CAAFlog » Collateral Review

The decision in Klay et al. v. Panetta et al., No. 13-5081, slip op. (D.C. Cir. Jul 18, 2014), released today affirms the DC District Courts dismissal of Bivens claims against the military chain of command by a group of servicemembers that “allege that they were raped, sexually assaulted, or sexually harassed by their fellow Sailors and Marines, only to suffer retaliation from their superiors for reporting their plight.” The COurt affirms on grounds we’ve previously discussed from Chappell v. Wallace, 462 U.S. 296 (1983), here and here.

McClatchy report here.  Our prior coverage here (DDC dismissal) and here (use of Klay case in the Invisible War). Judges Rogers, Griffith, and Srinivasan file dthe opinion, with Judge Griffith filing a concurring opinion.  His concurrence takes a shot at counsel for the petitioners for raising a claim that SecDef Rumsfeld failed to follow an Act of Congress without a factual basis for it.

 

WARNING, this might be considered a defense oriented post.

How silly does it get. Across the transom today I received these linked documents.

http://www.caaflog.com/wp-content/uploads/LTC-Morse-v.-LTC-Biehl-and-COL-Agarl-order-granting-motion-to-withdraw.pdf

http://www.caaflog.com/wp-content/uploads/LTC-Morse-v.-LTC-Biehl-and-COL-Agar-writ-of-prohibition.pdf

http://www.caaflog.com/wp-content/uploads/LTC-Morse-v.LTC-Biehl-and-COL-Agarl-brief.pdf

On 23 April 2014, ACCA issued a Order in Morse v. Biehl and Agar, Army Misc. 20140294 (23 April 2014).

(Update:  the command rescinded the order to petitioner and his counsel.)

The Order granted petitioner’s request to withdraw the petition.  And yes, this is the sexual assault case of LTC Morse.  COL Agar is the SJA MDW if you didn’t know. So why all the fuss.  The attached filings may help understand the unfathomable.  I will liberally copy from the petition and brief in support and you may decide for yourself, and then decide if I have correctly titled this post. The brief begins:

In this case, the government has taken the extraordinary action of ordering the Petitioner and his assigned Trial Defense Service counsel to cease and desist in engaging in any investigation of the allegations against Petitioner, without a factual predicate of malfeasance, and simply at the behest of the purported victim.  (Emphasis in original.)

Assuming the facts to be true, the facts also document the biased and ineffective CID investigations all too common in sexual assault cases, and how effective defense investigations can develop helpful information ignored or unlooked for by “trained investigators.”  (See references to tunnel vision at this post.)

A service member convicted by a court-martial and serving a sentence to confinement in a military brig can earn various confinement credits including earned time (ET), good conduct time (GCT), and special acts abatement (SAA). GCT is the most common, and is earned automatically at the rate of 5 days of GCT credit for each month served, pursuant to Department of Defense Instruction (DoDI) 1325.07. The credits are applied against the time to serve, and the prisoner is normally informed of a computed “minimum release date” that can be significantly ahead of the end of the full term of confinement.

For example, an accused sentenced in 2003 to an unsuspended term of confinement of ten years might reach his minimum release date just six years later, in 2009, and then be released from confinement. Such was the case for one Mr. James Banks, who “served nearly twenty years in the Air Force before authorities learned that he had sexually abused his young daughter. When they did, the authorities initiated a court martial proceeding. The court ultimately found Mr. Banks guilty of various sex crimes, sentenced him to ten years in confinement, and he was dishonorably discharged. Following his court martial, Mr. Banks waived his right to appeal through the military court system and began to serve his sentence at Fort Leavenworth.” Banks v. United States, 431 F.App. 755, 756 (10th Cir. 2011) (slip op. avail. here).

The 10th Circuit considered Mr. Banks’ case because when he reached his minimum release date in 2009, he was released from Fort Leavenworth under the mandatory supervised release (MSR) program. MSR is an involuntary parole under the supervision of a U.S. Probation Officer. Military prisoners selected for MSR who refuse to participate in the program may forfeit all earned confinement credits, and could even face additional punitive action. Conversely, participation in the program constitutes acceptance of its terms and a waiver of all earned confinement credits. See DoDI 1325.07, para. 20.b.(4) and (5).

In other words, the prisoner who expects release at the “minimum release date” may instead be surprised by the choice of either more confinement or a close working relationship with a federal probation officer.

Mr. Banks wasn’t exactly thrilled with these options.

Read more »

Here is WaPo coverage of the latest turn in the Marine Corps’ bad publicity machine that.  Maj. James Weirick has filed a complaint with the Information Security Oversight Office, which oversees classification procedures across the federal government.

The former head of that office, J. William Leonard, endorsed his complaint.

“I am extremely concerned that the integrity of the classification system continues to be severely undermined by the complete absence of accountability in instances such as this clear abuse of classification authority,” he wrote in a letter to the agency’s directory, John P. Fitzpatrick.

And the drama continues.

Here is a letter on behalf of Capt. James Clement sent to the DoD IG asking him to address UCI by the Commandant in the handling of the corpse desecration cases in Afghanistan.  Pro bono counsel for Capt. Clement are the co-leader of Akin Gump’s white-collar practice, John Dowd, and a Senior Counsel from the firm, James Osborne.  Mr. Dowd is himself a former Marine Corps’ JA.  He’s previously represented Sen. McCain in the Keating 5 investigation and wrote the “Dowd Report” on Pete Rose for MLB Baseball.

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.

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

Here is a link to the cover story of this week’s Marine Corps Times.  The article, titled, “Whistle-blower alleges reprisal by Marine brass, says he won’t back down,” tells the tale of USMC judge advocate (and CAAFlog commenter) Major James Weirick.  It details his run in with other USMC judge advocates relating to alleged UCI in the Marine Corps’ prosecution of the corpse desecration cases in Afghanistan and his DOD IG complaint.  H/T Babu

CAAF today issued a 3-2 decision in LRM v. Kastenberg concluding that the trial judge erred by denying A1C LRM, the alleged victim of a sexual assault, the right to be heard through counsel at the accused’s court-martial, and that the Air Force CCA erred in concluding it lacked jurisdiction to hear A1C LRM’s appeal.  Chief Judge Baker delivered the decision of the court, with Judge Ryan dissenting and Judge Stucky concurring in part and dissenting in part and in the result.

CAAF did not issue the requested mandamus, but instead “returned [the record] to the Judge Advocate General of the Air Force for remand to the military judge for action not inconsistent” with CAAF’s opinion.

Lots of analysis to follow.

CAAF now has only one case left from this term:  United States v. Salyer. 

Here is the SCOTUS decision in US v. Kebodeaux, No. 12-418:

The upshot is that here Congress did not apply SORNA to an individual who had, prior to SORNA’s enactment,been “unconditionally released,” i.e., a person who was not in “any . . . special relationship with the federal government,” but rather to an individual already subject to federal registration requirements that were themselves a valid exercise of federal power under the Military Regulation and Necessary and Proper Clauses. But cf. post, at 1 (SCALIA, J., dissenting). . . .

We conclude that the SORNA changes as applied toKebodeaux fall within the scope Congress’ authority underthe Military Regulation and Necessary and Proper Clauses. The Fifth Circuit’s judgment to the contrary is reversed,and the case is remanded for further proceedings consistentwith this opinion.

Justices Scalia and Thomas dissented.

Here is US District Judge Ellen Lipton Hollander’s opinion in the CCR case.  From the “Conclusion” section of the opinion denying CCR’s request for a preliminary injunction:

In sum, as to certain aspects of plaintiffs’ claims, I do not find that there is a substantial likelihood of success on the merits. And, in light of the actions taken by defendants after this case was filed—to release documents, to commit to expedited release of documents going forward, and to permit unofficial transcription of proceedings by privately retained stenographers—I do not see a substantial likelihood of irreparable harm in the absence of a preliminary injunction. Under these circumstances, the balance of the equities and the public interest do not favor granting a preliminary injunction.

In considering the equities of the case and the public interest, I am mindful of the keen public interest in the court-martial, the right of public access to such proceedings, as well as the extraordinary nature of the relief plaintiffs seek. They ask this Court to intervene collaterally in an ongoing court-martial and issue dictates to the military judge conducting the proceedings, in regard to the management of public disclosures. In light of the measures that defendants have taken to provide the press and the public with access to the ongoing court-martial proceedings, such preliminary, equitable relief is not warranted here. Therefore, plaintiffs’ motion for preliminary injunction is denied by the Order that accompanies this Memorandum.

CCR v. Lind, No. 1:13-cv-01504-ELH, slip op. at 41-42 (D.Md. Jun. 19, 2013). H/t EF

The Washington Post reports in this AP story that the petitioners who sought access to the PFC Manning court-martial, and whose petition was rejected by the ACCA and CAAF on jurisdictional grounds, have refiled in U.S. District Court in Baltimore.

CAAF decided The Center for Constitutional Rights, Glenn Greenwald, Jeremy Sachill, The Nation, Amy Goodman, Democracy Now!, Chase Madar, Kevin Gosztola, Julian Assange, and Wiki[shhh] v. The United States of America and Chief Judge Colonel Denise Lind, No. 12-8027/AR, (opinion) (CAAFlog case page) on April 16, 2013, finding that the Appellants failed to establish that CAAF or the CCA has jurisdiction to grant the relief requested.

Here is a link to avid CAAF follower Mike Doyle’s post over at Suits and Sentences about the District Court opinion in the Luke case (opinion here).  Our prior coverage of the Luke case at CAAF is here and USACIL issues involving former USACIL analyst Phillip Mills is here.

One minor issue with the article.  The last paragraph:

In his decision issued late Thursday, Contreras said the military appeals court “carefully assessed” all the evidence presented, and he implicitly praised the “thoroughness” of the military court’s work, saying he would not “substitute (his) judgment” for that of the military courts.

The quote he is referencing is, using highly familiar language similar to APA cases, “The plaintiff is essentially asking that this Court reweigh the evidence and substitute its judgment for that of the military courts. This Court is not empowered or inclined to do so.”  As Judge Contreras notes, the standard of review for military cases in District Courts is “tangled.”  The opinion does its best to address the case from the varying standards of review to conclude no relief is warranted, but I don’t know if that concluding paragraph was really meant to praise the CAAF opinion.  Rather it is probably aimed at repeating the standard that District courts should not re-evalaute the case when the military courts have reviewed it fully and fairly (or whatever standard actually applies).  H/t PC

Here is a WSJ report on the Kansas Supreme Court’s decision to disbar former LCDR Matthew Diaz. The court ignored recommendations that would have allowed Diaz to resume the practice of law.  See our prior coverage here. Here is a link to the opinion.

Here is news from the AP (via ABA Journal) that former LCDR Matt Diaz is fighting to keep his Kansas law license.  The ABA Journal writes that:

The Kansas Supreme Court will hear arguments today on a recommended three-year suspension for Matthew Diaz, the Associated Press reports. The suspension would be retroactive to 2008, making Diaz eligible for reinstatement. Diaz’s lawyer, Jack Focht of Wichita, supports the recommendation.

We’ll see if he gets reinstatement.  At least he can tell the reinstatement panel that he has a Ridenhour Truth Telling Prize for the conduct that got him suspended for three years–so he’s got that going for him.

H/t MLM