CAAFlog » Court-Martial News

Last month, in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), a unanimous CAAF held that the offense of rape of an adult (without aggravating factors) is not constitutionally punishable by death, and so the statute of limitations for a court-martial prosecution for that offense (prior to amendments enacted in 2006) is just five years.

Applying that decision, a military judge has dismissed the charges of rape of a child preferred against retired Army Major General James J. Grazioplene. Those charges were part of the #1 Military Justice Story of 2017 – Exercising court-martial jurisdiction over retired members.

The Army Times reports here:

The alleged abuse included sexual intercourse, molestation and fondling of the alleged victim on multiple occasions, beginning as young as age three.

U.S. Army Circuit Judge Col. Daniel Brookhart noted in his March 23 ruling that at the time of the alleged offense there was “no unique UCMJ article criminalizing the rape of a child.”

“…the age of the victim was not an element of the offense and bore no impact on the punishment authorized in the statute,” Brookhart wrote.

That wouldn’t have stopped Grazioplene from being charged on this allegation, though, because the broader crime of rape under UCMJ at the time could have result in a death penalty. And with the death penalty as a punishment, there was no statute of limitations after 1986.

The first three charges on the six-charge sheet fell under a three-year statute of limitations from before 1986 and were tossed out at a January hearing.

Brookhart then had to rule on the final three charges, which fell in a period from 1986 to 1989, in which rape could be punishable by death and had no statute of limitations.

However, U.S. case law later deemed it unconstitutional to execute someone for adult rape. The U.S. case law and UCMJ punishments both remained in place and at odds until 2008, when military law was changed to remove the death penalty.

Military courts had stood by previous precedent though, allowing cases that previously had no statue of limitations to continue to be charged.

But in February, the Court of Appeals for the Armed Forces, or CAAF, ruled against precedent, setting the statute of limitations on rape cases at five years.

The Army Times report also includes some inflammatory statements from a civilian attorney representing the alleged victim:

The alleged victim’s attorney, Ryan Guilds, told Army Times that his client is one of the strongest sexual assault survivors he has ever met, and “it’s really a shame that the justice system failed her.”

“The important thing to understand from the court’s ruling is it doesn’t have anything to do with the truth of what happened to a little girl from the age of three to 18,” Guilds said. “Or anything to do with the monster who violated not only his duties as a man and a human being but as an Army officer.”

When we last looked at the the ongoing habeas litigation involving Marine Corps Brigadier General John Baker (chief of the Military Commissions Defense Organization) who was found in contempt by Air Force Colonel Vance Spath (chief judge of the Air Force and a judge on the military commissions) – the #6 Military Justice Story of 2017 – it was to consider a renewed request for habeas and a motion by commissions prosecutors to obtain the audio recording of the related commission hearings.

Since then the DOJ filed a response (available here) to Baker’s renewed request, and Baker filed a reply brief (available here).

While the DOJ’s response leads with arguments that the habeas petition is now moot and that Baker failed to exhaust administrative remedies, both of these new briefs give real attention to what I believe is the most important issue in this case: whether Baker’s conduct actually constitutes contempt as the term applies to the Guantanamo commissions. As I discussed here and here, the contempt power of the Guantanamo commissions was narrowly defined by Congress and Baker’s conduct does not clearly (or even remotely, I think) meet that definition.

The DOJ’s brief, however, significantly misinterprets the hierarchy of rules in the military justice system and thereby reaches the opposite conclusion.

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An interesting development in the ongoing habeas litigation involving Marine Corps Brigadier General John Baker (chief of the Military Commissions Defense Organization) who was found in contempt by Air Force Colonel Vance Spath (chief judge of the Air Force and a judge on the military commissions).

Miami Herald reporter Carol Rosenberg reports here that commissions prosecutors filed a motion to release the audio of the commissions proceedings on October 31 and November 1, 2017. The allegedly (but not actually, as discussed here) contemptuous actions of General Baker occurred on October 31, and the contempt hearing itself (where General Baker was not allowed to defend himself) occurred on November 1. The motion to release the audio is not yet available on the commissions website, but Rosenberg has a copy and posted it here. It states, in part:

It is the Prosecution’s recollection that, on 31 October 2017, during the course of Brigadier General Baker’s refusal to obey the Commission’s lawful orders he scoffed and audibly laughed in a contemptuous manner in response to the clear orders given by the Commission to rescind his release of defense counsel. This behavior, coupled with failure to approach the podium when addressing the court and his refusal to take the witness stand when called by the Commission, was consistent with his general deportment of defiance and disrespect before the Commission throughout the proceedings.

Mot. at 3.

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Back in August, in this post, I noted that the Army held an Article 32 preliminary hearing in a case involving allegations that now-retired Major General James J. Grazioplene committed rape on six occasions while on active duty in 1983-1989.

Those allegations were referred for trial and the Washington Post recently reported here that:

Retired Maj. Gen. James J. Grazioplene appeared Tuesday at Fort Belvoir, Va., for his first hearing following an Army general’s decision last month to send the case to a court-martial. Grazioplene, 68, is accused of repeatedly raping a young girl between 1983 and 1989.

The allegations have put the Army in highly unusual territory. The pending trial will mark one of only a few cases since World War II in which a general officer has been prosecuted in open court.

Grazioplene was a major serving at Fort Leavenworth in Kansas when the alleged rapes began, according to court documents. He has not entered a plea.

Continuing court-martial jurisdiction over people who retire from a regular component of the armed forces – which isn’t retirement in the ordinary meaning of the term, but rather is merely a change in military status – has been a hot topic since the NMCCA’s opinion in United States v. Dinger, 76 M.J. 552, No. 201600108 (N.M. Ct. Crim. App. Mar. 28, 2017) (discussed here).

The Grazioplene case also raises issues of the statute of limitations and due process for an accused brought to trial decades after an alleged offense. CAAF is considering similar concerns in the interlocutory Air Force case of United States v. Mangahas, No. 17-0434/AF (CAAFlog case page).

Last month, Marine Corps Brigadier General John Baker – chief of the Military Commissions Defense Organization – was found in contempt by Air Force Colonel Vance Spath, who is the chief judge of the Air Force and a judge on the military commissions. Spath punished Baker with 21 days confinement and a $1,000 fine. Baker served three days of that confinement in quarters before the commissions convening authority deferred the rest, and then ultimately disapproved both the confinement and the fine.

The basis of the contempt finding was General Baker’s refusal to appear as a witness to answer questions by Spath about the release of three civilian defense counsel from the case of Abd al Rahim al Nashiri (who is accused of orchestrating the 2000 bombing of USS Cole). I analyzed the finding in this post, and concluded that Baker’s conduct does not constitute contempt as the term is defined by Congress in 10 U.S.C. § 950t(31) (the commissions contempt power).

After the contempt finding, and while still confined to quarters, General Baker filed a petition for a writ of habeas corpus in the District Court for the District of Columbia. I analyzed the petition in this post and concluded that it was a loser. Judge Royce C. Lamberth heard oral argument on the petition and deferred ruling (after the convening authority deferred the confinement and Baker was released).

Last Friday, General Baker filed a supplemental brief. A copy is available here.

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In a press release dated yesterday and available here, the Office of Military Commissions Convening Authority announced that the finding of contempt against Marine Corps Brigadier General John Baker by Air Force Military Judge Colonel Vance Spath – a finding that I analyzed in this post and concluded exceeded Spath’s statutory authority – is correct in law and fact.

The convening authority (Harvey Rishikof) disapproved the punishment of confinement for 21 days and a $1,000 fine. BGen Baker served three of those days of confinement in his quarters at Guantanamo before the remainder was deferred.

The convening authority also announced his intent to refer the matter for an ethics review.

The full text of the release is after the jump.

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Devin Patrick Kelley – identified as the shooter who killed 26 people and wounded many others yesterday in a South Texas church – was reportedly a former member of the Air Force who was convicted by a court-martial in 2012. This AP report, for example, states:

Kelley received a bad conduct discharge from the Air Force for assaulting his spouse and child, and was sentenced to 12 months’ confinement after a 2012 court-martial. Kelley served in Logistics Readiness at Holloman Air Force Base in New Mexico from 2010 until his 2014 discharge, Air Force spokeswoman Ann Stefanek said.

From this information I found the Air Force CCA’s opinion in United States v. Kelley, No. 38267, 2013 CCA LEXIS 1100 (A.F. Ct. Crim. App. Dec. 3, 2013) (link to slip op.), rev. denied, 73 M.J. 257 (C.A.A.F. 2014). The opinion is not on the CCA’s website, but it is a summary disposition affirming the findings of a general court-martial and a sentence of confinement for 12 months, reduction to E-1, and a bad-conduct discharge.

That doesn’t tell us the precise offenses of which Kelley was convicted, but it strongly suggests that Kelley was convicted of an offense for which the maximum authorized punishment exceeds confinement for one year.

Accordingly, 18 U.S.C. § 922 prohibits Kelley from possessing practically any firearm:

(g) It shall be unlawful for any person–

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; . . .

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

However, according to this Washington Post story:

Officials described the shooter’s weapon as a Ruger AR-556, an assault-style rifle similar to those used by the military. CNN, citing a law enforcement individual, reported that Kelley purchased the weapon in April 2016 from an Academy Sports & Outdoors store in San Antonio.

(emphasis added).

Update 1 (1135 eastern):
Some media outlets report that Kelley’s court-martial convictions related to domestic violence (this local news report quotes an Air Force spokeswoman as saying he was convicted of domestic violence in 2012 at Holloman AFB in Alamogordo, New Mexico).

If so, then in addition to the prohibition in 18 U.S.C. § 922(g)(1) discussed above, he was alternatively prohibited from possessing a firearm by 18 U.S.C. § 922(g)(9), commonly known as the Lautenberg Amendment, which applies to anyone:

(9) who has been convicted in any court of a misdemeanor crime of domestic violence,

Update 2 (1354 eastern): Thanks to our reader for a link to the opinion now available on the CCA’s website (I’m certain it was not there this morning).

Update 3 (1400 eastern): While the adjudged sentence tracks the maximum at a special court-martial, CBS news reports here that “the Air Force tells CBS News Kelley’s case was a general court martial. . .”

Update 4 (1612 eastern): The New York Times reports here:

“He assaulted his stepson severely enough that he fractured his skill, and he also assaulted his wife, said Don Christensen, a retired colonel who was the chief prosecutor for the Air Force. “He pled to intentionally doing it.”

He was sentenced in November of that year to 10 months’ confinement and reduction to the lowest possible rank. After his confinement, he was discharged from the military with a bad conduct discharge. It is unclear whether his conviction would have barred him from purchasing a gun.

(emphasis added). We, of course, know that the last sentence is wrong.

Here is a link to a notice filed by the Government in Baker v. Spath, et al., informing the court that:

Shortly before 1 p.m. on November 3, 2017, the Convening Authority sua sponte deferred the remaining term of Petitioner’s sentence of confinement pending final action by the Convening Authority on the contempt findings. See Rule For Military Commission 1101(c). The deferral is effective immediately and notice of the Convening Authority’s decision has been served on Petitioner.

A military judge has found that Bowe Bergdahl should serve no prison time for endangering his comrades by walking off his Afghanistan post.

The judge also gave Bergdahl a dishonorable discharge, reduced his rank to private and said he must forfeit pay equal to $1,000 per month for 10 months. The judge made no other comments.

It’s not well-reported elsewhere, but Sergeant Bergdahl’s pleas of guilty to desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and misbehavior before the enemy in violation of Article 99, included exceptions and substitutions limiting his desertion to only a single day.

An Army press release available here explained that:

Sgt. Bergdahl entered pleas of guilty to both charges, but indicated his period of desertion was for only one day. Following the entry of pleas, the government introduced evidence in support of the position that the period of desertion was for the entire period of Sgt. Bergdahl’s captivity. The military judge found Sgt. Bergdahl guilty of both charges with a one day period of desertion. The military judge also denied a defense motion to dismiss one of the charges as excessive, but announced he would combine both charges for sentencing purposes.

Earlier today I noted that BGen Baker filed a petition for a writ of habeas corpus seeking release from confinement to quarters after being found in contempt by military commission judge Colonel Spath in connection with a dispute over the release of civilian attorneys representing Abd al Rahim al Nashiri, who is accused of orchestrating the 2000 bombing of USS Cole.

As I wrote in this post, BGen Baker’s actions do not meet the statutory definition of contempt applicable to military commissions.

Since then I’ve had a chance to read the brief filed on Baker’s behalf in support of the habeas petition and – while I still believe that Baker’s conduct is not contempt – I think the petition is a loser.

Here’s why.

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A reader provided this link to a draft transcript of yesterday’s contempt proceedings in the al Nashiri military commission at Guantanamo, during which Air Force Military Judge Colonel Vance Spath found Marine Corps Brigadier General John Baker in contempt. A draft transcript of the proceedings that precipitated the contempt proceedings is available here.

General Baker has since petitioned for a writ of habeas corpus.

Having reviewed both transcripts, the applicable Rule for Military Commissions 809 (which is substantially identical to Rule for Courts-Martial 809), and the underlying statute 10 U.S.C. § 950t(31) (which is significantly different from Article 48, 10 U.S.C. § 848), I am pretty confident of two things:

First, what General Baker did is not contempt within the meaning of the statute.

Second, I warned about this.

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Marine Corps Brigadier General John Baker – chief of the Military Commissions Defense Organization – who yesterday was found in contempt by Air Force Military Judge Colonel Vance Spath and ordered confined to quarters, has filed this petition for a writ of habeas corpus, and this request for emergency expedited consideration, in U.S. District Court for the District of Columbia.

Update (1820 eastern):

The petition was heard this afternoon and PACER has the following entry:

11/02/2017 Minute Entry for proceedings held before Judge Royce C. Lamberth: Miscellaneous Hearing held on 11/2/2017 in re PETITION for Writ of Habeas Corpus. Oral arguments heard and the matter has been submitted. Miscellaneous Hearing continued to 11/3/2017 at 02:00 PM in Courtroom 15 before Judge Royce C. Lamberth. (Court Reporter Janice Dickman) (nbn) (Entered: 11/02/2017)

The Associated Press reports here that:

A military judge on Thursday began deliberating the punishment for Army Sgt. Bowe Bergdahl after defense attorneys asked for no prison time while prosecutors sought more than a decade behind bars.

Army Col. Jeffery Nance said he planned to spend the afternoon considering evidence and would open court again Friday morning to continue deliberating then. It wasn’t clear when he would deliver the sentence.

Bergdahl faces up to life in prison after pleading guilty to desertion and misbehavior before the enemy for walking off his remote post in Afghanistan in 2009. In closing arguments, prosecutors asked for a sentence of 14 years in prison, citing serious wounds to service members who looked for Bergdahl.

“Sgt. Bergdahl does not have a monopoly on suffering as a result of his choices,” said Maj. Justin Oshana, a prosecutor. Contrasting Bergdahl to the wounded searchers, he added, “The difference is all the suffering stems from his choice.”

But defense attorneys argued Bergdahl already suffered enough confinement during five years of brutal captivity by Taliban allies. They asked the judge to give their client a dishonorable discharge and no prison time. Their argument for leniency also cited harsh campaign-trail criticism by Donald Trump and Bergdahl’s mental disorders.

Any discharge as a result of a general court-martial will permanently deprive Sergeant Bergdahl of benefits administered by the Department of Veterans Affairs as a matter of law.

Marine Corps Brigadier General John Baker – chief of the Military Commissions Defense Organization – was ordered into confinement today by Air Force Military Judge Colonel Vance Spath, who found the General in contempt for in connection with the release of three civilian defense counsel from the case of Abd al Rahim al Nashiri (who is accused of orchestrating the 2000 bombing of USS Cole).

Carol Rosenberg of the Miami Herald reports here that:

The USS Cole case judge Wednesday found the Marine general in charge of war court defense teams guilty of contempt for refusing to follow his orders and sentenced him to 21 days confinement and to pay a $1,000 fine.

. . .

In court Wednesday, Baker attempted to protest that the war court meant to try alleged foreign terrorists had no jurisdiction over him, a U.S. citizen. Spath refused to let him speak and ordered him to sit down.

“There are things I want to say, and you are not allowing me to say them,” Baker told the judge.

Spath replied, “This is not a pleasant decision,” calling the proceedings neither “fun” nor “lighthearted.”

. . .

The judge said in court that a senior official at the Pentagon, Convening Authority Harvey Rishikof, would review his contempt finding and sentence. Meantime, however, he ordered court bailiffs to arrange for the general to be confined to his quarters — a room in a trailer at Camp Justice, behind the courtroom — until Rishikof acted or found a different place.

Rishikof had approved the site provisionally, Spath said, and was permitting Baker to have internet and phone communications at his quarters.

Additional details about the release of the three civilian attorneys is available in this report (also from Miani Herald reporter Carol Rosenberg).