There has been some reporting that the number of Detached for Cause (DFC, Relief for Cause) in the Navy are up this year over past years. Here are some more. Actually I almost missed one. I had this ready to post last night and didn’t so today I was able to read:
A Navy Times report entitled “Navy sacks three leaders in one day” (fortunately for them no court-martial that we know of):
In the span of 24 hours, the Navy has fired a commanding officer, executive officer and a command master chief.
Couple of new NMCCA decisions on some court-martial appeals.
United States v. Soucie. In this case NMCCA decides that the military judge failed to adequately inquire into a duress defense on providency.
The accused raised six errors and the NMCCA specified an additional error. The government agreed that a charge under Article 123a should be set aside because it failed to state an offense. This left a sole specification of impersonation.
Swinging a Sledge: The Right to Effective Assistance of Counsel, the Law of Deportations, and Padilla v. Kentucky, August 31, 2010, Joseph Ditkoff
In Padilla v. Kentucky, the Supreme Court decided that the Sixth Amendment’s guarantee of the effective assistance of legal counsel requires that counsel inform his client whether his guilty plea in a criminal case carries a risk of deportation. The Court’s decision significantly expands the reach of the traditional Sixth Amendment constitutional protection afforded criminal defendants via the long-established rule of Strickland v. Washington, and, concomitantly, significantly alters the landscape of what courts will consider to be adequate representation in criminal proceedings. The precise contours of the right, thus expanded, will be left to the vagaries of the common law in both state and federal court to map out. This short article will discuss Padilla and some of its forebears and foreshadowings. As will be seen, the Supreme Court has again left prosecutors, defense counsel, and judges with a somewhat muddy decision that leaves the hard work for later, and for others…
In light of the discussion ongoing about Denedo’s end, I thought this might be an interesting read.
Here is a link to the 3 September 2010 Federal Register for the recent MCM amendments signed by The President.
And the humor you say – – – –
Hat tip to Native and Natural Born Citizenship Explored blog (a not a birther blog).
Here is a link to the July Army Lawyer.
“I Won’t Participate in an Illegal War”: Military Objectors, the Nuremberg Defense, and the Obligation to Refuse Illegal Orders
United States v. Blazier: So Exactly Who Needs an Invitation to the Dance?
Robert Seymour writing as Charles Courtley, Wig Begone,
A former military judge is set to follow the late John Mortimer after penning a comic novel about the legal profession. Robert Seymour, best known for his role in presiding over court-martial trials, has enjoyed glowing reviews for ‘Wig Begone’.
Avoiding the Extremes: A Proposal for Modifying Court Member Selection in the Military
New England Law | Boston
The Laws of War as a Constitutional Limit on Military Jurisdiction
Stephen I. Vladeck
American University – Washington College of Law
Journal of National Security & Policy, Forthcoming
American University Washington College of Law Research Paper No. 2010-27
Abstract:
Nine years, one Supreme Court decision, two statutes, and a veritable mountain of popular and academic discourse after President Bush’s November 2001 Executive Order creating military commissions to try non-citizen terrorism suspects, we have made shockingly little progress in resolving the myriad constitutional questions that such tribunals raise. What’s more, these questions have only become that much more pressing over time, (1) as Congress has stepped in to provide the authorization that the Supreme Court in Hamdan found to be lacking (thereby squarely raising some of the underlying constitutional questions); (2) as the debate over whether civilian courts or military tribunals are a more appropriate forum for trying the so-called “9/11 defendants” has raged both in public circles and behind the scenes within the current Administration; (3) as the nominal defendants before the military commissions have languished in various states of legal limbo; and (4) most recently, as the Supreme Court has upheld Congress’s power to broadly prohibit the provision of “material support” to designated foreign terrorist organizations, an offense that Congress has also made triable before a military commission.
To put it succinctly, it is impossible to have a meaningful debate over whether civilian courts or military commissions are a more appropriate forum for trying terrorism suspects so long as serious questions remain over whether the commissions may constitutionally exercise jurisdiction over particular offenses and/or offenders. And yet, although a number of defendants have attempted to challenge the jurisdiction of the military commissions – especially under the MCA – none of these cases have managed to produce a decision on the merits from any court higher than the Court for Military Commission Review (CMCR). Instead, the federal courts have generally relied on “abstention” doctrine, holding that challenges to the commissions, including to their jurisdiction, can – and should – be resolved on post-conviction appeal. That’s not to say that the Article III courts won’t have the last word; they may well, yet. But in the interim, the time has long since passed for a careful explication of the issues, the relevant precedents, and the most likely answers.
This article attempts to provide a thorough introduction to – and analysis of – the constitutional limits on the jurisdiction of military commissions. By “jurisdiction,” I mean two distinct types of authority: Jurisdiction over the offense, and jurisdiction over the offender. The former goes to whether the military court has the authority to try the charged offense; the latter goes to whether the military court has the authority to try the charged defendant. And whereas there are some precedents on the scope of these two species of jurisdiction in the context of military commissions, the law is far better settled in the closely analogous context of courts-martial, where similar issues routinely arise.
Drawing on the court-martial decisions for support, this article concludes that the Constitution does meaningfully constrain the ability of Congress to subject particular offenders and offenses to trial by military commission. In particular, under the Supreme Court’s own jurisprudence, the Constitution only authorizes the exercise of military jurisdiction over servicemembers or "offenses committed by enemy belligerents against the law of war." And although Congress is entitled to some latitude in giving content to the laws of war, there is simply no question that the constitutionality of the Military Commissions Acts of 2006 and 2009 is not settled by Congress’s self-serving ipse dixit in each statute that all of the offenses are war crimes. Even if Article I tolerates such a naked arrogation of power, the jury-trial protections of Article III and the Fifth and Sixth Amendments do not – and never have.
The News-Gazette reports an excerpt from the Congressional Record about the sinking of the USS Indianapolis and the subsequent court-martial of the commanding officer for the loss of his ship. The ship was sunk on 30 July 1945. The ultimate
(b) SENSE OF CONGRESS.–(1) It is the sense of Congress, on the basis of the facts presented in a public hearing conducted by the Committee on Armed Services of the Senate on September 14, 1999, including evidence not available at the time of Captain Charles Butler McVay’s court-martial, and on the basis of extensive interviews and questioning of witnesses and knowledgeable officials and a review of the record of the court-martial for and in that hearing, that–
(A) recognizing that the Secretary of the Navy remitted the sentence of the court-martial and that Admiral Nimitz, as Chief of Naval Operations, restored Captain McVay to active duty, the American people should now recognize Captain McVay’s lack of culpability for the tragic loss of the U.S.S. Indianapolis and the lives of the men who died as a result of her sinking; and
Court-Martial Trial Practice Blog