Posted on 01/20/2007 7:46:41 PM PST by RedRover
The Haditha Marine case, with its leaks of false information including, possibly, tidbits of confessions, has a recent parallel.
Remember the case of Petty Officer Daniel M. King? You don’t?
Evidently, neither does the Washington Post, Associated Press, National Public Radio, and the rest of the media that repeats every NCIS rumor as gospel. This is surprising because it wasn't that long ago that the NCIS lied to them all.
It was the Daniel M. King case, a few short years ago, that should make everyone suspicious of every leak, and every media report, in the Haditha Marines case.
Petty Officer King was a Navy cryptanalyst: Cryptologist Technician (Collection) First Class (CTR1). He was arrested in 1999 on suspicion of espionage, and was summarily stripped of all his rights as a citizen of this country.
NCIS agents administered a polygraph test. It is possible that the agents were not properly trained. In any event, Daniel King’s polygraph was ruled “inconclusive”. At the same time, no hard evidence was found to back up the charge. So the NCIS agents needed a confession.
Petty Officer King was detained by and subjected to a torturous interrogation that lasted over 26 days for 19 to 20 hours at a time.
At a Congressional hearing, attorney Jonathan Turley would testify, “The NCIS manufactured a theory of espionage without foundation and then took steps to compel statements to support that theory. The tapes and evidence secured by the defense in this case reveal agents seeking a trophy not the truth.”
At the same hearing, Lieutenant Robert A. Bailey (JAG, US Naval Reserve), stated:
“The conduct of NCIS agents in this case was nothing short of shocking. Independent reviewers have stated that their techniques were barbaric….
That such conduct occurred at the hands of NCIS is not surprising….Indeed, such conduct is predictable based on the training and guidance manual published by the NCIS.
According to the NCIS Manual, Chapter 14 - Interrogations, any person who adamantly denies any wrongdoing and points to his clean record is "subconsciously confessing."
If a confused suspect asks what is going to happen to him, the NCIS believes this is an indication that he "is beginning a confession."
Additionally, agents are to convey the idea that they will "persist as long as required to resolve the issue under investigation" and that they "will not give up the interrogation."….
[Petty Officer] King's only recourse was to confess to a crime he did not commit in the hopes that he would eventually receive a lawyer and the truth would come out.”
Finally, the truth did come out--despite the efforts of the NCIS. Petty Officer King was not a spy.
He was released in March 2001 after a hellish 520 days in confinement. Confinement in "Special Quarters," the equivalent to maximum security lock-down condition in which he spent approximately 20 hours a day in a six-foot by nine-foot cell.
Today, the NCIS is continuing the same criminal behavior of coercing confessions and ignoring rules and ethics in pursuit of its target. You haven't been reminded of this story in the mainstream media. But the truth is there for anyone willing to look. It's all right here at Documents in the Case of US v. Daniel M. King .
Spreading the word can be an act of patriotism. If the truth stays secret, the very worst of men will bring down our nation's very best.
Thank you for the lesson JAG Hunter and welcome to FreeRepublic!!!
Thank you for your post and welcome to Free Republic, JAG Hunter.
as the UCMJ expressly denies servicemen the protection of a federal jury that is specifically commanded by the Constitution.
It doesn't "expressly deny" a jury. It doesn't reference a jury, but that's different. That being said, the interplay b/w Congress' power over the land and naval forces and Art III section 2 was covered by SCOTUS in Ex parte Quirin, 317 US 1, and reaffirmed the conclusion that the founders didn't intend the rights of the 5th and 6th amendment (in particular trial by jury) to attach to members of the armed forces:
The exception from the Amendments of "cases arising in the land [***21] or naval forces" was not aimed at trials by military tribunals, without a jury, of such offenses against the law of war. Its objective was quite different -- to authorize the trial by court martial of the members of our Armed Forces for all that class of crimes which under the Fifth and Sixth Amendments might otherwise have been deemed triable in the civil courts. The cases mentioned in the exception are not restricted to those [**19] involving offenses against the law of war alone, but extend to trial of all offenses, including crimes which were of the class traditionally triable by jury at common law.
Citing to Blackstone is nice for historical reference, but has no real present value.
The Supreme Court of the United States (SCOTUS)is specifically barred from review Army Court of Criminal Appeals (ACCA) cases by the very UCMJ Article he cites (Art. 67a).
This is correct. I typed ACCA when I meant CAAF. A typo and my error.
SCOTUS, applying what's described as the deference doctrine, has refused repeatedly to consider the scope and operation of the Articles of War, leaving those questions to the two "war-making" branches of government.
I said the constitutionality of the UCMJ can be challenged. That SCOTUS gives deference to another branch of gov't (congress) is an issue to be taken up with the founders. That being said, SCOTUS has been willing to opine on whether the the need for the UCMJ to accord with fundamental due process (i.e. impartiality). (Weiss v. United States, 510 U.S. 16).
Only federal judges are authorized, under Article III, to "duly" subpoena a witness to appear before any U.S. court. Commissioned officers in the U.S. military are not authorized to issue subpoenas.
No. Congress has authorized CMs to subpoena material civilian witnesses (Art 46). Failure to appear is a codified offense--enforceable in Fed Court since a CM can't take punitive action against civilians. Nothing requires the subpoena to appear before a CM come from a Federal Court.
Congress ha[s] provided courts-martial with subpoena power broad enough to compel civilian witnesses to testify, 10 U.S.C. §§ 846, 847Milas v. United States, 42 Fed. Cl. 704, 718 (Ct. Cl. 1999)
Well, the controversy is about unbounded military law and authority being exercised over U.S. citizens, which was so controversial in the 18th Century that it gave rise to a Revolution whereupon British citizens fought to become American citizens.
Unbounded except by, y'know, Congress.
Here correcteth the lesson.
So many of these complaints have the same flavor as those that argue that the income tax is unconstitutional.
I'm not military, just a very concerned citizen, and I'm finding it hard to get my bearings about the Cox Commission just from Googling.
Welcome and thanks for the correction.
It should be observed, first, that the positions I've so far expounded upon are not original. I'm merely a modern day messenger doing what little I can to sound the alarm regarding the dangers of allowing a military government to co-exist and grow stronger internally to the demise of our constitutional government. The military government is very clearly mortal to our constitutional government.
My purpose is to also warn against people like you who advocate and support military jurisdiction being visited upon a free people, in time of peace, while federal courts are fully capable of addressing the several criminal accusations now made against members of our military population.
Until you explain to us all, in plain, accessible, and clear words why the privates, corporals, sergeants, and junior officers now facing criminal charges are barred from offering their defense in a regularly constructed trial (under Article III) before a jury drawn from a group of citizens such as those who frequent the Free Republic (as is commanded by the Vth Amendment), then Blackstone's words are as relevant today as when he wrote them. I reject you contrary opinion.
SIDEBAR: Trivia time -- Please name the admirals or generals who've stood before courts-martial since, oh let's say, 1951?
My guess is that you'd just as well throw rocks at Winthrop as Blackstone.
I'll quote Winthrop again anyway: "None of the statutes governing the jurisdiction or procedure of the 'courts of the United States' have any application to [courts-martial]; nor is [the court-martial] embraced in the provisions of the VIth Amendment to the Constitution. [The court-martial] is indeed a creature of orders." (The italics belong to Winthrop)
Winthrop writes elsewhere: "...the essence of all military proceedings is summary and vigorous action, and moreover, courts-martial are no part of the Judiciary of the United States, are not even courts in the full sense of the term, but are, in peace as well as in war, simply bodies of military men ordered to investigate accusations, arrive at facts, and--where just--recommend punishment [to the commander in chief]. In the absence, therefore, of statutory direction (read federal law), [courts-martial] can scarcely be bound to the same strict adherence to [commonlaw] rules (read federal law again) as are true courts of the United States."
The Articles of War (UCMJ) "expressly deny" participation of a jury (as recognized in common law) by replacing, that is, substituting the jury with, simply, a body of military men ordered by the commander in chief to investigate accusations, arrive at facts, and--where just--recommend punishment (back to the commander in chief). AW/UCMJ Article 25 states cleary "Who may serve on courts-martial." As you're most assuredly aware, that population of people is as exceedingly small as it's biased and partial.
Hence the ability of the Coast Guard, for example, to achieve perfect punishment rates (or as I like to call them, "attainder rates) of 100%.
Regarding your reliance upon the Congress and Supreme Court in your citations, allow me to gently suggest that you, as they, are simply wrong.
Mark Levin's "MEN IN BLACK" represents one of the most recent and clear attacks on the Supreme Court.
Congress, as you may recall from your studies, stripped itself of the legislative authority to pass bills of attainder (allowing, for example, the commander in chief to directly punish U.S. servicemen without a jury's approval and permission).
For myself, nothing I'm aware of allows Supreme Court justices or Congress to carve out an exception to the constitutional protection of a jury trial for all citizens, be they active duty military or regular civilians. And don't you recognize that this central issue can be easily reconciled by allowing the voting public to engage in the debate.
It's appropriate, here, to point out one of the reasons why we're having this discussion at all is because, so far in the history of the United States, the people have been prevented from participating in the argument.
Because regular Americans are so far prohibited from this polemic speaks volumes regarding the mortal damage being insidiously visited upon our Sacred Constitution.
Your efforts to block regular folks from participating in the debate either through intimidation (big words, incomprehensible acronyms) or misinformation (representing the Articles of War as federal law) speaks volumes about you.
Your dismissive dart thrown at this audience comparing their concerns about the scope and operation of the military discipline scheme to the workings of the tax code is as much a gratuitous insult to this audience as to the very serious men who have, and continue to condemn a military government working without oversight within our constitutional government (I refer, for instance, to the Ansell-Crowder debate of 1918-1920 and the Court of Military Appeals REVOLT that took place in the mid '70s -- Note to readers: COMA is since renamed the U.S. Court of Appeals for the Armed Forces -- U.S. CAAF or just CAAF).
Then there is this: From a purely common sense point of view, I do not approve of military commanders currently empowered to force their will upon regular American citizens unconstrained. I'd be surprised if anyone reading these words, other than you, supports the notion.
Make no mistake...questions being raised up here are by no means finally decided, but are rather reawakening, having been simply dormant for a spell.
In closing, this one point of agreement. You are sorry! And you're dangerous!
Here endth the lesson.
So Fidell, with others, seeing on the horizon the 50th anniversary of the enactment of the UCMJ, thought it appropriate to profile congressional apathy, disinterest, and disconnectedness by conducting an independent audit, a performance review if you will.
The hearing was conducted in the moot courtroom, George Washington University on 13 March 2001. 19 people were present to testify in person (The JAG Hunter part of that group. The hearing lasted most of that single day.
As I recall over 250 written submissions augmented oral testimony.
No one from the press was there. No Senators or Representatives, nor any of their staffers. Not many people noticed, or paid this hearing any attention.
Two uniformed JAGs were present (an Army guy 05-Lt. Col. and a Navy gal-04 -- Lt. Cmdr. as I recall).
The Cox Commission report was issued by 31 May 2001 and stated that the courts-martial system was badly broken, and required a "bottoms-up review."
Said another way: The courts-martial system was issued a failing grade. Actually, worse than a failing grade.
No one paid any attention to that either.
Ed Pound did discuss the Cox Commission hearing and its findings in his U.S. News & World Report cover story: "UNEQUAL JUSTICE," which published 16 December 2002. A link to Ed's article may be found at The JAG Hunter
Hope this is responsive. If not, lemme know.
V/r,
/s/
The dates suggest that this review was undertaken in the wake of the horrendous Petty Officer Daniel King affair. Is that correct?
Do you know what became of the two JAGs on the defense side in the King case? Both Bailey and Freedus spoke, at the time, with great forcefulness about the abuses by the NCIS. I can only wonder, where are they now? And why aren't they speaking out?
You're right, because I think Congress' decision to permit military courts-martial to subpoena civilian witnesses to testify (not try or punish), that means I'm all about overthrowing elected gov't.
Sure.
Until you explain to us all, in plain, accessible, and clear words why the privates, corporals, sergeants, and junior officers now facing criminal charges are barred from offering their defense in a regularly constructed trial (under Article III) before a jury drawn from a group of citizens
Because the constitution does not require it. Congress has power under Art 1 to make rules re the armed forces (including courts martial). In the AoW and UCMJ, they've done so. Military offenses were not traditionally charged in civilian criminal courts. The drafters recognized this and the Fifth and Sixth Amendments were not intended to supplant the military's "jurisdiction" over such offenses. They were meant to define the rights the civilian citizenry had vis a vis the courts. That's it.
Moreover, the Articles of War themselves are Legislative creations. Including those passed by the Continental Congress in 1775. And they made no mention of juries. Oh but it does have this in part:
Art. XXXIII. No general court-martial shall consist of a less number than thirteen, none of which shall be under the degree of a commissioned officer; and the president shall be a field officer:Sounds a lot like a panel, that.
You can reject my contrary opinion all you like, but until you start coming with some case or statutory law...
Additionally, you citation to Winthorp proves my point, that Courts-martial are creations of Congress. Moreover, when you cite Winthorp:
In the absence, therefore, of statutory direction (read federal law), [courts-martial] can scarcely be bound to the same strict adherence to [commonlaw] rules (read federal law again) as are true courts of the United States."
Courts martial have that statutory direction. The UCMJ. (Have you at least conceded that it IS federal law?)
The Articles of War (UCMJ) "expressly deny" participation of a jury (as recognized in common law)
We're not talking about juries "as recognized in common law"--we're talking juries as required by the Sixth Amendment. That requirement does not, and NEVER HAS, attached to courts-martial proceedings. The Founders recognized this and made no attempt to change that relationship.
Hence the ability of the Coast Guard, for example, to achieve perfect punishment rates (or as I like to call them, "attainder rates) of 100%.
Ever hear of guilty pleas? All prosecuting agencies have near-perfect conviction rates because most people plead guilty.
Regarding your reliance upon the Congress and Supreme Court in your citations, allow me to gently suggest that you, as they, are simply wrong.
Ok, and you have some evidence of this, right? Like a contrary case or something?
Congress, as you may recall from your studies, stripped itself of the legislative authority to pass bills of attainder (allowing, for example, the commander in chief to directly punish U.S. servicemen without a jury's approval and permission).
These are not bills of attainder. You're simply using the term incorrectly. A bill of attainder is a legislative act that punishes an individual without benefit of a judicial trial. Bills of attainder are typically recognizable by the fact that they name the individual or group to be punished without process. Neither the Articles of War nor the UCMJ impose punishment without some level of judicial proceeding (trial). Again, you're stuck with the fact that Founders disagreed with you.
Additionally, you can't argue that the UCMJ are bills of attainder while at the same time denying that they are federal law. To be a bill of attainder, it would have to be a legislative act, something you've consistently denied to this point.
Pick one.
For myself, nothing I'm aware of allows Supreme Court justices or Congress to carve out an exception to the constitutional protection of a jury trial for all citizens, be they active duty military or regular civilians.
I cited to Quirin which explains it well enough. Short version: That's the way the Framers wanted it.
And don't you recognize that this central issue can be easily reconciled by allowing the voting public to engage in the debate.
I've never suggested otherwise. You can debate what the law SHOULD be all you like, doesn't change what the law is.
It's appropriate, here, to point out one of the reasons why we're having this discussion at all is because, so far in the history of the United States, the people have been prevented from participating in the argument.
Oh please, the public isn't prohibited from a thing in this regard. Nothing says the UCMJ can't be amended or flat out repealed. Nothing says the Constitution can't be amended to more clearly state what you think it should state. Don't go all Dixie Chick on me and claim by proving you wrong I'm suppressing your free speech.
Your efforts to block regular folks from participating in the debate either through intimidation (big words, incomprehensible acronyms) or misinformation (representing the Articles of War as federal law) speaks volumes about you.
For the last time, the Articles of War WERE federal law, passed by Congress.
Congress, by the act of 1806 (2 Stat. at Large, 359), has created the Articles of War, "by which the armies of the United States shall be governed,"Luther v. Borden, 48 U.S. 1, 60 (U.S. 1849)
Moreover, you're trying to argue that the UCMJ is a bill of freakin' attainder! A legal principle so hot and controversial since the founding that it's been argued before the Supreme Court a total of zero times.
And you accuse ME of obfuscation (oooh, big word)?
In closing, this one point of agreement. You are sorry! And you're dangerous!
And you're wrong. Come with some case law or original writing from the time of the framing that supports your position and then we can talk, until then, you are doing the military law equivalent of arguing against the income tax.
He correcteth the wrongitude.
"The Articles of War (UCMJ) "expressly deny" participation of a jury (as recognized in common law) by replacing, that is, substituting the jury with, simply, a body of military men ordered by the commander in chief to investigate accusations, arrive at facts, and--where just--recommend punishment (back to the commander in chief). AW/UCMJ Article 25 states cleary "Who may serve on courts-martial." As you're most assuredly aware, that population of people is as exceedingly small as it's biased and partial."
1. Please site the source for this statement.
2. Is this outdated/outmoded/applicable now that the NCIS is staffed by civilians.
NCIS are not members of the court martial panel. So when JAG Hunter writes of the panel's obligation to "investigate accusations and arrive at facts,"--it's in the same sense that a jury "investigates" and "arrives at facts."
Here endeth the replyeth.
It is disturbing that a commission with such a depth of experience would suggest changes based solely on perceptions. The better course of action would be to determine whether the perceptions were accurate, and if not, suggest ways to correct them.
Pardon me, but that's where I stopped reading. To suggest that the commission should launch an investigation of its perceptions, find the perceptions false, and then suggest ways to correct its own perceptions is really laughable.
As a sidenote, why do academic writers so often sound like Stalinists? Send the commission to a re-education camp until their perceptions are corrected! Jeez Louise, makes me wonder who won the Cold War.
As you probably realize by now, you and most of the people on this thread are not in the same world. We are concerned with what is happening now in military courtrooms.
You seem to be concerned with the world of academic theory. When asked about current events, you respond, "not my department"; "I won't comment"; "not my branch of the military". Like I say, we're in different worlds.
Well that was pretty stupid of me, I didn't read that clearly enough.
William Winthrop, former Army Judge Advocate General writing in his classic treatment on the subject: MILITARY LAW AND PRECEDENTS first published in 1896; Republished in 2000.
Chapter XVIII - Evidence, Section 473, Pg. 313.
Responsive to the question on NCIS employees serving on military panels, they are prohibited. NCIS agents are civilians, therefore not authorized by the UCMJ to sit as "members" to a court-martial.
So, Winthorp's description of the panel is still relevant and current.
Also, no words were spoken on 13 March 2001 about Petty Officer King. I do not know if the plight of Petty Officer King was in any of the written submissions (only a few of which I hold).
I have no information regarding Bailey or Freedus.
/s/
Guy Montag, a major character in Ray Bradbury's famous Fahrenheit 451, is titled a "Fireman," although Montag's job is to set books afire and murder citizens, not to protect lives and property by extinguishing blazes.
Clever JAGs and command racketeers use modern language to misinform and confuse the general public with specific intent regarding the real workings of the military discipline system.
Military panels are not juries, nor do they operate in any way as a federal jury. Courts-martial are not federal courts. Commissioned military officers described as military judges are not federal judges. Military due process is not civilian "due process." And so it goes. I know you're all able to discern the trend.
Here endth the lesson
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