LTC Lakin and Mr. Jensen will be on the Barry Farber radio tonight at 2000.
Apparently the “embarrsassment” language was intended by the judge to alert Congress that they need to begin impeachment proceedings.
Note, it is Article 46, UCMJ, 10 U.S. Code 846.
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The spinning has begun, and yes there’s a pun in there, or at least an attempted one. Based on cherry-picked comments from a number of Lakin supporters it appears that all of this is merely the military judge saving the President “embarrassment.” They are grasping at a straw as a way to explain a complete and utter refutation of what they have been trying to incorrectly advertize as the state of military law, assuming they were present. Some comments about the military judge as an individual have become so personal, so obnoxious, and downright nasty that I have decided to remove or not post such comments. Yes, this is a change from my normal attitude of let what’s said be said and the sayer and his/her worth as a person be evaluated.
PERHAPS SOMEONE COULD BE ENCOURAGED TO MAKE THE WRITTEN FINDINGS PUBLICLY AVAILABLE?
I was present for the “40 minute” reading of her written findings and conclusions. These written findings and conclusions are now part of the record of trial, and are also now available to Jensen, LTC Lakin, and the prosecutors. Perhaps APF could post the findings so we can see just how badly the military judge ruled – APF let’s get those wrong headed arguments of the judge out in the open where the full text can be read and dissected?
Here is a summary of the some of the issues to be thought about when deciding if the political question doctrine precludes judicial review or judicial decision-making (taken from the Cornell Law website).
Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Rather than focus on the word embarrassment readers should consider that the military judge was using different words to express the same prong of a political question doctrine analysis. The correct focus, as it was for the military judge, is the phrase, “or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government.” That’s what the military judge said along with an analysis of a number of other factors relevant to her application of the political question doctrine to the issues before her. This was all clearly in the context of her other statements that a court-martial is not a forum to raise and litigate political issues. Whether or not the president has properly served since 20 January 2010 is at this point clearly a matter for political discussion with no place in a military court-room.
In Baker v. Carr, the Supreme Court outlined the doctrine as follows:
We have said that "In determining whether a question falls within [the political question] category, the approriateness (sic) under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations." . . . The nonjusticiability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the "political question" label to obscure the need for . . . case-by-case inquiry. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. To demonstrate this requires no less than to analyze representative cases and to infer from them the analytical threads that make up the political question doctrine.
Baker v. Carr, 396 U.S. 186 (1962).
Without objection from the defense the military judge took judicial notice that the President has served in office since 20 January 2010 and continues to do so. Thus, the defense acceded to the notion that the legality of President Obama’s service is “final,” in my view for purposes of applying the political question doctrine. The president’s status in fact became final on 20 January 2010 when he was sworn in. That, as best as I can tell, had been committed to the Congress to determine the results of the election. the president decide to run for re-election in 2012, the political process can be exercised.
The doctrine has its roots in the federal judiciary’s desire to avoid inserting itself into conflicts between branches of the federal government. It is justified by the notion that there exist some questions best resolved through the political process, voters approving or correcting the challenged action by voting for or against those involved in the decision.
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NMCCA has released a number of decisions. Several have providency issues and issues not raised by appellate counsel.
United States v. Messias. The court set-aside a finding of guilty to because of an inadequate providence inquiry. No sentence relief granted.
While the providence inquiry establishes facts sufficient to demonstrate that the appellant drove on base and that he believed the driving to be wrongful, there are no facts developed which establish either the invalidity of the appellant’s license, if any, or in the alternative, his failure to have a valid license in his possession. We cannot infer either eventuality from this record. We are left with a substantial basis in fact to question this plea and conclude the military judge abused his discretion in accepting this plea on these facts.
We note that the appellant remains convicted of a nearly four-month period of unauthorized absence from a combat arms unit and possession of a substantial quantity of marijuana aboard a Marine Corps base. We are satisfied beyond any reasonable doubt that the sentencing landscape, now devoid of the motor vehicle operator’s license violation, has not substantially changed.
United States v. Mendoza. Here the issue was not raised by appellate counsel. But the court found that there was insufficient facts within the providence inquiry as to all of the victims. No sentence relief.
A military judge sitting as a general court-martial convicted the appellant, pursuant to his pleas, of attempted sale of military property, sexual harassment, assault consummated by battery, and sale of military property, in violation of Articles 80, 92, 108, and 128, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 892, 908, and 920. The appellant was sentenced to confinement for nine months, forfeiture of all pay and allowances, to be fined $500.00, reduction to pay grade E-1, and a bad-conduct discharge.
These cases above would indicate the trial counsel is not protecting the record. Judge Mc in his article about xxx pointed out how the trial counsel should be monitoring the elements and the evidence. The cases above are examples of how the trial counsel’s failure to protect the record might have cost the government a sentence reassessment and reduction. When the military judge asks, ‘does either side request additional enquiry,’ this is when trial counsel should be saying, ‘yes,’ with some proposed questions.
United States v. Magincalda, is a post-trial speedy review case. 857 days from date of trial to CA action. No relief.
A general court-martial with enlisted representation convicted the appellant, contrary to his pleas, of conspiracy to commit larceny, housebreaking, kidnapping, false official statements, and murder; wrongful appropriation; and housebreaking, in violation of Articles 81, 121, and 130, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 921, and 930. The members sentenced the appellant to 448 days of confinement, the period of pretrial confinement, and reduction to pay grade E-l. The convening authority (CA) approved the sentence as adjudged and ordered it executed.
United States v. Sperlik. A urinalysis case. The court specified an sentencing instruction issue not raised by appellate counsel. The court found no error in the errors raised, but found error and reversed on a failure to give correct instructions to the members.
The record demonstrates that the policy of zero tolerance, and its seemingly reflexive relationship to a punitive discharge in the minds of the members, carried into deliberations. Specific, clearly curative instructions were required in order to dispel the members’ biases or improper consideration of that policy. None were given by the military judge.
Interestingly there was quite a bit of discussion and some instructions on collateral effects of not adjudging a punitive discharge.
The civilian defense counsel noted the need to dispel the members’ bias to the point of asking for a mistrial during the Article 39(a) session and alternatively for an instruction explaining zero tolerance. But rather than ensuring the members’ biases were eradicated, the military judge only provided a minimal instruction — that he could not instruct on zero tolerance and only reminded them that it should not be considered.
The military judge further abused his discretion, in light of the specific questions presented by the members, in failing to fully address their concerns about administrative processing.
The appellant assigns four errors: 1) the evidence was
legally and factually insufficient to support the findings of
guilt to Charge II and all specifications thereunder; 2) the
indecent language offense is a lesser included offense of the
attempted indecent language to a child offense and should be
dismissed as multiplicious; 3) the appellant’s masturbation to an
unknown party via webcam over the internet was factually
insufficient to constitute indecent public exposure; and, 4) the
military judge improperly denied the appellant’s motion to
dismiss Charge II and all specifications thereunder as an
unconstitutional invasion of his privacy.
We have carefully considered the parties’ pleadings and the
record of trial. We find merit in the appellant’s second
assigned error and set aside the guilty finding for Specification
3 of Charge II (indecent communications) and dismiss the
specification. Additionally, though not assigned as error, we
find that the specifications alleging indecent exposure (Charge
II, Specification 1) and indecent acts (Charge II, Specification
2) constitute an unreasonable multiplication of charges;
accordingly, we set aside the guilty finding for Specification 1
of Charge II and dismiss the specification. We are satisfied
that the remaining convictions and the sentence are correct in
law and fact and that no error materially prejudicial to the
substantial rights of the appellant remains.
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I have just returned from watching most of the Article 39(a), UCMJ, hearing. (I left as the last item on the table was a defense request for Alan Keyes and LtGen McInerney.)
To say that the military judge destroyed the defense arguments in detail would not be an overstatement. Although the military judge did politely characterize the defense arguments as an “erroneous view of the law.”
The authority to issue orders does not depend on the qualifications of the President, any suggestion that it does is an erroneous view of the law.
Any suggestion that there is no duty to obey these orders is equally erroneous.
or words to that effect.
Basically what we have been saying has come to pass.
Arrival. The parking lot immediately around the court-house was blocked and you had to pass through a sentry. They demanded identification from everyone. When questioned the guards indicated that everyone had to identify themselves. To my knowledge no-one was turned away. But I thought it odd that they were “checking creds, to know who you are.” Toward the end of the discussion it appeared the real issue was identifying members of the press (who did require escorts).
Waiting. There seemed to be about four or five media. Interestingly there was a court artist for NBC (courtartist.com) present. There were several military persons stopping by for the view. There seemed to be about 10-12 civilians present observing. Two of the civilians indicated that they work on base and that this was a “historic event,” that they have no standing, and are interested in what happened.
I did ask around – again – to see if there were copies of the motions available for press or public review, but there weren’t.
Good move of the day. LTC Brotsky has been released from further participation in the case. Two new trial counsel (CPT O’Bierne and CPT Odergaard) appeared.
Witness production motion.
The defense had requested over 15 witnesses for merits and sentencing. The military judge initially deferred ruling on witnesses who might be relevant to the “eligibility” issue.
The defense argued the alternative that the witnesses would be relevant on sentencing anyway. Mr. Jensen passionately argued that such sentencing evidence would be the “most eloquent mitigation.” (Ignoring the possibility that such would be the most eloquent aggravation.) Dr. Keyes would be an expert in constitutional law to explain to the panel why LTC Lakin’s actions were mitigated because of various (as yet unstated) constitutional principles. This was part of what was going to be addressed when I had to leave.
The government objected on cumulative grounds to the remaining witnesses. The government also seemed to say or hint that the witness summaries were inaccurate. At least that’s how I interpret prosecutors saying, “that’s not what the witness would say.”
The character witnesses for the recent assignment are a CPT, a 1Lt, a SSG, and two SGT’s, and “some are female and some are African-American.” MAJ Kemkes argued that there was a need to have subordinates (generally considered not a good idea in officer cases) who were female and/or African-American to refute claims or perceptions that LTC Lakin is a racist. An indirect reference to Toobin and others in the media who do appear to have at times conflated LTC Lakin and allegations about birtherism being racially motivated. The military judge ordered the defense to pick “the best three” of the witnesses for duty in Afghanistan and ordered the others. The defense (MAJ Kemkes) made a good argument on the witnesses being of different ranks, different positions, and different perspectives of observation. Essentially the defense made a good standard case for why they can present a “Good Soldier” defense. In the military the defense can raise the persons good character as a soldier as reasons why they would not violate the UCMJ.
Judicial Notice.
The defense sought judicial notice of several documents. One a presidential address regarding deployments to Afghanistan. Other documents related to the chain of command or the eligibility issue – DA PAM 10-1, 10 U.S. Code 162(b), Hawaii Stat. 338.17.8 (this is the one I believe Jensen has referred to with his notorious CNN interview and which wasn’t in effect until the [I think] 1980’s. Again the military judge temporarily deferred ruling on the judicial notice motion. The defense wanted to have judicial notice that “all soldiers have a duty to disobey unlawful orders.” That’s not going to be given. The prosecution argued that’s an instructions issue.
The prosecution had requested judicial notice of AR 600-8-105 and the PPG Chapter 11, to which there was no objection from the defense.
The deposition of the officials for the State of Hawaii who have records relating to births was DENIED.
There was no credible argument that the officials would refuse to abide by a subpoena for documents or come to trial. Subpoenas issued for courts-martial are valid and enforceable in similar fashion to federal district courts.
Follow federal practice rules.
Jensen made a credible effort to get the military judge to accept that federal rules of practice (especially as to subpoena’s) are effectively assimilated via Article 46, UCMJ, 10 U.S. Code 846; and that in effect R.C.M. 703 violates Article 46, UCMJ.
One of Jensen’s arguments in response to a military judge question was that the authority is a “trickle down” concept. Jensen argued that under that theory any order since 20 January 2009 was illegal, including by implication the Manual for Courts-Martial because it was presidentially issued. Actually he’s off on that. President Obama has only signed executive orders regarding the MCM this week (unless I missed one in 2009?). I thought at one point Jensen started to walk-back the “any” order is illegal theme. I also thought I heard him say that Congress has no authority to question the president’s eligibility. (As those of you who have practiced in the Fort Meade courtroom know the acoustics are not the best.)
If 40% of Americans doubt came up several times.
The most dangerous it seemed to me was hinting a “how many of them are on active duty.” Essentially Jensen was trying to argue that there is public doubt, that many doubters may be military (you’ve heard me comment on that, and so there must be discovery. This is where the issue of mutiny might come up?
A novel argument was made that the ease of getting discovery should be a factor to consider on the need and the relevance. Jensen did agree that sealing the records would be appropriate.
The military judge took a long lunch break to finalize her decision and findings on the discovery of school records and other records and on the remaining witness issues.
The prosecution seems to be on track as treating this case in the same manner as they would Private Snuffy accused of the same charges – following the KIS principle. The government approach compared to the defense public pleading on political grounds. Jensen got the most voluble and passionate when pleading that discovery should be had because people had a right to know. Oh, OK, you want to know what happened.
Rulings.
The military judge DENIED all of the discovery requests and witness requests related to the birth controversy. This was not unexpected. But what was unexpected was the breadth and detail of the rulings, because of the obvious impact on the lawfulness motion. Clearly the findings and rulings anticipated the next motions session. At the end of the military judge’s reading of her findings, Jensen appeared beaten down. He seemed so affected that for some time he failed to stand when talking with the military judge on the record. LTC Lakin remained impassive as always. The military judge’s findings and rulings seemed also to put a stake through the heart of LtGen McInerney’s affidavit and its relevance to the trial (by inference this would include MG Vallely and MG Curry).
Basically the documents and witnesses are neither (at times she interspersed logically) relevant nor material. She cited to New, Huet-Vaughn, and Rockwood. The military judge found that Congress through its power to regulate the armed forces appointed the service secretaries and their service leaders to carry out functions such as order people to deploy, etc. She found there was substantial independent authority in law, regulation, and custom to support the issuance of orders in this situation. She gave passing reference to the de facto officer doctrine and focussed more on the political question doctrine as a justification for denial of discovery and witnesses on the strawman that the presidents status might be relevant in some fashion.
The military judge twice said that a court-martial is not “a vehicle to challenge political decisions.”
The defense conceded that with the military judge’s rulings, the orders were otherwise lawful. With that this case is back to the standard case one sees where a Soldier has missed movement and disobeyed orders. There was discussion of whether an additional session was necessary based on the lack of “wiggle room” given to the defense as it affected the discovery, witnesses, and lawfulness issues. I did not hear mention of a writ. But if there were one I’d imagine ACCA would deny based on the, “we’ll deal with it if he’s convicted and gets a jurisdictional sentence,” theory.
At this point it seems LTC Lakin will be left to wriggle while his fate is decided in the normal course of business. No doubt there will be some who will try to continue the political aspects of the case but for all intents and purposes LTC Lakin is dead meat. The real question will be sentencing.
Here is a link to some more background to LtGen McInerney who the defense appears to be posturing as their star witness in addition to Dr. Keyes.
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Mother Jones’ Adam Weinstein reports that soldiers at Virginia’s Fort Eustis were recently punished for refusing to attend one of the many Christian evangelical events sponsored by the commanding base general and "self-professed ‘reborn’ officer, Maj. General James E. Chambers." The incident and subsequent investigation have revealed a Fort Eustis culture where Christian evangelism isn’t just pervasive, it’s a direct order. Weinstein explains that this isn’t just a quirky, isolated incident. It’s part of an increasingly zealous military culture of evangelical-or-else[.]
Here is a link to the Mother Jones article.
Here is a link to the May 2009 Harpers article.
AP has now picked up on the Smoking Gun pieces about the HIV airman at McConnell AFB. See here.
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Here is a link to the Executive Order signed 31 August 2010 with amendments to the Manual for Courts-Martial.
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Lawyers interested in the legal merits of the issue will likely find themselves dissatisfied with the affidavit. It is a combination of justification for LTC Lakin’s contumacy and reasons why the discovery should be granted. There is no comment on the general failure of most of the rest of the officer corps in continuing to obey unlawful orders. They have not posted the request or motion in support of any request. Once again failing to give full disclosure.
The affidavit appears to also justify the discovery request as a need for public disclosure. This would be IMHO an abuse of process. The purpose of discovery in a criminal proceeding is to aid the defense, not to aid public disclosure for disclosures sake.
The affidavit states that the “military MUST have confidence in the Commander in Chief.” There is however no evidence to suggest the military doesn’t, merely some individual members.
Paragraph 4., indicates the affiant’s understanding of why LTC Lakin is wrong.
I have requested the PAO make copies of the motions available on the 2d to those wishing to review or have a copy. That request is “pending” is the best I can say.
In regard to the affiant:
Retired Air Force General Suggests Strip Searching All Young Muslim Men
“We have to use profiling. And I mean be very serious and harsh about the profiling,” said retired Lt. General Tom McInerney of the U.S. Air Force, suggesting that the United States adopt the profiling guidelines of Israel in order to protect ourselves from an airline attack. “If you are an 18 to 28-year-old Muslim man then you should be strip searched,” he said. If we don’t do that, we’re going to lose an airliner, he explained.
The Pentagon’s military analyst program
In April 2008 documents obtained by New York Times reporter David Barstow revealed that McInerney had been recruited as one of over 75 retired military officers involved in the Pentagon military analyst program. Participants appeared on television and radio news shows as military analysts, and/or penned newspaper op/ed columns. The program was launched in early 2002 by then-Assistant Secretary of Defense for Public Affairs Victoria Clarke. The idea was to recruit "key influentials" to help sell a wary public on "a possible Iraq invasion."
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AP is reporting that the Khadr detainee trial will begin again 18 October.
Here is an interesting Washington Post opinion piece about some contractors in Iraq.
THE ALLEGATIONS are sadly familiar by now: The men were picked up by U.S. military forces, locked in tiny cells, deprived of sleep, and subjected to extreme temperatures and loud music.
What makes these allegations extraordinary is that the men in question, Donald Vance and Nathan Ertel, are U.S. citizens who were working in 2006 for an Iraqi security firm, Shield Group Security. According to court documents, Mr. Vance warned Iraqi-based U.S. officials about possible corruption at the firm, including the funneling of weapons to insurgents. After getting the brushoff, Mr. Vance contacted Chicago agents with the FBI on his next visit home. Mr. Vance and Mr. Ertel began passing information to the FBI once they were back in Iraq. That ended when the firm became suspicious and took the men hostage; Mr. Vance and Mr. Ertel were able to call their FBI contacts, who then alerted the military, which sent soldiers to rescue the men.
Attorneys for a disgruntled Army Reserve soldier who fatally shot his supervisor after his vacation was denied say his fasting to meet stringent military weight guidelines left him in a trancelike state.
(This courtroom sketch shows Army Reserve Sgt. Rashad Valmont during military hearing Monday, Aug. 30, 2010 at Fort McPherson, Ga. Attorney William Cassara, not shown, said Valmont was dehydrated, exhausted and delirious when he burst into Master Sgt. Pedro Mercado’s office in nearby Fort Gillem in June and shot him six times. (AP Photo/Richard Miller) (Richard Miller – AP))
The Washington Post has this report.
An HIV-positive Air Force sergeant failed to disclose his medical condition before engaging in sexual activity with a “multitude” of partners he met at “swinger” parties and through adult web sites, according to a military investigation, The Smoking Gun has learned.
The criminal probe of Sgt. David Gutierrez, a 20-year military veteran, began last month when the Air Force Office of Special Investigations received information that he had “engaged in numerous, unprotected sexual acts…over the course of three years.” According to court records, investigators charge that, due to Gutierrez’s HIV status, these encounters amounted to “aggravated assault against several men and women in and around the Wichita, Kansas area.”
The 43-year-old Gutierrez, stationed at McConnell Air Force Base in Wichita, was “apprehended” on August 9 for violating the Uniform Code of Military Justice.
An HIV-positive Air Force sergeant failed to disclose his medical condition before engaging in sexual activity with a “multitude” of partners he met at “swinger” parties and through adult web sites, according to a military investigation, The Smoking Gun has learned.
The criminal probe of Sgt. David Gutierrez, a 20-year military veteran, began last month when the Air Force Office of Special Investigations received information that he had “engaged in numerous, unprotected sexual acts…over the course of three years.” According to court records, investigators charge that, due to Gutierrez’s HIV status, these encounters amounted to “aggravated assault against several men and women in and around the Wichita, Kansas area.”
The 43-year-old Gutierrez, stationed at McConnell Air Force Base in Wichita, was “apprehended” on August 9 for violating the Uniform Code of Military Justice.
And:
The Air Force sergeant accused of failing to inform a “multitude” of sex partners of his HIV-positive status has been jailed since his arrest earlier this month and faces a preliminary hearing next month, according to an Air Force spokesperson.
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(This courtroom sketch shows Army Reserve Sgt. Rashad Valmont during military hearing Monday, Aug. 30, 2010 at Fort McPherson, Ga. Attorney William Cassara, not shown, said Valmont was dehydrated, exhausted and delirious when he burst into Master Sgt. Pedro Mercado’s office in nearby Fort Gillem in June and shot him six times. (AP Photo/Richard Miller) (Richard Miller – AP))
The Washington Post has this report.
NDTV.com has this report:
Army revises training to deal with unfit recruits
This is the Army’s new physical-training program, which has been rolled out this year at its five basic training posts that handle 145,000 recruits a year. Nearly a decade in the making, its official goal is to reduce injuries and better prepare soldiers for the rigors of combat in rough terrain like Afghanistan.
But as much as anything, the program was created to help address one of the most pressing issues facing the military today: overweight and unfit recruits.
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CAAFLog previously put out:
FY 2010 DOD Authorization Act includes a provision (Section 506) establishing a five-member “independent panel to review the judge advocate requirements of the Department of the Navy.” The panel “shall carry out a study of the policies and management and organizational practices of the Navy and Marine Corps with respect to the responsibilities, assignment, and career development of judge advocates for purposes of determining the number of judge advocates required to fulfill the legal mission of the Department of the Navy.” Among other specific directives, the bill tells the panel to “review career patterns for Marine Corps judge advocates in order to identify and validate assignments to nonlegal billets required for professional development and promotion.”
The Independent Panel To Review the Judge Advocate Requirements of the Department of the Navy will meet 1 September 2010. Hat tip to CAAFLog.
Here is a link to the Military Justice Annex to the to the Marine Corps Legal Services Strategic Action Plan 2010-2015. Thanks to Col John Baker, CDC for the Marine Corps.
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