AWOL Military Justice

[LawVol]

For your consideration:


Los Angeles Times
December 10, 2007

AWOL Military Justice (http://www.latimes.com/news/opinion/la-oe-davis10dec10,0,2446661.story?coll=la-opinion-rightrail)

Why the former chief prosecutor for the Office of Military Commissions resigned his post.

By Morris D. Davis

I was the chief prosecutor for the military commissions at Guantanamo Bay, Cuba, until Oct. 4, the day I concluded that full, fair and open trials were not possible under the current system. I resigned on that day because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.

In my view -- and I think most lawyers would agree -- it is absolutely critical to the legitimacy of the military commissions that they be conducted in an atmosphere of honesty and impartiality. Yet the political appointee known as the "convening authority" -- a title with no counterpart in civilian courts -- was not living up to that obligation.

In a nutshell, the convening authority is supposed to be objective -- not predisposed for the prosecution or defense -- and gets to make important decisions at various stages in the process. The convening authority decides which charges filed by the prosecution go to trial and which are dismissed, chooses who serves on the jury, decides whether to approve requests for experts and reassesses findings of guilt and sentences, among other things.

Earlier this year, Susan Crawford was appointed by the secretary of Defense to replace Maj. Gen. John Altenburg as the convening authority. Altenburg's staff had kept its distance from the prosecution to preserve its impartiality. Crawford, on the other hand, had her staff assessing evidence before the filing of charges, directing the prosecution's pretrial preparation of cases (which began while I was on medical leave), drafting charges against those who were accused and assigning prosecutors to cases, among other things.....

[Tom Odom]

related piece on Saturday E-Bird from the Wall Stree Journal provides background to the above


Wall Street Journal
December 8, 2007
Pg. 4

Guantanamo Testimony Is Blocked

By Jess Bravin

WASHINGTON -- A military prosecutor said the Bush administration blocked him from testifying before a congressional committee examining the treatment of Guantanamo Bay detainees -- the second such incident.

Air Force Col. Morris Davis was slated to testify next week that recent policy changes had left the military-commission system, set up to prosecute Guantanamo prisoners for war crimes, open to improper political influence, including possible pressure to use information obtained through waterboarding.

Col. Davis planned to say that he considered information obtained through the interrogation technique, which simulates drowning, unreliable and that he had ordered his staff to exclude such evidence from their cases. But other government officials disagreed about waterboarding and other issues, Col. Davis said in a draft of testimony reviewed by The Wall Street Journal.

Col. Davis said he was told Thursday night that the Defense Department wouldn't permit him to appear before the Senate Judiciary Subcommittee on Terrorism, Technology and Homeland Security. Col. Davis was chief Guantanamo prosecutor from 2005 until October, when he resigned in protest.

[Rex Brynen]

Without commenting on the individual or the substance of the dispute, this seems to me a reminder that there are all sorts of heroes: those who risk their lives, and those who stand up and put their careers on the line for what they believe is right.

Had there been more of that in 2002-03, Iraq might have been rather different (or not happened at all).

[LawVol]

WASHINGTON - The Bush administration is pushing to take control of the promotions of military lawyers, escalating a conflict over the independence of uniformed attorneys who have repeatedly raised objections to the White House's policies toward prisoners in the war on terrorism.

The administration has proposed a regulation requiring "coordination" with politically appointed Pentagon lawyers before any member of the Judge Advocate General corps - the military's 4,000-member uniformed legal force - can be promoted.

A Pentagon spokeswoman did not respond to questions about the reasoning behind the proposed regulations. But the requirement of coordination - which many former JAGs say would give the administration veto power over any JAG promotion or appointment - is consistent with past administration efforts to impose greater control over the military lawyers.

The rest of the story is here: Controlling Lawyers (http://www.boston.com/news/nation/washington/articles/2007/12/15/control_sought_on_military_lawyers/)

I can't believe this is even being discussed in a country that prides itself on the rule of law and the independence of legal counsel. This will have such a chilling effect on legal advice as to make lawyers a rubber stamp for the administration's policy. Hopefully, cooler heads will prevail.

[Ken White]

can agree on that. That's just abysmally stupid...

[tequila]

It's not stupid at all. It's quite intelligent if you have no respect for the things LawVol noted before. Quite reminiscent of the old Soviet system of supervision by politruk.

[120mm]

Just to play "devil's advocate", it appears the something needs to be done about military lawyers who appear to be less and less concerned about serving the military legal system, and who do not feel constrained from applying constitutional "rights" to individuals who traditionally have not been protected by the constitution. (i.e. extralegal combatants)

I think that the entire concept of "military law" is half a step away from the grave, and the application of civil/criminal law onto military circumstances will fatally handicap the nation-state even more than it is now. It will, in effect, deny the nation-state's right to defend itself while restricting the terrorist not a whit.

The convening authority has been a bad joke, ever sense military lawyers have bypassed military authority to the federal court system, imo.

I'm not a lawyer, but the fact that we mention "constitutional rights" and "extralegal combatants" in the same sentence tell me we're heading the wrong direction. Convene the authority, hold the tribunals, shoot the ones in the head that need it and let the others go.

[slapout9]

It's not stupid at all. It's quite intelligent if you have no respect for the things LawVol noted before. Quite reminiscent of the old Soviet system of supervision by politruk.

Yep!

[LawVol]

Just to play "devil's advocate", it appears the something needs to be done about military lawyers who appear to be less and less concerned about serving the military legal system, and who do not feel constrained from applying constitutional "rights" to individuals who traditionally have not been protected by the constitution. (i.e. extralegal combatants)

I think that the entire concept of "military law" is half a step away from the grave, and the application of civil/criminal law onto military circumstances will fatally handicap the nation-state even more than it is now. It will, in effect, deny the nation-state's right to defend itself while restricting the terrorist not a whit.

The convening authority has been a bad joke, ever sense military lawyers have bypassed military authority to the federal court system, imo.

I'm not a lawyer, but the fact that we mention "constitutional rights" and "extralegal combatants" in the same sentence tell me we're heading the wrong direction. Convene the authority, hold the tribunals, shoot the ones in the head that need it and let the others go.

I'm not quite sure what you mean by the "military legal system," but the system that I practice within is a direct decendent of constitutional law. This means that anything done within that system must conform to constitutional law. When you attempt to prosecute individuals within that system, you must afford them equality under the law (yep, that's from the constitution). I didn't make those rules, some very smart people back in the 1780's with names like Jefferson, Madison, and Franklin made them. They seemed to have worked for over 200 years and have seen us through existential threats like WWII and the Cold War. Why wouldn't they work now?

Military law is really nothing more than the application of civilian civil and criminal law to the military. Most things, like following the constitution, remain the same, but allowances are made for the uniqueness of military requirements (e.g. convening authorities in lieu of judges because we are often in austere locations, military specific crimes that are tied to good order and discipline, etc.). Military law will not handicap this nation any more than the constitution would (of course if you believe the constitution is an impediment rather than a demonstration of our commitment to law, then I guess the debate is over).

Terrorists are not doing anything new. They are simply criminals that have an ideological basis for their actions rather than personnal enrichment. Thus, we should be able to try them as we would any other criminals (this would also remove some of the legitimacy they've gained by having "war" decalred against them and having special courts set up for them, but that is another issue). Bestowing constitutional rights shouldn't alarm you or anyone else. As I've stated above, this system has worked for us for a long time and will continue to do so. Besides we are not bestowing constitutional rights on terrorists (we'll put aside the whole innocent until proven guilty thing for now:)) for the terrorist's sake, but for our own. To illustrate Let me refer to a scene in a movie called "A Man for All Seasons" as it makes my point quite well:


The scene that I’m talking about is a scene where where Sir Thomas Moore is being urged by his son in law Roper and by his wife and daughter to arrest a man a scoundrel, really, named Richard Rich. And Moore responds, as
follows, referring to Rich:

“And go he should if he were the devil himself until he broke the law.”

Roper says, “So now you give the devil the benefit of the law.”

And Moore replies, “Yes, what would you do? Cut a great road through the law to get after the devil?”

Roper replies, yes, I’d cut down every law in England to do that.”

Moore responds as follows, and this is the part that I want to talk to you about:

“Oh? And when the last law was down and the devil turned round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, man’s laws, not God’s, and if you cut them down, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the devil the benefit of the law for my own safety’s sake.”

copied from: http://blogs.denverpost.com/lewis/2007/07/27/nacchio-a-man-for-all-seasons/

Is it really worth destroying everything this country truly stands for to attain temporary security? Would you take down all the laws in an effort to get terrorism? If so, what are you going to do when they come for you? Could we not craft policies that take away rights to gun ownership, free speech, free association, etc. in an effort to stop terrorists? But that's protected by the constitution you say? Well, we've wiped that clean haven't we? What laws would you keep, which would you overlook, who would decide? Do you see the slippery slope?

Finally, a brief comment regarding your comment about military lawyers bypassing military authority. If we follow the constitution and give these terrorists legal counsel, then they are entitled to competent legal counsel that will vigorously defend their rights and their case, just as any person would be entitled to (and I'm sure you'd want if you were standing trial). Rather than simply use existing judicial systems like the federal courts or even the military justice system, an entire new system was created to try these guys. Their attorney's have a right to challenge the legality of that system. It has issues (e.g. using evidence obtained form torture, not allowing the defense to see all evidence against them) that deserve judicial scrutiny.

In short, I guess something needs to be done about me because I certainly believe that if we are going to try suspected terrorists in a court of law then that court should comport with constitutional requirements by being fair, impartial, and free from political influence. As the news article above indicates, you may get your wish and we'll all be worse off as a result. This should scare you.

[tequila]

The convening authority has been a bad joke, ever sense military lawyers have bypassed military authority to the federal court system, imo.

That the convening authority has been essentially directing the prosecutions is what makes it a bad joke IMO. Seriously, why bother with the rigmarole when a supposedly impartial judge also acts as the prosecutor?


Convene the authority, hold the tribunals, shoot the ones in the head that need it and let the others go.

The whole point is that the tribunals have been turned into rigged Star Chambers, and will be made even more so by allowing political commissars to oversee promotions of all the lawyers involved. The former is why the chief prosecutor, the guy who should have been happiest about this if he had only lacked character and integrity, resigned.

If we think that's cool, we might as well just televise the thing on Court TV like the good ol' show trials of the 1920s and charge pay-per-view for the live executions - start digging our way out of this deficit hole. If we're also going to allow interrogations from waterboarding to be used as evidence, then maybe we could even hold little marches where the detainees where duncecaps as they are dragged through the town for the edification of the masses - very popular during the Cultural Revolution, where they also allowed waterboarded confessions to be entered into evidence.

[selil]

LawVol it is going to be hard for most people to understand how right you are. Few have worked with the law and understand that it is an adversarial system. Even police officers don't understand it. I really didn't understand it until I started preparing for a Daubert hearing, and finishing my doctoral work in forensics. The current conflict today is NOT worse than the cold war, it is NOT worse the WW1, WW2, or even Korea. The response and restriction on freedoms though has been substantially worse. Irk.

[Tom Odom]

Good news on the promotions


Military lawyers stay unbridled (http://www.boston.com/news/nation/articles/2007/12/19/military_lawyers_stay_unbridled/)
White House drops veto bid on promotions
By Charlie Savage
Globe Staff / December 19, 2007

WASHINGTON - The Bush administration is dropping a plan to take control over the promotions of military lawyers, following an outpouring of alarm over the independence of uniformed attorneys who have repeatedly objected to the White House's policies toward prisoners in the war on terrorism.

more stories like thisUnder the proposal, first reported by the Globe on Saturday, politically appointed lawyers in the Pentagon would have gained the power to veto the appointment or promotion of any member of the Judge Advocate General's Corps, the military's 4,000-member uniformed legal officers group.

Retired JAGs loudly objected to the proposal, which they characterized as an attempt to politicize the corps of military lawyers by allowing the administration to block the advancement of officers considered likely to speak up if they thought the White House had issued an illegal order to the military.

[LawVol]

You beat me to the punch, Tom. I just saw this article as well. Thankfully, reason has triumphed political manuevering. Although I wonder if we JAGs will need to look over our shoulder when given legal advice or penning legal articles.

[Norfolk]

You beat me to the punch, Tom. I just saw this article as well. Thankfully, reason has triumphed political manuevering. Although I wonder if we JAGs will need to look over our shoulder when given legal advice or penning legal articles.

Very good news indeed.:) If something like that had gone through, a very hard and rapid politicization of not only the Military Justice system would have occurred, but so I strongly suspect would have extended in time to much of the rest of the Military. What a loathsome idea in the first place.

[Ken White]

You beat me to the punch, Tom. I just saw this article as well. Thankfully, reason has triumphed political manuevering. Although I wonder if we JAGs will need to look over our shoulder when given legal advice or penning legal articles.

since the Troops now have to look over their shoulders before pulling a trigger due to the pervasive presence of JAG to Battalion level... :D

My suspicion is that 'initiative' was undertaken by some overly zealous, overly political young SES staffer trying to impose his or her view of the world or aht they'd heard their Boss wish could be true -- and it snuck out before someone said "What the heck are you doing..."

[LawVol]

since the Troops now have to look over their shoulders before pulling a trigger due to the pervasive presence of JAG to Battalion level... :D


That comes from Rules of Engagement which is crafted by commanders and their political bosses, not JAGs. Don't shoot the messenger. :D:eek:

Besides the old adage that its better to be judged by 12 than carried by 6 always seems to apply.

[Ken White]

That comes from Rules of Engagement which is crafted by commanders and their political bosses, not JAGs. Don't shoot the messenger. :D:eek:

Besides the old adage that its better to be judged by 12 than carried by 6 always seems to apply.

Commanders and Politicians with no legal input, do you?

I agree with your last point -- and that is why excessive legal interference is very problematic; it causes more to be carried by six because of fear of being judged by 12.

Then there was this one, which I thought was priceless: LINK (http://www.blackfive.net/main/2006/01/jag_bans_legal_.html)

[LawVol]

The issue discussed at the link you posted brings up two huge problems with some JAGs. First is the tendency to play it safe and become "Dr. No." Saying no to the question presented by a soldier or commander is the easy thing to do. In my opinion, it shows an attorney that is doing only half his job. Which brings me to the second problem: the failure of alot of JAGs to "know their client." By learning a little about what your the operators do in whatever branch of the service the JAG is in, he can develop a better understanding of the mission. This helps the JAG "get to yes." When someone presents a legal issue to a JAG (e.g. can I do X?), they don't just want to hear NO. They want you to tell then how they can do whatever it is they want to do. If the JAG understands the mission and a little about what its like to perform that mission, he can help the soldier/commender get where they want to go (e.g. you can't do it that way, but this way will get you there).

Too many JAGs learn the law and forget to learn about the job their clients perform (we need more checking out sites like this). No one wants to break the law in performing their job, but they want to get that job done. JAGs should be facilitators rather than road blocks. Having too many JAGs act as road blocks leads to conclusions such as yours that JAGs run legal interference. I wish I could refute that argument, but I cannot.:( Those of us that understand that JAGs should be mission facilitators have a responsibility to pass this on to other JAGs.

I have always thought that taking a JAG and giving him a career-broadening assignment in some other operations-type career field would be extremely beneficial. I would think that a 12 to 18 month assignment somewhere between the 4 and 6 year mark would do it. The logistics of doing this might be a dealbreaker, but doing it would surely allow JAGs to gain an understanding of their clients and address the issues I've discussed above. Plus, it would be fun to get my boots muddy again (OOH RAH).:D

[Ken White]

problem with JAG folks; some of my best friends are lawyers :)

Do agree with your last comment on the two principal points though:


The issue discussed at the link you posted brings up two huge problems with some JAGs. First is the tendency to play it safe and become "Dr. No." Saying no to the question presented by a soldier or commander is the easy thing to do. In my opinion, it shows an attorney that is doing only half his job. Which brings me to the second problem: the failure of alot of JAGs to "know their client." By learning a little about what your the operators do in whatever branch of the service the JAG is in, he can develop a better understanding of the mission. This helps the JAG "get to yes." When someone presents a legal issue to a JAG (e.g. can I do X?), they don't just want to hear NO. They want you to tell then how they can do whatever it is they want to do. If the JAG understands the mission and a little about what its like to perform that mission, he can help the soldier/commender get where they want to go (e.g. you can't do it that way, but this way will get you there).

Too many JAGs learn the law and forget to learn about the job their clients perform (we need more checking out sites like this). No one wants to break the law in performing their job, but they want to get that job done. JAGs should be facilitators rather than road blocks. Having too many JAGs act as road blocks leads to conclusions such as yours that JAGs run legal interference. I wish I could refute that argument, but I cannot.:( Those of us that understand that JAGs should be mission facilitators have a responsibility to pass this on to other JAGs.

Agreed -- but fortunately, those types are really the exception. In the link I provided, as soon as the error was noted, she quickly recanted -- she meant well. The punishment accorded the sniper in the event seems to be no more than the function of dipwad boss, nothing to do with the JAG type.


I have always thought that taking a JAG and giving him a career-broadening assignment in some other operations-type career field would be extremely beneficial. I would think that a 12 to 18 month assignment somewhere between the 4 and 6 year mark would do it. The logistics of doing this might be a dealbreaker, but doing it would surely allow JAGs to gain an understanding of their clients and address the issues I've discussed above. Plus, it would be fun to get my boots muddy again (OOH RAH).:D

Good idea. The Army used to require all new Lieutenants bound for other branches to do two years combat arms duty (Infantry, Armor or Artillery) before reporting to their branch school. That was an idea with much merit that fell (logically) by the wayside during Viet Nam and, unfortunately was not revived after that war on cost grounds. I don't think your idea is in the too hard box. Now, if we can just get it to be some general's own idea... :D

I've always thought it would be a good idea to recruit lawyers and doctors for the services from within. Identify talent, recruit, send 'em to school in return for a service commitment...

[LawVol]

I've always thought it would be a good idea to recruit lawyers and doctors for the services from within. Identify talent, recruit, send 'em to school in return for a service commitment...

The Air Force has the Funded Legal Education Program that does this. I'm not sure of the number of folks that go through this, but I've only met a handful. Most of us are direct assession (although some of us have prior service). You'd be surprised at the number of pilots I've talked to that show an interest in going to law school.

[120mm]

Military law is really nothing more than the application of civilian civil and criminal law to the military.

So, why can't I use hollowpoint ammunition to shoot "criminal combatants? The police can use them on criminals...

Most things, like following the constitution, remain the same, but allowances are made for the uniqueness of military requirements (e.g. convening authorities in lieu of judges because we are often in austere locations, military specific crimes that are tied to good order and discipline, etc.). Military law will not handicap this nation any more than the constitution would (of course if you believe the constitution is an impediment rather than a demonstration of our commitment to law, then I guess the debate is over).

How does an illegal combatant, violating the various international agreements in Iraq or Afghanistan qualify for US constitutional protection?

Terrorists are not doing anything new. They are simply criminals that have an ideological basis for their actions rather than personnal enrichment. Thus, we should be able to try them as we would any other criminals (this would also remove some of the legitimacy they've gained by having "war" decalred against them and having special courts set up for them, but that is another issue).

This is good IO, imo. I agree with this basic supposition, EXCEPT when you practice "catch and release" against active fighters.

Bestowing constitutional rights shouldn't alarm you or anyone else. As I've stated above, this system has worked for us for a long time and will continue to do so.

It can also be argued that "the system" is becoming more and more disfunctional, benefitting only attorneys and the guilty.

Besides we are not bestowing constitutional rights on terrorists (we'll put aside the whole innocent until proven guilty thing for now:)) for the terrorist's sake, but for our own. To illustrate Let me refer to a scene in a movie called "A Man for All Seasons" as it makes my point quite well:



copied from: http://blogs.denverpost.com/lewis/2007/07/27/nacchio-a-man-for-all-seasons/

Is it really worth destroying everything this country truly stands for to attain temporary security? Would you take down all the laws in an effort to get terrorism? If so, what are you going to do when they come for you? Could we not craft policies that take away rights to gun ownership, free speech, free association, etc. in an effort to stop terrorists? But that's protected by the constitution you say? Well, we've wiped that clean haven't we? What laws would you keep, which would you overlook, who would decide? Do you see the slippery slope?

Oddly enough, we've done those very things for every single war that we've WON. Yet, according to you, the system is still functioning. Stupid Abraham Lincoln and FDR. What did they think they were doing, suspending parts of the Constitution, just to win wars and stuff....;)

Finally, a brief comment regarding your comment about military lawyers bypassing military authority. If we follow the constitution and give these terrorists legal counsel, then they are entitled to competent legal counsel that will vigorously defend their rights and their case, just as any person would be entitled to (and I'm sure you'd want if you were standing trial). Rather than simply use existing judicial systems like the federal courts or even the military justice system, an entire new system was created to try these guys. Their attorney's have a right to challenge the legality of that system. It has issues (e.g. using evidence obtained form torture, not allowing the defense to see all evidence against them) that deserve judicial scrutiny.

The tribunal system isn't "new". I'd suggest that the "new" parts of the "system" were emplaced there by the weak-kneed political hacks that can't stand the sight of a good execution.

In short, I guess something needs to be done about me because I certainly believe that if we are going to try suspected terrorists in a court of law then that court should comport with constitutional requirements by being fair, impartial, and free from political influence. As the news article above indicates, you may get your wish and we'll all be worse off as a result. This should scare you.

Well, as long as the fair, impartial and free from political influence trial allows terrorists to continue to communicate terrorist plans to each other through their (UCMJ immune) attorneys, and we can violate OPSEC and PERSEC in the process, great! :rolleyes:

[LawVol]

Hollow point ammunition is prohibited for use in armed conflict by customary international law (i.e. not written but customary practice by nations) and through application of the Hague Convention. Although the US is not a party to this Convention, it has been US practice to accede to this prohibition. I don't make the runs man, I just tell you what they are (I'm also not offering an opinion as to whether I agree with this rule). You could always write your Congressman. :D

Illegal combatants should qualify for US constitutional protection if we are going to try them in a US judicial system (whether tribunal or otherwise) IMO. There are arguments on both sides of this and despite the tendency to blame the lawyers, it is lawyers that are making those arguments that you mention. They're just not doing a good job of it, hence the idea to tie promotions to legal opinions.:mad: It's reminiscent of FDR's court-packing sceme (since you brouht up his name) that caused much uproar. I guess if you don't like your judges and lawyers, you should be able to get new ones (this would be great in football for referees). Remember, legal advice is just that; a commander is free to ignore it (as the saying goes, I'm not the one going to jail:D).

As for the system benefitting lawyers: Yeah, I'm just raking in the dough. Have you seen my paycheck? Seriously, there are some getting disgustingly rich, but most of those are over on the civil side; most criminal lawyers don't get filthy rich.

I'm not sure I understand the "UCMJ immune" comment. I am subject to the UCMJ and so are all military attorneys. Civilian attorneys would be subject to criminal law and, as are military attorneys, ethical rules for practicing law.

The tribunal at Gitmo is new; it was created after 9/11. We could have simply used the UCMJ. This would have made sense because the court-martial system has procedures for classified information and has attorneys qualified to handle the stuff (one of the justifications for the tribunals used by the adminstration). I certainly don;t claim to have all the answers, but when I see even a perception that we're ignoring the constitution or creating a kangaroo court, I can't simply close my eyes and acquiesce. Is that really what we want our JAGs to do?