Military justice news

In my new position as President of the National Institute of Military Justice, I'm happy to announce that NIMJ and CAAFlog have joined together in NIMJ Blog-CAAFlog, which today joins IntLawGrrls' "connections" list at right. Check it out for the latest news not only about the work of the U.S. Court of Appeals for the Armed Forces, but also about all matter of things related to military justice.
NIMJ (whose board members include IntLawGrrls Diane Marie Amann and Beth Van Schaack) looks forward to its 20th anniversary later this year. We're planning a celebration that especially will mark the spectacular contributions of our co-founder and longtime President, Eugene R. Fidell (left), to promoting fairness in and public understanding of military justice.
Also wearing my NIMJ hat, recently I submitted the following letter to The New York Times, in response to a Times editorial entitled "The Military and the Death Penalty," which argued for an end to capital punishment within the military justice system after stating that "the military has not succeeded in keeping racial bias out of its judicial process," and that "broad discretion of judges and jurors in military tribunals and the system’s lack of transparency may make it harder to root out discrimination." The letter went unpublished, alas, so here is a chance to read it:

To the editor:
There are many reasons to abolish the military death penalty. But the 'broad discretion of judges and jurors at military tribunals' that your editorial suggests is not one of them.
Military judges and juries are bound by rigorous procedural rules much like the federal court rules. Those rules are enforced by the civilian judges of the U.S. Court of Appeals for the Armed Forces. The new study you cited does not impugn the integrity of the military bench and bar. Instead, it concludes that racial bias could be eliminated by limiting 'death eligible' murders to those with military implications.
Inexperienced counsel and inadequate resources, on the both the prosecution and defense side, are a greater threat to the fairness of U.S. military justice than the limited discretion of its judges. Likewise, the lack of a requirement for fixed terms of office for military judges fails to meet the high standard of due process protection that our all-volunteer force deserves. Congress should address such issues and provide sufficient funding for the proper administration of military justice. Our servicemembers deserve no less.

Elizabeth L. Hillman
President, National Institute of Military Justice

Fantasy on Island of Cuba

Fifty-five years ago American moviegoers escaped with matinee idol Gene Kelly across The Pond to the fantasy world of Brigadoon, a highland town that disappears for a century at a time. That exotic image does fitting service as metaphor in the newest National Institute of Military Justice account of proceedings at the "brig" across the water where the United States continues to detain hundreds of noncitizens, a small handful of whom it's charged with crimes to be adjudicated by military commission.
Telling of his adventures in an account entitled "Brig-adoon: Report from Guantanamo" is our colleague Gene Fidell, NIMJ's cofounder and president who'd served as a judge advocate in the Coast Guard from 1969-1972 and is currently Senior Research Scholar in Law and Florence Rogatz Lecturer in Law at Yale Law School. He's also the co-author, along with Dwight Sullivan and IntLawGrrl Beth Hillman, of a casebook on military justice.
Fidell repeats concerns raised in reports by prior NIMJ observers, including yours truly (all reports are available here): among others, the persistent problem that the law governing GTMO proceedings remains very much in flux. He stresses too the "sheer time, effort, and expense involved" in periodically transporting an entire trial apparatus to and from U.S. military base on the island of Cuba. He questions the "administrative complexity" of bringing in and retraining personnel, and expresses concern that some proceedings are "rehearsed at length behind closed doors," thus "shortchanging the public." A key paragraph:

Is it possible to dispense justice under these circumstances at such a distant location? Yes. The courtroom is entirely acceptable .... Proper decorum is carefully observed. But I have to say, as a taxpayer, that the arrangements are, overall, wildly inconvenient. I am not persuaded that the reasons for conducting military commission proceedings at Guantanamo, assuming they ever had any force, today come even close to justifying the expense in human resources and sheer out-of-pocket costs. If, as the Administration has decided, military commissions should continue to be employed, let it be done on the mainland.

Moving proceedings Stateside, Fidell notes, would both make attendance much easier for victims' families and ensure greater coverage by media, whose shrinking staffs and budgets make trips to GTMO ever less frequent.

Fidell concludes by predicting that in the next decade the commissions will be shut down and "the whole shebang will revert to Cuba" and become "a magnificent resort area, with regular direct flights from New York."
Time will tell.

(credit for AP/Mark Wilson photo of Guantánamo at sunset)

The next Justice

Popping into a White House press briefing, President Barack Obama just confirmed that Justice David Souter is retiring after 19 years on the U.S. Supreme Court. (Souter's resignation letter is here.)
Last night's leak of the news already has opened floodgates of speculation about who will succeed Souter. Will it be:
► A woman? Lots of folks think this is a good idea. It sure would end the isolation that Justice Ruth Bader Ginsburg has often lamented -- most recently, as we posted, just a couple weeks ago -- since the departure of her colleague, Justice Sandra Day O'Connor. More women, moreover, sure would make the Court's group photo look more like those of most U.S. law school student bodies, many faculties, and lots of law firms.
► Someone versed in transnational and international law? IntLawGrrls can't help but like the idea, explored in depth here by our colleague Peter Spiro. If this proves a criterion, a few people whose names already are cropping up on short lists jump to mind: Judge Diane P. Wood (below right) of the U.S. Court of Appeals for the 7th Circuit, and Senior Lecturer in Law at the University of Chicago (same title once held by Obama), who gave a terrific talk on globalization and law at a 2007 conference cosponsored by the Association of American Law Schools and the American Society of International Law; another speaker at that 2007 ASIL/AALS conference, Harold Hongju Koh, Yale Law Dean and State Department Legal Adviser nominee, about whom IntLawGrrls readers know much from these posts; and Judge William A. Fletcher of the U.S. Court of Appeals for the Circuit, a federal jurisdiction/civil procedure professor at California-Berkeley and a participant in talks on globalization and law, among them Réseau ID, in which several IntLawGrrls and Koh also have taken part.
► A Latino/a? Our colleague and California-Davis Law Dean Kevin Johnson has examined this idea in 2 articles, available here and here.
► The 1st openly gay nominee? That's the hope of some, according to this article.
► Someone with significant military experience? Our colleague Eugene R. Fidell, the President of the National Institute of Military Justice now visiting at Yale Law School, made a persuasive argument for that trait in his presentation on the "Security" panel of the March symposium in honor of Justice John Paul Stevens at California-Davis, available now on webcast and soon in print in the UC Davis Law Review.
► Someone whose legal experience comes from the practice rather than from academia or the bench? One name that's already surfaced in this regard is Teresa Wynn Roseborough (left), Chief Litigation Counsel at MetLife, former Deputy Assistant Attorney General, former partner at Atlanta's Sutherland Asbill firm, former Stevens clerk, and former Chairman of the Board of the American Constitution Society. Teresa gave a terrific talk on the "Equality" panel at our JPS symposium: drawing on her experience arguing on behalf of Al Gore before the 11th Circuit en banc, she deployed actual chad-cards and actual Florida voting booths to persuade the symposium audience that Justice Stevens and other Supreme Court dissenters in Bush v. Gore (2000) had the better view of the case. (Webcast here.)
All the traits above, and more, no doubt will be weighed as Obama moves toward his ultimate choice. As he does, let's hope he keeps well in mind the overarching criterion Obama himself set at today's press briefing:

'I will seek someone with a sharp and independent mind.'

'Nuff said

(Taking context-optional note of thought-provoking quotes)

209. Most people in Britain, I suspect, would be astonished at the amount of care, time and trouble that has been devoted to the question whether it will be safe for the aliens to be returned to their own countries. In each case the Secretary of State has issued a certificate under section 33 of the Anti-terrorism, Crime and Immigration Act 2001 that the aliens' removal from the United Kingdom would be conducive to the public good. The measured language of the statute scarcely matches the harm that they would wish to inflict upon our way of life, if they were at liberty to do so. Why hesitate, people may ask. Surely the sooner they are got rid of the better. On their own heads be it if their extremist views expose them to the risk of ill-treatment when they get home.
210. That however is not the way the rule of law works. The lesson of history is that depriving people of its protection because of their beliefs or behaviour, however obnoxious, leads to the disintegration of society. A democracy cannot survive in such an atmosphere, as events in Europe in the 1930s so powerfully demonstrated. It was to eradicate this evil that the European Convention on Human Rights, following the example of the Universal Declaration of Human Rights by the General Assembly of the United Nations on 10 December 1948, was prepared for the Governments of European countries to enter into. The most important word in this document appears in article 1, and it is repeated time and time again in the following articles. It is the word "everyone". The rights and fundamental freedoms that the Convention guarantees are not just for some people. They are for everyone. No one, however dangerous, however disgusting, however despicable, is excluded. Those who have no respect for the rule of law -- even those who would seek to destroy it -- are in the same position as everyone else.
211. The paradox that this system produces is that, from time to time, much time and effort has to be given to the protection of those who may seem to be the least deserving. Indeed it is just because their cases are so unattractive that the law must be especially vigilant to ensure that the standards to which everyone is entitled are adhered to. The rights that the aliens invoke in this case were designed to enshrine values that are essential components of any modern democratic society: the right not to be tortured or subjected to inhuman or degrading treatment, the right to liberty and the right to a fair trial. There is no room for discrimination here. Their protection must be given to everyone. It would be so easy, if it were otherwise, for minority groups of all kinds to be persecuted by the majority. We must not allow this to happen. Feelings of the kind that the aliens' beliefs and conduct give rise to must be resisted for however long it takes to ensure that they have this protection.

-- James Arthur David Hope (above right), the member of the British House of Lords who goes by the nom de juge of Lord Hope of Craighead, writing last Wednesday in RB (Algeria) (FC) v Sec’y of State for the Home Dep’t.

In the end, the Law Lords ruled in favor of the British government in this "case involving the proposed deportation of two Algerians, identified only as 'RB' and 'U', who the Home Secretary considers are a threat to national security." According to London's Independent, "Home Secretary Jacqui Smith [right] said she was delighted with the decision"; various human rights activists said they were not.

(hat tip for alerting us to this passage to our colleague Eugene R. Fidell)

Hot Off the Presses

Kudos to Elizabeth L. Hillman -- IntLawGrrls' own Vera Brittain -- who's just published Military Justice: Cases and Materials (LexisNexis 2007). Beth, who's a visiting professor this year at University of California, Hastings College of the Law, wrote the text along with our colleagues Eugene R. Fidell, President of the National Institute of Military Justice, and Dwight H. Sullivan, Colonel, Marine Corps Reserve, who headed defense of detainees haled before the military commissions at Guantánamo.
The publishers' description underscores the place of military justice within the larger study of systems of justice:

With prosecutions arising from the abuse at Abu Ghraib to ongoing cases alleging atrocities against civilians in Iraq, as well as courts-martial of uniformed war resisters at home, the military justice system now has a prominence unmatched since the Vietnam era. This higher profile for court-smartial, combined with the difficult and fundamental legal issues raised by the military commissions, suggests that military courses will now be in great demand. This casebook['s] coverage of the U.S. court-martial and other national and international systems of military criminal law provides a framework through which students can explore the role and operation of military justice within a democratic society.

Heartfelt congratulations!