Go Navy!  Beat Army!

Enjoy, and please report any problems.

The merger of NIMJ Blog with CAAFlog increased the size of the herd of commentators on this site.  I look forward to reading their commentary as I concentrate on some other endeavors over the next few months.  As always, I’ve very grateful to those of you who thought reading my electronic scribblings was worth the time it took to do so.

Unlike the old system, this method requires no math, so I anticipate more comments from Marines.

Please let us know if you have any trouble posting with this new system. As before, a valid email address (which will not be shared) is required to post a comment.

Happy Birthday, CAAFlog.

The Supremes dis the military justice system.  No other post could top this because no other post has landed us on the front page of the New York Times, resulted in an invitation for re-briefing of a SCOTUS case, or drawn a supplemental SCOTUS opinion.

And the rest of our favorites in no particular order.  We’ll see if we can come up with a voting system to rank the others, but for now they are just for your reading pleasure.

• A Glimpse at a Congolese Capital Court-Martial.    This features reporting from our fearless leader’s trip to the Congo with DILS and pictures from a Congolese capital court-martial.
• New NMCCA Chief Judge.   And some posts are actually all about the comments.  This posts featuring a comment from Chief Judge Wagner (or at least a commenter identified as the Chief Judge) may have been one of the first times that we realized that anyone other than ourselves was reading the blog.
•  Top 10 military justice stories of 2008 — #10: The Army’s adoption of military justice additional skills identifiers.  Pretty bland, but again its another first of our annual review of the top military justice stories of the year as voted on by us.  Number one wasn’t bad that year, The Legal Aftermath of Haditha.
•  Court Martial News – Monday, now Tuesday, Roundup.  Serendipity made this a regular feature on CAAFlog.  First, No Man was out of town on vacation in Disney and had to collect MilJus stories in a news roundup due to lack of bandwidth.  Then CAAFlog is nominated for the 2008 ABA Blawg awards, based on the strength of our #1 favorite post.  And then, lo’ and behold, the ABA Blawg staff likes the roundup.  Voila, the Courts-Martial News roundup–now the Military Justice News roundup. 
• Leonard Perhaps The Most Important Decision of the CAAF This Century.  Some posts we just like because they remind us of days gone by, characters from the past, and entertaining posts.  Guert, where art thou?
• Rep. Burton Letter #2 in the SEAL Case – Fact or Fiction.  Some of us liked this one.  It falls into the rants category that we created after complaints that posts weren’t distinguishing between substance and rants.  Some of our other infamous rants can be found here (on NMCCA Courtrooms) and here (on CCAs generally).
• ABA Museum of Law – We Tour It So You Don’t Have To.  We all seemed particularly proud of our rants.  This post takes the ABA Museum to task for various inaccuracies and bad museum-ship.
• Confronting Confrontation in Cabrerra-Fratinni.  I make no comments because the appellant was my former client.  Others among the contributor roll liked this post.
• New Designation.  Awards and Honorary Titles are now a staple here.  This one honored then Judge, now Contributor, Air Force colonel Christopher Mathews the status of Judge Mathews the Greatest (JMTGst).  We’ve bestowed ”The Great” status to other military jurists, here, and will find other titles for the deserving MilJus practitioner.
• Golden CAAF II.  Perhaps our greatest award is the Golden CAAF–mainly because Marcus Fulton actually went out and purchased a likeness of a “Golden CAAF” in the form of a trophy.  In this post the “Golden CAAF II” is pictured in the Suez Canal.  Golden CAAF I was replaced by GC2 after GC1 was awarded to Code 46, here, for obtaining certiorari in Denedo v. US. 
• Thinking about House, Denedo, and review of subjurisdictional contested convictions.  In one of a number of our fearless leader’s “Thinking About . . . .” posts, others here and here, he takes on the uncommon combination of military justice SCOTUS case and the sub-jurisdictional court-martial.  Bold.  Plus, its about a MilJus SCOTUS case, how often will that happen?
• United States v. Lane. Gotta be big, it was the first.  Needless to say, though it dealt with one of the most significant cases of the 2006 term, Lane has since been cited in exactly 1 CCA case and 3 CAAF opinions (if you count the denial of reconsideration in the same case).
• Breaking News:  Contractor Charged Under UCMJ.  While not quite like our #1 story, our sources did give us quite a scoop in the first Art. 2(a)(10), UCMJ court-martial of a civilian. [someday we'll have to go back and fix all of those broken GoogleApps links] 
• Synopsis of Wednesday’s McCabe Proceedings.  This was CAAFlog’s first on-site reporting of a court-martial.  A feat that we thought could not be topped.  The controversial courts-martial of three Navy SEALs for allegedly assaulting terrorist leader Ahmed Hashim Abed while in US custody also provided great blog fodder.
• United States v Lakin Liveblog V.   But we did top it, liveblogging from the LTC Lakin spectacle.  We could have picked any of our LTC Lakin trial posts, but this one garnered a staggering 249 comments.  Others didn’t do bad with 100 or so comments, here and here.   
• CAAFlog and NIMJ Blog join forces.  Our recent collaboration makes the list because it ensures our continued existence and will bring new perspectives and surely lots of comments with it.

We’re excited to join CAAFlog on a new platform that promises to share our collective interest and expertise in military justice with a broader audience. This collaboration will help NIMJ further its mission of promoting the fair administration of military justice and public education while creating an opportunity for more synergy and interaction. We look forward to realizing the potential gains of the combined site, and we’re grateful for the support of CAAFlog’s Michael Navarre (who doubles as an NIMJ advisor), Dwight Sullivan, and Zachary Spilman for their support.

Our new site also has some new features, some of which we’ll preview here and others that we will roll out by way of later posts. However, let’s for a moment talk about the name. The name of the new blog was a highly debated issue, but we finally settled on the logo reflected above. Much like Oriole Park at Camden Yards, you can call us whatever you want, but two things will remain constant: (1) topical military justice news and knowledgeable views and (2) our web address, www.caaflog.com. If you are here because you were a fan of NIMJblog, do not fear: we’ve redirected NIMJblog to our address and archived all the old NIMJblog posts on the right side of our home page under“Categories,” just select “NIMJ Archive.”

Another constant will be our policy that posts represent the views of the author and not of CAAFlog, the other contributors, or any organization or entity with which an individual author might be associated. You can now add NIMJ and its advisors, directors, and other minions to that list. CAAFlog contributors who double as NIMJ advisors are particularly adamant that their posts don’t necessarily represent NIMJ’s views and posts by others affiliated with NIMJ in turn don’t represent the views of other NIMJ-affiliated contributors. We’ll see how widely our range of contributors expands with the new site and, maybe, some of our previously invited guest bloggers will now take up the keyboard and make a post or two (you know who you are).

We also want to take this opportunity to reiterate our comments “policy,” see here and here, that we discussed earlier this year.  We will not tolerate abusive comments, uncivil comments, personal attacks, inappropriate comments, etc., etc.  And we continue to prohibit anonymous comments but will permit commenters to register under a pseudonym, as described in our prior post.

We hope the new site and new contributors make us the best resource—and an occasional source of humor—for MJWs across the globe.

One of the victims, Mari-Rae Sopper, was a friend of many of us at CAAFlog from her time at the Navy-Marine Corps Appellate Defense Division.  During CAAF’s memorial proceeding, Hardy Vieux spoke about Mari-Rae.  Rereading what he said caused me to both smile and grieve.  Here are Hardy’s very apt words:

“You are born and oh how you wail.  Your first breath is a scream, not timid or low but selfish and shattering with all the force of waiting nine months under water.  The rest of your life should be like that — an announcement.”

Good morning, Chief Judge Crawford, Judges of this Honorable Court.  That quotation I just recited to you encapsulates the life of Lieutenant Mari-Rae Sopper.  Her life was always an announcement.

Her enthusiasm was her chosen means of announcement.  To know Mari-Rae was to know her enthusiasm and her insatiable spirit.  She was in every sense of the word an advocate.  First, as a trial counsel and then later as an appellate defense counsel, Mari-Rae, like so many others that preceded her, fought to ensure that the military justice system in which we operate produced fair and just results.  Whether it was challenging the constitutionality of non-unanimous jury verdicts or concerning herself with the intricacies of the post-trial process, Mari-Rae would not yield in her attempts to advance her cause as well as that of her clients.  She gave expression to their anguish, eloquence to their plight, dignity to their circumstances, and consideration to their contentions.

Time and again she announced that she stood for equality and would not tolerate those who sought to denigrate others on grounds of gender, race, ethnicity, or religion.  She understood that the test of our time was being able to move from equality in the abstract to equality in significant results.  From lively office exchanges to participation in community activities, Mari-Rae continually reminded us that silence is acquiescence, and she could not and would not remain silent.

She upheld the high standards of service.  Her commitment to the integrity of our justice system will long be remembered by all those whose lives she touched.  But Mari-Rae was more than just our colleague; she was more than just a naval officer.  For many of us she was a friend, for some of us she was a teacher.  By example, she taught us that compassion and humility were the ways to go and in her doggedness one could sense a determination to prove wrong all those that underestimated her Herculean heart and small frame.  For that was the only thing small about Mari-Rae.  Her ideas were big, her aspirations were even bigger and her sense of loyalty was boundless.  With her striking hair, green eyes, and unmistakable voice, Mari-Rae set about leaving her imprints on the world.

The law was her vocation, her avocation, and her true passion was gymnastics.  As a former college gymnast and a coach, Mari-Rae could express her individuality in her routines while contributing to the efforts of her team.

Although today we meet because of the death of our friend, our thoughts are not on her death but on her life and on the example and guidance and profit we get from introspection about the effervescent life.  And although the national tragedy of September 11th took her from us at a mere 35 years old, she lived a full life.  I have but faith, for I cannot know where she may be, but I do know that wherever she is, she has announced herself.

Then, yesterday I read this Comment under our fearless leader’s post on the slow year the CCAs are having as measured in published opinions:

Maybe it’s because even they recognize that what they’re writing these days is generally worthless drivel, hence its “non-precedential” value. Most of the time they can’t even state the “facts” accurately, and it goes down hill from there.

First, I’d like to say that I encourage commenters to say what they want about the substantive merit of Courts of Criminal Appeals’ opinions, and this blog has said much about the substantive merit of many CCA opinions.  But, lumping all of the CCA judges and their opinions together and calling them “worthless drivel” is not what we expected from our blog readers.  I know for a fact in the last year we have commented on the quality of majority and dissenting CCA opinions, e.g. here, here, and here.  And, in fact, we have elevated certain recent CCA jurists to the “The Great” status in light of their contributions to the judiciary–and I doubt Judge Ham will be the last.  So I was disappointed that one of our long time commenters felt the need to make that comment.

I know that by expressing my disappointment and making this isolated comment the topic of a post I have now given it more recognition than it would have had otherwise, but I felt the need to remind our commenters that pseudonyms are not permitted here so that authors can hide behind them to take overly generalized and unwarranted pot shots at the military judiciary, or any other group for that matter.  They are permitted because we know that the military judge advocate community is not homogeneous and there are disparate views about commenting or asking questions on a public blog.  Please keep that in mind and don’t make comments that you wouldn’t make under your own name if that issue were not in play.  Thanks.

• We have 1,750 visits by 1:00 pm–only happened 5 times before, all during the Lakin trial.
• My post that included the news about Pres. Obama’s birth certificate with real military justice news has a quarter as much traffic as JMTG’s post on just the birth certificate news.
• Other Lakin posts have nearly as many hits as posts from earlier this week.

Someone please explain, why again would we want to stop talking about the LTC Lakin case?

As our regular readers may recall, until fairly recently, we allowed open comments with no moderation, with the exception of attempting to block posts by three specific commenters who had been repeatedly over-the-top inappropriate in previous comments.  Due to repeated scurrilous anonymous drive-by comments, we shifted very briefly to a period where comments could be posted only under the commenter’s actual name.  After my CAAFlog colleagues beat me into submission, we adopted our current policy of allowing comments to be made under the individual’s actual name or a “registered pseudonym.”

Two of the effects of the changed policy were anticipated.  First, in the wake of the new policy, comments dropped off sharply.  The number of comments seems to have increased somewhat, though to nowhere near the volume during the period when comments were almost entirely unregulated.  Second, the ratio of civil to uncivil posts has improved markedly since the new policy was put in place.  What surprises me is that our other metrics appear to be basically unchanged.  We’re getting about the same number of hits, unique readers, and page views that we got before the change in policy.  In fact, this last Wednesday, we had a huge spike in readership, which I assume resulted from interest in the Kabul Klipper’s analysis of CAAF’s Prather opinion and the comments to that analysis.  So it’s gratifying to see that our readers seem to think our site still has something to offer even with the reduced flow of comments.

Even before the recent comment brouhaha, I had been considering retiring from blogging.  But I’ve decided that with several major military justice cases on the horizon — including the Hasan and Manning courts-martial — I’d like to continue for the time being.  So after the hiatus that I mentioned in today’s This Week in Military Justice, I’ll be tickling the keyboard once again.  As always, I’m sincerely grateful to those who spend a precious finite resource — time — reading what I have to write.

NOTE: We retain the right to reject pseudonyms for email addresses that we can’t identify with real persons or we identify with real persons that we believe will abuse our non-abusive comment policies. So if we don’t know you and you want to comment pseudo-nonymously I’d suggest you do something to allay those fears in an email. If we end up accepting and then unapproving serial pseudonyms we’ll probably either scale the policy back to requiring real names or . . .

These questions call to mind Professor Stanley Fish’s recent opinion piece Anonymity and the Dark Side of the Internet.  Professor Fish wrote:

The practice of withholding the identity of the speaker is strategic, and one purpose of the strategy (this is the second problem with anonymity) is to avoid responsibility and accountability for what one is saying. Anonymity, Martha Nussbaum, a professor of law and philosophy at the University of Chicago observes, allows Internet bloggers “to create for themselves a shame-free zone in which they can inflict shame on others.” The power of the bloggers, she continues, “depends on their ability to insulate their Internet selves from responsibility in the real world, while ensuring real-world consequences” for those they injure.

That is an apt description of some comments we’ve seen recently on CAAFlog, none better demonstrating this phenomenon that anonymous attacks launched against Charlie Gittins during a discussion of CAPT Honor’s detachment for cause.  A poster appeared to be attempting to harm Mr. Gittins’ business from behind a veil of anonymity, insulating himself or herself from responsibility in the real world while attempting to inflict real-world damage on Mr. Gittins.  Those comments answer the question I started with; they were dishonorable.  And it angers me that a blog that I help administer was used for that dishonorable purpose.

The Internet, of course, is a wide-open place and anyone can upload content on the Internet saying anything he or she pleases.  Heck, there’s even a website that devotes itself to, among other causes, attacking CAAFlog.  (I find it surprising that anyone cares enough about what we say in our little gabfest to go to the trouble, but the author certainly has the right to attack us.)  Anyone who wants to could set up a website to post anonymous personal attacks against military justice practitioners and judges.  But we at CAAFlog have no obligation to host such content.

There are a number of ways to try to prevent this blog from becoming a vehicle for such attacks.  In the past, from time to time contributors to this blog, including me, have posted calls for greater civility in comments.  This has generally led to more professionalism for a few weeks followed by backsliding.  Simply put, that approach has proved inadequate.  At the other extreme is the SCOTUSblog approach — comments could be disallowed entirely.  But shutting out voices other than those of authorized contributors would deprive us of a great deal of useful information and helpful perspectives.  I wouldn’t see the point of blogging without engaging in an exchange of ideas.  There are also less draconian possibilities, such as moderating comments.  But, among other problems, comment moderation is time consuming.  I’m already considering hanging up my blogging keyboard, in part because of the amount of time that I spend on it; I certainly don’t want a solution to the civility problem that results in spending more of my time on CAAFlog. 

The alternative solution I came up with is requiring posting under individuals’ real names.  I think such a policy would weed out the vast majority of inappropriate comments.  Of course, it’s also a certainty that such a policy would pull out some flowers along with the weeds; it would no doubt result in the loss of some beneficial comments that otherwise would have been posted.  Some individuals for whom I have great respect have already indicated that they’ll be reducing or eliminating their comments.  That represents a real loss.

The new policy may stifle discussion to such an extent that the comment section would become almost as arid as no comments at all.  If so, that will suggest to me that this blog has run its course.  We’ve been at this for almost 4-1/2 years now.  When the No Man, the Kabul Klipper, Super Grover, and I started this in 2006, I think we all would have bet against CAAFlog still being around in 2011.  I have very much enjoyed participating in this project, I’ve learned a great deal from my colleagues and the comments, and I’m sincerely gratified that there’s anyone out there who cares enough about what I have to say to read some of my posts.  But even before my concern about some of the recent comments on the blog, I thought it might be time to move on.  That feeling would certainly be reinforced if it proves impractical to adopt a comment system that promotes helpful and/or interesting comments while deterring abusive comments.

Here’s what I suggest.  In mid-February, I’ll be going on a DIILS trip that will result in me being completely offline for about 2-1/2 weeks.  Let’s have a test period until then.  When I get back, my colleagues and I can evaluate how the new policy has worked and determine the best COA in light of that evaluation.

I’ll be posting more about this and the reasons for the changes this weekend.  But because there are now a number of comments hung up in moderation due to our initial stabs at installing the technology to implement the new policy, I wanted to let everyone know about the policy change.

As always, we value the feedback and we welcome suggestions to make the site more user friendly.

I plan to spend the rest of my day on the three “F”s:  family, food, and football.  Please check back tomorrow for new content.

CAAF also granted review in two Army cases on Friday and one today–one with a Jones LIO issue and two with M.R.E. 412 issues.  We’ll be posting the granted issues shortly.

CAAF also issued an interesting order on Friday that we’ll post.

And finally, at least for now, the No Man notes below that LTC Lakin’s website has announced that a petition for writ of mandamus has been filed on his behalf with the Army Court of Criminal Appeals.  We’re trying to get a copy, but if anyone has a copy or link, please let us know.  As always, you can post a comment below or contact us at caaflog@caaflog.com.