As covered on this blog, on April 16, 2019, the Court of Appeals for the District of Columbia Circuit issued its decision on a petition for a writ of mandamus in the case of In re: Abd Al-Rahim Hussein Muhammed Al-Nashiri. The Circuit Court granted Al-Nishiri’s request to vacate all orders issued after November 19, 2015 by the former Air Force Chief Trial Judge—now civilian immigration judge—Vance Spath. The reason for that action was that Judge Spath issued those orders while he had a “concealed and disqualifying ethical conflict.” Opinion at 15. The saga has now drawn the attention of major news outlets – Washington Post, New York Times, Bloomberg, Fox News.

Digging into the details, the Circuit Court found that Judge Spath engaged in undisclosed negotiations for future employment with the Attorney General while simultaneously presiding over Al-Nishiri’s commission. That was a problem because not only was one of the Attorney General’s subordinates from the Department of Justice detailed to the prosecution team in Al-Nishiri, but the Circuit Court was also more generally concerned because “the Attorney General plays an important institutional role in military commissions.” Opinion at 21.

The Court found the conflict of interest to be “intolerable,” declaring:

Unbiased, impartial adjudicators are the cornerstone of any system of justice worthy of the label.

Opinion at 17.

Simply put, “a judge cannot have a prospective financial relationship with one side yet persuade the other that he can judge fairly in the case.”

Opinion at 19 (citing Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985)).

While the Court’s decision in Al-Nashiri arises from the Guantanamo Bay military commissions, the rationale from the opinion naturally reverberates into the military court-martial system. If the mere possibility of a future employment relationship between Judge Spath and the Attorney General in Al-Nashiri was problematic, then the consummated relationship between every court-martial’s military judge and their respective Judge Advocate General—who appoints them, removes them, and controls their future assignments—is a particularly precarious arrangement. It is that situation that invites a deeper examination of whether military judges may properly be considered impartial.

Read more »

CAAF decided the Army case of United States v. McDonald, __ M.J. __, No. 18-0308/AR (CAAFlog case page) (link to slip op.), on Wednesday, April 17, 2019. The court concludes that the mens rea (mental state) for the offense of sexual assault by causing bodily harm in violation of Article 120(b)(1)(B) (2012), where the bodily harm is a nonconsensual sexual act, is the general intent to commit the sexual act.

Chief Judge Stucky writes for a unanimous court.

CAAF granted review of a single issue:

Whether the military judge erred in instructing the panel that a negligent mens rea was sufficient to make otherwise lawful conduct criminal.

Mens rea was the #8 Military Justice Story of 2017 because of a series of CAAF decisions involving the mental state required to violate the UCMJ. McDonald (and a second case presenting substantially the same issue) involves Article 120(b)(1)(B) (2012), which prohibited sexual assault by causing bodily harm, and the definition of bodily harm included a nonconsensual sexual act or sexual contact. Congress repealed that offense in Section 5430 of the Military Justice Act of 2016 (that became effective on January 1, 2019), but it replaced it with a new-but-similar Article 120(b)(2)(A) that prohibits “commit[ting] a sexual act upon another person without the consent of the other person.”

In neither offense, however, did Congress identify a specific mens rea. Put differently, Congress didn’t say whether – to be guilty of the offense – an accused must actually know that the other person didn’t consent (actual knowledge), or recklessly disregard evidence of lack or consent (recklessness), or just fail to discover that the other person didn’t consent (negligence). Congress also could have said (but didn’t say) that the accused’s knowledge of anything doesn’t matter at all (strict liability), or that the accused need only know that he was committing the physical acts constituting the offense (general intent).

CAAF granted review in McDonald back in September (noted here), and since then two CCAs have issued decisions addressing this issue. First, in United States v. Patrick, __ M.J. __ (N.M. Ct. Crim. App. Dec. 11, 2018) (link to slip op.), the NMCCA held that the applicable mens rea is found in the definition of sexual act which required (under the facts of that case) an intent to abuse, humiliate, harass, or degrade. A month later, in United States v. Peebles, __ M.J. __, No. 20170044 (A. Ct. Crim. App. Jan 10, 2019) (link to slip op.), the Army CCA rejected the NMCCA’s reasoning and held that “recklessness is the mens rea applicable to the element of non-consent in Article 120(b)(l)(B), where the bodily harm is alleged to be the sexual act itself.”

Now, with its decision in McDonald, CAAF resolves the question in a way more similar to the decision of the NMCCA than the ACCA. Chief Judge Stucky writes that “Congress clearly intended a general intent mens rea for Article 120(b)(1)(B).” Slip op. at 4. That means that:

As a general intent offense, sexual assault by bodily harm has an implied mens rea that an accused intentionally committed the sexual act. No mens rea is required with regard to consent, however.

Slip op. at 8 (citation omitted).

Read more »

Back in January the Court of Appeals for the District of Columbia Circuit heard oral argument on a petition for a writ of mandamus in the long-running military commission of al Nashiri, who is accused of orchestrating the 2000 bombing of USS Cole. We noted the hearing in this post, and linked to the audio in this post.

The basis for the petition was a challenge to former military commissions judge Colonel Spath (now retired) based on the fact that while serving as a commissions judge in the case prior to his retirement, Spath sought (and eventually obtained) employment as a federal immigration judge. During that time he also held the chief of the Military Commissions Defense Organization in contempt (a finding that was later reversed; the #8 Military Justice Story of 2018) and he abated the al Nashiri trial indefinitely.

Today – in an opinion available here – the DC Circuit granted al Nashiri the requested writ and vacated all orders issued by Spath on or after November 19, 2015 (the date he applied for the immigration judge position), and all decisions of the Court of Military Commissions Review (CMCR) reviewing such orders.The court reasoned:

In sum, the Attorney General was a participant in Al-Nashiri’s case from start to finish: he has consulted on commission trial procedures, he has loaned out one of his lawyers, and he will play a role in defending any conviction on appeal. The challenge Spath faced, then, was to treat the Justice Department with neutral disinterest in his courtroom while communicating significant personal interest in his job application. Any person, judge or not, could be forgiven for struggling to navigate such a sensitive situation. And that is precisely why judges are forbidden from even trying. See Scott v. United States, 559 A.2d 745, 750 (D.C. 1989) (explaining that a judge’s obligation to avoid seeking employment with a party appearing before him does not “change simply because the prospective employer is a component of the Department of Justice”).

The fact of Spath’s employment application alone would thus be enough to require his disqualification. But Spath did yet more to undermine his apparent neutrality.

First, in his job application, Spath chose to emphasize his role as the presiding judge over Al-Nashiri’s commission. He boasted that he had been “handpicked by the top lawyer of the Air Force to be the trial judge” on “the military commissions proceedings for the alleged ‘Cole bombing’ mastermind,” Reply Attachments B-2, and he even supplied an order from Al-Nashiri’s case as his writing sample, see id. at B-11. Spath thus affirmatively called the Justice Department’s attention to his handling of Al-Nashiri’s case, making his performance as presiding judge a key point in his argument for employment.

Second, while Spath made sure to tell the Justice Department about his assignment to Al-Nashiri’s commission, he was not so forthcoming with Al-Nashiri. At no point in the two-plus years after submitting his application did Spath disclose his efforts to secure employment with the Executive Office for Immigration Review. Indeed, perhaps most remarkably, less than twenty-four hours after receiving his July 2018 start date, Spath indefinitely abated commission proceedings, musing on the record that “over the next week or two” he would decide whether “it might be time . . . to retire.” Commission Tr. 12374 (Feb. 16, 2018); see also supra at 11–12. Given this lack of candor, a reasonable observer might wonder whether the judge had done something worth concealing. Cf. Rule for Military Commissions 902(e) (permitting, in some circumstances, “the parties to [a] proceeding” to waive judicial disqualification but only if the waiver “is preceded by a full disclosure on the record of the basis for disqualification”).

It is, of course, entirely possible that Spath’s orders were the product of his considered and unbiased judgment, unmotivated by any improper considerations. But that is beside the point: “[a]ppearance may be all there is, but that is enough.” Microsoft Corp., 253 F.3d at 115. As the Supreme Court has explained, “[t]he problem . . . is that people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges.” Liljeberg, 486 U.S. at 864–65. Spath’s job application, therefore, cast an intolerable cloud of partiality over his subsequent judicial conduct. Al-Nashiri thus has a clear and indisputable right to relief.

Slip op. at 22-24 (emphases added).

This week at SCOTUS: The cert. petition in King has been distributed for conference on April 26. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: The next scheduled oral arguments at CAAF are on April 23, 2019.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on April 30, 2019.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on May 2, 2019.

Audio of this week’s oral arguments before CAAF – at the University of Kansas School of Law in Lawrence, Kansas, and at Fort Leavenworth, Kansas – is available on CAAF’s website at the following links:

United States v. Frost, No. 18-0362/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Harris, No.18-0364/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast.

This week at SCOTUS: The SG waived the right to respond to the cert. petition in King. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: CAAF will hear oral argument in two cases this week. Both are Project Outreach arguments:

Tuesday, April 9, 2019, at 10:30 a.m., the University of Kansas School of Law in Lawrence, Kansas:

United States v. Frost, No. 18-0362/AR (CAAFlog case page)

Issue: Whether the military judge erred in admitting hearsay statements as prior consistent statements under Mil.R.Evid. 801(d)(1)(B)(i) where the defense theory posited the improper influence or motive preceded the allegedly consistent statements.

Case Links:
ACCA opinion
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief

Wednesday, April 10, 2019, at 9 a.m., at Fort Leavenworth, Kansas:

United States v. Harris, No.18-0364/AR (CAAFlog case page)

Issue: Whether the Army court erroneously affirmed the military judge’s denial of 291 days of Allen credit for pretrial confinement Appellant served in a civilian confinement facility awaiting disposition of state offenses for which he was later court-martialed.

Case Links:
ACCA opinion (78 M.J. 521)
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Friday, April 12, 2019, at 10 a.m.:

United States v. Banks, No. 20170261

Issue: Whether the court-martial lacked personal jurisdiction over appellant.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

On Tuesday, just six days after hearing oral argument, CAAF summarily denied Major Hasan’s petition (CAAFlog case page) for a writ of mandamus ordering the judges of the Army Court of Criminal Appeals to disqualify themselves from his case.

No. 19-0054/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party in Interest. CCA 20130781. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, the briefs of the parties, and oral argument, we note that we have the authority to issue extraordinary writs in aid of our jurisdiction pursuant to the All Writs Act (AWA), 28 U.S.C. § 1651(a) (2012). United States v. Denedo, 556 U.S. 904, 911 (2009). In this death penalty case, we conclude that we have the jurisdiction to issue the requested writ. See In re Mohammad, 866 F.3d 473, 475 (D.C. Cir. 2017) (noting that federal courts of appeals may issue writ under AWA now to protect exercise of its appellate jurisdiction later); see also Article 67(a)(1), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(1) (2012) (providing jurisdiction for this Court over all cases in which the sentence, as affirmed by a Court of Criminal Appeals, extends to death).

However, before we may issue a writ of mandamus, three conditions must be satisfied: (1) the petitioner must demonstrate that there are no other adequate alternative means to obtain the desired relief, thus ensuring that the writ is not used as a substitute for the regular appeals process; (2) the petitioner must demonstrate a clear and indisputable right to the writ; and (3) this Court must be convinced, given the circumstances, that the issuance of the writ is warranted. Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380-81 (2004).

In this case, Petitioner has failed to demonstrate that he cannot obtain relief through alternative means. He may still make an administrative request to remedy the alleged source of bias, and of course, he is entitled to raise this issue in the ordinary course of appellate review. Further, Petitioner has failed to demonstrate a clear and indisputable right to the writ as the harm he asserts is entirely speculative at this stage of the proceedings. Therefore, we decline to exercise our authority under the AWA.

Accordingly, it is ordered that the petition is denied without prejudice to Petitioner’s right to raise the issue asserted during the normal course of appellate review.

(paragraphing added).

Case Links:
Writ petition
Gov’t Div. Answer
Petitioner’s reply
Blog post: CAAF orders Gov’t Div. to re-brief
Gov’t Div. re-brief
Reply to re-brief
• Oral argument audio (wma)(mp3)
Blog post: Summary disposition

Last year, in United States v. Collins, 78 M.J. 530 (A.F. Ct. Crim. App. Jul 23, 2018) (discussed here), the Air Force CCA applied CAAF’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), to reverse a rape conviction and dismiss the charge. The CCA took that action because – based on Mangahas – the statute of limitations in Collins’ case expired more than ten years before he was charged.

The Judge Advocate General of the Air Force certified the case to CAAF (discussed here), questioning whether Mangahas applies and whether Collins could raise the statute of limitations for the first time on appeal. CAAF answered both of those questions in favor of Collins in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page), and last month the court summarily affirmed the Air Force CCA’s decision dismissing the charge (noted here).

The Air Force Government Appellate Division, however, filed a motion asking CAAF to stay its decision. Furthermore, throughout the entire process the Air Force refused to release Collins from confinement (he had been sentenced to confinement for 198 months, total forfeitures, reduction to E-1, and a dishonorable discharge). As a result, last week Collins filed a writ petition at CAAF seeking an order that he be released from confinement.

Today CAAF granted that order:

Upon consideration of Appellant’s motion to stay this Court’s order of March 12, 2019, affirming the decision of the United States Air Force Court of Criminal Appeals or to extend the time to comply with that order, Appellee’s answer, and Appellee’s petition for extraordinary relief in the nature of a writ of mandamus or in the alternative, a writ of habeas corpus, we note that Appellee is still confined despite the sole charge having been dismissed by the lower court. We also note that Appellant has not petitioned for reconsideration of this Court’s order. In that context, and where there is no further action to be taken by the President or the Secretary, the Judge Advocate General of the Air Force “shall instruct the convening authority to take action in accordance with” the decision of the lower court and the order of this Court. Article 67 (e), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(e) (2012). Finally, this Court has jurisdiction to entertain the petition and issue the writ of habeas corpus because the case is before us on direct review and appellate review is not yet complete under Article 57(c)(l)(B)(iii)(I), UCMJ (as amended by the Military Justice Act of 2016, the legislatively designated short title for Division E-Uniform Code of Military Justice Reform of the National Defense Authorization Act for Fiscal Year 2017). National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 5302(a), 130 Stat. 2000, 2922-23 (2016) (effective date Jan. 1, 2019). Accordingly, it is, by the Court, this 3rd day of April, 2019,

ORDERED:

That Appellant’s motion to stay or extend time is denied; and Appellee’ s petition for a writ of habeas corpus is granted. All rights, privileges, and property of which Appellee has been deprived are hereby ordered restored. The Judge Advocate General shall direct the immediate release of Appellee from confinement.

This week at SCOTUS: A new cert. petition was docketed in King v. United States, No. 18-1254, on March 28, 2019. In United States v. King, 78 M.J. 218 (C.A.A.F. Jan. 4, 2019) (CAAFlog case page), CAAF found a conviction of viewing child pornography to be legally sufficient even though computer forensics could not conclusively prove that the images were knowingly viewed. The cert. petition is available here. The question presented is:

Whether the Court of Appeals relied upon permissive inferences that violated the Due Process Clause of the Fifth Amendment in finding Petitioner’s conviction legally sufficient.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: The next scheduled oral arguments before CAAF are on April 9-10, 2019. They are Project Outreach arguments at the University of Kansas School of Law in Lawrence, Kansas (April 9), and Fort Leavenworth, Kansas (April 10).

This week at the ACCA: The next scheduled oral argument before the Army CCA is on April 12, 2019.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

Audio of today’s oral arguments at CAAF is available on CAAF’s website at the following links:

United States v. Lewis, No.19-0109/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

Hasan v. U.S. Army Court of Criminal Appeals, and United States, No. 19-0054/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast. (update: audio fixed)

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: CAAF will hear oral argument in two cases this week, both on Wednesday, March 27, 2019, beginning at 9:30:

United States v. Lewis, No.19-0109/AR (CAAFlog case page)

Issue: Whether the military judge abused his discretion when he suppressed SPC Lewis’s third statement as involuntary under Military Rule of Evidence 304.

Case Links:
ACCA opinion
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief

Note: This case is an Article 62 interlocutory appeal, and so the only briefs are the initial pleadings to CAAF.

Hasan v. U.S. Army Court of Criminal Appeals, and United States, No. 19-0054/AR (CAAFlog case page)

Major Hasan seeks extraordinary relief in the nature of a writ of mandamus ordering the judges of the Army Court of Criminal Appeals to disqualify themselves from his case.

Case Links:
Writ petition
Gov’t Div. Answer
Petitioner’s reply
Blog post: CAAF orders Gov’t Div. to re-brief
Gov’t Div. re-brief
Reply to re-brief

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, March 28, 2019, at 1 p.m.:

United States v. Moore, No. 20180692

Issues:
I. Whether the military judge’s ruling “terminates the proceedings with respect to” Specification 2 of Additional Charge I.

II. Whether the military judge erred when he found that the Government’s pre-referral change to Specifications 2 and 3 of Additional Charge I constituted a major change.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: The next scheduled oral arguments at CAAF are on March 27, 2019.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, March 21, 2019, at 10 a.m.:

United States v. Sanchez, No. 20140735

Issue: Whether the military judge erroneously considered charged conduct under Military Rule of Evidence 413.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

Well son you got a statement you’d like to make

Before the bailiff comes to forever take you away

Now judge judge I had debts no honest man could pay

The bank was holdin’ my mortgage and they was takin’ my house away

Now I ain’t sayin’ that makes me an innocent man

But it was more ‘n all this that put that gun in my hand

Well your honor I do believe I’d do better off dead

And if you can take a man’s life for the thoughts that’s in his head

Then won’t you sit back in that chair and think it over judge one more time

Let em’ shave off my hair and put me on the execution line

Bruce Springsteen, Johnny 99, on NEBRASKA (Columbia Records 1982)

The most recent publication of the Air Force Law Review contains an article delving into the propriety of allowing convicted servicemembers to make unsworn statements before sentencing in trials by court-martial. The article is by Air Force Major John S. Reid and is entitled “Undoing the Unsworn: The Unsworn Statement’s History and a Way Forward,” 79 A.F. L. Rev. 121 (2018).

Read more »

In a federal register notice published yesterday and available here, the Joint Service Committee on Military Justice (JSC) invites members of the public to suggest changes to the Manual for Courts-Martial.

Proposed changes are due by May 13, 2019.

On Tuesday CAAF summarily affirmed the Air Force CCA’s decision in United States v. Collins, 78 M.J. 530 (A.F. Ct. Crim. App. Jul 23, 2018) (discussed here), certified, 78 M.J. __ (C.A.A.F. Nov. 5, 2018) (noted here).

No. 19-0052/AF. U.S. v. Richard D. Collins. CCA 39296. On consideration of the three issues certified by the Judge Advocate General of the Air Force, 78 M.J. 190 (C.A.A.F. 2018), the briefs of the parties, and Appellee’s motion to summarily affirm filed on February 26, 2019, and in light United States v. Briggs, __ M.J. __(C.A.A.F. Feb. 22, 2019), it is ordered that the three certified issues are answered in the negative, and the decision of the United States Air Force Court of Criminal Appeals is therefore affirmed. Appellee’s motion is denied as moot.

An unsurprising result considering the court’s unanimous decision in United States v. Briggs, __ M.J. __ (C.A.A.F. Feb. 22, 2019) (CAAFlog case page).