Monday, September 1, 2014


Posse Comitatus Act and mission creep

An interesting and potentially recurring Posse Comitatus Act (PCA) issue has arisen in a Florida civilian criminal case because an enlisted investigator with the MacDill Air Force Base Air Force Office of Special Investigations detachment was directly involved in a Clearwater Police Department child exploitation sting. Military.com has the story. According to Peter Aiken (the civilian defendant's attorney),
As an Air Force investigator, [TSgt William] Glidwell's participation in Operation Home Alone and at least four other similar stings "is widespread, pervasive and illegal."
Prosecutor Bernie McCabe disagrees.
"I don't think it is a problem," McCabe said about having an Air Force investigator participate in the sting operation. "My lawyers don't think it is a problem. And I am advised that Air Force lawyers do not think it is a problem. At this point, I am not worried about it."
When asked if military personnel are allowed to take part in civilian law enforcement operations, Air Force Office of Special Operations [sic] spokeswoman Linda Card said yes, citing a section of a Defense Department instruction issued last year.
The section spells out the activities that are not restricted under Posse Comitatus. They include actions taken for the primary purpose of benefiting the Department of Defense or foreign affairs functions of the United States, investigations related to military law known as the Uniform Code of Military Justice, investigations likely to result in administrative proceedings by the Department of Defense, related to the commander's inherent authority to maintain law and order on a military facility, protecting classified defense information or equipment or disclosure of classified information, protecting Defense Department personnel, equipment and official guests and "such other actions that are undertaken primarily for a military or foreign affairs purpose."
There is nothing in the section cited by Card that would allow military personnel to perform law enforcement investigations on civilians with no military connection.
Editor's vote: This is classic mission creep. AFOSI's conduct was clearly over the line and the defense's PCA motion should be granted. If the defense motion is granted, will disciplinary action follow for AFOSI personnel for violating the PCA without a colorable basis in the implementing DoD Instruction? Comments welcome.

Reassignment of military commission defense counsel and professional responsibility

Major Jason Wright, JA, USA
The U.S. Army has issued a statement in response to a National Public Radio report on the case of Major Jason Wright, a Guantanamo military commission defense counsel who resigned from the Army when the Army refused to defer his orders to attend a required master's degree program in Virginia. The full text of the Army's statement follows, preceded by NPR's introduction (in italics):
In 2011, the Army appointed Maj. Jason Wright to the defense team for one of the highest-profile defendants in the world: Khalid Sheikh Mohammed, the self-proclaimed mastermind behind the Sept. 11 attacks.
The Army ordered Wright to complete a required year-long graduate course, during which time he could not serve on Mohammed's defense team. Wright says that course is commonly deferred for those serving on capital cases, but this year his request for deferral was denied.
On Aug. 26, Wright resigned from the Army and left the defense team, saying his reassignment interfered with the defense team's ability to provide adequate counsel.
Wright told his story to Weekends on All Things Considered host Arun Rath. NPR reached out to the U.S. Army for a response on why Wright's deferral request was denied, and Army Spokesperson Wayne Hall provided this statement:
All military attorneys assigned to the Office of Military Commissions (OMC), defense or prosecution, are on notice that they may receive reassignment orders. It is common practice, particularly in protracted litigation, for military attorneys to withdraw from representation of both the United States and the defendant due to reassignment. It has been the Judge Advocate General's Corps' practice for the past 12 years to reassign members to and from the OMC and numerous Judge Advocates from both sides of the bar have been so reassigned. When reassignment occurs, the represented party is always assigned another competent and certified military counsel. Reassignment of OMC defense counsel is closely coordinated through the Chief Defense Counsel who communicates with the Learned Counsel.
The "graduate program" is an American Bar Association recognized graduate law school that confers a Master of Law (LL.M.) in Military Law. The course serves as the Advanced Officer Course for all Active Component (AC) Army Judge Advocates. Every active duty officer, regardless of the officer's branch (such as the Infantry branch, the Aviation Branch, the Military Intelligence Branch), is expected to attend an advanced course; this normally is when the officer is a senior Captain. An advanced course prepares military officers for greater responsibility within the hierarchy of the Army. During the judge advocate's advanced course, which confers an LL.M., the officer both delves into specialty areas of legal practice and trains to take on greater supervisory legal responsibilities. Not attending this course or perpetually delaying attendance would be detrimental to any officer's military career, limiting the availability of future assignments and making promotion unlikely.

Detention-shopping

Maj. Gen. (ret) Jovito Palparan
An unusual issue has arisen in the Philippines: a retired major general, arrested after nearly three years in hiding, is arguing that he should be detained in a military confinement facility rather than a civilian one pending trial.  His request has been described as "detention-shopping" by a lawyers' group. He is charged with complicity in the abduction and disappearance of two women university students. This article from Rappler provides details on the detention issue.

Sunday, August 31, 2014

The Great Indelible Ink Caper

Major Zaidi Ahmad, RMAF
It must have been a lively day in court for the Royal Malaysian Air Force "indelible ink" case with which Global Military Justice Reform readers are already familiar. Here's the latest report from The Sun Daily:
A Royal Malaysian Air Force (RMAF) investigating officer (IO) agreed making media statements that are not military-related is not an offence under the Armed Forces Council Instruction.
Prosecution witness Lt Col Mohammad Rosli Yaakob agreed with defence counsel Mohamed Hanipa Maidin that RMAF officer Major Zaidi Ahmad did not commit an offence under military regulation since his statements made to the media were "election-related" and about "indelible ink".
"An army officer is only committing an offence if he publishes articles that have any government or military subject.
"[Zaidi's] statements were related to elections; does indelible ink have anything to do with military?" Hanipa asked during cross-examination today at Zaidi's court martial at the RMAF base in Sungai Besi.