (as agent for the President) has a unique competency in, and that arguably most Article III judges have zero experience with, the decision of the Executive in this area demands the highest degree of deference. Finally, DOJ concedes that SOME level of habeus review is warranted. However, since the military deserves high deference, the government should only have to show a rational basis for the detention, supported by SOME showing of factual basis. Not the typical preponderance that is required in habeas procedings.

This brief was far better written than the last DOJ brief that I told you about here in Rasul v. US (the Guantanomo non-citizen case). Instead of following a scorched-earth policy that flips the bird to the court, in this week's brief, the DOJ conceded what it had to concede in order to gain credibility with the tribunal. By conceding limited jurisdiction to the court, it allows the Supreme Court to institute an extremely deferential standard in Habeas proceedings. Given the Rehnquist court's current war on habeas, I think the outcome in this will be easy to predict. And while, in other habeas cases, the liberals on the court have dissented, I don't think this is a sympathetic case. I predict at least a 7-2 decision, if not 9-0.

A VISIT FROM ON HIGH...

2004-03-28T21:44:00.000-08:00

Tonight, looking at my SiteMeter statistics, I noticed I was visited by a nameless surfer from "Supreme-court.gov." Click here for the proof.

How humbling. Could it be that one of the mysterious 9 is perusing my site? Perhaps pondering intently over my musings about military jurisprudence? After all, they did load the site twice, and spent over 1 minute viewing the contents! Maybe they are using me to channel the long-forgotten intent of our dead white framers! Might my infamous post, THIS MARINE HAS BALLS, find its way into the United States Reports? One can only dream...

CENTRIST STILL SCRATCHING HIS HEAD...

2004-03-28T21:12:00.000-08:00

For those who can't get enough of Log Cabin Republicans, surf on over to Right Side of the Rainbow, "News & commentary on law and politics by a right-of-center, gun-owning, gay Texan." OK, now my head hurts.

HUMAN INTEREST PIECE ABOUT OUTSPOKEN MARINE LAWYER

2004-03-27T22:41:00.000-08:00

Raymond Bonner of the NY Times runs an intriguing article examining the personal side of Marine Major Michael Mori (I've written about him here, here, and here), the outspoken JAG attorney representing an Australian Guantanomo detainee coming up for a military tribunal:

What you see is not necessarily what you get.

That was the common reaction here to Maj. Michael Mori, an intense, energetic, 38-year-old American who became a near celebrity in Australia when he was here earlier this month.

He is an officer in the United States Marine Corps and looks it - powerful physique, chiseled features, military haircut. But when he speaks, he sometimes sounds like a lawyer for the American Civil Liberties Union, sharply criticizing the Bush administration's policy toward the detainees at GuantÀanamo Bay, Cuba, calling the military tribunals before which some will be tried ``kangaroo courts.''

``We can't work it out,'' said Minna Muhlen-Schulte, an art student at the University of New South Wales, referring to the disconnect between Major Mori's image and his views. Having seen him on the news, she had come to hear him in person.

Major Mori sees no contradiction. He is an American, and he is a marine. But he is also a lawyer for David Hicks, an Australian who was captured in Afghanistan more than two years ago and has been held at GuantÀanamo since. Major Mori was in Australia to investigate the case, and has been besieged by television, radio and print journalists.

``What I'm saying about the system isn't leftist,'' he said one recent morning here, speaking of the tribunals. ``It offends my understanding of what justice is that's been ingrained in me by the Marine Corps and by my legal training.''

Major Mori describes himself as apolitical - he says it does not matter to him if there are four more years of President Bush, ``followed by eight years of Jeb,'' or if Senator John Kerry is the next president. He says his objections to the military commissions are the same as those the Bush administration has to the International Criminal Court. Both have unchecked power, and both can be misused for politically motivated prosecutions, he said.

THE OTHER SIDE OF THE SCALIA RECUSAL DEBATE

2004-03-27T21:20:00.000-08:00

As any good centrist, I offer the other side a chance to voice their opposing viewpoint. I gave you my thoughts about Scalia here. From the Orange County Register, a cartoon response to my views.

Thanks to Howard for the heads up.

BLAWG SATIRE

2004-03-27T20:16:00.000-08:00

I nearly fell out of my chair when I saw this one: How Appalling, a to-the-T spoof of Howard Bashman's How Appealing. Even though this man represented my organization in Federal court, I highly recommend the spoof blog. Thanks to De Novo for the heads' up.

3000 HITS IN 9 WEEKS...

2004-03-27T19:11:00.000-08:00

Thanks everyone!!!

BLATANTLY MISQUOTING MARINES?

2004-03-25T23:40:00.000-08:00

Marine Major Michael Mori, who I've told you here and here is displaying incredible courage in uncharacteristically publicly defending his Guantanomo detainee clients, is speaking up again. The Mail and Guardian (South Africa) reports:

Earlier Major Mori said that labelling the defendants as terrorists had allowed the US government to lower its standards of justice. He said the system lacked checks and balances, such as a truly independent appeal process.

'The appointing authority, who approves the charges, is the same person who gets to rule on defence motions,' he said. 'He is basically reviewing his own decisions ... it's like letting the bowler call leg before wicket."

HUH? "Call leg before wicket?" OK, whoever you are from South Africa, little lesson in Journalism 101: If you're going to blatantly misquote somebody, make sure you do so with a figure of speech that that person actually uses in his or her native country. That way, everyone in America won't catch your apparent lack of ethics. Something tells me Major Mori didn't learn how to play cricket in Quantico, Virginia, or at any other Marine training for that matter.

UPDATE 1: My further research shows that this South African story is taken verbatim from a story which the Guardian (UK) ran here. So is the Guardian guilty of blatant misquoting? I'm writing the editor to clear this up. Maybe the good Marine actually used a cricket analogy to curry favor with his Australian defendant's countrymen, but I doubt it. Stay tuned...

HOUSE COMMITTEE VOTES TO EXPAND SOLOMON AMENDMENT

2004-03-25T22:46:00.000-08:00

The Yale Daily News today reported that last week, the House Armed Services Committee approved a bill that expands the Solomon Amendment power to withhold federal funding from schools that block access to military recruiters. Currently, the Solomon Amendment only affects DoD funds. If the "ROTC Military Recruiter Equal Access to Campus Act" passes, Homeland Security, CIA, and DOT funding could be cut as well.

As I've told you here and here, and here, I helped write our Amicus Brief in the FAIR v. Rumsfeld case, the case that is challenging the original Solomon Amendment. Generally, I support all efforts to help military recruiters to fight the good fight and recruit the best possible candidates for service. Unfortunately, while I think the bill's intentions are noble, I think the timing may be bad. One of the Solomon Amendment opponents' key arguments is the slippery slope argument: if they give up "academic freedom" on this issue, it will be taken away more and more easily in the future. This bill only gives that argument more ammunition. Also, this bill may actually weaken the Solomon Amendment, as it specifically defines a violation as refusing to give equal access to military recruiters. The Solomon Amendment has a much more bright-line standard, allowing DoD to cut funding any time military recruiters are blocked, not just for failing to give "equal access." Finally, this bill expends precious political and media capital that could be better spent on defending the current Amendment in court and in the media.

All leaders, military or Congressional, need to know when and how to engage the enemy. This may be a battle to avoid so that the war for military equality and veterans rights can be won.