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 Manning case will take a hiatus from testimony as Judge Lind hears oral arguments on evidentiary issues today and the government and defense negotiate witness statements for witnesses that are unable to appear. Coverage from AP (via WaPo) here.
Arguments in the CCR lawsuit in D.Md. district court were held yesterday, AP (via ABC News) reports here. It would appear that the Army’s proposed 2 day turn around time on documents from the case will satisfy the district court. Now why can’t the Army do that in all courts-martial?
Here’s a headline I couldn’t have predicted “Pending Hasan trial having positive economic impact,” see Temple Daily Telegram here (subscription required).
Though a little dated, a San Antonio based Air Force recruiter, TSGT Jaime Rodriguez, was sentenced to 27 years in the brig for aggravated sexual assault and other charges stemming from contact with recuruits and potential recruits. Texas Public Radio report here and AF Times report here.
Three Naval Academy football players are going to face an Art. 32 hearing for sexual assault charges stemming from an incident last year. USAToday reports here that the investigation of the case was re-opened after the alleged victim retained a lawyer, Susan Burke, and cooperated with investigators. The report states that “that one of the accused football players told the victim not to cooperate with NCIS and that the academy closed the investigation in 2012, citing the victim’s unwillingness to cooperate as the reason.”
Manning, Manning and more Manning in my Google News alert. Here (WaPo) and here (AP).
News out of the Fayetteville Observer on the BGEN Jeffrey Sinclair court-martial, here:
Brig. Gen. Jeffrey Sinclair’s sexual misconduct court-martial has been postponed until July, and a source close to the case said one of the pornography accusations against him has been dropped.
A pre-trial hearing for Sinclair is scheduled to begin today at the Fort Bragg courthouse. Three generals may testify this week.
Air Force Times reports, here, that a non-MTI rape case is set to begin at Joint Base San Antonio Lackland:
A court-martial will begin Tuesday for a recruiter accused of rape, sexual assault, indecent exposure and more than two dozen other counts involving 17 women, most of them Air Force applicants.
The trial for Tech. Sgt. Jaime Rodriguez was set to begin this morning at Joint Base San Antonio-Lackland, Texas, but was postponed one day, according to a news release from the base. . . .
He is accused of raping a recruiter assistant, plus seven other charges and a total of 30 specifications, including forcible sodomy, aggravated sexual contact, indecent conduct, obstruction of justice, making a false official statement and adultery. The charge sheet said Rodriguez allegedly used his position to try to gain sexual favors, lied about sending nude photos of himself and asked others to lie for him. . . .
The case against the recruiter is separate from the investigations of military training instructors at Lackland . . . .
And finally, more coverage of MAJ Hasan getting his wish to rep himself here (LA TImes).
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.
And the hits just keep on coming in the Army, see CNN report here and Military Times report here. Form Military Times:
The Army announced it has suspended the commander of Fort Jackson, S.C., amid misconduct allegations that include adultery and a physical altercation, according to a spokesman for Training and Doctrine Command.
Brig. Gen. Bryan T. Roberts was suspended today as commander of the Army Training Center and Fort Jackson by TRADOC commander Gen. Robert W. Cone, based on a preliminary investigation by Army Criminal Investigation Command. The investigation pointed to a breach of good order and discipline, “which was contrary to Army values and could not be condoned,” said spokesman Harvey Perritt.
I guess at least the report isn’t sexual assault. H/t AG.
From WaPo, reports on the motions decisions in the PFC Manning case:
The judge in the court-martial of Pfc. Bradley Manning said Tuesday that she will close portions of the trial to the public to protect classified material, a ruling that is likely to frustrate civil liberties groups that have alleged the case is being shrouded in secrecy.
And more on yesterday’s goings on in Manning from the AP’s Dave Dishneau (via Seattle Times) here:
Lawyers in the court-martial of an Army private who sent more than 700,000 classified U.S. documents to WikiL[shhh] said Tuesday they have reached a deal that may eliminate the need for testimony from a member of the military team that killed Osama bin Laden. Prosecutors also agreed to accept Pfc. Bradley Manning’s guilty plea to a lesser version of one of the 22 counts he faces.
Under the agreement, both the prosecution and defense teams would acknowledge at Manning’s trial next month that there is digital evidence indicating bin Laden saw some of the material Manning released. The raid team member, presumably a Navy SEAL, was expected to testify that the evidence was recovered during a May 2011 raid on the al-Qaida leader’s compound in Abbottabad, Pakistan.
Here’s a link to a New Republic piece by Harvard Law Professor Yochai Benkler criticizing the decision to charge PFC Bradley Manning with aiding the enemy. Professor Benkler explains that he’s an expert witness in the case — presumably for the defense — and will testify about why PFC Manning’s now-admitted act of providing a cache of electronic documents to Wikileaks should be treated the same as a whistleblower providing documents to the New York Times. He argues that prosecuting PFC Manning for aiding the enemy presents “a clear and present danger to journalism in the national security arena.”
Professor Benkler’s argument is marred by apparent confusion over who in the military justice system decides whether to seek a death penalty. (See, e.g., his reference to “whether prosecutors in their discretion decide to seek the death penalty in any particular case.” In the military justice system, prosecutors don’t make that choice; convening authorities do.) Also, does anyone have a link to the government’s opposition to the defense motion challenging the aiding the enemy charge? Professor Benkler refers to the prosecution’s reliance on an “old and obscure” “1920 military law treatise.” I’d love to know if that “obscure” treatise is, as I suspect, Winthrop’s Military Laws and Precedents (2d ed. 1920) — you know, the treatise cited more than 45 times in various opinions in Hamdan v. Rumsfeld, 548 U.S. 557 (2006). Yes, that “obscure” tome that Justice Stevens referred to as “[t]he classic treatise penned by Colonel William Winthrop, whom we have called ‘the “Blackstone of Military Law,”‘ Reid v. Covert, 354 U.S. 1, 19, n. 38, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (plurality opinion).” Id. at 597. But perhaps Professor Benkler was referring to another 1920 treatise on military law.
The Austin American-Statesman reports, here, that the MAJ Nidal Hasan trial will begin at Ft. Hood on May 29, 2013. After four weeks of voir dire and panel selection, “testimony” is scheduled to begin July 1, 2013. So I assume opening arguments are the last week of June.
More Manning coverage including a detailed article from the NYT, here, that also investigated the voicemail PFC Manning stated he left for the NYT. The NYT also notes, contrary to some early reports, that Manning stated in the providence inquiry that he was turned off by the WaPo because they said they would have to review the material before committing to publish it. Call me old fashioned, but that changes my opinion of Manning’s confessed motives. CNET coverage (which is always a little different) here.
Okinawa rape trials sentence former sailors to 10 and 9 year sentences. See AP (via YahooNews) report here.
Here is a Politico piece on P.J. Crowley’s recent statements about Judge Lind’s ruling on the Manning unlawful pretrial confinement motion. Crowley you’ll recall was forced to resign from the State Dept. after he criticized the conditions of Manning’s confinement. Crowley, a former Air Force Colonel and now a professor at GW, feels vindicated but isn’t in the tank for PFC Manning. He said he felt then and now that raising additional questions about US detention policies was not a good idea, but feels Manning stands accused of very serious charges and put real lives at risk with the alleged release of documents.
Wrong projects, wrong places, and add a little fraud, waste, and abuse and you have the US reconstruction efforts in Afghanistan says SIGAR, reports Stripes here.
Not quite MilJus, but General (ret) McChrystal re-appeared on CNN, here, to talk about Afghanistan, and not his intemperate remarks about the VP.
More on Pentagon day care investigation as seven employees are barred from unsupervised contact with children, report here.
Oops, there goes another one. Or maybe two . . . a Navy attack sub’s periscope collided with what appears to have been a fishing trawler in the Persian Gulf and the CO of another sub that collided with a US Navy cruiser during training operations was removed this week. Reports here and here.
Military lawyers apparently lost out again to their civilian counter-parts as the Obama administration will pursue an appeal to press the validity of conspiracy and material support of terrorism at military commission trials, see NYT report here. I will never understand how the foremost law of war experts in our government are consistently overruled on issues concerning the law of war.
In other military commissions news, here, Judge Collyer in D.C. District Court ruled information that may be helpful to a detainee to obtain his release from Gitmo after being held for 10 years without charges does not need to be given to the detainee or his counsel because of the sensitivity of the information. Judgr Collyer also ruled the information should be available to the judge determining the detainees status for continued detention. More from Lawfare (with a link to the opinion) here.
PFC Manning case revelations, via NYT, here, and UPI, here, which now reportedly won’t start until Jun. 3, 2013, at the earliest:
• Osama bin laden was interested in the information Manning provided to Wiki[shhh].
• The convening authority would have pursued Manning had he dumped his trove of classified info on the New York Times (and presumably DOJ would have pursued the NYT as well).
AP (via WaPo), here, reports that:
[Colonel Denis Lind] found that [PFC Bradley] Manning suffered illegal pretrial punishment during nine months in a Marine Corps brig in Quantico, Va. She awarded a total of 112 days off any prison sentence Manning gets if he is convicted.
The ruling apparently (here) took ninety minutes to read, but will not be made available to the public.
AP (Via WaPo here) anticipates a ruling on PFC Bradley Manning’s unlawful pre-trial confinement motion today. Today’s hearing focused on motions in limine and evidence of PFC Manning’s motivation in sending classified material to the Wiki[shhh] website. The court also heard from the government on motions to preclude evidence that information PFC Manning provided to Wiki[shhh] was over-classified. Here is a running report from the Dissenter at firedoglake.com.
In a follow up to a Top 10 list item, Bloomberg reports, here, that SecDef announced that the former director of the U.S. Missile Defense Agency LTG Patrick O’Reilly will retire as a three-star, his current rank. O’Reilly “stepped down Nov. 19 as agency head and after 38 years of Army service, including four as a West Point cadet, at the three-star rank,” after an IG report found that O’Reilly “’engaged in a leadership style that was inconsistent’ with military ethics regulations.”
Here is a link to PFC Manning’s defense counsel’s blog entry with a link (here) to a redacted version of his Oct. 17, 2012 reply brief in support of his motion to dismiss due to speedy trial violations. While I would like to post a synopsis of the 50-page (single spaced) reply brief, alas I have a day job. Please feel free to leave your thoughts in the comments.
PFC Manning Unlawful Pretrial Confinement Hearing Closing Arguments
Here is the NYT report and here is the WaPo report from Ft. Meade on closing arguments in the marathon unlawful pre-trial confinement hearing in the PFC Manning court-martial.
Barracks Murder Court-Martial at Ft. Carson Day 2
Prosecution rests and defense mental health experts testify reports the Colorado Springs Gazette, here.
Pilot’s Court-Martial for Late Drop Hits Voir Dire Snags
Court-martial of pilot in death of paratrooper underway at Joint Base Lewis McCord, see Tacoma News-Tribune report here. CPT Jared Foley is charged with reckless endangerment and dereliction of duty. Foley allegedly “approved a late jump outside of an established drop zone in windy conditions . . . . Sgt. Francis Campion, 31, of the 19th Special Forces Group landed on a building and fell to his death.” According to the TN-T,today’s session was pre-occupied with disqualifying members that had direct knowledge of the late drop incident.
Royal Marines Being Tried Incognito
Here is an interesting tale that’s been developing since late summer. Five Royal marines have been charged with murdering an Afghan detainee. Their court-martial will proceed as planned this month, but with one unique feature, their names won’t be revealed to the public. See coverage here and here (earlier coverage of the anonymity grant).
Moral of the story, joking about hanging yourself with your underwear in a Marine Corps brig is like joking about a bomb in a London airport. AP via Navy Times report on today’s Manning hearing here.