CAAFlog » Court-Martial News

We haven’t covered it much, but the Marines United scandal involves a Facebook group by that name where personal information and explicit photographs of current and former female service members were posted (generally for the purpose of bullying and harassment). An early news report about the scandal is here. A SASC website on the scandal is here, and video of a March 14, 2017, SASC hearing is available here. The story continues to develop.

The latest development came Tuesday, with the promulgation of a new Navy Regulation intended to target photo sharing like that in the Marines United group. In ALNAV 021/17 the acting SECNAV creates Article 1168, U.S. Navy Regulations, violation of which is punishable under Article 92:

1. Pending formal amendment to reference (a), this interim change adds a new article, Article 1168 to reference (a). This interim change is effective upon the release of this ALNAV.

2. Article 1168 of reference (a) is added to read as follows:

a. 1168. Nonconsensual distribution or broadcasting of an image

(1) The wrongful distribution or broadcasting of an intimate image is prohibited.

(2) The distribution or broadcasting is wrongful if the person making the distribution or broadcast does so without legal justification or excuse, knows or reasonably should know that the depicted person did not consent to the disclosure, and the intimate image is distributed or broadcast:

(a) With the intent to realize personal gain;

(b) With the intent to humiliate, harm, harass, intimidate, threaten, or coerce the depicted person; or

(c) With reckless disregard as to whether the depicted person would be humiliated, harmed, intimidated, threatened, or coerced.

3. Distribution means the act of delivering to the actual or constructive possession of another, including transmission by electronic means.

4. “Broadcasting” means the act of electronically transmitting a visual image with the intent that it be viewed by a person or persons.

5. An intimate image is any visual depiction, including by electronic means, that:

a. Includes another person who is identifiable from the depiction itself or from information conveyed in connection with the depiction;

b. Depicts that person engaging in sexually explicit conduct or depicts the private area of that person; and

c. Taken under circumstances in which the person depicted had a reasonable expectation of privacy.

6. “Sexually explicit conduct” is defined in Part IV, paragraph 68b, Manual for Courts-Martial (2016 Edition).

7. “Private area” is defined in Part IV, paragraph 45c, Manual for Courts-Martial (2016 Edition).

8. In lieu of entering this interim change in reference (a), make a bold letter notation after Article 1167 of reference (a), SEE ALNAV 021/17 and file this ALNAV in front of reference (a).

9. This interim change will be incorporated into the next printed revision of reference (a).

10. Released by Sean J. Stackley, Acting Secretary of the Navy.

The new Navy Regulation 1168 suffers from three obvious flaws.

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According to various news reports, Marine Major Mark Thompson (CAAFlog news page) received a sentence of confinement for 90 days and a dismissal after pleading guilty yesterday at a general court-martial to making false official statements and conduct unbecoming an officer and a gentleman.

This report published by military.com explains that:

Thompson’s sexual misconduct began in 2011, when he drank, played strip poker and had a threesome with one of the midshipmen and a fellow Marine officer.

He admitted to lying to officers at a 2014 board of inquiry in which he claimed his innocence and was allowed to stay in the Marine Corps. He also admitted to lying to a Washington Post reporter John Woodrow Cox about his involvement with the women.

Back in 2013, after a general court-martial found him guilty of the underlying sexual misconduct, Thompson was sentenced to confinement for two months and a fine of $60,000.

The report also notes that:

Under Thompson’s plea agreement, the court agreed to endorse his “request to retire,” a decision which will have to be reviewed by the secretary of the Navy, Greer [the military judge] said.

While it’s unclear what grade he could retired at, Greer said it could be O-2, “which I believe was the last grade served honorably.

10 U.S.C. § 1186(b) provides that because Thompson has 20 years of active service, such retirement must be approved. Had Thompson received a sentence of at least six months, however, and actually served six months, he could have been dropped from the rolls under 10 U.S.C. § 1161 and 1167.

Thompson’s retirement will, as noted by the military judge, involve a determination of the highest grade in which he served satisfactorily, pursuant to 10 U.S.C. § 1370.

If transferred to the retired list Thompson will be subject to the UCMJ for the rest of his life. See United States v. Dinger, __ M.J. __, No. 201600108 (N.M. Ct. Crim. App. Mar. 28, 2017) (discussed here).

An alert reader drew our attention to this docket page where the ongoing case of Marine Major Mark Thompson (CAAFlog news page), our #7 Military Justice Story of 2016, appears to be scheduled for disposition by guilty plea on Thursday.

Here is CNN’s coverage of the military judge’s denial of SGT Bergdahl’s motion to dismiss the charges against him based on President Ttump’s campaign trail comments calling Bergdahl a “traitor” and saying that he should be shot. Bergdahl, as you probably know and CNN reports, “faces charges of desertion and endangering fellow soldiers after he disappeared from his base in Afghanistan in June 2009 and was held in captivity by the Taliban until May 2014,” until a prisoner swap returned him to US custody. Here is CNN’s link to a copy of the 8-page decision from Colonel Nance, the judge in the case. 

Airman 1st Class Charles Amos Wilson III – whose case we last discussed here – was found guilty on Monday of the premeditated murder of his fiancee and their unborn child in 2013. The case was referred capital.

News reports here (Air Force Times), here (AP), and here (local).

Here is CNN coverage of POTUS’s early morning tweet paraphrasing Fox News coverage of a Private Manning article, here, that was critical of President Obama for being insufficiently progressive. The tweet reads:

Ungrateful TRAITOR Chelsea Manning, who should never have been released from prison, is now calling President Obama a weak leader. Terrible!

Just in case you were wondering, I have not found anything that specifically prohibits raising UCI at any point in the court-martial process. Any thoughts on UCI over the post-trial process? H/t LM

Here is a link to The Hill’s coverage of SGT Bowe Bergdahl’s motion to dismiss the charges against him based on Unlawful Command Influence (UCI). The motion argues, according to the article, that President Trump’s statements on the campaign trail calling for Bergdahl’s execution make it impossible for the SGT to obtain a fair trial. Bergdahl Will face a General Court Martial in April on charges of “desertion and misbehavior before the enemy after walking away from his post in Afghanistan in 2009. He was captured by the Taliban and held until a 2014 prisoner swap. The latter charge carries the potential sentence of life in prison.” More from Politico here

Here is the NYT article on the commutation of Private Manning’s sentence that results in a release date in May of 2017 rather than finishing the remaining 27 or so years and being released in approximately 2045. H/t JK

In this post I noted news reporting about a military legal ethics inquiry connected to the ongoing case of Marine Major Mark Thompson (CAAFlog news page), our #7 Military Justice Story of 2016. Such ethics inquiries are notoriously opaque.

That inquiry is now over. Stars and Stripes reports here that:

The ethics probe into Navy-Marine Corps Court of Criminal Appeals Judge Cmdr. Aaron Rugh was closed after the investigation “found that the available evidence failed to support a violation” of the Rules of Professional Responsibility governing Navy lawyers, according to a memo signed by Vice Adm. J.W. Crawford III, the Navy Judge Advocate.

“Accordingly, no further inquiry will be conducted and the matter is now closed,” said the brief memo dated Monday and received Tuesday by Stars and Stripes.

The Washington Post’s Jonathan Woodrow Cox – whose reporting led to this prosecution of Major Thompson – also writes about the end of the inquiry here.

Defense counsel often tell an accused that he has one job: Keep your mouth shut. Marine Major Mark Thompson’s discussions with Washington Post reporter John Woodrow Cox illustrate why.

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Two cases tie for the #8 spot on this year’s list: United States v. Sterling, 75 M.J. 407 (C.A.A.F. Aug. 10, 2016), cert. pet. filed, __ S.Ct. __ (Dec. 23, 2016) (CAAFlog case page), and the continuing saga of the court-martial prosecution of Army Sergeant Robert “Bowe” Bergdahl (CAAFlog news page).

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No. 17-0069/AR. In re Robert B. Bergdahl, Petitioner.  On consideration of the petition for extraordinary relief in the nature of writ of mandamus and Petitioner’s motion to file an order from the United States Army Court of Criminal Appeals, add an issue and to construe the petition as a writ-appeal and motion to file an order from the United States Army Court of Criminal Appeals on suggestion for consideration en banc, it is ordered that said motion to file an order from the United States Army Court of Criminal Appeals, add an issue and to construe the petition as a writ-appeal is hereby denied, that said petition for extraordinary relief is hereby denied, and that said motion to file an order from the United States Army Court of Criminal Appeals on suggestion for consideration en banc is hereby denied as moot.

This was Bergdahl’s sixth writ petition at CAAF, and was previously discussed here. #5 was discussed here. #4 was discussed here. #3 was discussed here. #2 was discussed here. #1 was discussed here.

Maybe the timing of these developments is just a coincidence, but from one news report (here) we learn that trial in the Bergdahl case will be delayed until May because:

Prosecutors filed a motion in October requesting a trial delay. They cited the pace at which they’re able to get approval to give the defense classified evidence as a main reason for the delay.

And from another news report (here) we learn that the defense is positively giddy because it sees the election of Donald Trump to the presidency as an uncurable error:

“We’re deadly serious about seeking a dismissal,” Eugene R. Fidell told The Fayetteville Observer on Wednesday. “There’s never been a presidential candidate who singled out a military member for this kind of abuse before. It’s never happened.”

Deadly serious is an unfortunate choice of words considering that the classified evidence addressed first report includes evidence of soldiers who were allegedly injured during search and rescue missions for Bergdahl:

Former Army Spc. Jonathan Morita also testified Monday, according to the AP, describing when an unexploded rocket-propelled grenade smashed into a rifle he was holding with the force of a hammer onto his hand.

“I looked at it, and I thought, ‘That’s going to hurt in the morning.’ I didn’t feel it. Too much adrenaline,” he testified, according to the AP report.

Defense attorneys have said it was the Taliban, not Bergdahl, who caused the injuries.

And then there’s this (from the second news report):

[Retired Army JAG and law professor Victor M.] Hansen said the bigger challenge for Bergdahl’s lawyers may be to overcome the intense pretrial publicity. Bergdahl was the subject of the second season of a popular podcast, “Serial,” that played tapes of an interview Bergdahl did with a filmmaker explaining he walked off his base to cause a crisis that would catch the attention of military brass.

Deep in the category of it’s never happened before is Bergdahl’s decision to talk with filmmaker Mark Boal for long enough to produce 25 hours of recorded conversations. Conversations that were shared with the Serial podcast (presumably with Bergdahl’s permission). Conversations that include some incredibly damaging statements, as discussed in our #8 Military Justice Story of 2015.

But Bergdahl has a Trump card.

Yesterday Sergeant Bergdahl filed a petition for extraordinary relief in the form of a writ of mandamus at CAAF. The petition has docket number no. 17-0069/AR and is available on the Bergdahl docket website, here. A searchable version is available here.

The petition asserts:

This original mandamus petition raises an important question that directly implicates public confidence in the administration of justice: is it lawful for the chairman of the Senate Armed Services Committee (SASC) to publicly brand a specific accused as “clearly” guilty of a serious offense and threaten to conduct a hearing if he is not punished at a court-martial?1 Without addressing due process, the military judge found no violation of Article 37(a), UCMJ.2 The U.S. Army Court of Criminal Appeals failed to act in a timely fashion on a mandamus petition seeking to overturn that decision. See § II infra.

The circumstances require this Court to exercise its original-writ authority under the All Writs Act, 28 U.S.C. § 1651 (2012), and defend the military justice system from flagrantly illegal interference by the single most powerful member of SASC, John S. McCain.

Pet. at 1. The relief requested is “a writ of mandamus dismissing the charges and specifications and in any event limiting the punishment that may be adjudged to No Punishment.” Pet. at 4 (capitalization in original).

I previously addressed this issue, and reasons why the relief requested is unwarranted, in this post.

I believe that this is Bergdahl’s sixth trip to Judiciary Square, but who can really keep track at this point.

The professional responsibility systems for military lawyers – administered separately by each Judge Advocate General – are notoriously opaque. However, this news report related to the ongoing case of Marine Major Mark Thompson (CAAFlog news page), provides a rare glimpse into one inquiry:

The Washington Post revealed that [Navy judge advocate and appellate military judge Commander] Rugh had given false information to a board of officers deciding whether a Marine he’d prosecuted for sexual misconduct should be expelled from the service.

Now his future — and potentially dozens of criminal appeals he’s overseen — is being threatened by the fallout from the flawed investigation into Marine Maj. Mark Thompson, a former instructor at the U.S. Naval Academy convicted of having sex with two female midshipmen.

Last week, Rugh testified at an ethics hearing before a senior officer probing whether he lied under oath in 2014 about two witnesses, his attorney said. Thompson is accused of lying to the same board and faces a second court-martial because of The Post’s revelations about his case.

The claim that CDR Rugh lied arises from the Board of Inquiry convened to determine whether Major Thompson should have been separated from the Marine Corps after he was convicted of indecent conduct and fraternization with junior officers and sentenced to confinement for two months and a fine of $60,000. In a surprise move the Board decided not only to retain Major Thompson on active duty, but also determined that he did not commit any misconduct (despite the fact that the court-martial conviction is treated as conclusive proof of misconduct).

CDR Rugh was the lead prosecutor at Major Thompson’s court-martial, and he testified to the Board (via telephone) about the facts of the case. In particular, CDR Rugh told the Board that his prosecution team talked to family members of one of the junior officers and corroborated the allegation that the officer was at Thompson’s home on a particular night. This was news to Thompson’s defense counsel, and they later raised it as an issue of non-disclosure in an effort to reverse Thompson’s convictions.

In the exposé that kindled the current prosecution of Major Thompson, Washington Post reporter Jonathan Cox spoke to some of the family members that may have been contacted by the prosecution team. They told him that they were never contacted by the prosecution. That revelation led to the claim that CDR Rugh gave false information to the Board.

The Navy’s professional responsibility system is detailed in JAG Instruction 5803.1E (available here). Complaints involving professional misconduct follow a five-step process: (1) Initial screening to determine if the complaint, on its face, establishes probable cause to believe that the rules were violated; (2) Initial review by the Rules Counsel to determine if the complaint is of a minor or technical nature that may be addressed summarily; (3) An ethics investigation if the complaint is not dismissed or resolved summarily; (4) Review of the result of the ethics investigation by the Rules Counsel, and; (5) Final action by the Judge Advocate General.

The news report suggests (update: and this version clearly states) that the complaint against CDR Rugh has reached the ethics investigation stage. However, it provides the following additional details:

Rugh’s attorney, retired Rear Adm. Christian L. Reismeier, wouldn’t comment on what his client said at the ethics hearing. But he denied that Rugh, 44, had intentionally misled the board. In an email, Reismeier called the alleged misstatement an “honest mistake” based on information that Rugh believed to be true at the time.