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CAAFlog

GMJR Town Hall--William T. Cooley

4/30/2022

 
On Monday, May 9, 2022, at 9:00 a.m. EDT, Global Military Justice Reform will hold a Town Hall to discuss the case of Major General William T. Cooley, USAF, recently convicted of forcibly kissing his sister-in-law. He was sentenced to a reprimand and forfeiture of $54,550.

Here is the link: Monday, May 9⋅9:00 – 10:30am
​
Join Zoom Meeting

Location:
https://us02web.zoom.us/j/83555741918?pwd=QkcxeFQ2VHlRZ3NNWTYya0pGVGl0QT09

Description: Join Zoom Meeting

https://us02web.zoom.us/j/83555741918?pwd=QkcxeFQ2VHlRZ3NNWTYya0pGVGl0QT09

Meeting ID: 835 5574 1918
Passcode: 752334

Air Force Court of Criminal Appeals

4/28/2022

 
United States v. Payan.
The record of trial in Appellant’s case is returned to the Chief Trial Judge, Air Force Trial Judiciary, for correction under R.C.M. 1112(d) to account for the missing audio of the closed session of court, missing Appellate Exhibit VI, and any other portion of the record that is determined to be missing or defective hereafter, after consultation with the parties.
United States v. Cooper.
​The record of trial in Appellant’s case is returned to the Chief Trial Judge, Air Force Trial Judiciary, for correction under R.C.M. 1112(d) to account for the complete and correct version of Prosecution Exhibit 9, complete version of Appellate Exhibit LIX, and any other portion of the record that is determined to be missing or defective hereafter, after consultation with the parties.

Air Force Court of Criminal Appeals--U.S. v. Lattin

4/28/2022

0 Comments

 
​We received a comment that,
​Requiring a search authorization to be limited to seizing evidence of only a specific crime seems inconsistent with established caselaw. An authorization to search a residence for a missing person allows the investigators to look anywhere in the residence that a person could be hidden, but allows them to seize any evidence of any crime that they find as long as they find that evidence in a place that a person could be (ie in a closet, not a desk drawer). This ruling is basically saying 'ignore the corpses of dead children, you are only allowed to seize evidence of drug possession' This is a huge change.

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0 Comments

USAF GO

4/27/2022

0 Comments

 
Update: The alleged assault took place in New Mexico. It does not appear that the acts of which he was convicted are a sex crime in New Mexico. It would appear that assault and battery is the most similar offense. It is a misdemeanor (petty) for which the maximum punishment appears to be a $500.00 plus up to six months confinement and with up to six months probation.
Update: Sentenced to reprimand and a little over $10K x five. Betting at CAAFlog was three months forfeiture of pay and the reprimand.
Air Force Times is reporting that MG Cooley has been convicted, by military judge alone.
​After about five hours of deliberation Friday and an overnight break, Jimenez — the chief circuit military judge with the Air Force Trial Judiciary, Western Circuit, at Travis Air Force Base, California — ruled Cooley is guilty of forcibly kissing the woman, the first specification in a single charge of abusive sexual contact. He is not guilty of two other specifications of groping her and moving her hand to touch his genitals over his clothes, she said.
0 Comments

AV2 (a.k.a. United States v. Murray)

4/26/2022

 
Former Army officer AV2 was allegedly sexually assaulted by Master Sergeant Clinton Murray and is a witness in Murray's upcoming military court trial. The military judge overseeing Murray's case ruled that certain communications between AV2 and a Department of Veterans Affairs psychotherapist were not protected from disclosure under the Military Rules of Evidence. AV2 sought relief in the two military appellate courts, but both affirmed the military judge's ruling.
AV2 now asks the Court to "revise and correct" what she believes all three military courts got wrong. The Defendants moved to dismiss the case, and the Court, after reviewing the parties' briefing and holding oral argument, grants the Motion. Some of AV2's claims are barred by sovereign and judicial immunities, while the Court lacks subject matter and equitable jurisdiction to review the rest. With isolated exceptions not applicable here, Article III courts do not have the authority to review military judges' rulings.

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More change?

4/26/2022

 
Update of sorts from Military.com.
Unit commanders in the Navy and Marine Corps will no longer have investigative authority over sexual harassment allegations, according to a department-wide message sent Friday by Navy Secretary Carlos Del Toro.
​
Effective immediately, the message says, commanding officers must escalate complaints to the next higher-level commander, who will then appoint an investigating officer. That investigator should be from outside the command and "shall not be familiar with the subject or the complainant," the message says.
During the Conference over the NDAA FY 22, sexual harassment was removed from the list of covered offenses under the jurisdiction of a special trial counsel (STC). But, the President was tasked to enumerate an offense of sexual harassment under UCMJ art. 134. The President did so (along with other changes) in Executive Order 14062, of January 26, 2022, Annex at 21.

  • (1) That the accused knowingly made sexual advances, demands or requests for sexual favors, or knowingly engaged in other conduct of a sexual nature;
  • (2) That such conduct was unwelcome;
  • (3) That, under the circumstances, such conduct:
    • (a) Would cause a reasonable person to believe, and a certain person did believe, that submission to such conduct would be made, either explicitly or implicitly, a term or condition of a person's job, pay, career, benefits, or entitlements;
    • (b) Would cause a reasonable person to believe, and a certain person did believe, that submission to, or rejection of, such conduct would be used as a basis for decisions affecting that person's job, pay, career, benefits, or entitlements; or
    • (c) Was so severe, repetitive, or pervasive that a reasonable person would perceive, and a certain person did perceive, an intimidating, hostile, or offensive working environment; and
  • (4) That, under the circumstances, the conduct of the accused was either:
    • (i) to the prejudice of good order and discipline in the armed forces;
    • (ii) of a nature to bring discredit upon the armed forces; or
    • (iii) to the prejudice of good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.

Well, a press release from Congresswoman Jackie Speier tells us some change may be on the way.
Today, Congresswoman Jackie Speier (D-CA), Chair of the Armed Services Subcommittee on Military Personal and Co-Chair of the Democratic Women’s Caucus, and Congressman Markwayne Mullin (R-OK), were joined by Representatives Veronica Escobar (D-TX), Troy Balderson (R-OH), Sylvia Garica (D-TX), Tony Gonzales (R-TX), and Anthony Brown (D-MD), in introducing the Sexual Harassment Independent Investigations and Prosecutions (SHIIP) Act to remove sexual harassment from the military chain of command. Senator Mazie Hirono (D-HI), Chair of the Senate Armed Services Subcommittee on Seapower, is introducing her companion legislation today as well, which marks the two-year anniversary of the murder of Army SPC Vanessa Guillén.
. . . 

Specifically, the SHIIP Act extends protections against sexual harassment that Chair Speier secured in the FY22 NDAA, but were stripped out in conference.

[T]he bill would:

  • Move prosecutorial decisions for sexual harassment from commanders to the new special trial counsel, created by the FY22 NDAA, so that independent military attorneys decide which sex-related offenses go to court-martial, and
  • Require that the new, independent sexual harassment investigators created by the FY22 NDAA are outside of the chain of command of the victim and the subject and are trained in investigating sexual harassment.
Here is a link to the SHIP Act.

​Hat tip to GMJR.

United States v. Gilmet

4/25/2022

0 Comments

 
On April 28, 2022, the Government fired its opening salvo in its UCMJ art. 62 appeal of the military judge's ruling. NMCCA Rule 20(c)(B) requires a defense response within 20 days. First a refresher on the ruling and then the filing.

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Court of Appeals for the Armed Forces

4/25/2022

 
United States v. Nelson. The introduction.
We granted review to determine whether the military judge erred when he concluded that Appellant voluntarily provided his cell phone’s passcode to law enforcement. We hold that under the totality of the circumstances, Appellant did voluntarily provide his passcode and thus the military judge did not abuse his discretion in denying a defense motion to suppress incriminating evidence derived from Appellant’s cell phone. We therefore affirm the judgment of the United States Navy-Marine Corps Court of Criminal Appeals (CCA).
The issue.
​We granted review on the following issue: Did the military judge and the court below err in finding that Appellant voluntarily provided his smart phone passcode to law enforcement when the law enforcement official conducting the interrogation asserted that he possessed a search authorization for the phone and Appellant only provided his passcode because Appellant believed he had “no choice?”
In denying relief, the court addressed a number of factors in a de novo review of the totality of the circumstances and the military judge's findings. See Slip op. at 4; and
  • "Appellant was not somehow peculiarly susceptible to coercion."
  • "during the initial interview, not only did Appellant “technically” waive his Miranda/Article 31, UCMJ, rights, he did so forthrightly and unambiguously and demonstrated his willingness to answer questions. Moreover, he repeatedly demonstrated his recognition that he could decline to provide the passcode to his phone."
  • "Appellant does not provide any basis for this Court to conclude that this initial interview was coercive. We specifically note that Appellant did not invoke his right to counsel and did not seek to depart from the interview."
  • The investigator's "tone and demeanor remained professional at all times and the encounter “last[ed] only minutes.”
  • "when Appellant stated that he had “no choice” but to enter the passcode, he did not wait for a response by Investigator Hotel before unlocking his phone."
  • "Moreover, the investigator in this case was under no obligation to correct Appellant’s misimpression." (As opposed to, say, an affirmative lie?)
Appellant makes two main arguments. First, Appellant avers that his entry of the passcode was involuntary because he merely acquiesced to a claim of authority. However, we note that the Fourth Amendment consent cases that Appellant cites in support of his claim are not on point.  . . . Appellant next argues that his refusal to consent to a search of his phone five times “is direct evidence that he did not voluntarily provide his phone’s passcode.” However, we are not persuaded that, standing alone, five refusals to consent to a search make a subsequent entry and provision of a passcode involuntary. Key to our analysis here is the military judge’s factual findings that the investigator used a professional tone at all times and did not engage in threats, abuse, or coercion.

Ten Years of 138 Complaints at the USDB

4/20/2022

 
I just received a response to a FOIA request I submitted about a year ago: "All Article 138 Complaints by prisoner at USDB Fort Leavenworth from November 01, 2010 to November 01, 2020." Below is the 300+ page response, which I post for the benefit of researchers interested in the legal claims being submitted in military prisons.
fissell_foia_redacted.pdf
File Size: 10824 kb
File Type: pdf
Download File

Brenner Fissell

Editor

The Forever War

4/16/2022

 
​NIMJ’s Laura Dickinson, Still at War: The Forever War Legal Paradigm in Afghanistan. Just Security, April 14, 2022.
The U.S. legal posture towards Afghanistan, therefore, holds ongoing significance. Specifically, we need to ask the question: Does the United States still consider itself to be waging a forever war against terrorist groups in Afghanistan?
The answer so far appears to be yes, even though U.S. President Biden proclaimed that, with the withdrawal of U.S. armed forces from the territory, “the United States ended 20 years of war in Afghanistan — the longest war in American history.” But while fighting against the Taliban may be over (at least for now), Biden has also signaled that the United States will rely on  “over-the-horizon” capabilities to continue the war against terrorist groups in Afghanistan. Indeed, it seems the Biden administration decidedly has not declared the end of the forever war legal paradigm. To the contrary, the U.S. government continues to take the position that it is engaged in a broad, ongoing, transnational armed conflict against al-Qaeda and terrorist groups, including in Afghanistan, and that the dominant international legal framework governing extraterritorial operations against these groups therefore is the law of war, also known as international humanitarian law (IHL).
Why does it matter whether or not we are formally still at war?
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