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.

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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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Code 45′s famous snakes and ducks crest derives in part from this excerpt from a 1978 Navy Court of Military Review opinion:

In this connection, in United States v. Rivera, 6 M.J. 535 (N.C.M.R.1978), we expressed concern that a number of military lawyers appear relatively indifferent to the perpetuation of traditional military terminology, practices and procedures. Many have certainly taken to so-called “civilianization” of the United States military justice system like ducks to water. Yet the truth of the matter appears to be that this timorous and undisciplined spirit of conformism may be fraught with some serious problems.

“Civilianization” of the military justice system is no mere bubble blown out of a legal pipe dream. Records of trial reveal that even our military judges, along with the High Court, often refer to a duly constituted military membership court as “the jury”. And only recently this Court considered an assignment of error wherein it was asserted that the accused was denied a fair trial because the “jury” that tried him was not composed of 12 members. Apparently, we seem to be entering a period where we are using the same terms with different meanings.

United States v. Rivera, 6 M.J. 535, 537 n.3 (N.C.M.R. 1978).

Court-martial panels aren’t juries.  If they were, they couldn’t have only five members or reach non-unanimous verdicts when they have six members.  Ballew v. Georgia, 435 U.S. 223 (1978); Burch v. Louisiana, 441 U.S. 130 (1979).  The Supreme Court has repeatedly stated that the Sixth Amendment right to trial by jury doesn’t apply to courts-martial.  See, e.g., Whelchel v. McDonald, 340 U.S. 122, 127 (1950) (“The right to trial by jury guaranteed by the Sixth Amendment is not applicable to trials by courts-martial or military commissions.”).

All of that went through my mind this past week when I first noticed what was written on a sign I’d walked by hundreds of times since my office moved to Joint Base Andrews last year.  Here is the sign on the deliberation room at the Andrews trial courtroom:

That isn’t the only sign at the trial courtroom complex that abandons standard military justice nomenclature.  Here’s another:

And how does the signage refer to the defense counsel?  I don’t know; there didn’t seem to be a room reserved for one of them.

In the category of “so much the same, but still so very different” is the recent news that the Solicitor General’s office filed a letter with the Supreme Court to “correct its prior statement to [the] court” in the case of Nken v. Holder, which was decided in 2009. In its brief in that case, the government wrote: “By policy and practice, the government accords aliens who were removed pending judicial review but then prevailed before the courts effective relief by, inter alia, facilitating the aliens’ return to the United States by parole under 8 U.S.C. 1182(d)(5) if necessary, and according them the status they had at the time of removal.” SCOTUSblog takes it from there:

Lawyers who specialize in immigration apparently were not aware of any such “policy and practice.”  Eight months after the Supreme Court’s decision in Nken, a coalition of immigrants’ rights groups filed Freedom of Information Act (FOIA) requests with the Justice Department and other government agencies, seeking the facts on which the government’s claim may have been based.  As those efforts proceeded, the Solicitor General’s office ultimately told those groups that a search of its records had turned up four pages in an e-mail exchange, in December 2008 and January 2009, discussing what would be said in the government’s brief to the Supreme Court.

The SG’s office, however, refused to disclose those e-mails.   So, last May, the immigrants’ rights groups filed a lawsuit in District Court in New York City, seeking an order to compel disclosure under the FOIA.  The complaint cited the government’s brief in Nken, arguing that “the government has made repeated public statements that it has a policy and practice of bringing back individuals who prevail in their immigration cases from abroad and continues to oppose motions to stay removal based on this promise to bring back individuals.”

Disputing that, the complaint said that “individuals who prevail in their immigration cases from abroad have faced substantial difficulty returning to the United States.  Despite efforts to seek out the government agencies and components responsible for facilitating return, individuals, their lawyers, and community organizations remain in the dark regarding the actual government process for return.”  In fact, the complaint said, citing several instances, “our government agencies have constructed multiple barriers to return which has resulted in individuals and their advocates spending months and years trying to return to family and community in this country….Generally, there is a lack of clarity or consistency as to which government agencies are responsible for arranging return and an attitude of indifference as to how, if at all, individuals can return.”

In other words, such a formal “policy and practice” didn’t exist. Rather, as the Solicitor General’s office explains in the second page of its letter, “the issue was not addressed by statute, and the government had not established a procedure as such: the volume of such cases was not large, and they were handled on a case-by-case basis.”

DOD policies have also been discussed in the federal judiciary recently, particularly Department of Defense Directive 5525.7 (2007), which implements the “Memorandum of Understanding between the Departments of Justice and Defense relating to the investigation and prosecution of certain crimes.” That policy says, in part, that “crimes committed outside a military installation by persons subject to the Uniform Code of Military Justice which, normally, are tried by court-martial will be investigated and prosecuted by the Department of Defense.” However, like with the asserted immigration policy in Nken, the actual practice may vary, and offenses may in fact be handled on a case-by-case basis.

“No procedural principle is more familiar to this Court than that a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” United States v. Olano, 507 U.S. 725, 731 (1993) (citing Yakus v. United States, 321 U.S. 414, 444 (1944)).

In the absence of an objection at trial, some issues are waived (prohibiting relief on appeal) and others are forfeited. Appellate courts will only grant relief on a forfeited issue if there is plain error. To show plain error:

Appellant has the burden of demonstrating: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused.” United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F., 2011).

The test for prejudice is a significant barrier to relief. It is not enough that there was error in the trial, because  “[a]ny trial error can be said to impair substantial rights if the harm is defined as being convicted at a trial tainted with fill-in-the-blank error.” Puckett v. United States, 556 U.S. 129, 142 (2009). In other words, the error is not the prejudice; there must be both some wrong and some harm caused by the wrong. Otherwise there is chaos, because if any mistake at trial can overturn a conviction, there would be no convictions.

In United States v. Fosler, 70 M.J. 225 (C.A.A.F., 2011), CAAF ruled that it was error for the military judge to deny the appellant’s trial-stage motion to dismiss an Article 134 specification (adultery) that did not allege a terminal element. Lance Corporal Fosler contested his guilt at trial before members, and the trial judge’s denial of his motion to dismiss affected substantial rights, chief among them “[t]he Constitution[al] protect[ion] against conviction of uncharged offenses through the Fifth and Sixth Amendments.” Fosler, 70 M.J. at 229. Courts-martial exist in a notice-pleading jurisdiction, meaning that a charge must notify the accused of the offense and its elements (satisfying the 6th Amendment), and protect him from double-jeopardy (satisfying the 5th Amendment), and Fosler claimed inadequate notice at trial and pleaded his innocence, creating a clear basis for relief.

But in the seven months since CAAF issued its opinion in Fosler, the court has received numerous claims that are far more speculative. Instead of an accused who professes his innocence and objects to a specification as insufficient, the court faces cases where the accused made no objection and, with the assistance of counsel and the illumination of the military judge, admitted his guilt to every element, often in exchange for some sentence limitation. They now come to CAAF as appellants, seeking relief because the specifications to which they pleaded do not state offenses under the newly-stated Fosler rule. But there is no doubt of their guilt, they failed to make the required timely assertion before the tribunal, and they received valuable consideration for their pleas.

Moreover, as a matter of law, the “unconditional guilty plea generally waives all pretrial and trial defects that are not jurisdictional or a deprivation of due process of law.” United States v. Jones, 69 M.J. 294, 299 (C.A.A.F., 2011). At best their objections are forfeit, requiring prejudice to a substantial right before they are entitled to relief. But no substantial right is at stake when there is no question of guilt, other than the right to be acquitted of a crime of which you are undoubtedly guilty. No interest of justice is served by invalidating an entirely just and accurate conviction, especially one obtained as part of a bargain between the government and the accused.

Unlike the exclusionary rule (for example) that is intended to deter police misconduct, applying the technical pleading rule from Fosler to invalidate convictions entered in accordance with unconditional guilty pleas fails to advance any interest of justice. Moreover, it protects no substantial right, other than the absurd notion of a right of a guilty man to go free.

This is 100% non-military justice. I ask people, howe er, why is it technology companies must push out “updates” even when there is nothing to change?  Tonight three companies, Verizon, Microsoft, and WordPress, pushed out new content in an update that (a) addressed phantom problems, (b)  rendered a previously functional system temporarily non-functional, and (c)  not only failed to improve the system, but made the system affirmatively worse.

Truth, lies and Afghanistan

How military leaders have let us down

By LT. COL. DANIEL L. DAVIS

I spent last year in Afghanistan, visiting and talking with U.S. troops and their Afghan partners. My duties with the Army’s Rapid Equipping Force took me into every significant area where our soldiers engage the enemy. Over the course of 12 months, I covered more than 9,000 miles and talked, traveled and patrolled with troops in Kandahar, Kunar, Ghazni, Khost, Paktika, Kunduz, Balkh, Nangarhar and other provinces.

What I saw bore no resemblance to rosy official statements by U.S. military leaders about conditions on the ground.

My post discussing the efforts of appellate defense counsel to join the trial defense team in the retrial of United States v. McMurrin, and particularly the discussion in the comments, prompted me to recall my experiences attending training seminars as a Special Assistant US Attorney. During one seminar, at the National Advocacy Center in Columbia, SC, I experienced three days of intensive classroom instruction by AUSAs who were chosen for their knowledge, experience, and classroom demeanor, and flown-in to teach their particular subject. Each of these experts arrived on the day of their class, presented in impressive fashion, freely shared their contact information, and then returned to their districts and significant caseloads.

Thinking about that experience, I realize that in 5 years of active duty (a quarter-career!) I’ve experienced nothing in the military that even comes close. More often than not, military instructors read from old, inaccurate slides, are unfamiliar with the subject matter, and put the class to sleep. Senior officials or true subject-matter experts rarely appear, and if they do they usually give a brief “motivational speech” or “community update.” This is a generalization, but I can recall precious few impressive military instructors, and I suspect my experience is the norm.

Considering that as an armed force we train more than we do anything else, why as a legal community don’t we take it more seriously?

I recently had reason to visit the legal office at Naval Air Station Whidbey Island.  I spent two years as SJA at Whidbey Island, and it’s one of my favorite places in the world.  The base and surrounding community feel like a time capsule from 40 years ago.  EA-6B Prowlers—now being displaced by an F/A-18 variant—are still seen in the sky, along with the aging P-3, a maritime patrol version of a 1950′s turboprop airliner.  The air station is strewn with modest, semi-permanent buildings erected during the Second World War, making it look like a Beetle Bailey panel.  The base—and some local old-timer retirees—enthusiastically support one of the Navy’s few remaining officers’ clubs.  The surrounding town of Oak Harbor is small, dense with Navy vets, and fervently loyal to Naval Aviation.  I received only one or two aircraft noise complaints during my time there as SJA.  I also received a call from an angry citizen asking if the First Amendment required that the base exchange carry Jane Fonda’s autobiography.  Waves of change seem to just wash over Whidbey Island.

 My purpose for going to Whidbey was to escort a Navy Captain to see the office and meet with the staff.  I didn’t sit in on the meetings, so I had some time.  While I was in a no-longer-used wing of the legal building, I noticed an old poster with the UCMJ printed in small print on it.  I’d seen these before, but hadn’t seen one in a long while.  I always liked these posters.  Whenever I look at one it seems like I see something that I hadn’t seen before, or had known about and forgotten.  Seeing the whole UCMJ on one sheet makes you think about it differently for some reason.

As I scanned the punitive articles, I paused at Article 120.  Of course it was the pre-2007 version.   I decided that if they ever update the poster to include the new one, it probably won’t fit on one sheet anymore.  New Article 120 might have to go on its own poster.  Past the punitive articles were the miscellaneous provisions.  It had been a while since I had read Article 137, requiring that much of the UCMJ, including all the punitive articles, be explained to every enlisted member upon entry onto active duty, again six months later, and again at every reenlistment.  I don’t remember this statute being given effect anywhere I have ever served.  Perhaps there is an instructional block on the UCMJ in boot camp that checks this box.  But who tracks folks for their six month anniversary?  Has anyone seen a reenlistment accompanied by a UCMJ brief? 

My mind went back to the new Article 120. You could hurt yourself trying to explain that. As to the burden shifting in that article, the most forthright explanation one could give to a new member is: no one—not even lawyers—really knows what it means, and it is the policy of military judges to ignore that part of the law. 

I thought some more about the implications of a requirement to explain the law to those most affected.  The rest of criminal law is largely indifferent to a potential defendant’s legal knowledge.  It’s a requirement that says something about our expectations of our legal system and the people who live with it. If you are required to explain the law to service members, it follows that the law shouldn’t be incomprehensible to them. 

I think this principle might partly explain why most of the code is so succinct and elegant. It was written to be understood, usually in one reading. Admittedly, practitioners have for a long time had to make use of sources from outside the code in interpreting the code. That might mean drawing on service usage (what is a safeguard and how do you force one?), or judicially created common law principles for example. But I think it’s okay that the code isn’t completely self-contained without reference to our legal and military heritage. Think back to Judge Baker’s dissent in Fosler.  Judge Baker, drawing on almost two centuries of Supreme Court precedent, reminds us that 

“[T]he military is, by necessity, a specialized society separate from civilian society.” [Parker v. Levy, 417 U.S. 733 (1974)] at 743. And it has, by necessity, “developed laws and traditions of its own during its long history.” Id. Because of the special distinctions separating it from the civilian society, “the military has developed what ‘may not unfitly be called the customary military law’ or ‘general usage of the military service.’” Id. at 744 (quoting Martin v. Mott, 12 Wheat. 19, 35, (1827)). The UCMJ “cannot be equated to a civilian criminal code,” id. at 749 . . .

If you accept that it’s okay to refer to service usage and general legal principles to supplement and provide context to our understanding of military law, then it suddenly becomes possible to write statutes that can be explained to service members.

Look at Article 121, for example.  You might remember from law school that there isn’t anything trickier or more complex in criminal law than larceny.  It’s hard to define, hard to plead, and hard to prove.  But the 140 words that make up Article 121 do just fine.  You can read the article, understand it, and explain it.  Or look at the scant 104 words that comprise Article 128 assault.  It’s easy to understand.  If you’re a practitioner, it draws on things you already know.  Those 104 words get a lot done.  So if 104 words are good, the 2,835 words of Article 120 should be great, right?  I think we’ve all arrived at the same answer.  Maybe part of what’s wrong with Article 120 is that it is completely untethered from the principle promoted by Article 137, and thus also from the “general usage of the military service.”  It attempts to be self-sufficient.  But in its quest to become comprehensive, it became incomprehensible.  Service members don’t get a meaningful Article 137-chance to understand the rules and conform their conduct.  Even though the statute bursts with defined terms and should, in theory, give clearer notice of proscribed conduct, it gives much less notice.  Even lawyers think it’s gobbledygook. 

The thesis, then, of this stream of consciousness (if there is one) is that the Fosler problem—or at least Judge Baker’s problem with Fosler—is related in some fundamental way to the Article 120 problem.  Both the majority in Fosler and the drafters of Article 120 could be accused of having a certain blind spot for the “customary military law.”  Both uprooted a settled practice in reliance on a statute; one an old statute interpreted a new way, and the other a brand new statute that feels as out of place in our code as Jane Fonda in the Whidbey O Club.

I know Congress is having another crack at Article 120.  I hope they have Article 137 in mind when they draft the new new Article 120.  If an E-7 can’t read it and then explain it to an E-1, it shouldn’t be in the code.  It’s a special kind of system that doesn’t just presume knowledge of the law on the part of a potential accused.  It’s a separate system that operates in a separate society.  I hope Congress remembers that this year.