The DoD IG has denied FOIA requests for copies of the investigation report related to General Allen’s emails that while not derailing his appointment to NATO, likely played a role in his decision to retire. See WaPo coverage here.

The NYT reports, here, that NATO and Afghan officials have agreed to a joint investigation of alleged abuses by US special operations forces in the Maidan Wardak province outside of Kabul.

Two US sailors pled guilty in a Japanese court in Okinawa, Stripes report here. Earlier coverage of protests over the case here. 

Lawfare has a guest post by Chris Jenks (recently LTCOL Jenks, USA) about Italy’s highest court affirming the 2009 criminal conviction, in absentia, of “22 CIA operatives and a US Air Force officer, then Lt Col Joseph Romano, stemming from the 2003 extraordinary rendition of Abu Omar.” The post includes this key paragraph:

Abu Omar’s abduction has (appropriately) received considerable attention and criticism. But as discussed in the earlier piece, Italy’s in absentia prosecutions were hardly a human rights victory. And in Romano’s case, missing from the rhetoric is Italy’s violation of the NATO SOFA.  Article VII of the NATO SOFA provides that the military authorities of sending State, here the U.S,  “shall have the primary right to exercise jurisdiction over a member of the force [like Romano]…in relation to… offences arising out of any act or omission done in the performance of official duty.”

Here is a piece from DVIDS about the 2011 US Japan SOFA clarification. The article has this to say about the new rules regarding civilians:

Under the Military Extraterritorial Jurisdiction Act, SOFA civilians who commit certain crimes overseas can be extradited to the states to be tried in their local U.S. district court.

“The problem with that is it is hard to work,” said [Capt. Jonathan P. Stevens,trial counsel with Combat Logistics Regiment 37, 3d Marine Logistics Group,III MEF]. “All the witnesses and evidence are here, and you have to try to move it all to the states. Sometimes we’re unable to do that.” Additionally, a MEJA prosecution is reserved for serious felonies, said Stevens.

Serious felonies?  Really, one year or more in prison is just about every non-traffic offense in Title 18, no?

Update: Here is a link to the original article on a .mil website.

I’ve been taking a number of media enquiries these last few days about the recent shooting in Afghanistan.  One of the questions always is, “who will prosecute?”  I think that the ultimate answer is, the U.S. at court-martial.

Here is a link to R. Chuck Mason, Status of Forces Agreement (SOFA):  What is it, and How Has It Been Utilized, Congressional Research Service (Jan. 5, 2011).

I think the most relevant part can be found at page 8.

An agreement exists regarding the status of military and civilian personnel of the U.S. Department of Defense present in Afghanistan in connection with cooperative efforts in response to terrorism, humanitarian and civic assistance, military training and exercises, and other activities.  Such personnel are to be accorded “a status equivalent to that accorded to the administrative and technical staff” of the U.S. Embassy under the Vienna Convention on Diplomatic Relations of 1961.  Accordingly, U.S. personnel are immune from criminal prosecution by Afghan authorities, and are immune from civil and administrative jurisdiction except with respect to acts performed outside the course of their duties.  In the agreement, the Islamic Transitional Government of Afghanistan (ITGA) explicitly authorized the U.S.
government to exercise criminal jurisdiction over U.S. personnel, and the Government of  Afghanistan is not permitted to surrender U.S. personnel to the custody of another State, international tribunal, or any other entity without consent of the U.S. government. Although the agreement was signed by the ITGA, the subsequently elected Government of the Islamic Republic of Afghanistan assumed responsibility for ITGA’s legal obligations and the agreement remains in force. The agreement does not appear to provide immunity for contract personnel.

Here are some other relevant links, h/t Phil Carter

http://www.scribd.com/philip_cave/d/85377055-TIAS-173052-US-Afg

http://www.scribd.com/philip_cave/d/85377150-TIAS-183325-US-Afg

http://www.scribd.com/philip_cave/d/85377197-US-Afg-Dipnotes-2002-03

This story is just funny, no military justice connection.  WSJ reports, here, that, “Emerging amid the camouflage and crewcuts [in Afghanistan] is the latest in combat chic: male soldiers with eyebrows professionally shaped into slender arches.”

More on US trainer request from Iraq, and the immunity issue, from Press TV in Baghdad, here.  DoD officials told Congress yesterday that, see DoD coverage here, “We are talking to the Iraqis about what this means specifically in terms of our security cooperation under the strategic framework agreement.”

We’ve covered various disciplinary actions in some low flyover incidents, here, so this MilJus twist on that theme from the Houston Press about the worst air show disasters ever was of interest.

In 2005, a [Ukrainian Air Force] court martial sentenced pilot Volodymyr Toponar to 14 years in the slammer, and his co-pilot, Yuriy Yegorov, who wasn’t even in control of the airplane, to eight years. Three other officers from the Ukrainian Air Force’s “Ukrainian Falcons” demonstration team got jail time. In addition, the crew was ordered to pay several million dollars in damages to the families of the victims.

Rumors of some more evidence gathering, here, in the SGT Burke court-martial.  Prior coverage here and here of the fifth set of charges for Mr./SGT Burke.  No word on whether the CA has referred the charges, much less capital vs. non-capital.  The case isn’t on the Ft. Campbell docket so I am guessing we didn’t miss anything.

H/t DefenseNews EB

In SOFA News  McClatchy News reports, here, that Iraq has given the US a take it or leave it proposal to keep trainers in Iraq without immunity.  Iraqi President Jalal Talabani reportedly said:

We have agreed to retain more than 5,000 American trainers, without giving them immunity. . . . We have sent them our agreement to retain this number and are awaiting their response: yes or no. . . . . If the Americans do not agree to leave behind the trainers without immunity, then we have three choices: to ask for trainers of the (weapons) manufacturing companies, to seek the assistance of NATO or to send members of the Iraqi armed forces to train abroad.

The report says that Iraqi leaders cited US failure to prosecute soldiers for killing Iraqi as a reason for the stance, including the failure to convict anyone in the Haditha incident.  Which raises the question, is the SSgt Wuterich case just going to fade away without action?

Another Suicide Spawns Investigation Into Mistreatment  Army investigators are looking into the circumstances surrounding the suicide of an Army Private in Afghanistan, WSJ report here.  WSJ says that, “Pvt. Danny Chen had been in Afghanistan for two months when he was found dead with a gunshot wound below his chin on Oct. 3. . . . [A family spokesman said his parents were] told by Army investigators that their only child had been subjected to taunting and violence at the hands of the soldiers with whom he served.”  See coverage of related story from the USMC, here and here.

Scary Story for Navy Chiefs-AFOSI Investigates PT Cheating  And lastly, a surprising story on many levels out of the Air Force.  The Air Force Times reports, here, that an Air Force court-martial was convened and convicted an Air Force Staff Sergeant for signing false results of her PT test and the Senior Airman that administered the test apparently received NJP or some lesser non-punitive sanction.  According the the Times report Air Force OSI investigated the incident.

Alert for our purists, not a lot of pure MilJus in this update.

AFP reports (via DefenseNews here) that immunity for US service members may still be a sticking point for completing plans for a US military training presence in Iraq.  AFP reports that while Iraqi leaders stated that “they agreed on the need for training of Iraqi forces and the purchase military equipment . . . . the leaders agreed there is no need to give immunity for trainers.”  Defense Secretary Panetta, on the other hand, is quoted as saying, “any kind of U.S. presence demands that we protect and provide the appropriate immunity for our soldiers.”  Helpful background story at NYT here.

The Miami Herald reports, here, that the arraignment of accused USS COLE bomber before a capital military commission has been postponed until November 9, 2011 due to scheduling conflicts.  By the way, is that a proper term, capital military commission?  Random observation, the usually good Carol Rosenberg begins the story with an odd phrase, “chief war court judge.”   Is that her normal shtick?

The New York Times reports, here, that the White House will issue a policy today to remedy the problems exposed by the Wiki[shhh] and PFC Bradley Manning episode.  I’ll update this post with a link HERE when it is released.  The story states that:

The directive enshrines many stopgap fixes that the Pentagon, the State Department and the Central Intelligence Agency made immediately after the initial Wiki[shhh] disclosures last November. Since then, for instance, the military has disabled 87 percent of its computers to prevent people from downloading classified data onto memory sticks, CDs or DVDs.

Anyone have any thoughts on how that’s impacted access to SIPR information and information sharing in the military?  And anyone know what’s the status of the PFC Manning court-martial?  Only thing I’ve heard recently is that Manning was a candidate for the Nobel Peace Prize, see e.g. here.  So he’s got that going for him, too.

WaPo reports, here, on the continuing saga of an Army Corps of Engineers scam that prosecutors allege looted the US Treasury to the tune of $20 million.  Two Corps civilian employees, the son of one of the employees, and an employee of a Corps contractor have been charged so far.  No current active duty military are named yet, and only one unindicted conspirator is named in the indictments.

Here is an enlightening article about negotiations for a follow on US-Iraq SOFA and interview with Iraq’sa Ambassador to the US. On the issue of imminity the US wants the SOFA approved by the Iraqi Council of Representatives to ensure valid immunity for US troops. Such approval the article notes would bew difficult in the currently factitious Iraqi government. The article notes that, “Another option is just to sign a Memorandum of Understanding to extend the U.S. troop presence in Iraq, but the U.S. government has said that wouldn’t assure them any agreement on immunity for U.S. troops would be legally valid. [Iraqi Ambassador] Sumaida’ie said some are even tossing around the idea of granting every remaining U.S. solder diplomatic status through the U.S. embassy, which would grant them diplomatic immunity.”

All the pseudo-MilJus news you can handle.  All very interesting but tangential so I’ll keep it short.

• WaPo reports on another potential source of concern for US military personnel, CIA employees, and US contractors in conducting covert counter-terrorism operations, the African Coimmission on Human and People’s Rights:

American and British human rights lawyers filed legal documents at the African Commission on Human and Peoples’ Rights, urging it to require the government of Djibouti to “answer for abuses it committed” as part of the CIA’s secret program. The case made public Monday was filed confidentially in December 2009. . . . “It’s safe to say – without commenting on this specific matter – that much of what has been alleged about the former CIA detention and interrogation program, which ended over two years ago, is simply incorrect,” said CIA spokesman George Little. The commission, based in the Gambia, is a quasi-judicial body that has jurisdiction over nations that have ratified the African Charter on Human and Peoples’ Rights, which includes Djibouti.

The allegations are that:

Mohammed al-Asad . . . was arrested in late 2003 at his home in Tanzania, blindfolded and flown to a secret prison in Djibouti. He said he was subjected to two weeks of torture and inhuman treatment in a clandestine CIA rendition and detentions program designed to nab suspected terrorists. From Djibouti, human rights activists say, Asad was dispatched into a network of secret CIA prisons in Afghanistan and Eastern Europe, before being jailed in his native Yemen. In 2006, Asad was released, without being charged with a terrorism-related crime.

• The Guardian (UK) reports that a Western contractor employee, a British national,  has been convicted in an Iraqi court and sentenced to 20 years for the murder of a fellow Brit and an Aussie in a “whisky-fueled” dispute.  This is the first conviction of a Westerner since the US-Iraq SOFA revoked most contractor immunity in Iraq.  According to the story, his PTSD-related evidence may have saved him from the death penalty.
• SCOTUSBlog reports on anti-military bias SCOTUS case decided today.  In Staub v. Proctor Hospital, 09-400, the Court held that an employer can be liable under USERRA “if a supervisor acts with [an anti-military] discriminatory motive, and the supervisor’s action is the proximate cause of an adverse action (eg, a firing) . . .  The fact that the company’s HR department conducted the firing, and it had no discriminatory motive, makes no difference.”

Bloomberg reports, here, that a US Marine was arrested by Japanese authorities in Okinawa

[O]n suspicion of breaking into the house of a woman in her 20s and sexually assaulting her, police spokesman Motoki Haneji said by phone. The U.S. serviceman has denied the charges, Haneji said.

As N-M JAs know, these arrests have led to protests and were a part of the discussion that led to the reorganization of the US military presence in Japan.  The Japanese have primary jurisdiction over the case and prior cases have been handled by Japanese courts.

Here is a link to a UK story about an arrest warrant issued by an Afghan prosecutor, Brigadier General Ghulam Ranjbar, for a US military officer allegedly involved in the killing of Kandahar’s police chief, Matiullah Qateh, during a raid on the Kandahar courthouse.   The story reports that the officer, identified only as “Johnny,” organized local militia hit squads, stating that:

Ranjbar said an investigation found that the force that killed Qateh operated from Camp Gecko, in the hills outside Kandahar, a base for both US special forces and the CIA.

Officials in Kandahar said the militia supplies guards and is trained to work alongside special forces and intelligence officials in raids against Taliban targets.

“If you go to Kandahar, people say these guys pretend to be interpreters but they carry out night raids and assassinations,” said Ranjbar. “We hear lots of strange and shocking stories.”

He claimed that suspects arrested for the courthouse raid had confessed to being part of a 300-strong militia unit run by “Johnny”. They said they “could not move a muscle and could not leave their base without Johnny’s orders” Ranjbar said. “He was the head of the group and they [the Americans] were the ones paying them.”

Under the US exchange of notes with Afghanistan the warrant is probably ineffective, see our prior SOFA coverage here, but that might not stop locals from detaining the officer so I’ll keep an eye out for updates.  H/t to C-MTP.

Interesting note in this story from Reuters.  Appears Iraqi police raided an  allegedly unlicensed private security contractor in Iraq.  The raid seized weapons and ammunition.  Sources noted for thisstory that the license renewal process can take months–not sure if that was a factor here.  This all shows that Iraq is taking its regulatory and law enforcement authority seriously and exercising its powers under last year’s US-Iraq SOFA.

Grover’s comment on the thread below prompted me to post.  Grover repeated the Air Force’s SOFA interpretation that under the NATO SOFA, the sending state has virtually exclusive jurisdiction over offenses that occur in the performance of official duties.

Here is the Air Force memo (h/t to CMTP) to Italian authorities regarding jurisdiciton over LtCol Romano.  Note that it says that under the NATO SOFA the US has a “primary right” to assert jurisdiction, not an exclusive right.  There is a difference.  The memo also says that the US “asserts its primary right to exercise jurisdiction over” Col. Romano.  But, the bottom line is that the U.S. did not exercise that jurisdiction after it asserted it. 

Here is the rub for me.   The sending state’s primary jurisdiction right language falls under the “concurrent jurisdiction” provisions of the NATO SOFA.  Someone please tell me where the NATO SOFA prohibits a sovereign, with a concurrent right to jurisdiciton, from asserting jurisdiction after the sending state fails to exercise its jurisdiction over an offense?  In fact, I would say NATO SOFA paragraph 3(c) says otherwise: 

IF THE STATE HAVING THE PRIMARY RIGHT DECIDES NOT TO EXERCISE JURISDICTION, IT SHALL NOTIFY THE AUTHORITIES OF THE OTHER STATE AS SOON AS PRACTICABLE. THE AUTHORITIES OF THE STATE HAVING THE PRIMARY RIGHT SHALL GIVE SYMPATHETIC CONSIDERATION TO A REQUEST FROM THE AUTHORITIES OF THE OTHER STATE FOR A WAIVER OF ITS RIGHT IN CASES WHERE THAT OTHER STATE CONSIDERS SUCH WAIVER TO BE OF PARTICULAR IMPORTANCE.

I agree that if you read those two sentences as a addressing the same topic the question is arguable, but the popular conception has been that Italy had no right to go forward.  I think the right reading is that if you don’t prosecute you must inform the other side and they then have the right to exercise their concurrent jurisdiction–otherwise what’s the difference between concurrent/primary jurisdiction and exclusive jurisdiction?  (Note I found at least one person that sort of agrees with me, Ciampi, Case Note, Public Prosecutor v. Ashby, 93 AJIL 219 (1999)).

From a practical standpoint remember that this is a local Italian prosecutor not a national one.  Imagine if you will that US and Italian authorities, working with an Italian military officer, rendered Pat Robertson from his office in Virginia Beach.  Robertson was then taken to the South of France and tortured by being subjected to 12 hours of continuous gay pornograpy.  The Italian military refused to prosecute the officer for any offense.  Do you really think the Virginia Beach Commonwealth’s Attorney’s Office would say, let’s call the whole thing off and forget about this?  Does anyone remember the little dispute between the US government and Texas authorities over another treaty obligation?  Who won that little show down, see Medellin v. Texas?

Update:  I read the Italian indictment, here.  Romano is probably a pawn in all of this as I don’t see from the 53-page indictment how he is actually connected to the rendition.  Best I can tell his name was associated with ownership of a cell phone involved in the incident.

Here is an interesting story from the WaPo about a conviction obtained in absentia today against 22 CIA officers (including the Milan station chief) and one Air Force Colonel (LtCol Joseph Romano) for the rendition of Hassan Mustafa Osama Nasr.  According to the WaPo the Italians alleged that the CIA:

[S]natched Hassan Mustafa Osama Nasr, a radical Egyptian imam also known as Abu Omar, from a Milan intersection in broad daylight. They said he was flown to Cairo, where he was subject to electroshocks and physical abuse at the behest of the CIA.

NY Times story has a little more info here. 

The strange part about this is the Air Force Colonel’s involvement.  If you are on the operations side of the CIA you know that part of your job is the potential to end up in a foreign jail cell.  But, an Air Force colonel likely doesn’t have the same expectation.  If the allegations are true that an Air Force colonel was involved in a rendition, I’d have to wonder why.  But, if it was just a colonel from Aviano AB that somehow was involved in flying Nasr out of the c0untry, well that might reduce my opinion of the credibility of this prosecution.  Since I don’t know all the facts, I won’t judge.

Afghan president Karzai announced Friday his intention to negotiate a new status of forces agreement governing US troops, see NYT coverage here.  It is likely that after the Afghan elections we’ll see a new round of negotiations on both the NATO and US SOFA fronts.  While the NATO SOFA is relatively standard, I don’t know if specific concessions were negotiated for Afghanistan as the agreement appears to be classified.  However, as we previously reported, an exchange of diplomatic notes governs US troops in Afghanistan when not operating under the NATO flag.  See prior coverage here and here and copy of the exchange of notes here. 

While the new agreement will likely be less favorable to US military personnel and civilians accompanying US forces, at least it will clarify the status of US forces and accompanying civilians (I hope) as their status under the current agreements is unclear at best.