As CAAFlog notes below, the Court of Appeals for the Armed Forces today unanimously affirmed the convictions and sentence of LCDR Matthew Diaz, here.  Diaz is the Navy judge advocate that mailed names of GTMO detainees to a human rights lawyer at the Center for Constitutional Rights (CCR) in a Valentine’s Day card in January 2005. Diaz was a recent recipient of the Ridenhour Truth Telling Prize based on the conduct that won him the conviction at issue in the appeal, a dismissal, and six months in the brig.

Judge Baker, writing for the Court, held that LCDR Diaz should have been allowed to put on evidence of his honorable motives in sending the detainee names to CCR to defend against the charge of Conduct Unbecoming an Officer.  Though finding error in excluding evidence of his honorable motives, the Court also found that the military trial judge’s exclusion of the evidence was harmless because the officer’s “obligations to adhere to naval and presidential directives regarding the handling of classified information” trumped any duty he felt he had to reveal the names of GTMO detainees. The Court held that the Supreme Court’s decision in Rasul v. Bush, which LCDR Diaz cited as the source of his duty to reveal detainee names, was not intended to “supersede in some manner [LCDR Diaz’s] other legal and ethical obligations.”

On the irregular plea issue the Court did not take long to find that a plea to conduct unbecoming an officer for releasing “government information not for release” was not the same as releasing “classified documents.”  Thus, Judge Baker found that the military judge did not err in rejecting LCDR Diaz’s irregular plea.

The decision also rejected LCDR Diaz’s other argument which challenged the intent element of his conviction under the Espionage Act. In rejecting LCDR Diaz’s challenge to the intent element of his Espionage Act conviction, the Court credited the testimony of government witnesses that testified about the potential injury to the US posed by the information LCDR Diaz sent in the Valentine’s Day card. The Court also found that not only should LCDR Diaz have understood this potential injury, but that his surreptitious method of sending the names, placing them in a Valentine’s Day card, evidenced he likely did know the potential danger.

The issues, while fascinating for their political significance, are relatively run of the mill military justice issues–but between the snow storms and almost Malibu oral argument it was fun getting here.

12 Responses to “CAAF Affirms LCDR Diaz’s Convictions for Valentine’s Day Card Leaks”

  1. Jason Grover says:

    Given Judge Baker’s interest in and background in national security law, his authoring of the opinion makes sense.

    In the small world, small legal community side, I tried a few cases against Matt Diaz while we were both stationed at Great Lakes.

  2. MAD@JAG says:

    They went light on him. This officer was not charged with 18 § 1030 “exceeding authorized access”. Of course not, let’s try our fellow JAGs with “disobeying an order” and “conduct unbecoming”. Meanwhile let’s pile charges on PFC Manning.

    There is a disconnect from reality with some of these officers. For one members are not going to by the “honest shyster” argument – as evident in his sentence of six months and dismissal. I am not sure of anyone sympathetic to a Gitmo detainee’s rights other than those in the JAG Corps.

    This reminds me of US v. Taylor (I think) – a JAG Captain who got 7 years for a drug pop in Alaska. Smart guy thought he could take the witness stand and BS his way out. The members were not too thrilled.

  3. John O'Connor says:

    I have serious doubts that a prosecution under 18 USC 1030 for “exceeding authorized access” would have withstood appellate scrutiny. There’s a lot of case law on what this term means. Most courts have held that it applies only when the defendant had no authorization to access a certain computer page or file (such as where it was password protected and the defendant wasn’t issued a password), and that it does not apply when an accused accesses a page he is allowed to access but does so for an unauthorized purpose.

    Charging 18 USC 1030 would have injected a very dicey appellate issue (where most courts have gone aghainst the government on the issue) into a case that didn’t need the complication.

  4. Anonymous says:

    I’ve heard interviews with him on NPR and he sounds sincere that he still believes he did the right thing. I wonder if his chances for anonymity would have been better had he sent the materials to a reporter and not another lawyer.

  5. Anonymous says:

    Bingo! Like most other leaks, this wouldn’t even be a case had the names been sent to the press. Had it been, there’d definitely be a stronger argument that there was reason to believe it could harm national security or advantage another nation, but you’d never know who sent it.

  6. Anonymous says:

    Uhm, they charged him with 18 U.S.C. 793, which provides for 10 years – the same that 18 U.S.C. 1030 provides for. And the members found him guilty. By my reading, his maximum sentence for what he was convicted was 12 years confinement (2 for the 92 violation, 0 for the 133 violation since the MJ merged it with the 134 violation for sentencing, and 10 for the 134 violation). Sooo, the members DID give him a break.

    As for a JAG Captain getting 7 years for a drug pop, I’m pretty sure that’s not possible under the maximum punishment chart in Appendix 12.

    “I am not sure of anyone sympathetic to a Gitmo detainee’s rights other than those in the JAG Corps.” Where to begin… Nevermind, it’s bash a JAG day for you I guess…

  7. Anonymous says:

    technically possible, if it were a 5 year drug like cocaine, used while receiving special pay which adds on 2 years nad he got the maximum possible sentence.

    But I agree it is exceedingly likely to be a gross exaggeration on MAD@JAG’s part.

  8. MAD@JAG says:

    I found it, it wasn’t “Taylor” but “Trimper”:

    UNITED STATES, Appellee, v. Glen A. TRIMPER, Captain
    U.S. Air Force, Appellant.

    “EVERETT, Chief Judge:

    At his general court-martial in February 1987, Captain Trimper, an Air Force judge advocate, contested specifications alleging wrongful use of cocaine and marijuana on divers occasions between May 1, 1985, and August 1, 1986, in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. Nonetheless, the members found him guilty and sentenced him to dismissal, confinement for 7 years, and total forfeitures. The convening authority approved these results, except for reducing the confinement to 5 years. On review below, the Court of Military Review affirmed the findings and most of the sentence — cutting the confinement even further, to 3 years. 26 MJ 534 (1988).”

  9. Where are they now says:

    Interesting. A quick google search has revealed the Mr. Trimper is extremely tenacious. Even in spite of serving 3 years confinment, then having his license to practice law in VA temporarily suspended in 1990, Mr. Trimper is currenlty a criminal defense attorney in Alexandria. Here’s a link to what looks like a pro se complaint against him…
    Based on all that, I believe MAD@JAG is probably right that Trimper’s failed attempt to “BS” the jury might have been what resulted in him getting the max.

  10. Rumpole says:

    “Facts are pesky things” and that’s been one of the problems with the Diaz case since before day one. Almost one year before the now infamous Valentine’s Day Card, SOUTHCOM – in a “classification challenge” – ruled that Detainee Names and their ISN’s were not “classified” information, period. That, for anyone who’s ever worked in the classified world, made sense since the names & ISN’s were a) provided to the ICRC; b) Embassies concerned; and c) in the limited mail privileges that the Detainees had back then, were used on their personal correspondence. Whether that information was provided to Diaz’s defense is unknown, but if they didn’t request it, that’s a different issue.

    What made the printout arguably classified was not the Detainee names and ISN’s, it was the inclusion of the alpha-numeric “codes” reflecting the interrogation teams / methodologies involved for a particular detainee.

    Finally, with due respect to COL Keyes, his testimony [a real pesky fact] was dead-ass wrong, but apparently went unchallenged by the defense at trial who apparently did not have a defense classification expert.

    This may be in the classified portion of the record, but while there was much speculation and pontification about the “potential harm” to national security, absent a formal “Damage Assessment” it remained totally speculative. If there was an actual damage assessment done and it was submitted to the members, that probably explains the sentence.

  11. I was there says:

    No security expert, no damage assessment. Just Paul Rester speculating out the ying yang on potential harm. I agree, COL Keyes’ testimony was dead ass wrong, and it was challenged. The govt’s own computer expert said the majority of the info on JDIMS was unclass. CAAF chose to ignore that portion of the joint appendix. And “the alpha-numeric “codes” reflecting the interrogation teams / methodologies involved for a particular detainee” is what Rester said were “sources and methods.” To me, “sources and methods” reads “the torturers and torture.” Just sayin’.

  12. Anonymous says:

    I don’t get why this is a “JAG” issue. The CA was Commander, Navy Region Mid-Atlantic, a line officer, who chose which charges to refer. The members were all Mid-Atlantic area Officers, not judge advocates. Disagree with the sentence if you like, but don’t act like this is JAG’s taking care of JAG’s.