The Miami Herald reports here that in the aftermath of the apparent unlawful command influence issue in the Commissions, involving a since-rescinded requirement that judges live at the venue of the trial (Guantanamo Bay) for the length of the trial, “the military judge presiding at the USS Cole death-penalty trial ordered the Pentagon to replace the senior official and his staff overseeing the war court process.”

Spath, in court Monday, called dismissal “not appropriate” in this instance. Instead, he disqualified [the convening authority, retired Marine Major General Vaughn] Ary and four lawyers who worked on the move-in requirement: retired Army Col. Mark Toole, Army Reserves Lt. Col. Alyssa Adams, Navy Reserve Cmdr. Raghav Kotval and Army Lt. Matthew Rich.

He ordered the Pentagon to replace them with new staff for the purposes of the USS Cole case — meaning a new convening authority would fund and assign Nashiri’s legal team resources and pick the pool of military officers for his eventual jury.

Update: Wells Bennett has an excellent writeup of Col Spath’s order in this post at Lawfare Blog.

72 Responses to “Military commissions judge disqualifies convening authority”

  1. Charlie Gittins says:

    I predicted this would follow the Pohl ruling before the Pohl ruling came down.  This was a no brainer. Does anyone else find it ironic that the Army Colonel disqualified with Mr. (Einstein) Ary is named “Toole.”   

  2. Charlie Dunlap says:

    It is, however, I think rather unseemly for the assigned judges to place such a premium on their own convenience and personal comfort. Moreover,  I think this hardly qualifies as command influence, though I do agree that the assignment process should have been worked through the respective TJAGs.  Regardless, lots of military personnel have had far less attractive assignments than GITMO, and it does not speak well of the Judiciary that they are using the “unlawful command influence” hammer to avoid duty they find disaagreeable.  I very much doubt that the American public, which is conscious of the sacrifices that so many have made serving in combat zones, would see assignment to what is now a relatively well-appointed location as the “mortal threat” to the justice system. I wonder (a real question): should the judges recuse themselves because they have a very personal stake in the outcome?

  3. Charlie Gittins says:

    General Dunlap:  I am afraid I must disagree.  The CA and four lawyers try to come up with a scheme to remove a judge (Spath) from the military commissions to speed things up, isn’t UCI?  Develop a scheme to have the judge in a particular case removed back to his USAF docket and off the commissions for the sake of Government desire for more haste?  I think it is an attempted actual UCI — only thwarted because the defense counsel are “on the ball.”  There have not been any prosecutions I have been able to find for violation of Article 98, UCMJ.  Recalling a Major General and a Colonel to Active Duty for military justice proceedings (along with their active duty co-conspirators) for attempted UCI would make the statement that UCI really is intolerable in the Military Justice or Military Commissions systems.        

  4. Charlie Dunlap says:

    Charlie, thanks for the post.  I do see your point (and you obviously are more familiar than I with some of these particular facts) but allow me to say that as a general proposition, I would suggest that there has been nothing ‘hasty’ about almost any aspect of military commissions’ cases.  I honestly don’t think that at this point, ‘haste’ is an issue in these cases, but as I say, you may know more than I.
    In any event, I would note that the Manuel tells us (Part I, Preamble, para 3), the purpose of military law is also to “promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.”   I do think that it is not unreasonable to have military judges proximate to their courtrooms (as opposed to hundreds of miles away) in order to “promote efficiency and effectiveness” especially for cases so important to the “military establishment” and the “national security of the United States.”  
    I think it is also fair to say that the convening authority ought to be sensitive to the concerns of the alleged victims (and, for that matter, the general public), and their natural desire for closure.   
    Moreover, I do find it kind of troubling that a military judge would issue a ruling about a matter that affects him so personally.  Am I wrong about that (a real question, not rhetorical)?  Today it might be a pro-defense ruling, but the next one…???
    All of that said, I violently agree with you that UCI is intolerable in Military Justice or Military Commissions system (and, in fact, I think that Article 37 ought to be amended to remove the “subject to this chapter” language to avoid the argument I’ve seen that the President – and others “not subject to this chapter” – are not subject to UCI prohibitions).  Still, I am as or more concerned about the erosion of the rights of military accused in the courts-martial system as I am about the military commissions system.  Thanks again, Charlie

  5. Some Army Guy says:

    Few things are classier than making fun of someone’s name.

  6. Charlie Dunlap says:

    Some Army Guy:  I’m not tracking on your comment – was it aimed at me?  If so, I’m genuinely puzzled.  You do realize that Charlie Gittins and I have the same first name, right?   Regards, Charlie Dunlap

  7. Charlie Gittins says:

    No general, that was aimed at me.  The Army in general has a bad sense of irony or humor.  They take themselves much too seriously.  I relish the courage of anonymous posters and have said so on occasions too numerous to point out on this site. 

  8. stewie says:

    Wait…there’s humor in this thread?  I’m a big fan of the funny, let me see if I can find it.

  9. Phil Cave says:

    I think that’s where the term charley-hoarse comes from: frequent, strident, criticism of the system.

  10. Don Rehkopf says:

    For the record for those who may not know, Charlie Dunlap is Major General Charles Dunlap, USAF (ret), the AF Deputy TJAG until his retirement a couple of years ago, and we all know that he’s speaking in his personal capacity here.
    However, with due respect to our long-standing friendship, I must also disagree with you Charlie Dunlap.  Col Spath has been in the government’s “cross-hairs” for some time now, ever since he dismissed some of the charges against al Nashari and ordered the government to release various classified documents about al Nashari’s waterboarding and “rectal rehydration” at the secret prisons he was held at.
    What to me at least is “unseemly,” is the proffered testimony of the current AF TJAG, tendered by Cmdr Brian Mizer, which was reported HERE.

    Navy Cmdr Brian Mizer, a defense lawyer, said Air Force Lt. Gen. Christopher Burne, the judge’s boss, would have testified that he intended to remove Spath from the presiding at the Cole case.

    The now rescinded Order [a/k/a “Change One”] cannot be viewed in any light except being punitive. Col Spath himself noted that it didn’t do any good for them to reassign him (and the other military judges) to GTMO when all of the prosecution, defense, their respective staffs, etc., were all in the DC area.  The concept of going “Judge Alone” means more than just having the judge “alone” down at GTMO.  If it was anything but a punitive move, and someone was indeed trying to legally expedite the commissions, then why not (a) move everyone involved to GTMO; and (b) relieve them of all other duties, and get down to work?  Of course, they could also just indict al Nashari and prosecute him in federal court as they have with hundreds of other cases, e.g., Jose Padilla, Zacharias Moussaoui, John Walker Lyndh, etc.  I agree with you in part Charlie that it is not “unreasonable” to have the military judges proximate to their courtrooms at GTMO, but only if everyone else involved is there as well and able to work on the cases at hand.
    Indeed, the more apt question imho is, why isn’t the Convening Authority and his staff not down at GTMO?
    Virtually all of the delays in these cases have been caused by the government – and I’m not making any ad hominem attacks on anyone here.  But the failure to timely turn over court-ordered discovery; the “bugging” of defense counsels’ meeting rooms; putting a government “plant” as a defense interpretter, etc., have all necessitated fact-specific hearings, all of which take time to move the entourage down to GTMO, and delay proceedings on the merits — things that were totally under the government’s control.
    Since the Fall of 2001 when then SecDef Rumsfeld created this monstrosity, there have been a grand total of six convictions at GTMO and a couple of those are probably in jeopardy based upon the recent Hicks decision.  Hardly a metric to brag about and certainly not one to blame the military judges for.

  11. AnonymousJA says:

    Why can’t we just have judges removed the old fashioned way? You know, by digging through their personnel records for voir dire.

  12. Article 98 says:

    It’s abhorrent that Article 98 is essentially invisible. It is widely abused, almost entirely by the chain of command and especially prevalent during administrative cases. It’s an abuse that is willfully done in the majority of instances and would therefore be a stepping stone on the way to Art 134, among others. 
    I’m glad to see Mr. Gittins mention the article but it would appear to be wishful thinking, hoping to see some sort of action based on that article. Honestly, I’m astonished it doesn’t come up more often. 
    I’m beginning to think classes in rhetoric are taught at the war colleges. With all due respect to General Dunlap, far too often I see senior officers provide quotations or phrases that are vague or removed from the core issue, hoping to appeal to principles or emotions that are presumed to be universal, difficult to ignore, and difficult to respond to. It’s clever and I’ve seen quite a few junior officers worked over with these clever wordsmithing activities.
    Citing language such as the promotion of efficiency and/or effectiveness undermines the principles that have been laid down in law (military and otherwise) since the beginning of recorded history. To borrow from Earl Warren, whether codified in US Code, CFR, or UCMJ, it’s the spirit that promotes justice, not the form. And, as noted throughout history, you will not have an effective or efficient military where injustice resides in the ranks. The spirit of military law is created, embodied, and perpetuated by our senior officers. The form, or coding, may be done by EO or Congress, but it’s those leaders that create the spirit of military law. When the spirit of the law does not seek justice, injustice is the only result. 
    As a matter of integrity and for the promotion of an effective and efficient military, it’s time for senior officers to start policing each other, to stop hammering standards down on those below their pay grades while abandoning those standards from within their pay grades. Those at the top do not face accountability or justice, so how can they view subordinates with an objective lens? 
    Tossing your eagle or stars onto the table and making a claim, in no way makes that claim correct. This ruling was correct, although not enough has been done, as Mr. Gittins pointed out. 

  13. Stephen Wilson says:

    AnonymousJA: so you read Judge Pohl’s order

  14. Dew_Process says:

    @AnonymousJA – now that was funny.  LMAO funny!!!

  15. Bill Cassara says:

    Anonymous JA wins the Internet for the day. 

  16. Charlie Dunlap says:

    Frankly, when Don Rhekopf speaks, we all ought to listen – he is really that good – you don’t want to look across a courtroom (as I did on more than one occasion) and see Don Rhekopf as you opponent.  He is especially worth listening to when he, like Charlie Gittins, has such an excellent grasp of the facts. 
    And Don has a point: if we really want to move the cases along, it may be the right thing to move everyone down there and get on with it.  But I don’t have enough facts for that determination. 
    I do believe that BG Martins is someone of very high character, and is doing everything within his power to do these cases the right way.  I’m also convinced – as Don suggests – that if the so called “War Council” (or whatever they called themselves) of civilian lawyers who, back in 2001, put together the original process had sought the advice of people who actually had tried cases (I’m not sure any of them had actual trial experience), maybe things would be different now.  But we are where we are, and I for one am in favor of doing whatever can be done within the law to move the cases along, regardless of the inconvenience, cost, etc.
    Still – and I’m probably a dinosaur on this – I just don’t think judges ought to be ruling on things in which they have such an obvious personal stake.  I don’t question their actual individual integrity, it just creates the appearance of being self-serving.
    Regardless, I very much appreciate the dialogue on CAAFLog, and my hat is off to Zach and the others who make it work.  It is truly irreplaceable – and those of us who benefit from it don’t say “thanks” often enough.  Regards, Charlie

  17. Charlie Dunlap says:

    Don, Sorry for – repeatedly – misspelling your name!!!  Warm Regards, Charlie

  18. Charlie Dunlap says:

    Article 98:  Thanks for the thoughtful post!  Honestly, it does kind of sounds like maybe you are not a senior officer if you really think senior officers don’t police each other.  Sure, there is some small percent who slip through, but relatively speaking, the numbers are miniscule (even though each incident earns extended front page coverage in today’s press).  Moreover, regardless of any self-policing, these guys operate under a microscope so intense it is hard to imagine.
    Citing the Manual is citing the law IMHO, and – respectfully – I disagree with you if you think that efficiency and effectiveness about which the Manual speaks isn’t an essential element of justice.  One of the things I highlight to my students here is how often the Supreme Court has spoken about the fundamentally different purpose of military law from civilian criminal justice, and how it is intended to promote the ability to wage war – something for which the civilian criminal justice system has no responsibility. 
    It would make an interesting article for someone to analyze the extent to which this different purpose (perhaps articulated as national security) relates to military commissions.  Let us not forget the Supreme Court in Haig v, Agree observed that “It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.”
    So, it may be that we agree that we can’t have an effective military if there is injustice in the ranks, but I do think that for military law in particular, it is more than just words to say the efficiency and effectiveness are core principles enabling that justice we seek, which to me is a concept broad enough to also cover the interests of the Nation writ large.  Thanks again for the post! 

  19. Weirick says:

    the big problem was the failure to vet Vaughn. This mess could have been easily avoided. 

  20. SFC V says:

    Charlie Dunlap said:
    I just don’t think judges ought to be ruling on things in which they have such an obvious personal stake.

    I couldn’t agree more.  A judge should never be ruling in a case where he has such a personal interest.  Further, isn’t the judge still an army officer and subject to assignment where the army determines it wants him to be?

  21. Advocaat says:

    If the Commissions are a national priority essential to bringing an existential threat to justice, everyone involved should be stationed down in GTMO, including the CA.  (Can anyone imagine if the Nuremberg trials had stretched into the Kennedy administration?)  If they are a part-time clown show of no strategic importance, DoD has the formula just right.

  22. Monday morning QB says:

    Oh I don’t know about any messes being avoided; there’s enough blame to go around to everyone involved in this process, government, defense, trial judiciary, but the biggest blame goes to policy makers who thought it was a good idea in the first place.  Once the Supremes came in and reversed decades of jurisprudence that was highly deferential to the Executive’s decisions regarding military commissions, the game changed and should have been over then and there.  But Congress jumped in and took up the effort, and gave us offenses that were then applied ex post facto. Here the decision to make military judges otherwise employed within their respective services as part of the commissions trial judiciary was a mistake.  Nobody really wants to serve, and can you blame them?  They have a day job.  That, combined with several other factors, the pain of traveling to GITMO, the stupid things SOUTHCOM/JTFG do that interferes with the defense’s ability to do their job, and the other people who, like Lord Voldemort, “shall not be named,” all combined to bring the system to a virtual halt.  The irony?  If this were in an Article III court, none of this would be happening.  No federal judge would delay a case like this  and he/she would not tolerate any antics from the parties. So be very careful what you wish for …..    

  23. k fischer says:

    Anyone see the irony of UCI being applied to the trial of the 9/11 mastermind to abate the proceedings and to disqualify the convening authority, but the POTUS commits blatant UCI and Congress takes actions that would make the general public lose confidence in the military justice system regarding sexual assault prosecutions, and MJ’s and the appellate courts scramble to fix everything nice and neat?   Nobody seems to be troubled by the Heritage briefs, sense of Congress provisions PL 113-66, sections 1751 & 1752, and the POTUS’s comment demanding the inflexible disposition of dishonorable discharges for anyone caught engaging in sexual assault.
    So, it would appear that the right to a fair trial afforded KSM > Any Servicemember accused of sexual assault, no?  

  24. stewie says:

    Huh? Obviously folks were a little troubled by the President’s comments, thus the retraction we saw, and the UCI motions we saw…but at the end of the day no, the fair result in that situation was not shutting down all sexual assault trials.  I also think the UCI danger was a little greater here than in the case of the President’s comments.
    As for Congress, few disagree what they’ve done is make things worse, unfortunately, that’s how democracy works, elected leaders get to make bad decisions.  Elect better representatives is probably the only solution there.

  25. Monday morning QB says:

    k fischer – I don’t think you can overlook the fact that in this case, you have the actual CA contacting higher to get an order from higher to the judges to essentially hurry up the cases; I don’t know that I have ever seen that happen in a reported court-martial case. Usually, when you have CA’s engaging in shenanigans that amount to UCI, it’s something other than a direct attack on the judge, the two famous Marine Corps cases (cannot recall the names) notwithstanding. But even in those cases, it was not the actual CA who was trying to unseat the judges, it was the trial counsel.  You read between the lines here and the judges are basically saying “You will not try to influence me, etc”  This doesn’t have anything to do with KSM or his cohorts.

  26. RY says:

    WRT to judges ruling on issues that effect them, it is a great irony in the UCMJ.  Consider a motion for recusal… 
    DC: Judge, you have a self-interest in issue X, which is part of this case, you defended the government on this issue in your previous job indicating you are pre-disposed against the accused, your colleagues who have accepted defense’s positions have been passed over for promotion, etc. all suggest you may be in fact biased but at the very least will be perceived as such by members of the public. 
    Judge: I understand your position, but I disagree.  Denied.
    WRT juries, we recognize that people may not always understand the influence superiors have on them, nor do we all understand our own prejudices or biases.  We unreasonably accept judges can self-assess and we accept appeals will resolve the few cases where our trust is misplaced.  As long as we accept judges to be able to assess themselves, why wouldn’t they be able to fairly review matters that may affect them?    

  27. Weirick says:

    This of all days for Gen. Dunlap to assure us senior officers police their own.

  28. Charlie Dunlap says:

    Point taken.  I would observe that there are approximately 4,700 retired flag officers in the U.S., and it does appear that one has committed a misdemeanor.  “Qui sine peccato est vestrum, primus in illam lapidem mittat”

  29. Advocaat says:

    General, I’m a fan of yours and I think you should have been TJAG, but that last one was a whopper.  Are you honestly of the opinion flag officers are held to the same standard as the troops they lead when it comes to disciplinary matters?

  30. Steve says:

    Petraeus, 62, agreed to plead guilty to the unauthorized possession of classified information,… The felony charge carries a maximum sentence of one year in prison…

  31. stewie says:

    I’ve never mishandled secret docs before, so it feels like a stone available to me for throwing.
    Nevertheless, while I cannot match Latin quotes, I suppose I can match comic book quotes: “With great power, comes great responsibility.”

  32. RKincaid3 (RK3PO) says:

    “…there are approximately 4,700 retired flag officers in the U.S., and it does appear that one has committed a misdemeanor.”

    Really??  Just ONE? 
    And as far as offenses go, that “one” flag officer’s misconduct is pretty significant indeed.  Hardly to be downplayed by a nice Latinism on casting the first stone–especially when dealing with someone who probably handed out any number of career-ending GOMORs or Article 15s for adultery–or worse, referred to Court-martial Soldiers whose charges included adultery and other “service discrediting conduct” or conduct that was prejudicial to GOADITAF for doing the same thing he did:  dilly-dallying around on his spouse.  So much for being a “leader.”  The unauthorized sharing of National Security data is bad–but not quite so hypocritical as the adultery.
    I fail to see how citing a quaint biblical Latinism on casting the first stone is an appropriate response to the oh-so-obvious nature of Petraeus’ failure to live and breathe the military values—especially those of loyalty and doing the right thing when no one is looking. The particular cited Latinism seems to be the universal request for tolerance by those who have for the longest time been overtly judgmental of others and now find themselves being likewise judged.
    As for the goings-on at Gitmo, should we really be surprised yet again by the government’s willingness to overreach in pursuit of “national security” given its history of using torture as a tool of national policy; then promoting one of torture’s advocates to federal judge while not pursuing those who criminally engaged in torture–you got it–in the name of “national security;” and which then trying to limit habeas corpus; to then attempting to enforce ex post facto laws; all while trying to prevent judicial review of the “national security” driven conduct it sought to keep sub rosa?  After all of that, this case of UCI at this level and of this magnitude is a surprise to anybody?  Really?
    The road to oppression via perverted and kangaroo (or “rough”) justice is paved with calls for “national security” (or “do it for the children” or “do it for the rape victims” or “military necessity”) or whatever the cause du jour is at the time.  And we let it happen by, as Stewie mentioned, not voting for the right people, or by failing to hold those in office accountable.  The politicians’ collective failure is indeed ours as a people and as a republic!  And that same failure allows people like Petraeus to be held largely unaccountable as compared to the way he treated those subordinates whose careers he ended for doing exactly what he did.
    I will agree, though, with Charlie Dunlap on this: CAAFlog is a great place for education, opinion and perspective.  A great resource.

  33. anonymousJA says:

    I would respectfully submit that each of us, regardless of rank – Capt, LtCol or retired flag officer – understands the difference between what a defendant pleads to, what can be proven and what he actually did. We will likely never know what the full extent of the director’s disclosures. Respectfully, the characterization of the director’s disclosures as a misdemeanor greatly understates their reality. As to the frequency of misconduct by senior leaders, the Fat Leonard scandal should give us concern.

  34. RY says:

    Having seen a few GO investigations, it seems like feast or famine for GOs.  There are some ridiculous things they are held accountable for and other times, it seems like “everything is awesome” no matter what they do.  (see what I did there Lego fans?).  Personally, I’m pretty irked by Maj Gen Post’s “I’ll deny ever saying this” but don’t talk to Congress or you commit treason.  Wrong on so many levels. 

  35. Weirick says:

    One misdemeanor. Let’s just talk Air Force JAG generals. You have to know of Fiscus and Murphy. Your minimizing is revealing. 

  36. Charlie Gittins says:

    Just to be clear, Kendall and Barnett got him a misdemeanor plea deal.  Patraeus is not pleading guilty to a felony.  Kendall and Barnett are in the same firm that represented Ted Stevens and Ollie North, among many others, WIlliams & Connolly, including Jimmy Hoffa. 

  37. Don Rehkopf says:

    More on the Petraeus plea bargain HERE.
    @Monday morning QB:

    Once the Supremes came in and reversed decades of jurisprudence that was highly deferential to the Executive’s decisions regarding military commissions, the game changed and should have been over then and there.  But Congress jumped in and took up the effort, and gave us offenses that were then applied ex post facto.

    I’m not quite sure which SCOTUS case you’re referring to, but will assume that it is Hamdan v. Rumsfeld,  548 U.S. 557 (2006), since that seems to fit your scenario. [DISCLAIMER: I worked on Hamdan’s federal appeals and authored an amicus curiae brief at SCOTUS on the case, tracing the history of military commissions in the U.S., available HERE. ]  But, SCOTUS did not “reverse[] decades of jurisprudence . . . .”  They did ignore the dicta in In re Quirin and politiely side-stepped former Chief Justice Rehnquist’s judicial philosopy of utmost “deference” to the military by returning to the Court’s early precedent in Little v. Barreme,  6 U.S. (2 Cr.) 170 (1804), where Chief Justice John Marshall held that where Congress has spoken on military matters, the Commander-in-Chief cannot exceed what Congress has specifically ordained.
    Thus, the Court in Hamdan in holding that the Congressional scheme for military commissions was set forth in the UCMJ and Common Article 3, of the Geneva Conventions [ratified by the Senate], precluded the President’s power to change the military commissioins absent Congressional action which at the time, hadn’t occurred.  Of course, Congress then acted when it passed the Military Commissions Act of 2006.
    That then created “new” war crimes as you correctly note, but their ex post facto application should have been seen as problematic by any second year law student. Calmer heads and brighter minds should have precluded any retroactive application of the new war crimes — and that assumes that they are such under international law, e.g., conspiracy.
    Finally, I must agree with your assessment that if these cases were in an Article III, District Court, no federal judge, regardless of their “bent,” would tolerate what has become routine in the Commission cases.  Having also worked on aspects of the defense in the federal prosecutions of Jose Padilla [the so-called “dirty bomber”] and Zacharias Moussaoui – both of whom were convicted by federal juries — prosecution in federal court would be far preferable to any defense counsel I’ve talked to.  But then again, there’s the “torture” problem.

  38. RKincaid3 (RK3PO) says:

    Yep–CG–different justice for different folks based upon socio-economic strata.  We Americans each get the justice–and the political representation and influence–we can afford to buy.  So much for “equal” before the law and a blindfolded Lady Justice.  Where is the “mandatory minimum” for that crime?

  39. Monday morning QB says:

    Methinks there’s a bit of hyperbole here: “the government’s willingness to overreach in pursuit of “national security;” this was more of the “government” – wait a minute, I thought the government at GITMO was Gen. Martins, not the CA; oh well I guess in some people’s view anyone other than the accused is the “government,” – in any event, the “government/CA/anyone else not the accused” trying to get the cases moving.  It’s actually not a bad motivation, if one cares about the typical goals of a “speedy trial;” but I guess that goal doesn’t apply here.  The defense doesn’t want a trial, at GITMO, New York, EDVA, or anywhere else.  Not defending an incredibly wrong-headed chain of events that apparently got past some folks who were asleep at the switch somewhere along the line, but the motivation is actually righteous.  The Cole bombing happened in Oct, 2000 – almost 15 years ago……  Those families (and the accused by the way) have been waiting for justice (a simple result: G/NG) for over a decade.  The fact that there has been no day in court, at a commission or Art III court, is an astonishing embarrassment at all levels. 

  40. Monday morning QB says:

    Mr. Rehkopf, if you are correct in your opinion that  new war crimes’ “ex post facto application should have been seen as problematic by any second year law student,” then the CAs (including lawyers in the DoDGC office), prosecution teams, and defense teams that worked on a number of cases are no smarter than a second year law student.  Especially the DCs who had their clients plead guilty to “ex post facto” war crimes.   

  41. Charlie Dunlap says:

    Hi Don!
    Given the kinds of sentences Art III courts give out in these cases (not to mention Supermax confinement), is it really true that most defense counsel would prefer their clients to be in that venue?  (A real question, so please educate me!) 
    Also, re; ex post facto, I always thought that perhaps more consideration should have been given in the Art III appellate courts the arguments that succeeded at Nuremburg in this regard (and, I think, were made in the CMCR decision).  Thoughts?  Thanks my friend!  Charlie

  42. Monday morning QB says:

    Evidence in support of my case for Art. III court: April 15, 2013: Boston Marathon bombing.
    March 3, 2015 (less than two years later):

  43. Charlie Dunlap says:

    Excellent point!  I wonder what it would take to create an Art III court at GITMO?  Does the Tiede case help?  (That was the one where – I think anyway – some hijackers were tried in what was then West Berlin – not sure it was actually an Article III court…).  I’m sure a million people have already thought of this, but…

  44. Don Rehkopf says:

    @Monday morning QB:  I can only comment on 2 of the GTMO defendants — both opted for the plea deal just to get out of GTMO and took the chance of challenging their convictions once they left, e.g., Hicks.  The ex post facto argument was first raised by the Nuremberg defendants as to the conspiracy counts.  It was the closest thing to an Alford plea available.  I’m assuming that you’ve read the Hicks decision – if not, when you get 15 minutes or so, read the first section on the invalid/inapplicable waiver of appeal, which was drafted by someone on the government side.  A couple of others, e.g., Hamdan, had challenged the retroactive application from the beggining, but who was convicted after a “commision” trial.
    And, I agree that your reference to the Boston Marathon Bombing case is apropos – and, it’s a death penalty case, being prosecuted and defended by some very good lawyers.
    @ Charlie Dunlap: Charlie, let me put this into perspective.  When John Walker Lindh was captured, there is little question that he was tortured – not to mention denied medical treatment for a gunshot wound for a week – the excuse being that they didn’t have “chain-of-custody” documentation in the field and so, had to leave the bullet in him. After he was indicted, the federal district court judge granted a suppression hearing on the issue of whether or not his admissions to the military and other interrogators could be used due to both the torture issues as well as the fact that he had invoked his right to counsel, which was ignored [as an aside, a DoJ attorney had told the FBI agents that Lindh had counsel and not to interrogate him further – that advice was ignored].  Prior to the suppression hearing, the government advised the defense that if they went through with the hearing and were successful, that they would then just transfer Lindh to GTMO “for the duration.”  Hence, the genesis of the plea bargain.  He got 20 years and will be eligible for release after 17 with “good time” credits.
    Jose Padilla ultimately got a 21 year sentence after his trial in Miami, but the sentences range the guantlet from LWOP to a few years.  I have worked with countless civilian and military defense counsel at GTMO since 2002 – originally, the premise was to simply get the tried and true, UCMJ GCM to be the forum.  But, once the 2006 MCA (and its subsequent amendments) came into effect and the process moving slower than a crippled snail, for the current prisoners at GTMO facing charges, most would rejoice at getting into an Article III court, if for no other reason than the federal judges enforce timely discovery.  I have spoken with lawyers who have defended “terrorists” in both federal court and at GTMO, and not one has ever expressed any preference for trial by commission.
    As to the “Supermax,” the one at GTMO is a smale-scale version of the federal Bureau of Prisons’ model, so physically there’s no difference.  But, contact with relatives at GTMO is virtually non-existent except via Red Cross communications and certainly, there’s no visitation rights or phone calls – a privilege that BoP prisoners can earn via good behavior.

  45. Don Rehkopf says:

    PS @ Charlie Dunlap – missed your followup RE: Tiede.  That was a somewhat unique status where an Article III, US judge presided, but the jurors were West Berliners.  I think a more apt comparison would be the Article III, federal court that used to be in the Panama Canal Zone when we still controlled it.
    Some years back, I was told (but cannot locate any documentation to corroborate this) that putting a federal judge at GTMO was discussed, but rejected because they were afraid of the avalanche of habeas corpus petitions that would obviously be forthcoming.  But, now that that is more-or-less a moot point, it’s a thought certainly worth re-considering — just don’t hold your breath.

  46. RKincaid3 (RK3PO) says:

    @ D.R.: WOW! Great background/historical info. Thanks for posting that!

  47. Charlie Gittins says:

    Some days, CAAFLog is just an awesome read.  Today is one of those days.  BZ to all who have commented here today.  I learned alot and found the reading fascinating.

  48. Monday morning QB says:

    DR-I have read the opinions, all of them, what you say might explain why Hicks or your other unnamed detainees would do “Alford” pleas, but none of what you say would explain why a detainee like Majid Khan as recently as February, 2012, would plead guilty to conspiracy if a second year law student would know it was not a war crime appropriately charged in his case.  Most people other than soothsayers found that out when the DC Circuit told us. 
    As for Lindh, I don’t know why any discussion of his case is relevant here, either on the charges he pled to or the facts underlying his case, and I think it really weakens your argument to analogize him with the detainees who have pled at GITMO.  Robert Young Pelton, former CNN war correspondent and no friend of the War on Terror, and who is quoted as saying the U.S. military killed “thousands and thousands” of people in Afghanistan, “al-Qaida is a myth” and the WTC was brought down by a “Mickey Mouse” outfit , had this to say about Lindh, “To me Lindh was just an unpleasant arrogant kid who preferred to stay with his murdering friends. Quite simply, in my opinion, Lindh was a terrorist, and a man who chose to stay with killers even though he was afforded numerous opportunities to separate himself from his murderous associates. Twenty years in jail may be a blessing compared to how many of his friends have been dealt with since.”

  49. Don Rehkopf says:

    @Monday morning QB:  You’re mixing apples, oranges and pears.  Khan was facing murder, attempted murder, espionage, material support and conspiracy charges if you recall. The murder and attempted murder charges inivolved the Jakarta hotel bombing – which killed 11 people and wounded scores. So even if the case wasn’t referred to as capital, he was looking at LWOP.  Hicks and others, didn’t have that hanging over their heads.  Furthermore, and I don’t know if you are / were a DoJ attorney or JAG, but you must know that just as some prosecutors are better than others, some defense attorneys are better than others.  I’m not second guessing anyone, but in Khan’s case, the conspiracy charge was no doubt the least of their worries, but I have no idea why any defense attorney would let a client plead to an offense with Ex Post Facto stamped all over it.
    But, I stand by what I said earlier — conspiracy and material support were not “war crimes” before the MCA was passed in 2006, and one did not have to be a “soothsayer” to know that the retroactive application of something first designated a war crime in 2006, could not be applied constitutionally to conduct occurring years before that.  Indeed, as the DC Circuit held in reversing Hamdan’s conviction:

         Second, consistent with Congress’s stated intent and so as to avoid a serious Ex Post Facto Clause issue, we interpret the Military Commissions Act of 2006 not to authorize retroactive prosecution of crimes that were not prohibited as war crimes triable by military commission under U.S. law at the time the conduct occurred.

    Slip Opn. at 5, available HERE.  That’s pretty basic constitutional law imho.
    As to Lindh’s case, in 2002 when the threat to send him to GTMO was made, no one knew what the Courts would do, as this was long before SCOTUS decided Hamdi v. Rumsfeld, 542 U.S. 547 (2004) [DISCLAIMER: I was an amici party in Hamdi, Experts on the Law of War, and with special leave of the Court, also represented a separate amicus, People to Enforce the Geneva Conventions.]  Hamdi was “captured” along with Lindh at the same time and place and got a proverbial “hand slap”]. So, when Lindh was threatened with GTMO, no one knew if he would then be subject to trial by military commission — and from a subsequent conversatioin with Lindh’s lead defense attorney, everyone was “scared sh*tless” that they would send Lindh to some black hole such as GTMO, even though by this time Hamdi had been removed from GTMO due to his US citizenship, but was being secretely detained as an “enemy combatant” by the Navy; just as was Jose Padilla.  Lindh plead guilty to avoid that and he plead to federal crimes, not war crimes.
    As to Mr. Pelton, he was a “stringer” who sold stories to CNN, with his own credibility problems as documented HERE.  It’s important to also note that when he interviewed Lindh, Lindh had just been given a shot of morphine for his bullet wound.  He has also made inaccurate claims about convincing Lindh’s attorney’s not to use him at the suppression hearing.  Pelton’s challenge to the defense subpoena and the Court’s ruling against him is reported at:  210 F.Supp.2d 780 (E.D. VA, 2012).  Why would the defense serve the subpoena on him and litigate the subpoena in court if they weren’t serious about calling him as a witness??

  50. Zeke says:

    Gen Dunlap said:

    I wonder (a real question): should the judges recuse themselves because they have a very personal stake in the outcome?

    Sir, I think the question to that answer clearly is yes.  The true question, though, as I see it, is whether, in fact, Judge Spath had a personal stake in the outcome.  I admittedly am not involved in this litigation, I don’t personally know Judge Spath or his preferences as regards where to live (though this time of year, I would certainly not be opposed to escaping the ice in D.C. for Cuba), and I’m sure I don’t have all of the relevant facts underlying this dispute.  All I’ve got is what has been reported.  But, it seems to me that there really is not a personal stake involved.  It’s about, in my view, military assignments – which is an official interest with personal implications, sure.  But, I think that is not the same thing as having a personal stake – we may (thankfully) be given input on our assignments, but ultimately our personal preferences are only relevant, not controlling.   Assignments are also an official interest that the convening authority has no say over – which, it seems, is the origin of the problem here.  Exercising authority that he did not actually possess was bad, doing so as regards a military judge’s assignment is UCI.  Or at least it would create the appearance of UCI in the eyes of the public because it makes the military judge appear to be subordinate to the convening authority.  Any action which gives the public appearance of a judicial officer being subordinate to the officer exercising prosecutorial discretion is, in my view, always going to be problematic because it calls into question judicial independence.  Judge Spath took the only action which would leave a reasonable observer convinced, beyond a reasonable doubt, that the military judge was independent – he proved that independence, and indeed demonstrated his superiority over the prosecution function when it comes to maintaining the appearance of propriety in his courtroom.  Could a lesser measure have achieved that same outcome?  Possibly.  But, the military judge tucking his tail and recusing himself in the face of an illegal usurpation of power over his assignment by the convening authority would have only made the appearance of UCI more distinct.  Judge Spath remedied any appearance that he was under the thumb of the convening authority – and that’s ultimately all that matters.  UCI is the mortal enemy, after all.
    Gen Dunlap also said:

    Still, I am as or more concerned about the erosion of the rights of military accused in the courts-martial system as I am about the military commissions system.

    Dear God, if only senior judge advocates still on active duty would say such things publicly.  The gravest threat to the military justice system is not a loved victim who receives ill treatment at a court-martial.  Congress will rail against such a thing and demand reforms, but will not feel public pressure to dismantle the system altogether.  A loved accused who is, in the public’s eye, railroaded by a system that has deprived him or her of the rights they are fighting to ensure that others receive . . . those are the sort circumstances which will give rise to public cries for our separate system of military justice to be abolished.  A few of our allies have seen it happen, we are not unique.  

  51. Weirick says:

    Does RADM Giardina not count in the 1 in 4,700 flag officers who have engaged in misconduct?
    And let us not forget about the many flags caught up in the Fat Leonard mess. Not buying policing their own

  52. Phil Cave says:

    @DR.  We have all met prosecutors/SJAs who refuse to bargain away the charges and want a deal to all of the charges, regardless of any statute of limitations issue, ex post facto issue, lack of evidence issue, lack of guilt issue. So we’ve had cases where we have agreed to the BS stuff because the jeopardy {remember my two questions to the client, what’s your tolerance for risk and your tolerance for pain) is so significant.  The deal gets signed.  As you well know overcharging is one of the ways prosecutors leverage cases.
    @Weirick  we sure about Giardino’s case?

  53. The Silver Fox says:

    So, you have clients plead to charges they’re not guilty of?

  54. Weirick says:

    @PC – I could be wrong. If his court-martial begins I will be completely off point. 

  55. Don Rehkopf says:

    @ Silver Fox: No, I don’t think that’s Phil’s point.  There a vast legal (and ethical) difference to pleading someone guilty (absent an Alford plea) who maintains his/her innocence or your investigation clearly points to innocence and affirmatively waiving a defense, such as ex post facto violation.  Here’s an example, I recently had a very funky and questionable “sexual assault” of two very drunk college students.  It was not “reported” until over 3 years later when the woman’s then fiancee, believing her assurances that she was a virgin, found out she wasn’t.  After a decent investigation by the DA, they offered my client a plea to a misdemeanor (furnishing alcohol to a minor), which didn’t involve the risk of any SORA issues or the colleges “sexual respect” policies, IF my client would affirmatively waive the 3 year statute of limitations.  Using Phil’s long-standing formula, it was an easy answer and fix to a risky scenario in today’s climate.

  56. Monday morning QB says:

    An Alford plea is what the West Memphis 3 did in order to get out of prison with time served in Arkansas; they all pled guilty but affirmatively maintained on the record they were factually and legally innocent.  Which is worlds different from what Hicks, Noor, Qosi, or Khan did; all of the accused who pled guilty at GTMO entered a stipulation of fact that laid a factual basis for not only why, but how they were factually guilty of the charges they pled guilty to.  Not one of them maintained innocence; indeed, if they had, their pleas would not have been accepted.  JWL did the same in federal court.  If you have practiced in federal court you are well aware of the fact that most, if not all, plea agreements contain several paragraphs listing the statement of facts supporting the plea agreement, or at least incorporate one.  Here is JWL’s, and it doesn’t exactly look like an Alford plea.  So to answer Silver Fox’s question, it does not appear that any defense attorney pled their clients to something they were not guilty of. 

  57. Monday morning QB says:

    Don’t know if this link will work or not:

  58. Phil Cave says:

    SF, an answer with a question
    Client is accused of 28 specs of 120 involving three victims.
    GOV insists that any deal MUST include a GP to ALL specs.
    Your own investigation and analysis confirms he’s dead meat on 26 of the 28, and based on the anticipated evidence he really, really, really needs a deal.
    Now what?

  59. The Silver Fox says:

    I’ll take that as a yes.

  60. stewie says:

    If you take that as a yes, I have to wonder if you’ve been struck with agraphia.

  61. Defense Hack says:

    Mr. Cave – You are describing the soon-to-be-a-classic stance of the Government abdicating their role in the justice system. They love arguing discretion when something is massively overcharged, but can’t be bothered when a client cannot “plead the sheet.”

  62. k fischer says:

    It would have to be Phil  who was struck with agraphia as that neurological condition affects one’s ability to write.  So why don’t you stick to the things you know: shopping, nail polish, your father’s BMW, and quoting 80’s movies and/or Archer……Which is actually a show that quotes 80’s movies…..and Stewie, don’t you forget about me.

  63. DCGoneGalt says:

    Not to channel Cyril, but:  Archer.  Still lame
    If Dane Cook and Nickleback teamed up for a comedic musical and I was trapped on a desert island and given a choice between the musical or Archer, I would watch Archer.  But it would be close.

  64. k fischer says:

    So, you probably don’t appreciate the Breakfast Club reference, either.  Nobody’s perfect, my brother from another mother.

  65. stewie says:

    My understanding of the term agraphia is that it deals with an inability to understand written language, which would affect both the ability to read and to write would it not?
    Perhaps my source was wrong, but it was the closest thing I could find.
    I might be entering a zona peligrosa though.

  66. k fischer says:

    I had to google it because it was such a big word.
     “An acquired form of aphasia, which is characterised by a loss of a previously possessed ability to write.”
    Zona Peligrosa?  Is that like the Italian version of Perrier?  Great back to Google……

  67. stewie says:

    My link said “understand written language.”
    Who am I, Samuel Johnson?

  68. Phil Cave says:

    Danger zone — zona peligrosa?

  69. stewie says:

    It’s an Archer reference.  I assume kf got it, but he might not have gotten it, even though it’s a line from the most recent episode.

  70. DCGoneGalt says:

    Mr. Cave:  Just let them go, it is a twin language that only they understand.

  71. stewie says:

    It’s on it sixth season, pretty popular show…just because you like that one show on BBC America because it’s “classy” isn’t our problem!

  72. k fischer says:

    Speaking of zona peligrosa, I just got a Ranger out of civilian confinement where he was held on a rape allegation.  Said he had never been to the girls house let alone her bedroom, and never had intercourse with her.  I went to the cops and offered them all kinds of exculpatory evidence, but they used their excuses much like a counterintuitive behavior expert.  Thankfully, the real rapist, if there is one in this case, left a “deposit” which was the smoking gun that excluded him.  Scary thing is, what if he had not?  Two and a half months he spent in the county jail, but at least the DA was quick about calling me and going with me to the judge to sign the order to let him out.  It’s scary when the civilians start acting like some of the CID investigators at Benning.  Oh and if she actually was raped well then hide your kids hide your wife because there is a rapist running loose in Columbus G to the A.