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Military Capital Punishment News
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  1. #1
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    Military Capital Punishment News

    U.S. Prepares to Lift Ban on Guantnamo Cases

    WASHINGTON — The Obama administration is preparing to increase the use of military commissions to prosecute Guantnamo detainees, an acknowledgment that the prison in Cuba remains open for business after Congress imposed steep new impediments to closing the facility.

    Defense Secretary Robert M. Gates is expected to soon lift an order blocking the initiation of new cases against detainees, which he imposed on the day of President Obama’s inauguration. That would clear the way for tribunal officials, for the first time under the Obama administration, to initiate new charges against detainees.

    Charges would then come within weeks against one or more detainees who have already been designated by the Justice Department for prosecution before a military commission, including Abd al-Rahim al-Nashiri, a Saudi accused of planning the 2000 bombing of the American destroyer Cole in Yemen; Ahmed al-Darbi, a Saudi accused of plotting, in an operation that never came to fruition, to attack oil tankers in the Straits of Hormuz; and Obaydullah, an Afghan accused of concealing bombs.

    Preparations for the tribunal trials — including the circulation of new draft regulations for conducting them — were described by several administration officials familiar with the discussions. A spokeswoman for the military commissions system declined to comment.

    With the political winds now against more civilian prosecutions of Guantnamo detainees, the plans to press forward with additional commission trials may foreshadow the fates of many of the more than 30 remaining detainees who have been designated for eventual prosecution: trials in Cuba for war crimes before a panel of military officers.

    The administration is also preparing an executive order to create a parole board-like system for periodically reviewing the cases of the nearly 50 detainees who would be held without trial.

    Any charging of Mr. Nashiri would be particularly significant because the official who oversees the commissions, retired Vice Adm. Bruce MacDonald of the Navy, may allow prosecutors to seek the death penalty against him — which would set up the first capital trial in the tribunal system. The Cole bombing killed 17 sailors.

    Mr. Nashiri’s case would also raise unresolved legal questions about jurisdiction and rules of evidence in tribunals. And it would attract global attention because he was previously held in secret Central Intelligence Agency prisons and is one of three detainees known to have been subjected to the drowning technique known as waterboarding.

    Lt. Cmdr. Stephen Reyes of the Navy, a military lawyer assigned to defend Mr. Nashiri, declined to comment on any movement in the case. But he noted that two of Mr. Nashiri’s alleged co-conspirators were indicted in federal civilian court in 2003, and he made clear that the defense would highlight Mr. Nashiri’s treatment in C.I.A. custody.

    “Nashiri is being prosecuted at the commissions because of the torture issue,” Mr. Reyes said. “Otherwise he would be indicted in New York along with his alleged co-conspirators.”

    As a candidate, President Obama criticized the Bush administration’s tribunals. But after taking office, he backed a system in which some cases would tried by revamped military tribunals while others would go before civilian juries. He also pressed to close the Guantnamo prison.

    But last month, Congress made it much harder to move Guantnamo detainees into the United States, even for trials in federal civilian courthouses. That essentially shut the door for now on the administration’s proposal to transfer inmates to a prison in Illinois and its desire to prosecute some of them in regular court.

    More than a year ago, Attorney General Eric H. Holder Jr. designated Mr. Nashiri, Mr. Darbi and Mr. Obaydullah for trial in a military commission. But they have lingered in limbo amid administration indecision about broader terrorism prosecution policies. The paralysis followed a backlash against Mr. Holder’s proposal to prosecute suspected conspirators in the Sept. 11 attacks in a Manhattan federal courthouse.

    Three other detainees were also approved for tribunals by Mr. Holder in 2009. Those cases have progressed — two pleaded guilty last year, and the third is scheduled for trial at Guantnamo next month. But the charges in those cases were left over from the Bush administration.

    While Mr. Nashiri and Mr. Darbi had also been charged in tribunals during the Bush administration, their cases were later dropped and must be started over.

    The process of charging Mr. Obaydullah had started under the Bush administration, but it was frozen before completion.

    Mr. Nashiri would be the first so-called high-value detainee — a senior terrorism suspect who was held for a time in secret C.I.A. prisons and subjected to what the Bush administration called “enhanced interrogation techniques” — to undergo trial before a tribunal.

    Another former such detainee, Ahmed Ghailani, was convicted in federal civilian court for playing a role in the 1998 Africa embassy bombings.

    While Mr. Ghailani faces between 20 years and life in prison, many Republicans have pointed to his acquittal on 284 related charges — and a judge’s decision to exclude an important witness because investigators learned about the man during Mr. Ghailani’s C.I.A. interrogation — to argue that prosecuting terrorism cases in federal court is too risky.

    Mr. Nashiri’s treatment was apparently more extreme than Mr. Ghailani’s. The C.I.A. later destroyed videotapes of some waterboarding sessions.

    Moreover, the C.I.A. inspector general called Mr. Nashiri the “most significant” case of a detainee who was brutalized in ways that went beyond the Bush administration’s approved tactics — including being threatened with a power drill. Last year, Polish prosecutors investigating a now-closed C.I.A. prison granted Mr. Nashiri “victim status.”

    An effort to prosecute Mr. Nashiri could also put a sharp focus on one of the crucial differences between federal civilian court and military commissions: the admissibility of hearsay evidence — statements and documents collected outside of court.

    Much of the evidence against Mr. Nashiri consists of witness interviews and documents gathered by the F.B.I. in Yemen after the bombing. Prosecutors may call the F.B.I. agents as witnesses to describe what they learned during their investigation — hearsay that would be admissible under tribunal rules, but not in federal court.

    It remains unclear whether the Supreme Court would uphold a tribunal conviction that relied on such evidence.

    Mr. Nashiri’s case would also test another legal proposition: whether a state of war existed between the United States and Al Qaeda at the time of the Cole bombing — before the Sept. 11 terrorist attacks and the authorization by Congress to use military force against their perpetrators.

    The United States initially handled the Cole attack as a peacetime terrorism crime, but the government now contends that a state of armed conflict had legally existed since 1996, when Osama bin Laden declared war against the United States.

    The question is important because military commissions for war crimes are generally understood to have jurisdiction only over acts that took place during hostilities.


  2. #2
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    Sailor charged with espionage, attempting to sell classified information

    YOKOSUKA NAVAL BASE, Japan — A sailor based at Fort Bragg, N.C., has been charged with four counts of the capital crime of attempted espionage, Navy Region Mid-Atlantic officials announced late Thursday.

    Petty Officer 2nd Class Bryan Minkyu Martin also faces 11 counts of mishandling classified information, according to a Navy news release.

    Martin is in custody at the naval brig in Norfolk, Va., where he has remained since shortly after being arrested Dec. 1 by federal agents in Fayetteville, N.C., according to the Navy.

    Although espionage is a capital offense under the Uniform Code of Military Justice, Navy officials made no comment on whether they would pursue the death penalty, which is exceedingly rare. The penalty can be imposed if the crime affects the defense or retaliation against a large-scale attack, war plans, communications intelligence or major defense systems and strategy, according to the UCMJ.

    The only servicemember to receive the death sentence in nearly 50 years is Pvt. Ronald Gray, whose execution was approved by President George W. Bush in 2008 after Gray was convicted of rape and murder in 1988. That case is currently under appeal, according to The Associated Press.

    [Moh's note: I can't believe Stars and Stripes got this wrong. There are currently six men on military death row. Plus, several others have received death sentences which were eventually overturned]

    Pfc. Bradley Manning, who leaked hundreds of thousands of classified cables to the Wikileaks website, faces the capital crime of aiding the enemy. Prosecutors in that case have already said that they will not pursue the death penalty, though that decision is ultimately up to Military District of Washington commander Maj. Gen. Karl R. Horst, Army officials said last week.

    In comparison, Martin is accused with committing far less damage than Manning.

    Martin never successfully delivered classified information to anyone unauthorized to see it, Naval Criminal Investigative Service officials said in December, according to media reports.

    Martin accepted $3,500 from an undercover FBI agent in exchange for dozens of pages of documents that were classified either secret or top secret, according to a 2010 warrant filed in Eastern District Court in North Carolina and obtained by the AP.

    During the initial Nov. 15 meeting with the undercover agent at a Hampton Inn near Fort Bragg, N.C., Martin told the agent his current assignment focused on Afghanistan, and that he would one day work for the Defense Intelligence Agency, according to the warrant.

    “Martin stated that over his prospective 15 to 20 year career, he could be very valuable,” the warrant says, according to AP.

    Martin was paid $500 on Nov. 15 and promised more money for future deliveries, according to the warrant. At two later meetings, Martin handed over documents in exchange for two payments of $1,500 in cash before being arrested by NCIS and Federal Bureau of Investigation agents.

    Martin, who was 22 at the time of his arrest, is a native of Mexico, N.Y., according to AP.


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    Morlock to testify against fellow ‘kill team’ troops

    A US Army soldier is to testify against the comrades with whom he allegedly planned and carried out the murders of Afghan civilians. The news comes as Nato forces brace themselves for a backlash in Afghanistan following the publication of graphic photographs of US soldiers posing with the people they allegedly killed.

    Corporal Jeremy Morlock has confessed to three murders. In January 2010 he threw a grenade at a boy before opening fire along with other members of his squad. He has also admitted to murders in February and May 2010.

    On each occasion the crime was carefully planned, covered up and photographs taken. Morlock is said to have distributed the trophy photographs freely and widely.

    Under a plea bargain which is yet to be approved by a judge, Morlock would receive a 24-year prison sentence in return for testifying against other members of a so-called "kill team" in a court martial being held at the Joint Base Lewis-McChord in Washington state.

    Besides Morlock, four others are accused of premeditated murder and face the death penalty or a life sentence if found guilty. Seven other soldiers are charged with helping to cover up the offences.

    Photographs of the soldiers - including Morlock - posing with the dead bodies of the civilians they allegedly murdered were published in the German magazine Der Spiegel on Sunday and are now widely available on the internet.

    The magazine quotes a Facebook chat between one of the accused, 21-year-old Adam Winfield, and his father. Winfield describes the January 2010 incident, saying: "They made it look like the guy threw a grenade at them and mowed him down."

    The publication of the photographs, which had been prevented in the United States by a court order, prompted the US Army to release a statement apologising for the behaviour of the team, which it described as "repugnant to us as human beings and contrary to the standards and values of the United States Army".

    It is feared the photographs will cause a wave of angry protests in Afghanistan as they become more widely distributed over the internet - and possibly provoke attacks on Nato forces.


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    Morlock sentenced to 24 years for Afghan murders

    MAT-SU — Saying “I lost my moral compass,” Army Spc. Jeremy Morlock was sentenced to 24 years in a federal prison Wednesday after pleading guilty to participating in the murder of three Afghan civilians last year.

    The Wasilla resident and former Houston High School student pleaded guilty to three charges of murdering the civilians while stationed in Afghanistan with the 5th Stryker Brigade, 2nd Infantry Division based out of Joint Base Lewis-McChord in Washington state. He was the first of five soldiers charged with premeditated murder for using grenades and machine guns to commit the crimes.

    At Wednesday’s hearing, which was scheduled to be the beginning of his court-martial, Morlock wore his full dress uniform and answered “yes sir” and “no sir” to questions posed by the judge, Lt. Col. Kwasi Hawks, reports Hal Bernton, a Seattle Times reporter who attending the hearing “The plan was to kill people,” Bernton quotes Morlock as telling the court. The statement is consistent with a videotaped interview with investigators after Morlock’s arrest last year, where he describes how the soldiers killed the civilians. He also fingers Staff Sgt. Calvin Gibbs as the ringleader. Gibbs has denied the charges, saying the Afghans died as a result of combat.

    “I violated not only the law, but the Army core values,” Bernton quotes Morlock saying. “I’ve had a lot of time to reflect on my actions … and how I lost my moral compass. I don’t know if I will be able to fully answer those questions.”

    In return for his plea, Morlock is expected to testify against others charged. Accounting for nearly a year already in a military jail, he could be eligible for parole in as soon as seven years.

    Among many of Morlock’s friends and family attending Wednesday’s hearing in Seattle was his mother, Audrey Morlock. She spent the day with her son on Tuesday and admitted the situation at times seems surreal.

    “It’s hard to keep it together, to be honest,” she said in a Tuesday telephone interview from Seattle. “You just have to, but it’s hard. I cry every day, but you have to keep it together for (the family) so they can make it through life.”

    Jeremy is the third of eight children, with two older brothers and five younger sisters, she said. Although her son was the first of the five accused soldiers to be charged in the case, she believes Jeremy, Gibbs and the others are “scapegoats” for higher ranking military and government officials.

    “They don’t back these guys, they don’t care if they die or don’t die,” she said. “They turn their backs as quick as they can. It’s not only his unit (involved in criminal activity), there’s all kinds of (stuff) going on over there.”

    She said the military knew or should have known about what was happening and could have intervened. She also believes her son and the other soldiers were doing what they were ordered to by superior officers.

    “You know, he followed orders,” Audrey Morlock said. “It’s just like he followed orders on the (Houston High) hockey team. If (the coach) told him to go check, even if it meant going in the penalty box, he’d go in the penalty box for the team.”

    She also doesn’t have harsh words for Gibbs, the accused ringleader.

    “I believe he was taking orders from somebody else, just like my son took orders,” she said. “I believe there are higher up people involved, and these guys are the scapegoats for the whole thing. That’s my opinion on it. They got orders, Gibbs got orders.”

    A helpful kid

    When Audrey Morlock saw her son on Tuesday, he was jittery and nervous, perhaps as a result of the numerous medications — as many as seven — he was prescribed while in Afghanistan. He has trouble sleeping and has nightmares, she said. And after only about two months into his deployment, Jeremy Morlock didn’t believe he’d be coming home.

    His mother recalls a letter she received in September 2009, in which he wrote about his fears. It was a 180-degree turn from the son Audrey Morlock knew before his deployment.

    The son of a 20-year military veteran, Jeremy wanted to join the Army most of his young life, she said.

    “He was, like, 5 years old and ever since that age he talked about joining the Army,” she said. “His dad jumped out of planes and he thought that was just awesome. Jeremy graduated from Airborne school, and that’s where he was supposed to be, an Airborne unit. Then they transferred him to Seattle where they have no Airborne units.”

    Growing up, Jeremy was always the helpful child, the one who would look out for other kids, she said.

    “He was awesome, funny, had tons of friends,” she said. “Jeremy drew friends like magnets. He was kind and always helping, always helping. If there was a little kid left behind, Jeremy would make sure that little kid was involved in whatever game they were playing, whether it was street hockey or soccer.”

    The family didn’t have video games, and Jeremy and his siblings spent many hours playing outdoors in the woods, she said.

    “He’d get his buddies and he’d put his dad’s uniforms on and they’d go play G.I. Joe in the woods,” she said. “They built forts and were very adventurous. If they could play outside, they played outside. He always made people laugh. He was a good kid, he is a good kid.”

    ‘I’m not coming back home’

    At Wednesday’s sentencing, Jeremy Morlock admitted the death of his father in a 2007 boating accident affected him.

    “His death left a giant hole in my life and my heart,” Bernton quotes the soldier from his statement at the sentencing hearing. “If he had been alive when I was in Afghanistan, it would have made a difference.”

    Audrey Morlock knew Jeremy was having a hard time deployed to a war zone in Afghanistan. After that September 2009 letter, her son came home on leave and resisted returning. After missing his date to report back to duty, Jeremy finally went back at the urging of family, she said.

    “He wasn’t sleeping, he was looking over his shoulder all the time, he didn’t want to go back,” she said. “He made it home, and when you leave that (war zone) situation, there’s such a relief in your body. Mentally, it was hard for him to go back, and he didn’t want to go back. He thought he wasn’t going to make it if he went back. He told us the whole time, ‘I’m not coming back home.’ He truly believed that.”

    He finally returned, and if she could do it again, Audrey Morlock said she wouldn’t have advised him to return to duty.

    “If we could take that time back, we would,” she said. “But at the time, we just thought he had to go back and finish his tour of duty.”

    What came next was a total shock, his mother said. She learned about the Afghan killings and that her son was one of the soldiers charged with the murders. And she learned that the way most everyone else did, through news reports.

    “When I first heard, I heard it just like anybody else. I looked on the news and it was all over the news,” she said.

    She was flying to Florida to start a vacation when she saw the news at the airport in Seattle.

    “I was devastated,” she said. “They barely let me back on the plane.”

    Without knowing more or hearing anything from the military, Audrey Morlock spent the next three weeks trying to find out what was happening with her son.

    “They didn’t call me or nothing,” she said. “Then I couldn’t speak to my son for three weeks or find out what was going on. I was in hell. I was calling constantly trying to get hold of somebody. Nobody would give me any answers. I called the governor, senators, called lawyers. I didn’t know what to do. I spent my entire vacation crying every day because I couldn’t find my son, couldn’t talk to him.”

    There was also a strong feeling of disbelief, she said, that there was no way her son could have been guilty of what the news reports were saying.

    “I flat-out didn’t believe it,” she said.

    ‘War changes people’

    Audrey Morlock never claimed her son was innocent or denied his role in the killings on Tuesday, but said the young man who participated in the crimes was not the same person she sent off to serve his country.

    “That’s not the kind of person he is,” she said. “He was a really kind, tender spirit and I’m not saying that was taken away, but war changes people, sadly.”

    Now, “he has the shakes all the time, he’s been in solitary confinement since he’s been in custody. … No one will ever understand what happens in a war zone unless you’re there. We can’t understand what these guys are going through. I can’t sit and imagine just what my son was going through (in Afghanistan). I just couldn’t do that. I had to believe he was going to come home and he was over there for a purpose and for a reason he believed in.”

    Her son’s military service has affected the family profoundly, Audrey Morlock said.

    “For his sisters, it’s hard,” she said. “They’re devastated. Who’s going to walk them down the aisle? They all believe in him, they have no doubt in him at all and love him very much. His brothers and sisters are all very proud of him and we’re all going to miss him very much.”

    For a mother who used to be proud of a husband who spent 20 years in service to his country and watched a son enlist, Audrey Morlock’s opinion of the military has changed.

    “I hate the military,” she said, adding that when the smoke clears, there will be other officials who will have gotten away with allowing those killings to happen. “They’re never going to find the truth now, are they?”

    A day after the sentencing, Jeremy Morlock’s mother said her son is taking responsibility for his actions, and “we all stand by him and love him with all our hearts. He’ll be welcome with open arms when he comes home.”

    By the time he’s eligible for parole, Morlock’s 3-month-old daughter, Harlo, will be 7. Following the sentencing, his mother relayed a message her son has for friends and neighbors in the Valley. “Thank you all for your prayers and support, and know I love you all,” Morlock said.

    In the end, Audrey Morlock said she, like other military parents, had to deal with the fear associated with having a son serving in a war zone, but was wasn’t prepared for the result.

    “You never think your son will become a prisoner of war of his own country.”


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    Pentagon names new Guantanamo war crimes prosecutor

    The Pentagon on Thursday named a Harvard Law trained career Army general as the chief war crimes prosecutor at Guantnamo, which has two major death penalty prosecutions in the pipeline, notably the 9/11 mass murder trial of five former CIA captives charged as co-conspirators.

    In appointing Army Brig. Gen. Mark S. Martins, the Obama administration chose a 1983 West Point graduate who had served recently in Afghanistan and earlier as a staff attorney to Army Gen. David Petraeus in Iraq. Petraeus is President Barack Obama’s nominee to run the Central Intelligence Agency.

    Martins also was one of two men in charge of Obama’s interagency Detention Policy Task Force created early in the administration with the mandate of reviewing Guantnamo detainee files to close the controversial detention center in Cuba by releasing some captives to foreign countries and relocating others to U.S. soil for federal or military trials. Congress thwarted that ambition.

    Jeh Johnson, the Pentagon’s top attorney, noted in a statement Thursday that in that task force capacity “Brig. Gen. Martins was himself instrumental in working with other agencies and with Congress in the passage of reforms codified in the Military Commissions Act of 2009.”

    Martins starts in October, perhaps a signal of when the military commissions war court prosecutions might ramp up. He replaces a former federal prosecutor called up to the Navy Reserves, Capt. John F. Murphy, who will return to the U.S. Attorneys office in Louisiana. In the interim, the military appointed Murphy’s deputy, Air Force Col. Michael O’Sullivan, to serve as the acting chief prosecutor.

    Martins is currently on assignment in Afghanistan, where he is commander of the Rule of Law Field Force.

    Murphy presided over some successes at the war court, notably the negotiated guilty plea agreements in three Obama-era cases that averted full blown trials in the cases of Canadian Omar Khadr and Sudanese captives Ibrahim al Qosi and Noor Uthman Mohammed. Each man traded guilty pleas for short terms at Guantnamo. The Toronto-born Khadr admitted to the July 2002 grenade killing of a U.S. Special Forces soldier in Afghanistan in exchange for return to his native Canada by November of this year.

    But the war court was mostly dark as the Obama administration reformed the controversial trial system that Murphy championed from a position that itself has been controversial.

    During the Bush administration, chief prosecutors were replaced, retired and in one high-profile move Air Force Col. Morris “Moe” Davis publicly resigned amid differences with a general over strategy and the independence of the chief prosecutor’s position.

    Martins brings prestigious credentials to the job, and the Pentagon announcement emphasized them.

    “Martins finished first in his class at the U.S. Military Academy at West Point,” it said. “He was also a Rhodes Scholar and graduate of Harvard Law School, where he served on the Harvard Law Review. In 2011, Martins received Harvard Law School’s Medal of


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    Many death sentences in U.S. military overturned

    In December 2008, former Army Pvt. Ronald Gray was on the brink of becoming the first military execution in almost 50 years.

    The rapist and murderer of four women had sat on death row for two decades by the time President George W. Bush approved his death warrant.

    But the week before Gray was to receive a lethal injection, a federal judge halted the execution because of a new appeal.

    Now, federal defenders who took over his case say they've found new evidence that his original military lawyers should have discovered. If they're successful, Gray could join a growing number of soldiers, airman and Marines who have been spared execution.

    Of the 16 men sentenced to death since the military overhauled its system in 1984, 10 have been taken off death row. The military's appeals courts have overturned most of the sentences, not because of a change in heart about the death penalty or questions about the men's guilt, but because of mistakes made at every level of the military's judicial system.

    The problems included defense attorneys who bungled representation, judges who didn't know how to properly instruct a jury and prosecutors who mishandled evidence.

    In all of the cases, the men have been resentenced to life in prison. Eventually, they could be eligible for parole.

    Yet by many measures, they're the military's worst of the worst. Convicted of crimes such as serial murder and rape, they're the kinds of criminals that many people would agree the death penalty should be reserved for.

    Then why have they been spared?

    Critics say the military botched the cases because its judicial system lags behind civilian courts and isn't equipped to handle the complex legal and moral questions that capital cases raise.

    Civilian courts have demanded that experienced lawyers be appointed in capital cases and have pushed for a more uniform application of the death penalty. The military, however, hasn't made any major institutional changes to address such problems in more than 25 years.

    At almost every level - from trial to appeals - young, inexperienced lawyers routinely have been appointed to represent capital defendants.

    "If you have a system where it's always amateur hour and where the lawyers are always trying their first capital case, you're going to guarantee the same kinds of mistakes that have resulted in many, many cases being reversed - because of ineffective assistance of counsel - for the last 30 years are going to be made over and over again," said David Bruck, the director of the Virginia Capital Case Clearinghouse, a legal aid clinic.

    "Even worse, you may have cases where the person is not only sentenced to death because of their lawyers' mistakes but because the courts will say that it's close enough for government work."

    Even though the military has assigned more seasoned lawyers in some recent high-profile cases, the efforts are inconsistent and often can depend on the branch.

    For instance, Charles Gittins, a civilian lawyer who hadn't tried a capital case, asked the Army earlier this year to appoint qualified counsel to help him represent a client who was eligible for the death penalty. Gittins was turned down.

    In contrast, the Guantanamo detainee who's accused of masterminding the 2000 suicide attack on an American Navy warship recently was appointed a civilian attorney with decades of capital experience. In fact, all six Guantanamo detainees likely to face the death penalty before a separate military commissions system are guaranteed experienced attorneys.

    That's because a 2009 law requires the military to appoint qualified attorneys or "learned counsel" for the terrorism suspects. No such provision exists for the regular courts-martial where service members face criminal charges.

    "Khalid Sheikh Mohammed can expect to get learned counsel, but your average military guy can't," said Gittins, a former military lawyer. "It's really bizarre to me that a terrorist who attacked the country can get qualified counsel but a U.S. citizen and soldier can't."

    Military officials could argue, and often do, that they can't provide the kinds of expert attorneys that most civilian courts now require. Defense attorneys and prosecutors generally rotate out of their jobs after a couple of years, and many are unlikely to get experience in capital cases.

    The military also shrugs off its 80 percent overall sentence-reversal rate as a natural part of the appeals process in highly scrutinized cases. The civilian court system, however, has responded to a 47 percent reversal rate as a sign of the need for reform.

    "Each outcome was entirely case-specific," said Jennifer Zeldis, a spokeswoman for the Navy's Office of the Judge Advocate General, which had four of its five capital cases overturned on appeal. "Attempting to draw conclusions as to systemic issues is problematic because of the small number of death penalty cases tried over a wide number of years."

    In January, the Army launched a review of its handling of capital cases, but officials said it wasn't prompted by any specific concerns.

    "Any good criminal justice system worth its salt is constantly looking at how it does business," said Col. Chuck Pede, who oversees criminal law policy for the Army's Office of the Judge Advocate General.

    Pede, who has experience as a prosecutor and defense attorney over a 24-year legal career, said the Army has teamed up less experienced lawyers with more seasoned attorneys or supervisors in more complex cases.

    "I don't see any major systemic issues that cry out for action on the part of the armed forces," he said of capital cases.

    But for at least a decade, military judges and lawyers have called on the U.S. military to fix its capital system.

    Critics say the military has resisted broader changes because it views its court system as separate and unique. Created by Congress to keep order in the military ranks, the military has a judicial system where all the constitutional rights taken for granted in civilian courts don't always apply, experts said. The system is decentralized and each branch operates independently, making sweeping criminal-justice reform difficult.

    "If you look at the strength of the military, it's an admirable quality in our military men and women that they have a can-do, make-do attitude. It's a recognition that military conditions are not always ideal and a real leader steps up and figures things out," said Denny LeBoeuf, the director of the American Civil Liberties Union's Capital Punishment Project. "That's a great attitude in a lot of situations, but it is not protective of the standards that are necessary in capital cases."

    Further, the Pentagon is consumed with two wars and facing the hard choices of cost cutting. The criminal justice system isn't as much of a priority.

    But experts said there were alarming signs of the need for reform, including a racial disparity that's worse in some ways than in civilian courts. Ten of the 16 men who've been sentenced to death since 1984 were minorities. Of those, six had their sentences overturned.

    According to one recent study obtained by McClatchy Newspapers, minorities are twice as likely to be sentenced to death in courts-martial as their white counterparts, a statistic that's higher than is known to exist in most civilian court systems.

    Almost 40 years ago, the U.S. Supreme Court recognized that sentencing in capital cases resulted in stark disparities, often along racial lines. The landmark ruling, Furman v. Georgia, invalidated much of the civilian capital system and ushered in a string of other capital decisions, including recognizing the importance of qualified defense attorneys.

    The military has tried to improve the quality of its attorneys appointed in all criminal cases. In 2007, for instance, the Navy established a program that allows a group of more than 50 lawyers to remain in criminal justice throughout their military careers. The Army has revamped its training.

    However, the new attorney for the only Navy defendant whose sentence hasn't been reversed is five years out of law school and has no experience with death penalty cases. To prepare for litigation that the Supreme Court has concluded is among the most difficult, the attorney attended a three-day conference offered by a nonprofit group.

    Over the course of his appeal, the defendant, Kenneth Parker, who was convicted of killing two fellow Marines, has had at least seven lawyers. They've written so many different briefs that the courts recently ordered his new lawyer to start from scratch and file one appeals brief, as is customary in a capital case.

    "The case is dazzlingly complex," said the lawyer, Maj. Kirk Sripinyo. "Anyone at any experience level would say it's difficult."

    The judge who's overseeing a crucial issue in Parker's appeal - questions about whether Parker is mentally retarded and therefore ineligible for the death penalty - was discovered to have discussed the case with one of the experts in the case without the knowledge of the lawyers. Such discussions are seen as improper and could be a sign that even the judge was out of his depth, experts said.

    Making matters more complicated, Parker's evidence was tested by a discredited North Carolina bloodstain pattern analyst who recently was accused in other cases of hiding or manipulating evidence to ensure a win for prosecutors

    In the meantime, an appeals court overturned part of the conviction of Parker's accomplice three years ago because the judge mishandled an expert's misconduct at trial. At a new trial last year, the other defendant was sentenced to life.

    Yet almost two decades after Parker's conviction, his case hasn't even completed the first level of appeal, a delay that's striking even in a capital case and that "has not been explained to me," his lawyer said.

    Such examples have prompted even some former prosecutors and military lawyers who favor the death penalty to conclude that the military could do more to improve its handling of capital cases.

    Charles Feldmann, who prosecuted Jessie Quintanilla, a Marine sergeant convicted of murdering his superior officer and almost killing another, said he was too inexperienced to be the lead prosecutor in the case when it was tried in 1996.

    In his 20s with less than three years of experience as a lawyer, he ended up making mistakes, he said. One of them, he said, was to keep the murder weapon, a gun, as a trophy and to hang it on the wall of his office.

    "It was the action of an extremely emotional and over-aggressive prosecutor who did not see the big picture," Feldmann said of his behavior. "I can't describe to you how easy it is to get rolled into the passion and the emotion of some of these cases. You can lose some of your judgment."

    A military appeals court overturned Quintanilla's sentence because of the judge's mishandling of the jury selection.

    Separately, the court excoriated Feldmann and the other prosecutors for "unethical" behavior, saying it had "besmirched the military justice system."

    After the trial, one of the other prosecutors had given the surviving victim the bullet that had pierced his chest. The same prosecutor also kept a knife from the crime for himself.

    "There is a line between zealous prosecution infused with righteous indignation, on the one hand, and unethical conduct, on the other," the Navy-Marine Corps Court of Criminal Appeals wrote. "These two judge advocates crossed that line on several occasions in this capital court-martial."

    Instead of retrying him, the military sentenced Quintanilla to life in prison. He's eligible for parole, although the families of his victims had wanted him to be executed.

    "This guy is a monster and deserves to be on death row," said Feldmann, who's now a civilian attorney and volunteers his time to help teach military lawyers, partly because of what happened in the case. "But because I didn't know how to handle death penalty cases, I failed. I failed the Marine Corps and I failed the family of the victims."

    Despite such high-profile screw-ups, the military has chosen not to follow the lead of civilian courts.

    Last year, Navy Lt. Cmdr. Stephen Reyes surveyed capital systems in the country and found that 80 percent of all state systems, plus the federal court system, have set up minimum standards for the quality of the defense appointed in death penalty cases. The military has no such requirement for its courts-martial, and Reyes thinks it should.

    Experts said the military could create an office for complex cases such as capital trials made up of lawyers from all the military services, similar to what was created for the separate military commissions system for Guantanamo detainees. Or the military could hire more seasoned civilian lawyers, a phenomenon that's already occurring in a limited way across the military's justice system in general.

    "We've already seen massive transformations in the civilian courts when it comes to defense counsel," said Reyes, who's represented military defendants accused of capital crimes. "Now it's time for the military courts-martial to get on track, before a miscarriage of justice occurs."


  7. #7
    Banned TheKindExecutioner's Avatar
    Join Date
    May 2011
    You would think the MILITARY wouldn't be so hesitant about executions! They deal with tons of lethal weapons for cryin' out loud!

  8. #8
    Senior Member CnCP Legend JLR's Avatar
    Join Date
    Mar 2011
    In this particular instance, their decision is not suprising. Mental illness and death penalty reccomendations don't generally mix.

  9. #9
    Administrator Heidi's Avatar
    Join Date
    Oct 2010
    Pentagon plans to transmit Guantanamo trials to U.S. points

    The Obama administration’s choice to run prosecutions at the Guantanamo war crimes court is pledging a new era of transparency from the remote base, including the nearly simultaneous broadcast of the proceedings to locations in the United States, where reporters and families of victims would be able to view them.

    Army Brig. Gen. Mark Martins made the disclosure in a profile published Sunday in the Weekly Standard that likened the West Point, Oxford and Harvard Law graduate to a James Bond-style problem solver. It also cast Martins as “The Rebrander” of the at-times denounced military commissions system, which Barack Obama scorned as a senator and presidential candidate, then reformed with Congress as president.

    The 51-year-old Army lawyer, who is completing two years in Afghanistan, starts the job of chief prosecutor for military commissions on Oct. 3, according to a Pentagon spokesman, Dave Oten.

    Two death penalty cases are already in the pipeline: That of the alleged architect of the 2000 suicide bombing of the USS Cole off Yemen that killed 17 sailors, and that of the five alleged 9/11 plotters accused of the mass murder.

    The trials are certain to garner international scrutiny of the crude court complex built on an abandoned airfield. Now, even before he has started his job, the general told the influential conservative magazine that the war court where he prosecutes will “feature new measures to ensure transparency, including a venue enabling victims and media to observe proceedings near-real-time in the continental United States.”

    They won’t be live because the feeds will be broadcast on a “40-second delay to ensure safeguarding of national security information.” At the maximum-security complex inside Camp Justice, that has meant a security officer can, and has, hit a white noise button to muffle testimony if someone suspects secret or sensitive information is about to be divulged.

    If implemented, the new system would be vastly different from the one that has been in place for previous Guantanamo proceedings. In those cases, reporters and other spectators were required to fly to Guantanamo on specially arranged Pentagon flights. While there, reporters faced strict limitations on where they could go and what they could report, and the limitations and expense helped cut the number of news organizations covering events there.

    Even with transmissions to the the U.S., coverage of what goes on at the tribunals will be limited. The six alleged al Qaida terrorists accused in the 9/11 attacks spent years in CIA custody at secret overseas sites before they arrived at Guantanamo in September 2006. Two of the accused were waterboarded and all were subjected to other Bush administration approved “enhanced interrogation techniques” that the Obama White House now bans.

    The CIA still forbids the public to hear what they did and where they did it, even when captives have described their treatment at pre-trial proceedings. The process also shields the identities of CIA agents and contractors who carried out interrogations.

    There is no indication that the transmissions will be available for broadcast by television networks in the United States.

    The Weekly Standard piece, which was distributed Sunday on a Pentagon electronic bulletin board, described Martins and the new CIA chief, retired Army Gen. David Petraeus, as “good buddies.” Martins had been Petraeus's legal adviser in Iraq, and Petraeus is quoted as calling the Army lawyer “truly impressive,” “uniquely situated to such a critical mission” and one who “believes in military commissions being responsible, effective institutions within our larger system of national security institutions.”

    A Pentagon spokeswoman was unable to confirm the new transmission policy on Sunday, nor specify where the proceedings would be shown in the United States.

    The article describes Martins as a 6-foot-4 West Point valedictorian who is married to a retired Army helicopter pilot he dated at the U.S. Military Academy, then worked on the Harvard Law Review with fellow law student Obama.

    The Pentagon’s general counsel, Jeh Johnson, told the magazine that Martins was “a recognized superstar” who would focus not on getting the most convictions but on making the war court credible and sustainable.

    Before his current assignment as the commander of the Rule of Law Field Force in Afghanistan, Martins was the co-chairman of the task force that reviewed Guantanamo captives’ files as part of a failed blueprint for closure of the prison camps by Jan. 22, 2010.

    Separately, Navy Cmdr. Tamsen Reese said in an email from the detention center Sunday that military medical staff would next month vaccinate guards and other troops at the prison camp complex against swine flu and offer the H1N1 inoculations to the 171 captives.

    Reese did not estimate the cost of the program. Nor did she say whether civilians working at the detention center, as well as prison camp staff families, would get swine flu vaccines too.

    Guantanamo swine flu shots stirred controversy when the Pentagon flew in special doses to the base in southeast Cuba in 2009, during an H1N1 vaccine shortage in the United States. The Pentagon then said the captives would get their vaccines only after they’d been offered to every active-duty soldier, deployed U.S. contractor and civilians working for the Department of Defense.

    Some captives have refused to get the injections, Reese said, without specifying how many.

    “We anticipate having an ample supply for both troopers and detainees,” she said.


  10. #10
    Administrator Heidi's Avatar
    Join Date
    Oct 2010
    Pentagon publishes war court procedures

    GUANTANAMO BAY NAVY BASE, Cuba The Pentagon on Monday published its long awaited regulations for military commissions, the Obama administration era handbook for how to do a war crimes trial, including a sample prosecution that charged a captive with murder as well as "pillaging" by stealing a Rolex watch, six goats and $20 American.

    The Defense Department released the document two days ahead of the arraignment of a Saudi-born captive charged with murder and terrorism for al-Qaida's suicide bombing of the USS Cole off Yemen. Seventeen U.S. sailors were killed in the October 2000 terror attack.

    Abd al-Rahim al-Nashiri, 46, makes his first appearance at the war court on Wednesday, nine years after he disappeared into the CIA's secret prison network and was questioned with enhanced interrogation techniques that included waterboarding and having a drill revved near his head.

    Monday morning, the Pentagon airlifted to Guantanamo five relatives of Cole bombing victims along with two dozen reporters to watch the proceedings. Also on board the flight were defense and prosecution attorneys as well as the case judge, Army Col. James Pohl, who soon after landing headed into a chambers conference at the war court compound, Camp Justice.

    Almost simultaneously, the document appeared on the war court's new, nearly $500,000 website, numbering 202 pages and including some changes to procedures. For example, each case's military judge now has the authority to approve the costs of a so-called "learned counsel," typically a civilian defense attorney with extensive experience defending capital murder cases. It also outlined procedures through which observers could protest, through a chief clerk, a judge's decision to declare an aspect of a trial as "protected."

    Both issues could be relevant in the upcoming prosecution of al-Nashiri, for whom the Pentagon is seeking the death penalty. Because the Pentagon is still preparing the Sept. 11 mass murder trial for five captives here, al-Nashiri's case is shaping up to be the first capital case of the war court that President George W. Bush created and President Barack Obama reformed in collaboration with Congress.

    The Pentagon's new deputy secretary of defense, Ashton B. Carter, signed the new document on Sunday. He said in a foreword that it provided guidance at times that differed from the way the U.S. military court-martials its own troops. "That difference is necessitated by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need."

    Legal experts were poring over the document Monday night.

    Meantime, Human Rights Watch attorney Andrea Prasow called the timing troubling.

    "The very idea that new rules could be issued moments before someone is arraigned to face the death penalty offends any notion of due process," said Prasow, who has worked on war court defense cases. "The stamp of illegitimacy has been firmly affixed to Nashiri's case."

    A trial date has yet to be set. First, the judge must rule on a series of requests from defense and prosecution attorneys on a range of issues that will set the conditions for the trial before a jury of senior U.S. military officers. They include whether prison camp staff can read correspondence between al-Nashiri and his defenders that outline trial strategy, whether the defenders can shield from prosecutors what experts they need and whether the jury can be told that, even if acquitted, the captive might spend the rest of his life as a war prisoner.


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