Worth the Read Category Archives — Page 14 of 20 — Court-Martial Trial Practice Blog Published by International Military Lawyer

It’s the fourth of July

July 4, 2010 | The Law Office of Philip D. Cave

When enlisting or at certain other times:"
I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God." (Title 10, US Code; Act of 5 May 1960 replacing the wording first adopted in 1789, with amendment effective 5 October 1962).

When commissioning and at certain other times:
"I, _____ (SSAN), having been appointed an officer in the ____ of the United States, as indicated above in the grade of _____ do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservations or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; So help me God."

During the Revolutionary War, the Continental Congress established different oaths for the enlisted men and officers of the Continental Army:

Enlisted: The first oath, voted on 14 June 1775 as part of the act creating the Continental Army, read: "I _____ have, this day, voluntarily enlisted myself, as a soldier, in the American continental army, for one year, unless sooner discharged: And I do bind myself to conform, in all instances, to such rules and regulations, as are, or shall be, established for the government of the said Army." The original wording was effectively replaced by Section 3, Article 1, of the Articles of War approved by Congress on 20 September 1776, which specified that the oath of enlistment read: "I _____ swear (or affirm as the case may be) to be trued to the United States of America, and to serve them honestly and faithfully against all their enemies opposers whatsoever; and to observe and obey the orders of the Continental Congress, and the orders of the Generals and officers set over me by them."

Officers: Continental Congress passed two versions of this oath of office, applied to military and civilian national officers. The first, on 21 October 1776, read: "I _____, do acknowledge the Thirteen United States of America, namely, New Hampshire, Massachusetts Bay, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, independent, and sovereign states, and declare, that the people thereof owe no allegiance or obedience to George the third, king of Great Britain; and I renounce, refuse and abjure any allegiance or obedience to him; and I do swear that I will, to the utmost of my power, support, maintain, and defend the said United States against the said king, George the third, and his heirs and successors, and his and their abettors, assistants and adherents; and will serve the said United States in the office of _____, which I now hold, and in any other office which I may hereafter hold by their appointment, or under their authority, with fidelity and honour, and according to the best of my skill and understanding. So help me God." The revised version, voted 3 February 1778, read "I, _____ do acknowledge the United States of America to be free, independent and sovereign states, and declare that the people thereof owe no allegiance or obedience, to George the third, king of Great Britain; and I renounce, refuse and abjure any allegiance or obedience to him: and I do swear (or affirm) that I will, to the utmost of my power, support, maintain and defend the said United States, against the said king George the third and his heirs and successors, and his and their abettors, assistants and adherents, and will serve the said United States in the office of _____ which I now hold, with fidelity, according to the best of my skill and understanding. So help me God."

You can see more of the history of U.S. military oaths at the U.S. Army Center of Military History.

Not always a fan

June 30, 2010 | The Law Office of Philip D. Cave

I’m not a fan of the Center for Military Readiness. But I have to acknowledge they at least raised a very important point about military sexual assault cases.

Read the various articles I’ve posted about confirmatory bias in connection with this piece from CMR about Sex, Lies & Rape. Although written in 2006, the points resonate today just as clearly.

Clothed in the cloth

June 15, 2010 | The Law Office of Philip D. Cave

Politicians have always sought to wrap themselves in the military and the flag. The recent crisis of political identity has various politicians mistating or failing to correct their military record. Here is a reminder to those in uniform that active duty military have some restrictions on what they can say or do in the political fights. I posted on this earlier, but here is a Navy Times report that:

The Pentagon said Republican Senate candidate Mark Kirk has been cautioned twice for improperly mingling politics with his military service, but Kirk’s campaign denied any improper conduct Tuesday.

The Defense Department said Monday night that Kirk, a commander in the Navy Reserve, was warned after two incidents of political activity while he was on active duty. Before being allowed to go on active duty again in Afghanistan, Kirk was required to sign a statement acknowledging he knew to avoid all political work.

Counsel’s predictions

June 8, 2010 | The Law Office of Philip D. Cave

Just the other day, alerted by SCOTUSBlog I posted Jones v. Williams as a case to watch at SCOTUS. The issue once again:

Issue: Whether the Tenth Circuit violated 28 U.S.C. § 2254(d)(1) by granting habeas relief for ineffective assistance of counsel during plea bargain negotiations to a defendant who was later convicted and sentenced in a fair trial, on the ground that the remedy the Oklahoma Court of Criminal Appeals gave to the defendant was constitutionally inadequate, given that the Supreme Court has not clearly established what remedy, if any, is appropriate for ineffective assistance of counsel in such a case.

Now courtesy of the New York Times here is an article that defense counsel, trial counsel, and SJA’s may want to read. It’s a cautionary tale, or perhaps just entertaining.

Reading

May 26, 2010 | The Law Office of Philip D. Cave

Have a few spare minutes:

1. Disentangling Child Pornography from Child Sex Abuse

Carissa Byrne Hessick , Arizona State, Sandra Day O’Connor College of Law, Washington University Law Review, Vol. 88, 2010

Interrogations

May 6, 2010 | The Law Office of Philip D. Cave

Here is a new article on interrogation tactics.

Davis & Leo on the "Sympathetic Detective" Interrogation Strategy

Deborah Davis and Richard A. Leo (University of Nevada, Reno and University of San Francisco – School of Law) have posted Selling Confession: Setting the Stage with the ‘Sympathetic Detective with a Time-Limited Offer’ (Journal of Contemporary Criminal Justice, Forthcoming) on SSRN. Here is the abstract:

The effectiveness of an interrogation tactic dubbed the “sympathetic detective with a time limited offer” was tested. Participants read two versions of an interrogation transcript, with and without the tactic. Those who read the sympathetic detective version believed the detective had greater authority to determine whether and with what to charge the suspect, more beneficent intentions toward the suspect, and viewed confession as more wise. However, regression analyses indicated that for innocent suspects, only perceptions of the strength of evidence against the suspect and the detective’s beneficence and authority predicted the perceived wisdom of false confession. Interrogation tactics were generally effective, as indicated by participant recommendations of confession (versus invoking Miranda, denial, or continuing to talk without admitting guilt) for both innocent (16.7%) and guilty (74.4%) suspects; and reasons offered for participants’ recommendations for confession versus other choices generally conformed to those reported by real-life confessors and interrogation scholars.

Army Lawyer online

April 29, 2010 | The Law Office of Philip D. Cave

http://goo.gl/NOZB

Historical resource

April 11, 2010 | The Law Office of Philip D. Cave

The Army has a new and interesting addition to their Military Legal Resources.

Selected Papers of Edmund M. Morgan, Jr., Regarding the Drafting of the Uniform Code of Military Justice (1948-1949).

In the summer of 1948, in response to a need for a uniform military justice system in the newly reorganized and expanded post-World War II defense establishment, Secretary of Defense James V. Forrestal appointed a committee to draft a uniform code of military justice (UCMJ). Secretary Forrestal selected Gordon Gray (Assistant Secretary of the Army), W.John Kenney (Under Secretary of the Navy), and Eugene M. Zuckert (Assistant Secretary of the Air Force) for the committee. He also selected Felix E. Larkin (Assistant General Counsel, Office of the Secretary of Defense) as Executive Secretary to this committee—known as the "Forrestal Committee"—and appointed Harvard Law professor Edmund Morris Morgan, Jr. (1879-1966) as chair.

Gitmo cases

March 29, 2010 | The Law Office of Philip D. Cave

Guantanamo Bay Detainees in the Courts, an eBook by Leagle.com.

Legal experts will analyze the Guantanamo Bay detainee cases for decades to come, but presented here are the court opinions themselves, unedited and in their entirety, so that readers can review a court’s reasoning firsthand, unfiltered and without bias.

The opinions are in answer to rulings appealed by both the detainees and the U.S. government, as well as other interested parties, from the earliest rulings in 2002 through the end of 2009. While most of the decisions in the collection involve Gitmo detainees directly, other related cases are included for context and to fill out the evolution of how the U.S. courts are handling the laws and policies resulting from the war on terror.

February Army Lawyer

March 29, 2010 | The Law Office of Philip D. Cave

Here are the military justice related articles in the new Army Lawyer.

Searching for Reasonableness—The Supreme Court Revisits the Fourth Amendment

“I’ve Got to Admit It’s Getting Better”*: New Developments in Post-Trial