Tag Archives: court-martial

Military (In)Justice: Real problems, phony answers (Op-Ed)

This article is an official statement of the Military Law Task Force and represents its views. The author is a founder of the Task Force, and currently serves on its steering committee.

In the aftermath of the reports that Air Force Lt. Gen. Craig Franklin, exercising his prerogative as convening authority (CA), overturned the aggravated sexual assault (i.e. rape) conviction of Lt. Col. James Wilkerson, Defense Secretary Chuck Hagel is calling for a change in the Uniform Code of Military Justice to remove that power. Hagel’s initiative (if one could call it that) fails to do anything substantive to address the real potential for abuse in the powers that inhere in the CA, while depriving court martial defendants of a protection that has existed virtually since the founding of the Continental Army.

As the accused’s commanding officer, the CA holds a unique place in American criminal jurisprudence and can choose to have an undue, if not determinative, influence over the outcome of a court martial. Among other powers, the CA selects the officer to conduct the Article 32 preliminary investigation, the members of the court, approves charges and specifications and designates the judge. It is hoped that these powers will be exercised neutrally, but they open the door for command influence, direct or subtle, which far more often inures to the disadvantage of an accused than the rare times that a conviction is set aside. An overhaul of the entire system, including the power of the CA to reduce sentences and reverse findings, is long overdue. Indeed, the old saying that military justice is to justice what military music is to music is attributable, in large part, to the decisive influence the CA is able to exercise. Parenthetically, the other reason the military “justice” system is so skewed, despite the substantial and extensive due process rights that an accused has, is that everything carries potential criminal liability. Nowhere else can someone be prosecuted, for example, for being late to work.

Mario and Kimberly Rivera

Iraq War Resister Kimberly Rivera sentenced to 14 months in military prison after deportation by Harper government

This press release was sent out a short time ago by the War Resisters Support Campaign of Canada

Iraq War Resister Kimberly Rivera sentenced to 14 months in military prison after deportation by Harper government

TORONTO—On Monday afternoon, during a court-martial hearing at Fort Carson, Colorado, Kimberly Rivera was sentenced to 14 months in military prison and a dishonourable discharge after publicly expressing her conscientious objection to the Iraq War while in Canada.

Under the terms of a pre-trial agreement, she will serve 10 months of that sentence.

Op-Ed: Who is really on trial — Bradley Manning or America itself?

By James M. Branum
Chair of the Military Law Task Force of the National Lawyers Guild

February 22, 2012

Growing up in small-town Oklahoma, one of my greatest influences was the Boy Scouts. I learned some of my first lessons in civics through the Boy Scout Handbook. The Handbook told me that the United States was a different kind of nation, a nation composed of people with roots from around the world, but united by certain shared ideals — democracy and due process of law. I took that message to heart because I thought it was proven by the history I learned in school.

Later, I learned that the Handbook and History class didn’t tell the whole story. America’s history wasn’t always so noble. We as a nation have not always been on the side of “liberty and justice,” and sometimes our noble words have really been “bounced checks on the Bank of Justice” (to paraphrase Dr. King’s famous “I Have a Dream” speech). But I believe that our collective failure to always live up to those ideals does not negate their value to the soul of our Union, always striving to be “more perfect.”

These ideas have been pressing on my mind lately as I think of the case of accused Wikileaks whistleblower PFC Bradley Manning.

After almost two years of delay, PFC Manning will likely be tried this summer before a US Army court-martial. While the world watches how this case unfolds, I think it will become clear that our nation is on trial too. There are two charges pending : (1) through its gross overreaction to real security threats, the US has forsaken any semblance of democracy, and (2) The US government does not respect due process of law.

If we are a democracy, which requires informed citizens, why has critical information about the wars in the Middle East been kept from us? It should not have been necessary for a private first class in the Army to allegedly leak this information in the first place. If anything, we as a nation should be thanking PFC Manning for performing this important national service.

And are we really a nation that protects due process of law, when PFC Manning’s treatment has included:

  1. Solitary confinement for 10 of the 19 months he has been in confinement thus far,
  2. Cruel and humiliating treatment during much of his confinement, including periods when his clothing was taken away by prison officials,
  3. A preliminary (Article 32) hearing that was conducted by a biased hearing officer, who was chosen by the same officials that chose to bring charges against PFC Manning,
  4. The denial of almost all of his request witnesses at that same Article 32 hearing, and finally
  5. A trial whose outcome will be determined by a jury panel composed solely of high ranking members, who have been handpicked by the same officials who are PFC Manning’s accusers.

It is not too late for the US to undo this injustice, by dismissing all charges against Bradley Manning.

I urge all people of conscience to join the campaign to free Bradley Manning.

 

James M. Branum (center) participates in a demonstration marking the start of Bradley Manning's Article 32 hearing.

Lt. Ehren Watada court-martial

LINKS

More legal documents and some analysis
http://www.ufppc.org/content/view/6718/

Thank You Lieutenant Watada !
www.thankyoult.org

View Lt. Watada’s Historic Speech to the 2006 Veterans for Peace Convention
http://www.youtube.com/watch?v=wj0hI4OyF3A.


ARTICLES

Watada court-martial stopped
By MIKE BARBER
P-I REPORTER 

A federal judge in Tacoma has delayed the court-martial of 1st Lt.
Ehren Watada, a Fort Lewis Army officer to refuse to deploy to Iraq.

In a rare intervention of a civilian court in the military justice
system, U.S. District Court Judge Benjamin H. Settle granted the
emergency stay shortly before close of business Friday.

Watada’s trial, slated to begin at 9 a.m. Tuesday, is now postponed
until at least Oct. 26, the judge ruled.

In granting the stay at 4:48 p.m., Settle determined that he has
jurisdiction under federal law to grant the stay and that Watada’s
claim that a second-trial amounts to double jeopardy is not frivolous
and “has merit” for consideration.

“The irreparable harm suffered by being put to a trial a second time
in violation of the double jeopardy clause of the Fifth Amendment
stems not just from being subjected to double punishment but also from
undergoing a second trial proceeding,” Settle wrote in quoting case
law.

Watada’s lawyers, Jim Lobsenz and Ken Kagan of the Seattle firm Carney
Badley Spellman, have argued that the circumstances of a mistrial
declared in Watada’s court-martial in February result in double
jeopardy — being tried twice for the same charge.

The mistrial was declared over Watada’s objections and after a panel
of military officers acting as a jury had heard evidence but not begun
deliberatons.

Watada’s appeals have been dismissed by the military trial judge and
the U.S. Army Court of Appeals. An appeal was made Sept. 18 to the
Court of Appeals for the Armed Forces, the highest court in the
military justice system.

Lobsenz and Kagen said they were compelled to ask the federal court on
Wednesday to stop the court-martial. Watada’s trial approached, and
nothing had been heard from the armed forces appeals court. With
Monday a federal holiday to observe Columbus Day, time was even
shorter, they said.

Settle indicated at a hearing on Thursday that he might defer to the
military appeals court if it made a decision by Friday, but at close
of business Friday, it hadn’t ruled.

Because the case being heard in federal court, the U.S. Attorney’s
Office now is arguing the government position.

Watada publicly refused to go to Iraq with the 3rd Stryker Brigade in
June 2006, contending that the war there is illegal and exposed
members of the military to war crimes. He has been charged with
missing movement and conduct unbecoming an officer. He could be
sentenced to up to six years in prison if convicted.

Settle has set up a briefing schedule to examine the merits of the
double jeopardy argument and how long he will continue the stay. The
government has until Oct. 12 to file its arguments, and Watada’s
lawyers must reply by Oct. 17.

P-I reporter Mike Barber can be reached at 206-448-8018 or
mikebarber@seattlepi.com.

Seattle Post Intelligencer Editorial, 10/5/07

Watada Court-Martial: Let him go

SEATTLE POST-INTELLIGENCER EDITORIAL BOARD

The twists and turns of the court-martial proceedings against Fort
Lewis 1st Lt. Ehren Watada continue to cause pain and division.

Watada came to an easily debated but apparently sincere decision that
the Iraq war was wrong, even illegal. He had one mistrial, and his
attorneys are trying to block a second proceeding as violating rules
against double jeopardy. But the court-martial is scheduled to begin
Tuesday.

However the defense appeals turn out, we think there is a case for
letting Watada leave the Army without further ado. That could be taken
as a statement of higher-level confidence, a choice to focus on the
larger military mission that President Bush and Gen. David Petraeus
insist is making new progress. At a minimum, many of those who oppose
the Iraq war would welcome the leniency for someone they view as a
person of conscience.

AMNESTY INTERNATIONAL
PRESS RELEASE

AI Index: AMR 51/152/2007 (Public)
News Service No: 191
5 October 2007

USA: Conviction of war objector would violate international rights

Amnesty International today expressed serious concern that US Army First Lieutenant Ehren Watada could face up to six year’s imprisonment solely for his conscientious objection to participating in the Iraq war. Ehren Watada is due to face US court-martial on 9 October for refusing to deploy to Iraq.

“It is unacceptable that Ehren Watada should face punishment for peacefully expressing his objections to the war in Iraq. His internationally recognized right to conscientious objection must be respected,” said Susan Lee, Amnesty International’s Americas Programme Director today.

Ehren Watada refused to deploy to Iraq in June 2006, based on his belief that the Iraq war is illegal and immoral. Amnesty International believes that his objection to the war is genuine and that, if found guilty, he would be a prisoner of conscience who should be immediately and unconditionally released.

The right to refuse to perform military service for reasons of conscience, thought or religion is protected under international human rights standards, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), which the US has ratified.

Ehren Watada is charged with missing his unit’s deployment in June 2006 and with “conduct unbecoming an officer” for making public comments criticizing President George Bush and the Iraq war. In addition to a possible six-year prison term, he also faces a dishonourable discharge from the Army. His first court-martial in February 2007 was declared a mis-trial after questions arose as to whether Ehren Watada had understood a pre-trial agreement he had signed.

Ehren Watada joined the army in 2003 for a three-year term, which was due to end in December 2006. In January 2006, he submitted a letter to his army command outlining his reasons for refusing to participate in the Iraq war and asking to resign from the army. He did not formally apply for conscientious objector status because US army regulations stipulate that applicants for this status must be opposed to war in any form; they do not provide for conscientious objector status on the basis of an objection to a specific war.

Amnesty International considers a conscientious objector to be any person who, for reasons of conscience or profound conviction, refuses to participate in war or armed conflict. This can include refusal to participate in a war because one disagrees with its aims or the manner in which it was being waged, even if one does not oppose taking part in all wars.

In a speech given in August 2006, Ehren Watada defended his position, “One who breaks an unjust law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.”

Public Document.

Memo: Command Influence

 A PDF version of this publication, for download and printing, can be found here.

Command Influence

By Bob Harmon

DATE: August 12, 2005

“Command influence is the mortal enemy of military justice.” 1

–US Ct. of Military Appeals, 1986

“The good news is that there were only a handful of appellate opinions dealing with unlawful command influence this past year. The bad news is that unlawful command influence is still alive.” 2

COL Robert A. Burrell, Chair and Professor, Criminal Law Department, U.S. Army JAG School, Charlottesville VA, 2001

 

 

Question Considered: How to challenge command influence in U.S. military law.

Brief Answer: Counsel can challenge command influence, in military courts-martial, in two ways:

1. By way of the existing safeguards against unlawful command influence already in U.S. military law, where those safeguards were breached, and,

2. By raising new challenges in areas where command-influence law remains uncertain, and where military institutions create a strong possibility, an appearance, of improper command influence even when it’s not exerted or currently unlawful.

Military case law on unlawful command influence has evolved considerably in the last 10 years.