CAAFlog » Year in Review » Top Ten Stories of 2011

[PARENTAL ADVISORY:  Explicit Blogging]

Well it shouldn’t have taken much to figure what our #1 story for 2011 would be if you were playing along at home.  Our two top post topics during the year were (1) the elements test and (2) the UCMJ definition of sex crimes. Really now, did you think this would come out any other way?

But the lowest common denominator was not the organizing principle that got the military justice system into the mess that became United States v. Prather and the new, new Art 120, UCMJ.  Rather, much like the judges at CAAF, none of us has been able to figure out the organizing principle of the new Art 120. Thus we spent the better part of 2010 and 2011 unraveling that statute which I can best describe as resembling my Christmas lights when they first come out of storage each year–a tangled mess with no hope for untangling so I just go buy new ones each year.

And, in fact, Congress obliged at the end of 2011 and did buy us the new, new Art 120, UCMJ.   And thank Congress we must, because these developments have led to enlightened discussions of such wonderful topics as bestiality, digital penetration of the anus, and other crowd favorites.  Votes for any other top story would be like first place votes in the next BCS poll for LSU. But we’ll probably see some of those much like we heard the Fosler crowd thumping the Chief Judge Baker sea change drum (or is it the “sky is falling” drum?) for the one accused that received Fosler relief this year.

I could spend hours on sex, crimes, and the UCMJ, but I must agree that it is time to get back to more enlightened discussions of worthwhile topics like how a civilian can be “in the field” while listening to Iron Maiden at Camp Victory before attempting to take the daily stateside flight home?

#2. United States v. Fosler:  End-of-year top ten lists start to stink after I’ve thrown out my Christmas tree, so let’s get this knocked out.  Truth is we just don’t know how big Fosler is yet.  The service courts are trying to limit it to contested cases, perhaps even where the issue was preserved at trial.  In other words, to its facts.  Zack just reiterated that he thinks it’s a case with a very short life span.  Judge Baker worries it’s a sea change in military justice.  I’ve already written a good bit about Fosler here and here, and I won’t waste perfectly good electrons rehashing now.  But Fosler was a consensus choice for the top two of the year, and probably the most frequent search term that brings people to CAAFlog, after, of course, CAAFlog.   Back to No Man for the #1 story of the 2011.

In past years we’ve routinely had posts and stories about the failure of the military justice system in a combat environment, several of them making our Top 10.  In 2010  our top story, here, was that very debate, whether the military justice system can function in a combat environment.  MAJ Franklin Rosenblatt’s article Non-Deployable: The Court-Martial System in Combat from 2001 to 2009 (at 12), published in the September issue of the Army Lawyer, highlighted some of those failures and was the lead in for the Top Story.

A 2009 Top Story, here,  highlighted the problems leading up to the trial of  four Navy SEALs for alleged mistreatment of a detainee in US custody.  The case resulted in four acquittals, that some , though not me, argued were further evidence of military justice failures in combat envrions.  The 2009 Top 10, in fact, featured several combat environment courts.  While another 2009 Top 10 story, here, about the PFC Steven Green’s MEJA trial for killings in Mahmoudiya, Iraq ended in success, we questioned the three-year delay in the trial and the relative effect on good order and discipline.  Adding to the 2009 total were the Chessani debacle and the ultimately successful prosecution of 1LT Michael Behenna, here.  2008’s crop featuring some ntable problems in the cobat environment, can be found here (#8 –  SSgt Alberto Martinez’s acquittal), here (#2 – first civilian court, Ali), and here (#1 – Haditha aftermath).

This year’s combat environment Top 10 story is very different because it features of series of what I can only judge from the outside as a series of successful courts-martial convicting several members of the 5th Stryker Brigade for alleged thrill killings in Afghanistan.  See coverage of various plea deals here, here, and here (among others).  Ultimately the government convicted and won a sentence of life with the possibility of parole for the alleged ringleader of the death squad SSGT Clavin Gibbs, coverage hereThe trial was from all accounts I found, relatively well-conceived and avoided many of the pitfalls we’ve highlighted before.  The prime difference in this series of cases seems to be contemporaneous confessions and statements from multiple US servicemembers that corroborated the core story of a not particularly great key government witness, coverage here.  But, this case like most other combat environment courts was plagued by a lack of physical evidence, though the 5th Stryker Brigade’s members accused in these cases (like their predecessors at Abu Ghraib) punched their own tickets in some cases by keeping grisly photos or even body parts of their victims, see here.  Anyone compared these cases to MAJ Rosenblatt’s recommendations, they must have done something right?

As much as I liked to write more, the show must go on.  And then there were two . . . .

#4.  McClatchy News Service’s reporting on military justice matters:  For as long as I’ve been paying attention to military justice, news reporting on military justice matters has alternated between bad and none.  For the most part, the media ignore what Charles Burton called our “well hidden cul-de-sac of American law.”  When we do rate a mention, it is usually in the form of a technically dubious story on a sensational court-martial.  Or worse, we get what we saw a few weeks ago with the media’s inane teapot tempest over bestiality. 

But 2011 also saw some of the most important and well done military justice articles I’ve seen.  And they were almost all done by McClatchy.  This year’s bumper crop of important stories began in March with the first of several stories this year about problems with USACIL.  McClatchy’s best work this year was a series comprehensive and serious-minded articles on the  “new” Article 120 and sexual assault prosecutions in the military.  The emergence of quality reporting on military justice matters is an important story in itself.

#5. Meet the new senior judge. Same as the old chief judge: CAAF appointments are for 15  years, as opposed to the “good behavior” appointments judges receive in Article III courts.  So it’s no surprise, but still significant, when we have personnel changes on the court.  Chief Judge Effron’s appointment expired this year.  In the tradition of several other previous judges, he will be sitting in as a senior judge.

J.B., JG, Double Vision, et al.:

Thanks for pointing out what happens when I blog late and work late at the same time.  I’ll have to cut out some of the work.

A minute for a word on PFC Bradley Manning’s confinement and Art. 32 hearing–because I now have the keyboard.  Contrary to my colleague I think Manning actually deserved higher billing in the Top 10.  Manning’s case aroused significant US and international media coverage and attention for the military justice process, something 77.8% of the other stories in our Top 10 can’t claim–even a few in the Top 3.  Heck, the German Parliament and the  U.N. Special Rapporteur on Torture got involved (here and here). 

Now on to #7.  The odd array of facts that surrounded the various DoN leadership failures this past year, and their associated military justice and administrative proceedings, never ceased to amaze us.  Most notably was the strange tale of CAPT Owen Honors and his XO Movie Night skits, see a few reports here, here, and here.  We knew the XO Movie Night spectacle would be on its way to “Top” status when the first post about the story drew more than 90 comments.  And while his story wasn’t pure military justice, the punitive letters of censure, NPLOCs, and other administrative measures that flowed from the story made it close enough for blog-work.  Other infamous 2011 DoN leadership failures made their way directly into the heartland of military justice and landed more than one Skipper or XO at a court-martial.  See various reports herehere, here, and here.  Various news agencies estimated that, in total, the DoN relieved more than 17 commanding officers and countless other XOs or similar leaders. 

#6 is more inside baseball and is really more of a CAAFlog Top story of 2011 as few other news organizations reported on it with as much vigor.  The strange tale of Earle Partington and his suspension from the practice of law before the DoN began late last year, here, when Mr. Partington sued the Dept. of the Navy of the JAG himself.  Partington contends in his still ongoing lawsuit that the JAG disciplinary proceedings that resulted in his suspension were without statutory authority.  After disciplinary proceedings that arose from a footnote in a N-M. Ct. Crim. App. case (United States v. Toles, No. NMCCA 200602374 (N-M. Ct. Crim. App. Oct. 20, 2007)) resulted in Partington’s suspension from N-M courts-martial practice and suspension from the CAAF bar, Partington filed suit claiming the JAG did not authority to discipline a civilian counsel practicing in DoN courts.  The topic was both on point for our readers and full of ups and downs for the parties, at one point Partington won a TRO which then lapsed, and made it a perfect Top 10 pick.  See our prior analysis and reader comments.

Next on tap, an inside baseball story gets serious continuing coverage and the other big international headline military justice story.  And then the Top 2.

For starters, these lists always seem a little artificial.  A lot depends on how you count issues and what you think matters.  We tossed around some proposed lists and went back and forth.  I’m not even sure there were ten big stories this year.  But there were a few doozies that rate a tip of the hat as 2011 fades in the rearview mirror, and everyone else’s lists always have ten things.  So here goes:

#10. United States v. Sweeney: 2010 was a big year for Crawford and confrontation, and 2011 promised to bring some clarity to the issue, particularly in the context of court-martial prosecutions based on urinalysis.    In Sweeney, CAAF held that both the cover memorandum and the specimen custody document of the drug lab’s urinalysis packet “were plainly and obviously testimonial,” and should not have been admitted without the government having produced the analyst responsible for producing the information in the documents.  It’s hard to imagine that this does anything but further suppress commands’ appetite for courts-martial in urinalysis-based drug cases.

#9. Congressional preference for military commissions: Commissions don’t get a lot of ink (er, electrons?) on CAAFlog, but when historians look back on military justice in 2011, Congress’s decision to make military commissions the tribunal of choice for detainees may seem significant.  Of course the President’s signing statement suggests that then again, it may not.

#8.  United States v. Manning:  I’ll admit this one didn’t make my personal list at all.  Nothing happened.  Of course when you’re in pretrial confinement and nothing is happening, that can be a story in itself.  I suspect this will be higher on next year’s list.

Over to No Man for the next three on the list.

If you ever find yourself on Jeopardy! and hear Alex Trebek say, “The reason the UCMJ’s sodomy provision was not repealed in 2011,” the correct response is:  “What is bestiality?”  Allow me to explain.

We previously noted the changes that the National Defense Authorization Act made to the UCMJ.  But that statute is also notable for a change that it doesn’t make.

The Senate’s version of the DOD Authorization Act would have repealed Article 125, which criminalizes sodomy.  The revised version of Article 120 defines “sexual act” to include contact between the penis and not only the vulva, but also the anus or mouth.  As a result, what used to be (and still is) forcible sodomy under Article 125 is also covered by Article 120.  But Article 125 covered (and still does) another offense, as well:  bestiality.  And that offense isn’t covered by Article 120.  A strange coalition emerged to oppose the repeal of Article 125 due to concern over bestiality.  The conference committee report suscintly summarizes the outcome: 

The Senate amendment contained a provision (sec. 551) that would amend section 920 of title 10, United States Code (Article 120 of the Uniform Code of Military Justice (UCMJ)), to separate Article 120, UCMJ, into three separate articles applying to the offenses of rape and sexual assault, sexual offenses against children; and other non-consensual sexual misconduct offenses. The provision would also repeal section 125 of title 10, United States Code (Article 125 of the UCMJ), the offense of sodomy.

The House bill contained no similar provision.

The House recedes with an amendment that would delete the repeal of section 125 of title 10, United States Code (Article 125 of the UCMJ).

157 Cong. Rec. H 8583 (daily ed. Dec. 12, 2011). Read more »