CAAFlog » Year in Review » Top Ten Stories of 2009

The suspense was killing you I am sure.  The actions of Major Nidal Hasan at Fort Hood and the ensuing media barrage related to the investigation and decision to court-martial Major Hasan made this story a no-brainer as #1.  Considering that the  story made the top stories of 2009 lists for S&S, Time  (#5), AP (#8), and numerous other organization, not making this the #1 story would have been more controversial. 

Everyone knows the facts of the case, but to review what makes this the #1 military justice story I give you these bullet points:

  • Maj. Hasan’s shooting spree that killed 13 people and wounded numerous others on Nov. 5th was committed on Fort Hood and investigated by military law enforcement.
  • The on-going investigation in anticipation of a court-martial has already led to more than 40 charges against Hasan.  See coverage here and here.
  • The case has already featured disputes over conditions of confinement and an RCM 706 sanity board.  See here and here.  Maj. Hasan’s counsel also seems more than willing to try this case in the press, which makes every move a story.
  • The case has a continuing connection to recent news, including connections between Christmas Day bomber, Umar Farouk Abdulmutallab, and radical cleric Anwar al-Awlaki.  See NYT coverage here.  Awlaki is the cleric with whom Maj. Hasan communicated about radical Islam tenets before the shootings.

The Hasan case will continue to press the boundaries between military justice and national security as continuing investigations into the lapses in intelligence that may have contributed to the shootings and links between Maj. Hasan and terrorist figures continue, see here and here.  The continuing development of the story will also highlight American attitudes toward Islam and a growing anti-Muslim sentiment that has even played out in the comments on this blog (note, CAAFlog’s contributors do not endorse the views in these comments a and offensive comments are generally hidden after 3 negative ratings in the comments section; we  generally do not censor comments unless they are patently offensive). 

It is difficult to imagine how this case will not become the next capital court-martial, which will also raise all of the old issues with capital cases in the military–inadequate funding, inexperienced counsel (though Maj. Hasan currently has experienced civilian counsel and the TC is very experienced), and general views on the death penalty in America.  Me thinks this isn’t the last Top 10 list that will feature this story.

So after seeing numbers 10 to 2, are you thoroughly annoyed your favorite didn’t make the list? Are you amazed that two relatively bright people could make a list this bad? Are you tired of living in the past and want to move on with 2010 news?

As to the first two questions, our list, our top 10. Buy your own bandwidth! As to the third, we are always looking for the next great Mil Jus story, noman@caaflog.com is always open.

Personally, I had a hard time leaving off the 2 (or 3) challenges in early 2009 to the constitutionality of Art. 2(a)(10) UCMJ–applying the UCMJ to civilians in contingency operations (here, here, and here).  But, aside from that being a bit self serving, the cases amounted to little more than brief skirmishes as DOD relented in all of the cases, wisely choosing not to prosecute one of the contractors at all.  JMTG cast his vote for AFCCA’s startling action in United States v. Nerad,  67 M.J. 748 (A.F. Ct. Crim. App. 2009), setting aside a factually and legally correct conviction because it found the case to be unjust.  Other stories not making the cut included the Rodriguez dust up (and here) and the Navy JAG’s action in the LT House case.  Maybe JMTG can post his honorable mentions list?

So what makes a Top 10 story? Sex, drugs, . . . ok that’s every other court martial I prosecuted, so not that. What’s important for me was mass appeal and cross over interest. Probably the best way to “Top 10” appeal would be how many blogs linked to a CAAFlog story. For example, if I had to vote for a top 10 military justice story of the decade (which we won’t do) I would probably vote at least once for CAAFlog’s discovery of the Kennedy v. Louisiana mistake.  See the post that started it all here.  Above the fold, front page NYT coverage, divergent viewpoints, and lots of reaction from across the legal world.

As for our current crop, the recurring theme that has made headlines was the war in Iraq.  Of the nine entrants, one third have been about military justice stories originating from Iraq (none from Afghanistan).  While one would expect a war to dominate a legal blog dedicated to the military, I was actually surprised that so many stories centered on issues other than just crimes in theater, e.g. the SEAL story was less about the crimes and more about politics or the Behenna case focusing on detainees and American attitudes toward them.

Our #2 story of 2009 is the conclusion of another media heavy saga from Operation Iraqi Freedom.   The story of PFC Steven Green began in June 2006 when “after insurgents killed a member of Green’s [platoon] and kidnapped and beheaded two others . . . another soldier in [his] infantry unit told Army combat-stress counselors in Baghdad about the alleged murders in Mahmudiya.”  See Time Report here.   The military had initially suspected insurgents in the killings so Green had already been discharged for a personality disorder, before which time he had expressed homicidal ideations about Iraqis.   The rape of the Iraqi girl and subsequent murder of the girl and her family by Green and platoon-mates in March 2006 sparked international media attention. 

The 2009 trial, and particularly the sentencing phase of the case, ultimately focused on a too familiar theme, combat stress.  As the NYT wrote,

[Upon arrival in Iraq, Green’s] battalion quickly suffered casualties, including a sergeant close to Private Green. In December, Private Green, along with other members of his platoon, told an Army stress counselor that he wanted to take revenge on Iraqis, including civilians. The counselor labeled the unit “mission incapable” because of poor morale, high combat stress and anger over the deaths, and said it needed both stronger supervision and rest. It got neither, testimony at Mr. Green’s trial showed.

On March 11, 2006, after drinking Iraqi whiskey, Private Green and other soldiers manning a checkpoint decided to rape an Iraqi girl who lived nearby, according to testimony. Wearing civilian clothing, the soldiers broke into a house and raped Abeer Qassim Hamza al-Janabi. Soldiers in the group testified that Private Green killed the girl’s parents and a younger sister before raping and then shooting the girl in the head with the family’s own AK-47, which it had kept for self defense.

The oft delayed trial due to quilt shows, and all manner of fits and starts, resulted in Green’s conviction on 17 counts, including premeditated murder, and went to a capital sentencing phase.  The sentencing case included an appearance from Professor Gary Solis, coverage here, who testified on the impact of combat stress on unit leadership and preventing war crimes.  Others testified on standard capital subjects, but the most poignant and newsworthy testimony focused on combat stress as a reason to spare Green’s life.  Ultimately the jury agreed, as it hung on the issue of the death penalty, resulting in a mandatory life sentence. 

While the government may have wanted the death penalty, the reality is that the case will fade away and become final far sooner without the death sentence.  The conviction and five life sentences, see coverage here, was a victory for the US government’s efforts to prosecute former servicemembers after losing some earlier high profile cases.  It also highlighted, yet again, the problem of combat stress on today’s all volunteer force–a potential issue in our other Top 10 entries.

Green’s case will linger in the news with the filing of his appeal, see CAAFlog coverage here, but will hardly bring the national attention that the trial and setnencing garnered.   Mil Jus wonks will want to follow the appeal to, as CAAFlog noted, compare the United States’ response to Green’s contention he was subject to the UCMJ because the Army failed to properly dioscharge him to the arguments the U.S. has advanced in asserting post-DD 214 jurisdiction in court-martial cases.

The Supreme Court doesn’t review a military justice case once in a blue moon — it does so once every three of four blue moons.  So Denedo was significant simply for the reason that the Supremes were considering a military justice issue.  And from CAAFlog’s perspective, the case was important because the Kabul Klipper finally got to award the Golden CAAF to a worthy recipient — Code 46.  But the Denedo decision ended up being more significant than its unique fact pattern might suggest.

Denedo cleaved the Supreme Court 5-4, with Justice Kennedy joining the more liberal wing of the Court to deliver a majority.  Justice Kennedy’s majority opinion and Chief Justice Roberts’ suggested two very different views of the military justice system.  Interesting, the majority–which decided that CAAF did have the power to correct the system’s mistakes even after direct review was complete and the appellant had become a civilian–had the more positive outlook on the system.  One might think that those who believe the system is unfair would think it most important to allow for correction of unfairness, but that wasn’t how the two competing camps saw the issue.  Rather, Justice Kennedy celebrated the system’s fairness while offering the ability to correct its own mistakes as a sign of the system’s integrity.  Chief Justice Roberts, on the other hand, trumpeted the “rough justice” that the system can sometimes deliver and indicated that those who signed up for the military shouldn’t expect more.

Chief Justice Roberts’ rhetoric seemed to cause discomfort for even some of his allies on the question of whether CAAF could issue a writ of error coram nobis after the conclusion of direct review.  Judge Ryan, who had written a lengthy and forceful dissent arguing that CAAF had no such power, later used language in her Loving dissent that appeared to be a rejoinder to the Chief Justice.  She wrote: 

Whatever its beginnings, far from being a “rough form of justice,” Reid v. Covert, 364 U.S. 1, 35 (1957), the military justice system today, including this Court, generally provides “substantial procedural protections and provision for appellate review by independent civilian judges [to] ‘vindicate servicemen’s constitutional rights.’”  Hamdan v. Rumsfeld, 548 U.S. 557, 586 (2006) (quoting Councilman, 420 U.S. at 758).

Loving v. United States, 68 M.J. 1, 28 n.11 (C.A.A.F. 2009) (Ryan, J., dissenting).

Of course, three or four blue moons from now when the Kabul Klipper gets to award the Golden CAAF II, the SCOTUS lineup will be different.  One member of the Denedo majority –Justice Souter — has already left the Court.  And the tea leaf readers look at the number of clerks Justice Stevens has hired as evidence that he won’t return next Term.  He, too, was in the Denedo majority.  We have yet to see which camp Justice Sotomayor will join.  And she may be just half of the new members of the Court who will determine which camp will be ascendant in the Court’s next military justice decision.

Foster is a rarity:  a truly significant unpublished decision.  United States v. Foster, No. NMCCA 200101955 (N-M. Ct. Crim. App. Feb. 17, 2009). The decision is an important one on a micr0-level.  It held that a Marine was convicted of raping his wife against the weight of the evidence.  Foster was also a demonstration of the military justice system’s 800 pound gorilla’s power.  Rarely do the CCAs use their power to set aside legally sufficient but factually insufficient findings of guilty.  But this was such a case,–though there’s some language in the opinion that suggests the findings were legally insufficient, though more direct language seems to go the other way.

Sgt Foster, who served nine years for a crime that the Navy-Marine Corps Court determined he didn’t commit, became the poster child for the military justice system’s appellate delay problem.  In its opinion, NMCCA criticized itself for unreasonable delay, which it characterized as “judicial negligence.” Id., slip op. at 17.  The Senate Armed Services Committee used Foster as proof “that cognizant legal authorities in the Department of the Navy have not taken necessary and appropriate steps to ensure that the resources, command attention, and necessary supervision have been devoted to the task of ensuring that the Navy and Marine Corps post-trial military justice system functions properly in all cases,” as we discussed here.

But the curious thing is that, as Chief Judge O’Toole discussed in his Foster concurrence, by the time the case was decided, the scourge of unreasonable appellate delay had largely been eliminated from the naval justice system.  This occurred for several reasons.  One is that the Office of the Judge Advocate General of the Navy brought in increased manpower to drive down the system’s backlog.  Then, in a happy turn of events, the rate at which cases were docketed plummeted.  And all this occurred shortly after CAAF gave a wake up call to the system with its Moreno opinion.  And the good new reaches beyond the naval justice system.  The Air Force has also seen a marked decrease in appellate backlog.  I’m not familiar enough with Army appellate practice to know whether it has experienced a similar decline in quantity of cases and length of delay.  Army Lurker, can you fill us in?

So Foster serves as a reminder of the bad old days, though Congress may still require the Department of the Navy to drink cod liver oil even after the disease has been cured.  Perhaps that will serve a purpose, though.  The stock market has recently been suggesting that it can’t go down forever.  Is the same true of the military appellate courts’ case intake numbers?

Short and sweet because WordPress just ate an hour’s worth of blogging on our #5 story.  Behenna case mixes politics, media coverage, interesting facts, and a potential Brady violation discovered after the verdict is announced.  Here is a website with the email from the government’s expert that gives rise to the potential Brady issue, the motion for new trial and the expert’s subsequent affidavit, here.  And, here is coverage of a potential Army Clemency and Parole Board hearing in DC, here, and a just recently expired filing deadline related to appeals, here.

There’s often a tension between purity and pragmatism.  The original Cox Commission report, issued just before 9-11, was ambitious and eloquent. It advocated a fairly major realignment of the military justice system to shift power from convening authorities to military judges.  While two of the Cox Commission I report’s specific recommendations were ultimately enacted, the realignment that it proposed wasn’t.

At the October roll-out of the Cox Commission II’s report, Judge Cox indicated that the commission chose not to revisit convening authority vs. judiciary issues.  He noted that proposals to shift some powers from the convening authority to the judiciary have been repeatedly considered and rejected.  And he also indicated that the military justice system overall functions quite well as is.  So the Cox Commission II decided not to swing for the fences, but to play small ball instead.

The Cox Commission II report lacks the soaring prose of the first report.  But this report may end up being more influential than the first.  At the roll-out, Judge Cox discussed the greater cooperation between the second Cox Commission and DOD than had been the case with the first Cox Commission.  Also Professor Stephen Saltzburg–who was a member of the second Cox Commission but not the first–discussed a plan to attempt to implement the Cox Commission II’s recommendations by attempting to win ABA approval for those recommendations  and then harnessing the ABA’s lobbying muscle.

The Cox Commission II issued these seven recommendations:

1. Expand appeal to the Courts of Criminal Appeals and Court of Appeals for the Armed Forces (CAAF) to make appellate review a matter of right in every contested court-martial.

.certiorari, regardless of whether CAAF grants servicemembers2. Enact the Equal Justice for Our Military Act of 2009, now pending in the House of Representatives, to permit direct appeal to the Supreme Court by convicted

 

3. Consider permitting accused servicemembers to waive their right to appellate review in pre-trial agreements.

4. Improve access of defense counsel to expert assistance during case investigation and trial.

5. Prohibit trial counsel from attacking the credentials of an expert witness if the government provided that specific expert to the defense as an adequate substitute for an expert consultant requested by the defense.

6. Require military law enforcement agencies to videotape the entirety of custodial interrogations of crime suspects at law enforcement offices, detention centers, or other places where suspects are held for questioning, or, where videotaping is not practicable, to audiotape the entirety of such custodial interrogations.

7. Repeal Uniform Code of Military Justice, 10 U.S.C. § 925, (Article 125, sodomy).

Adoption of these recommendations wouldn’t revolutionize the military justice system.  Most of the changes would be fairly minor, would affect only a small number of cases, or would improve the system’s appearance of fairness but would probably have little actual effect.  The two most significant recommendations are probably Numbers 4 and 6, though as to Number 6, NCIS and AFOSI have already moved to videotaping custodial interrogations, meaning that this recommendation’s impact would be largely limited to the Army and Coast Guard.  But these modest recommendations would improve the military justice system.

Most of the changes to the military justice system that Congress and the President adopt are proposed by DOD.  And DOD has historically been resistant to outside suggestions for reform.  So it will be interesting to follow the reform process.  The Obama Administration’s DOD OGC took no position on the Equal Justice for Our Military Act of 2009 at the House hearing on the measure, in contrast to the Bush Administration DOD OGS’s opposition. And as an Illinois state legislator, President Obama successfully sponsored a bill to provide for videotaped custodial interrogations in that state, suggesting that the White House may be open to recommendation Number 6 regardless of DOD’s position.

From a political science perspective, we’ll be fascinated by the process of attempting to influence the statutes and regulations that govern the military justice system.  And from a military justice perspective, we’re interested in the end result.  It will be months or years before we can know the Cox Commission II’s true significance.  But the Cox Commission II’s study of the military justice system, recognition of the limitations on achievable reforms, and proposal of worthy, albeit modest, changes rank as one of the top-10 military justice stories of the year.

Judge Everett was a giant in the military justice system, an influential teacher, and one of the most gracious gentlemen on the planet.  His death on 12 June at the age of 81 was especially startling because he was scheduled to sit on two CAAF cases as a senior judge on 24 June.

Judge Everett served as the Court of Military Appeals’ Chief Judge from 1980 through 1990.  At CAAF’s memorial proceeding, Judge Cox provided a wonderful recap of the political environment of that time and a very credible threat to CMA’s existence.  Chief Judge Everett successfully shepherded the court away from the precipice and restored its institutional credibility. 

But Judge Everett was so much more than just a revered Chief Judge.  He was also an Air Force officer, rising to the rank of colonel in the Reserve.  He was the youngest faculty member in the history of Duke Law, teaching his first course when he was 22, and he taught there for literally half a century. 

Judge Everett also influenced the military justice system through his service as counsel to the Senate Judiciary Committee’s Subcommittee on Constitutional Rights, chaired by Senator Sam Ervin, from 1961 to 1964 and an advisor to the subcommittee from 1964 to 1966. Hearings during which Judge Everett participated as the subcommittee’s counsel ultimately led to the Military Justice Act of 1968.  In 1993, he founded Duke Law’s Center on Law, Ethics, and National Security.

Judge Everett also argued and won the Supreme Court cases of Shaw v. Reno, 509 U.S. 630 (1993), and Shaw v. Hunt, 517 U.S. 899 (U.S. 1996), which dealt with racial gerrymandering.

He was involved in and led myriad professional organizations, including chairing the ABA’s Standing Committee on Military Law and serving on the Advisory Committee on the Federal Rules of Criminal Procedure and Evidence.

To reminisce further, you can watch a 17-minute video about Judge Everett here. The video was prepared by his son Greg in 2000.  (Scroll down to the black-and-white picture of him and hit the play icon.)

While most of the Navy SEALs court-martial story will play out in 2010, it has still been significant enough to make 2009’s top-10 list. 

Three Navy SEALs who captured the terrorist leader Ahmed Hashim Abed were offered NJP for events that allegedly occurred in Iraq after Abed was in detention.  One of the SEALs — SO2 McCabe — was charged with assaulting Abed by punching him in the stomach.  SO2 McCabe is also charged with making a false official statement by telling an NCIS agent that he didn’t assault Abed or see anyone else assault Abed.  Finally, SO2 McCabe is charged wtih willful dereliction of duty by failing to safeguard a detainee.  SO2 Keefe is charged with a similar dereliction charge and spec and making a false official statement by telling an NCIS agent that he didn’t see anyone assault or abuse Abed.  SO1 Huertas is charged with a similar dereliction charge and spec, making a false official statement by telling an NCIS agent that he didn’t see anyone “display aggressive behavior toward” Abed, and an Article 134 offense of wrongfully endeavording to impede an investigation.

All three refused NJP.  The Commanding General of Special Operations Command Central then referred all three cases to special courts-martial.  Then all hell broke loose.  Fox News reported the story and it’s been featured prominently in conservative media outlets and blogs.  Two groups of House members sent letters to Secretary of Defense Gates and Major General Cleveland — the convening authority — asking that charges be dropped.  A protest was also held outside Naval Station Norfolk, where the three are being prosecuted.  And in response to a question from CNSNews, White House Press Secretary Robert Gibbs indicated that President Obama won’t intervene in the cases.

All three SEALs have now been arraigned, with our friend LCDR Jason Grover serving as a TC.  All three are represented by civilian defense counsel along with Navy defense counsel.  The trial counsel have reportedly told the defense counsel that Abed won’t be produced as a witness at the court-martial proceedings.

Two of the cases are reportedly set for trial in January — though we certainly won’t be surprised to see those trial dates pushed back — while SO2 Keefe’s is set for 6 April.

This case is certainly influencing the public’s perception of the military justice system.  It also represents an interesting intersection between the military justice system and our elected representatives.  And it’s a study in the effects of media coverage on the military justice system.  It calls to mind the case of First Lieutenant Kelly Flinn, who ultimately avoided a court-martial due in large part to Frank Spinner’s deft public relations campaign. That campaign, in turn, led Colonel Morris Davis — who would later serve as the military commission system’s chief prosecutor — to write this article in the Air & Space Power Journal calling for the military to be more proactive in its engagement with the media in military justice matters to rebut — and even preempt — p.r. campaigns like Frank Spinner’s in the Flinn case.  So far, SOCCENT doesn’t seem to be following Colonel Davis’s advice; its public comments on the case have been fairly tepid.  (See, e.g,, here.)  Of course, many would argue that the military shouldn’t follow Col Davis’s advice.  But there’s certainly a cost to be paid by ceding the p.r. field to the defense — and the government may well pay that cost in these cases.

The SEALs cases will no doubt teach us a consirable amount about the military justice system and how to influence it both within and outside the courtroom.  That makes it one of the year’s top 10 military justice stories–and probably one of 2010’s top 10 military justice stories as well.

Story number nine is a holdover from the #1 story in 2008, the legal aftermath of the Haditha incident.  In 2009 the Marine Corps finally determined the fate of LtCol Jeffrey Chessani after nearly 3 years of investigations, trials and administrative hearings.

The year began with the fate of LtCol Chessani’s court-martial still resting in the hands of NMCCA on an Art. 62 appeal.  In the appeal, which took nine months to resolve, the government took issue with the military judge’s dismissal, without prejudice, of charges against LtCol Chessani based on unlawful command influence.  Chessani’s counsel had the luck of the Irish and on March 17, 2009, see here and here, NMCCA held that the military judge had not erred in finding unlawful command influence, but had erred in disqualifying the Joint Forces Command (Gen Mattis’ new command) members other than General Mattis, the original convening authority.  NMCCA then quickly denied the government’s request for rehearing en banc, see here and here, and left the government to decide to certify the issues or send the case back for a new referral.  The government chose to do neither.

Ultimately LtCol Chessani went before a Marine Corps show cause hearing, CAAFlog coverage here and here.  As reported by the Marine Corps Times here, his board of inquiry met for six days before determining that LtCol Chessani “demonstrated substandard performance of duty, but did not commit any acts of misconduct” and should retire as a LtCol. 

While 2009 resolved the final officer case from the Haditha incident, the incident will remain in the news as squad leader SSgt Frank Wuterich’s court-martial still remains to be scheduled after much delay resulting from the government’s attempts to secure unaired interviews with SSgt Wuterich by 60 Minutes, latest news here.  Maybe the Haditha incident will get the trifecta and make the 2010 top stories?

A perennial newspaper feature near the end of each December is the Top-10 retrospective on the year.  Since this is a year ending in “9,” we’ve also seen quite a few retrospectives of the decade, like yesterday’s NYT piece by Scott Turow on the “Trials of the Decade.”  CAAFlog has only existed for a bit more than three years, so we don’t yet have a decade’s worth of perspective.  But for the second year in a row, we’re rolling out a list of the top 10 military justice stories of the year, this year as agreed to by the No Man and me.  (The No Man expressed great consternation that we were actually able to agree to the list.)

In the Air Force court-martial case of United States v. Payton, the military judge described the new Article 120 as “a prime example of what happens when legislation is influenced by what you see on Oprah and what advocacy groups propose as opposed to what is really necessary and unfortunately it makes all of our lives difficult.”  He continued, “[A]nybody who reads it would realize that Article 120 on its face is almost incomprehensible and is probably the most poorly drafted and poorly enacted Article in the UCMJ, probably in the history of the UCMJ.  If you had a hundred monkeys with a typewriter they would probably come up with something like this.”  Yet, for all its faults, Article 120 has proved remarkably resilient.

Last year, #6 on our top-1o list was, “A military judge rules that the new Article 120 is unconstitutional.”  We noted that in the Navy court-martial case of United States v. Fairley, Judge Raymond E. Beal II held that the new Article 120 unconstitutionally shifted the burden of proof on consent to the defense.  But in May 2009, NMCCA reversed Judge Beal’s Fairley ruling in a one-line opinion, as the No Man discussed here.  And NMCCA upheld Article 120’s constitutionality in three en banc published opinions:  United States v. Neal, 67 M.J. 675 (N-M. Ct. Crim. App. 2009) (en banc); United States v. Crotchett, 67 M.J. 713 (N-M. Ct. Crim. App. 2009) (en banc); and United States v. Medina, __ M.J. ___, 2009 WL 4857364 (N-M. Ct. Crim. App. Dec. 17, 2009) (en banc). 

No doubt in an effort to definitively settle the question of the new Article 120’s constitutionality, the Judge Advocate General of the Navy certified the Neal case to CAAF.  United States v. Neal, 68 M.J. 76 (C.A.A.F. 2009).  CAAF heard oral argument, which is available here, on 21 September.  Shortly thereafter, CAAF denied review in Crotchett without prejudice.  United States v. Crotchett, __ M.J. ___, No. 09-6006/MC (C.A.A.F. Oct. 6, 2009).

Medina was particularly interesting because by the time of that decision, Judge Beal had joined NMCCA and wrote a dissent concluding that the new Article 120 is facially unconstitutional under the Due Process Clause. 

So 2009 ends with the Government having beaten back challenges to the new Article 120’s constitutionality, but with one major battle still to be resolved.  Which means that next year, the by-then not-so-new Article 120 will probably make our top-10 list for a third year in a row.  Stay tuned.