Joshua Kastenberg (University of New Mexico) has posted this article to SSRN: FEARS OF TYRANNY: THE FINE LINE BETWEEN PRESIDENTIAL AUTHORITY OVER MILITARY DISCIPLINE AND UNLAWFUL COMMAND INFLUENCE THROUGH THE LENS OF MILITARY LEGAL HISTORY IN THE ERA OF BERGDAHL ![]()
Brenner FissellEIC Posted today regarding an order last week: "No. 20-0342/AR. United States, Appellant v. Dashaun K. Henry, Appellee. CCA 20190688. Appellant's motion to stay the trial proceedings is granted, and the trial proceedings are stayed pending further order of the Court." This is the case in which the Government has sought interlocutory review regarding an evidentiary ruling, and TJAG certified the issue. Brenner FissellEIC On August 5, 2020, the AFCCA denied Senior Airman Charles B. Justice's writ of mandamus, asking the Court to direct the military judge to initiate proceedings in his GCM on August 10, 2020.
On August 7, 2020, the AFCCA affirmed the conviction of Technical Sergeant Jeremy M. Holder on one specification of wrongfully possessing child pornography in violation of Art. 134, UCMJ. Opinion here.
On August 7, 2020, the AFCCA affirmed the sentence of SSgt Yogendra Rambharose, as reassessed by the convening authority. The AFCCA found that Rambharose's assignments of error did not materially prejudice his substantial rights.
Dateline: 21 August 2020 12 August 2020—AFCCA issued an Order in In re Justice a writ petition.
12 August 2020—AFCCA decided United States v. Heeter.
17 August 2020—NMCCA decides United States v. Lewis.
In the News—pending appellate cases. Ongoing events suggest the possibility of courts-martial coming from the field either as a direct result of the incidents under investigation or because commanders will pay more attention to future similar events with attendant disciplinary actions—
Worth the Read. With a declaration of martial law come courts-martial. So, Joseph Nunn, Martial Law in the United States: Its Meaning, Its History, and Why the President Can’t Declare It—. The Brennan Center 20 August 2020—a topical discussion. https://www.brennancenter.org/our-work/research-reports/martial-law-united-states-its-meaning-its-history-and-why-president-cant We all have clients who are subject to sex offender registration. Here is a report which may have some small relevance or give ideas to us. Pickett, Satifka, & Shah, Labeled for Life: A Review of Youth Sex Offender Registration. Juvenile Law Center, 2020. https://jlc.org/sites/default/files/attachments/2020-08/Labeled%20for%20Life%20August%202020.pdf Ligeia Quackberg, The Prosecutorial Duty to Disclose Exculpatory Material: Appropriate Remedies and Sanctions. The writer was a LLM student in International Rights and Criminal Justice, Utrecht University.
Justin Murray, Policing Procedural Error in the Lower Criminal Courts, Fordham L. Rev. (forthcoming) [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3675869].
On the horizon. At Global Military Justice Reform blog, Joshua Grubaugh writes about Gangs and Extremists in the U. S. Military, activity which is or may become a source of appellate cases. https://globalmjreform.blogspot.com/2020/08/gangs-and-extremists-in-us-military.html. There is a link to a Military.com report about Army CID reports on such activity. Out in the civilian counsel world we are having people reach out who are under investigation—investigations that may lead to court-martial and an appeal. A bit of history. 21 August 1987, Sgt. Clayton Lonetree, the first Marine court-martialed for spying, was convicted in Quantico, Va., of passing secrets to the KGB. Lonetree ended up serving eight years in a military prison. Dwight “ML” Sullivan was one of 12 counsel out of Code 45 who represented him in this one of many interesting cases. See United States v. Lonetree, 35 M.J.396 (C.M.A. 1990). The issues were complicated, including lying to a suspect that his statements would be kept confidential, lack of Art. 31, UCMJ, warnings by intelligence agents, and is there a right to a public oral argument on appeal. The case joined those seeking to set boundaries where non-DoD agents or civilian DoD employees interrogate a suspect. One of the early cases in that line is Quillen.
Research notes. We all know that the briefs in CAAF granted cases become available once oral argument is scheduled. Did you know—you now do—that the CGCCA publishes all briefs of cases pending before them—go to https://www.uscg.mil/Resources/Legal/Court-of-Criminal-Appeals/Court-of-Criminal-Appeals-Appellate-Briefs/. Briefs, even in unrelated cases or with unrelated issues can sometimes be a goldmine for your case. Phil CaveLast month, we flagged the case of Kareem v. Haspel, a case currently pending in the D.C. Circuit that asks whether U.S. citizens have a right to know whether they are being targeted for assassination abroad. The district court had dismissed Kareem's case on the ground that it was preempted by the state secrets privilege. Yesterday, Kareem filed his reply brief, arguing: The government can only succeed if it can mislead this Court into believing that it is being asked to decide far larger questions than those actually presented. This Court should consider the specific facts of this case, not the parade of horribles presented by the government. The Court is not asked to decide, as the government suggests, what information about military operations ought to be disclosed publicly to all targeted individuals, and certainly not when an attack is imminent. Govt. Br. 24, 48. The Court need only to decide what should be disclosed here, to enforce this U.S. citizen’s Fifth Amendment right not to be deprived of his life without due process, given his unique, well-pleaded allegations that his government has tried to kill him on multiple occasions when there was no basis to do so.1 Recent precedent has reaffirmed that U.S. citizens in foreign countries—including and especially those in conflict areas—maintain their Fifth Amendment right to life and liberty, and there is no precedent from either the state secrets or political question jurisprudence that dictates otherwise. Michel ParadisLOAC Editor One hears rumblings through the grapevine that many members of the bar are concerned about a four-judge court acting on petitions. Of course it is simple math that fewer judges means a lower probability of potentially garnering enough votes for a grant—a zealous advocate would/should make a claim that this prejudices his or her client. It is no surprise, then, that these rumblings broke through very recently in an amicus authored by Military Justice Editor Phil Cave for the National Institute of Military Justice (I played no role in the filing). Link here. P.S. Some have asked whether a motion to reconsider a grant denial on the basis of the above argument would “waive” the argument itself, since the motion would be made to a four-judge court. In other words, asking four to decide whether five are needed would constitute an admission that only four are needed. In my view the four would be able to decide this issue under the doctrine of the “Rule of Necessity.” Beer v. United States, 696 F.3d 1174, 1179 (Fed. Cir. 2012) (federal circuit judges could decide case about judicial pay despite conflict of interest because they were only tribunal able to address claims). Brenner FissellEIC No. 20-0294/AF. U.S. v. Ryan M. Vanvalkenburgh. CCA 39571. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues: I. WHETHER RULE FOR COURTS-MARTIAL (R.C.M.) 912(f)(4) VIOLATES A SERVICEMEMBER'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL. II. WHETHER APPELLANT WAIVED, FORFEITED, OR PRESERVED A CHALLENGE TO THE CONSTITUTIONALITY OF R.C.M. 912(f)(4). Link here. Editor's note: FYI RCM 912(f)(4) relates to member selection/striking. Elizabeth BerecinResearch Fellow On August 7, 2020, the NMCCA affirmed the conviction of SgtMaj Schmidt for one specification of Article 120b(c), UCMJ, for committing a lewd act upon a 15 year old boy by indecent conduct.
Five years after the 20th edition was published, the Bluebook’s 21st edition is now available. That development affects military appellate practitioners, as CAAF Rule 37(c)(2) provides, with commendable simplicity: “Citations shall conform with the Uniform System of Citation.” ACCA Rule 17.1(c), on the other hand, states: “Citations must conform to the style prescribed in the current editions of the U.S. Army Court of Appeals Citation Guide, the Judge Advocate General’s School Military Citation Guide, and The Bluebook: A Uniform System of Citation, published and distributed by the Harvard Law Review Association.” Unhelpfully, the link to “Army Court Citation Guide” on ACCA’s website is inoperable. AFCCA Rule 17.1(a) directs: “Citations in filings shall conform to [the] current version of the U. S. Air Force Court of Criminal Appeals Citation Guide and the most recent edition of THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (Columbia Law Review Ass’n et al.).” The AFCCA citation guide is available on the court’s website. The CGCCA rules don’t appear to address citation style. If I’m overlooking something in those rules, please let me know. Finally, NMCCA Rule 17.2 provides: “Citation form and writing style for appellate filings shall conform to the current edition of the Uniform System of Citation (‘Bluebook’), U.S. Government Publishing Office Style Manual, and The Chicago Manual of Style, in that order of precedence. Once available, the citation form and writing style prescribed in the Manual of Uniform Citation and Legal Style for the Military Courts (‘PurpleBook’)—which is based on the foregoing—shall take precedence over all other citation and style guides.” The PurpleBook? Does anyone know its status? The Bluebook’s 21st edition is more svelte than its predecessor; it comes in at only 365 pages, compared to the 560-page 20th edition. Much of the reduction comes from exiling Table 2 – Foreign Jurisdictions – to a free online page. One significant change is practitioners now have the option of citing case reporters’ names without a space where Bluebook rules would otherwise require one. B6. So, for example, West’s Supreme Court Reporter may be cited as either “S.Ct.” or the more traditional “S. Ct.” The “compilers” tell use this change was made to “address word limit constraints in court documents.” Judges everywhere are likely cursing that rule change. Another change significant for military justice practitioners is that citations to the U.S. Code no longer require a date. Rule 12.3.2. This will help when citing the current version of the oft-amended Uniform Code of Military Justice. Practitioners can easily find the current edition of U.S. Code sections on the Office of the Law Revision Counsel’s website, currently updated through 8/8/2020. The portion of the Bluebook’s Table 1 addressing citation of military appellate court decisions remains unchanged. The 21st edition continues to misidentify the old Lawyers Co-operative Publishing Company’s Court-Martial Reports as “Court Martial Reports.” And one curious omission remains. While providing citation styles for CAAF, CMA, the CCAs, the CMRs, and the Boards of Review, the Bluebook ignores the existence of the Court of Military Commission Review. Dwight SullivanDisclaimer: The views expressed are my own and do not necessarily reflect those of DoD or anyone else. NMCCA issued an authored opinion in the case of US v Lewis on 17 August. Appellant was convicted of three specifications of failure to obey a lawful order, one specification of sexual assault by causing bodily harm, one specification of indecent viewing, and one specification of assault consummated by a battery. On appeal, Appellant argued that his convictions for sexual assault, indecent viewing, and assault consummated by a battery were legally and factually insufficient.
On August 7, 2020, ACCA affirmed the conviction of Sergeant Danny E. Stanley. ACCA held that the military judge did not abuse his discretion when permitting an unsworn victim impact statement to be read at sentencing.
"The Supreme Court described the American military justice system, as it had existed for nearly two centuries from the founding of the nation through World War II, as “a rough form of justice emphasizing summary procedures, speedy convictions and stern penalties.” At that time, the Court believed that military law “emphasize[d] the iron hand of discipline more than it [did] the even scales of justice.” Finding this situation unacceptable, in the early 1950s, Congress dramatically reformed the military justice system to ensure that the men and women who serve in the armed forces enjoy— to the extent possible given the needs of the military—the same constitutional and legal protections that our service members swear to defend. As part of those reforms, Congress enacted the Uniform Code of Military Justice and established an independent, civilian court—the Court of Military Appeals, now the U.S. Court of Appeals for the Armed Forces. Those actions demonstrated our country’s dedication to protecting the constitutional and due process rights of service members, while also maintaining the disciplined and effective operation of the military. Today, the success of those reforms is obvious. The Supreme Court recently observed that the Court of Appeals for the Armed Forces functions much like any other American appellate court, reviewing criminal convictions without any suggestion that it is beholden to or under the influence of the military. The Court confirmed that military justice system’s essential character is “judicial.” If confirmed and appointed, I intend to continue that tradition of judicial independence and civilian oversight of the military justice system." --Liam Hardy, 8/4/2020, Opening Statement, Nominations Hearing, Senate Armed Services Committee Brenner FissellEIC Dateline: 14 August 2020 07082020—CAAF grants in White, No. 20-0231/NA
07082020--ACCA decides United States v. Stanley.
12082020—ACCA decides United States v. Bruner.
07082020—AFCCA decides—yes--United States v. Bruner and, United States v. Holder.
And, United States v. Rambharose. This is a convoluted case decided by AFCCA for the third time.
CAAF remanded because of United States v. Hukill. AFCCA took additional action and remanded to the CA for a potential rehearing.
Will CAAF grant—case to watch for. There are several fairly recent cases about what a remand means and what actions the CA can take on remand. 07082020—NMCCA decides United States v. Schmidt in a published opinion. (Unfortunately, NMCCA is set up to prohibit cut-and-paste.) But,
Schmidt was convicted of one specification of sexual abuse of a child by masturbating in the child’s presence. In the news—pending appellate cases. The Omaha World-Herald (as well as other news outlets) is reporting.
Phil CaveU.S. v. Feeney-Clark, Army 20180694, July 20, 2020
No Remedy For AWOL Soldier Who Experienced Unreasonable Post-Trial Delay Synopsis: Joseph-Feeney Clark is a soldier who was charged with absence of leave, however over 300 days elapsed between his sentence and the convening authority taking action. On appeal, Feeney-Clark argued that he was owed sentencing credit for the post-trial delay. Although the delay was unreasonable as it exceeded 120 days and the government provided no explanation for the delay, the Appellant had previously been granted sentencing credit that exceeded his sentence. The Court declined to provide the Appellant with a remedy and affirmed his conviction. Appellant was convicted of one specification of attempted sexual assault of a child and two specifications of attempted sexual abuse of a child, in violation of Article 80, Uniform Code of Military Justice [UCMJ] , 10 U.S.C. § 80 (2012), for communicating indecent language to, and arranging to meet and have sex with a fictitious individual named “Sarah.” Appellant believed Sarah to be a 14-year-old female, but the individual with whom Appellant communicated was in fact an online persona portrayed by a special agent of the Air Force Office of Special Investigations. On appeal, Appellant asserts four assignments of error.[1] The Court, addressing only the first two assignments, found no abuse of discretion and affirmed the decision.
[1] (1) The military judge abused his discretion when he denied in part a Defense motion to compel an expert consultant in forensic psychology; (2) the military judge abused his discretion when he denied a Defense motion to suppress a statement by Appellant under Military Rule of Evidence [Mil. R. Evid.] 404(b); (3) trial defense counsel was ineffective for waiving a potential defense of entrapment; and (4) Appellant's convictions are not legally or factually sufficient because the special agent with whom Appellant communicated did not provide an age or gender in the chat application profile used to communicate with Appellant, and sent him images that were in fact of adults. Opinion Here. CAAF announced today that it granted a new case for review on Friday. The case deals with the probable cause to support a search authorization. CAAF's jurisprudence on this narrow area of law is expanding rapidly. NMCCA opinion here. DJ text here: "No. 20-0231/NA. U.S. v. Jerry R. White. CCA 201900221. On consideration of Appellant's petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2012), it is ordered that said petition is granted on the following issue: DID THE LOWER COURT ERR IN DETERMINING THE GOOD FAITH EXCEPTION APPLIED WHEN THE MILITARY JUDGE FOUND SO LITTLE INDICIA OF PROBABLE CAUSE EXISTED THAT NO REASONABLY WELL-TRAINED OFFICER WOULD RELY ON THE SEARCH AUTHORIZATION?" Brenner FissellEIC United States v. Cannon, No. ARMY 20180580, 2020 BL 294916 (A. Ct. Crim. App. July 31, 2020) Opinion Here. A military judge sitting as a general court-martial convicted appellant of one specification of desertion and one specification of absence without leave (AWOL) terminated by apprehension, in violation of Articles 85 and 86, Uniform Code of Military Justice, 10 U.S.C §§ 885 and 886 [UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, confinement for twenty-four months, and reduction to the grade of E-1. On appeal, appellant asserts that he was prejudiced when the military judge considered inadmissible sentencing evidence. In a unanimous opinion, the court found that appellant was prejudiced with the admission of erroneous evidence.[1] Government’s Rebuttal and the Testimony of Command Sergeant Major (CSM) TD To rebut testimony that appellant was a “good soldier,” Command Sergeant Major TD explained the basis for this disagreement by citing investigations related to appellant's alleged misconduct.[2] Also in rebuttal, the government sought to introduce five “Prosecution Exhibits” evidencing appellant’s criminal history, which included many uncharged acts of misconduct.[3] The military judge admitted the evidence saying the defense had “opened the door.” On appeal, the Court found that the military judge “erred when she allowed CSM TD to testify about specific instances of uncharged misconduct by the accused, which involved a positive urinalysis, theft from the mailroom, and drinking in violation of an order.” The Court conceded that the government was permitted to attack the witnesses’ opinion, but was not permitted to introduce extrinsic evidence of these specific instances, which were not otherwise admissible under any basis allowed by Rule for Courts-Martial [R.C.M.] 1001(b). Regarding the admission of the instances of uncharged conduct, the Court found that the military judge did not err. The Court explains that “the military judge explicitly indicated that she would not consider any portion of Pros. Ex. 9 other than information pertaining to his civilian convictions, which were otherwise admissible under R.C.M. 1001(a)(1)(A)(iii). Thus, even if the military judge erred by admitting portions of Pros. Ex. 9, we are confident that any error is harmless given her stated limitation to consider only the convictions.” The Kerr Test In evaluating the influence of erroneously admitted evidence the Court weighed the following factors: (1) the strength of the Government's case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question." United States v. Bowen, 76 M.J. 83, 89 (C.A.A.F. 2017) (citing United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999)). Applying the Kerr factors, the Court found that “appellant was prejudiced by the introduction of various acts of uncharged misconduct. The cumulative nature of the substantial amount of uncharged misconduct, coupled with the government's specific argument asking the military judge to consider the uncharged misconduct, compels us to find that the erroneous evidence impacted the adjudged sentence.” Conclusion The Court affirmed the sentence for a bad-conduct discharge, confinement for twenty-three months, and reduction to the grade of E-1 and set aside any remaining portions. [1] The opinion was authored by Judge Salussolia. [2] To include: (1) a positive urinalysis, (2) theft of credit cards from the unit mailroom, and (3) drinking alcohol in violation of an order. [3] A criminal history of civilian arrests that resulted in “a few” convictions (Pros. Ex. 9), appellant’s civilian arrest history and report relating to his desertion and initial AWOL (Pros. Ex. 10), an excerpt of a CID report pertaining to appellant's positive urinalysis for methamphetamines, which was never charged (Pros. Ex. 11), and “[CID’s] final reports stating not only that appellant was the subject of the charged AWOL and desertion offenses, but also that he was the subject of several uncharged UCMJ violations, including larceny of private funds, larceny of mail, making a false official statement, and failure to obey a regulation[3] (Pros. Ex. 12-13)” Farris FrancisIntern West Point's Lieber Institute for Law & Land Warfare has just launched a great new online publication, Articles of War. Already a companion to publications like Lawfare, Just Security, Opinio Juris and (of course) CAAFLog, Articles of War states that its mission is to be "platform for timely analysis, debate and commentary around legal challenges arising from the contemporary battlefield." It is clear that it will be a must read for judge advocates, civilian lawyers, and legal scholars working in the operational law space as well as those who find themselves litigating LOAC issues. Articles of War has already put up some provocative, high-caliber scholarship: LTG Charles N. Pede, COL Joshua F. Berry, Francis Lieber's Living Legacy (August 5, 2020) Ashley Deeks, Will Autonomy in U.S. Military Operations Centralize Legal Decision-Making (August 5, 2020) Michael N. Schmitt, Targeting Non-State "Mixed Groups" (August 5, 2020) Geoff Corn, Civilian Casualty Aversion and the Potential Nullification of "Shock" (August 5, 2020) We look forward to reading and cross-posting their work in the coming months. For those who want to know more you can sign up for the Articles of War mailing list, or follow them on LinkedIn and Twitter. Michel ParadisLOAC Editor United States v. Gilbert, No. ARMY 20190766, 2020 BL 294990 (A. Ct. Crim. App. July 31, 2020) Opinion here. Appellant met a 13-year old girl (“MN”) online and asked her to send him nude photos. Although he never received the photos, he pled guilty to (1) attempt to possess child pornography; (2) sexual abuse of a child; and (3) possession of child pornography. On appeal, the ACCA considered whether asking a minor to send naked pictures of herself, and hoping the images contained sexually explicit conduct, satisfied the elements of attempted possession of child pornography. In a unanimous opinion, the ACCA found that it did not.[1] Appellant’s Conduct Did Not Constitute a Substantial Step In Committing the Crime To be convicted of attempted possession of child pornography, the solicited images must depict “sexually explicit conduct.”[2] In this case, Appellant asked for a nude “selfie” of MN, but she declined. She later suggested that she would send Appellant a photo of her clothed breasts. Appellant replied that it would be “only fair” if he could see her naked.[3] Since the conversation suggested that MN would be sending a nude photo of her breasts only, the military judge concluded that this image would not be “sexually explicit” within the meaning of the statute. However, the military judge still ruled that Appellant took a “substantial step” toward committing the crime because he testified that he “hoped” MN would send him sexually explicit photos eventually. The ACCA disagreed and held that Appellant’s “hope” that he would receive sexually explicit photos eventually was not a substantial step but only “preparation.” Accordingly, the Court set aside the attempt conviction and remanded for a reassessment of his sentence. [1] Judge Walker authored the majority opinion, which was joined by Judges Aldykiewicz and Salussolia. [2] Sexually explicit conduct is “(a) sexual intercourse or sodomy; (b) bestiality; (c) masturbation; (d) sadomasochistic or masochistic abuse; or (e) lascivious exhibition of the genitals or pubic area of any person.” [3] Appellant previously had sent MN nude videos and photos of himself. James TaglientiSenior Intern Many are talking about the opinion released yesterday by the Federal Circuit holding that existing PACER fees are not "reasonable fees." See 28 U.S.C. § 1913. While this statute and this opinion of course do not apply to the military justice system, one should ask whether the transparency concerns that motivate it also militate in favor of greater online access of CAAF and CCA dockets. Consider Congress's stated purpose in the 2002 "E-Government Act": “[t]o enhance the management and promotion of electronic Government services and processes,” in part by requiring use of “Internet-based information technology to enhance citizen access to Government information and services.” 116 Stat. 2899. As the Federal Circuit wrote in yesterday's opinion, "[T]he First Amendment stakes here are high.... If large swaths of the public cannot afford the fees required to access court records, it will diminish the public’s ability 'to participate in and serve as a check upon the judicial process—an essential component in our structure of self-government.' Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 606 (1982)." NVLSP v. United States, Fed. Cir. No 19-1081 (Aug. 6, 2020). The same is equally true with the public's role in the participation in and check on the justice system of its military. Indeed, one might argue that the public checking function is more important in military justice. On the one hand, a lawless military presents a greater threat to public safety than mere police and judicial process; on the other hand, a military that can compel participation in it by young adults must justify its imposition of discipline and punishment as reasonable and fair to the public from which it draws those young adults. Moreover, the Military Justice Act of 2016 states: “The Secretary of Defense shall prescribe uniform standards and criteria for conduct of each of the following functions at all stages of the military justice system, including pretrial, trial, post-trial, and appellate processes, using, insofar as practicable, the best practices of Federal and State courts: ... (4) Facilitation of access to docket information, filings, and records, taking into consideration restrictions appropriate to judicial proceedings and military records.” 10 U.S.C. 940a. Isn't online docket access a federal "best practice?" Brenner FissellEIC An update on the Guantanamo commission case of Ali Al-Bahlul. Bahlul has prevailed on his claim that the USCMCR applied an incorrect standard on resentencing, and the case has been remanded. Opinion here. Given the involvement of various members of the editorial team in this litigation, I offer only the following snip from Bloomberg's Bernie Pazanowski: "The life sentence given Osama bin Laden’s propaganda chief must be reevaluated again by a military commission that previously reaffirmed it on remand, the D.C. Circuit said Tuesday. The Court of Military Commission Review applied the wrong standard when it upheld Ali Hamza Almad Suliman Al Bahlul’s life sentence, the opinion by Judge Neomi Rao said. Al Bahlul received the life sentence after being convicted for conspiracy to commit war crimes, providing material support for terrorism, and soliciting others to commit war crimes. The first time the case was appealed, the D.C. Circuit only upheld the conspiracy count, and remanded with instructions for the commission to determine if vacating the other two convictions affected the sentence. On remand, the commission rejected Al Bahlul’s constitutional challenges to the sentence and affirmed it. The commission said the vactures [sic] didn’t effect the sentence, which would have been imposed even if Al Bahlul was only convicted of the conspiracy, and that any constitutional error was harmless. Constitutional errors must be harmless beyond a reasonable doubt, the court here said. By relying on the fact Al Bahlul would have received the life sentence even if he was only convicted of the conspiracy, the commission didn’t address whether the alleged constitutional errors were harmless beyond a reasonable doubt, it said. The case was remanded for application of the proper harmless error standard." Brenner FissellEIC |
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