Friday, December 13, 2002

Former 9/11 detainee files $20 million civil rights suit

Remember the guy who was alleged to have a two-way radio transceiver in a hotel that overlooked the World Trade Center on the morning of 9/11? A hotel employee had mistakenly fingered Mr. Abdallah Higazy, saying he found such a radio and a Koran in his room. (In fact, the transceiver belonged to an amateur pilot in a room on the floor above) But it didn't save Mr. Higazy the fate of being arrested by the FBI, interrogated for 10 days, during which time he ultimately confessed.

Higazy is suing FBI agent Michael Templeton, who administered a disputed lie detector test that was central to the aborted prosecution. He is one of the five named defendants in Higazy's complaint filed in Manhattan federal court.

Templeton "extracted a false confession ... through coercion, threats, and intimidation," Higazy alleges.

If those allegations are true, then Mr. Higazy should sue the FBI and federal government under Title 42, United States Code, Section 1983, for deprivation of his civil rights under color of authority. There is ample precedent for such suits, and that would be the proper corrective mechanism in this case. If those allegations are true, then FBI Special Agent Templeton should be disciplined by the FBI as well.

The other defendants are Ronald Ferry, the former hotel security guard who framed Higazy by claiming to find a pilot's radio in the safe in his room; the Millennium hotel, across the street from the World Trade Center, where Higazy stayed on the 51st floor; the hotel's chief of security, Stuart Yule; and the Hilton Hotels Corporation, which manages the Millennium.

Higazy's suit accuses the Millennium Hilton of negligence in its hiring and training of Ferry and Yule, who passed Ferry's information to the FBI.

Ferry was convicted in March for lying to federal agents and sentenced to six months worth of weekends in prison.

Higazy is seeking $10 million in compensatory damages and $10 million in punitive damages.

This is more problematic. If Mr. Higazy can prove actual negligence, or worse, actual malice on the part of the hotel, then I think this suit is justified. If all he can prove is a simple mistake, compounded by the fact that he is of Middle Eastern descent, then this suit amounts to nothing more than a money-grab. Through the legal theory "respondeat superior", Mr. Higazy is targeting the Millenium Hotel and its parent corporation, Hilton, for the acts of its employee, Mr. Yule. Such a legal tactic makes sense, since Mr. Yule likely does not have the money to pay such a verdict. But it also smacks of a money grab.

Mr. Higazy's suit also raises a more problematic issue for the world of anti-terrorism. If his suit survives summary judgment and goes forward, then it will pose tremendous costs to Mr. Yule and the Hilton Corporation (presumably, Hilton will defend Mr. Yule too or pay for his defense). The prospect of those litigation costs will have a chilling effect on all future citizens and businesses who might think to call in a tip about terrorists in the United States. Hotel maids will be instructed to ignore suspicious-looking packages and materials in hotel rooms. Taxi drivers will have similar instructions from their corporate parent about airport fares, lest they incur liability for their parent corporation for mistaking a Yemeni businessman for a Yememi terrorist. This chilling effect will cause a significant problem for law enforcement, which relies as much on vigilant citizens as anything for the generation of tips that could lead to the prevention of terrorism.

Honest mistakes are part of the anti-terrorism business. This enemy fights in a clandestine and secret manner. Often, the only indicators of terrorist activity are indicators which could have multiple meanings -- a radio transceiver, for example, which could either be used to direct hijackers or simply to communicate with friends. A large amount of cash, which could be used to finance terrorism or it could be used to buy a wedding ring. Sorting between these indicators to find the ones that matter is the job of law enforcement and intelligence agencies. By analyzing these indicators, they transform them into useable intelligence. What happened Mr. Higazy was most likely an honest mistake -- people trying to do the right thing by reporting suspicious activity to the FBI days after the 9/11 attack. If lawsuits like this are allowed to proceed, then the average citizen will err on the side of caution and avoid such mistakes -- by staying silent about their suspicions. Ultimately, that puts us all at risk if terrorists are able to exploit that silence to move more freely in our society.

Thursday, December 12, 2002

Bush criticizes Lott -- a good first step

The Associated Press reports that President Bush criticized Senator Trent Lott today during a speech in Philadelphia, saying he was right to apologize.

"Any suggestion that a segregated past was acceptable or positive is offensive and it is wrong," Bush said. "Recent comments by Senator Lott do not reflect the spirit of our country."

Unfortunately, President Bush's comments don't go far enough. Mr. Lott deserves his censure -- and more. Just as President Bush was willing to fire Paul O'Neill and Larry Lindsey for threatening the American Dream and President Bush's reelection prospects, he should also be willing to oust Mr. Lott. In fact, I think the continuing service of Mr. Lott as Senate Majority Leader poses *more* of a threat to President Bush's reelection chances than Mr. O'Neill or Mr. Lindsey. If morality and doing the right thing aren't enough, then maybe self-interest can motivate the President to quietly (or publicly) insist on Mr. Lott's departure.
Another perspective on Senator Lott and his statements--

Bob Herbert of the New York Times has a powerful column in today's newspaper about this subject. He makes a strong argument for why the GOP needs to dump Lott as fast as possible -- for reasons of political self-interest.

"The Republican Party has become a haven for white racist attitudes and anti-black policies. The party of Lincoln is now a safe house for bigotry. It's the party of the Southern strategies and the Willie Horton campaigns and Bob Jones University and the relentless and unconscionable efforts to disenfranchise black voters. For those who now think the Democratic Party is not racist enough, the answer is the G.O.P. And there are precious few voices anywhere in the G.O.P. willing to step up and say that this is wrong."

It doesn't take a macroeconomic genius to read the census data to see why the GOP should do this. America is becoming more diverse -- racially, ethnically, and otherwise. No political party can survive as the last redoubt of white guys who hope to bring back the 1950s. The Republican Party loses credibility with minorities with every day that Senator Lott remains its Senate Majority Leader.
States' rights as cover for racism
-- how conservatives and others used 'legitimate' Constitutional arguments to mask their real intentions.

In defense of Trent Lott and his support for Strom Thurmond and Bob Jones University, many have argued that Mr. Lott was simply advocating for "states' rights", or that he was simply fighting for the 1st Amendment. On one level, that is true. But those were simply the legal arguments used to fight against integration and social progress by Southerners in the courts and Congress. To truly appreciate the depths of Mr. Lott's racism, we need to understand the nature of this "states' rights" argument and how it relates directly to the perpetuation of segregation in the South.

In his third volume on Lyndon Johnson, biographer Robert Caro writes extensively on Sen. Richard Russell, who before LBJ was the greatest Senator to ever walk the halls of Congress. He served as a legendary legislative advocate for the South, largely because of his ability to fight against civil-rights bills and progressive policies. (His successful stands against these acts helped to cement Southern legislators into a solid political block) More often than not, Sen. Russell fought these bills on the "moral high ground", as he put it. Rather than simply stand up for racism, Sen. Russell and his minions stood for principles like states' rights -- in the theory that the federal government shouldn't make social policy, and that should be left to the states. In reality, this was just a smokescreen. States rights on the national level meant that national norms -- like racial equality -- would not be enforced in the South. States rights meant that Southern whites could continue to perpetuate segregation in their states, without interference from the Justice Department or federal courts. States rights meant that certain parts of the Constitution, such as the 14th Amendment's equal-protection clause, would be read to give deference to states who developed their own meanings behind equal. In short, states rights meant that "separate but equal" was still okay, and that Brown v. Board of Education was a mistake.

Polite speakers (then and now) never spoke in the open about their support for segregation; they always cloaked their true feelings in discourse about "states rights" or "freedom of association". The protection of states' right to discriminate and segregate was always the real issue. But it was never framed that way in public discourse, because doing so would alienate the rest of the country. Framing the issue as an arcane debate over Federalism vs. states rights made the issue less visceral for most Americans; it removed it from the front pages and put it on the legal pages. It also helped the Democratic party at the time, which included Southern bigots like Richard Russell and northern liberals like Hubert Humphrey, to get along.

So today, when Trent Lott tries to defend his views as supportive of "states' rights" -- don't believe him. He's really talking about states' ability to perpetuate racial subordination and segregation. When he talks about Bob Jones University and their 1st Amendment rights -- don't let his arguments persuade you. He's really talking about a religious institution's right to ban interracial dating and other social norms it disagrees with. Seeing through Mr. Lott's discourse is imperative for understanding the depths of his racism, and the reasons why he is no longer fit to serve as Majority Leader in the United States Senate.

Wednesday, December 11, 2002

I highly recommend a look at Chris Baker's blog today for a discussion of why the U.S. remains reluctant to disclose its knowledge of Iraq's WMD programs. Here's an excerpt:

In contrast to the Sept. 11 scene...the Administration has adamantly contended that with respect to Iraq's WMD, it "has the goods." This brings me to my second point: if we have the goods, why don't we tell everyone else to shore up our position and strengthen international resolve to go after Iraq? The simple answer is this: if the U.S. reveals the details of why it knows Iraq is lying, the people that are responsible for compiling the intelligence about Saddam's WMD program start dying. Suppose we reveal that we know scientists at Iraq's missile complex in Wazireyah were in the process of designing a new germ agent that looked and tasted like pepperoni (silly, yes...but hang with me). Disclosing this level of detailed information would lead Iraq to ask "how does the U.S. know that?!", and almost certainly, Iraq would be able to "connect the dots" and discover a "source", or uncover a "method". If the source is traced to the defection of a scientist or engineer who is outside of Iraq's reach, Saddam's bad guys hunt down the source's family. If the source is unlucky enough to still be living in Iraq, Saddam's bad guys first hang the source by his neck in the town square, and then they hunt down his family.

Headline: U.S. set to use mines in Iraq

WASHINGTON — The Pentagon is preparing to use anti-personnel land mines in a war with Iraq, despite U.S. policy that calls for the military to stop using the mines everywhere in the world except Korea by 2003.

USA Today led with a story today stating the obvious -- that the U.S. would use its air-delivered, ground-delivered, and artillery-delivered land mines in a war with Iraq. These devices make up an important part of the U.S. arsenal, especially in the wide-open desert, because of their ability to shape terrain and restrict certain avenues of approach to the enemy.

So why the fuss? Two reasons. First, there's a crowd of people that get upset over any weapons system, no matter how traditional international law regards it. These people get upset over the use of bayonets, rifles, tank ammunition, smart bombs -- even tear gas used for riot control. Second, land mines can cause collateral damage for decades after a conflict. The dumb land mines used by many armies remain armed indefinitely, and they are often not marked or fenced off. Thousands of civilians in places like Vietnam and Bosnia are grievously wounded by these leftover devices.

However, there's one big glaring hole in the USA TODAY story that any recent vet can easily spot. Today, the U.S. almost exclusively uses "smart mines" -- not dumb land mines. These mines are usually set to detonate 4 to 48 hours after emplacement, and they are precisely targeted and marked on maps so as not to pose an obstacle to friendly forces. They do not remain in the soil for decades after the conflict -- they are usually blown in place immediately so they don't pose a threat to U.S. rear area troops. The dumbest land mine the U.S. uses today is the M18A1 "Claymore" mine, a command-detonated device made famous by movies like Platoon. (Yes, it's Vietnam vintage) But these are still not the kind of dumb mines that sit waiting in the ground for someone to go by. And because of their danger to friendly troops, they're not left armed after the battle's over.

(The U.S. does employ air-delivered and artillery-delivered submunitions, also known as `cluster bombs.' These small bomblets can stay armed in the ground long after use, just as a dud bomb can. However, those munitions are neither covered by the Land Mine Treaty nor the Clinton Administration's pledge.)

Consequently, this story is much adieu about nothing. The move to minimize civilian suffering during/after war is a noble one, and I support it. But this article tells the story inaccurately; the U.S. has already done more than most nations to control the risks of using land mines. Indeed, the U.S. military does more than any military organization in history to comply with the international law of war -- going so far as to assign lawyers to brigade-sized troop formations in order to advise field commanders on the law of war.

Tuesday, December 10, 2002

What is OPSEC?
Operational security -- it's something that most journalists ought to learn something about.

In general, I believe the American people have a right to know about their military, and their sons and daughters who currently serve in harm's way. In general, I believe the American press does a good job of reporting on military issues, especially some of the more experienced military reporters (e.g. Tom Ricks of the Washington Post and Greg Jaffe of the Wall Street Journal). Unfortunately, recent stories have shown that a staggering number of media outlets care more about making news than safeguarding information that could put American lives in danger. In short, they care more about headlines than OPSEC.

I honestly believe that the Pentagon would give the media more access if it trusted the media not to print obscenely detailed information about troop movements, locations, disposition, etc. Unfortunately, today's media doesn't seem to want to play that game, as evidenced by numerous leaks of war plans in the New York Times and Washington Times, and the story below from the Christian Science Monitor. This ran as part of James Taranto's 'Best of the Web' column on Wall Street Journal online. It starts with a joke from the Gulf War, and then a real excerpt from a today's news.

Finally, an Answer
From "Gulf War Briefing," a "Saturday Night Live" sketch that aired Feb. 9, 1991:

Reporter #8 (Adam Sandler): Yes, Farud Hashami, Baghdad Times. Where are your troops, and can I go there and count them?

Lt. Col. William Pierson: Nope! Last question.

From the Christian Science Monitor, Dec. 10, 2002:

There are approximately:

- 12,000 Army troops in Kuwait, which are protected by two Patriot missile batteries;
- 3,300 Army troops at Al Udeid Air Base in Qatar, including an armored brigade. Some 1,000 additional forces arrived over the weekend for the test of Internal Look, the newly deployed portable command-and-control center;
- 500 Air Force troops and the 380th Air Expeditionary Wing at Al Dhafra Air Base in the United Arab Emirates;
- 800 Marines in Djibouti, plus a CIA control center for the Predator drones;
- 3,800 Air Force troops and 60 aircraft at Incirlik Air Base in eastern Turkey;
- 2,000 Air Force troops and 224 aircraft at Al Seeb Air Base in Oman;
- 4,200 mainly naval troops at the 5th Fleet headquarters in Bahrain;
- The 50th Expeditionary Wing and two naval squadrons on Diego Garcia, an island in the Indian Ocean. It is also now able to accommodate as many as six B-2 stealth bombers;
- 10,000 mainly Air Force troops at Prince Sultain Air Base in Saudi Arabia, which is protected by two Patriot missile batteries;
- The USS Abraham Lincoln carrier battle group, which includes nine ships with 5,963 personnel and 70 aircraft, is deployed in the Persian Gulf region; the USS Washington carrier battle group, which includes 13 ships with 6,250 personnel and about 75 aircraft, is deployed in the Mediterranean; the aircraft carrier USS Constellation, with 50 warplanes, is on its way to the region; and the USS Harry S. Truman, which includes 10 ships and 8,000 personnel, as well as 80 aircraft including EA-6B electronic warfare jets, left Norfolk, Va., at the end of last week and is steaming toward the region.

It's possible that the editor had some noble idea that he/she was contributing to an informed American population, and that such information might inform the public debate over a future war in Iraq. But that goal has to be weighed against the potential harm this information could cause. This kind of detailed information is exactly the kind of targeting information I'd want to know as a terrorist, and exactly the kind of strategic intelligence I'd want as an Iraqi. With war looming, it's time for the media to be more responsible about the detail of information they report, lest they put America lives at risk.

I wrote a commentary for the Los Angeles Times in February 2002 about the need to fund basic things for our foot soldiers in the field -- bullets, batteries, boots, CamelBaks, etc. David Wood of the Newhouse News Service had a piece on Friday making a number of these same points, in light of the recently-signed FY2003 National Defense Authorization Act -- the largest in U.S. history. Here's an excerpt:

FORT BENNING, Ga. -- U.S. military technology, accelerating American dominance over allies and rivals at a dizzying pace, is driving enemy forces to scatter and hide where they are vulnerable only to that most humble and low-tech weapon -- the infantry grunt.

The lessons emerging from the global war on terrorism suggest the Pentagon will come to depend heavily on infantry to track down and root out terrorists and guerrillas, to assault Saddam Hussein's last defenders in their hide-holes, to provide security and stability in postwar nations like Afghanistan, and to offer a reassuring American presence in volatile regions from the Korean peninsula to southern Europe and Africa.

Yet the infantry, whose troops have streamed forth from this training base for generations, is undermanned, cash-poor and ill-equipped, senior officers acknowledge.

From the dusty, sunburned veterans of firefights with al-Qaida in Afghanistan to the parka-swathed GIs on guard along Korea's frozen DMZ, infantrymen already have borne a heroically heavy burden. In combat, they suffer disproportionately heavy casualties.

But there's barely a dribble for the infantry in the new $392 billion defense spending bill.

"We have chosen to do other things," says the Army's chief of infantry, Maj. Gen. Paul D. Eaton, with a touch of ironic sourness.
For instance, just the overrun this year on the Air Force's new F-22 fighter program, $690 million, is enough to outfit about 87,000 infantrymen with brand-new stuff including boots, desert camouflage fatigues, helmets, flak vests, weapons, ammo, night vision goggles, chem-bio protective suits and a day's worth of MRE rations.

While the Air Force is paying $204 million (not including overrun) for each new F-22, GIs in Afghanistan are forced to buy their own gloves, cushioned socks, cargo belts, flashlights, padded rucksack straps and CamelBak hydration systems, Army investigators found.

Garmin satellite position-finders, preferred over the scarce, military-issue Pluggers, are popular gifts for soldiers in the field; they're $99 at Wal-Mart.

Bottom line: we owe it to our men and women in the field to give them everything they need for success. Making them buy their own high-quality boots, lightweight GPS receivers, and CamelBaks is unacceptable. These men and women volunteered to go into harm's way to protect our way of life, and we owe them the equipment to do the job.

The New York Times front page included a story this morning on `domestic spying' and its implications. It's an excellent story, and I recommend reading it for some concrete examples of how the U.S. government is implementing the enhanced surveillance provisions of the USA PATRIOT Act and other anti-terrorism legislation.

There is a maxim in military operations that "intelligence drives operations." This must be true in anti-terrorism operations as well. Information, the raw material, and intelligence, the product of analysis, must drive everything the government does in the war on terrorism. The reason is quite simple. America does not have the resources to chase every lead out there, nor do we have the ability to withstand more attacks in order to determine which leads are accurate and which ones are not. On the battlefield, a commander faces the same calculus, but can usually afford some losses in order to determine the enemy's strategy. Anti-terrorism is different. Not only do we not have the law enforcement resources to chase every lead - we cannot afford even a single civilian casualty in this war.

Intelligence is critical because it informs the decisions which are made about where to allocate scarce anti-terrorism resources. Intelligence about the enemy tells us when to beef up airport security; when to put National Guardsmen on bridges - and when to stop those patrols and move TSA personnel to airport perimeters to look for terrorists with surface-to-air missiles. The threat we face today is dynamic and innovative. Intelligence is the only thing which will enable us to stay ahead of this threat, and develop counter-measures before our enemy can act.

How best to gather this information? Our enemies (Al Qaeda and others) have tried to use our infrastructure against us. We must use our infrastructure against them. We must use our tremendously well-networked infrastructure against their agents who might attack us on our soil; we must use this infrastructure to identify, interdict, and stop them before they can act. We must do so in the most effective way possible.

The types of electronic information gathering and `data mining' are the least intrusive means available for this purpose. It would be far more intrusive to have heavily armed FBI agents storm every potential terrorist's home, especially when the majority of these leads turn out to be fruitless. Instead, our government has chosen a less intrusive path. The Justice Department's rules allow it to gather information about large groups of people to look for indicators of terrorist activity. Once it sees indicators, it gathers more information, in order to confirm or deny whether the targeted person is a terrorist or not. If the government can confirm the person's terrorist activity, it acts. But if not, there has been no harm done - no sullying of public reputation, no physical invasion, no serious invasion of privacy.

We face an unfortunate situation today where our enemies may attack us from within. They may appear as U.S. citizens, permanent resident aliens, temporary immigrants, student immigrants, or undocumented immigrants. Information is the only thing which can discern our friends from our enemies, and the nature of the threat requires that we gather this information about ourselves in order to find this threat and stop it.

Monday, December 9, 2002

This week's US News and World Report leads with an article on the American military-justice system. This article startled me with its inaccurate statements of fact and law, and its taking of quotes out of context. I went through the piece and summarized the most egregious errors in the analysis below. I'm not naïve enough to think that US News will print a correction. However, I hope to my critique helps illuminate the truth about the military justice system. This system, though different from the civilian criminal system, is not as Draconian as US News would have its readers believe.

Quote: "At a moment when many of the 2.7 million men and women who serve in the active-duty armed forces, Reserves, and National Guard units may be called to put their lives on the line, it is an issue of particular urgency. Why is it, critics ask, that these men and women are governed by a system of justice that provides a standard of fairness inferior to that guaranteed to even the most hardened criminals who appear each day in America's civilian courts?"
Analysis: The line "standard of fairness" is inaccurate. In many respects, the military-justice is significantly more fair than the federal or state criminal systems. First, the caliber of defense attorney is far superior in the military system. JAG officers in the Trial Defense Service are better trained, better resourced, and have more access to prosecutorial evidence than even the federal public defenders. Moreover, the Military Rules of Evidence are as fair as the Federal Rules of Evidence, since they are 95% the same rules. (FRE rules become military rules by default unless the President or Congress specifically says no to a new federal rule being incorporated as a military rule.)

Quote: "The question is not without foundation. A six-month investigation by U.S. News has documented a flawed crim- inal justice system in which injustices can easily occur. Though the cases almost never make headlines, every day across this land, and at American installations abroad, the Pentagon's legal bureaucracy gears up and tries a soldier, sailor, marine, or aviator by court-martial. Many are guilty as charged. Almost all are first-time offenders. Overwhelmingly, the accused are enlisted men and women-not general staff or flag officers. The odds, overwhelmingly, are that the accused will be convicted."
1. "Many are guilty as charged." Really? 96% of defendants charged in the civilian system are guilty too, so it should come as no surprise that a similar proportion get convicted in military court.
2. "Almost all are first-time offenders." Really? Maybe that's because the military discharges almost all felons at the end of their sentence, thus precluding any second-time offenders. Funny how the article fails to mention that.
3. "... the accused are enlisted." The odds are the enlisted will be prosecuted/convicted because they make up the majority of the service. And just as college-educated professionals don't make up the majority of civilian felons, the same is true in the military. Officers don't commit the majority of crimes. But when officers do commit minor crimes, like DUI, they're more likely to be hammered than EMs for the same offense.

Quote: "The law that governs the proceedings in the nation's military courts is the Uniform Code of Military Justice. Congress created the code 52 years ago to eliminate widespread injustices that occurred in court-martial proceedings through- out the nation's armed services in World War II. Lawmakers have not thoroughly reviewed the system in more than 30 years and seem in no mood to do so anytime soon. As a result, critics say, the code has failed to embrace key procedural safeguards available in civilian courts and to keep pace with the military justice systems of some U.S. allies, including Britain. "There is a shocking lack of interest on Capitol Hill,'' says Eugene Fidell, a Washington attorney and expert in military law. Kevin Barry, a retired Coast Guard captain and former chief military judge, is more pointed. "The code badly needs a face-lift,'' he says. "It either should be reformed, or it should be abolished.''"
1. Regarding "key procedural safeguards," the military has embraced more of them thatnthe federal criminal system or states have. In many situations, the military has embraced these first. Case in point: Miranda warnings. The Supreme Court took the Miranda doctrine from Art. 31 of the UCMJ. Case in point: unlawful command influence. The military system forbids this, and appellate courts often reverse cases for it. The rule works a lot better in the military system than the 'ex parte contacts' rule in the civilian courts. Case in point: Art. 32 hearings. Unlike a civilian grand-jury proceeding, the accused gets to present evidence and make a case before the military equivalent of a grand jury, the Art. 32 hearing.
2. Congress created the code 52 years ago to fix the kind of subjective military justice this article seems to ask for. Commanders played even more of a role in courts martial during WWII, and justice was often swift and not quite fair. 2 million courts martial were conducted during WWII (in a population of roughly 16 million servicemen). The Draconian nature of that old system led a lot of former draftees to lobby Congress after WWII for a better system. They came up with the UCMJ. Today's military-justice system is regarded by practitioners as more fair than many states' criminal-justice system. Maybe US News should report that.

Quote: "Commanding officers, known as convening authorities, wield far more power than any prosecutor in any of America's civilian courts. They decide whether to prosecute a service member. They handpick jury members. They decide whether to approve, disapprove, or amend guilty verdicts and sentences issued by juries and military judges. Critics say the power to pick jurors is the Achilles heel of the system, likening it to allowing a prosecutor alone to pick the jury in a civilian case. Military appeals courts have criticized commanders for "unlawful command influence,'' or manipulating the process to convict an accused member. Despite those warnings, legal experts say, military lawyers have prosecuted only one command-influence case-and that was nearly 50 years ago."
Analysis: This is a fair criticism. Unlawful command influence is the biggest problem in the military justice system. And the power to pick jurors is probably one that ought to reside with military judges, not commanders. But remember: this is a system designed for wartime, not designed for peacetime. In either situation, you have a finite amount of prospective jurors available to a command. Military commanders don't have the luxury of voir dire where attorneys can interrogate each other and dismiss them for cause. Other goals, namely winning America's wars, have to come first. Personally, I'm comfortable with the military jury system, because studies have shown that these officers and senior NCOs actually pay more attention in court and apply the rules better than their undereducated and underemployed civilian counterparts (see, e.g., the OJ Simpson case).

Quote: "All the armed services have a real, if unwritten, double standard for criminal prosecutions. Military prosecutors can throw the book at enlisted men and women, but the services tread lightly when it comes to generals and admirals. Some have been disciplined and forced to retire, but the military has court-martialed only three general officers-two Army generals and an admiral-in the past 50 years. Says Glenn MacDonald, a retired Army major who runs a Web site,"We call it 'different spanks for different ranks.' ""
Analysis: This is a real spin on the facts. The book almost always gets thrown at officers these days, especially for minor infractions like DUI, domestic violence or AWOL. Conversely, the book does not always get thrown at enlisted personnel. These situations are almost always resolved with Art. 15 non-judicial punishment for enlisted soldiers, especially junior ones. But officers and senior NCOs always get the book tossed at them. True: officers and senior NCOs sometimes get to "Resign In Lieu Of" (RILO) court martial. But that's akin to the plea bargains given out in civilian court all the time, and it's a fair consideration for some senior officer or senior NCO with lots of service and one minor infraction.

Quote: "On paper, the Pentagon's criminal justice system is an impressive one. There are prosecutors, defense lawyers, and rules of evidence. In addition to appellate review courts for each service, there is a supreme court of sorts-a five-member civilian panel, the U.S. Court of Appeals for the Armed Forces."
Analysis: Here, the article just gets it wrong. The military-justice system actually has an additional level of review when compared to the civilian system. In the civilian system, you get the trial court (U.S. District Court), intermediate court of appeals (e.g. 9th Circuit), and then the Supreme Court - but only when they take the case. In the military, you get the trial court martial, then an intermediate court of review, then you get the U.S. Court of Appeals for the Armed Forces - equivalent to a 9th Circuit. On top of that, you still get the right of petition to the U.S. Supreme Court. The CAAF is not a "supreme court of sorts" - it is an appellate court that sits just below the Supreme Court. (However, it is an Art. II court, not an Art. III court, and this creates interesting separation-of-powers issues) This is a glaring error in the article, and it belies a lack of research or consultation with JAG officers and civilian lawyers who know how the federal judiciary is organized.

Quote: "Some commanders and their aides go too far, however, and unlawful command influence-what the appellate courts have called the "mortal enemy of military justice''-remains a touchy subject in the military legal hierarchy. In an October 2001 memo to subordinates at Fort Hood, Texas, Army Maj. Gen. Raymond Odierno laid it on the line: "Unlawful command influence continues to be an insidious problem in our military justice system and is of grave concern to me.''"
Analysis: Unbelievable. This quote from MG Odierno was taken completely out of context. First, this quote is from his command-policy memo on military justice, which FORBADE any unlawful command influence in the command. Second, that memo was not written in response to any incident or the climate under the previous 4ID Commanding General(now-LTG Ben Griffin) -- it was done as a pro forma matter. In fact, I served in that division headquarters in the Provost Marshal's shop, close to the military justice system. There were no unlawful command influence problems in that division headquarters. If ever there was a place with a strong SJA and no unlawful influence, it was the 4th Infantry division under then-MG Griffin.

Quote: "More often than not, investigations and prosecutions have little to do with military operations. The military still prosecutes personnel for conduct unbecoming an officer and a gentleman, for going absent without leave, for violating orders, and for disrespecting superiors. But it also prosecutes personnel for adultery and sodomy and for crimes like rape, child molestation, larceny, robbery, assault, burglary, and murder. Given service members' dependence on one another in the military, drug use is a one-way ticket to a dishonorable discharge, the brig, or the military's only long-term prison, the U.S. Disciplinary Barracks in Leavenworth, Kan."
Analysis: Really? Crimes like rape, child molestation, robbery, and murder have no effect on military operations? No effect on the bedrock of discipline that's so necessary to effective military organizations? This paragraph illustrates just how poorly the author understands the phrase "prejudicial to good order and discipline" which exists as an element in every UCMJ offense.

Bottom line: this is a poorly-researched and fact-checked article that should have been heavily edited before publication. It mischaracterizes the military justice in many places, and flatly misstates the facts and law in others. The old proverb that "military justice is to justice as military music is to music" may be true. But that's not to say the system is unjust -- just that it is different.