Category Archives: Law

Clinton-Cartwright Comparisons Don’t Hold Up

James Joyner and Butch Bracknell

War on The Rocks

October 27, 2016

In the third and, thankfully, final presidential debate of the 2016 cycle, Republican nominee Donald Trump doubled down on his contention that his Democratic opponent, Hillary Clinton, “should never have been allowed to run for the presidency based on what she did with e-mails and so many other things.” He had some new ammunition: a former Vice Chairman of the Joint Chiefs of Staff, retired Marine General James “Hoss” Cartwright, had just been criminally charged in relation to leaking classified information. While there are surface similarities, however, the cases are quite different.

Trump charged,

We have a great general, four-star general, today you read it in all the papers going to potentially serve five years in jail for lying to the FBI, one lie. She’s lied hundreds of times to the people, to Congress, and to the FBI. He’s going to probably go to jail. This is a four-star general, and she gets away with it and she can run for the presidency of the United States?

Josh Rogin of The Washington Post took a similar position in an article headlined “General Cartwright is paying the price for Hillary Clinton’s sins.” He contends, “The FBI’s handling of the case stands in stark contrast to its treatment of Hillary Clinton and retired General David Petraeus — and it reeks of political considerations.”

He cites Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, who argues, “There is a lack of proportion just based on the facts that one figure, Cartwright, is getting severely punished and others so far have escaped the process,” adding, “He is being singled out for prosecution and public humiliation. It’s an implicit rebuttal to those who argued that other senior officials such as Clinton or Petraeus got off scott free or got too light of a sentence.”

Cartwright’s sentencing reportedly will not take place until January 17, making a full comparison difficult. Still, the cases are sufficiently different to make Trump and Aftergood wrong on the merits.

Trump’s comparison between Clinton and Cartwright is the easiest to dismiss. While the FBI found that Clinton had repeatedly been “extremely careless” in her handling of “very sensitive, highly classified information,” there was no evidence — indeed, never even the suggestion — that she intentionally shared classified information with any individual not authorized to receive it. Her recklessness could well have compromised national secrets. Given the ubiquity of hacking, it might well have. But there is no evidence to support a criminal prosecution, as explained in depth by FBI Director James Comey and others.  (Now, conduct that doesn’t clear the bar for criminal charging may be deemed by voters to be disqualifying for President of the United States. But Clinton is running against Trump, not Cartwright.)

More importantly, despite Trump’s assertions to the contrary, there is no evidence nor, again, was there any credible assertion, that Clinton lied to the FBI in their investigation of the matter. That, after all, is what Cartwright was ultimately charged with.

As Lawfare’s Ben Wittes noted on a recent episode of the Rational Security podcast, lying to federal investigators is the surest way to get charged with a crime: “There is nothing in this world — not child porn, not terrorism, nothing — that the FBI is likely to insist you be indicted for than lying to the FBI.”  He argues this is not merely self-serving: “They can’t do their job if people don’t engage in investigations in a responsible or reasonable fashion.”

Beyond that, it seems obvious that charging someone for false statements to investigators is a convenient way to extract some punishment while avoiding the proof problems that may accompany the underlying conduct. By merely charging false statements to investigators, prosecutors simplify their case and avoid the need to declassify underlying evidence or to hold the court in a closed, secure session.

Indeed, Wittes argues, in the context of the handling of classified information, those questioned by the FBI would be best advised to be as forthcoming as possible. Not only will those suspected of dishonesty be ruthlessly pursued “for years” if necessary, but people are essentially never charged merely for the mishandling of information. When FBI Director Jim Comey explained that “no reasonable prosecutor” would have brought charges against Clinton, he noted:

All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice.

He declared, “We do not see those things here.”

The better comparison, then, is Gen. David Petraeus, whose mishandling of classified information was compounded by lying to investigators. While the Justice Department worked very hard to build a felony case against him, he was ultimately allowed to plead guilty to misdemeanor charges and pay a fine.

His case centered around handing over his personal journals, which contained extensive classified information, over to his mistress Paula Broadwell to aid in writing her hagiography of him. Included in these books were “code words for secret intelligence programs, the identities of covert officers, and information about war strategy and deliberative discussions with the National Security Council.” The Department of Justice contended that the information, if disclosed, could have caused “exceptionally grave damage” to the national security.

The disclosure was somewhat mitigated by the fact that Broadwell, while having no official “need to know” and thus ineligible to receive the materials in question (“lack of access”), was an Army Reserve military intelligence officer with a security clearance, and thus highly trained to use discretion in the handling of classified materials. Additionally, Petraeus retained and used the right to vet the content of the book in detail before it was published. In the end, no classified material was used in the published book, and there is no evidence of foreign disclosure of the research materials.

As then-Attorney General Eric Holder observed, “There were some unique things that existed in that case that would have made the prosecution at the felony level and a conviction at the felony level very, very, very problematic.” Among these was a view by some in the Department of Justice that Broadwell was, technically speaking, a journalist and therefore essentially immune from prosecution under the Espionage Act for her own part in the crime.

Cartwright, meanwhile, talked to journalists about one of the government’s most closely guarded and highly compartmentalized secrets, the “Olympic Games” attack on the Iranian nuclear program using the Stuxnet virus. While Cartwright’s role in the leaks was murky, he noted he was not the original, primary leaker and was merely confirming information the journalists already had, and implied he was acting at the behest of the White House. But then why lie to investigators?

Again, we won’t be able to truly compare the treatment of the two generals until Cartwright’s sentencing. Among the factors — and likely the main factor — in Petraeus’ deal was his status as a public hero. It would have been very awkward politically to strip someone of his stature of his pension and prestige over an incident that most members of the public would find minor. We presume that Cartwright’s presentencing report will similarly speak in glowing terms about his four decades of exemplary service and would be surprised if he serves any jail time. His major penalty will be largely collateral to the offense — a minor loss of his Washington credibility and security clearance, at least for a few years, and an inability to work on classified matters for industry or think tanks, as retired generals often do. Unless a retroactive retirement grade review is ordered (unlikely in light of the Petraeus precedent), Cartwright’s pension will remain intact, and his professional prospects will either recover soon enough or not be appreciably damaged.

The more scandalous comparison, arguably, isn’t between Clinton, Cartwright, and Petraeus but between very senior officials like them and the mere rank and file. As The Daily Beast’s Shane Harris points out,  “The Obama administration has prosecuted more cases against government and military personnel for leaking than all other administrations combined.”

The most obvious are the very-high-profile cases of Chelsea (formerly Bradley) Manning and Edward Snowden. They are sufficiently complex, unique, and politically charged that we’ll leave them aside for this discussion. The cases of intelligence community civil servant Thomas Drake and Marine Reserve Major Jason Brezler spring to mind as more typical cases.

Faced with misgivings about intelligence community spending and overreach into citizen privacy, Drake made a series of reports to various oversight entities, including the Department of Defense Inspector General. In alleged retribution for Drake’s later disclosures to The Baltimore Sun, the Justice Department brought a case against him which later fell apart into yet another misdemeanor plea deal — but not before Drake’s successful career and reputation were ruined.

Military servicemembers facing similar discipline and loss of a security clearance can, and often are, separated from service by virtue of their inability to perform their primary duties without access to classified information. Brezler has been the subject of administrative separation proceedings seeking to throw him out of the service over relatively minor and self-reported classified information disclosures and retentions. Brezler sent classified information over unclassified networks for the purpose of alerting colleagues in Afghanistan of an imminent danger posed by an Afghan security force member. After self-reporting, an investigation revealed Brezler unlawfully retained other classified information, possibly as research information to write a memoir. Unable to prosecute him by court-martial, the Marine Corps sought to fire him, which would spell the end of his service, the loss of any eventual pension, and loss of his security clearance for years.

For Drake and Brezler, once accused of improper handling and retention of classified materials, the hammer of justice has been somewhat severe.

The disparity between the treatment of senior leadership and those for whom they are supposed to set the example is uncomfortable. Partly, it’s a function of political connections; generals and cabinet officers are more likely than privates and ordinary bureaucrats to have friends in high places. Partly, it’s the fact that those who have risen to high rank typically have several decades of “wasta” to balance against poor decisions. This apparent say-do gap, while unfortunate, is probably inevitable.

Regardless, Clinton is getting no special treatment by the standards of her high-powered peers. Like Petraeus and Cartwright, she failed to safeguard the nation’s secrets to the appropriate standard. None of the three were charged for these failures. Unlike them, she did not get caught lying to the Justice Department. Thus, once again, the old Washington truism has borne out: It’s not the crime, it’s the cover-up.

Original article

Sexual Assault in the Military and the Unlawful Command Influence Catch-22

War on The Rocks

James Joyner and James Weirick

October 7, 2015

Recently, a military appellate court once again overturned a rape conviction on the grounds of unlawful command influence. This time (United States v. Garcia), the source of the influence went beyond a base commander or even a service chief and included comments made by President Obama and the general climate around sexual assault in the military command structure.

Concerns over the military’s ability to effectively deal with sexual assaults had been percolating for years. These concerns were exacerbated by a spate of high-profile sexual assault cases: Naval Academy football players accused of sexual assault, members of the Fort Hood Sexual Assault Response Team accused of operating a prostitution ring, the head of the Air Force’s Sexual Assault Prevention and Response office arrested for sexual battery, and two Air Force general officers — Lt. Gen Susan Helms and Lt. Gen. Craig Franklin — overturning subordinates’ convictions for sexual assault.

With this background, the Senate Committee on Armed Services convened a hearing in June 2013 to investigate the ability of the military to effectively combat sexual assaults in the ranks. The panel included then-Chairman of the Joint Chiefs of Staff Gen. Martin E. Dempsey, all the service chiefs, and their uniformed legal advisors, or judge advocates general (JAGs). The chiefs and their JAGs were unanimous in their insistence on the criticality of “maintaining the central role of the commander in our military justice system.”

From this hearing emerged proposed legislative changes that fall into two camps, one headed by Sen. Claire McCaskill, (D-MO), and the other by Sen. Kirsten Gillibrand, (D-NY).  The Gillibrand proposal would remove commanders from the decision to prosecute serious crimes, such as sexual assault and murder, while leaving uniquely military crimes to the chain of command. McCaskill’s plan leaves the decision to prosecute sexual assaults with commanders and focuses on mandatory minimum sentences, protecting victims from retaliation, and prohibiting a commander from overturning the results of a trial.  McCaskill’s changes have been approved, while Gillibrand’s proposals have twice fallen short of the 60 votes required to overcome a filibuster in the Senate.

In the meantime, an ironic twist has further complicated the matter. In order to address the burgeoning issue of sexual assault in the ranks and combat the perception that dealing with it was not a priority, President Obama, service secretaries, service chiefs, and commanders down to the lowest levels mounted an aggressive campaign to highlight the severity of the issue to service members. Thousands of speeches were given and extensive training was instituted. This very campaign was found to constitute “unlawful command influence” under Article 37(a) of the Uniform Code of Military Justice, which provides that “No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings” and that “No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.”

The recent spate of unlawful command influence rulings began with a Navy judge’s finding that President Obama’s comments about sexual assault unduly influenced any potential sentencing.

Then, in the high-profile prosecution of Army Brig. Gen. Jeffery Sinclair for sexual assault against a subordinate, themilitary judge ruled that unlawful command influence had tainted the trial. Former Commandant of the Marine Corps Gen. James Amos, was also found to have exercised unlawful command influence when he commenced on a worldwide speaking tour addressing the Corps about the problem of sexual assault. His actions resulted in a military court of appeals overturning a conviction for sexual assault.

It is with this background that the Garcia case was decided. The Garcia opinion noted that “with multiple references — some overt and others thinly veiled — to the Army’s efforts to confront sexual assault, the government attempted to impermissibly influence the panel’s findings by injecting command policy into the trial.” In the Garcia case, the prosecutor repeatedly, and improperly, mentioned the Army’s stance on sexual assaults. The military judge failed to provide the proper limiting instructions to the jury, i.e., to ignore the prosecutor’s repeated references to the Army’s stance on the problem of sexual assault. This issue would not exist, but for the repeated public statements by senior Army officials, and other government officials, about the need to eradicate sexual assault from the military. It is this means of improper influence that is so difficult to remove from a military trial, even with a military judge vigilantly policing the arguments of the prosecutor.

To be sure, improper and inflammatory appeals are common in civilian trials. Even though they are plainly prejudicial and have nothing whatsoever to do with whether the defendant committed the particular crime for which he is on trial, prosecutors often implore jurors to “send a message” about the unacceptability of rape, drunk driving, or what-have-you.  For that matter, as we’ve seen in the recent turmoil over police misconduct, mayors, governors, and even presidents frequently make impassioned statements about ongoing cases that could influence potential jurors.

Military justice is simply different. Because military jurors are under obligation to follow the orders of those above them — and in particular the president, secretary of defense, and senior generals — the command climate and references to the wishes of senior leaders are much more difficult for military jurors to discount. Civilian jurors are simply not subject to that same pressure. Which, in turn, means military defendants need more protection than their civilian counterparts.

Officers take an oath to the Constitution, which makes the president their commander-in-chief. Enlisted personnel additionally swear to “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.” Doing otherwise not only breaks their covenant with the nation but places them in legal jeopardy under the UCMJ.

For good reason, uniformed military personnel are bound by all manner of restrictions not applicable to civilians, even civilian employees of the Defense Department. Officers may be punished for using “contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present.” Any uniformed member who “willfully disobeys a lawful command of his superior commissioned officer,” “violates or fails to obey any lawful general order or regulation,” or even merely “behaves with disrespect toward his superior commissioned officer” is subject to court-martial. A service member can even be punished for failing to shave or wearing his or her hair out of regulation.

Further, while officers and noncommissioned officers are expected to exercise good judgment and to disobey orders that are obviously illegal, the culture is one that instills obedience for lawful orders. While there is the requirement to disobey obviously illegal orders, one does so at one’s peril. If the service member is later tried for disobeying an order, it is presumed that the order is lawful, and the accused bears the burden of rebutting the presumption. Moreover, especially when coming from the president and general officers, the merest expressed wish of those higher in the chain of command is treated as an order enjoying a presumption of lawfulness. For Marines, in particular, the commandant’s word is gospel.

Thus, most of the public conversation on this topic has been focused on the wrong problem. While it’s true that some commanders have failed to vigorously do their jobs in prosecuting sexual assault as a serious crime, that’s fixable. The real problem is that commanders have two jobs here — sending the message that sexual assault will not be tolerated and prosecuting those who break the law — that are in conflict. Because the first of those jobs is essential to the commander’s role while the second can be done by objective outside professionals, the two must be split.

The unlawful command influence restriction unnecessarily hampers senior leadership from trying to solve serious issues like the sexual-assault problem. While Amos was particularly ham-fisted in his messaging, his heart was in the right place by placing great emphasis on an issue that was impacting the welfare of the female Marines in his charge and the cohesion of his Corps.

And, of course, no one is going to stop the president of the United States or service secretaries from grandstanding when a military issue comes into the spotlight and puts pressure on them to weigh in. Commander-in-chief is only one of many hats the president wears and declining to speak out in the face of public perception that sexual assault is rampant in our armed forces would be unthinkable.

The combination of these two factors makes taking felonies out of the UCMJ imperative. For minor offenses — many of which aren’t crimes in the civilian world — the uniqueness of the military occupation, exigencies of location, and considerations as to whether an individual is otherwise a “good soldier” make the longstanding practice of commanders having a heavy influence vital for “good order and discipline.”

But felonies are a different matter. There, the aim is punishing transgression and separation of a bad egg from not only the military ranks but society at large. The civilian courts, lacking the conflict of interest inherent in military command, are simply the better venue for dealing with that.

The shared experiences of our allies — the United Kingdom, Canada, and Australia — have demonstrated that removing felonies from their systems of military justice has increased the fairness and transparency of criminal trials, while maintaining the commander’s ability to ensure good order and discipline.

The United States federal justice system has demonstrated that it is well equipped to handle these types of felonies, even with the exigencies of location and unique difficulties presented by crimes committed on the battlefield. Military contractors are the closest analog to service members, and the recent convictions of four former Blackwater employees for murder, resulting from deaths of 17 Iraqis in 2007, demonstrates the feasibility of removing felonies from military jurisdiction while ensuring justice.

It is time to remove felony crimes from military jurisdiction. Military leaders have an obligation to address issues such as sexual assault and do all that they can to eradicate this scourge from our ranks. But as recent history had clearly demonstrated, these laudable efforts continue to result in criminal trials that courts find unfair and are forced to dismiss. The solution is to remove these cases from military jurisdiction, thus enabling commanders to continue to communicate openly with their units without impacting the fairness of criminal trials.

Original article

Did Obama Have Authority for Immigration Action? Justice Memo Raises Questions

Christian Science Monitor

November 21, 2014

The secretary of Homeland Security and the counsel to the president (OLC) directed the Justice Department to investigate whether the president had the authority to take contemplated actions with regard to illegal immigrants via executive order. In a letter dated Nov. 19, they found he did not. On Nov. 20, he did it anyway.

Josh Gerson for Politico (“White House releases immigration legal opinion”):

The most interesting aspect of the legal advice President Barack Obama got on the immigration executive action he announced Thursday night may be what lawyers told the president he could not or should not do.

33-page Justice Department legal opinion made public just hours before Obama spoke concluded that he doesn’t have the legal authority to offer broad deportation relief to parents of so-called Dreamers – people who came to the U.S. illegally as children and won a reprieve from deportation in a program known as DACA that Obama created in 2012.

“As it has been described to us, the proposed deferred action program for parents of DACA recipients would not be a permissible exercise of enforcement discretion,” Justice Department attorney Karl Thompson wrote in the Office of Legal Counsel opinion.

The opinion also reveals, in a footnote, that Justice Department lawyers informally raised concerns about Obama’s initial 2012 DACA program before it was enacted.

Thompson’s legal memo about the new immigration initiatives warns the president against straying into areas untethered to policies or priorities Congress has set through legislation. “The Executive cannot, under the guides of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences,” Thompson wrote. “An agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering.”

A senior administration official said Thursday lawyers concluded that actions like protection for parents of dreamers were “not legally available” to the president, largely because it would be building one set of executive actions upon another.

On the one hand, kudos to the administration for promptly releasing the memo. The norm in situations where OLC presents adverse findings is to bury said findings for as long as possible. Releasing the full memo so quickly is the height of transparency and truly laudable.

Recommended: How much do you know about the US Constitution? A quiz.

It’s worth noting, too, that OLC – rightly in my view – found that the president does have the “authority to prioritize the removal of certain categories of aliens over others,” particularly in light of inadequate funding to pursue the removal of all of them. But it specifically found that “the proposed deferred action program for parents of DACA recipients would not be a permissible exercise of enforcement discretion” precisely because it is not tethered to existing law. Pages 6 and 7 detail what seems a perfectly reasonable understanding of the law:

[T]he Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences. See id. at 833 (an agency may not “disregard legislative direction in the statutory scheme that [it] administers”). In other words, an agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering. Cf. Youngstown, 343 U.S. at 637 (Jackson, J., concurring) (“When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.”); Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007) (explaining that where Congress has given an agency the power to administer a statutory scheme, a court will not vacate the agency’s decision about the proper administration of the statute unless, among other things, the agency ”‘has relied on factors which Congress had not intended it to consider’” (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983))).

Third, the Executive Branch ordinarily cannot, as the Court put it in Chaney, “ ‘consciously and expressly adopt a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.” 470 U.S. at 833 n.4 (quoting Adams v. Richardson, 480 F.2d 1159, 1162 (D.C. Cir. 1973) (en banc)); see id. (noting that in situations where an agency had adopted such an extreme policy, “the statute conferring authority on the agency might indicate that such decisions were not ‘committed to agency discretion’ ”). Abdication of the duties assigned to the agency by statute is ordinarily incompatible with the constitutional obligation to faithfully execute the laws. But see, e.g., Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 200 (1994) (noting that under the Take Care Clause, “the President is required to act in accordance with the laws – including the Constitution, which takes precedence over other forms of law”).

On the other hand, it’s more than a little troubling that the president proceeded to issue the order anyway, contrary to not only the wishes of Congress and public opinion but the best legal advice available to him. As Mr. Gerson notes, the administration is operating on a different legal view than the professionals in the Justice Department:

However, that conclusion appears to have been based heavily on historical precedent as well as legal concerns. Officials said they consider Obama’s move to allow family members of U.S. citizens to receive protection from deportation to be very similar to previous moves by Presidents Ronald Reagan and George H.W. Bush, who also protected family members of individuals Congress had moved to allow to remain in the country legally.

“We were influenced by the fact that Congress already recognized the relationship between child citizens and parents as a relationship Congress wants to protect,” said the senior official who spoke on condition of anonymity.. “This was a sort of implementation of that Congressional policy as opposed to the parents of Dreamers, which would be….slightly different…We thought it was important to tie it to a Congressional policy.”

The difference in the actions taken by Reagan and the elder Bush and that taken by Obama is that the former were implementing the clear intent of congressional law, protecting those who had fallen into the cracks of the legislation. In this case, Obama is essentially passing the DREAM Act by executive fiat.

Despite my generally supporting the DREAM Act, I find that outrageous. Indeed, as noted in the comment thread of another post yesterday, I consider this action impeachable. Note that I’m not calling for the president’s impeachment. Aside from it being politically untenable, the fact that Obama’s action comes in the wake of decades of his predecessors stretching the Constitution beyond recognition makes it difficult to argue that the duly elected – twice – president should be removed from office for continuing a trend. But this nonetheless serves as a further and rather substantial weakening of the separation of powers.

Another president will, in the not too distant future, use this precedent to justify an action that supporters of Obama’s move will find outrageous. At that point, it’ll be too late to complain.

Some of the commentary I’ve seen on this blames congressional Republicans for forcing the president’s hand here. While they certainly deserve criticism for a lot of things, that notion doesn’t hold water. Specifically, multiple people have argued that all that needed to happen to have avoided Obama’s action was for House Republicans to pass the bill passed by the Senate. Indeed, the president himself said that in his speech. But that stands the Constitution on its head. We pass laws in this country when they’re passed by both Houses of Congress and signed by the president. The fact that the House is predisposed not to pass anything a Democratic president proposes is frustrating; that doesn’t allow the president to simply enact said proposals by executive fiat.

UPDATE: Doug Mataconis correctly notes that, contrary to speculation ahead of the speech, “the plan announced last night does not extend relief to the parents of DACA children.” It nonetheless goes well beyond existing law. As described by the lead WaPo story on the order,

Under Obama’s plan, undocumented parents of U.S. citizens and legal permanent residents would qualify only if they have lived in the country at least five years – since Jan. 1, 2010. The administration said it will be ready to begin taking applications in the spring, and that those who qualify will be granted three years of deportation relief, meaning they would be protected through the first year of Obama’s successor in 2017. It would be up to the new administration to determine whether to continue the program or eliminate it.

The new deportation protections are a year longer than they are under an existing Obama administration program, started in 2012 for younger immigrants, known as Deferred Action for Childhood Arrivals (DACA).

Officials said that the DACA program also would be revised to provide three years of relief and that they would change the date by which DACA applicants must have arrived in the United States from June 15, 2007, to Jan. 1, 2010, to conform with the program for parents.

Many of those who are granted administrative relief will be eligible to get Social Security numbers and work permits, officials said.

Administration officials also said the president’s new policies would create visas for immigrants who can show that they are investing economically in the United States and for workers in some high-tech fields.

I don’t see how this is anything other than Obama enacting essentially all of the DREAM Act by fiat.

UPDATE 2Walter Dellinger, who served as acting solicitor general under President Clinton, cites the same memo and finds no problem with Obama’s decree.

[T]he idea that the immigration plan just announced by President Obama is a lawless power grab is absurd. As theJustice Department legal analysisthat was just released amply demonstrates, much of the advance criticism of the president’s action has been uninformed and unwarranted. The opinion is well-reasoned and at times even conservative. The president is not acting unilaterally, but pursuant to his statutory authority. Wide discretion over deportation priorities has long been conferred on the executive branch by Congress, and it is being exercised in this case consistent with policies such as family unification that have been endorsed by Congress.

Even though the action is breathtaking in scope, there is nothing legally remarkable about what the administration is doing, or the legal analysis supporting it.

[...]

As Eric Posner, who served in the Office of Legal Counsel under the first President Bush, notes, the president “is just doing what countless Congresses have wanted him to do” – setting priorities for deportation enforcement.

Let’s be clear about what the administration has not done in this opinion. No one has been granted “amnesty,” either literally or functionally. And no precedent has been set for this or any future president to act unilaterally in disregard of acts of Congress. On the contrary, the legal opinion rejects a second proposed exercise of discretion – deferring deportation of the parents of “Dreamers” – that Justice concluded cannot be said to carry out priorities established by Congress.

But that doesn’t address the portions of the opinion that I’ve quoted above. Obama is going well beyond simple discretion in taking action that Congress has ordered him to execute; he’s deciding to ignore portions of existing law and act as though an unpassed law had been passed. Mr. Dellinger continues:

In cases such as Heckler v. Chaney (1985), the Supreme Court has repeatedly emphasized that where Congress has not provided guidelines for executive enforcement, the determination of enforcement priorities is within the “special province of the Executive.” This is especially clear in the area of immigration. As the court recently noted in Arizona v. United States (201w), some of the discretionary deportation decisions the executive makes are appropriately based on general policy considerations, such as concerns implicating foreign affairs.

In approving the lawfulness of part of the proposed deferred action, the opinion released Thursday night from the Justice Department’s Office of Legal Counsel, or OLC, is careful to reaffirm that officials may not abdicate their statutory responsibilities. In particular, the opinion states that Congress’s endorsement of certain deferred-action programs does not mean that such programs can be extended to any class of aliens. The proposals were carefully vetted to ensure that the expansion of deferred action to the new categories was consonant with congressional policy.

But note that the portions of the OLC memo that I’ve quoted are also based on Chaney and find the opposite of what Dellinger advocates. Regardless, he argues that they were likely overly cautious:

He points us to a forthcoming posting by Marty Lederman that has since posted. It’s extensive and mostly addresses hysterical arguments about “amnesty” and “monarchy” that I’m not making. Germane to my concerns, however, he argues:

1.  It’s not “unilateral” executive action.  Yes, of course the President has acted without any new statutory enactment, and his initiative was made necessary only because of intransigence in the House that prevents a vote on more far-reaching immigration reform (see Point 9, below); nevertheless it is important to emphasize that the new DHS enforcement priorities and deferred action status policy are being promulgated pursuant to statutorily delegated discretion.   See especially pages 4-5 of the opinion of the Office of Legal Counsel.  And OLC’s ultimate conclusion is that the new initiative is “consonant with congressional policy embodied in the [Immigration and Nationality Act]” (p. 24).  On a first read, OLC’s analysis of the scope of DHS’s statutorily conferred discretion, and how it has historically been exercised, appears to be solid, careful, measured and (as explained below) limited.  Whether or not OLC is correct in all of the particulars of its analysis, however – a question that, as mentioned above, I’ll leave to others who have greater expertise than I do – the important point is this:  What is at issue is simply a question of statutory interpretation, about the discretion that Congress has conferred upon the Secretary of DHS.

But, as I’ve already noted, pages 6-7 put some rather strong caveats on that argument.

2.  It’s not an example of constitutional “monarchy,” or a replay of Bush Administration claims of preclusive executive authority.  Indeed, it’s not an exercise of constitutional “executive power” at all:  The President and Secretary of DHS are not invoking any Article II authority, let alone an authority to override or disregard statutes.  (The OLC opinion does say (p.4) that the discretion that Congress is presumed to have conferred upon the Executive is “rooted” in the President’s constitutional duty to take care that the law is faithfully executed:  The point of invoking the “Take Care” Clause, however, is that implementing such enforcement priority decisions is “faithful” to the laws Congress has enacted.)

But the memo likewise concludes that much of the action contemplated and some of that taken goes beyond the “Take Care” discretionary authority.

3.  It does not “cut out Congress” – indeed, it relies upon statutory authority.  Nor does it contradict what Congress has prescribed.  Neither the President nor the Secretary nor OLC has said anything to suggest that Congress could not, by statute, require a different enforcement scheme—to the contrary, OLC specifically acknowledges (pp. 4, 6) that Congress could legislate limits on enforcement discretion that the agency would be obliged to follow.  Moreover, and of great significance, OLC specifically concludes that, because enforcement priority decisions must be “consonant with, rather than contrary to,” Congress’s policy decisions as reflected in the governing statutes (pp. 5, 20), it would not be permissible for DHS to afford deferred action status to one category of aliens that the agency had proposed to cover (parents of children who have received deferred action status under the so-called “DACA” program):  Offering deferred action status to such aliens, OLC opined, would be unlawful because it would “deviate in important respects from the immigration system Congress has enacted and the policies that system embodies” (p. 32).

But, again, this stands the Constitution on its head, arguing that the president can simply ignore large swaths of existing law unless Congress specifically passes a law – presumably, by a veto-proof supermajority – overturning his order.

Dellinger and Mr. Lederman are right on the larger point that presidents have carved out enormous discretionary power over the years and that the courts have allowed much of that to slide. That’s why I ultimately don’t support impeachment here. But I nonetheless believe Obama’s order has further weakened our system of checks and balances and, indeed, the rule of law.

Police Are Not Soldiers; Our Communities Are Not War Zones

Christian Science Monitor

August 18, 2014

 Mark Steyn, who was writing about the militarization of police long before the Ferguson tragedy, makes a key point:

A soldier wears green camo in Vietnam to blend in. A policeman wears green camo in Ferguson to stand out – to let you guys know: We’re here, we’re severe, get used to it.

This is not a small thing. The point about “the thin blue line” is that it’s blue for a reason. As I wrote a couple of months ago:

“The police” is a phenomenon of the modern world. It would be wholly alien, for example, to America’s Founders. In the sense we use the term today, it dates back no further than Sir Robert Peel’s founding of the Metropolitan Police in 1829. Because Londoners associated the concept with French-style political policing and state control, they were very resistant to the idea of a domestic soldiery keeping them in line. So Peel dressed his policemen in blue instead of infantry red, and instead of guns they had wooden truncheons.

So, when the police are dressed like combat troops, it’s not a fashion faux pas, it’s a fundamental misunderstanding of who they are. Forget the armored vehicles with the gun turrets, forget the faceless, helmeted, anonymous Robocops, and just listen to how these “policemen” talk. Look at the video as they’re arresting the New York Times and Huffington Post reporters. Watch the St Louis County deputy ordering everyone to leave, and then adding: “This is not up for discussion.”

Really? You’re a constable. You may be carrying on like the military commander of an occupying army faced with a rabble of revolting natives, but in the end you’re a constable. And the fact that you and your colleagues in that McDonald’s are comfortable speaking to your fellow citizens like this is part of the problem. The most important of the “nine principles of good policing” (formulated by the first two commissioners of the Metropolitan Police in 1829 and thereafter issued to every officer joining the force) is a very simple one: The police are the public and the public are the police. Not in Ferguson. Long before the teargassing begins and the bullets start flying, the way these guys talk is the first indication of how the remorseless militarization has corroded the soul of American policing.

Which brings us back to the death of Michael Brown. Let’s assume for the sake of argument that everything the police say about this incident is correct. In that case, whether or not the fatal shooting of Mr Brown is a crime, it’s certainly a mistake. When an unarmed shoplifter* in T-shirt and shorts with a five-buck cigar box in one hand has to be shot dead, you’re doing it wrong.

After going into some detail into comparative statistics between police shootings in Western Europe and the United States—the short version is that theirs shoot their weapons a tiny fraction as frequently as ours do and that, even on a per shooting incident basis, they fire far less ammunition—Steyn responds to the most obvious rejoinder:

A startling number of American readers wrote to say, with remarkable insouciance, that the US could not afford the luxury of First World policing. Large tracts of America had too many illegal immigrants, drug gangs, racial grievances, etc. Maybe. But the problem is that, increasingly, this is the only style of law enforcement America’s police culture teaches – not only for the teeming favelas, but for the leafy suburbs and the rural backwaters and the college-town keg party, too.

That’s quite right.

My dad was a military policeman and, for a time, a plainclothes officer in the Army’s Criminal Investigation Division and quite far from a bleeding heart liberal.  He was appalled thirty years ago by the militarization of civilian policemen and could not believe the lack of professionalism that had pervaded police dealing with ordinary citizens. My own experience with police, which is almost exclusively in traffic situations and the like, is that Steyn’s vision of cops acting like occupying forces even in posh suburbs has already reached fruition. Police officers treating “civilians” with friendly respect is the exception, not the rule, these days.

As I’ve noted in previous posts over the years, the fact that policemen affect military-style uniforms and behavior patterns, including adopting the conceit that the ordinary citizens are “civilians” and they themselves are not, is highly problematic.

Stephen Green reminds us that,

Twenty years ago almost in the wake of Ruby Ridge, NRA President Wayne LaPierre called federal agents “jack-booted thugs” in their enforcement of gun laws. The left reacted in its typical mock horror. But that thug attitude has trickled down from the BATF, along with billions in military equipment, to local police forces across the nation.

The horror we feel now should be real, and it should be felt by everybody.

This should be an issue that unites liberals, conservatives, and libertarians. Alas, it’s mostly conservatives these days who act as if the police can do no wrong.

Just as the citizenry has gone too far in worshiping those who volunteer for service in our armed forces, we’ve bent over backwards in justifying almost any action taken by police officers. They have a difficult and sometimes dangerous job. They are not, however, soldiers. Our communities are not war zones.  We should not tolerate them acting otherwise.

Original article

Ahmed Abu Khattala and the Miranda-Rights Question

Butch Bracknell and James Joyner

The National Interest
July 7, 2014

The September 11, 2012 attacks on U.S. diplomatic facilities in Benghazi, Libya were, according to U.S. law enforcement and intelligence sources, designed and led by Ahmed Abu Khattala, a Libyan jihadist. Recently, Khattala was captured by U.S. special-operations forces and transported to a U.S. Navy ship in the Mediterranean for debriefing, presumably by intelligence community (CIA and FBI) interrogators. Khattala was then transferred to FBI custody from military detention, even though he remained on the U.S. Navy ship for transit. He was flown off the ship and transported to the United States to answer a June 26, 2014 federal criminal indictment, alleging a single count of conspiracy to provide material support to terrorism. He remains in pretrial criminal detention after his initial appearance before a U.S. magistrate in the U.S. District Court for the District of Columbia on June 28.

Given the intensity of the political squabbling over how the Obama administration handled the Benghazi incident, there has been surprisingly little attention paid to Khattala’s arrest and detention. There has been unsurprising, yet irresponsible, insistence from some quarters that he be sent to Guantanamo Bay for extended detention as an unlawful enemy belligerent. The usual suspects have expressed concern that Khattala was turned over to law enforcement too quickly, allowing insufficient time to extract all the valuable intelligence he may have had to offer. Absent compelling evidence otherwise, we’re prepared to trust the judgment of intelligence professionals over grandstanding politicians on that score.

Our concern is the opposite one: that the intelligence interrogation may have violated Khattala’s due process rights, thus tainting the upcoming criminal trial. It is a longstanding principle of American law that the government may not use evidence gathered in violation of the United States Constitution against defendants in criminal cases. The Exclusionary Rule denies authorities the ability to use “evidence gained from an unreasonable search or seizure in violation of the Fourth Amendment . . . improperly elicited self-incriminatory statements gathered in violation of the Fifth Amendment, [or] evidence gained in situations where the government violated defendants’ Sixth Amendment Right to Counsel.”

Nearly a century ago, the Supreme Court extended this principle with the Fruit of the Poisonous Tree doctrine, which renders evidence gathered as a result of bad conduct inadmissible in court. Since even if the direct evidence from an unlawful search or involuntary confession were excluded, investigators informed by that unlawfully obtained information would have a much easier time building a case, that evidence is usually considered tainted and inadmissible.

Yet Khattala’s handling follows a recent pattern of similar detentions. Ahmed Abdulkadir Warsame of Somalia was captured in April 2011 and interrogated shipboard for about two months before being offered a rights advisement. He later pled guilty in federal court and is awaiting sentencing. Sulaiman Abu Ghaith, a relative of Osama bin Laden, was detained in Jordan in 2013 and handed over to the FBI for transit to the United States, where he was convicted by a federal jury. Ghaith may have been interrogated by FBI and CIA personnel while in Turkish custody, prior to his arrest in Jordan and his subsequent rights advisement on the flight to the United States for judicial proceedings. In both cases, Miranda warnings were issued only after the intelligence community had conducted tactical interrogations designed to glean time-sensitive, perishable information that could be processed and analyzed for intelligence value.

Even those passingly familiar with American cop shows know that Mirandawarning rights attach the moment that law enforcement agents intend to question a suspect in their custody, post-arrest. Whether it was Lennie with a witty quip just before delivering Miranda warnings as he lowered a perp’s head into a squad car on Law and Order, or Andy Sipowicz growling rights advisements with disgust through clenched teeth as he unlawfully pummels a suspect after a collar, everyone is familiar with “You have the right to remain silent . . .” The rights advisement, which became standard law-enforcement practice after the U.S. Supreme Court issued Miranda in 1965, is intended to preserve suspects’ statements for admission into court by removing the taint of coerced confessions and infringements on the right against self-incrimination. In theory, after the rights advisement is delivered, a criminal suspect is on notice of his rights, and any statement he gives thereafter, in the absence of evidence of coercion or other interference with procedural rights, can be admitted in court as an admission. The right is so well established that it is etched permanently into American popular culture.

So why do these rights not attach the moment a terrorism suspect is detained, when he is ultimately haled before a U.S. court, the same as any other extraterritorial offender—like a bank fraud indictee arrested in the United Kingdom and extradited for trial, or a drug lord captured in Mexico and transported to the United States for trial?

Historically, they have. The FBI treated the defendants in the 1993 World Trade Center bombing case as pure criminal defendants. The Bush administration came somewhat close to the current approach in 2002 when it classified Jose Padilla—a U.S. citizen—as an enemy combatant under the Authorization to Use Military Force, claiming he was “closely associated with Al Qaeda” and had engaged in “war-like acts.” Rather than enjoying the full range of constitutional protections, he was questioned by intelligence community interrogators without Miranda warnings, and held in military brigs—rather than transported to Guantanamo. Eventually, he was “shifted” over to the criminal justice system where he was convicted of conspiracy and sentenced to seventeen years confinement at Supermax in Colorado. It’s likely, but not documented, that they used “clean teams” to question him and avoid tainting the evidence.

The construct employed by this administration is the erection of an imaginary, impermeable barrier between intelligence interrogation and law enforcement questioning for prosecution. This approach takes advantage of legal authority in the law of armed conflict to conduct post-capture tactical questioning and interrogation. Once the intelligence value of a detainee is thought to be mostly or completely exhausted, custody is transferred from the High Value Detainee interrogation team conducting law-of-armed-conflict interrogation to a criminal interrogation team, who then advise the detainee of his rights and attempt to question him. Some detainees will continue to talk, and some will take heed of the rights advisement. By design, none of the information in the “Stage 1” intelligence interrogation is used in court, nor is it shared with the law-enforcement team that conducts the prosecutorial interrogation. So long as the government can establish the sanctity and integrity of the wall separating the two processes, so the intelligence interrogation (with no Miranda warnings) does not taint the Mirandized interrogation process, which can yield confessions and statements against interest, there is no Miranda/self-incrimination issue. The statements taken post–Miranda warning are admissible as evidence of guilt. No federal court has yet held otherwise.

On principle, should American courts indulge the artifice of the “two stage” interrogation? Has Miranda matured as a civil right in the American legal system that the courts should look very dimly at government efforts to limit or marginalize this important personal civil right by artificially dividing its interrogations by the purpose for which each interrogation is conducted? What about the subjective expectations of the individual being questioned? Is it not reasonable for him either not to understand the Miranda warnings at all, or to miss their importance in dividing the interrogations into separate stages? Might the interrogee assume that since he was giving statements at Stage 1 (the intelligence interrogation), that he has no reason not to continue talking at Stage 2 (the criminal interrogation)? And if that is true, does that not chip away at the sanctity of the civil right represented by Miranda that Americans enjoy? By employing such sleight of hand for captured alleged terrorists’ interrogations, are we not undermining our own values represented by the protections engrafted onto our criminal justice system?

At issue also, of course, is the integrity of the barrier between the intelligence interrogation—a “lawful” interrogation under the law of war, but an “unlawful” interrogation for Miranda purposes—and the law enforcement interrogation. Is it not foreseeable that an overzealous intelligence agent, personally and emotionally offended by the actions of an alleged terrorist, might not tip the scales of the law-enforcement interrogators by tipping them off as to specific areas of inquiry, or specific facts that might be used by a skillful interrogator to gauge whether the defendant is being truthful in his responses to the criminal interrogation?

Existing judicial precedents provide some guidance. Neither the Exclusionary Rule nor its Fruit of the Poisonous Tree corollary are absolute. Among the situations in which evidence will not be excluded are if it was discovered from a source independent of the illegal activity or if there is attenuation between the illegal activity and the discovery of the evidence. The Obama administration would doubtless argue that the wall between the two stages of interrogation meets one or more of these exceptions. But, given the vagaries of highly classified proceedings, it would be next to impossible for Khattala’s attorneys to discover, much less prove, illicit collaboration between the intelligence and prosecution teams.

We presume that the intelligence community and FBI are, at least at the highest levels, being exceedingly scrupulous about the line, because the damage to this technique if they are caught violating the rules could be enormous. The more likely danger is when it is executed at the operator level; nobody planned on Abu Ghraib, either. But, even if all government actors maintain the highest level of fidelity to the law in practice, the opaqueness of the practice will always leave doubt.

Ultimately, these cases take us back to a longstanding debate in terrorist cases: the degree to which they are simply crimes to be adjudicated through existing law-enforcement practices or acts of war to be handled through military means and under the law of war. With Khattala, Warsame and Ghaith, the administration is trying to have it both ways. It is a clever theory that may prove to be untenable—legally and perhaps morally.

Original article

Explaining the Sinclair Demotion

James Joyner and Butch Bracknell
The Hill
June 27, 2014

The case of Jeffrey Sinclair, the former deputy commander of the Army’s 82nd Airborne Division involved in a sordid sex scandal, has been a lightning rod in the controversy over sexual assault in our armed forces. It ended last Friday with Sinclair reduced two ranks, from brigadier general to lieutenant colonel, and sent into retirement. For those who believe the military doesn’t take sexual assault seriously, the fact Sinclair served no jail time and was allowed to retire with a generous pension was an outrage. For those who think there is a politically correct witch hunt, Sinclair’s demotion, despite being convicted of only relatively minor charges, was excessive. It was, however, a just and lawful result.

Sinclair had been a rising star, an Airborne Ranger with five combat tours in his 27-year career, when has was relieved of his post and sent home from Afghanistan in May 2012. That September, he was charged with forcible sodomy, multiple counts of adultery and having inappropriate relationships with several female subordinates. He became the most visible symbol of a battle to crack down on sexual assault in the military.

Those following the case only through press accounts were stunned in March when the most serious charges of sexual assault and forcible rape were dropped, with Sinclair allowed to plead guilty to the lesser offenses of adultery, maltreatment of a subordinate, engaging in improper relationships, willful disobedience of an order, wrongful use of a government travel card, wrongful possession of pornography, and conduct unbecoming an officer. He was fined $20,000 but given no jail time.

After Sinclair’s plea, howls of protest were heard from Capitol Hill. Sen. Patty Murray (D-Wash.) said, “I am really disappointed: It certainly adds to the picture we need to make changes.” Rep. Jackie Speier (D-Calif.) called the case “another example of why commanders shouldn’t be deciding whether someone is prosecuted.” And Rep. Niki Tsongas (D-Mass.) declared, “There can be no doubt General Sinclair abused and debased his authority in a reprehensible way, using it to perpetuate a toxic military culture which accepted even criminal behavior as the norm.”

Sen. Kirsten Gillibrand (D-N.Y.), the sponsor of a bill to take the decision to prosecute sexual abuse cases out of the military’s chain of command, cited the outcome as more evidence of the need for reform, arguing, “It’s not only the right thing to do for our men and women in uniform, but would also mitigate issues of undue command influence that we have seen in many trials over the last year.”

But the Army’s case against Sinclair was exceedingly weak. The chief accuser proved exceedingly unreliable, constantly changing key details of her story, and had been in a long-term, consensual relationship with the accused. Both of these factors undermined her credibility as a witness, regardless of whether the adjudicative forum was military or civilian, and even led the prosecutor to quit the case, ostensibly from ethical considerations in pressing forward with the court-martial. Further, the presiding judge ruled there was unlawful command influence in the case, an issue that has plagued many other prosecutions for reasons we explained in an earlier piece.

The other shoe dropped Friday, when Secretary of the Army John McHugh announced Sinclair would be demoted. It’s exceedingly rare for a general officer to be reduced one grade, much less two; indeed, the announcement noted that the Army had not done so in more than a decade. In the statement, McHugh explained “Sinclair displayed a pattern of inappropriate and at times illegal behavior both while serving as a Brigadier General and a Colonel. I therefore decided there was sufficient evidence and cause to deny him those benefits.”

At first blush, then, this harsh treatment of a star officer might seem politically motivated, given the pressure to “fix” the problem of sexual assault in the military from both ends of Pennsylvania Avenue. Speaking last August, before the most serious charges were dropped, Retired Maj. Gen. Charles Dunlap, a Duke University law professor and a former deputy judge advocate general for the Air Force, observed the atmosphere surrounding sexual assault cases in the military has become “hyperpoliticized” and that for Sinclair to receive a fair trial would require jurors to “exercise moral courage in a way they’ve perhaps never been asked to do before in a military justice setting.”

But the retirement of officers in the last grade in which they served satisfactorily is indeed the statutory and regulatory standard and in fact not unprecedented. The most comparable recent precedent is the 2010 case of Maj. Gen. Thomas J. Fiscus, the Air Force’s former top military lawyer, who was reduced to colonel “after an investigation found him involved in several affairs and improper conduct with more than a dozen women.”

The governing reference here is Army Regulation 15-80, which implements for the Department of the Army federal statutes governing military officers’ service and retirements. The Army Regulation provides “Service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory” when “Reversion to a lower grade was (1) Expressly for prejudice or cause, (2) Owing to misconduct” or “(4) The result of the sentence of a court-martial.” While it also provides “One specific act of misconduct may or may not form the basis for a determination that the overall service in that grade was unsatisfactory,” Sinclair has in fact pleaded guilty to a pattern of misconduct.

While he was doubtless facing substantial political pressure to hit Sinclair hard to send a message, McHugh was acting well within his authority and there is indeed recent precedent for this sort of punishment. Moreover, because Sinclair’s misconduct was shown to have pervaded his service as both a colonel and a brigadier general, the grade reduction determination fits the statutory and regulatory criteria precisely as Congress and the Army’s regulation intended.

On the other side of the coin were those who believed the punishment too light. Speier declared, “This sentence is a mockery of military justice, a slap on the wrist nowhere close to being proportional to Sinclair’s offenses.”

Yet, whatever one believes actually happened, the Army was not able to prove the most serious charges against Sinclair, which could have netted him life in prison, reduction in rank to private, dismissal from the Army and forfeiture of all benefits. Proof was virtually impossible in this case given the alleged victim’s massive credibility issues, so prosecutors did in this case what they do in the exercise of prosecutorial discretion in similar cases all over the country in civil contexts: They accepted a plea deal on lesser charges. There is nothing unusual or extraordinary about this outcome, in that, nationwide, district attorneys and assistant U.S. attorneys sign off on deals like this every single day. Given what Sinclair was convicted of, confinement would have been excessive, unwarranted and unprecedented. Finally, as McHugh noted, they were outside the scope of his authority. “During Capitol Hill hearings, I was asked whether Sinclair would receive a pension after proceedings were complete,” McHugh said. He added, “Under federal law, if a person has earned a pension because of their years of service, they are entitled to those benefits; Congress might consider a change in the law that would allow greater flexibility and accountability.”

It is interesting to ponder what the outcome would have been in this case if such a statute had been on the books when the secretary made his grade determination. If he had the authority to discount Sinclair’s unblemished service up through the rank of lieutenant colonel and strip him of his pension for the conduct proven, by his own admissions, at his court-martial — essentially, having an affair with a person who worked for him — would the political pressure have led the secretary to do so? From McHugh’s testimony, in which he essentially blamed Congress for passing statutes that tied his hands and prevented him from discharging Sinclair with no retirement benefits, the answer appears to be yes. In our view, this is the real danger lurking in this entire issue — the temptation to allow the fervor of reform to infect just determinations in individual cases. Sinclair served for well over two decades honorably and, evidenced by his promotions, extraordinarily well. Stripping him of retirement benefits for misconduct that simply may have gotten him fired at Microsoft or General Motors is an emotional answer to a set of issues best analyzed rationally and dispassionately, for the future health of the force. Enhancing the secretary’s power to strip officers of their earned benefits simply based on an administrative proceeding, governed by malleable standards and procedural rules, is treacherous territory, if the armed forces value their ability to promote and retain the best officers to senior leadership positions.

Original article

Leaders Must Watch Their Words on Military Sexual Assault

James Joyner and Butch Bracknell
The Hill
June 13, 2014

The appeals court for the Navy and Marine Corps recently threw out the conviction of a Marine staff sergeant for sexual assault on the basis of unlawful command influence (UCI) from the commandant of the Marine Corps. This follows multiple rulings over the past year or so mitigating charges against service members on the basis of UCI from President Obama.

Readers unfamiliar with the customs of military service might understandably be confused, even outraged, by the notion that senior leaders exhorting members of the armed forces to “fix” a culture too tolerant of sexual assault could be prejudicial to service members’ due process rights, particularly to a fair and impartial panel of jurors, or “members” in military parlance. After all, demanding better performance in areas where shortfalls are observed is a hallmark of good leadership.

But both Obama and Gen. James Amos crossed a line set forth in Article 37 of the Uniform Code of Military Justice (UCMJ), which prohibits leaders from “attempt[ing] to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case.” It specifically permits “general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial.”

Obama’s declaration that “I have no tolerance” for sexual abuse within the armed forces set the right tone. But he went too far when he announced that, “If we find out somebody’s engaging in this, they’ve got to be held accountable — prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period.” That’s a direct order from the commander in chief as to findings and sentencing.

Amos’s words, befitting a Marine, were more blunt than the president’s. In a nationwide tour in the spring and summer of 2012, Amos stopped at all major Marine Corps installations to personally tell “every single [senior noncommissioned officer, or NCO] and officer in the Marine Corps” that Congress had lost faith in the service to handle the issue. Further, he told Marine leaders that claims that those claiming sexual assault were those who had gotten “a little liquored up” and awoke the next day with “buyer’s remorse” were “bulls—.” Indeed, Amos declared, “The fact of the matter is 80 percent of those are legitimate sexual assault.” In essence, then, the senior leader of the United States Marine Corps was telling those who would sit on court-martial juries that they should presume those charged to be guilty. That’s simply unacceptable.

To be sure, there is no civilian analogue. The president or a state governor making statements of that sort, even about the guilt or innocence of a specific defendant, about civilian criminal cases under their jurisdiction would almost never introduce legal error. That’s because civilian jurors are not duty bound to follow the orders of political leaders.

Not so for those in the armed forces. Officers take an oath to the Constitution of the United States, which makes the president their commander in chief. Enlisted personnel additionally swear to “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.” Doing otherwise not only breaks their covenant with the nation but places them in legal jeopardy under the UCMJ.

For good reason, military personnel are bound by all manner of restrictions not applicable to civilians, even civilian employees of the Defense Department. Officers may be punished for using “contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present.” Any uniformed member who “willfully disobeys a lawful command of his superior commissioned officer,” “violates or fails to obey any lawful general order or regulation,” or even merely “behaves with disrespect toward his superior commissioned officer” is subject to court-martial. A member can even be punished for failing to shave or wearing his or her hair out of regulation.

Further, while officers and noncommissioned officers are expected to exercise good judgment and to disobey orders which are obviously illegal, the culture is one that instills obedience for lawful orders. Indeed, especially when coming from the president and general officers, the merest expressed wish of those higher in the chain of command is treated as an order enjoying a presumption of lawfulness. For Marines, in particular, the commandant’s word is gospel.

The opinion by U.S. Navy-Marine Corps Court of Criminal Appeals Chief Judge Moira Modzelewski documents that the impact on the jury in the specific case in question was not theoretical but actual. Numerous senior NCOs and field grade officers indicated that they had not only heard Amos but taken his word to heart. Most presumed the 80 percent figure was legitimate — why else would the commandant have said it? — and were inclined to bend over backward to comply with the order to crack down on those accused of the crime.

Amos readily acknowledged he was disregarding prudent legal advice regarding how his words would influence jury members. In committing what he readily acknowledges is an ultra vires act, he personally doomed to failure a swath of the very sexual assault cases he aimed to bolster, while simultaneously inspiring a crisis of confidence in the military justice system.

This ruling should serve as a clarion call to military justice reformers on Capitol Hill not to throw the baby out with the bathwater. While major reforms in the military justice system may be warranted, including those enacted during the last legislative cycle, the system must carefully toe the line between effective accountability for sexual assault aggressors and a system that is fair, transparent, reliable and law-bound.

Finally, it should also alert executive branch leaders that protecting the constitutional and statutory rights of those who volunteered to serve is a moral imperative similar in quality and magnitude to the duty to protect victims of sexual assault. Military justice reform is necessary and required, but Congress must not let the pendulum swing freely at the expense of the rights of men and women serving our nation in uniform.

Original article

If Bowe Bergdahl Deserted, Prosecute Him

The National Interest

June 4, 2014

This weekend, we received the happy news that Sergeant Bowe Bergdahl, who for nearly five years had been the only American soldier held prisoner by the Taliban, had been freed. President Obama proudly touted the release as “a reminder of America’s unwavering commitment to leave no man or woman in uniform behind on the battlefield.” [4] Almost immediately, however, uncomfortable questions cast a shadow.

First, many critics questioned the wisdom of legitimating—indeed, perhaps incentivizing—the Taliban’s taking of prisoners by giving them a five-for-one deal. But Paul Pillar is right: [5] we’re fighting a war in Afghanistan and, however fuzzy their Geneva Convention status, Taliban fighters captured on the field of battle are essentially enemy prisoners of war and POW exchanges are a longstanding tradition. That they may eventually return to the battlefield is less than ideal but the American combat role in Afghanistan is rapidly winding down and releasing enemy fighters is the cost of getting our man back.

Second, some Congressional Republicans are angry that the administration did not consult with Capitol Hill as seemingly required by statute. While the administration’s “exigent circumstances” argument is laughable given that the “weeks of painstaking negotiations” on this swap certainly allowed thirty-days’ notice, the fact of the matter is that presidents quite frequently take actions in the national security arena based on their judgment, the law be damned, daring Congress to do something about it. This particular flap is unlikely to have legs, simply because of the powerful emotional appeal at stake. It’s hard to disagree with Secretary of State Susan Rice who sharply noted [6] on ABC’s “This Week,” that “Sergeant Bergdahl wasn’t simply a hostage; he was an American prisoner of war captured on the battlefield. We have a sacred obligation that we have upheld since the founding of our republic to do our utmost to bring back our men and women who are taken in battle, and we did that in this instance.” She added, “We had reason to be concerned that this was an urgent and acute situation. Had we waited and lost him, I don’t think anybody would have forgiven the United States government.” Given the endless hearings on Benghazi, with which Rice has some familiarity, there’s little doubt about that.

Third, however, is an issue that has been quietly bubbling beneath the surface these past five years and is now seeing the spotlight: the likelihood that Bergdahl deserted his unit and was vulnerable to capture, because he had left the protective perimeter of their base.

Nathan Bradley Bethea, a former Army infantry officer [7] who “served in the same battalion in Afghanistan and participated in the attempts to retrieve [Bergdahl] throughout the summer of 2009,” claims that “every member of my brigade combat team received an order that we were not allowed to discuss what happened to Bergdahl for fear of endangering him. He is safe, and now it is time to speak the truth. And that the truth is: Bergdahl was a deserter, and soldiers from his own unit died trying to track him down.”

This seems to be the prevailing judgment of those in a position to know the facts. Sergeant Matt Vierkant, a member of Bergdahl’s platoon, echoes Bethea’s words [8]: “Bowe Bergdahl deserted during a time of war, and his fellow Americans lost their lives searching for him.” The same report contains several other quotes, mostly anonymous, from former members of Blackfoot Company, who have started a Facebook page subtly titled, “Bowe Bergdahl is NOT a hero” and have shared their disdain for their former comrade.

For now, the Obama administration is rightly withholding judgment. Secretary of Defense Chuck Hagel deferred questioning on “Meet The Press” about Bergdahl’s actions before capture, observing, “This is a guy who probably went through hell for the last five years, and let’s focus on getting him well.”

That’s the appropriate tone for now. Until the facts are established after a full investigation, Bergdahl deserves the presumption of innocence from the chain of command. But there’s reason to believe that he’s getting more than that. A “senior defense official” quoted in multiple reports has declared that punitive action is unlikely, regardless of whether Bergdahl is found to have deserted, on the basis that “five years is enough.”

No. It is not.

Six American soldiers died searching for Bowe Bergdahl after he went missing. Staff Sergeant Clayton Bowen and Private First Class Morris Walker were killed by a roadside bomb on August 18, 2009. They were twenty-nine and twenty-three years old, respectively. Staff Sergeant Kurt Curtis, age twenty-seven, died August 26 from gunshot wounds. Second Lieutenant Darryn Andrews, thirty-four, died September 4 when enemy forces hit his vehicle with an improvised explosive device and a rocket-propelled grenade. Two days later, Staff Sergeant Michael Murphrey, twenty-five, was killed by an IED. On September 11, Private First Class Matthew Martinek, twenty, died from injuries sustained in the attack that killed Andrews instantly.

The indirect count may well be higher. Not only did Bergdahl’s going missing get fellow soldiers killed in the search, the search itself compromised the mission. As Bethea notes, Bergdahl’s disappearance “translated into daily search missions across the entire Afghanistan theater of operations, particularly ours. The combat platoons in our battalion spent the next month on daily helicopter-insertion search missions (called “air assaults”) trying to scour villages for signs of him.” Not surprisingly, “The searches enraged the local civilian population and derailed the counterinsurgency operations taking place at the time.” Bethea contends, not unreasonably, that this anger translated into untold attacks on American forces that might otherwise not have happened. That counterfactual is, of course, unprovable. But it reminds us that desertion in combat is a serious offense.

Traditionally, we’ve treated it that way.

Bethea reminds us that we’ve previously shown little compunction about prosecuting deserters even after they’ve been released by their captors. He points in particular to the bizarre case of Charles Robert Jenkins [9], who defected to North Korea in 1965 and was held under what amounted to house arrest there for decades before eventually being allowed to leave to receive medical treatment in 2004. He turned himself in to U.S. authorities and pled guilty to desertion and aiding the enemy. Jenkins was given a mere thirty-day sentence along with a dishonorable discharge and reduction of rank to private. Presumably, this was a function of his poor health, advanced years, and the fact that his desertion was at least partly motivated by his being highly intoxicated at the moment of decision.

We live, alas, in a different time. For the past four decades, we have had an all-volunteer force and we have long since come to see all who serve as heroes. The American public, which feels a twinge of guilt that others risk so much while they enjoy the fruits of freedom at home, reflexively Support the Troops. The politicians who pander to them are loathe to burst their bubble.

Considering the depths to which the popular view of the military sank as the Vietnam War drew to its end, the pendulum swinging a bit too far in the opposite direction is a problem about which I won’t complain too much. But the fact of the matter is that not every person who dons a military uniform and deploys to combat is a hero. If it turns out that Bergdahl’s former comrades-in-arms are right and he did in fact desert his post that night—getting at least six American soldiers killed as a direct result—then supporting the troops means prosecuting him to the full extent allowable under the Uniform Code of Military Justice.

Original article

If Bowe Bergdahl Deserted, Prosecute Him

The National Interest

June 4, 2014

This weekend, we received the happy news that Sergeant Bowe Bergdahl, who for nearly five years had been the only American soldier held prisoner by the Taliban, had been freed. President Obama proudly touted the release as “a reminder of America’s unwavering commitment to leave no man or woman in uniform behind on the battlefield.” [4] Almost immediately, however, uncomfortable questions cast a shadow.

First, many critics questioned the wisdom of legitimating—indeed, perhaps incentivizing—the Taliban’s taking of prisoners by giving them a five-for-one deal. But Paul Pillar is right: [5] we’re fighting a war in Afghanistan and, however fuzzy their Geneva Convention status, Taliban fighters captured on the field of battle are essentially enemy prisoners of war and POW exchanges are a longstanding tradition. That they may eventually return to the battlefield is less than ideal but the American combat role in Afghanistan is rapidly winding down and releasing enemy fighters is the cost of getting our man back.

Second, some Congressional Republicans are angry that the administration did not consult with Capitol Hill as seemingly required by statute. While the administration’s “exigent circumstances” argument is laughable given that the “weeks of painstaking negotiations” on this swap certainly allowed thirty-days’ notice, the fact of the matter is that presidents quite frequently take actions in the national security arena based on their judgment, the law be damned, daring Congress to do something about it. This particular flap is unlikely to have legs, simply because of the powerful emotional appeal at stake. It’s hard to disagree with Secretary of State Susan Rice who sharply noted [6] on ABC’s “This Week,” that “Sergeant Bergdahl wasn’t simply a hostage; he was an American prisoner of war captured on the battlefield. We have a sacred obligation that we have upheld since the founding of our republic to do our utmost to bring back our men and women who are taken in battle, and we did that in this instance.” She added, “We had reason to be concerned that this was an urgent and acute situation. Had we waited and lost him, I don’t think anybody would have forgiven the United States government.” Given the endless hearings on Benghazi, with which Rice has some familiarity, there’s little doubt about that.

Third, however, is an issue that has been quietly bubbling beneath the surface these past five years and is now seeing the spotlight: the likelihood that Bergdahl deserted his unit and was vulnerable to capture, because he had left the protective perimeter of their base.

Nathan Bradley Bethea, a former Army infantry officer [7] who “served in the same battalion in Afghanistan and participated in the attempts to retrieve [Bergdahl] throughout the summer of 2009,” claims that “every member of my brigade combat team received an order that we were not allowed to discuss what happened to Bergdahl for fear of endangering him. He is safe, and now it is time to speak the truth. And that the truth is: Bergdahl was a deserter, and soldiers from his own unit died trying to track him down.”

This seems to be the prevailing judgment of those in a position to know the facts. Sergeant Matt Vierkant, a member of Bergdahl’s platoon, echoes Bethea’s words [8]: “Bowe Bergdahl deserted during a time of war, and his fellow Americans lost their lives searching for him.” The same report contains several other quotes, mostly anonymous, from former members of Blackfoot Company, who have started a Facebook page subtly titled, “Bowe Bergdahl is NOT a hero” and have shared their disdain for their former comrade.

For now, the Obama administration is rightly withholding judgment. Secretary of Defense Chuck Hagel deferred questioning on “Meet The Press” about Bergdahl’s actions before capture, observing, “This is a guy who probably went through hell for the last five years, and let’s focus on getting him well.”

That’s the appropriate tone for now. Until the facts are established after a full investigation, Bergdahl deserves the presumption of innocence from the chain of command. But there’s reason to believe that he’s getting more than that. A “senior defense official” quoted in multiple reports has declared that punitive action is unlikely, regardless of whether Bergdahl is found to have deserted, on the basis that “five years is enough.”

No. It is not.

Six American soldiers died searching for Bowe Bergdahl after he went missing. Staff Sergeant Clayton Bowen and Private First Class Morris Walker were killed by a roadside bomb on August 18, 2009. They were twenty-nine and twenty-three years old, respectively. Staff Sergeant Kurt Curtis, age twenty-seven, died August 26 from gunshot wounds. Second Lieutenant Darryn Andrews, thirty-four, died September 4 when enemy forces hit his vehicle with an improvised explosive device and a rocket-propelled grenade. Two days later, Staff Sergeant Michael Murphrey, twenty-five, was killed by an IED. On September 11, Private First Class Matthew Martinek, twenty, died from injuries sustained in the attack that killed Andrews instantly.

The indirect count may well be higher. Not only did Bergdahl’s going missing get fellow soldiers killed in the search, the search itself compromised the mission. As Bethea notes, Bergdahl’s disappearance “translated into daily search missions across the entire Afghanistan theater of operations, particularly ours. The combat platoons in our battalion spent the next month on daily helicopter-insertion search missions (called “air assaults”) trying to scour villages for signs of him.” Not surprisingly, “The searches enraged the local civilian population and derailed the counterinsurgency operations taking place at the time.” Bethea contends, not unreasonably, that this anger translated into untold attacks on American forces that might otherwise not have happened. That counterfactual is, of course, unprovable. But it reminds us that desertion in combat is a serious offense.

Traditionally, we’ve treated it that way.

Bethea reminds us that we’ve previously shown little compunction about prosecuting deserters even after they’ve been released by their captors. He points in particular to the bizarre case of Charles Robert Jenkins [9], who defected to North Korea in 1965 and was held under what amounted to house arrest there for decades before eventually being allowed to leave to receive medical treatment in 2004. He turned himself in to U.S. authorities and pled guilty to desertion and aiding the enemy. Jenkins was given a mere thirty-day sentence along with a dishonorable discharge and reduction of rank to private. Presumably, this was a function of his poor health, advanced years, and the fact that his desertion was at least partly motivated by his being highly intoxicated at the moment of decision.

We live, alas, in a different time. For the past four decades, we have had an all-volunteer force and we have long since come to see all who serve as heroes. The American public, which feels a twinge of guilt that others risk so much while they enjoy the fruits of freedom at home, reflexively Support the Troops. The politicians who pander to them are loathe to burst their bubble.

Considering the depths to which the popular view of the military sank as the Vietnam War drew to its end, the pendulum swinging a bit too far in the opposite direction is a problem about which I won’t complain too much. But the fact of the matter is that not every person who dons a military uniform and deploys to combat is a hero. If it turns out that Bergdahl’s former comrades-in-arms are right and he did in fact desert his post that night—getting at least six American soldiers killed as a direct result—then supporting the troops means prosecuting him to the full extent allowable under the Uniform Code of Military Justice.

Original article