CAAFlog » Military Justice Scholarship

That’s the title of my essay published today in the Columbia Law Review Sidebar and available here.

This could be an interesting Spring Break read, Meltdown in Haditha: The Killing of 24 Iraqi Civilians by U.S. Marines and the Failure of Military Justice.  Releases in Spring/Summer 2015.  From the preview:

In November 2005, Sunni insurgents attacked a U.S. Marine squad returning to its headquarters in Haditha with an improvised explosive device (IED). One marine died and two others were wounded. Within minutes, squad members killed 24 Iraqi civilians, including an elderly couple, four women and six children. It was the worst incident of its kind in the Iraq War.  Read more »

Lots of interesting military justice articles were published recently:

  • A book review by our emeritus Dwight H. Sullivan, Trying Cases to Win in One Volume, Army Law., June 2014, at 56 (direct link to article). The first paragraph includes this sentence: “What Moneyball did for baseball and Thinking About Crime did for criminology, Trying Cases to Win in One Volume does for trial advocacy.”
  • Major Robert D. Merrill, The Military’s Dilution of Double Jeopardy: Why United States v. Easton should be Overturned, 219 Mil. L. Rev. 176 (2014) (direct link to article). Major Merrill analyzes CAAF’s opinion in United States v. Easton, 71 M.J. 168 (C.A.A.F. 2012), cert. denied, 133 S. Ct. 930 (2013). (CAAFlog case page), and argues that “Congress should amend Article 44 to align with civilian law. Not only was Easton decided on faulty logical grounds, but it also set a dangerous precedent in which the CAAF was permitted to ignore the Supreme Court’s interpretation of a core constitutional right, and on the flimsiest of justifications.” Merrill, supra, at 177.
  • Colonel French L.Maclean, The Seventh Annual George S. Prugh Lecture on Military Legal History, 219 Mil. L. Rev. 262 (2014) (direct link to article). The article is an edited transcript of a lecture delivered on April 24, 2013, and is “about a time, back in World War II, when Judge Advocates were the big dogs on the porch.” Id. at 263.
  • Major Scott A. McDonald, Authenticating Digital Evidence from the Cloud, Army Law., June 2014, at 40 (direct link to article). “This article describes the nature of cloud architecture, criminal aspects of cloud storage, and then addresses issues of authenticating evidence obtained from the cloud. Drawing parallels from the approved methods of authentication for e-mail and webpages, this article argues that despite some unique issues associated with data obtained from the cloud, authentication of cloud data should not present an insurmountable obstacle for counsel.” Id. at 41.
  • Major Jeffrey A. Gilberg, The Secret to Military Justice Success: Maximizing Experience, 220 Mil. L. Rev. 1 (2014) (direct link to article). The author conducted an anonymous survey of Army JAG Corps personnel in military justice billets. From this survey, the article “first identifies and substantiates the problem of inexperience in the Army’s military justice system. Second, it discusses the SVP program as a successful Army initiative already in place that effectively utilizes litigation experience. Third, by building upon the success of the SVP model, as well as the ideas and observations of others, this article proposes a detailed plan that directly addresses and solves the problem of litigation inexperience in the JAG Corps.” Id. at 3.
  • Major Elizabeth Murphy, The Military Justice Divide: Why Only Crimes and Lawyers Belong in the Court-Martial Process, 220 Mil. L. Rev. 129 (2014) (direct link to article). “This article explores the process and concerns with commanders’ UCMJ authority, analyzes recent legislation, and proposes a new military justice model by incorporating the spirit of the MJIA.” Id. at 134. The MJIA is the Military Justice Improvement Act, proposed by Senator Gillibrand and discussed here.
  • Major Frank E. Kostik Jr., If I Have to Fight for My Life—Shouldn’t I Get to Choose My Own Strategy? An Argument to Overturn the Uniform Code of Military Justice’s Ban on Guilty Pleas in Capital Cases, 222 Mil. L. Rev. 242 (2014) (direct link to article).

The May 2014 edition of The Army Lawyer is available here and includes two articles of special interest to military justice practitioners:

Major Michael Zimmerman, USMC, writes An Ounce of Improper Preparation Isn’t Worth the Cure: The Impact of Military Rule of Evidence 612 on Detecting Witness Coaching, discussing the fine line between witness preparation and witness coaching (direct link to article).

Major Michael J. McDonald, USMC, pens a book review of Rape Is Rape How Denial, Distortion, and Victim Blaming Are Fueling a Hidden Acquaintance Rape Crisis by Jody Raphael JD (direct link to review).

I haven’t read the entire article so I’ll let you guys comment on it, but here is a forthcoming article on the sexual assault issue in the military from a law student at the University of Miami.  the article will appear in the University of Miami National Security & Armed Conflict Law Review and is titled “Where is the Justice? The Sexual Assault Crisis Plaguing the Military and a Lack of Meaningful Justice.”  Here is an abstract for the article if you want a preview.

That’s the title of a forthcoming article by Air Force judge advocate Major Matthew Burris, in the Buffalo Journal of Gender, Law, and Social Policy. You can access the article on SSRN at http://ssrn.com/abstract=2414494

Here’s a taste (from the article’s introduction):

Yet stories that feel archetypally right—even those supported by gripping anecdotes—might also grossly misrepresent reality. Such is the case with the military’s so-called “sexual assault crisis”: the intuitively compelling narrative advanced by the media, some members of Congress, victim advocacy groups, and others is not empirically supportable. While there is no logical proof for what does or does not constitute a crisis, at the very least, a crisis moniker suggests a widespread problem—and one that is growing and generally out of control. The best available data, however, suggest this is simply not the case.

As discussed in detail below, the data instead suggest that: (1) an estimated 98% of service members , or 1.324 million, experienced no form of unwanted sexual contact during fiscal year 2012;16 (2) between fiscal years 2010 and 2012, only two of the four Armed Services showed a statistically significant increase in the number of estimated victims of unwanted sexual contact and overall numbers are down from fiscal year 2006; (3) the prevalence of sexual assault in the military is comparable to demographically similar civilian populations; (4) senior military commanders are more aggressive in exercising their prosecutorial discretion in sexual assault cases than are licensed attorneys; (5) overturning the results of courts-martial are exceptionally rare events, particularly in the case of serious offenses like sexual assault; and (6) removing senior commanders’ authority to make prosecutorial decisions will not improve extant conditions. If this is what the data suggest, then the crisis narrative was arguably borne of something other than data. To be sure, it appears to have been borne largely of a disparate group of concerned and well-intentioned individuals thinking fast about a problem that cries out for thinking slow.

The February edition of the Army Law Review (available here) has an excellent article by Major Chris Pehrson (copy of article available here) on the issuance of subpoenas duces tecum at Article 32 pretrial investigations. Notably, the 2013 changes to the UCMJ modify the nature and scope of the Article 32 process, but they do not change the subpoena power.

So argues professor and former Army judge advocate Wm. C. Peters in an Elon Law Review article titled: Article 37 of the UCMJ and Command Responsibility for War Crimes – Unlawful Command Influence as (Rogue) Elephant in the Room (available here).

The author calls for an independent civilian special prosecutor at the service secretary level to oversee the prosecution of war crimes cases involving allegations of misconduct by commands. He sees such as prosecutor as necessary because, “There is probable cause to conclude our military justice system employs UCI, as both scabbard and saber, to prevent war crime prosecutions against senior commanders from ever reaching finality in law” (Page 28 of the linked pdf). But considering that the fundamental problem with command influence of a court-martial is that it deprives the accused of constitutional rights, the premise of the article seems to force a square peg into a round hole.

The article also notes the pressure on judge advocates to be sycophants:

Adding to this unique attorney-client relationship is the military’s overarching hierarchical structure. In the past, the U.S. Army practice was for service regimental headquarters to regularly admonish judge advocates (JAs) to be “soldiers first” – as if there should be any professional considerations allowed to get in the way of providing sound legal advice under some vague, undefined circumstance. The subtle though clear reminder, especially for junior legal staff officers wishing to grow into senior advisors, is that the commander as client and ranking officer need not abide by your counsel, even if it specifically addresses the lawful way ahead. When it comes to the stark business of war-fighting and the tactics, techniques, and procedures generated by battlestaffs – which may contribute to war crimes under certain circumstances – commanders tend to be strong-willed when receiving corporate counsel’s advice. Do as you are told, the JA learns, or you risk your rater’s wrath in career controlling efficiency reports. Of course, the uniformed service superior can always simply call for a new lawyer to offer up the counsel he or she prefers to hear.

Page 3 of the pdf. It’s also worth considering that appellate reversal usually comes long after the performance evaluation (and the personal award) is finalized.

The January 2014 edition of The Army Lawyer is available here, and contains two interesting military justice articles:

Major Todd W. Simpson writes Supervising Paralegals in Accordance with the Rules of Professional Conduct. The piece focuses on the Army’s rules, but the concepts discussed are broadly applicable across the services.

Major Takashi Kagawa considers the relative benefits of lesser forum punishments for first-time offenders in Soldier’s First Offense: Article 15 or Summary Court-Martial?

The Air Force recently published Volume 70 of the Air Force Law Review (link to PDF). It contains the following articles:

Protecting Security And Privacy: An Analytical Framework For Airborne Domestic Imagery. Colonel Dawn M.K. Zoldi.

The Sky Has Not Fallen: A Brief Look At The Impact Of United States V. Walters Ten Years Later. Lieutenant Colonel W. Shane Cohen And Captain Jonathan S. Sussman.

High (Risk) Society: Easing The Anxiety For Institutional Clients Using Social Media. Ms. Susan L. Turley.

The Big Payback: How Corruption Taints Offset Agreements In International Defense Trade. Lieutenant Colonel Ryan J. Lambrecht.

Wielding A “Very Long, People-Intensive Spear”: Inherently Governmental Functions And The Role Of Contractors In U.S. Department Of Defense Unmanned Aircraft Systems Missions. Major Keric D. Clanahan.

The Walters article (direct link) is of particular interest to military justice practitioners. In United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003) (link to slip op.) the appellant was charged with wrongful use of ecstasy of divers occasions, but was convicted by exceptions and substitutions of wrongful use on one occasion. However, the panel did not specify which occasion formed the basis for the conviction. CAAF determined that this created an ambiguous finding that prevented the Air Force Court of Criminal Appeals from conducting its factual sufficiency review under Article 66(c), and ruled that:

Where a specification alleges wrongful acts on “divers occasions,” the members must be instructed that any findings by exceptions and substitutions that remove the “divers occasions” language must clearly reflect the specific instance of conduct upon which their modified findings are based.

Walters, 58 M.J. 391, slip op. at 12. In the article, Lieutenant Colonel Cohen and Captain Sussman discuss similar cases in the intervening decade, reasons why prosecutors should continue to charge on divers occasions, and sentencing considerations.

A few weeks ago, Zach posted a link to the latest edition of the The Reporter, the Air Force JAG School’s magazine. In that edition, there were two articles dealing with the Special Victim’s Counsel program. One of those articles, The Scope of a Victim’s Right to be Heard Through Counsel by Major Christopher J. Goewert, USAF and Captain Seth W. Dilworth, USAF, got me thinking more about what discovery rights an alleged victim might have.

In the article, the authors tease out what the scope of an SVC’s representation might be in light of LRM v. Kastenberg. As an aside, Maj Goewert was one of the appellate counsel arguing on LRM’s behalf in the appellate courts and Capt Dilworth was LRM’s SVC. The article was thought-provoking, particularly toward the end in a section titled “What Information Should be Provided to an SVC.”

This is an interesting section because, as the title indicates, it is almost entirely prescriptive rather than descriptive. In other words, it seems to be making arguments for what evidence should be provided to an SVC, but does not really discuss what evidence is legally required to be provided. It got me thinking about what requirements, if any, exist right now for production of evidence to an alleged victim. Before we proceed though, let me say that I certainly don’t have all the right answers. This blog post is essentially me thinking through a portion of this article. If I’m wrong on something, please set me straight in the comments. This is as much a learning experience for me as anyone else.

Read more »

Here is a thought provoking piece over at Foreign Policy from Morwari Zafar. It argues for a different approach to negotiating criminal jurisdiction over US Servicemembers in the Bilateral Security Agreement with Afghanistan.

Is compromise possible?
Afghanistan’s informal justice mechanisms, while dramatically unlike those of the United States, reinforce local governance structures in Afghanistan. From an Afghan perspective, this system promotes equality and justice in a way that the American system does not. In terms of jurisprudence, even shadow governments like that of the Taliban, though regarded as problematic and oppressive, promote a rule of law that is more consistent with traditional customs than Western ideologies. Furthermore, because years of international developmental support, both pecuniary and technical, have failed to create corruption-free formal governance and justice systems with the capacity to address crimes in Afghanistan, it is understandable that Afghans have more faith in their own informal methods than formal institutions of dispute mediation — particularly those of a foreign government. . . . Thus, the opportunity for a proper, shared dialogue about the criminal jurisdiction of foreign troops operating in Afghanistan provides motivation for the Afghan government to strengthen its formal judicial sector by implementing the impartial, representative mechanisms for which the international community has advocated — processes that would allow Afghans like Wazir to have a voice, reflect the cultural and religious values of Afghan society, and adhere to international human rights standards.

The deal is currently stalled as Afghan President Karzai refuses to sign the deal negotiated by his representatives and US representatives and threatens to release some 80 prisoners from Bagram prison that the US says are responsible for Afghan and Coalition forces murders, see NBC News coverage here.

The third issue of Volume 40 of the Air Force JAG School’s legal magazine The Reporter is available here (link fixed), and it contains some interesting military justice articles.

Two articles discuss the Special Victim’s Counsel program. First, Captain Richard A. Hanrahan, USAF, writes Through Her Eyes: The Lessons Learned as a Special Victim’s Counsel. Next, Major Christopher J. Goewert and Captain Seth W. Dilworth, USAF, discuss The Scope of a Victim’s Right to be Heard Through Counsel, concluding:

Practically speaking, a victim’s counsel is not asking for a third table at the hearing.

and:

It is patently unreasonable for the government to provide a victim’s attorney with no evidence, as the victim would then be represented by counsel that has been rendered ineffective. It is equally unnecessary for victims’ counsel to receive all the evidence in a given case as they are not a party entitled to discovery.

Two articles discuss professional responsibility: Technical Sergeant Michael N. Barker Jr., USAF, reviews Professional Responsibility for Paralegals, and Lieutenant Colonel Thomas W. Murrey Jr., USAF, considers Air Force Rule of Professional Responsibility 8.3: The Duty to Report the Misconduct of Others and the Consequences of Failing to Do So.

Major Sam C. Kidd, USAF, provides an after-action type review of his encounters with the Stored Communications Act as a trial counsel, in Military Courts Declared Incompetent: What Practitioners (Including Defense Counsel) Need to Know about the Stored Communications Act.

And Mr. Thomas G. Becker, DAF, provides a biographical sketch of “the only judge advocate to attain the grade of four-star general” in Four-Star Lawyer: The Journey of General Russell E. Dougherty.

Major General Dunlap, USAF (Ret.), Professor of Law at Duke and former Deputy Judge Advocate General of the United States Air Force, has written a paper that opposes many of the current legislative proposals to change the UCMJ, and Senator Gillibrand’s proposal in particular. His paper is titled Top Ten Reasons Sen. Gillibrand’s Bill is the Wrong Solution to Military Sexual Assault, and is available on SSRN at this link.

The paper’s ten reasons are:

1) It will unnecessarily hurt victims of sexual assault.

2) It will impose a civilian-like process that has shown utterly no sign that it is more successful (and often less successful) at preventing sexual assault than the military’s commander-led system.

3) It will remove commanders – who have direct responsibility for success in combat – from taking tough action they need to take to maintain morale, good order and discipline, and it will shift accountability for sexual assaults away from them.

4) It fails to appreciate the purpose of military law, and the vital role commanders play in it.

5) It removes commanders from the disciplinary process even though the overwhelming majority of members of the armed forces, and their families, give their commanders the highest ratings in the battle against sexual assault.

6) It is inconsistent with the public’s opinion, which expresses vastly more confidence in military leaders than it does in any group of lawyers, including the Supreme Court.

7) It will deprive commanders – unique in their experience and expertise – of a key tool in addressing sexual assault as a threat to military readiness.

8) It is in ‘denial’ about the fact that foreign militaries that removed the commander from the disciplinary process fail to show an increase in the number of sexual assault reports, and may have complicated prosecutions in a way that would be detrimental to the American military.

9) It will unnecessarily cost the military millions in scarce dollars, and will drain needed legal resources away from troops and their families.

10) It is too tainted by bad data and the activities of “Washington-based advocacy groups with limited membership, participating in personal attacks, [and who] do not represent the views of all [sexual assault] survivors.”

Catching up on prior news, for those that missed it, here (pdf) is a report from Heritage Foundation Fellow, Cully Stimson on “Sexual Assault in the Military: Understanding the Problem and How to Fix It,” from Nov. 6, 2013.  Also covered at Lawfare.