Articles Posted in Up Periscope

“SO VAST AN AREA OF LEGAL IRRESPONSIBILITY”? THE SUPERIOR ORDERS DEFENSE AND GOOD FAITH RELIANCE ON ADVICE OF COUNSEL, Mark W.S. Hobel,  111 COLUMBIA L. REV. 574 (2011).

This Note argues that the modern superior orders defense represents the most relevant and just paradigm for assessing the potential criminal liability of U.S. interrogators who claim that they were authorized and counseled bygovernment lawyers prior to using techniques that likely constituted torture.

However, recent U.S. law, most importantly sections of the Detainee Treatment Act of 2005, constitutes an extension of the superior orders defense as it would apply to interrogators, and may not only fully immunize government officials and agents involved in interrogations, but also disrupt emerging international legal norms surrounding the superior orders defense.
Part I of the Note discusses the development of the modern superior orders defense in international law and its general incorporation into national military laws, including the Uniform Code of Military Justice. Part II analyzes recent U.S. law and practice and concludes that it may deviate from the international legal standard for the superior orders defense. Part III suggests means through which U.S. practice may be brought back into conformity with the international standard, while at the same time contributing to its positive development.

I came across a case that had this interesting piece in it while discussing some IAC claims.

A defendant’s constitutional right to testify in his own behalf is implicit in the Fifth, Sixth, and Fourteenth Amendments. Rock v. Arkansas, 483 U.S. 44, 51-53 (1987). However, "[w]hether the defendant is to testify is an important tactical decision as well as a matter of constitutional right." Brooks v. Tennessee, 406 U.S. 605, 612 (1972). "Although the ultimate decision whether to testify rests with the defendant, he is presumed to assent to his attorney’s tactical decision not to have him testify." United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993). A defendant’s "silence" after his attorney decides not to call him as a witness implies that he has waived the right to testify on his own behalf. See United States v. Pino-Noriega, 189 F.3d 1089, 1095 (9th Cir.) cert. denied, 528 U.S. 989 (1999).

As noted in Pino-Noriega, the failure to testify should "not be raised as an afterthought after conviction." Id. at 1096. Rather,

Professor Colin Miller summarizes the progress of a reporter’s privilege in the 36th –40th states which now have one.  West VA became the 40th a few days ago.

Outside the Wire reports:

Was a brigade commander an instigator or just asleep at the switch while the 5th Stryker Brigade, 2nd Infantry Division, “kill team” was allegedly murdering civilians?

An Army investigation finds no “causal relationship” between Col. Harry D. Tunnell IV’s aggressive leadership and the killings, but it criticizes Tunnell for neglectfulness that created a climate ripe for misconduct.

Stars & Stripes reports:

The Spangdahlem airman behind the wheel of the car that crashed last July, killing two other airmen, goes to court Monday to face manslaughter and negligent homicide charges, an Air Force spokeswoman said Friday.

Bryan County News reports some of the voir dire in Bozicvich.  It looks like they started out with 16 potential members and have gotten down to 12.  It’s not clear if any new members are to be appointed, or the status of preemptory challenges.

What happens to the client after NJP and administrative discharge.  In Buckingham v. Secretary of the Navy, ENS Buckingham sought reinstatement in the naval service and cancellation of recoupment for his ROTC education.

ENS Buckingham shop-lifted from the NEX and was caught.  His CO imposed a LOR at NJP.  Subsequently the CO asked NMPC not to process for separation (ha!).  Ultimately ENS Buckingham was separated with a General discharge and then he was charged recoupment of almost $83K, the prorated amount of his eduction at Navy expense.

BCNR declined to reinstate or set-aside the recoupment action.  So ENS Buckingham went to court.

Here is a link to a clemency letter forwarded by CDR Kerchner to MAJ Kemkes.  It has been published by him on obamareleaseyourrecords.com.

He has also posted this on thepostemail, under the title “Obama Unfit for Command.”

ACCA has published United States v. Conrady.  This case continues the appellate look at how prosecutors may, if at all, use possession of child pornography as Mil. R. 414 evidence.  The issue of note from the opinion is:

THE MILITARY JUDGE ABUSED HIS DISCRETION IN ADMITTING AN IMAGE OF CHILD PORNOGRAPHY AS MILITARY RULE OF EVIDENCE 414 EVIDENCE.

The court found harmless error.

Navy Times reports:

A Navy petty officer who was investigated for violating the military’s ban on openly gay service members says a review board at his California base has voted against his discharge.

Opinio Juris reports on USACIL.  They begin:

On paper, courts-martial are far more fair than military commissions — the substantive law they apply is superior, and their rules of evidence and procedure are designed to protect defendants, not ensure convictions.

But then here is the kicker: