Thursday, December 25, 2008

This Is Your Life. Quest For Justice.

A Virginia federal judge pens his autobiography.

When judges write their autobiographies, it is normally long after they have left the bench, when the hot cases of their careers have cooled and the audience is confined mainly to legal scholars.

But Henry E. Hudson is no normal judge.

Hudson, an Arlington County native and former Fairfax County Circuit Court judge, now a federal judge in Richmond, has published his autobiography, "Quest for Justice," while his judicial career probably has many miles to go. He wrote it shortly before he was assigned to the dogfighting case of National Football League quarterback Michael Vick, which brought him a new round in the media spotlight. So that will be a chapter in his next book.

"Quest for Justice" is a candid, frequently witty and self-deprecating look at a career that has stopped at virtually every rung on the justice ladder, including stints as a barely trained jail guard in Arlington, U.S. attorney in Alexandria and head of the U.S. Marshals Service.

He had roles in such high-profile cases as the deadly 1992 siege by federal marshals and the FBI at Ruby Ridge, Idaho, and the 1980s drug investigation of then-Sen. Charles S. Robb and pornography investigation by the Meese Commission.

He admits to missteps - "During my early years as a prosecutor I was narrow-minded and at times offensively self-righteous," he writes - and misdeeds - "I lied to the General Assembly and the Fairfax County Bar Association when I told them unequivocally that I had no intention of seeking a federal judgeship," the former Fairfax judge writes. "Perhaps lied is too strong a term."

But he stands by some of his most controversial decisions, including the prosecution of a mentally retarded man in Arlington for the rape and murder of a woman in 1984. The man, David Vasquez, served five years in prison before DNA and circumstantial evidence exonerated him.

"I certainly wish him the best, and regret what happened," Hudson writes. "However I offer no apologies." Hudson says that eyewitnesses placed Vasquez near the victim's home and that Vasquez made incriminating statements. "My duty at that point was to present the case to twelve jurors," Hudson writes. Vasquez agreed to an Alford plea, which allows defendants to maintain their innocence while recognizing that evidence would probably result in a guilty verdict.

But the book has far more ups than downs and shows how hard work and hard-earned political connections - he downplays his charm, gregariousness and made-for-TV speaking voice - helped him rise to the top of federal law enforcement.

"I have been blessed with so many exciting experiences," Hudson said in a recent interview. "I not only wanted to share those, but I wanted to inspire other young lawyers to a path of public service."

William B. Cummings, who preceded Hudson as U.S. attorney in Alexandria, said: "It's just a remarkable story. It's kind of folksy at times. But it's something the average person could read and understand how he made it to where he is today, a well-respected judge, first in Fairfax and now on the federal bench."

Hudson said he first tried writing a novel but couldn't get it published. Then he spent about a year "hacking away on a word processor," reviewing his career, he said, with the help of boxes of newspaper clippings he'd kept since his days as an assistant prosecutor in Arlington.

But when he showed his first draft to his wife and friends, starting with his days as a volunteer firefighter, they hated it, Hudson said. So the book now opens with the Vasquez case and his tour of the grisly murder scene of Carolyn Jean Hamm. Then he jumps back to his early days as a jail guard in Arlington and proceeds through his career.

"Folksy" is a good way to describe the judge's writing style, which combines earthy humor with a top-to-bottom grasp of the legal system.

Hudson got a job as a clerk in the Arlington courthouse and began attending night law school. Upon passing the bar, he became an assistant commonwealth's attorney, working his way up from traffic court to gradually handling larger cases, including drug conspiracies and murders.

Hudson's boss was William S. Burroughs, the colorful and controversial Arlington commonwealth's attorney. Police began to mistrust Burroughs and contact his young assistant. Burroughs "repeatedly warned me to tell the police to contact him," Hudson writes. "I disregarded his directions and occasionally stoked the discontent. Call me disloyal if you must, but I enjoyed calling the shots."

He moved over to the U.S. attorney's office as an assistant prosecutor, then decided to run against Burroughs for commonwealth's attorney. Hudson writes that he possibly violated federal law by campaigning on the job.

Hudson won big, and as one of the few successful Republicans in heavily Democratic Arlington, he began making friends in the Republican Party, such as Rep. Frank R. Wolf (R-Va.), whose early campaigns Hudson worked for.

Friends helped him land appointments, including to the Meese Commission on pornography, which he headed, attracting national attention as the commission held hearings and published a controversial report.

"The jobs I've had have been with a little help from my friends," Hudson said. "And that's the way it is in politics. I went out of my way to go over to Capitol Hill, meet with Congress. It really paid dividends. They treated me extremely well."

He landed the U.S. attorney job in Alexandria, overseeing such high-profile cases as the John Anthony Walker Jr. spy ring trials and the fraud prosecution of Lyndon LaRouche, and becoming involved in the debate over the heavy penalties imposed on crack cocaine dealers in the war on drugs.

Hudson supports the tough sentencing, even as critics note that crack cocaine crimes are penalized 10 times more harshly than those involving powder cocaine and that crack cases are more prevalent among African American defendants.

"The drugs are not the same," Hudson writes. "One is highly addictive and the other is not. It gives me pain that many of my distinguished judicial colleagues and other purported legal scholars don't grasp the devastation caused by crack cocaine."

But when federal authorities began investigating Robb for possible cocaine use, it turned into a "political powder keg" that ended Hudson's term as U.S. attorney, he writes. Hudson says that Robb thought leaks to the press were coming from Hudson or his people, and the senator blocked his reappointment in 1991.

And when Hudson sought the job as U.S. marshal, "Robb's appetite for revenge was not satisfied." Hudson writes that Robb blocked Hudson's confirmation hearing, but didn't do so publicly to avoid "the embarrassment of exposing his petty and boorish vindictiveness to his dwindling constituency."

Hudson eventually got the hearing, and the job. He became involved with TV shows such as "America's Most Wanted" and the drama "The Marshal."

More big cases, such as the shootout at Ruby Ridge, occupied his time. But when a Democrat took over the White House in 1993, he was out of a job again.

Hudson parlayed his contacts in the media into regular talk show appearances as a legal expert on the Fox News Channel, CNN, MSNBC, CBS and Court TV. He returned to private practice for several years before landing a spot on the Fairfax bench in 1998.

Hudson said his line in the book about lying about his intentions to the Fairfax bar was a joke, and he knew that as long as Robb was in the Senate, he had no chance of a federal judgeship. But Robb was defeated in 2000, and a new spot on the Virginia federal bench was created in 2001. Hudson was nominated and confirmed in 2002.

Hudson does not discuss any cases he handled during his four years in Fairfax, although he does pass along the advice that then-Circuit Court Chief Judge F. Bruce Bach gave him his first day on the job. "Success on the bench requires only two things," Bach told the rookie judge. "Gray hair to make you look distinguished, and hemorrhoids to make you look serious."
"Quest for Justice" was published by Loft Press of Fort Valley, Va., and is available at .

© 2008 The Associated Press.

Friday, December 19, 2008

Court OKs use of FACEBOOK to Serve Lien.

Court OKs use of Facebook Social Networking web site for serving legal documents.

The repo man wants to "poke" you on Facebook. The bill collector is writing on your wall. What are you doing right now?

After a court in Australia ruled a mortgage lender can use Facebook to break the news to a couple that they have lost their home, the global social networking Web sites are threatened with turning a little more anti-social.

Some people are concerned that such court-approved contact with their social networks such as Facebook and MySpace could amount to a violation of privacy.

"I don't think people sign up to Facebook thinking it's going to be another avenue by which a government agency or indeed a debt collector can contact them," said Colin Jacobs, vice chairman of the technology advocacy group Electronic Frontiers Australia.

"If we expect that we'll only be contacted on an official basis through the phone or post or through a visitor, and now it's coming through a more personal social networking conduit, then I don't think many people will be happy with that," he added.

Facebook has become a wildly popular online hangout, attracting more than 140 million users worldwide since it began in 2004. Users can "poke" their friends - an electronic tap on the shoulder. They also can affix messages or attachments on a friend's "wall" - an area on the Facebook page.

U.S. users don't have to worry about being served through the program yet. Legal rules list several acceptable delivery methods, but not surprisingly, Facebook isn't included, said Rory Ryan, a Baylor Law School associate professor who maintains a blog on such issues.

"There are some options for electronic service or judge-authorized alternatives, but I think it's safe to say that social-networking service will be rare for quite some time," Ryan said.

Lawyers say they cannot recall a precedent for the Dec. 12 ruling in Canberra's local Australian Capital Territory Supreme Court that allowed lender MKM Capital to use Facebook to serve legal documents after weeks of failed attempts to contact borrowers Gordon Poyser and Carmel Corbo at their Canberra home and by e-mail.

Facebook spokesman Barry Schnitt praised the ruling.

"We're pleased to see the Australian court validate Facebook as a reliable, secure and private medium for communication," he said.

"The ruling is also an interesting indication of the increasing role that Facebook is playing in people's lives," Schnitt added. The company said it believed this was the first time it has been used to serve a foreclosure notice.

Australian courts have given permission for people to be served via e-mail and text messages when it was not possible to serve them in person.

The lender's lawyer, Mark McCormack, said that by the time he got the documents approved by the court for transmission, Facebook profiles for the couple had disappeared. The page was apparently either closed or secured for privacy, following publicity about the court order.

"It's somewhat novel, however. We do see it as a valid method of bringing the matter to the attention of the defendant," McCormack said.

Despite the court approving the Internet contact on the basis of the lawyers' exhausted attempts to reach the couple, The Associated Press found Poyser, 62, on Tuesday at home at the contested address.

He declined to comment on the case, citing the couple's stress of losing their home of seven years. But he said he had privacy restrictions imposed on his Facebook page only because of the media attention.

"Because (otherwise) I'd get every man and his dog having a look," the retiree told the AP at his front door.

Despite the setback, McCormack said the Facebook attempt would help his client's case that all reasonable steps had been taken to serve the couple. A court is expected to settle the matter as early as next week.

Sydney University of Technology law professor Michael Fraser said the court intrusion into a social Web site was inevitable and unprecedented.

"It does change the rules of the game because people thought of these as social sites; now they can be used to serve official court documents and it may change the way people establish a presence on the social networks and the way they use them," Fraser said.

The case shows "that Facebook is not a toy," said Josh Bernoff, author of "Groundswell," a best-seller on social media. "You have to look at this and recognize ... it's a communications channel used for everything."

Amanda Lenhart, a senior research specialist at the Pew Internet Project, said the Australian case went beyond the generally accepted bounds of Facebook use. "There's a question of whether the users of Facebook envision it being used in this way."

She said a social network site is a well-accepted means of communication typically used by a network or circle of friends, not for commercial transactions.

Facebook itself has introduced touches that have made the site more than just the online equivalent of hanging out in a room with a group of buddies.

In 2006, the company angered many users by adding "news feeds" that automatically broadcast certain personal details. After Facebook began offering ways for users to control the feeds, the feature became far more popular. Last year, though, Facebook endured another revolt over "Beacon," which shared details about what its users were doing on other Web sites. Facebook responded to that outcry by introducing controls that let users change Beacon.

(Associated Press)
Facebook To Critics: Get Out Of Our Face
Feb. 17, 2009 Whose life is it anyway, yours or Facebook's? That's the question users are asking after critics charged that personal information is not only kept by the social networking site, but that it basically owns any information that is posted, can do whatever it wants with it and doesn't need your OK.
The brouhaha started when the popular site quietly changed its terms of service (TOS) Feb. 4.

Under the license section of the TOS, Facebook said that by agreeing to the terms, users "grant Facebook an irrevocable, perpetual, nonexclusive, transferable, worldwide license to use, copy, publish, stream, store, retain and distribute any user content you post."

That means that your unsavory escapades—in writing or photos—potentially could be used to sell the service and, moreover, Facebook doesn't need to tell you or get your permission.

According to the license, Facebook can "use your name, likeness and image for any purpose, including commercial or advertising. Facebook will be entitled to the unrestricted use of any such submission for any purpose, commercial or otherwise, without acknowledgment or compensation to you."

Adding insult to injury, the site did not notify users of TOS changes and, in fact, said it doesn't have to.

"We reserve the right, at our sole discretion, to change or delete portions of these terms at any time without further notice. Your continued use of the Facebook service after any such changes constitutes your acceptance of the new terms."

All of which leads to the obvious question: If users aren't alerted to TOS changes, how would they know what they're agreeing to? Check the TOS every time they use the site?

Most Facebook users only found out about the TOS revisions after a Consumers Union blog, The Consumerist, posted an outraged commentary on Sunday. The remarks were subsequently picked up by the media.

The resulting ire prompted Facebook CEO Mark Zuckerberg to go on the defensive the following day. However, while his message said we "wouldn't share your information in a way you wouldn't want," he didn't say that the TOS would be changed. "Our philosophy is that people own their information and control who they share it with," wrote Zuckerberg. "When a person shares information on Facebook, they first need to grant Facebook a license to use that information so that we can show it to the other people without this license we couldn't help people share that information."

Zuckerberg also acknowledged that ownership of content on social networking sites is a very murky area and seemed to say, in essence: Don't follow us, we're lost, too.

"We're at an interesting point in the development of the open online world where these issues are being worked out," he wrote. "It's difficult terrain to navigate and we're going to make some missteps."

Tuesday, December 16, 2008

Who Abandoned The Moral High Ground?

Regaining The Moral High Ground For United States.

Charity, that is to say, LOVE, begins at home and spreads abroad. Mr. Sulmasy would do well to start at home before he tries to export his recipe for regaining the moral high ground. If a man cannot be trusted to manage his own home, how can he be trusted to manage someone elses? If an organization does not live up to its own ideals, how can it tell someone else how to live up to theirs?
Would you take real estate advice from a homeless man? Would you take financial advice from a man on skid row? The Coast Guard Academy legal factory is morally bankrupt.

And I will tell you something else. Barack Obama knows Webster Smith. His lawyers are personnally acquainted with the President-elect. So, you can very well assume that President-elect Obama is well aware of what happened to the first cadet in Coast Guard history to be court-martialed. Moreover, it is highly probable that someone on his staff has read the analysis in this blog.

The Coast Guard Academy has an albatross around its neck. The Coast Guard Academy and its legal staff abandoned the moral high ground when it railroaded Cadet Webster Smith. The errors and the shortcomings of the Webster Smith court-martial have been highlighted and chronicled in this blog from the beginning. Some were even forecasted before they occurred. Yet, the Coast Guard Academy went right on ahead and commited moral seppuku. I said it then and I say it now. Until the Coast Guard atones for the sins she has committed against Webster Smith, the moral albatross will not leave its neck. It is a curse. The shedding of innocent blood can never be justified, and its stain can never be washed away.

To take the moral high ground on the Webster Smith case gives me no feelings of moral superiority. I simply refuse to sit idly by and let a few racist opportunists in the Coast Guard think that this repugnant act will not carry permanent negative consequences for the reputation of the Coast Guard.

When the news broke of a Black cadet being court-martialed, I was not afraid to follow where logic and common sense and and an impartial examination of the available facts would lead. Some of the major perpetrators have gone back into the woodwork; Admiral Van Sice accepted forced retirement in lieu of court-martial; Doug Wisniewski is sitting in San Francisco; and, Chief Judge Lane I. McClelland and the Coast Guard Appeals Court refused to avail themself and the Coast Guard of the last clear chance to remedy this injustice. However, this plantation policy of court-martialing a Black cadet because he thought he could get away with the same acts as the white cadets, is an insult to every officer of color in the corps. It will never be forgotten.

No one associated with the Coast Guard or the Coast Guard Academy should have he audacity to give advice to the President of the United States or to the President-elect until he has gone on record and stated his position with respect to the General Court-martial of Webster Smith. Mr Sulmasy should first publish his analysis of the trial and conviction of Webster Smith, then he will begin to have credibility in the area where he has asserted expertise.

All Coast Guard lawyers have blood on their hands. The blood of former cadet Webster Smith cries out for justice. Day in and day out his cries have not been heeded.

Moreover, if you knew as much about the interrogation techniques at Gitmo as I do, I think it would take some of the wind out of your sails. Some of those people are living better than they ever have before in their entire lives. Additionally, they are treated better than a sizeable portion of the United States population when it comes to medical treatment, dental treatment, nutritional health, reading material, freedom to worship, leisure time to excercise and recreate. They can do almost anything they want to do except leave the base, or perhaps, kill more Americans.

I was priviledged earlier this year to hear Lt.Col. (ret.) "GC", a high level consultant on International Terrorism, talk at the Los Angeles Adventurers Club. He took us into the daily life of our soldiers in Guantanamo Bay, Cuba. Besides talking about what our soldiers did as part of their daily routine and duty, he gave us the background, geography, climatology, and economy of the area. By the end of the Question and Answer Session we had a much keener understanding and appreciation of what life is like for our young soldiers there. Much has been said politically about "Gitmo", much of it wildly inaccurate. "GC" has toured Gitmo five times and so he has great first hand experience. We were honored and proud to have a man of his caliber clearup so many rumors and misinformation that is rampant in the news media today about Gitmo.

Webster Smith was held on sketchy evidence, gathered through an intelligence service, which often would not pass the evidence standards in federal criminal courts. He was held in isolated confinement, forced to work at hard labor for months before a charge sheet was drafted alleging any charges against him. He deserves fairness, speedy justice and closure.The Associated Press characterized the trial as follows: “What began as a trial against an accused sexual predator ended looking more like a series of murky encounters between college students, with consent often clouded by alcohol. But the case also offered a rare and often unflattering glimpse at cadet life.” (Moment of change' following Coast Guard Academy court-martial By MATT APUZZO Associated Press Writer, July 3, 2006)

The court-martial of Webster Smith was a defining moment in the history of the Coast Guard. It was one of those events that changed the Coast Guard forever, its history and the nature of the cadet corps. Nothing will ever be the same again. It was like the USA was on 12 September 2001, the day after 9/11. No amount of rationalizing or trying to put it into perspective can alter the tragic effects.

The racially motivated court-martial of Cadet Webster Smith will not be swept into the dustbin of history.

Monday, December 15, 2008
A Coast Guard Academy Professor's ideas for a Gitmo (Guantanamo Bay, Cuba) solution should be taken under consideration by President-elect Barack Hussein Obama.

Published by The Day newspaper's editorial staff on 12/14/2008.

Soon after he takes office next month, President-elect Barack Obama should start the process of closing the prison camp for suspected terrorists at the Guantanamo Bay military base in Cuba, issue an executive order outlawing the use of torture in the gathering of evidence and explore a new judicial approach to deal with the detainees.

Perhaps to Americans concerned about jobs, paying bills and shrinking retirement funds, how to deal with a group of foreign prisoners may not appear terribly important, but it is. Dealing with this complex and difficult situation is a matter of national security.

One of the key elements in reducing anti-American vehemence around the world is to maintain the moral high ground. By failing to be true to its ideals, the United States (Coast Guard Academy) has ceded that position. Holding captives for years without charge or trial, torturing some, locking them in secret prisons and not allowing prisoners to see the evidence against them are all morally wrong and violate this nation's fundamental tenet of rule of law.

With the election of Mr. Obama, the world is looking for a change, a signal that America will once again be true to its ideals. Such a change in direction would undermine the efforts of those who now ferment hatred by pointing to the gap between U.S. human rights rhetoric and its deeds.

Will solving the dilemma of what to do with these post-9/11 prisoners immediately generate good will among the Islamic fanatics that seek to destroy the United States? Of course not. But it will make it tougher for the zealots to find new recruits and to generate the support of the masses.

Solutions will not come easy. There are an estimated 250 prisoners now held at Guantanamo Bay. Many are held on sketchy evidence, gathered through intelligence services, which often would not pass the evidence standards in federal criminal courts.

In a commentary that appears on the front of today's Perspective section, Glenn Sulmasy, a member of the law faculty of the U.S. Coast Academy in New London, again presents his argument for a “national security court.” Mr. Sulmasy makes a strong case that a special judicial process is needed for a special prisoner. The modern global terrorist is not a traditional prisoner of war, because he fights for an ideology, not a country, and his conduct is not bound by the rules of war. Yet terrorists are not common criminals, but warriors, who operate on a global stage through surreptitious channels.

The hybrid court envisioned by Mr. Sulmasy would wisely move the handling of these special cases from the Department of Defense to the Department of Justice. Created by Congress, these national security courts would operate using rules of evidence designed for the special cases they handle and sensitive to the need to protect national security information. But if designed correctly, they would also guarantee fairness, speedy justice and assure closure for the prisoners.

Once in office, President-elect Obama should appoint a special commission to consider this new legal path for the Guantanamo prisoners, recommend alternatives for their imprisonment when Guantanamo closes and what to do with them if any are acquitted or released for lack of evidence.

One appointee we'd recommend is Mr. Sulmasy, who has studied the issue for several years and become a leader in academic circles in the debate on how to handle this thorny problem.

{© 2006 The United States Coast Guard Academy Alumni Association
47 Mohegan Avenue, New London, CT 06320-8111
Phone: 860.442.2683 | Email:}

(3/23/2009) Harold Hongju Koh, a national security law expert who is a well-known critic of the Bush administration's detention policies concerning suspected terrorists has been tapped by President Barack Obama to provide legal advice to the U.S. Department of State.

Harold Hongju Koh, who currently is dean of Yale Law School, will be nominated by the Obama administration as State Department legal advisor, reports the Caucus blog of the New York Times.

Koh has previously been mentioned as a possible nominee for any vacancy that may soon arise on the U.S. Supreme Court.

He apparently hasn't pulled any punches concerning his views on the previous administration's legal advice concerning the issues he is now himself expected to weigh in on: In June 2004, for instance, he described the U.S. Department of Justice memoranda on torture as “embarrassing” and “abominable,” the newspaper notes.

Harold Hongju Koh is a Korean-American native of Boston, he holds a B.A. degree from Harvard College and B.A. and M.A. degrees from Oxford University, where he was a Marshall Scholar. He earned his J.D. from Harvard Law School, where he was Developments Editor of the Harvard Law Review, and served as a law clerk for Justice Harry A. Blackmun of the United States Supreme Court and Judge Malcolm Richard Wilkey of the U.S. Court of Appeals for the D.C. Circuit.

M.A., Oxford, 1996
J.D., Harvard, 1980
B.A., Oxford, 1977 (Marshall Scholar)
A.B., Harvard, 1975

Sunday ,11 Jan 2009, marked the seventh anniversary of the first prisoners arriving at Guantanamo, which was set up after the Sept. 11, 2001, attacks, in order to house suspected terrorists without putting them under the auspices of the American judicial system.

President-elect Barack Obama reiterated his promise to close the facility, although he could not promise it would be done quickly. "It is more difficult than I think a lot of people realize - and we are going to get it done - but part of the challenge that you have is that you have a bunch of folks that have been detained, many of whom
may be very dangerous who have not been put on trial or have not gone through some adjudication," he said. "It is possible for us to keep the American people safe while still adhering to our core values and ideals, and that's what I intend to carry forward in my administration."

"I think it's going to take some time. And, you know, our legal teams are working in consultation with our national security apparatus, as we speak, to help design exactly what we need to do.

It is possible for us to keep the American people safe while still
adhering to our core values and ideals, and that's what I intend to
carry forward in my administration.

President-elect Barack Obama further said, "But I don't want to be ambiguous about
this. We are going to close Guantanamo and we are going to make sure
that the procedures we set up are ones that abide by our Constitution.
That is not only the right thing to do but it actually has to be part
of our broader national security strategy, because we will send a
message to the world that we are serious about our values."

Obama said that Cheney continues to defend what he calls "extraordinary measures or procedures" when it comes to interrogations.

"From my view, waterboarding is torture," Obama said. "I have said that under my administration we will not torture."

However, Obama did not promise that his Justice Department would pursue any Bush administration officials who participated in or approved torture.

"We're still evaluating how we're going to approach the whole issue of interrogations, detentions, and so forth," Obama said. "And obviously
we're going to be looking at past practices, and I don't believe that
anybody is above the law.

"On the other hand I also have a belief that we need to look forward
as opposed to looking backwards. And part of my job is to make sure
that, for example at the CIA, you've got extraordinarily talented
people who are working very hard to keep Americans safe. I don't want
them to suddenly feel like they've got to spend all their time looking
over their shoulders and lawyering [up]."

18 Feb 2009. WASHINGTON (Reuters) - A federal appeals court today overturned a ruling that 17 Chinese Muslims who have been held for years at the U.S. military prison at Guantanamo Bay in Cuba must be freed in the United States.

The appeals court ruled that a federal judge did not have the authority to order the U.S. government to bring the members of the Uighur ethic group to the United States for their release. It said only the executive branch, and not the courts, could make such immigration decisions.

20 Feb 2009. WASHINGTON. The Pentagon says the Guantanamo Bay prison meets the standard for humane treatment laid out in the Geneva Conventions, according to a report for President Barack Obama, who has ordered the terrorist detention center closed within a year.

The report recommended some changes, including an increase in group recreation for some of the camp's more dangerous or less compliant prisoners, according to a government official familiar with the study. The report also suggested allowing those prisoners to gather in groups of three or more, said the official, who spoke on condition of anonymity because the report has not officially been released.

Some of the hard-core prisoners are not currently allowed to meet with other prisoners for prayer or socialization and are kept in their cells for 23 hours a day. Alleged Sept. 11 mastermind Khalid Sheik Mohammed is among the prisoners who could be affected by the change. Prolonged social isolation has been known to harm mental health among prisoners.

The 85-page report by Adm. Patrick M. Walsh, the Navy's second in command, was written in response to Obama's Jan. 22 executive order to close the facility at the U.S. naval base in Cuba within a year.

Attorney General Eric Holder, meanwhile, named a top federal
prosecutor, Matthew Olsen, as executive director of Obama's Guantanamo Detainee Review Task Force, which will recommend where to send each detainee. Obama has ordered the task force to consider whether to transfer, release or prosecute the detainees, or figure out some other "lawful means for disposition" if none of those options is available.

As a presidential candidate, Obama criticized the detention center
that human rights groups and many in the international community
widely condemned for harsh treatment of prisoners during the Bush
administration. The military has defended its actions, saying
prisoners have been treated humanely since the center was set up after the Sept. 11, 2001, terrorist attacks.

The report found the camp to be in compliance with the Geneva
Conventions Common Article 3
, the international rules that require the
humane treatment of prisoners taken in unconventional armed conflicts,
like the war on terrorism. The camp's controversial force-feeding of
prisoners on hunger strikes was also found to be compliant with the
Geneva guidelines, a second government official confirmed.

About 800 prisoners have been held there, many for years and nearly
all without criminal charges. There are now around 250, including 17
from China who the United States wants to set free but cannot return
to China for fear they will be tortured by the government.

Guantanamo was selected for legal reasons: As a military base, it is
sovereign U.S. territory but, according to Bush administration
lawyers, was outside the scope of the Constitution. That would allow
prisoners to be prosecuted for war crimes using evidence that would be
difficult to use in the U.S. civilian court system.

Saturday, December 6, 2008

Sgt. Alberto Martinez was acquitted of murder on 4 December at Ft. Bragg, North Carolina in the 2005 bombing deaths of two superiors in Iraq, triggering loud outbursts and gasps from the slain officers' families.

A military jury found Staff Sgt. Alberto Martinez not guilty on two counts of premedidated murder in the deaths of Capt. Phillip Esposito of Suffern, N.Y., and 1st Lt. Louis Allen, of Milford, Pa. Both officers were killed when an anti-personnel mine detonated in a window of their room at a U.S. military base in Iraq in June 2005.

"He slaughtered our husbands and that's it?" yelled Allen's widow, Barbara Allen, moments after the verdict was read. Someone else shouted out that Martinez was a "murdering son of a bitch" before the judge quickly ordered the courtroom to be cleared.

The 14-member jury spent two days deliberating following a six-week trial at Fort Bragg, during which Martinez chose not to testify. The New York Army National Guard Soldier could have faced the death penalty if he had been convicted.

Martinez, 41, of Troy, N.Y., was the first Soldier from the wars in Iraq and Afghanistan to have been accused of killing a direct superior, a crime known as "fragging" during the Vietnam war. All three were members of the 42nd Infantry Division.

Witnesses had testified that Esposito and Martinez were at odds because the officer thought Martinez was lax in his operation of the unit's supply room.

Before reaching a verdict, military jurors spent several hours Thursday reviewing the recorded testimony of trial witnesses, including a sergeant who said she had delivered explosives to the supply room Martinez oversaw shortly before the bombing.

Prosecution witness Staff Sgt. Amy Harlan said she delivered ammunition and Claymore mines to Martinez's supply room about a month before the fatal bombing. Harlan said she neither received nor requested a receipt documenting who took the equipment, a usual military practice.

Sgt. 1st Class Ashvin Thimmaiah's testimony also was reviewed. He said Esposito asked him for a list of "potential candidates to take over the supply room" the day before he was killed.

Staff Sgt. David Wentzel, in testimony recorded in October, said Martinez "seemed unconcerned" moments after the fatal blast.

Wentzel said he assumed Martinez was shell-shocked because he didn't respond when he yelled for Martinez to take cover. Wentzel said he jumped up and pulled Martinez to the shelter of a building.

"I was expecting there was more to come," Wentzel testified. "He was standing in the middle of the road not trying to seek cover or anything. It was almost like he knew it was over."
© Copyright 2008 Associated Press.
(NOTE: THIS ARTICLE IS CLEARLY POORLY WRITTEN OR BLATANTLY ONE-SIDED; so, a companion article from another source is printed here.)

Here's a better article on this case from this mornings Fayetteville Observer. It's apparent the prosecution case was all circumstanial, because the only presented ONE witness who's "testimony putting a claymore in Martinez’s possession." In addition there was almost a mistrial because a "prosecution witness twice violated the judge’s orders to avoid discussing inadmissible evidence."

"Jury acquits Martinez of murder charges"
By Paul Woolverton and Corey G. Johnson
Staff writers

A woman’s shriek of outrage ripped through a Fort Bragg courtroom Thursday evening when a military jury announced it had acquitted Army Staff Sgt. Alberto B. Martinez of murdering two of his superior officers at a military base in Iraq.

Martinez, 41, was accused of using a mine to kill 30-year-old Capt. Phillip Esposito of Suffern, N.Y., and 34-year-old 1st Lt. Louis Allen of Milford, Pa., in June 2005. The three served in a Troy, N.Y., based unit of the 42nd Infantry Division of the New York National Guard.

A guilty verdict could have led to a death sentence for the first sergeant.

Members of Allen and Esposito’s families, wailing in the courtroom, remained convinced he is guilty.

“This is the United States of America!” a disbelieving woman cried.

The judge, Col. Stephen Henley, excused the jury while the family members continued to cry. Esposito’s father, Thomas, tried to keep them calm. “Easy, easy, easy,” he said, trying to console his wife, Joan, and the other women around him. “Easy, easy, easy.”

Barbara Allen, Lt. Allen’s widow, lashed out from the front row of the spectator area. She and Esposito’s widow, Siobhan, have attended 3 years of courtroom proceedings at Fort Bragg and overseas.

“He slaughtered our husbands and that’s it!” she shouted as the 14 jurors walked out.

She turned toward Martinez and cursed him. “You murdered my husband!” she cried.

The Army also was convinced Martinez did it. “We wouldn’t have brought charges if we weren’t convinced that Staff Sgt. Martinez was guilty,” said Lt. Col. Kerry, Fort Bragg’s chief prosecutor.

A Fort Bragg spokeswoman said later that the Allen and Esposito families were declining interview requests.

Martinez and his family, who attended the trial, also declined an interview request. One of Martinez’s lawyers, Maj. Marc Cipriano, issued a prepared statement on their behalf late Thursday:

“We are pleased that the military justice system worked, and we are grateful for the representation and support of the defense team. Our sympathies go out to the families of the victims. This has been a very difficult process for everyone involved, and we are happy to be back together again as a family.”

Prosecutors tried to persuade the jury that more than a year of enmity between Esposito and Martinez ended with four explosions at the Water Palace at Forward Operating Base Danger in Tikrit, Iraq.

In nearly six weeks of testimony, they presented testimony describing major problems with how Martinez, the supply sergeant, ran the company’s supply section, while the defense team tried to counter them.

Witnesses said Esposito repeatedly tried to get Martinez to do paperwork to keep track of millions of dollars in equipment, but Martinez resisted or ignored his direction. They said Martinez often complained about Esposito and cursed him. Some reported threatening comments.

In May 2005, according to testimony and evidence, Esposito had enough of the problems. He banned Martinez from access to the supply areas and began taking steps to boot him from his company.

The prosecutors said Martinez feared this would cost him his full-time job with the National Guard.

Staff Sgt. Amy Harlan, a supply sergeant from another company, said that she gave Martinez grenades, claymore mines and other ammunition when her Army Reserve unit was preparing to return to the United States.

She said Martinez told her the ammunition would “be put to good use.” It was the only testimony putting a claymore in Martinez’s possession.

About 10 p.m. June 7, 2005, a claymore exploded in the window of Esposito’s office. The blast hurled 700 ball bearings at Esposito and Allen, who were playing a board game at a table just inside the glass.

Moments later, three grenades were detonated just outside the building.

Soldiers in the area at first assumed it was an enemy mortar attack. The prosecutors said Martinez set off the grenades to foster that illusion and cover up the murders.

Martinez, who lived and worked in the Water Palace, was on the street outside right after the explosions.

The defense team showed that no one saw Martinez with the claymore or its detonator switch and wire that night, and no inventory records showed that the claymore used in the murders was among those he got from Harlan. Harlan and Martinez kept poor records, and the serial number on the claymore’s detonator switch could not be traced to Martinez.

Further, other soldiers had access to claymores, and other soldiers had problems with Esposito.

Throughout the court-martial, the defense lawyers argued that investigators fixated on Martinez from the beginning and ignored other potential suspects.

Martinez did not testify.

Emotional flare-ups and exchanges marked the court-martial from the outset.

A mistrial was barely averted after a prosecution witness twice violated the judge’s orders to avoid discussing inadmissible evidence. A prosecutor was warned for laughing and making an inappropriate comment while the jury was in the courtroom. Defense questioning of witnesses brought repeated admonishments from the judge. Tense relations and poor communication between the legal teams delayed witnesses appearances and stalled court proceedings at least three times.

With the acquittal, Martinez is being released from custody. Charges of disobeying orders and giving military property to an Iraqi were dismissed earlier this year. He had been jailed since June 2005.

Although he is no longer in the National Guard, Martinez is still in the Army and assigned to Fort Bragg. A Fort Bragg spokesman said Martinez has served the term of his enlistment, so he can leave the service if he wants.

Staff writer Paul Woolverton can be reached at or 486-3512.
Staff writer Corey G. Johnson can be reached at or 323-4848, ext. 487. "

Friday, December 5, 2008

Webster Smith Deserves same Appeal Rights as Enemy Combatants.

WASHINGTON — In the early 1990s, Norbert B. MacLean III, then a young Navy cryptologist, was court-martialed for writing bad checks, even though he says the evidence against him was far from overwhelming.

Mr. MacLean says he believes that decisions on his case were influenced by the fact that he had charged a superior with harassment. His faith in the military justice system lost, he says, he pleaded guilty and accepted a dishonorable discharge before discovering he could not appeal to the Supreme Court.

“I felt horrified,” said Mr. MacLean, a dual citizen of the United States and Australia. “Because I had chosen to wear a military uniform, I was being treated like a second-class citizen.”

If Congress returns to Washington in early December, it may consider legislation that would give service members the right to petition the Supreme Court.

Supporters say increasing access to the Supreme Court for court-martialed service members could be a first step in updating the Uniform Code of Military Justice, which went into effect in 1951 and has not been changed by Congress in major ways in the last 25 years.

“When the Uniform Code of Military Justice was established, it was cutting edge,” said Mr. MacLean, who has temporarily moved from Australia to the San Diego area to lobby Congress. “A lot has changed.”

Robert E. Reed, an associate deputy general counsel at the Pentagon, said the legislation would increase the burdens on the Supreme Court and Defense Department lawyers, adding that supporters were not taking a “panoramic view.” A White House spokesman, Carlton Carroll, said “our current line of thinking is close to” the Pentagon’s.

Under current law, some cases in the military justice system can automatically be appealed to the Supreme Court, including those in which a service member receives the death penalty and others that have been reviewed by the Court of Appeals for the Armed Forces, the civilian court that oversees the military justice system. But if the appeals court declines to hear a case, which happens on average more than 80 percent of the time, the service member cannot petition the Supreme Court.

Meanwhile, Congress has granted even captured enemy combatants greater access to the Supreme Court.

In September, the House approved a bill that would allow court-martialed service members to petition the Supreme Court, even if the Court of Appeals for the Armed Forces would not hear their case. A bill with the same language has been introduced in the Senate, but it is unclear whether action will be taken before the new Congress is sworn in next year.

The American Bar Association and the Military Officers Association of America have said they support the legislation.
“The right to at least file with the Supreme Court should be fundamental,” said H. Thomas Wells Jr., president of the American Bar Association. “The government can, and the service member can’t. That doesn’t seem to be a fair application.”

But Mr. Reed estimated that the Supreme Court and lawyers at the Pentagon could face hundreds of new petitions a year if Congress passed the measure.

“A lot of those supporters are only looking at this as a motherhood, apple pie sort of issue,” he said. “There’s a logic and a rationale to this. We’re not just trying to be mean and difficult for the defendants.”

The Congressional Budget Office estimated last month that the increased workload for the Pentagon and the Supreme Court would cost around $1 million a year.

Supporters of the bill say that the estimate is wildly inflated and that the number of petitions prompted by the legislation could be just one or two dozen.

“It’s baloney — and I would’ve used a different word if I could,” said Stephen A. Saltzburg, a law professor at George Washington University and general counsel for the National Institute of Military Justice. “The increased workload would be virtually nothing.”

It is hard to say what sort of cases might advance to the Supreme Court if the legislation passes. Supporters say the law’s greatest contributions may be symbolic.

“It’s a symbol that a service member has the exact same rights as anyone else,” said Walter T. Cox III, who served as chief judge of the Court of Appeals for the Armed Forces and later headed a commission that proposed changes in the military justice system. “That seems worth opening the door.”

Mr. Cox and other supporters hope Congress will consider other modifications to the system, like changing the appeals process and examining whether lawyers in the system are adequately trained. He hopes to convene a second commission that would look at some of those issues in the next few months.

For his part, Mr. Reed said many of the criticisms of the military justice system themselves were dated.

“It’s the same old people with the same old arguments and the same propositions,” he said. “If they do have some new ideas that they think could be beneficial, I hope they forward them to the department.”

Tuesday, November 10, 2009

United States Court of Appeals for the Armed Forces

450 E Street, Northwest

Washington, D.C. 20442-0001


United States v. Webster M. Smith, No. 08-0719/CG

(Appellee) (Appellant)

Counsel for Appellant: Ronald C. Machen, Esq.

Counsel for Appellee: LT Emily P. Reuter, USCG

Case Summary: GCM conviction of going from place of duty, attempting to disobey an order, sodomy, extortion, and indecent assault. Granted issue questions whether the military judge violated Appellant’s constitutional right to confront his accusers by limiting his cross-examination of [SR], the government’s only witness, on three of the five charges.

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument in this case.