We’ve previously discussed (here and here) the case of LCDR Matthew Diaz, who was convicted of offenses arising from mailing a classified list of detainees at Guantanamo to a prominent civil liberties lawyer.  CAAF yesterday granted review in his case on these issues:

I.   WHETHER THE LOWER COURTS MISREAD THE SCIENTER AND NATIONAL SECURITY ELEMENTS OF THE ESPIONAGE ACT.

 II.  WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN REJECTING AS IRREGULAR APPELLANT’S PROFFERED GUILTY PLEA TO A VIOLATION OF ARTICLE 133.

 III. WHETHER THE EVIDENCE OF THE CIRCUMSTANCES UNDER WHICH AN ACCUSED ACTED, INCLUDING HIS MOTIVE, IS RELEVANT TO A CHARGE UNDER ARTICLE 133.

NMCCA’s unpublished opinion in the case is available hereUnited States v. Diaz, No. NMCCA 200700970 (N-M. Ct. Crim. App. Feb. 19, 2009).

35 Responses to “BIG NEWS: CAAF grants review in LCDR Diaz’s case”

  1. Mike "No Man" Navarre says:

    So if LCDR Diaz wins, does Dick Wolf need to publish a retraction?

  2. LTC Slade says:

    1) No man, what in the hell are you talking about? Your inane comments will be the death of this blog…

    2) Isn’t the only relevant question here whether this “fine officer” mailed a CLASSIFIED document to someone not on a NTK basis?

  3. Dwight Sullivan says:

    LTC Slade,

    If you are actually an O-5 named Slade, then carry on. Continue to associate boorishness with your name.

    If, on the other hand, you are launching aspersions from behind the screen of a fictitious blind man, then you might want to think about what Theodore Roosevelt wrote: “It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena.” The No Man is in the arena. You’re just a pseudonymous critic.

    As the widely beloved Sir Cloudesley recently wrote: “I don’t understand this adolescent need to turn every thread, discussion, or point of disagreement into an ad hominem-fueled slam fest.” Nor do I.

  4. MJW1 says:

    Couple of points.

    1) In defense of Slade, No Man’s comments were not his best piece of critical thinking;

    2) In opposition of Slade, he has missed what the key issues in the case are. Yes he did mail classified info to someone who was unauthorized to receive it, but the issues presented are certainly worthy of review (at least I and II); and

    3) I can’t wait to read the briefs and listen to the oral argument. Maybe Diaz will be there.

    3)

  5. Richard Nixon says:

    Yes, that is an original TR quote, but I was the one who lived my live by it and made it contemporary….So I would like a little respect, because you don’t have me to kick around anymore!

  6. Mike "No Man" Navarre says:

    C’mon, all these lawyers and no one recalls the Law & Order episode loosely based on the Matt Diaz case? They changed the facts, but still placed the blame on the detainee’s lawyer for endangering national security. It would seem at least issues I and III would be relevant to the episode. Oh and by the way, my standard for making a comment on this blog has never changed from the first day we started this thing. See summary here. We’ll probably keep using that standard, so I am sorry if you don’t get all the jokes. We try to keep things informative and high minded, but sometimes a little humor doesn’t hurt–even if it is very inside.

  7. LTC Slade says:

    Mr. Sullivan,

    If you want this blog to be a forum for you and your like-minded friends, so be it. If you want it to be a real blog, you might want to thicken your skin. One of your “contributors” made a comment that only God knows who could understand, and I called him on it. And that Teddy Roosevelt quote is particularly LOL coming from an appellate defense attorney…the “doer of deeds”???…you mean like the TDC who y’all routinely throw under the bus???

  8. Anonymous says:

    Personally, I’m eagerly awaiting argument/decision on Issue III as well. While I acknowledge “motive does not equal motive” generally, I wonder if it necessarily holds true in the case of an Article 133 offense.

    The issue was touched upon, at least in the media reports, in the Watada case where various statements of the accused related to the legality of the war in Iraq and the actions of the U.S. President were charged as 133 offenses. And, it made me think of the cases addressing the limits of free expression under the First Amendment —

    “You can’t yell ‘fire’ in a crowded theater.” No problem with that proposition, if there is actually no fire — or, the accused had no honest and reasonable basis to believe there is a fire.

    But, assume there really is a fire, or the accused had some reasonable basis to believe there was a fire. Would it be conduct becoming an officer and a gentlemen to allow his fellow citizens to perish in the ensuing conflagration?

    Shouldn’t at least some evidence of his honest and reasonable beliefs be admitted to answer the charge that his conduct was “unbecoming”?

  9. Anonymous, supra says:

    “Motive does not equal motive” should read “Motive does not equal intent”.

  10. Paine says:

    that a blog with three or four mutual back slappers and a crowd of anonymous cowards and inane commentators can still be even slightly useful as a news source is a testament to LtCol Sullivans hard work. BZ.

  11. Dwight Sullivan says:

    LTC Slade,

    I’ve generally tried to stay out of these scrums, but the remedy for bad speech is more speech. And calling a comment “inane” is bad speech — particularly when the commentator had the guts to attach his name to it while you did not show similar fortitude. And insinuating that appellate defense counsel “routinely” throw trial defense counsel under buses is both inaccurate and unfortunate.

    I’m going to drop out of this thread now.

  12. Paine says:

    The roar of inanity is deafening.

    But Slade is right to point out that Mr Sullivan is all too quick to leap to the defense of his own. A little heavyhanded in the defense of No Man and no defense even needed. Many worse offenders. Was it the use of the word “hell”?

    And the Slade Roosevelt riposte was, to use Slade’s lingo, “LOL”. Totally true. Score 1 LTC Slade.

    In the world of blogs, I’d say LTC Slade is definitely “in the arena” now.

    It’s not only the ad hominems, but the pseudo fairhandedness that’s gettin me down.

    .

  13. Dwight Sullivan says:

    I know I wrote that I was out of this thread, but to quote Al Pacino in a different role, “Just when I thought I was out, they pull me back in.”

    Note the irony.

    In making a supposedly devastating rejoinder to my post criticizing his/her pseudonymous attack on the No Man, “LTC Slade” relies on an extra-textual fact he/she knows solely because I posted under my name. “Paine” then pseudonymously scores one for “LTC Slade.” Both protect themselves from any similar reply by hiding their true identities.

  14. Southern Defense Counsel says:

    No man,

    I got the joke and I thought it was funny(though a bit attenuated for those who are not LAO addicts). The only thing that leads me to believe that “Slade” might actually be an O-5 is his lack of a sense of humor. As for COL Sullivan, he is spot on. (The lack of respect from a claimed O-5 to a confirmed O-6 could cut either way on whether he is the real deal…)

    I will admit to posting pseudonymously to protect my identity given my line of work, but also recognize that hiding behind it and throwing rocks at known individuals is cowardly at best.

  15. LTC Bill Kilgore, USA says:

    Slade, you better unf*** yourself most ricky tick. If you do not, the last thing you will hear is Walkürenritt before the rain of death from an Arc Light strike.

  16. Dew_Process says:

    LTC Slade asks in part: “2) Isn’t the only relevant question here whether this “fine officer” mailed a CLASSIFIED document to someone not on a NTK basis?”

    If that is the “only relevant question,” then Diaz’s conviction should simply be set aside. There was no legal issue that the recipient attorney had a bona fide “NTK,” – the problem was, she didn’t have a clearance consistent with her need to know.

    This is an “unofficial” blog which with the addition of LTC Slade, has readers of every bent and persuasion. A good thing intellectually, provided common respect is observed, something that as a newbie, LTC Slade apparently hasn’t observed. [If he were anything but a newbie here, he’d have known that it is [and has been] COLONEL Sullivan.

    Like Southern DC, my position and line of work requires anonymity, but COL Sullivan knows my real ID and how to contact me if I get over the top.

    Diaz is an important case conceptually [and personally for him] for both the government in the context of “espionage” and Article 133 prosecutions, and for the Defense as well in such cases. Ad hominems, as one poster pointed out, don’t contribute to the intellectual dialogue regarding the many issues the Diaz court-martial raised.

  17. Anonymous says:

    Remaining completely neutral in this debate, why is it inappropriate to call an O-6 reservist “Mr.”?

  18. Anonymous says:

    What boggles my mind, and admittedly perhaps I am too easily boggled, this is a primarily appellate focused blog. To come here means you have an interest in military appellate issues.

    So to lambaste appellate defenders as somehow in a negative light because they “throw TDC under the bus” is both inaccurate considering the rarity of and the internal discussion concerning IAC and a bit of so what.

    If “throwing TDC under the bus” is necessary to defend the client then I’d be the first to drive that bus and as a former TDC would about 80 percent of the time willingly throw myself under said bus given that it might help the client and odds are it won’t impact my military career at all (unless it is so bad that I shouldn’t even be an attorney.)

    It’s hard to take seriously the opinion of someone who holds defense appellate attorneys in such low repute.

  19. deleted says:

    So 80% of the time you’d perform ineffectively at trial in order to set up appellate issues for your clients? Lucky clients.

  20. Anonymous says:

    Yes that is EXACTLY what I said and meant. You’ve got me. Brilliant.

  21. Anon says:

    I’ve noticed that there are two schools of thought on this issue.  I’ve met alot of defense who follow the “throw yourself under the bus” thinking.  It’s in a way admirable.  I recently saw a defense lawyer tesfiy and cry about how ineffective she had been and had caused her client to be convicted of murder.  She seemed really sincere and I could appreciate her commitment to her client.  But, I couldn’t help thinking: Wouldn’t she have served her client better if she’d brought this up earlier, before the trial? (Many of her reasons for being IAC was she was unprepared and inexperienced for a murder trial)  It certainly would have saved everyone the time and expense of a wasted trial. 

    It goes without saying, I think, that a defense lawyer shouldn’t intentionally be ineffective just to create an issue on appeal.  That’s borderline unethical and just slimy. Furthermore, raising frivolous IAC claims just wastes everyone’s time. 

    I myself subscribe to a second line of thought. I never consider what I’ve done at trial ineffective and I will never concede it was ineffective.  I always like to think that I have a good reason for doing what I do.  If IAC is ever raised against me I would answer truthfully any factual questions for appellate defense and if someone else wants to label it IAC then so be it.

    I’ve always wondered what the impact IAC would have on someone’s bar license.  I figure in the miltary it will just affect a career (Imagine the OPR bullet: “Devoted Defender, Officer sucessfully got client a new trial after appellant court found officer’s performance well below what is expected of even the most average lawyer.”) 

  22. Anonymous says:

    It seems that anon 1149 either intentionally performed ineffectively 80% of the time, or else lied and said (s)he was ineffective 80% of the time when IAC was raised. Either way, I’d say the conduct is unethical beyond belief.

  23. Anonymous says:

    We put counsel on murder trials who have maybe 3-4 years of trial experience max. More likely, they have a year or two. Odds are not insignificant that they are going to be ineffective, not because they aren’t good attorneys, or because they didn’t bring up that inexperience earlier (particularly when we in the military don’t consider 1-2 years of experience as “inexperienced”).

    I don’t think anyone is suggesting that you should claim IAC when there is absolutely nothing there, but there is also an opposite extreme of never conceding IAC, which quite frankly I dont understand.

    The trade-off of having almost exclusively young Captains trying even the toughest cases short of the death penalty (when often only slightly more experienced Majors are there instead) is that yes you can have a “devoted defender” who is ineffective.

    And I agree you should never, ever try to purposefully be ineffective at trial to create an issue on appeal. That’s ridiculous for anyone to do that since your best chance for success is always gong to be at trial and the odds drop precipitously on appeal since to get IAC you apparently have to be drooling as an attorney.

  24. Anonymous says:

    Has reading comprehension become a lost art. Point out where it was said that I performed ineffectively 80% of the time?

    I said IF IAC had been alleged 80% of the time I would have willingly admitted any errors I might have made if it would have helped the client.

    Since it is pretty clear that there is no attorney in the history of the profession that has had IAC declared against them 80% of the time, I’d assumed folks wouldn’t be ridiculous enough to go there.

    I clearly was wrong. So, for those of you who want to be snarky and sarcastic, let me make it clear. IF I had IAC alleged, a vast majority of the time in such a situation, if there was any area in which I thought my conduct was deficient in any way, I’d freely be willing to admit it.

    I would not refuse to concede it at all costs. If I thought I could have done a better job in some area, I’d concede it not fight it.

  25. Anonymous says:

    That’s not what you said.

    You said “If ‘throwing TDC under the bus’ is necessary to defend the client then I’d be the first to drive that bus and as a former TDC would about 80 percent of the time willingly throw myself under said bus given that it might help the client and odds are it won’t impact my military career at all (unless it is so bad that I shouldn’t even be an attorney.)

    To me, that means that you’d concede IAC regardless of the facts (80% of the time) in order to help your client. The other 20%, you’d claim you were effective in order to protect your career,

    That sounds like you either conceded or denied having been ineffective based on other factors besides what happened at trial.

    Ethical?

  26. Paul says:

    Interesting that some think Matt Diaz did something noble and honorable by turning over names of detainees to a human rights attorney. What most fail to remember is that it was that very human rights attorney that took that infomration a federal judge. If it was so noble and necessary she could have secretly kept the information and used it secretly to advance her case. But, alas, she knew the right thing to do even if Matt did not. Sad case all around and totally unecessary. One can throw barbs at the military or the “system” but remember, it was that HR attorney that dimed him out. That is rarely mentioned in any of the articles that lionize Matt Diaz. I doubt his Ridenhour Award mentions that…

  27. Anonymous says:

    Sigh, yes let’s not focus on my repeating/clarifying, let’s focus on your misunderstanding of what I said.

    I never said I’d concede IAC regardless of the facts, I said that most of the time IF IAC were alleged I’d freely be willing to concede it if I thought I’d done something wrong.

    I expected that you’d be able to distinguish that:

    a. IAC is not alleged in all cases so this would not be 80 percent of all cases
    b. IAC is not even alleged a majority of the time (in fact I’ve only alleged it once and seen it alleged less than a half dozen times since working in appellate defense).

    So we are already talking about a very limited pool of cases. In those limited pools of cases, where IAC is alleged, there is probably a majority of the time a legitimate area where I or any attorney could have done better. I would freely throw myself under the bus as admitting I could have done better in those situations.

    About 20% of the time, the IAC claim would be so over the top as to be ridiculous (usually based on the claim of an accused that isn’t based on fact like my attorney forced me to plead guilty for example). So in those situations I wouldn’t admit to something that never happened.

    But no, if I could have done something better or I missed something then career comes second and service to client comes first. THAT was and is the point, which I’d guess most folks on here would figure out.

    But yes, let’s continue to try and present this as me being unethical. Let’s play word games and gotcha. You are clearly very good at it. I have no doubt your next response will be a “but that’s not what you said.”

  28. Justin says:

    Brothers at the bar,

    Knowing more about this case than anyone, and being uninterested in the putative vector of this blog, I’ll note that Issues I, II, and III merit deep consideration by CAAF.

    WRT the Espionage Act of 1917, 18 USC 793, I recommend it to all curious readers. Take a good look at it. Parse it as thoroughly as you can. Come back and tell me: what are the elements of the several subsections. If you can do that, you are wiser than almost all federal judges (and you will have answered the split between the trial judge in this case and the trial judge in the Rosen/Weissman espionage case, recently abandoned by the US AG.) Within each sections’ elements, what is the mens rea?

    WRT Issue II, what’s the standard for disallowing an irregular plea to a novel Article 133 charge? Is it different from the standard for an otherwise enumerated Article 133 charge? If you can answer this, you are a fine legal scholar.

    WRT Issue III and contra the above commenters’ focus on motive=/=intent, when is evidence of the “circumstances under which an accused acted” — *including,* but not limited to motive — irrelevant to mens rea? If you can answer this, with regard to the facts of this case and without the aide of CAAF’s input, you’re a clairvoyant.

  29. Anonymous says:

    Thanks, Justin, for re-focusing the discussion. This is, afterall, a section for commenting on the “big news” of this post. I hope some insightful comments on the topic follow. Thanks, again, Justin.

  30. John O'Connor says:

    Wow, you go on vacation for a couple of days and the blog falls apart. I hope all now have a renewed appreciation of O’Connor’s invisible hand on the “big round wooden steering wheel thingy on the ship’s deck” of this site.

    Dick Wolf. Heh heh heh.

  31. Anonymous says:

    Justin,
    Thanks for the refocus. WRT Issue II, will you agree that there is an underlying issue, viz., does an accused have a “Right” to plead guilty? Conversely, if there is no right [divorcing the “irregular” plea subissue for a moment] to plead guilty, how can it be an abuse of discretion for a MJ to refuse to entertain such and [here’s where I think the crux may lie] force the government to its proof? See generally, Lynch v. Overholser, 369 U.S. 705, 719 (1962), and F.R.Crim.P. 11.

    And concerning Issue I, anyone who has ever litigated anything under 18 USC 793, will agree with you that absent divine revelation, gleaning anything from that statute vis-a-vis the decisions interpreting it, is virtually impossible to say with any degree of certainty.

  32. Anonymous says:

    I. The federal courts have consistently held that section 793 contains, as an essential element, the requirement that the accused acted “willfully,” “in bad faith” and with a “personal or underhanded motive.” Further, as an element of the offense, the disclosure must pose a genuine risk to national security. The military judge’s order and the lower court’s decision are inconsistent with those authorities.

    II. The decisions of the military judge and NMCCA amount to a rewrite of Article 133. Under well-established law, an Article 133 offense has just two elements: (1) that the accused did a certain act, and (2) that, under the circumstances, the accused’s act constituted conduct unbecoming an officer and a gentleman. The nature of the information as “classified” or “not for release” is not an element of the offense. Rather, the only question under Article 133 is whether a reasonable military officer would have no doubt that his activities constituted conduct unbecoming an officer. The crux of Diaz’s unbecoming conduct – even according to the Government – was “that he took unilateral action and ignored his chain of command.” This is exactly what Diaz sought to admit in his proffered guilty plea. Moreover, the notion that a voluntary guilty plea under Article 133 must constitute a lesser included offense defies logic and appears to be without precedent. The essence of an Article 133 offense is not whether an accused officer’s conduct otherwise amounts to an offense . . . but simply whether the acts meet the standard of conduct unbecoming an officer. It is inherently unfair, as well as contrary to the jurisprudence supporting Article 133, for that offense to be broadly conceived in order to hold an accused liable against his will, but narrowly construed when, as here, the accused voluntarily seeks to enter an excepted guilty plea.

    III. Forced to trial on the Article 133 charge, Diaz was entitled to an independent judgment by the members of whether in their view, based on all the circumstances, his conduct was dishonorable. This he was wrongly denied. This case presents an opportunity for CAAF to make clear that, indeed, all the circumstances, including state of mind, context, and even motive, are relevant to an alleged violation of Article 133. To hold otherwise, as the court below did, denied Diaz his right to present a defense to Article 133. But for the military judge’s order, the defense could have introduced evidence of the context in which Diaz sent information to the Center for Constitutional Rights, the pressures on him, and the reason he was confident that the only thing the information would be used for was to help detainees obtain counsel who would litigate on their behalf in federal court, as required by the Supreme Court decision in Rasul v. Bush and the district court order in Al Odah v. United States. But for this ruling, Diaz could have introduced evidence demonstrating the government obstruction and obfuscation in the district court habeas litigation. But for this ruling, Diaz, as the officer responsible for tracking allegations of abuse, could have established that detainees with attorneys were less likely to complain of abuse. In short, Diaz through his own testimony and other evidence could have explained the circumstances that led him to do what he did. Because he was denied this opportunity, it made no sense for him to take the stand during the guilt phase. He would have been barred from offering any explanation for what he did. Instead, he was forced to wait until sentencing to explain himself to the members.

  33. Justin says:

    Anon 7Sep09 21:52 accurately summarizes the defense’s position in this case. (I didn’t write that post, btw.)

    @Anon 7Sep09 14:59 — Does the accused have a “right” to enter a guilty plea? Sure, to the same extent he has a right to trial, which is a calling to account for criminal allegations. When the court asks for a response, does the accused not have a right to respond truthfully? Withholding that right seems like it would be the first step in a show trial.

    Now, obviously it’s not a limitless right. “Charge of Murder, how do you plead?” “Guilty to Larceny,” isn’t a proper response.

    But “Charge of Conduct Unbecoming (by Mailing Classified Info to a Person Not Entitled to Receive It, Babara Olshansky on or about 5 Feb 06)” requires a response within what range? Could LCDR Diaz have changed the date? The recipient? I think so. Why not the actus reus, if it was also Conduct Unbecoming?

  34. Anonymous says:

    An accused has a right to “offer” a plea of guilty. An accused does not have a right to have it accepted (e.g. providency, competency, etc.)

  35. CAAFlog » LCDR Diaz Argument Feb. 9 in Malibu says:

    […] Here and here are links to some of our prior coverage of the Diaz case. […]