Last week CAAF granted review and ordered briefs in two more post-Fosler elements cases:

No. 12-0106/AF.  U.S. v. Michael A. CISNEROS.  CCA S31871.  Review granted on the following issue:

WHERE A SPECIFICATION CHARGED UNDER ARTICLE 134, UCMJ, FAILS TO STATE AN OFFENSE UNDER UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011), BY NOT INCLUDING THE TERMINAL ELEMENTS FOR CLAUSE 1 OR 2, CAN AN ACCUSED PROVIDENTLY PLEAD GUILTY TO SUCH A SPECIFICATION WHERE HE FAILS TO OBJECT TO THE SPECIFICATION AT TRIAL, WHERE THE MILITARY JUDGE ADVISES THE ACCUSED OF THE TERMINAL ELEMENTS DURING THE PROVIDENCE INQUIRY, AND THE ACCUSED ADMITS TO ALL THE ELEMENTS?

No. 12-0140/AF.  U.S. v. Jeremiah C. SLACK.  CCA S31906.  Review granted on the following issue:

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELLv. UNITED STATES, AND THIS COURT’S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

Also, the following application for extraordinary relief was docketed on 19 December:

Misc. No. 12-8008/AR.  Julian ASSANGE, and WIKILEAKS, Appellants v. UNITED STATES OF AMERICA and Lieutenant Colonel Paul ALMANZA, Appellees.  CCA 20111146.  Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

LTCOL Almanza is the Article 32 Investigating Officer in the Manning case.

11 Responses to “Two more post-Fosler grants, and a Wiki[shhh] petition for a writ”

  1. soonergrunt says:

    So, if I understand correctly, Assange is appealing the ACCA denial of the original Defense writ that LTC Almanza recuse himself because he works for DoJ?  Does he have any potential grounds?  Does he have standing to appeal ACCA’s ruling?  I shouldn’t think so, because there’s no link having been made in any forum between himself and PFC Manning, but IANAL.  I’m guessing (and God only knows how far off the mark I am) that ACCA will deny, and then they’ll appeal to CAAF, which will also deny.

  2. soonergrunt says:

    Oh, and also, I won’t be able to read this post at work because it has the word ‘Wikileaks’ in the URL.  Most likely, no one else who works for US Gov will either.

  3. Zachary Spilman says:

    Most likely, no one else who works for US Gov will either.

    No problem from here, but I’ve modified the title to be sure.

  4. Cheap Seats says:

    So is this bait?  SG states the bait – ” I shouldn’t think so, because there’s no link having been made in any forum between himself and PFC Manning, but IANAL.”  If the Government states this in their brief, doesn’t the Defense ride this home?  Doesn’t the Defense make the Government sever the tie and not be able to argue it later?

  5. soonergrunt says:

    @CS–couldn’t the government claim there is no link at this time, and then after (or during) the Court Martial declare that a link has been found and then indict?  Again, IANAL, but I shouldn’t think I would want to risk being the one who created or drew attention to a link or a conspiracy if I were Assange’s lawyer.  And isn’t that what was claimed with the revelation that Assange or his people basically tasked Manning to find certain information?

  6. Cheap Seats says:

    SG – absoultely.  However, it wouldn’t be the first time that Appellate Division didn’t run something by the Solicitor General or US Attorney’s office before responding.  (Nothing’s to say they don’t run it by SG or USA first.)  Also, remember, Assange is fighting ever being extradited to the US.  My guess is he couldn’t care less about PFC Manning.  He wants to get the Big G to say “no link” as many times and in as many ways as he can.

  7. soonergrunt says:

    spitball question–
    If you’re the US Attorney, do you wait until Manning is convicted at Court-Martial to indict Assange, assuming that testimony to the existence of a conspiracy?  Do you talk to the CA to offer a plea bargain to Manning, something like 10 year sentence, total forfeitures, DD in exchange for testimony from Manning to conspiracy with Assange?  If you’re the CA do you go for that, or tell the USA to take a flying leap at himself, or is this kind of thing handled at a higher level?
    If such is offered, and you’re the Defense Counsel, do you recommend your client take it, or take your chances with a Court-Martial?  I’m not the brightest guy in the room, but I followed the Art 32 as closely as I could from Oklahoma, and I can’t think that either Mr. Coombs or MAJ Kemkes are really thrilled with the prospect of any of this evidence ever getting in front of a GCM.

  8. RY says:

    It’s not about a link, rather it’s about standing.  US v. Manning is between Gov’t and Manning.  Assange is not a party to the case.  He doesn’t have standing to contest the IO.  It’s PFC Manning’s right to have a proper IO, not Assange’s.  He’s not a party to the case.  Although he may be a co-conspirator, the Gov’t does not have to charge them in the same trial and, indeed, I don’t think he could be charged in military court.  In short, Assange has no standing to assert Manning’s rights because Assange is neither counsel nor a party in the case.

  9. soonergrunt says:

    @RY–thanks.  I figured as much.  And since Assange isn’t subject to the UCMJ, he isn’t under the jurisdiction of ACCA or CAAF.
    I’m probably wrong here (what else is new) but for Assange to have ANY standing in any forum with respect to US v. Manning–for example a collateral attack in US District Court, doesn’t he essentially have to assert that he’s a co-conspirator with Manning?  So what the heck does he (his lawyers) think he’s (they’re) doing?

  10. anon says:

    My guess is the writ is about public trial issues not who the 32 officer is.

  11. Cap'n Crunch says:

    I see this playing out a few different ways.  Sure, the CA can tell the US Attorney’s Office/Justice to take a flying leap.  He can also kiss that next promotion goodbye for doing so.  Another option the government has is to proceed to conviction, and then POTUS can offer clemency in exchange for testimony.  I’d suspect coordination on the front end, however.  I also wonder what sort of cooperation Manning can offer.  I mean, I’d think his connection, or lack thereof, to Assange is found in computer records, which are rather… objective.  Or if not found, I question the utility of having Manning put on the stand where the objective evidence is lacking.