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It seems the Marine Corps may have its own version of a “birther” issue brewing. There are allegations the Commandant of the Marine Corps, Gen. James F. Amos, may not have actually attended The Basic School, which is required initial officer training for every Marine officer regardless of MOS. Congressman Walter Jones is asking SECDEF to investigate. From the Marine Corps Times, quoting Rep. Jones:

“As discussed, [Office of Legislative Affairs] informed me that Gen. Amos did not attend the Basic School in that he was an inter-service transfer from the Navy,” the email says. In follow-up conversations, Marine officials corrected that to say Amos completed TBS through a correspondence course in February 1977, but provided the congressman no documentation. Amos left the service one year later and served as a commercial airline pilot for Braniff Airlines until 1982.

The story was broken by attorney Lee Thweatt, known to many readers of this blog, who assisted LtCol James Weirick. If these allegations are true, it would be contrary to information that appeared on the Commandant’s official resume, presented to Congress during the confirmation process. That resume stated he completed The Basic School in 1972. While Marine Corps’ spokesman, Col Dave Lapan, insists that there is evidence the Commandant did complete TBS, Mr. Thweatt says his investigation shows otherwise:

Thweatt said Marine Corps records do not contain reference to any Marine officer named James F. Amos until 1973, “and even then, there is no reference to the January 15, 1972, date of commissioning General Amos listed on his résumé.”

and

Thweatt found and provided photographic evidence that Amos was stationed at Marine Corps Air Station Kaneohe Bay, Hawaii, from 1971 to 1972. In fact, Amos is shown to have ejected from an F-4 Phantom on or about July 12, 1972.

Apparently, it was not uncommon during the time period that the Commandant transferred from the Navy to waive the requirement for aviators to attend TBS, due to operational requirements in Vietnam. It will be interesting to see how this all plays out. More interestingly, if it turns out that dates and schools were falsified on the Commandant’s resume to Congress for confirmation, would that constitute a violation of 18 U.S.C. sec. 1001, a felony offense for making a false statement?

A number of readers have written to me with thoughtful comments about the Ninth Circuit’s recent decision in United States v. Dreyer (link to slip op.) in which Judge Berzon, writing for a divided three-judge panel of that court, held that an NCIS agent’s violation of Posse Comitatis Act-like restrictions on direct assistance to civilian law enforcement activities requires application of the exclusionary rule as a deterrent:

The extraordinary nature of the surveillance here demonstrates a need to deter future violations. So far as we can tell from the record, it has become a routine practice for the Navy to conduct surveillance of all the civilian computers in an entire state to see whether any child pornography can be found on them, and then to turn over the information to civilian law enforcement when no military connection exists.

This is squarely a case of the military undertaking the initiative to enforce civilian law against civilians. “There must be an exceptional reason” to invoke the exclusionary rule for violation of posse comitatus-like regulations, United States v. Harrington, 681 F.2d 612, 615 (9th Cir. 1982), and the broad use of military surveillance of overwhelmingly civilian populations is an exceptional reason.

Slip op. at 21-22. The opinion also notes that a deterrent is needed because of “the government’s litigation positions” that include “arguing vehemently that the military may monitor for criminal activity all the computers anywhere in any state with a military base or installation, regardless of how likely or unlikely the computers are to be associated with a member of the military.” Slip op. at  22.

I haven’t seen this as much of a military justice issue, but this analysis by Professor Orin Kerr at The Volokh Conspiracy puts the opinion in a new light. Professor Kerr sees the decision in Dreyer as “a vestige of the mid-20th century free-form view of the exclusionary rule” that “if the government did something really bad, the federal courts had the power to keep the evidence out to deter violations and maintain the integrity of the courts.”

His take reminds me of opinions in three recent CAAF decisions in Air Force cases involving application of the exclusionary rule: Chief Judge Baker’s dissenting opinion in United States v. Cote, 72 M.J. 41 (C.A.A.F. Mar. 8, 2013) (CAAFlog case page), Judge Erdmann’s partial dissenting opinion, joined by Chief Judge Baker, in United States v. Irizarry, 72 M.J. 100 (C.A.A.F., Apr. 15, 2013) (CAAFlog case page), and Chief Judge Baker’s opinion of the court in United States v. Wicks, 73 M.J. 93 (C.A.A.F. Feb. 20, 2014) (CAAFlog case page).

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Yesterday, this article from Cathy Young appeared on Slate.com. It’s an interesting read and well-worth the five minutes or so it takes to read it. Her final paragraph is particularly well stated:

Our focus on getting justice for women who are sexually assaulted is necessary and right. We are still far from the day when every woman who makes a rape accusation gets a proper police investigation and a fair hearing. But seeking justice for female victims should make us more sensitive, not less, to justice for unfairly accused men. In practical terms, that means finding ways to show support for victims of sexual violence without equating accusation and guilt, and recognizing that the wrongly accused are real victims too. It means not assuming that only a conviction is a fair outcome for an alleged sex crime. It means, finally, rejecting laws and policies rooted in the assumption that wrongful accusations are so vanishingly rare they needn’t be a cause for concern. To put it simply, we need to stop presuming guilt.

The new LtCol told Marine Times that he was promoted on time and that his promotion was never delayed, or was there an effort to remove him from the list.

A little off topic.

Capt Magee recently reported for duty at Navy Appellate Defense.

http://www.marinecorpstimes.com/article/20140711/NEWS/307110058

Older former NADC’s should be familiar with Leg Day.  There is a picture of at least one, with a couple of recognizable figures.

Magee will fit right in with a hoppy leg day.

Just a head’s up.

Riley v. California.  An important ruling today.

These two cases raise a common question: whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.

Bottom line a warrant is generally required.

 

 

Here is WaPo coverage of the release of a previously classified memo on the legal justification for the killing of Anwar al-Awlaki via drone strike in Yemen. WaPo link to the memo is here. Here is a link to the 2nd Circuit opinion attaching the memo, and related decision on the ACLU FOIA case here.

Here is a link to the hearing page for the Joint Subcommittee of the House Committee on Foreign Affairs hearing on The Bergdahl Exchange: Implications for U.S. National Security and the Fight Against Terrorism.  According to several sources, here (WaPo) and here (WaTimes) the Committee spent some time discussing whether SGT Bergdahl should be charged with desertion.  Didn’t they delegate that power to someone?

Not MilJus, but an amazing turn of events in the long running saga of the Washington Redskins team name.  From WaPo, here, “The United States Patent and Trademark Office has canceled the Washington Redskins trademark registration, calling the football team’s name ‘disparaging to Native Americans.’”  Link to order on WaPo site here.

The team lost the same issue at the TTAB in 1999, but won an appeal on standing grounds.  Prior TTAB decision here and one of the appeals decisions here.

Courtesy of Dew_Process.

There is a pending petition at the SCOTUS with interest to military practitioners – Brannan v. Humphrey.  The QP, and importantly the amicus filing of Georgia MOAA as amicus for the petitioner are at SCOTUSBlog.

 Issue: Whether petitioner, as a disabled combat veteran who is undeniably mentally ill, received ineffective assistance of counsel during the hurried sentencing phase of his death penalty trial.

There is a great deal of useful information in the amicus pleading which extends beyond the occasional death penalty case.

In line with that, my hard-copy of The Attorney’s Guide to Defending Veterans in Criminal Court, finally arrived.

An initial Marine Corps review into a raid by military investigators on defense lawyers’ offices earlier this month has found no evidence that the unusual search compromised cases.

The findings of the May 2 search were revealed Thursday during a motions hearing for Lance Cpl. Eric Salinas, a defendant in a hazing case who is being represented by defense lawyers in the Camp Pendleton offices.

So reports Marine Corps Times.

That is the headline for a new piece in the Miltary Times papers.

Over the 10 years from 2004 to 2013, data from the service judge advocates show:

■ Courts-martial have dropped about 50 percent.

■ Nonjudicial punishments are down about 25 percent.

■ Bad-conduct discharges have fallen by more than 60 percent.

And according to the Justice Department, the number of troops convicted of crimes and incarcerated in military prisons has shrunk by 35 percent.

I would be interested to know if some comparison was/is made to the post Dosert Shield/Desert Storm period.

RSP

http://www.c-span.org/video/?319182-1/defense-dept-meeting-sexual-assault-prevention

 

In 1987 I suggested that the Naval Justice School could conveniently be closed and everyone attend TJAGSA for all training, including basic.  My superiors were not amused.  I remain convinced, in fact more convinced, that all judge advocate training should be conducted by TJAGSA.  I thought that was a modest proposal to save money and improve training.  Oh, and there was a certain Congressman from Alabama, who if he’d heard of my idea would not have been amused either.  See it’s all about rice-bowls, which as we go forward with military justice reform stirring the rice will be a frequent unstated topic of the conversation.  Anyway.

I have another modest proposal for Judge Efron which I have addressed more at Global Military Justice Reform.  I hope to expand on the idea of the rest of the week by filling in some details.  I thought perhaps I could do it on the drip, or one rice grain at a time.

Why do we still not have permanent, many say standing, courts?  I don’t know.  The question has been raised many times over the years.  I think the two recent fiasco’s might have been avoided or lessened had there been a judge out there who could claim jurisdiction.

The Supremes heard oral argument today in two cases with potential impact for military justice practitioners.  Here are the cases and QPs, from SCOTUSBlog.

The issue in United States v. Wurie is:

 Whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cellphone found on a person who has been lawfully arrested.

The transcript is here.

The issue in Riley v. California is:

 Issue: Whether evidence admitted at petitioner’s trial was obtained in a search of petitioner’s cell phone that violated petitioner’s Fourth Amendment rights.

The transcript is here.

I’m particularly interested in Riley, because of how military law enforcement acts in most cases.  Ask any client whether they were arrested, they will tell you no they were not.  Later when they do a background check they are astounded to find they “were.”  What usually happens is that they were invited, taken, or directed to go meet with [CID, NCIS,OSI, CGIS]; they will tell you that when they got there they were not advised they were free to leave, but that they eventually were told their rights; and finally they will say that before leaving they were swabbed, printed, and photographed.  Those events, as we know, result in the person being “Titled” and the event showing up in NCIC as an arrest.  But is it really an arrest, I have yet to hear a client tell me that the investigator said, “you are under arrest (or apprehension to be terminally correct).”  If it is, then Riley applies.  If it isn’t an arrest, then there can be no search incident, can there?  Forget the bit where the investigator asks to take the phone, and says, “I can get a warrant easily,” when the person balks.