The continuing saga of PFC Bradley Manning and his court-martial for releasing classified information continues.  CNET reports, here, that Wikileaks, who published some of the classified video Manning is accused of improperly downloading and releasing, denies it received classified State Dept. cables from Manning.  Manning is accused of improperly releasing at least 50 cables, including one recently posted on Wikileaks, and improperly accessing another 150,000 cables.  BradleyManning.org has a copy of an unsigned version of the charge sheet in the case here.  The charges are a mix of Art. 92, UCMJ specifications for violating the the Army Information Assurance reg, Army Reg. 25-2, and Art. 134, UCMJ specs for violating 18 U.S.C. 1030 (fraud related to computer access).

WRAL reports here that court-martial proceedings at Ft. Bragg have been delayed for Spc. Aaron Pernell who is charged in two on post break-ins and a sexual assault.  WRAL reports that Pernell is also linked to potentially six other attacks in the last 2 years.   With the pace of deployments, you don’t often see accusations of a serial anything against a member of the military these days.

In June, the [S]ecretary of the Navy upheld a ruling by a Board of Inquiry at Camp Pendleton that found Chessani was not guilty of misconduct but had shown “substandard” performance and should be required to retire but with no loss in rank.

CTV and the BBC report that a military panel acquited  the Canadian special forces officer accused of killing a detained insurgent on murder charges, in what he claimed was a mercy killing.  The panel reportedly also found Capt. Semrau guilty of “disgraceful conduct.”  See reports here and here.

Blog of the Legal Times, with a h/t to CAAFlog for breaking the story.

Suits and Sentences from McClatchy.

Judge Baker, writing for the Court, held that LCDR Diaz should have been allowed to put on evidence of his honorable motives in sending the detainee names to CCR to defend against the charge of Conduct Unbecoming an Officer.  Though finding error in excluding evidence of his honorable motives, the Court also found that the military trial judge’s exclusion of the evidence was harmless because the officer’s “obligations to adhere to naval and presidential directives regarding the handling of classified information” trumped any duty he felt he had to reveal the names of GTMO detainees. The Court held that the Supreme Court’s decision in Rasul v. Bush, which LCDR Diaz cited as the source of his duty to reveal detainee names, was not intended to “supersede in some manner [LCDR Diaz's] other legal and ethical obligations.”

On the irregular plea issue the Court did not take long to find that a plea to conduct unbecoming an officer for releasing “government information not for release” was not the same as releasing “classified documents.”  Thus, Judge Baker found that the military judge did not err in rejecting LCDR Diaz’s irregular plea.

The decision also rejected LCDR Diaz’s other argument which challenged the intent element of his conviction under the Espionage Act. In rejecting LCDR Diaz’s challenge to the intent element of his Espionage Act conviction, the Court credited the testimony of government witnesses that testified about the potential injury to the US posed by the information LCDR Diaz sent in the Valentine’s Day card. The Court also found that not only should LCDR Diaz have understood this potential injury, but that his surreptitious method of sending the names, placing them in a Valentine’s Day card, evidenced he likely did know the potential danger.

The issues, while fascinating for their political significance, are relatively run of the mill military justice issues–but between the snow storms and almost Malibu oral argument it was fun getting here.

What we do know is that al Qosi won’t be getting credit for time served, like Salim Hamdan did, and walking out of Gitmo any time soon. The plea deal specifically waived the right to time served–though the new Commission Manual fixed that issue after Hamdan’s essentially time served sentence. The plea, according to the NIMJ Blog, also waives al Qosi’s right to appeal his “detention, trial or sentence, the right to challenge his conviction on collateral appeal, the right to file a habeas petition.”

Eight-year-old Anthony DeWeese from the Rancho Penasquitos neighborhood of San Diego was killed and five members of the three families were injured. The boy died of “blunt force trauma,” according to the county medical examiner.

Witnesses alleged that the Coast Guard vessel was speeding recklessly. The Coast Guard initially said its vessel was rushing to help a stranded boat.

Sounds like a tragedy all the way around.

Ed. Note: Anyone know for sure whether wikipedia and wikleaks are related/unrelated? I have no idea and don’t mean to suggest above that they are. A: From the reading I did on the Metro the answer appears to be no relationship, but feel free to re-educate me.

NIMJ in US v. Blazier - Crawford/Melendez-Diaz Confrontation Clause issues.

NIMJ in US v. Medina - constitutionality of Art. 120(c)(2), UCMJ and the affirmative defense of  consent.

NACDL in US v. Blazier(UPDATED) – Crawford/Melendez-Diaz Confrontation Clause issues.

Oral argument was requested and denied in all three instances.

• Three more soldiers have been charged in the killing of three Afghan nationals, see Olympian story here.  See prior coverage by us here.  The official press release can be found here and the charge sheets are here.  The Olympian reports that the three killings were seemingly unrelated, at least in time:

According to charge sheets in the case released Wednesday by the Army, Morlock and Gibbs are charged with murdering Gul Mudin near Forward Operating Base Ramrod by throwing a fragmentation grenade at him and shooting him with a rifle sometime between Jan. 1 and Jan. 31.

The two also are charged with murdering Marach Agha by shooting him with a rifle on or about Feb. 22 near the same base.

And on or about May 2, they are charged with murdering Mullah Adahdad by throwing a grenade at him and shooting him with a rifle, also near FOB Ramrod.

It was unclear Wednesday how the three killings in three months were connected. I Corps spokeswoman Lt. Col. Tamara Parker said the circumstances will come out in the investigation.

• An Army Intelligence Analyst, PFC Bradley manning, remains in custody for allegedly leaking numerous classified videos and other information to WikiLeaks, including videos allegedly depicting US killings of Iraqi civilians.  See Wired story here.

Attorneys for a 3rd Infantry Division soldier accused of shooting two non-commissioned officers while all three men were deployed to Iraq in 2008 are asking a military judge to drop capital charges in a pending court-martial.

They claim two aggravating circumstances surrounding the incident were not properly listed on the suspect’s initial charge sheet.

I can only speculate that the error is of a Ring v. Arizona -like dimension as was raised in US v. Wade Walker(Issue XXXIX).  Knowing the guy who drafted that issue, I hope Mr. Gittins or other observers would forward any briefs or decisions on the issue to me at noman@caaflog.com so that I can send it along to him.

As I mentioned in my earlier post, the most interesting question in the case was whether the officer had an expectation of privacy in personal text messages sent through the service to the government owned pager.  Unfortunately SCOTUS avoided the issue, though stating that the interest they assumed was “limited,” and avoided establishing a single test to determine if there is a privacy interest in the government employee context, by finding that even if there was a privacy interest the search was reasonable.  SCOTUS will likely wait for a case to percolate up where the search is arguably unreasonable to decide the more interesting issue.  Here are some key portions of the opinion:

Even if Quon had a reasonable expectation of privacy in his text messages, petitioners did not necessarily violate the Fourth Amendment by obtaining and reviewing thetranscripts. Although as a general matter, warrantless searches “are per se unreasonable under the Fourth Amendment,” there are “a few specifically established and well-delineated exceptions” to that general rule. Katz, supra, at 357. The Court has held that the “‘special needs’” of the workplace justify one such exception. O’Connor, 480 U. S., at 725 (plurality opinion); id., at 732 (SCALIA, J., concurring in judgment); Von Raab, 489 U. S., at 666–667.

Under the approach of the O’Connor plurality, when conducted for a “noninvestigatory, work-related purpos[e]”or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “‘justified at its inception’” and if “‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of’” the circumstances giving rise to the search. 480 U. S., at 725– 726. The search here satisfied the standard of the O’Connor plurality and was reasonable under that approach.

The search was justified at its inception because there were “reasonable grounds for suspecting that the search [was] necessary for a noninvestigatory work-related purpose.” Id., at 726. As a jury found, Chief Scharf ordered the search in order to determine whether the character limit on the City’s contract with Arch Wireless was sufficient to meet the City’s needs. . . .

Because the search was motivated by a legitimate work related purpose, and because it was not excessive in scope, the search was reasonable under the approach of the O’Connorplurality. 480 U. S., at 726. For these same reasons—that the employer had a legitimate reason for the search, and that the search was not excessively intrusive in light of that justification—the Court also concludes that the search would be “regarded as reasonable and normal in the private-employer context” and would satisfy the approach of JUSTICE SCALIA’s concurrence. Id., at 732. The search was reasonable, and the Court of Appeals erred by holding to the contrary. Petitioners did not violate Quon’s Fourth Amendment rights.

For avid Court followers, an amusing exchange between Justice Stevens and Scalia over the relevance of a dissent in a 4-1-4 decision makes their concurrences worth reading.

A smattering of news from around the services:

This intriguing story from OregonLive about an Oregon National Guard soldier’s fight against some debilitating diseases and the Army over her prescribed use of medical marijuana to treat the side effects of the disease and chemotherapy has flown under the national radar. We’ll see if that continues. I’ll track it to see if there is another side to the story, though the fact that the soldier was given a Recruit Command job would seem to indicate that the mother of 3 was a decent soldier as well.

More Lakin news here. With these statements, possibly old ones, from Lakin’s counsel, Mr. Jensen:

Lakin’s attorney, Paul Rolf Jensen, told WND that of all the dozens of cases that have been brought to various courts over the issue of Obama’s eligibility, Lakin’s probably is the strongest yet.

He said that after the preliminary procedures but before the actual trial, there will be a time for the discovery of evidence.

“This is a criminal case,” he noted, with a possible punishment of several years in jail. “In order for a criminal defendant to defend himself in a criminal court he has to be given the opportunity to put on a defense. The records are relevant.”

He is right about at east one thing, this is a criminal case.

This story about two Navy Chiefs assisting some sailors with their advancement exams discusses the rarity of the underway court-martial. I am surprised that in the last 9 years the Navy hasn’t seen more of those.

[T]he charges against Morlock involve three separate events alleged to have happened between January and May at or near Forward Operating Base Ramrod in Afghanistan. She said she had no further details on the victims or circumstances.

[She stated that] other soldiers were being investigated but she could only discuss Morlock since he is the only one to have returned to the Washington state base. . . .

About 10 members of an Army unit based at Fort Lewis have been under investigation for as many as three civilian deaths in Afghanistan, along withother potential wrongdoing, a senior military official said last month.

The official did not have details of the investigation but confirmed that the 5th Stryker Brigade was under scrutiny.

Here are links to 2 earlier reports on the investigation, Seattle Times and Tacoma New Tribune.  The stories offer these add’l details, ”[t]he accusations focus on up to nine soldiers from the [5/2] Stryker Brigade . . . at Forward Operating Base Ramrod, a remote outpost west of Kandahar city;” and “[t]he soldiers initially were under investigation for drug charges . . . but that led to allegations that the unit had taken part in killing three Afghan civilians in a series of confrontations over several months . . .”

●  Without add’l comment I give you TPM’s primer on the LTC Lakin Art. 32 hearing, here, or is it a preliminary hearing in his court-martial (I couldn’t resist)?  The summary is actually pretty good, thanks in no small part I am sure to Michelle Lindo-McCluer’s professorial insights.  Phil Cave from CMTP is also quoted.

●  And, lastly, on the you think our justice system has problems front, I give you this which just shocked me when I read it, “[On Monday] in Sangin District [of Afghanistan], Taliban insurgents accused a 7-year-old boy of acting as an informant for the government and summarily executed him, the governor’s spokesman, Mr. Ahmadi, said. But the Taliban spokesman denied that the group was responsible for the killing. It was unclear if the execution was related to the military activities in the district on Wednesday.”

I had hoped (perhaps naively) that the dust-up earlier this year over the “al Qaeda 7” (and the emphatic response thereto) had finally put to bed the repeated attacks on lawyers that have arisen since Cully Stimson’s spurious critique of the role of D.C. law firms in Guantánamo litigation in January 2007. But so long as Congress is seriously considering language like this, it seems that such lawyers will continue to have to defend themselves as much as they (and in order to) defend the rights of their clients.

The reason I mention this passage is the reference to Cully Stimson and the “al Qaeda 7″ in the same sentence without  mentioning that Mr. Stimson has (a) apologized for his comments about Gitmo lawyers in 2007, see here, and (b) called attacks on the “al Qaeda 7″ and even use of the term “shameful,” see CAAFLog coverage here.  I am not sure what Prof. V. meant by spurious, but I don;t think it encompasses Mr. Stimson’s later expressed beliefs.

Second, here is some new commentary for and against Sec. 1037 and its attempt to give the DoD IG investigatory responsibility over defense lawyers in Gitmo detainee cases:

• NIMJ here
• Rep. Jeff Miller, R-FL (the bill’s sponsor) here

[Disclosure: I am a member of the NIMJ Bd. of Advisors]

[T]itled “Inspector General Investigation of the Conduct and Practices of Lawyers Representing Individuals Detained at Naval Station, Guantanamo Bay, Cuba,” instructs the Department of Defense IG to “conduct an investigation of the conduct and practices of lawyers” who represent clients at Guantánamo and report back to the House and Senate Armed Services Committees within 90 days.

Page 403 of the NDAA is where Sec. 1037 begins, see here.  Covered lawyers under Sec. 1037 include uniformed judge advocates and civilian counsel that represented Gitmo detainees.  The bill seems to be a resposne to the Fitzgerald investigation and facts leading up to it, see Newsweek here.  But, I agree with Prof. Vladeck that it is incredibly broad and could be read to sweep in almost every lawyer that ever practiced before the Commissions.

Here are some responses to Sec. 1037 of the FY2011 NDAA, ABA letter here and Prof. Vladeck at Balkinization here.

The charge of neglect causing prejudice to “good order and discipline” stemmed from a March 25th incident in which Menard’s personal weapon discharged twice as he prepared to leave Kandahar airfield on a Blackhawk helicopter accompanied by chief of defence staff Gen. Walt Natynczyk.

 A statement of circumstances said Menard’s rifle was on automatic, rather than safe, when he was preparing to depart and court heard that it fired within range of ten personnel near two armoured vehicles.

 Nobody was injured and Menard immediately asked for an investigation and told his troops about the incident — factors that should mitigate the sentence, prosecuting lawyer Lt-Col. Marylene Trudel told the court.

Ranjbar said an investigation found that the force that killed Qateh operated from Camp Gecko, in the hills outside Kandahar, a base for both US special forces and the CIA.

Officials in Kandahar said the militia supplies guards and is trained to work alongside special forces and intelligence officials in raids against Taliban targets.

“If you go to Kandahar, people say these guys pretend to be interpreters but they carry out night raids and assassinations,” said Ranjbar. “We hear lots of strange and shocking stories.”

He claimed that suspects arrested for the courthouse raid had confessed to being part of a 300-strong militia unit run by “Johnny”. They said they “could not move a muscle and could not leave their base without Johnny’s orders” Ranjbar said. “He was the head of the group and they [the Americans] were the ones paying them.”

Under the US exchange of notes with Afghanistan the warrant is probably ineffective, see our prior SOFA coverage here, but that might not stop locals from detaining the officer so I’ll keep an eye out for updates.  H/t to C-MTP.

Eugene R. Fidell, who teaches military law at Yale University, saw no harm in giving the material to the committee, as long as it is not publicly released. But he also said it could be become public record during the court-martial anyway.

“Why not release it?” he said. “I’m not convinced that Congress needs to hibernate while this case goes forward. This is going to be one of the most potentially watched court-martials in American history.”

The statement follows up on an earlier letter from Fidell after the Cmte. sent subpoenas to DoD for information about Maj. Hasan’s personnel files, see coverage here.  The Art. 32 hearing in the case is still scheduled for June 1.

In other news, here, a few congressmen are reportedly seeking to designate victims in the Ft. Hood shootings and a shooting in Little Rock, Arkansas by a gunmen alleged to have extremist Muslim views as “combat casualties” in the FY2011 NDAA.