Search: Burke

CAAF denies SGT Bergdahl’s second writ-appeal

CAAF denied SGT Bergdahl’s second writ-appeal on Friday, with the following order:

No. 15-0710/AR. Robert B. Bergdahl, Appellant v. Peter Q. Burke, Lieutenant Colonel, AG, U.S. Army, in his official capacity as Commander, Special Troops Battalion, U.S. Army Forces Command, Fort Bragg, NC, and Special Court-Martial Convening Authority and United States, Appellees. CCA 20150463.  On consideration of the writ-appeal petition, it is ordered that said writ-appeal petition is hereby denied without prejudice to Appellant’s right to raise the issue asserted during the course of normal appellate review.

I discussed this filing here. All of our Bergdahl coverage is available here.

Sergeant Bergdahl seeks extraordinary relief (again)

Sergeant Bergdahl has filed another writ-appeal petition at CAAF:

No. 15-0710/AR. Robert B. Bergdahl, Appellant v.  Peter Q. Burke, Lieutenant Colonel, AG, U.S. Army, in his official capacity as Commander, Special Troops Battalion, U.S. Army Forces Command, Fort Bragg, NC, and Special Court-Marital Convening Authority and United States, Appellees.  CCA 20150463.

Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on petition for extraordinary relief in the nature of a writ of quo warranto or other appropriate writ was filed under Rule 27(b) on this date.

Quo warranto means “by what authority.” A complete copy of the writ-appeal petition is available here.

The issue presented is:

Where the Secretary of the Army refers a report of offense to a general court-martial convening authority on the express condition that he “may not further delegate this authority,” may he nonetheless forward it to a subordinate commander for all purposes other than ultimate disposition?

The petition digs deep into the finer points of court-martial procedure, but I’m going to try my best to summarize it in plain English.

Read more »

This Week in Military Justice – January 25, 2015

Significant military justice event this week: A meeting of the Judicial Proceedings Panel will be held on Friday, January 30, 2015, at One Liberty Center, Suite 150, Conference Room, 875 North Randolph Street, Arlington VA 22203. Additional information is available here.

This week at SCOTUS: I’m not aware of any other military justice developments at the Supreme Court.

This week at CAAF: CAAF will hear oral argument in two cases this week, both on Tuesday, January 27, 2015, beginning at 9 a.m.:

United States v. Olson, No. 14-0166/AF (CAAFlog case page)

Issue: Whether the military judge erred by denying the Defense’s motion to suppress the evidence seized from Appellant’s house because the totality of the circumstances indicated that Appellant’s consent to search was involuntary.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

United States v. Muwwakkil, No. 15-0112/AR (CAAFlog case page)

I. Whether the U.S. Army Court of Criminal Appeals erred in its application of both the federal Jencks Act (18 U.S.C. § 3500) and Rule for Courts-Martial 914.
II. Whether the U.S. Army Court of Criminal Appeals erred in its deference to the military judge’s findings and conclusions, as she failed to consider the totality of the case, and instead made a presumption of harm before ordering an extraordinary remedy. See, e.g., Killian v. United Utates, 368 U.S. 231 (1961).

Case Links:
ACCA opinion (73 M.J. 859)
Blog post: The Army enforces Jencks
Blog post: The Army JAG certifies Jencks issue in Muwwakkil
Appellant’s (Government) brief
Appellee’s brief
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week, Monday, January 26, 2015, at 2 p.m.:

United States v. Burke, No. 20120448

I. United States v. Miranda requires that a suspect be read his rights when the suspect is interrogated while the subject’s freedom of action is deprived in any significant way. Here, Appellant’s commander ordered Appellant to report to the battalion headquarters to perform “special duty” where he was informed of his wife’s death, he was not dismissed by his superiors or otherwise free to leave, and then was interviewed by civilian law enforcement. Thus, when Appellant was questioned, his freedom of action was deprived in a significant way, and the military judge abused his discretion when [he] admitted Appellant’s statements to law enforcement absent Miranda warnings.
II. Servicemembers must be read their Article 31(b), UCMJ, rights when they are suspected of an offense and questioned by a party subject to the code or otherwise an agent of one subject to the code. Here, civilian law enforcement agents coordinated a suspect interview with appellant’s command, came onto the military installation, and conducted the interview in the battalion conference room, appellant’s appointed place of duty. In availing themselves of the benefits of using the military command and installation to conduct their suspect interview, the government cannot show that the subtle pressures of the military environment were not present, and thus, the military judge erred in ruling that article 31(b) rights warnings were not required prior to questioning.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. O’Connor, No. 38420, on Friday, January 30, 2015, at 10 a.m.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

Argument Preview: United States v. Lee, No. 07-0725/MC

CAAF will hear oral argument in the case of United States v. Lee, No. 07-0725/MC (CAAFlog case page), on Tuesday, December 17, 2013. The court will consider a single issue:

 Whether the Court of Criminal Appeals erred in finding no Due Process violation where 2,500 days elapsed between sentencing and removal of appellant’s name from the Texas sex offender registry.

The facts of this case are likely well known to most regular readers of this site; however, I’ll provide a refresher/consolidated summary.  Appellant was convicted in 2005 by a military judge sitting as a general court-martial, after mixed pleas, of three specifications of burglary, one specification of conduct unbecoming an officer and a gentleman, and five specifications of indecent assault in violation of Articles 129, 133 and 134, UCMJ, respectively. He was sentenced to confinement for three years, forfeiture of all pay and allowances, and a dismissal.

Read more »

Military Justice News for November 15, 2013

A commenter mentioned something about “The Weirick.” A little research turned up this story in the Marine Corps Times:

The Marine whistle-blower who was fired from his job in September received a poor performance evaluation after his removal — more proof of reprisal, his attorney says, for voicing concerns about senior leaders’ involvement in the legal proceedings stemming from a high-profile scandal.

Maj. James Weirick, a Marine attorney stationed in Quantico, Va., received his most recent fitness report in late October from Col. Donald Riley, the supervisor who ousted him from his post after Weirick wrote a confrontational email to Peter Delorier, a former legal adviser to Marine Corps Commandant Gen. Jim Amos. Dated Oct. 24, the document rates Weirick as average or below average in individual skills, character and leadership competencies, and recommends he not be promoted.

If this keeps up then I’m going to have to issue a retraction of my post where I argued that the existing prohibitions on retaliation for reporting offenses are strong enough.

The Marine Corps Times also has this story of an acquittal in a long-running court-martial in California:

A combat-wounded Marine accused of defrauding the government as part of a massive embezzlement scheme was acquitted this month after defense attorneys argued during his court-martial that his command took extraordinary measures to ensure he was punished.

The criminal case against Staff Sgt. Anthony Rios Jr., 38, is significant because his legal team tied the aggressive effort to prosecute him to a presentation delivered last year to thousands of Marines around the world from the service’s commandant, Gen. Jim Amos. Amos’ so-called Heritage Brief took aim at what he saw as a rash of misbehavior in the ranks — everything from sex assault and hazing to monkey business in the war zone — and called for Marines to hold one another accountable when they screw up.

Rios, a forward observer with 3rd Air Naval Gunfire Liaison Company, was charged in 2011 with conspiring to steal $3,000 through bogus travel claims.

Law and Order: SVU has a new episode titled “Military Justice.” A full rundown of the episode is here (spoilers galore), and includes this:

Amelia [alleged rape victim] comes by the precinct after word of the arrests [of those she accused]. Just as she begins to open up about the female hazing that takes place on the base, several officers barge into the office, arresting Amelia for fraternization, disorderly conduct, and adultery. They drag her out of the office. Shocked, Liv doesn’t understand how they can charge her with adultery when she’s single. Barba explains that since Lipitt is her junior, he won’t be charged. What’s more, now that she’s been charged, the charges against the men will be dropped. The next step will be an Article 32 hearing — which is like a grand jury, except that they can ask anything they want. As if a grand jury wasn’t traumatizing enough.

And there are multiple stories about an apparent shift (and who didn’t see this coming) in the focus of effort to “reform” the military justice system. From this Stars and Stripes story:

“We’re considering focusing the amendment on sexual assault and rape in response to some suggestions by undecided senators,” Gillibrand, who chairs the Senate Armed Services personnel subcommittee, told reporters. “We already have a majority on our current bill. … We may need 60 (votes) and we’re looking intently to undecided colleagues about what makes the bill stronger.”

Emphasis added. The story also notes:

Military officials said setting up the new independent office would cost about $113 million a year, including salaries for about 600 attorneys and support staff.

Finally, in news from the Naval Academy, the Associated Press got their hands on a copy of the Investigating Officer’s report in the former football players sexual assault case. An excerpt from this Washington Times story:

“As difficult as it would be for the government to prove beyond a reasonable doubt that (the alleged victim’s) professed lack of memory at the time Midshipman Graham engaged in sexual activity with her was due to her being substantially incapacitated, the government’s task becomes extremely more difficult, if not impossible, due to the heavy damage done to (the alleged victim’s) credibility at the Article 32 hearing,” Cmdr. Robert Monahan, the investigating officer in the case, wrote in his report to Miller.

The story continues with a comment from Susan Burke:

Susan Burke, an attorney for the alleged victim, said military prosecutors in the case are inexperienced and said officials should at least add more prosecutors to the trial team.

“There is no effort to get a win here — none,” Burke said.

Someone please help me out. What does Ms Burke consider to be “a win?” Because last I checked:

The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.

Berger v. United States, 295 U.S. 78, 88 (1935).

Hey. Why are you laughing?

US District Court Declines to Intervene in USNA Court-Martial

Here (AP via ABC News) is coverage of US District Judge Ellen Hollander’s decisin from the bench today declining to intervene in the court-martial of three former USNA football players at the request of the alleged victim’s counsel, Susan Burke. She reportedly stated, “I think for me to stick my nose in the Navy’s business right now would be a far cry from appropriate.”

Burke sought to have the court remove [USNA Superintendent VADM Mike] Miller from deciding whether the case of the three former football players, Tra’ves Bush, Josh Tate and Eric Graham, proceeds to a court-martial. She contends the superintendent is biased against her client because he thinks the case reflects badly on the academy and his leadership.

“He’s angry at the victim for speaking out,” Burke said.

Hollander noted that Burke went straight to federal court, without first seeking relief in the separate military system. The judge said Burke was asking the court to “micromanage the investigation.” She also said the request “trivializes the importance” of having a separate military justice system.

Doe v. Superintendent USNA Complaint

Here is a link to the Complaint filed by Susan Burke on behalf of the victim in the Naval Academy sexual assault Art. 32 hearing held last week.  Thanks to many for forwarding it.

Victim’s Counsel Files District Court Lawsuit to DQ USNA Superintendent

So Susan Burke has gone from witness in the Art. 32 hearing to advocate asking the Superintendent to disqualify himself, AP (via ABC News) report here:

A midshipman accusing three former U.S. Naval Academy football players of sexually assaulting her at an off-campus toga party has asked in a federal lawsuit for the school’s superintendent to remove himself from deciding whether the men will be court-martialed, her attorney said Thursday.

The suit filed in Maryland seeks a court order directing Vice Adm. Michael Miller to recuse himself, Attorney Susan Burke said. It says that as the head of the school, Miller is likely to be biased and that he did nothing to prevent lengthy and abusive testimony during a military court hearing on the accusations.

Ms. Burke has interesting notions of standing so this should be . . . interesting, see Cioca v. Rumsfeld here and here.  H/t LB

Military Justice News for Jun. 18, 2013

The Manning case will take a hiatus from testimony as Judge Lind hears oral arguments on evidentiary issues today and the government and defense negotiate witness statements for witnesses that are unable to appear. Coverage from AP (via WaPo) here

Arguments in the CCR lawsuit in D.Md. district court were held yesterday, AP (via ABC News) reports here. It would appear that the Army’s proposed 2 day turn around time on documents from the case will satisfy the district court. Now why can’t the Army do that in all courts-martial?

Here’s a headline I couldn’t have predicted “Pending Hasan trial having positive economic impact,” see Temple Daily Telegram here (subscription required).

Though a little dated, a San Antonio based Air Force recruiter, TSGT Jaime Rodriguez, was sentenced to 27 years in the brig for aggravated sexual assault and other charges stemming from contact with recuruits and potential recruits.  Texas Public Radio report here and AF Times report here.

Three Naval Academy football players are going to face an Art. 32 hearing for sexual assault charges stemming from an incident last year.  USAToday reports here that the investigation of the case was re-opened after the alleged victim retained a lawyer, Susan Burke, and cooperated with investigators.  The report states that “that one of the accused football players told the victim not to cooperate with NCIS and that the academy closed the investigation in 2012, citing the victim’s unwillingness to cooperate as the reason.”

In the rocky legal terrain


Ms. Burke’s arguments in Cioca gained no traction, because in her own words her case was “based on rocky legal terrain,” which I thought the memorable phrase of the day.  Prediction is denial.  Nothing from the argument appeared to leave or create a suitable gem that could regain traction for a grant of a writ of certiorari.  So this litigation is about to be over.

The court: Judges Agee (M/Bush2), Niemeyer (M/Bush1), and Thacker (F/Obama).  They were a hot bench.  Although Judge Thacker did not ask any questions she was clearly attentive.

As best we could tell Ms. Burke was the only person involved in the litigation who was there.  We had thought there would be a number of supporters and media.

Just as Ms. Burke began the argument with her first emotional pitch of the day Judge Agee asked about the Coast Guard litigants.  Ms. Burke argued, “it was a complex question, that there had been a declaration of war, and that her clients had told her they were subject to the UCMJ,” or words to that effect.  However, she conceded they were likely not proper parties.  If the court does as predicted and denies the appeal, the answer to the question becomes irrelevant.  Ms. Burke still does not get it that a declaration of war and an authorization to use military force comes from Congress, but that an authorization to use military force is not a declaration of war.  Also, it is true that active duty members of the Coast Guard are subject to the UCMJ.  But that doesn’t mean they are in the Navy and thus the Department of Defense.

The judges were focused about separation of powers and the abstention doctrine.  That was the bulk of the questions.  Much reference was made to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), United States v. Stanley, 483 U.S. 669 (1987), and Chappell v. Wallace, 462 U.S. 296 (1983).  But at times Ms. Burke herself wandered into arguing matters that were APA or  injunctive relief related and other type claims not before the court.  The DOJ attorney took less than five minutes to make two points:  Ms. Burke had conceded everything, leaving some minor missed deadlines within DoD and some ignoring of Congressional directives as fault for the cause of action, and the APA related irrelevant arguments.  As counter-concessionary argument, Ms. Burke told the court DOJ had conceded everything she was raising, “at page 20 of their brief.”

Ms. Burke argued the case was unique (interspersed with emotional appeal) and in particular argued that the alleged offenses were not incident to service.  She also argued that money damages was a least intrusive remedy compared to injunctive relief.  To which Judge Niemeyer offered the idea that a Soldier hitting another in the jaw commits a crime, but the Secretary of Defense is not liable for that in his personal capacity for money damages.  Essentially Judge Niemeyer pointed out that there are processes in place to discipline and take care of these issues.  (There was no discussion or retort that current events show the in-house remedies ineffective and proof of the claim.)  Again the point was made that the litigants were asking for money not injunctive relief.  Judge Niemeyer acknowledged in some detail the sexual assault problem, which is where much of the discussion about the current fiascos came up.  (My Liege and I disagree a little on this.  His position, I think, is that the current matters are not relevant or evidence in the Cioca case.  My position is that while not formally announced, could not the court take appellate judicial notice of the ongoing crisis.)

The bulk of the questions highlighted concern that the courts were being asked to manage the day to day activity of the military.  As a basic principle courts don’t manage the day to day business of the military.  Questions emphasized that Congress is taking action, the military is taking action, and the President is taking action.  But, emphasized the questioners, Congress has not directed any judicial remedy in the federal courts relevant to the case before them.  The “go talk to Congress,” meme was clear if not directly said.  The judges’ views follow quite well this line from Stanley, “the fact that congressionally uninvited intrusion into military affairs by the judiciary is inappropriate.”  Stanley, 483 U.S. at 683.  And reading a little further into Stanley, and presaging DOJ’s counsel.

Similarly irrelevant is the statement in Chappell, erroneously relied upon by Stanley and the lower courts, that we have “never held, nor do we now hold, that military personnel are barred from all redress in civilian courts for constitutional wrongs suffered in the course of military service.”  As the citations immediately following that statement suggest, it referred to redress designed to halt or prevent the constitutional violation rather than the award of money damages.  Id., (citations omitted).

Ms. Burke raised the point that abstention is a prudential doctrine.  Again she was faced with questions that the Supreme Court has narrowed any exceptions to the doctrine, rehearsed the aversion to running the military on a day to day basis, and firmly restated the absence of a specific statutory remedy.  Toward the end of her argument Ms. Burke acknowledged that even if the case proceeded there may be “causation” problems in proving the case.

During Ms. Burke’s rebuttal there was an odd (I’ll call it odd) interchange where Judge Agee quoted from Dean Erwin Chemerinsky, (now at UC-Irvine, ML).  The judge asked her that a person such as Chemerinsky likely to be on her side.  And then he read a quote in which Chemerinsky is purported to have said that no Bivens action can ever lie for such military related cases.  The import being that even Dean Chemerinsky would deny the appeal.  To which Ms. Burke testified that she had talked to the Dean and he agreed with her position.

I commented on my own reactions to seeing Invisible War last year.  I noted a comment made by Ms. Kearl, a AAUW legal person involved and helping with the litigation of Cioca v. Rumsfeld.  The tenor of her remarks was that they did not expect to win.  And, she basically said, “She (meaning the attorney) doesn’t intend to win.  This is done for the media attention.”  The media attention is there, the litigation is not.  However, the litigation has certainly contributed to the effort to persuade Congress to act, even if current events had not been at the fore — “See Congresswoman, the courts won’t help us, please create a remedy, change the law, or something, the courts are closed to us, unbar the door,” or words to that effect.

Judge Niemeyer, observed that the D.C. court had just dismissed the Klay, et. al. v. Panetta, et. al.  Here is a link to the memorandum opinion of Judge Amy Jackson dated 7 February 2013, dismissing that case.

Accordingly, the Court will grant defendants’ motion to dismiss because Supreme Court precedent requires the Court to abstain from inferring a Bivens remedy for plaintiffs under these circumstances and plaintiffs have not overcome defendants’ entitlement to qualified immunity.8

(n.8.  While plaintiffs offered to amend their complaint during oral argument, Tr. at 31–32, they have never filed a motion to amend attaching any amended complaint, much less one that could – after the several chances they have had already – cure the problems at the heart of this action).

JOC, Judge Agee did ask Ms. Burke why neither Panetta nor Hagel were being sued, no good answer.

We will link to the audio when available – probably Tuesday.

Affirmative.  There is more to do on a road-trip than 25 minutes at the Fourth, besides it was an awesome top down day.  :-)

Here’s a link to some of the posts about TIW and Cioca.

Cioca’s counsel makes untenable filing at 4th Circuit

Susan Burke today filed this supplemental brief addressing whether those plaintiffs in Cioca v. Rumsfeld (including Ms. Cioca herself) who were Coast Guard members have standing to sue two former SECDEFs.

Her argument is untenable.  It is a matter of fact that the Coast Guard has not operated as part of the Department of the Navy at any point since 9-11.  Yet she says it has:

Two plaintiffs, Kori Cioca and Panayiota Bertzikis, brought claims against the former Secretaries of Defense, but not for claims that arose when the Coast Guard operated within the Department of Homeland Security. Rather, both Plaintiffs brought claims for events that occurred when this nation was at war.

During time of war, the Coast Guard reports to the Secretary of the Navy, not to Secretary of Homeland Security.   See 14 U.S.C.A. § 3, stating “Upon the declaration of war if Congress so directs in the declaration or when the President directs, the Coast Guard shall operate as a service in the Navy, and shall so continue until the President, by Executive order, transfers the Coast Guard back to the Department of Homeland Security. While operating as a service in the Navy, the Coast Guard shall be subject to the orders of the Secretary of the Navy who may order changes in Coast Guard operations to render them uniform, to the extent he deems advisable, with Navy operations.” See Louisville & N.R. Co. v. U.S., 258 U.S. 374 (1922) (those in the Coast Guard should be considered military “troops” during time of war); Edmond v. United States, 117 S.Ct. 1573, 137 L.Ed2d. 917 (1997) (“Congress has established the Coast Guard as a military service and branch of the Armed Forces that, except in time of war (when it operates as a service within the Navy), is part of the Department of Transportation. 14 U.S.C. §§ 1–3.”)

This nation has been at war. See Public Law 107-40, 115 Stat. 224 (September 18, 2001). For that reason, Plaintiffs Cioca and Bertzikis joined the litigation against the former Department of Defense officials.

Public Law Number 107-40 is not a declaration of war; rather, by its own terms, it’s an “Authorization for Use of Military Force.”  Nor does that statute direct that the Coast Guard operate as part of the Department of the Navy.  Nor has the President done so.  Thus, not only as a factual matter, but also under the very statute upon which Ms. Burke relies, the Coast Guard has not operated as a service in the Navy at any point since 9-11.  I can’t imagine what counsel hopes to gain by telling the Fourth Circuit something that is obviously incorrect.

Are you busy tonight?

The fayobserver has this interesting post today.

CBS will air “48 Hours: Honor to Dishonor” this Saturday at 10 p.m. The 42-minute show highlights the court-martial of Sgt. Brent Burke at Fort Campbell, Ky. last year and actually had some pretty good access to Army lawyers. I had a sneak peak of the program and, while there is no Fort Bragg connection, there are some similarities to a very well-known Bragg case.

New lawsuit filed against DOD by sexual assault victims

Yesterday was the day of the Hastings Women’s Law Journal forum on sexual assault in the military.  A parallel event was Susan Burke’s announcement that she had filed a new lawsuit against DOD on behalf of 19 sexual assault victims.  Each of the plaintiffs served in the Army or Air Force.  The defendants are the current Secretaries of Defense, Army, and Air Force and two former SECDEFs (Gates and Rumsfeld).  The suit was filed in the United States District Court for the Northern District of California.  Coverage of that lawsuit including a copy of the actual 49-page complaint, is available here.

Civil sexual assault litigation

I am in San Francisco enjoying the scenery and getting ready for a panel on sexual assaults in the military at Hastings College of Law on Friday.  And this came across my desk:

Sept. 25, 2012

Advisory: More Than 20 Vets to Allege Military Sexual Assaults; Rep. Jackie Speier to Join Survivors, Advocates for News Conference – Friday

SAN FRANCISCO, Calif. – A new lawsuit will be filed Friday in San Francisco federal court on behalf of more than 20 U.S. Army and Air Force veterans who allege they were sexually assaulted during their military service.

The sexual assault survivors, who are from a dozen states, will bring suit against Secretary of Defense Leon Panetta and the secretaries of the U.S. Army and the U.S. Navy, among others, alleging failure to protect them from rape and sexual assault while on active duty.

This is the fifth federal lawsuit of its kind filed by attorney Susan Burke whose work was featured in the groundbreaking documentary The Invisible War<>. Ms. Burke and the plaintiffs in the lawsuit will speak at a post-filing news conference. They will be joined by leading advocates from Protect Our Defenders and the American Association of University Women.

Congresswoman Jackie Speier (D-San Francisco/San Mateo) will also join the news conference to speak about her efforts in Congress to reform the military justice system and the way it handles cases of rape and sexual assault. In November 2011, she introduced H.R. 3435, the Sexual Assault Training and Oversight Prevention Act (STOP Act) that would create an impartial office made up of civilian and military experts within the military to review cases of rape and sexual assault. The bill has 133 bipartisan cosponsors.

• A post-filing news conference with lawsuit plaintiffs, their legal counsel, and leading advocates of reform of the military justice system.
• Congresswoman Jackie Speier will discuss the STOP Act and its status in Congress.

• Veterans participating in the lawsuit
• Congresswoman Jackie Speier<>
• Susan Burke, Burke PLLC<>, Washington, D.C., lead counsel for the survivors
• Katie Weber, Advocacy Board Member, Protect Our Defenders<>
• Kathleen Cha, Director, American Association of University Women<>

Friday, Sept. 28, 2012, 11:30 a.m. Pacific

TBA  Alumni Reception Center 
UC Hastings College of the Law
200 McAllister St., San Francisco, CA, 94102

In addition to the Ciaoca litigation and the litigation to be disclosed above you can see this FTCAclaim decision from federal district court in NC in Durden v. United States.  This relates to the Pernell court-martial that we followed for some time.  Here is an announcement of the Durden lawsuit.

Here is a selection of links to Pernell’s court-martial.

“The Invisible War”: uninformed, dishonest, or both?

I watched the documentary “The Invisible War” today.  I had already noted several discrepancies when I was struck by a graphic at the end of the movie stating that Secretary of Defense Panetta saw the film on April 14, 2012 and “two days later, he took the decision to prosecute away from commanders.”  No, no he didn’t.  That characterization reflects a fundamental misunderstanding of who continues to make prosecutorial decisions (military commanders of at least the rank of O-6).  A DOD news report on Secretary Panetta’s April 16 announcement emphasizes the point that prosecutorial discretion remains with commanders:  “That change will ensure that sexual assault cases receive high-level attention and that cases remain in the chain of command, Panetta said.”  How did the movie get that point — bragging about its own impact — so wrong?

That error is a blow to the film’s credibility — not that it had a great deal of credibility before that point.  Well, not that it had a great deal of credibility with me.  Based on the audible reactions in the Brookline, Massachusetts theater, most (and maybe all) of the rest of the audience were aghast with DOD as a result of the film.  Of course, there’s probably an enormous self-selection bias in who goes to see such a film.

It’s also understandable why an audience would be aghast.  While the film presents the stories of many alleged military sexual assault victims, Kori Cioca receives the lion’s share of the screen time.  She’s a former Coast Guard enlisted member who describes being raped by a superior.  She comes across as both sincere and sympathetic.  That said, no doubt there’s another side to the story, but that other side wasn’t presented by the film.  So the audience sees only the sympathetic former Coast Guard member who describes being abandoned by her command and who the film actually shows unsuccessfully attempting to obtain VA benefits as a result of her injuries sustained during the rape.

I’ll probably write more about the movie in a few days, but here are some of the problems.  The film maker shows the husband of a Marine officer who was allegedly raped talking about the power of the military commander.  To make the point about how much control the commander exercises, he says that the commander picks the players in the court-martial process, including the defense counsel.  Of course, that’s not true.  I don’t blame the husband for not knowing that.  But did the film maker not know that?  Or did he know it but include that false information without a correction anyway?  Neither answer to that question is a good one.

The film also has a voiceover while presenting a complex flowchart on handling of sexual assault allegations.  It refers to roughly 2,600 unrestricted reports and 700 and some restricted reports.  The voiceover says something like more than 700 complaints are shunted off as restricted reports so the perpetrators aren’t prosecuted.  But it isn’t the system that creates that result; it’s the alleged victim.  My understanding is that restricted reporting was adopted to provide greater control to alleged victims.  Yet the film didn’t portray it that way.  Rather, an uninformed viewer of the film would likely come away thinking that military commanders handed out more than 700 get-out-of-jail-free cards in the form of restricted reports.

Speaking of uninformed, the film includes a former NCIS agent providing a wildly inaccurate discussion of military crimes, felonies, and sex offender registration requirements.  During that discussion, a camera pans over a spreadsheet of sexual assault case outcomes, lingering on an acquittal.  The message seemed to be that we should be outraged that a servicemember who had been fully acquitted didn’t have to register as a sex offender.

The film opened with a graphic saying that all of the statistics in the movie came from U.S. government reports.  I’ll try to run some of those to the ground.  For now, let’s just say that some of the stats raised questions in my mind — and given other inaccuracies in the film, I’m unwilling to simply accept the stats on faith.

The film discussed a lawsuit filed by Susan L. Burke on behalf of Ms. Cioca and others against former Secretaries of Defense Rumsfeld and Gates for allegedly fostering an atmosphere that allowed the plaintiffs to be sexually assaulted.  Cioca v. Rumsfeld, No. 1:11-cv-l 51-1.0-‘l’CB (E.D. Va.).  The film once again evoked an audible reaction — almost a collective gasp — from the audience when it said that the case was dismissed on the grounds that rape is an occupational hazard of military service.  While the phrase “occupational hazard” wasn’t in quotes, the way the information was presented seemed to create the impression that that’s what the court said.  In fact, film critic Roger Ebert interpreted it in just that way in his review of the film:  “A recent court decision held that rape was an ‘occupational hazard’ of the job.”  Guess what?  Not only is that phrase not in the court’s ruling dismissing the case, but that concept is entirely absent from the decision, which I’ve linked here.

Here’s the judge’s actual rationale for dismissing the case:

In the present case, the Plaintiffs sue the Defendants for their alleged failures with regard to oversight and policy setting within the military disciplinary structure. This is precisely the forum in which the Supreme Court has counseled against the exercise of judicial authority. Where the Supreme Court has so strongly advised against judicial involvement, not even the egregious allegations within Plaintiffs’ Complaint will prevent dismissal. See [United States v. Stanley, 483 U.S. 669, 683 (1987)] (“[I]t is irrelevant to a ‘special factors’ analysis whether the laws currently on the books afford [the Plaintiff], or any other particular serviceman, an “adequate” federal remedy for his injuries. The special factor that counsels hesitation is not the fact that Congress has chosen to afford some manner of relief in the particular case, but the fact that congressionally uninvited intrusion into military affairs by the judiciary is inappropriate.”) (internal quotations omitted).

Cioca v. Rumsfeld, No. 1:11-cv-l 51-1.0-‘l’CB, slip op. at 2 (E.D. Va. Dec. 9, 2011) (second and third alterations in original).

It’s demagoguery to present that decision as a ruling that rape is an occupational hazard of military service.  And yet the film did.  That may tell us all we need to know about “The Invisible War.”  But I’ll bet it wins an Oscar.