For starters, these lists always seem a little artificial.  A lot depends on how you count issues and what you think matters.  We tossed around some proposed lists and went back and forth.  I’m not even sure there were ten big stories this year.  But there were a few doozies that rate a tip of the hat as 2011 fades in the rearview mirror, and everyone else’s lists always have ten things.  So here goes:

#10. United States v. Sweeney: 2010 was a big year for Crawford and confrontation, and 2011 promised to bring some clarity to the issue, particularly in the context of court-martial prosecutions based on urinalysis.    In Sweeney, CAAF held that both the cover memorandum and the specimen custody document of the drug lab’s urinalysis packet “were plainly and obviously testimonial,” and should not have been admitted without the government having produced the analyst responsible for producing the information in the documents.  It’s hard to imagine that this does anything but further suppress commands’ appetite for courts-martial in urinalysis-based drug cases.

#9. Congressional preference for military commissions: Commissions don’t get a lot of ink (er, electrons?) on CAAFlog, but when historians look back on military justice in 2011, Congress’s decision to make military commissions the tribunal of choice for detainees may seem significant.  Of course the President’s signing statement suggests that then again, it may not.

#8.  United States v. Manning:  I’ll admit this one didn’t make my personal list at all.  Nothing happened.  Of course when you’re in pretrial confinement and nothing is happening, that can be a story in itself.  I suspect this will be higher on next year’s list.

Over to No Man for the next three on the list.

3 Responses to “Top ten military justice stories of 2011: Part One”

  1. Just Sayin' says:

    The story isn’t the preference for commissions…the story is the complete lack of legal ethics shown by all those involved in the commissions (save for the defense counsel)

    reading AC privileged mail, eve of trial procedural rule changes…it’s a joke.

  2. Just Sayin' says:

    oh…and I forgot the discovery issues and the misrepresentations to the court.

  3. Dwight Sullivan says:

    For many reasons, I generally avoid writing publicly about commission-related matters.  And I’ve also chosen not to write any of the 2010 CAAFlog top-10 posts during my semi-hiatus.  But, as a former Office of Military Commissions chief defense counsel, it does seem appropriate for me to rebut any suggestion that defense counsel in the system have a monopoly on virtue.  Many of the prosecutors in the commission system, such as our former CAAFlog contributor LtCol Stu Couch, took bold ethical stands at possible risk to their own careers.  Presiding officers/military judges issued rulings sure to displease those in positions of authority, such as the 2007 rulings in Khadr and Hamdan that the military commissions didn’t have jurisdiction to try them. Many individuals throughout the system strived to make military commissions fair.  On the other hand, some of the individuals involved in the system, in my opinion, didn’t strive for fairness.  But it’s not accurate to portray everyone in the defense bar as good and everyone who played any other role as bad. 

    I am very proud of the manner in which my colleagues in the OMC defense office represented their clients, often displaying great moral courage as they did so.  But neither their professionalism nor their moral courage was unique to the defense side of the bar.