CAAFlog » Rants

Our #2 Military Justice Story of 2015 was Government Bloopers.

Now the New York Times reports here that:

SUTHERLAND SPRINGS, Tex. — A day after a gunman massacred parishioners in a small Texas church, the Air Force admitted on Monday that it had failed to enter the man’s domestic violence court-martial into a federal database that could have blocked him from buying the rifle he used to kill 26 people.

Could is the wrong word. Should (as discussed here).

It won’t be long before the partisans add this to their list of reasons why commanders should be stripped of their convening authority, but I still blame the lawyers.

Today – in an email discussion gone rogue – the question arose of how many people a CAAF opinion affects.

Including only people who are either currently subject to UCMJ jurisdiction or have a real potential to become subject to such jurisdiction (for the sake of simplicity), I put the number at approximately 3.7 million.

Here’s the breakdown:

Note: Retirees is the total on page 27 of the link (2,308,073) less reserve retired (395,808) and survivors (325,889).

For comparison, the 2016 estimated median population of the states (excluding Puerto Rico and the District of Columbia) is 4.5 million.

3.7 million is right between the estimated populations of Connecticut (3.5 million) and Oklahoma (3.9 million).

[First I know it wasn’t a debate, so don’t hit send on that hate mail you are drafting]

From the Republican Presidential candidate, per NPR (here):

The Pentagon has to set up a “court system within the military,” . . . One today “practically doesn’t exist … Right now, part of the problem is nobody gets prosecuted. You have reported and — the gentleman can tell you, you have the report of rape and nobody gets prosecuted. There are no consequences. … Look at the small number of results. I mean, that’s part of the problem.”

So what the heck has the Mil Jus system been doing for the last five years?  Because all I see them doing is dealing with the issue of sexual assault.

So this post squarely falls into the category of “Rants” because I just can’t take the fact that we have a Presidential candidate that has absolutely no accountability for rolling out a blatant falsehood. The Republican candidate is the political equivalent of Tommy Flanagan on this issue. It is not like the numbers aren’t available either.  See here and here and here . . . and that’s just 2015 numbers, you get the point.  So here are the numbers:

Of the 6,083 initial complaints filed last year, about 1,500 were “restricted,” meaning the victim was a service member who reported the assault but refused to participate in any criminal investigation and only sought healthcare and victims’ support services.

In 2015, military criminal investigators reviewed 4,584 “unrestricted” reports from victims who were willing to participate in a potential prosecution. . . .

After completing investigations, 2,783 cases were sent to military commanders.

. . . .
Commanders launched court-martial proceedings against the alleged perpetrator in 926 cases. Among those, 159 were closed because the alleged perpetrator resigned from the military, and 111 were closed because the case was dismissed in pretrial proceedings.
Of the 543 cases that ultimately went to court-martial, 130 resulted in not-guilty verdicts.
Of the 413 troops convicted at court-martial, 161 resulted in charges unrelated to sex assault.
In 254 cases, a service member as convicted of a sexual assault-related offense.

[edit:  So if the candidate is going to lob out this “nobody gets prosecuted” statement, what’s his solution?  That’s what campaigns are about.]  Let’s look at what the conservative Heritage Foundation and friend o’ CAAFlog, Cully Stimson, said about removing command authority as a way to achieve better success in sexual assault cases in the military:

The facts also do not support this argument. None of our allies has a caseload as large as the armed forces of the United States. Despite this caseload, our current U.S. system remains more effective than those of our allies. For example, the Army installation at Fort Hood alone has a higher conviction rate than Canada Defense Forces and is equal to the Israeli Defense Force in courts-martial for sexual assault offenses.  Most of America’s allies reported that removing the authority to prosecute from the chain of command has slowed prosecutions, and they saw no increase in the number of convictions under the new system.

Article here.  Is that what this candidate is proposing?  Please someone hold this candidate accountable when he just speaks untruths or at least force him to posit a solution to the problem.

Well, this came over the transom.  It’s “unclassified.”  I was tempted to label it as “In the Theater of the Absurd II.”  But for the moment it’s under “rants” and “professional responsibility.”  Perhaps if we had more facts — anyone?

(Update 1100, 3 May.  It appears the search authorization was granted by the Area Commander who likely did have the authority over the particular building, it’s contents, and the people for search authority purposes.  So authority to search should be limited to whether the appropriate amount of cause existed to search, and of course how it was executed.)

It is not uncommon in the civilian community for the feds or local police to obtain a search warrant (from a independent magistrate), for a lawyers office.  When that happens there’s a process and a “taint team” is used in order to try and preserve the integrity of defense counsel files.

But now, Marine CID search defense counsel offices.  Some of you will recognize the spaces, but I have whited out certain parts.

My initial rant here relates to the apparent method in which the government has proceeded.  At some point we may determine whether it was – ahem – warranted.  To be clear this may not be as clear cut black and white under military law or state ethics rules in terms of seeking the evidence itself.

See United States v. Rhea, 33 M.J. 313 (C.M.A. 1991).  (I’m still looking for the AF case from some time ago where I thought the ADC offices were searched.)

Have they not heard of a “taint team?”  While I am at times critical of AFOSI, they and their legal advisor are at least familiar with the practice when seeking information that might be subjected to a claim of attorney-client privilege.  They could have given pointers.  (See, United States v. Bruhn, ACM 37291 (A. F. Ct. Crim. App. February 3, 2010)(I did the writ and 32).  Who knows, even the NCIS legal advisor might have raised that flag.

So, what about this.  Was this considered.

The most common scenario where compromise arises in military criminal practice is in search and seizure situations. The first consideration ought to be the place or thing to be searched. For as noted, some locations or objects are much more likely than others to contain privileged information. In the military context, if the offices of an attorney, clergyman, or psychotherapist are to be searched (hopefully, a rare occurrence), many of the files and electronic media in the office may be privileged. This is especially true in the search of an attorney’s office, because most of the files will contain either client confidences or attorney work-product (discussed fully in Part IV, infra). Thus, great care should be used in these situations. In the civilian sector, the gravity and implications of such searches have been the subject of both congressional and executive concern. In fact, the Attorney General of the United States has published guidelines for federal officers who want to obtain documentary evidence from disinterested third parties (persons who are not themselves the subject of the investigation) who may also be the holders of confidential information.

Caution is required when searching businesses, home offices, or storage areas (including rented lockers) which appear to contain personal or business records. Particular objects warranting caution include business or corporate files and computers, private personal computers, personal digital assistants (like the hand-held PalmPilot TM -type computer organizers, cellular telephone memories, magnetic media (disks, tapes, memory cards, etc.), and paper documents which are marked as privileged or which appear to relate to litigation or the legal affairs of the suspect.

If investigators know or suspect, as in the case of an attorney’s office, that they are likely to come in contact with privileged matter, they must develop a plan to handle these materials properly. There are several approaches discussed below in the subsection on handling compromises. A solid first step is to devise a plan for screening the materials and removing any privileged documents after the search. Ideally, this plan should be described in the documents used to obtain the search authorization. This makes clear that the investigators are acting in good faith, and that the government recognizes the need to protect any privileged material which is discovered.

(Note who one of the authors is)  Lieutenant Colonel Norman K. Thompson, USAF and Captain Joshua E. Kastenberg, USAF, ARTICLE: The Attorney-Client Privilege: Practical Military Applications of a Professional Core Value, 49 A.F. L. Rev. 1 (2000)(emphasis added).

I have referenced the U.S. Attorney’s Manual in briefs and posts.  This is their approach.

Clearance with the Criminal Division. Because of the potential effects upon an attorney-client relationship that may result from the issuance of a subpoena to an attorney for information relating to the attorney’s representation of a client, the Department exercises close control over such subpoenas. Such subpoenas (for both criminal and civil matters) must first be authorized by the Assistant Attorney General for the Criminal Division before they may issue, unless the information sought falls into one of the exceptions set forth below. Unless one of the specified exceptions applies, authorization must be obtained even for a “friendly subpoena” for client-related information, that is, even in situations where the attorney witness is willing to provide the information but requests the formality of a subpoena.

Preliminary Steps. When determining whether to issue a subpoena to an attorney for information relating to the attorney’s representation of a client, the Assistant United States Attorney must strike a balance between an individual’s right to the effective assistance of counsel and the public’s interest in the fair administration of justice and effective law enforcement. To that end, all reasonable attempts shall be made to obtain the information from alternative sources before issuing the subpoena to the attorney, unless such efforts would compromise the investigation or case. These attempts shall include reasonable efforts to first obtain the information voluntarily from the attorney, unless such efforts would compromise the investigation or case, or would impair the ability to subpoena the information from the attorney in the event that the attempt to obtain the information voluntarily proves unsuccessful.

9-13.000, Guidelines for Issuing Grand Jury or Trial Subpoena to Attorneys for Information Relating to the Representation of Clients, U. S. Attorney’s Manual, Title 9.  See also, 9-13.420, Searches of Premises of Subject Attorneys.

There is some criticism made about the defense counsel standing by and letting it happen.  I’m not sure about this and would have to let this fester overnight.

The charges do apparently include 120.

The Article 32 is currently ongoing, and the IO has “ruled” the phone unavailable.  It appears the DC declined to provide the cellphone asserting the attorney-client privilege.  If so, then clearly the command and government representatives are on notice of a claim of privilege and ought to act accordingly.

And CID is searching offices of unrelated DC’s apparently.

Where will this end, maybe Col Perlak’s office?

Lessons learned:  Defense counsel may not conduct an investigation, unless they want to subject their client to an orders violations.  True or false?

CID and prosecutor’s may rummage through defense counsel’s offices without concern for privileged information deliberately or inadvertently viewed by outside CID and prosecutors.  True of false?

All accused’s serviced at this LSSS need to question whether CID or prosecutors have had access to privileged matters about their own case during the searches.  True or false?

The Navy-Marine TCAP, and other Service TCAP’s (or TJAG’s) have a protocol, similar to DOJ, for searching defense counsel’s offices.  True or false?


Over at Lawfare, Benjamin Wittes writes about a presentation by Captain Patrick McCarthy, JAGC, U.S. Navy, at the 26th annual International Military Law and Operations (MILOPS) Conference, on the subject of non-international armed conflict (NIAC) detention operations. I met Captain McCarthy and his team in Kabul a few years ago, and was quickly overwhelmed by the enormous amount of trust and loyalty he earned from the company grade judge advocates who worked for him. 

About detention operations, Ben reports that CAPT McCarthy explained that:

when he looks back at the last 12 years of detention policy, he says, there are some lessons that seem obvious in retrospect. The United States picked some fights it didn’t need to pick.

Most importantly, it was less transparent than it should have been, and this lack of transparency created a deficit in trust and legitimacy. The United States, he argues, has come a long way, but the legacy remains.

The irony, he points out, is that the U.S. was applying most of the required law from early on. But the secrecy and its refusal to embrace applicable law overtly obscured that. So the first lesson, he says, is that transparency is essential.

I did detention operations in Afghanistan at both the ground level and at the regional command headquarters level, and transparency was an issue in both places. Transparency is also a big issue in the military justice system, where there’s a strong case to be made that we’ve been doing it right from early on, and that the detractors are wrong on the facts. But what struck me most was this part:

At the end of the day, [CAPT McCarthy] says frankly, the courts got the U.S. back on track. The courts forced the government to validate its processes. This was a very painful process. There was a lot of reticence in the military about getting the courts involved. But it was hugely important.

It’s an understatement to say that the detention operations mission got a lot of scrutiny over the past decade. Between scathing editorials, action by the Supreme Court, fights with Congress, more fights with Congress, fights with our allies, and fights with ourselves, military lawyers who specialize in detention operations are likely experiencing schadenfreude watching the pressure now on their colleagues in the military justice world.

But Ben reports that CAPT McCarthy said that it was the courts that “forced the government to validate its processes,” and got detention operations “back on track.” The courts, presumably, means the Article III federal courts. The very courts that give unparalleled deference to the military justice system; that find our system one “in which judicial deference to Congress’ determinations is at its apogee.” Weiss v. United States, 510 U.S. 163, 164 (1994) (Oyez case page).

It won’t be those courts that fix our system.

There are few alternatives. I see just the Executive (of which judge advocates are a significant part), and the Congress. So, which of these institutions will define the future of military justice?

WARNING, this might be considered a defense oriented post.

How silly does it get. Across the transom today I received these linked documents.

On 23 April 2014, ACCA issued a Order in Morse v. Biehl and Agar, Army Misc. 20140294 (23 April 2014).

(Update:  the command rescinded the order to petitioner and his counsel.)

The Order granted petitioner’s request to withdraw the petition.  And yes, this is the sexual assault case of LTC Morse.  COL Agar is the SJA MDW if you didn’t know. So why all the fuss.  The attached filings may help understand the unfathomable.  I will liberally copy from the petition and brief in support and you may decide for yourself, and then decide if I have correctly titled this post. The brief begins:

In this case, the government has taken the extraordinary action of ordering the Petitioner and his assigned Trial Defense Service counsel to cease and desist in engaging in any investigation of the allegations against Petitioner, without a factual predicate of malfeasance, and simply at the behest of the purported victim.  (Emphasis in original.)

Assuming the facts to be true, the facts also document the biased and ineffective CID investigations all too common in sexual assault cases, and how effective defense investigations can develop helpful information ignored or unlooked for by “trained investigators.”  (See references to tunnel vision at this post.)

A new prosecutor once complained to me about a certain celebratory tradition of Marine Corps defense counsel, claiming that it is unprofessional bragging. “When you lose 90% of the cases,” I responded, “you really need to celebrate the wins.”

And the defense really does lose (that is to say, there is a conviction) in about 90% of courts-martial. For instance, the FY13 report of the Code Committee provides the following numbers for the period October 1, 2012 to September 30, 2013:

The Army tried 1,087 general and special courts-martial, resulting in 989 convictions and 98 acquittals (a 91% conviction rate).

The Navy tried 293 general and special courts-martial, resulting in 262 convictions and 31 acquittals (an 89% conviction rate).

The Marine Corps tried 427 general and special courts-martial, resulting in 367 convictions and 60 acquittals (an 86% conviction rate).

The Air Force conducted 619 general and special courts-martial, resulting in 525 convictions and 94 acquittals (an 85% conviction rate).

The Coast Guard conducted 23 general and special courts-martial, resulting in 20 convictions and 3 acquittals (an 87% conviction rate).

As the 2,163 courts-martial resulting in convictions in FY13 work their way through the military appellate system, we will have a reason to discuss maybe 100 of them on this blog. But those 100 or so cases will be notable because of asserted errors for which a remedy will benefit the accused (and, if you believe that military justice is a zero-sum game, hurt the Government).

We won’t discuss the vast majority of cases – especially the cases with airtight investigations, overwhelming proof of guilt, and flawless prosecutions – because there will be nothing much to discuss. Frankly, from an appellate perspective, those cases are boring.

But when we wade into the provocative muck of these other cases – the ones with judicial bias, prosecutorial misconduct, insufficient evidence, issues of first impression, and just plain bad lawyering – we’re inevitably talking about reasons why seemingly-bad people should be set free. Intelligent conversation about these cases requires looking beyond the bad things that the people in them did (or at least were convicted of doing) and focusing on the system that is punishing them and the kind of justice that it provides.

My contributions to this blog aren’t defense-oriented nor are they prosecution-oriented. I’m interested in the law, I want to get it right, and I write about cases that intrigue me. That’s my bias. And I suspect that the other contributors, and the vast majority of our readers, feel exactly the same way.

I read this piece from WaPo’s Petula Dvorak and it convinced me that I wanted to say something about media coverage of LTC Krusinski arrest and the recent uproar over sexual assault courts-martial.  Ms. Dvorak writes about how the military could learn something from the prosecutor in Arlington County that refused the military’s request  to prosecute the Krusinski case.  She ends by saying:

Hey Pentagon commanders, look over that 395 freeway onramp, just past the McDonald’s and Macy’s, and see how allegations of sexual assault ought to be dealt with. Like a potential crime.

To clarify, the Arlington prosecutor has so far charged Krusinski with a “misdemeanor charge of sexual battery.”   See JMTGst’s post below.

Now, leaving aside from the reality of the DoD  survey data on sexual assault that OFL has commented on here, here is my rant.

Read more »

We’re still waiting for CAAF to act in 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. That’s the case seeking extensive public access to the PFC Manning court-martial. CAAF heard oral argument back on October 10, 2012, and then ordered submission of additional briefs to address questions of jurisdiction to decide the case. Those briefs were due before the end of October.

One of the major positions taken in that case was the Government’s argument that the petitioners should use the FOIA process, with the petitioners replying that the FOIA process was inadequate. We considered that question (in the context of this blog) here and (in the context of the Salyer case) here and here.

I won’t predict that CAAF’s long deliberation means a major opinion (though I hope it does). But while we’re waiting for the court, we have the unique opportunity to see what happens when a military justice system provides the kind of transparency at issue. And it’s happening in what might seem like the unlikeliest of places: the military commissions.

Lawfare is closely following the developments since the D.C. Circuit found that a charge of material support for terrorism for pre-2006 conduct cannot be brought before a military commission, because material support is not a traditional war crime under the international laws of war. There’s lots of analysis, particularly a post today that dissects some recent filings in the case against the five 9/11 conspirators:

The Guantánamo military commissions yesterday released a pair of important filings by the Office of the Chief Prosecutor (OCP), regarding the ongoing controversy over the conspiracy charges against the five 9/11 defendants.

The reason for and reasonableness of such transparency – as opposed to the practical equivalent of yelling “FOIA” with your fingers in your ears – is pretty clear. In the words of the Government’s Chief Prosecutor, Brigadier General Mark Martins:

Example of Guiding Principles: Transparency

Prosecutorial discretion is also guided in matters of transparency, such as decisions regarding public access to trials.  Military commissions prosecutors will continue, as we did last month, to submit formal motions urging judges to permit closed circuit video transmission of live proceedings to locations in the continental United States for viewing by victim family members, by the media, and by the public.

The Supreme Court has said that “[p]eople in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”  The best traditions of public prosecution and wartime accountability call for us to allow the American people and world to witness these criminal trials.  I want to take this opportunity, by the way, to recognize the leadership and hard work of Doug Wilson, Jeh Johnson, Bruce Macdonald, Mike Chapman, and Wendy Kelly in making possible the stateside closed circuit viewing of military commissions.  I also recognize convening authority Bruce Macdonald for his vision in designing and fielding the new military commissions website, where the morning after a proceeding is now posted an unofficial and unauthenticated transcript specifically to increase transparency.

The President is reportedly considering leaving zero American forces in Afghanistan after 2014.

If asked why they joined the military, many judge advocates answer “to deploy.” At least, many who joined during the past decade. Like me, for example.

What will we do… More trials, perhaps?

This Washington Times story speaks for itself:

The Marine Corps has issued new rules for randomly testing its warriors twice yearly with a Breathalyzer to make sure they are not drunk on duty.

The Dec. 12 memo from Corps headquarters at the Pentagon said test kits are being shipped to commanders, including those in war zones, and spells out steps to take if a Marine registers a blood-alcohol content of .01 or higher in the test.

The random mandatory testing is called the Alcohol Screening Program (ASP).

“The ASP provides an opportunity for commanders to identify those individuals in need of alcohol abuse/misuse training, counseling and/or treatment … Commanders shall ensure that all Marines and sailors in their commands are tested twice per year,” the memo states.

Navy and Marine officials said in March the military branches would begin alcohol screening in addition to the already mandated urinalysis to counter drug abuse.

The Dec. 12 memo explains how a new bureaucracy will be created to carry out the testing and, perhaps, discipline.

In what still isn’t – yet – a military justice story…

Fresh on the heels of publication of DoD Directive 3000.09 dated November 21, 2012: Autonomy in Weapon Systems, comes the apparent demise of the production of a DoD Law of War Manual. Says Lawfare:

Last week in DC, the ABA Standing Committee on Law and National Security put on its annual “review of the field” conference.  It was a great event, as always.  One of the highlights was a very interesting speech delivered by Hays Parks, who among many other achievements in a long and distinguished career had taken the lead in the multi-year process of producing a DOD Law of War Manual.  The effort to publish that manual now appears to be dead in the water, for better or worse, and the speech Hays gave at last week’s meeting is something of a post-mortem providing his view as to why things stalled.

Let’s just hope that the machines don’t read Shakespeare.

so it’s not a military justice story… yet. Over at Opinio Juris they’re talking about the brand new DoD Directive 3000.09 dated November 21, 2012: Autonomy in Weapon Systems.

4. POLICY. It is DoD policy that:

a. Autonomous and semi-autonomous weapon systems shall be designed to allow commanders and operators to exercise appropriate levels of human judgment over the use of force.

And among the definitions:

autonomous weapon system. A weapon system that, once activated, can select and engage targets without further intervention by a human operator. This includes human-supervised autonomous weapon systems that are designed to allow human operators to override operation of the weapon system, but can select and engage targets without further human input after activation.

semi-autonomous weapon system. A weapon system that, once activated, is intended to only engage individual targets or specific target groups that have been selected by a human operator. This includes:

Semi-autonomous weapon systems that employ autonomy for engagement-related functions including, but not limited to, acquiring, tracking, and identifying potential targets; cueing potential targets to human operators; prioritizing selected targets; timing of when to fire; or providing terminal guidance to home in on selected targets, provided that human control is retained over the decision to select individual targets and specific target groups for engagement.

“Fire and forget” or lock-on-after-launch homing munitions that rely on TTPs to maximize the probability that the only targets within the seeker’s acquisition basket when the seeker activates are those individual targets or specific target groups that have been selected by a human operator.

unintended engagement. The use of force resulting in damage to persons or objects that human operators did not intend to be the targets of U.S. military operations, including unacceptable levels of collateral damage beyond those consistent with the law of war, ROE, and commander’s intent.

Sleep tight.

Can anyone tell me why the Bio of Army TJAG, LTG Dana K. Chipman is behind an AKO firewall?

Sexual assault is a heinous crime, and victims of sexual assault often endure all manner of humiliation beyond the assault itself: public shaming, private disdain, invasion of privacy by criminal investigators, and a slew of embarrassing medical exams.

That makes it especially disgusting when the “victim” is a “fraud.”

UCLA Law professor Eugene Volokh writes, over at the Volokh Conspiracy (link may not work on government computers, for no good reason), about a Los Angeles Times article about the reversal of  “the 2002 rape and kidnapping conviction of former Long Beach Poly football standout Brian Banks.”

Banks, now 26, was wrongly convicted of the charges based on the testimony of Wanetta Gibson, an acquaintance.

Gibson testified that Banks raped her on the Poly campus. Banks said the encounter was consensual.

Rather than face a prison term of from 41 years to life, Banks accepted a plea deal that destroyed his dream of playing college football. At Poly, he had been a star at linebacker.

Gibson sued the Long Beach Unified School District, claiming the Poly campus was not a safe environment, and won a $1.5-million settlement.

Nearly a decade later, Gibson contacted Banks on Facebook, met with him and admitted that she had fabricated the story.

Banks spent more than five years in prison, was required to register as a sex offender and was still on probation wearing an electronic monitoring device.

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