Here is a link to an AP story (courtesy of Army Times) quoting the world’s leading expert on the US military death penalty about the status of the PFC Manning’s court-martial for “aiding the enemy” by releasing classified documents to Wiki[shhh] and the recent recommendation of military prosecutors to refer the case without the possibility of the death penalty.   Some might also characterize this expert as obsessed with the US military death penalty . . . but not all obsessions are unhealthy.

19 Responses to “CAAFlog on Manning Non-Capital Referral Recommendation”

  1. Art Record says:

    So what about an obsession to the words: “Schneckloth v. Bustamonte”? (Thanks for the update, BTW).

  2. Jim Richardson says:

    As ususal the journalists have not fact checked. I noticed that the article states that there has been only one military death sentence in the last 50 years. I assume that the writer meant that the President has only approved one execution during that time. As all of us know there are several (5) cases currenly pending and many more cases in which death has been imposed during the sentence.

  3. Dwight Sullivan says:

    Jim — roger that. I said there was only one presidentially approved death sentence in the last 50 years. There have been at least 16 adjudged military death sentences since 1984. The article also, to some extent, conflates gates 2 and 3 — as we know, the weighing process compares not only the relevant aggravating factor or factors, but also all other aggravating circumstances against the mitigating circumstances.

  4. Some Army Guy says:

    I bet that’s an interesting article.

    Alas, it’s blocked from this Army computer.

  5. John O'Connor says:

    Good thing they block the Army Times on Army computers.

  6. sg says:


    Are you saying that the Army Freaking Times is blocked from your assent computer?

    Army Times has a mobile site that you should be able to get if your phone can do internet.

  7. Some Army Guy says:

    Anything with “WikiLeaks” as part of the URL is blocked — NY Times’ articles, Army Times’ articles, etc. CAAFLOG even was if you went to a pinpoint URL and “WikiLeaks” was part of the post title.

  8. Mike No Man Navarre says:

    Note that we make sure Wiki[shhh] is not part of our content or URLs.

  9. John O'Connor says:

    That is a crazy blocking protocol.

  10. Stewie says:

    It’s a lazy blocking protocol.

  11. Rob M says:

    Crazy protocol, lazy protocol… is anyone even remotely surprised?

  12. Dew_Process says:

    The lunatics appear to be running the asylum:

    “Lieutenant Villiard, who says Private Manning is permitted to have two blankets at night, says detainees are awakened each morning and immediately come out of their cells. Private Manning cannot be given his underwear back before then, he said, because that would require waking him up ahead of time.” Huh???

    Read all about it….

  13. sg says:

    Here’s another question that marks me as the eternal clueless newbie–
    David Coombs is a Lieutenant Colonel in the USAR. Supposedly teaches trial practice at the Jag school. What happens if his scheduled Annual Training is during the trial?
    I’m sure there’s a way around this or an accommodation, because it’s happened before, with a civilian/reservist DC? Do they move his AT period, does he come to court for two weeks in Service Dress instead of a suit or what? I can’t imagine them doing a continuance on the trial.

  14. Dew_Process says:

    sg – been there, done that. A reservist cannot perform any federal duty that is scheduled to occur during, e.g., a trial that s/he is retained in as a civilian counsel under both federal conflict-of-interest laws and ethics regulations. That’s a factor when scheduling a trial that the Reservist needs to let the MJ know about as well as him/her military superior who schedules training and AT.

    His training blocks at the JAG school are probably done at least months in advance, so it really shouldn’t be a problem. The simple rule is that you can’t wear both hats at the same time.

  15. soonergrunt says:

    Thanks, DP. As I said, I figured there was a rule about it. Somebody asked me and I said I’d find out. I haven’t told them about this place because I don’t want to be responsible for a ‘mirror-image-of-the-birther-invasion’ thing.
    I didn’t think about the conflict of interest or ethics angles, but it makes sense once you hear it.

  16. Butch Bracknell says:

    Catching up on the Manning confinement controversies at Quantico and reading some statements by his civilian counsel Mr. Coombs, both in the NYT and his own blog: An issue jumps right out at me. In Navy-Marine Corps practice, para 4.b(2) of JAG Instruction 5803.1C (Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General) notes that civilian attorneys for members charged with offenses triable by court-martial are covered by the professional responsibility regulation. Rule 3.6 of the same instruction prohibits extra-tribunal statements by a covered attorney which “a reasonable person would expect to be disseminated by means of public communication if the covered attorney knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding or an official review process thereof.” It’s hard to fathom that he doesn’t expect his communications to become public, since they are posted on his blog, which by definition is a public communication, and in the NYT, knowing the Gray Lady has a daily print circulation of almost 900,000 and hundreds of thousands more subscribers to its online content. His blog statements on Manning’s confinement go well beyond informational into the realm of advocacy, and can only be calculated to influence the politics of Manning’s confinement, the confinement review process, and, ultimately, his court-martial. I can’t imagine the Army doesn’t have a similar instruction (haven’t found the reg yet), so I guess the question is whether the Army JAG will notice and enforce a similar ethical standard, or whether the convening authority will at least get the case arraigned soon so that a military judge can regulate the extrajudicial statements… I’m all for due process, but on a level playing field.

  17. Lohengrin says:

    The civilian cognate to this is ABA Model Rule 3.6, which has a second paragraph, (b), which states that

    “Notwithstanding paragraph (a), a lawyer may state:” a variety of things, including “a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest[.]”

    I’m not sure counsel would even need the privileges in (b), however, unless there really were a “substantial likelihood” of “material [prejudice].” I do not believe the prong of material prejudice is likely to arise from improving the pretrial confinement conditions of the accused. Even if it were, it would be shielded under (b) as, if true, the unnecessarily inhumane conditions under which Manning is being detained represent a danger to his health.

  18. Butch Bracknell says:

    The military rule has the same analogue. But the qualifier in your ultimate sentence — “if true” — are the magic words.

  19. Dew_Process says:

    The various Service Rules of Professional Conduct are only “advisory” for civilian defense counsel regardless of the wording. Cf. 10 USC 3037 [Army]; Sec. 5148 [Navy]; Sec. 8037 [AF]. Nor did Congress delegate “Rule making” authority to the TJAGs. See, e.g., Art. 66(f).

    Even assuming arguendo that the military rules apply to civilian counsel (versus their own State Bar rules), the language used: “a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.” has long been held to be unconstitutional as applied in this context. Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).

    As in Gentile, ” At issue here is the constitutionality of a ban on political speech critical of the government and its officials.” Id. at 1034.

    LtCol Bracknell – please don’t interpret this as an ad hominem attack. I’m only trying to point out that Gentile stands for the proposition that the Defense can (and sometimes must) attempt to “level the playing field” via the only means that they have, speech – provided that it is truthful speech. If a State Bar cannot preclude such, TJAG certainly cannot.