I’m under the gun, so I don’t have time to do any more than provide links to the articles.  But that may be of little use to much of our readership.  I can’t access any Army legal links from my home computers — including ACCA decisions, Army Lawyer articles, and Military Law Review articles.  Is that an idiosyncratic problem?  Are others able to access the above articles via non-military computers?  If not, why has the Army decided to make its military justice materials inaccessible to civilians and what can be done to restore public accessibility?

The plea bargain therefore has enormous geopolitical ramifications. Host nations will rightly ask significant questions regarding how the US trains and prepares for armed conflict. American diplomats and military officials must highlight that Haditha’s lessons are being implemented in US commanders’ and soldiers’ trainings. . . . Failure to address these lessons will inevitably raise consequential questions about the true mission of the US throughout the world. If host nations come to believe that their civilian population are considered as tolerable, if not legitimate, targets by the US military, then US foreign policy is both deeply flawed and profoundly endangered. When viewed from neither an American nor a legal lens, that is the true challenge Haditha and the court martial pose. US commanders and government leaders do not have the luxury of time. The former must ensure the implementation of vigorous and robust morality training subject to rigorous standards, assessment models and performance scales; the latter must ensure host nations that their civilians are not our enemies.

See also his pior post here.

Tomorrow’s PBS Frontline show, here.

Prof. Marjorie Cohn, here.

James Joyner, editor at The Atlantic, here.

Most of the attention to post-World War II war crimes trials has focused on the Nuremberg tribunal, where the highest-ranking Nazis were tried before an international court. But in fact, the overwhelming majority of war crimes defendants held by U.S. forces in Europe, 1,676 in all, were tried in a total of 462 trials conducted by the United States Army. The Mauthausen trial, held on the grounds of the Dachau concentration camp, was one of the largest.

Tomaz Jardim, an assistant professor of history at Ryerson University in Toronto and a one-time fellow at the U.S. Holocaust Memorial Museum, has produced what will likely be the definitive study of the Mauthausen trial, its context and its legacy. Drawing on the trial transcript, investigators’ reports, interviews with some of the few participants still alive and the largely self-serving memoir of the chief prosecutor, Jardim’s work is thoroughly researched, even-handed and highly instructive.

Table of contents:

THE DEMISE OF UNITED STATES V.WILSON: A SUGGESTED APPROACH TO C.A.A.F.’S CALL FOR CHANGE
Colonel Louis J. Puleo, USMC

THE PRACTICE OF CRIMINAL LAW IN THE GUANTÁNAMO MILITARY COMMISSIONS
Lieutenant Colonel David J.R. Frakt, USAFR

THE CORROBORATION QUANDARY: A HISTORICAL OVERVIEW OF THE INTERPRETATION OF MRE 304(g)
Colonel J. Wesley Moore, USAF

A QUESTION OF ALLEGIANCE: CHOOSING BETWEEN DUELING VERSIONS  OF “AIDING THE ENEMY” DURING WAR CRIMES PROSECUTION
Michael J. Lebowitz, Office of Military Commissions

“LET COBHAM BE HERE”: THE INTRODUCTION OF DRUG TESTING REPORTS IN COURTS-MARTIAL POST MELENDEZ-DIAZ
Captain Daniel I. Stovall, USAF

THE BRADY BUNCH: AN EXAMINATION OF DISCLOSURE OBLIGATIONS IN THE CIVILIAN FEDERAL AND MILITARY JUSTICE SYSTEMS
Captain Elizabeth Cameron Hernandez, USAF
Captain Jason M. Ferguson, ANG

THIS COURT-MARTIAL HEREBY (ARBITRARILY) SENTENCES YOU: PROBLEMS WITH COURT MEMBER SENTENCING IN THE MILITARY AND PROPOSED SOLUTIONS
Captain Megan N. Schmid, USAF

NEITHER A MODEL OF CLARITY NOR A MODEL STATUTE: AN ANALYSIS OF THE HISTORY, CHALLENGES, AND SUGGESTED CHANGES TO THE “NEW” ARTICLE 120
Brigadier General (Ret.) Jack Nevin, USAR
Lieutenant Joshua R. Lorenz, USN

The premise of an article in the new edition of the Air Force JAG Corps’ Reporter is that SJAs don’t properly evaluate the downside of PTAs when advising CAs and thereby recommend entering into PTAs more often than they should.  See Colonel Kenneth M. Theurer & James W. Russell III, Pretrial Agreements:  The Hidden Cost, Reporter, Vol. 38, No. 2, at 2 (2011).  The article is on the fourth page at this link.  The article includes a number of fascinating statistics concerning the use of PTAs in the Air Force over time.  The Kabul Klipper and I are curious as to what CAAFlog’s readers think of the article’s thesis.  So please read it.  Done?  Now discuss.

The article cites a fascinating article from the Journal of Empirical Legal Studies of which I was previously unaware:  Patricia D. Breen, The Trial Penalty and Jury Sentencing:  A Study of Air Force Courts-martial, 8 J. Emperical Legal Studies 206 (2011).  That article provides the results of a survey of almost every Air Force GCM and SPCM tried in 2005 and 2006.  Among the interesting findings:  when an accused pleads guilty, members typically adjudge 35% less confinement than do military judges.  Another interesting finding:  military judges in practice seem to provide no discount for pleading guilty:  “In the Air Force convicted subsample, average sentences after a judge trial are not significantly different from judge guilty plea sentences, thus indicating the offenders in the Air Force receive an added benefit when they assert their right to a trial because they retain the possibility of an acquittal.”  Id. at 229.

While both articles are fascinating, they also provide still more evidence that something shouldn’t be believed just because it’s been published in a journal.  For example, the Journal of Empirical Legal Studies article states:  “Unlike all other offenses, premeditated murder has a mandatory minimum of life in prison (MCM 2004; Art. 118).”  Id. at 209 n.8.  Not only is that wrong; it’s disproved by its own citation.  Article 118 states that both premeditated murder and felony murder carry a minimum sentence of confinement for life.  Art. 118, UCMJ, 10 U.S.C. § 918 (2006).  Nor are those the only UCMJ offenses that carry a mandatory minimum.  See Art. 106, UCMJ, 10 U.S.C. § 906 (2006).  The article also states, “The maximum punishment for a general court-martial is what the Uniform Code of Military Justice (UCMJ) specifies for that offense.”  8 J. Empirical Legal Studies at 9.  But for non-capital offenses, the UCMJ merely says that the accused ”shall be punished as a court-martial may direct.”  It is the President, in Part IV of the MCM, who provides the maximum punishment for those offenses, doing so pursuant to Article 56.

The Reporter article also contained a passage that left me scratching my head.  The article states, “In fact, a recent study suggests that at least within the Air Force, the accused, on average, does not receive any real benefit in terms of adjudged sentence in return for a plea of guilty.  In essence, the only benefit to the accused is the certainty generated by the sentence limitation provided by the pretrial agreement.”  Reporter, Vol. 38, No. 2, at 8 (footnote omitted).  Well, isn’t it unsurprising that the benefit the accused obtains from a PTA is the sentence cap?  Notice that the Reporter article says that on average, there’s no real benefit in terms of adjudged sentences for a guilty plea.  That doesn’t mean that there’s no benefit in terms of approved sentences.  Nor do I see anything in the Journal of Empirical Legal Studies article indicating how often the defense “beats the deal” in a PTA case and how often it doesn’t.  (Footnote 45 on page 227 doesn’t speak to that issue, but just to the ratio of sentence reductions due to CA actions in members sentencing guilty plea cases versus judge alone sentencing guilty plea cases.) If it’s often the case that the deal is better than the adjudged sentence, then the accused gets more than “certainty” as a result of entering the PTA; the accused gets a lighter sentence.  Additionally, the Journal of Empirical Legal Studies article didn’t study whether charges were dropped due to a PTA; this could be another real benefit to the accused of entering into a PTA.  Another potential unstudied benefit of PTAs is dealing a case to a lower forum.  So in assessing the Reporter article’s thesis, the reader shoud discount the claim that PTAs don’t result in any real benefit to the accused– a proposition that appears to be unsupported by the source it cites in support of that proposition.

h/t Phil “My Liege” Cave

Here’s a link to a “view from the bench” article about handling exhibits.  Lieutenant Colonel Wendy P. Daknis, A View From the Bench:  The Care and Keeping of Documents:  Proper Handling and Use of Documentary Exhibits at Trial, Army Law., June 2011, at 44.

And here’s a link to an article on post-trial delay.  Major Andrew D. Flor, Post-Trial Delay:  The Möbius Strip Path, Army Law., June 2011, at 4.

Speaking of Fred Borch, the Winter 2010 issue of the Military Law Review includes his review of a book by two members of the Abu Ghraib prosecution team. Christopher Graveline & Michael Clemens, The Secrets of Abu Ghraib Revealed: American Soldiers on Trial (2009). Given the ongoing debate we’ve noted over whether the military justice system remains capable of functioning in a combat zone, this conclusion by Borch is particularly interesting: “Since virtually all the investigative work, and most of the prosecutions, occurred in a deployed environment, The Secrets of Abu Ghraib Revealed proves that high-profile courts-martial can be conducted in a combat zone—and that the Uniform Code of Military Justice works in wartime.” 

The book is available from Barnes & Noble for $19.97 here and from Amazon.com for $19.37 here.

This issue also includes this article by COL Mark A. Bridges about the overlooked art of voir dire.  And speaking of voir dire, the issue also includes this article: Major Philip Staten, Clarifying the Implied Bias Doctrine:  Bringing Greater Certainty to the Voir Dire Process in the Military Justice System, Army Law., March 2011, at 17.  

[The Detainee Treatment Act] section 1004(a) . . . extends a version of the defense to U.S. interrogators, but, if interpreted broadly, would immunize interrogators in a manner reminiscent of Nuremberg’s “complete” superior orders defense. Finally, Part III suggests that a focus on the techniques and conduct at issue, through the lens of an objective test for “manifest unlawfulness” may be the best option for preserving individual responsibility when officials and agents may be tempted to seek “advance pardons” from government lawyers.

In the final estimation, political realities will likely foreclose prosecution of interrogators whose reliance on legal guidance caused them to cross the line that separates interrogation from torture. Given the active role of counsel at all levels of the national security bureaucracy, however, it is imperative to delineate the proper scope and application of the legal defenses agents will raise when their actions, duly authorized by superiors and conducted after consultations with legal counsel, nevertheless break the law.

H/t JNSLP.

The featured article on the Journal of National Security Law & Policy‘s website is this piece by Yale Law professor and NIMJ President Gene Fidell called, “The Next Judge.”  The article discusses criteria that should be considered in selecting Chief Judge Effron’s replacement.  Professor Fidell offers provocative thoughts about how issues of diversity and judicial viewpoint might be considered in the selection process.  He also offers these questions he would ask if he were interviewing prospective nominees:

1. What does the individual think about the court’s low caseload, low grant rate, and unique ability to preclude Supreme Court review?

2. What does the individual think about the surprising frequency of petitions for grant of review that cite no issues?

3. What does the individual think about Project Outreach, under which the court hears arguments at law schools, civilian venues, and military installations?

4. What does the individual think about the utility of the Code Committee?

5. What approach would the individual take to achieving cost reductions and providing electronic public access to the court’s dockets?

The journal is published by the Pacific McGeorge School of Law (which, appropriately enough, just hosted a CAAF Project Outreach argument) and the Syracuse University’s Institute for National Security and Counterterrorism.

h/t NIMJ blog

The article’s author, Dr. Gregor, isn’t a lawyer.  I wonder whether either he or Parameters bothered to run the article past a lawyer before publication, because the article’s central thesis rests upon an erroneous legal assumption.  In 1993, Congress made certain findings to support adoption of the Don’t Ask, Don’t Tell statute.  Nat’l Defense Authorization Act for Fiscal Year 1994, 107 Stat. 1547, Pub. L. No. 103–160, Title V, § 571(a)(1) (1993).  Some of these findings were consistent with and/or restated preexisting legal precedent.  Dr. Gregor’s key mistake is that he believes the statute which will soon repeal those findings results in the overturning of the preexisting legal precedents with which they are consistent.  See Don’t Ask, Don’t Tell Repeal Act of 2010, 124 Stat. 3515, Pub. L. No. 111-321.  He cites precisely nothing to support that thesis.

Let’s take his central argument.  Dr. Gregor argues that the repeal of the following finding will result in the overturning of Solorio v. United States, 483 U.S. 435 (1987), and the return of O’Callahan v. Parker, 395 U.S. 258 (1969):  “(9) The standards of conduct for members of the armed forces regulate a member’s life for 24 hours each day beginning at the moment the member enters military status and not ending until that person is discharged or otherwise separated from the armed forces.”  The repeal of that finding, Dr. Gregor argues, “returns the military to the O’Callahan rules.”  Gregor at 6.  It does no such thing.  Any legal argument that the repeal of finding (9) will reinstate O’Callahan would be accurately dismissed as frivolous.  Solorio didn’t rest on finding (9) — a fact that is obvious, since the Supremes announced their Solorio decision six years before Congress adopted the Section 654 findings.  Rather, Solorio rested on “an unbroken line of decisions from 1866 to 1960″ holding that ”the proper exercise of court-martial jurisdiction over an offense” rested “on one factor:  the military status of the accused.”  Solorio, 483 U.S. at 439.  That line of cases, Solorio‘s holding, and the statutes under which court-martial jurisdiction is determined will remain intact once the statutory prerequisites for Section 654′s repeal are satisfied.

The article’s argument that “it is obvious that rescinding Section 654 overturns” Parker v. Levy, 417 U.S. 733 (1974), Gregor at 8, is similarly fanciful.  Dr. Gregor, meet Chicken Little.

The article also makes several credibility-damaging small mistakes, including the misspelling of former USAF First Lieutenant Kelly Flinn’s name (page 9) and referring to “the Uniformed Code of Military Justice” (page 2).  (Doesn’t Parameters have editors?)  Of greater concern, the article appears to intentionally ignore an inconvenient fact.  Dr. Gregor states that, after first holding in United States v. Beeker that the use and possession of controlled substances was service-connected for O’Callahan purposes, “the Court of Military Appeals renounced the decision seven years later, holding that O’Callahan and Relford v. Commandant mandated the conclusion that off base drug offenses committed by a servicemember could not be tried by court-martial.”  Gregor at 9 (footnote omitted).  Would you agree that the author of an academic article making that claim should also inform the reader that in 1980, COMA reexamined that issue and determined that even off-base, off-duty drug use by a servicemember is generally service connected, a holding that remained in place when Solorio was decided?  See United States v. Trottier, 9 M.J. 337, 340-51 (1980).  Well, Dr. Gregor didn’t inform his readers of that fact.  And it’s almost certain that he knew that fact.  In support of his proposition that COMA had held drug use not to be service connected, Dr. Gregor cited footnote 17 of SCOTUS’s Solorio opinion.  Footnote 17 noted both COMAs 1976 reveral of Beeker and its decision four years later in Trottier once again concluding that drug use generally is service connected.  Solorio, 483 U.S. at 450 n.17. 

Failure to present known facts inconsistent with the author’s thesis isn’t the article’s only departure from the normal rules of academic discourse.  The article also makes dubious claims without providing any supporting citations.  For example, Dr. Gregor states that “some members of Congress now want to set aside U.S. military precedent and follow foreign military practice, making servicemembers ‘sometimes soldiers.’”  Gregor at 9.  Really?  Who?  When did any Member of Congress say such a thing?  And what documents such statements?  I can ask, but Dr. Gregor isn’t telling.  He makes this and other supposedly factual statements without providing any supporting reference.

In reality, the repeal of the Section 654 congressional findings will have no effect beyond the demise of Dont’ Ask, Don’t Tell, notwithstanding Dr. Gregor’s breathless warning that the repeal “will radically change the American system of military justice and discipline.”

• “53% of TCs tried less than ten total cases; 78% prosecuted less than five contested courts-martial.”  Id. at 25. 

• “Forty-three percent of defense counsels responding to the survey have less than one year of MJ experience; 39% have tried fewer than five total courts-martial; and 62% have less than five contested cases (81% have less than 10).”  Id. at 26. 

• “Senior trial counsels (STC), senior defense counsels (SDC), and chiefs of military justice (COJ) possess much more experience, on average, than the TC and DC, but even their statistical data is troublesome. Seventy percent of STCs have less than ten contested courts-martial and 30% have less than two years MJ experience; 22% have less than five contested cases; and 44% have less than ten contested cases. Eleven percent of SDCs have less than one year total MJ experience; 11% have less than five contested cases; and 55% have less than ten contested courts-martial.” Id.

Among the changes the article proposes to deal with the Army’s dearth of military justice experience are:

• “[P]lac[ing] experienced litigators on all contested courts-martial” to ensure proper mentorship of inexperienced counsel. Id. at 31.

• Making some senior military justice positions “‘coded’ billets” requiring specified Additional Skill Identifiers. Id. at 32.

• Placing warrant officers in charge of post-trial processing. Id. at 33.

• Creation of “regional military justice practitioner (RMJP) position[s] at major installations with area jurisdictions.” Id.

The article also concludes that [p]erhaps the best way to ensure that the JAG Corps is providing quality military justice counsel is to implement a military justice career track similar to the Navy’s.” Id. at 34.

Military justice wonks will also be interested in MAJ Derrick W. Grace’s article, Sharpening the Quill and Sword:  Maximizing Experience in Military Justice.  I’ll proably have more to say about MAJ Grace’s interesting article over the weekend.