LAW FROM THE CENTER

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!

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 Since prior UN resolutions governing Iraq have never been technically repealed, US forces could cite the language in them describing us as an "occupying force," granting us exclusive criminal jurisdiction over our own troops.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

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.

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.

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?

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."

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.

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.

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.

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?

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.