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Faced with the prospect of a failed state, Iraq's main political blocs reached a compromise agreement that has allowed the country to slowly confront its internal and external threats in order to achieve some level of stability. Despite ISIS's successes in Mosul and Ramadi, the Iraqi government, supported by the international coalition, has made significant progress in containing Daesh's (ISIS) expansion and in retaking cities such as Tikrit earlier this year. However, in order to address the root causes of Iraq's instability and turn the tide against ISIS, Iraq will need to achieve real economic growth as quickly as possible to create jobs for the newly liberated areas. Unemployment and the lack of basic services fuel much of the terrorism that threatens the lives of Iraqis, and ISIS and other terrorist groups have capitalized on this reality to reinforce their ranks and propagate their ideology.
While the Iraqi legislature has enacted an Investment Law [PDF] to provide incentives to foreigners to invest, and the Iraqi executive branch is attempting to address investor concerns through an amendment to the Investment Law, the Iraqi judiciary has achieved significant progress in creating an efficient and predictable legal environment for foreign companies. It did so through the creation of a system of commercial courts, whose decisions have been deemed fair by foreign companies. The early track record of these courts suggests that they will play an important role in moving Iraq from its socialist past, when foreign investment was viewed as a source of suspicion and mistrust. However, the courts alone will not be able to provide the long-term guarantees that are needed to transform Iraq's legal environment for businesses, foreign and domestic, to thrive. Since Iraq is civil law country, the legislative and executive branches will need to enact comprehensive legislative and regulatory reforms to Iraq's intellectual property, investment and arbitration systems, among others. Without a codified set of modern laws and regulations, the courts will be limited to gap-filling measures that are susceptible to narrow or inconsistent application.
By way of background, in 2009, while the Iraqi government was rolling out its first oil bid rounds, the Iraqi Higher Judicial Council (HJC) announced that it would start training Iraqi judges in modern commercial law topics with the goal of assuaging the concerns of foreign companies and investors. The HJC was fully aware of the country's unemployment problems, of the need for foreign investment and international trade and of the complaints of both foreign and Iraqi companies that Iraqi courts were not capable of handling complex commercial disputes in an unbiased manner. Aware of the growing trend of business courts in the US, the UK and the Middle East, such as Egypt, the HJC sought to apply these successful models to the Iraqi context by creating its own specialized commercial courts, staffed by judges highly trained in commercial matters. The HJC focused its training efforts initially on letters of credit, international arbitration and intellectual property disputes given their critical roles in international business transactions. The HJC inaugurated a multi-phase training program in 2009 with the Commercial Law Development Program of the US Department of Commerce to prepare Iraqi judges for the new courts, the first of which was eventually created in Baghdad in 2010. The HJC subsequently expanded its training efforts to include other regional and international technical assistance providers following the court's establishment.
In order to achieve its two primary goals, efficiency and specialization, the judiciary limited the new commercial court's jurisdiction to commercial disputes involving at least one foreign party. Moreover, the matter in dispute had to be of a commercial nature, as defined by the Iraqi commercial code (No. 30 1984), which includes 16 separate categories for commercial activities, an example of how Iraq's outdated commercial laws may tie the hands of Iraq's judges. A modern commercial code should expand the categories of commercial activities to include modern transactions such as e-commerce and technology transfer.
According to the HJC procedure every Iraqi court would be required to transfer a case to the Baghdad Commercial Court if it fell within the latter's jurisdiction as defined above. The HJC assigned two judges for the Baghdad Commercial Court based on their performance in the specialized training programs. According to the HJC's latest statistics the Baghdad Commercial Court has adjudicated 1146 cases out of a total of 1252 cases filed since its inception.The average trial length for these cases is 60 days,according to the HJC, with many cases finally decided in as few as 30 days. The court's impressive efficiency is a dramatic improvement on Iraqi courts' past record when adjudication of commercial cases would take months and sometimes years on crowded dockets that included both civil and criminal cases.
Pro-government bias is a concern for foreign companies operating in any jurisdiction, a key reason that international arbitration is required in most international business transactions. Even when international arbitration clauses are included in contracts, national courts can find for a national government party by refusing to enforce contract rights, such as the right to resort to arbitration, or by refusing to enforce foreign arbitral awards. This can become a significant deterrent to foreign investment and trade. Furthermore given the Iraqi government's hostility towards international arbitration, the Baghdad Commercial Court was uniquely aware of the importance of demonstrating its ability to enforce contract rights, rights that are enshrined in Iraqi law as "the law of the contracting parties" and to specifically enforce the contractual right of parties to resolve their disputes outside of Iraqi courts.
In the area of transparency, the Baghdad Commercial Court began to publish summaries of its major decisions in English and Arabic on the HJC website. The HJC's most recent statistics show that no less than 40% of the Baghdad Commercial Court cases have been decided against the Iraqi government and in favor of the foreign company. Moreover the Baghdad Commercial Court has achieved significant progress in adapting international principles to cases involving arbitration and intellectual property, which were affirmed by Iraq's highest civil courts, thereby setting major precedents for Iraqi courts.
In the area of arbitration Iraqi courts' past hostility to arbitration and the government's failure to join the UN Convention on the Recognition and Enforcement of Arbitral Awards (New York Convention) exposes companies to the risk that their arbitration agreements and awards will not be enforced in Iraqi courts. However, in 2011, the Baghdad Commercial Court heard a case involving international arbitration in a dispute between an Italian company and the Iraqi Ministry of Finance. The Baghdad Commercial Court decided to revisit Iraq's longstanding interpretation of the arbitration provisions of its civil procedure code. Iraqi courts previously held that international arbitration was not explicitly recognized in Iraqi law and dismissed requests for enforcement for lack of jurisdiction. However, in 2011 the Baghdad Commercial Court broke with past precedent and held that the civil procedure code did not distinguish between international and domestic arbitration. In determining if a valid arbitration agreement existed, the court referred to the New York Convention and to the UNCITRAL model law to supplement Iraq's civil procedure code. This decision, which was affirmed by Iraq's Court of Cassation, is binding on lower courts, establishing a firm judicial position for enforcing international arbitration agreements. While this decision is historic in its interpretation of arbitration-related provisions, it is also critical in demonstrating the Iraqi courts' ability to enforce contract rights against a government party.
According to the HJC's latest statistics at least eight cases have been decided by the Baghdad Commercial Court involving the enforcement of an international arbitration agreement. However, we have yet to see if this new interpretation will allow Iraqi courts to enforce foreign arbitral awards, a critical issue for foreign trade and investment. The courts will need the support of a domestic arbitration law or, ideally, a law ratifying Iraq becoming a party to the New York Convention, so that they have a sound legal basis for enforcing foreign arbitral awards without judicial review of the merits. The legislative and executive branches would need to take the lead in passing either or both of these laws.
In the area of intellectual property the Baghdad Commercial Court has decided two landmark trademark cases, involving multi-national companies that were challenging decisions by Iraq's Trademark Office to register knock-off trademarks. In both decisions, the Baghdad Commercial Court relied on international principles to find that the knock-off products created confusion in the Iraqi marketplace.The Court ordered the Iraqi Trademark Office to cancel the trademarks of the knock-offs and to register the original trademarks.This is yet another example of gap-filling measures where Iraqi courts are faced with a 1950s era trademark law that will need to be updated for Iraqi courts to consistently and effectively apply international best practices.
Since 2010, the HJC has created two additional commercial courts in BasraBasra and Al-Najaf, where there is significant commercial activity related to Iraq's oil industry and religious tourism respectively The creation of these three specialized courts and the subsequent development of judicial precedents have helped to level the playing field for foreign investors. As such the judiciary has been able to provide foreign companies with a degree of assurance that their investments and resources in Iraq will be protected. However, this is not enough. The Iraqi government will ultimately need to pass and enforce new laws to provide guarantees to foreign investors, reduce corruption and diversify its economy in order to create the level of economic growth that is needed to rebuild Iraq's infrastructure and dramatically reduce unemployment.
Adam Al-Sarraf is an International Program Specialist with the Commercial Law Development (CLDP) of the U.S. Department of Commerce Office of the General Counsel. Mr. Al-Sarraf works primarily on the Iraq program focusing on capacity building programs for the Iraqi judiciary, state-owned enterprises, investment commissions and legislative institutions.
Suggested citation: Adam Al-Sarraf, Iraq's New Commercial Courts, JURIST- Professional Commentary, June 30, 2015, http://jurist.org/professional/2015/27/adam-al-sarraf-iraq-commercial-courts.
Challenges in the Current Secured Transaction Regime
The legal environment in Palestine, and in the Arab countries in general, does not support a secured transactions regime. Outdated and traditional secured transactions regimes pose a great obstacle for lenders and borrowers in trying to create modern business and expanding access to finance for small and middle business. Expanding access to finance is a significant factor in improving developing economies. In Palestine, limited access to credit remains one of the greatest barriers to economic growth and development. Thus, a reformed secured transaction regime is a necessity for the Palestinian economy. In Palestine, there are many legal problems in secured transactions regimes, including inadequate legal protections for borrowers and lenders, outdated regulations, and restricted access to credit. The Palestinian legal regime remains far from the rest of the world in terms of the legal rights assured to borrowers and lenders. Lenders' policy in establishing collaterals depends on creating immovable collateral, not movable collateral. How the STL will change such policy for lenders is a crucial issue.
Policy of the STL
The policies of the STL depend on two key points: an access to finances and availability of sufficient collateral. In Palestine, constrained access to finances remains among the top limitations on private sector growth. Such situations are not just in Palestine, but also in more than half of private firms in emerging markets. The number of firms that use loans to finance investments in the developing world generally is half the number of those firms operating in countries of the Organization for Economic Cooperation and Development (OECD)[PDF]. Creating a good legal framework of secured transactions would help the firms to access finances. The paper polices of the STL relies on "Access to Finance" as one of the main legislative polices and as part of the philosophy of the law. The policy also focuses on improving lending terms and improving financial system stability as main features in establishing a well-designed secured transaction regime.
In Palestine, credit applications are often rejected for insufficient collateral, i.e. unacceptable or unsuitable collateral. Business owners don't apply for loans because they know that they cannot meet collateral requirements of banks. Unavailability of collateral is frequently not the problem; rather, it is the inability to utilize valuable assets as collateral. While in the developing world 78 percent of the capital stock of a business enterprise is typically in movable assets such as machinery, equipment or receivables, only 22 percent is in immovable property. Financial institutions are reluctant to accept movable property as collateral. Banks prefer real estate as collateral. As evidence to the efficiency of the secured transaction system, in the United States, movable property makes up about 60 percent of enterprises'. Capital stock and lenders consider such assets to be excellent sources of collateral. Movables account for around 70 percent of small-business financing. The asset-based lending industry in the US has grown rapidly since the mid-1970s, and movable asset lending has increased 40-fold over 30 years, reaching a total of US $400 billion. The industry has grown by 12 percent annually over the past ten years. Legalizing movable assets as sufficient collateral by providing broad protections to lenders upon default of borrowers is one of the main polices of the STL.
Envisaged Benefits Upon Reform the Secured Transaction Regime
In Palestine, a majority of businesses are micro, small and medium enterprises (MSMEs). The MSMEs have therefore been operating in a weak legal environment with inefficient financing opportunities, tight resources for up-scaling, a weak marketing ability and limited access to markets. Providing legal structures in which movable assets in the Palestinian market can be effectively used as collateral will significantly improve access to finances by firms that need it most. A sound legal and institutional infrastructure is critical to the maximization of economic potential of movable assets so that they can be used as collateral. Well-functioning secured transactions systems enable businesses to use their assets as security to generate capital, from the farmer pledging his cows as collateral for his annual operating line of credit to the seller of goods or services pledging the cash flow from customer accounts as collateral for business expansion. An economic analysis suggests that small and medium-sized businesses in countries that have stronger secured transaction laws and registries have greater access to credit, better ratings of financial system stability, lower rates of non-performing loans and a lower cost of credit[PDF].
The lender provides loans secured by the assets of the borrower. The STL has determined several types of collateral. Collateral may include accounts receivable, inventory, raw materials and work in process, machinery, vehicles, intellectual property rights or other assets where value can be determined. The secured lender may establish a revolving credit facility where the borrower provides a pool of collateral that the lender translates into operating cash or working capital. The lender agrees to grant a line of credit up to a maximum amount, which is secured by a borrowing base made up of inventory, receivables and cash. Notably, in the current situation the new types of collateral established in the STL are not used as collateral. Upon implementation, the STL lenders would be hesitant to use these collaterals, and they may take time to start accepting them.
Well-designed secured transaction systems contribute to robust financial systems by promoting credit diversification, allowing non-bank financial institutions (NBFI) to provide credit (reducing the dependence on bank credit) and rely less on real estate collateral. Financial institutions (FIs) benefit from these systems by: (i) being able to diversify their portfolios by accepting movables, including more liquid assets such as receivables or investment instruments; (ii) having access to information on existing collateral interests in movable assets and their priorities; and (iii) making possible better reporting mechanisms on collateralized lending practices to the supervisory or regulatory authority, usually central banks.
Scope of the STL
The proposed law applies to all transactions where a debt or other obligation is secured by movable collateral, regardless of the legal form of the transaction. The proposed law's provisions for registration and prioritization of interests also apply to leases of goods and the sale of accounts receivable and secured sales contracts. The proposed law's scope specifically excludes claims on employee pay, the sale of accounts receivable and secured sales contracts as part of the sale of a business, assignment of accounts for collection and assignment of a right to payment if the assignee must also perform. The STL includes all types of relevant interests that modern laws include. It provides for simple and quick creation of a collateral interest and provides for it to be effective between the parties without registration. It also sets out a transparency-based priority scheme that conforms to modern standards. The STL calls for notice registration and provides that it can be the optimal electronic registry that enforces registration standards without human judgment. And finally it provides for quick and effective enforcement of a collateral interest in case of default by the debtor. The STL includes all of the key features of modern secured transactions laws that support access to credit based on movable collateral.
A great influence is expected on the Palestinian economy once the STL enters in force. "It is a revolution in the financial field." an expert in the IFC, said. However, there are concerns related to addressing legal provisions of the STL by relevant parties. Judges are not familiar with some legal provisions, like using movables assets as collateral. They may not understand how a machine may secure one loan or more. Lawyers are not familiar with some legal terms like "receivable accounts." Such terms, when translated to Arabic, are ambiguous. Lenders and borrowers are not familiar with using an electronic private registry. These parties should be aware of their rights and commitments.Therefore, the IFC is studying holding specialized courses about implementation of the law for all relevant parties.
Ibrahim Fares received an L.L.B in law from Al al-Bayt University in Jordan, a masters degree in law from Birzeit University in Palestine, an L.L.M from the University of Pittsburgh School of Law and an L.L.M. from Lazarski University in Poland. He is a member of the Palestinian Bar Association, and he is an arbitrator in commercial and civil transactions. He has over 7 years' experience in corporate law and finance as senior associate at one of Palestine's most prominent law firms, Husseini and Husseini, where he specializes in commercial transactions, mergers and acquisitions and contracts. He has been intricately involved with the development and drafting of a new secured transactions legal framework in Palestine
Suggested Citation: Ibrahim Fares, Secured Transactions Regime in Palestine: Expectations and Challenges, JURIST - Professional Commentary, June 2, 2015, http://jurist.org/professional/2015/ibrahim-fares-secured-transactions-regime.php.
The title of "records correction boards" fails to convey the scope and seriousness of the boards' enterprise. Congress created the BCMR system in 1947 to rid itself of the burden of private members' bills addressing military injustices and erroneous records. The boards are, as the Army has stated, the "Supreme Court" for military personnel law disputes. Each military department has a BCMR, as well as the Department of Homeland Security, which adjudicates claims from members of the Coast Guard.
The BCMRs are described as "unique adjudicative mechanisms unlike traditional civil, criminal, or administrative courts." They are poorly understood and infrequently discussed, yet their importance to service members and veterans is inestimable. The BCMRs have decided tens of thousands of applications from military personnel and veterans alleging errors and injustices in their military records. Applications range from simple matters such as incorrect service dates or rates of pay to highly complex ones entailing the failure to diagnose and treat physical and psychiatric conditions, allegations of discrimination in all its varieties and the military's failure to obey statutes and regulations, as well as claims of reprisal.
The BCMRs are also the primary source of potential redress for service members who have pursued other avenues of relief such as complaints to commanders, the inspectors general, military equal opportunity organizations and a variety of subordinate military boards. At stake in many instances are careers, reputations, promotions, retirements and large sums of money. For most applicants, the BCMRs are the final resort, as few pursue judicial review of adverse decisions.
The exceptional importance of the BCMRs is not matched to the procedures they employ to adjudicate applications. In response to constituent complaints about the BCMRs, Congress directed the Department of Defense in 1996 to report on their procedures. The report raised several red flags concerning board procedures and made corresponding recommendations for change, which were largely ignored. Beginning in 2009, Freedom of Information Act (FOIA) requests to the BCMRs further exposed a system devoid of procedural fairness and one that is structurally rigged against applicants. While the BCMRs are statutory boards, Congress apparently has never held an oversight hearing concerning their operation.
Key findings from the 1996 DoD Report and FOIA requests (on file with the author) include: (1) BCMR members serve voluntarily on a part-time basis in addition to their full-time employment with the given military department; (2) BCMR members receive little meaningful training prior to or during their board service; (3) BCMR members are not required to, and typically do not, review actual application materials; (4) BCMR staff prepare recommended decisions which voting members almost invariably accept; (5) on average Army and Navy BCMR members spend less than five minutes on each application and (6) personal appearance hearings are a rarity.
Most disturbing, however, are the measures taken by the staff of the Army, Navy, and Coast Guard BCMRs to keep applicants and their submissions away from actual voting members. Only the Air Force requires its members to review applications in advance of decisional meetings. As the Navy has noted:
Generally the Board members do not prepare in any way for the applications that they will be called upon to decide during their regularly scheduled meetings. Simply put they do not see or have any knowledge of the cases they will decide before they meet.
That approach, shared by the Army and Coast Guard BCMRs, results in the complete dependence by BCMR members on the staff who prepare and present applications. Without personally reviewing all applications, BCMR members cannot know if staff members have accurately and fairly presented the facts and law of a case, and they often do not. In the case of the Navy BCMR, staff also can serve as voting board members, and often do.
An information sheet obtained from the Army BCMR through FOIA purports to prepare new members for their first board meeting, explaining:
There are usually about 90 cases divided into three stacks by potential decision - Grant, Partial Grant, and Deny. Many Board members choose to review the grant cases first as [a] method for getting warmed up...Cases range in sizes from 5-10 pages up to a wrapped bundle with several folders of 30-40 pages each. In the beginning, take a few minutes to review the case. As you become familiar with cases you will know exactly where you need to begin reviewing.
The Board members then are instructed to initial their vote on each case. "It is the Chair's responsibility to review each case for the two board member's vote initials, initial the Chair's final vote and sign each case to complete the process." This strongly indicates that the three board members do not convene in a traditional sense, discuss each case, vote on the case just discussed, and then move to the next. Rather, each member goes through the stack of cases initialing his or her decisions. According to the Army:
If you come across a decision on a case that you may not agree with, you can do two things. The first is to bring up the case and summarize the point of disagreement orally to the other two Board members, or tell the Chair of the Board that you believe the case needs further review and discussion and either it hand it to the Chairman or put it aside where it won't be mixed in with the other cases.Board member discussion of a case thus is called for only where a member disagrees with a recommended decision of the staff.
Many applications to the BCMRs raise issues of credibility, which in other adjudicative contexts are resolved through witness testimony. While Congress authorizes the BCMRs to hold personal appearance hearings, and applicants frequently request them, the BCMRs rarely do, even where highly material facts are disputed. The Navy BCMR has not held a hearing in over twenty years [PDF]. The Army held one hearing in a span of four years, while deciding over 36,000 applications during the same period.
Once decided, the BCMRs consign their decisions to a dysfunctional website (circa 1995 in design and construction) that only the most patient researchers will find beneficial. Such cavalier treatment of past decisions is consistent with the BCMRs' belief that they are not bound by precedent, though federal courts state otherwise. The BCMRs all report that they do not consult past decisions or maintain a catalogue of past decisions for staff and member reference. As the reader can readily discern, the BCMRs are the "wild west" of legal practice.
If enacted, the Legal Justice For Servicemembers Act would do much to remedy the grave problems plaguing the BCMRs. The legislation would require full-time service of BCMR members, with each panel hearing being presided over by an administrative judge. BCMR membership would be limited to a period of five years. The BCMRs would be obligated to assist applicants in obtaining relevant military records and to transmit such records to applicants. The legislation also would require meaningful training for BCMR members.
The legislation also remedies the failure of the BCMRs to hold personal appearance hearings by directing the boards to "hold an evidentiary hearing on a claim that presents a genuine issue of material fact, if requested by an applicant." Concerning the BCMRs' treatment of its own decisions, the legislation would require the boards to characterize their decisions as precedential or non-precedential and would permit applicant's to cite and rely on specific precedential decisions.
BCMR decisions are subject to judicial review, albeit under an "unusually deferential" standard of review. The legislation would remove the basis for that standard by limiting the discretion available to the military secretaries in deciding whether or not to implement a BCMR decision, and by mandating review under the standards of the Administrative Procedure Act.
To be sure, the BCMRs and their staffs are not to be wholly blamed for the disgraceful state of BCMR affairs. They do not control their budgets and levels of staffing. The number of applications received by the BCMRs, especially the Army and Navy, is daunting and has grown steadily. It is unsurprising that efficiencies are sought. While the Legal Justice For Servicemembers Act is no panacea for the multitude of ills plaguing the BCMR process, it is a bold step in the right direction. Congress should hold hearings on the BCMRs at its earliest convenience and give the bill its fullest consideration.
Raymond J. Toney practices military law from his offices in Emeryville, CA. He represents service members and veterans before the BCMRs and in federal court.
Suggested Citation: Raymond J. Toney, The Legal Justice For Servicemembers Act, JURIST - Professional Commentary, May 9, 2015, http://jurist.org/professional/2015/05/raymond-toney-legal-justice-for-servicemembers.php.
At the trial level, courts are concerned with liability, while at sentencing the issue turns to culpability. Or as the Commission long has noted, "[t]he principles and limits of sentencing accountability...are not always the same as the principles and limits of criminal liability." This has nevertheless led to considerable confusion inasmuch as courts often equate trial liability with sentencing accountability. For example, in a fraud conspiracy involving A and B that resulted in $15 million in investor losses, while A and B may criminally liable for the conspiracy, the guidelines recognize that A may not be as accountable—in other words, less culpable—as B especially where A's role was comparatively small. The same, of course, holds true for drug conspiracies.
The Commission now has clarified conspirator A can only be held accountable for the acts of conspirator B where (1) B's acts were within the scope of criminal activity that A agreed to jointly undertake, (2) B's acts were in furtherance of that criminal activity and (3) B's acts were reasonably foreseeable in connection with that criminal activity. The first criterion, which now has been added to the guidelines, clarifies that within conspiracies, each co-conspirator should only be held accountable for conduct that he actually agreed to jointly undertake with the other conspirators.
This clarification hopefully will reverse the trend of automatically holding one conspirator accountable for the conduct of all other conspirators regardless of the conspirator's actual role in the offense. After all, holding a conspirator accountable only for the foreseeable conduct he agreed to undertake, which was in furtherance of the conspiracy, is a far better and fairer measure of a defendant's culpability than otherwise.
The Commission has now voted that courts are only to look at the relative culpability of co-conspirators in the case before them, rather than engage in a review of similarly situated defendants in other cases. This move likely will reduce unnecessary litigation on the issue and hopefully increase application of this downward adjustment, which currently is only awarded an abysmally 6.9% of the time.
1. Inflationary Adjustment
The Commission voted to revise economic tables to account for inflation. For example, the fraud-loss table at USSG §2B1.1(b)(1) and tax loss table at USSG §2T4.1 now have had their respective limits increased, which can serve to mitigate punishment. Under the current iteration of the guidelines, a loss amount of $500,000 will result in an offense level increase of +14. However, come November 1, 2015, the same loss amount will only result in an increase of +12. Below is the final table for USSG §2B1.1(b)(1).
But what the Commission giveth, it also taketh away. In addition to adjusting the loss tables for inflation, which has a mitigating effect, the fine tables also have been adjusted, which has a significant punitive effect. Indeed, the fine ranges now are approximately doubled. Practitioners, therefore, should be aware of this new, onerous modification, and note the built-in ex post facto limitation stated within the table itself. The revised fine table for individuals with the "special instruction" is below:
2. Intended Loss
For economic crimes, the guidelines look primarily to the amount of "loss" to determine offense seriousness. For example, in a typical Ponzi scheme, loss generally is equivalent to the total amount of money all investors lost, i.e., "actual loss." However, loss also can include so-called "intended loss." Returning to the Ponzi scheme example, intended loss thus would be equivalent to the money the offender intended investors to lose, e.g., where the offender was arrested before he could cash an investor;s check. If the intended loss is greater than the actual loss, then the guidelines direct a sentencing judge to use the amount of intended loss.
The concern has been how to measure intended loss. Is it a subjective or objective measure? Consistent with its focus on the actual culpability of the offender reviewed in the sections above, the Commission now has clarified that intended loss is to be measured by the defendant's subjective intent.
3. Victims Table
Here, the Commission has expanded the enhancement by adding an either/or element of "substantial financial hardship." While the government must now prove in certain cases that victims of the offense suffered substantial financial hardship, this alone can lead to an enhancement in some cases, even if the number of victims is below the threshold, for example, if the offense involved less than ten victims. Currently, there is no such enhancement. Under the proposed amendment, if the offense involved less than ten victims but resulted in substantial financial hardship to one or more, there is a two level increase.
A four-level enhancement is mandated where the offense resulted in substantial hardship to five or more victims. If the offense resulted in substantial hardship to 25 or more victims, the increase is six levels. The revised victim table is below:
4. Sophisticated Means
Here again the Commission has revised the guidelines to focus on the defendant's culpability, as opposed to the nature of the offense. Where the "sophisticated means" enhancement at USSG §2B1.1(b)(10)(C) traditionally has looked to the nature of the offense itself in terms of sophisticated, the guidelines will now direct courts to determine whether "the defendant intentionally engaged in or caused the conduct constituting sophisticated means." This amendment hopefully will have the effect of reducing what oftentimes is the automatic application of the enhancement based solely on the nature of the offense itself, regardless of the defendant's intent.
5. Fraud on the Market
In 2012, Commission adopted a controversial "modified rescissory method" ("MRM") for determining loss in securities fraud cases, and indicated that there was a "rebuttable presumption" that this method should be used by courts in such cases. To say the least, it did not meet with a receptive audience and in fact proved quite unwieldy and inaccurate. Accordingly, the Commission wisely voted to remove the rebuttable presumption in favor of that method and stated that courts now may use "any method that is appropriate and practicable under the circumstances."
Still, the Commission left in the modified rescissory method identifying it as but one method "the court may consider" when calculating loss in securities fraud cases. This prompted Commission Vice-Chair Judge Charles Breyer to object during the hearing that the method was not completely stricken from the guidelines. Judge Breyer rightly indicated that there is no evidence courts can use MRM effectively and instead should use the civil standard for determining losses in securities fraud class actions unanimously adopted by the US Supreme Court in Dura Pharmaceuticals, Inc. v. Broudo.
In all events, that the Commission corrected this unwise presumption in favor of an otherwise unworkable method was quite welcome and will avoid needless litigation over the propriety of MRM in future cases.
The United States, with only 5% of the world's population, incarcerates 25% of the world's prisoners. That the oldest democracy in the world continues to incarcerate more of its citizens per capita and in greater number than any other nation on earth—and in which the federal government incarcerates more individuals than any single state—is a sad and shocking statistic. With the federal Bureau of Prisons housing inmates at over 30% of its rated capacity, we simply cannot afford to continue our fixation on incarceration, especially for low level non-violent, first-time offenders. The Commission's modest changes nevertheless constitute a major recognition of this problem and its commitment to smarter sentencing.
Alan Ellis, past president of the National Association of Criminal Defense Lawyers and Fulbright Award recipient, is a nationally recognized authority in sentencing, prison matters, and post-conviction remedies with offices in San Francisco and New York. He is co-author of the Federal Prison Guidebook, the Federal Sentencing Guidebook, the Federal Post Conviction Guidebook and a Contributing Editor to the American Bar Association's Criminal Justice magazine for whom he writes a quarterly column on Federal Sentencing. Mr. Ellis has been described as "one of this country's pre-eminent criminal defense lawyers" by Federal Lawyer magazine. The United States Court of Appeals for the Ninth Circuit, in a published decision, has identified him as a "nationally recognized expert in federal criminal sentencing." He is a sought-after lecturer in criminal law education programs and is widely published in the areas of federal sentencing, Bureau of Prisons matters, appeals and other post-conviction remedies, with more than 120 articles and books and 70 lectures, presentation and speaking engagements to his credit. He was a Visiting Professor of Law, by way of a Fulbright Award from the US State Department, to conduct lecturers at Shanghai. China Jiaotong University School of Law on the protections afforded criminal defendants in America.
Mark H. Allenbaugh, of counsel to the firm, is a nationally recognized expert on federal sentencing, law, policy and practice. He has served as co-chair of the Sentencing Committee for the National Association of Criminal Defense Lawyers; chair of the Federal Sentencing Guidelines Task Force for the D.C. Chapter of the Federal Bar Association; and as a member of the ABA's Corrections and Sentencing Committee. He is also a member of the U.S. Sentencing Commission's Practitioner's Advisory Group.
Prior to entering private practice, he served as a Staff Attorney for the U.S. Sentencing Commission. Mr. Allenbaugh has published numerous articles on sentencing policy and criminal justice, which have been cited over 100 times in the top US law journals, and over a dozen times in published federal district and appellate opinions including At a "Loss" for Justice: Federal Sentencing for Economic Offices, 25 Crim. Justice 22 (Winter 2011), "Drawn from Nowhere": A Review of the U.S. Sentencing Commission's White-Collar Sentencing Guidelines and Loss Data, 26 Fed. Sent. R. 19 (2013), Federal Sentencing Tips, 37 Champion 40 (2013), Trends and Practice Tips for Representing Child Pornography Offenders at Sentencing, 27 Crim. Justice 29 (2012). He is a co-editor of Sentencing, Sanctions, and Corrections: Federal and State Law, Policy, and Practice, 2nd ed., Foundation Press, (2002). Mr. Allenbaugh is licensed to practice before the United States Supreme Court and numerous federal and state courts throughout the United States.
Suggested citation: Alan Ellis and Mark H. Allenbaugh, The US Sentencing Commission Votes for Fundamental Fixes to the Sentencing Guidelines, JURIST - Hotline, May 9, 2015, http://jurist.org/dateline/2015/05/Alan-Ellis-Mark-Allenbaugh-US-Sentencing-Commission.php
Listening carefully to objections to state religious freedom laws, two assumptions emerge that are demonstratively false. Those who assert them should weigh their implications carefully and reconsider their opposition to these laws.
The first wrong assumption is that those who oppose religious freedom laws never have conscientious objections to coercive governmental requirements like conservatives do, because they assume government never misuses its power in a way that would create a conflict of conscience for them. The second wrong assumption is that only conservative religious business owners refuse to serve selected customers—that liberal business owners always serve everyone and never have a conscientious conflict with what a customer asks the owner to do.
These religious liberty laws respond to the reality that government asserts itself through coercion of people. Most of the time, citizens have little disagreement with the government forcing people to do certain things or refrain from other behaviors. For example, we all benefit when the police pull over speeders, drunk drivers or those running red lights. But the government can sometimes use its power to compel people to do things that violate their beliefs. Right now, those who oppose the legislation to protect religious liberty in North Carolina and other states fail to remember these laws protect everyone's individual beliefs and that one day the government could order them to do something that violates their beliefs and they will be glad that the religious freedom law offers them a defense to protect them from government coercion.
And yes, those who consider themselves liberal need protection from government actions forcing them to violate their beliefs too. For example, in the 1960's many who opposed the Vietnam War did so because of their pacifist religious beliefs that fighting in a war dishonors God's creation of human beings in His image. The pacifists therefore had a massive conflict of conscience with military draft laws. Congress could have forced the pacifists to serve in the military, but instead Congress passed laws exempting the pacifists from the draft. Congress viewed protecting the pacifists' right of conscience as so important that it was willing to exempt them, even though it meant that others would have to go to fight in their stead.
Also during this time, a Memphis high school (Tennessee) required all students to take a ROTC course in order to graduate. One student, a religious pacifist, objected to taking the ROTC class. Rather than granting him an exemption, school officials said he could not graduate. He filed a lawsuit, and the US Court of Appeals for the Sixth Circuit ruled that the high school had to allow him to graduate without taking the class. The court ruled in his favor by using the same four-part religious liberty test that is expected to be part of North Carolina's proposed religious freedom law.
In October 2011 Eastern Michigan University (EMU) argued in court that it had no legal obligation to accommodate the religious convictions of its graduate students. It claimed it could force them to perform any assignment the school deemed necessary and could expel the students if they declined on conscience grounds not to perform the assignment.
Judge Jeffrey Sutton, one of three judges on a panel of the US Court of Appeals for the Sixth Circuit that heard the case, pointed out that he has had law clerks who object on religious grounds to the death penalty and have asked him to excuse them from working on any death penalty cases. Sutton accommodates them, even though it means that the other law clerks shoulder a disproportionate load of work in capital cases. During oral argument, Sutton asked EMU's attorney if he thought that he should force the law clerks to work on death penalty cases. Of course, the answer is fairly obvious. Sutton is doing the right thing by accommodating the beliefs of his law clerks who oppose the death penalty.
Similarly, in March 2015 the American Pharmacists Association passed [PDF] a resolution urging its members not to sell to the government the drugs needed for lethal injections to execute convicted murderers. The association said that selling drugs used for executions is "fundamentally contrary to the role of pharmacists as providers of health care." One could imagine a pharmacy board in a state with the death penalty ordering all pharmacists in the state to stock and sell the drugs used in lethal injections or the government would revoke their licenses to dispense drugs. If those pharmacists live in the 20 states with religious freedom laws, they can invoke it as a defense in opposition to the government's retaliation against them for refusing to sell those drugs.
Sometimes, a customer can create a conflict of conscience for a supporter of same sex marriage, who must, because of his beliefs, deny service to that customer. Antonio Darden runs a hair salon in Santa Fe, New Mexico. Susana Martinez, the Republican governor of New Mexico, used to go to Darden to get her hair styled and dyed. Darden struggled with his beliefs and then finally announced publicly that he could no longer style and dye Martinez's hair because she believes marriage is the union of one man and one woman. Darden, a supporter of same-sex marriage, could not in good conscience style the hair of a woman who opposed his views, so he told the governor to find another stylist.
Martinez did not sue Darden for discrimination, though she suffered the inconvenience of finding a new hairdresser and changing hair color because Darden would not give her the secret formula for her dye, the Huffington Post reported. It also said that wait staff at Santa Fe restaurants were emboldened by Darden's stand on principle and were now prepared to deny service to the governor because of her beliefs on marriage.
Martinez was right not to sue Darden for what he did. He has a right not to be compelled by the government to violate his beliefs when plenty of other hairdressers will do the governor's hair, despite the inconvenience it has caused her. And all North Carolina's proposed religious freedom law will do, like the similar laws in other states, is to ensure that those who wish to force people of faith to violate their beliefs in the course of doing business don't have the freedom to do so without a compelling reason. None of these laws give an automatic victory to anyone who invokes religion as the basis for their actions; they allow them to make a defense that the court weighs. These laws do not pick winners or losers in advance; they require the government and the religious adherent to work through a four-part test, or filtering system, to separate the good cases from the bad cases, to determine when the government must accommodate the person's religious beliefs, and when the government's interest is so important that it does not have to grant the religious person an exemption from the general requirement.
Without federal and state religious freedom restoration acts, or similar legal protections, the pacifists in the 1960's likely would have been drafted to fight in Vietnam, the Memphis student may have been forced to attend ROTC training, and Eastern Michigan University probably would have been allowed to violate the faith convictions of its graduate students. But that is far less likely to happen in North Carolina if it joins the 20 other states and the federal government in adopting a religious freedom law.
The debates over state religious freedom laws has devolved into partisan and ideological warfare. But those who oppose these laws should reconsider viewing "religious liberty" as a stronghold of their opponents that they must destroy in an ideological battle. Religious liberty is not an enclave of one's political enemies. Religious liberty protects every one of us. Because one day, sooner or later, many of us may face government requirements that violate our conscience, and we should all want legal protection on the books that protects our freedom to opt out.
As societies change and grow, conscientious objections will inevitably conflict with governmental requirements. Religious liberty laws protect us all. We denigrate and destroy them at our peril.
Jordan Lorence is senior counsel with Alliance Defending Freedom, which has advised state legislators across the country, including North Carolina, on religious freedom laws and is also defending the religious freedom of many clients in court.
Suggested citation: Jordan Lorence, Everyone benefits from religious liberty protections, JURIST - Professional Commentary, May 7, 2015, http://jurist.org/professional/2015/01/jordan-lorence-religious-freedom.php.
The "injury in fact" prerequisite articulated by Data Processing was further refined in Lujan v. Defenders of Wildlife, which denied standing to citizens who claimed injury as a result of the EPA's failure to enforce environmental regulations, although a statutory provision expressly allowed regulatory beneficiaries to file suit. Since Lujan was decided in 1992, a plaintiff in a citizen suit must generally satisfy three requirements in order to show standing: (1) injury in fact; (2) injury causally linked to the defendant's actions; and (3) relief that must be able to provide compensation for the plaintiff's alleged injury. Referring to citizen suits as "generalized grievance cases," Justice Scalia held that "an injury amounting only to the alleged violation of a right to have the Government act in accordance with law [i]s not judicially cognizable."
On February 19, a set of anti-marijuana lawsuits was filed in the US District Court of Colorado. Unlike the lawsuit Nebraska and Oklahoma filed jointly in December 2014 against Colorado, these suits were filed by private citizens, representing a different approach to attacking the legality of recreational marijuana in the State of Colorado.
In one suit, the plaintiffs, Safe Streets Alliance and New Vision Hotels Two, LLC name as defendants multiple private parties, among them a marijuana retailer, its sole owner, the property management company that leased commercial property to the retailer and its officers, the accountant for the dispensary and other parties having any private business relationships with the dispensary. The second suit was brought by Safe Streets Alliance and Phyllis and Michael Reilly, and names both private parties similar to those entities in the New Vision case, in addition to state officials, including Governor John Hickenlooper, the Executive Director of the Colorado Department of Revenue, the Director of the Colorado Marijuana Enforcement Division, the Pueblo County Commission and the Pueblo County Liquor and Marijuana Licensing Board.
Both cases pin their claims on violations of the federal Racketeer Influenced and Corrupt Organizations Act (RICO). Specifically, both cases use identical language claiming that the respective plaintiffs "file this suit to vindicate the federal laws prohibiting the cultivation and sale of recreational marijuana and their rights under [RICO]."
Although the New Vision suit does not specifically name government officials as defendants, both suits are essentially citizen suits—i.e., lawsuits filed by members of the public to challenge the legality of some governmental action or inaction.
In New Vision, plaintiffs allege that they have suffered damage to their hotel business as a result of a "planned" recreational marijuana operation expected to open less than 75 yards from the entrance of their hotel. All of their alleged injuries are highly speculative: "many parents and coaches will avoid booking with a hotel that is within a short walking distance and direct sight of a recreational marijuana store and grow facility"; "additional teams are likely to decide not to return after they learn of defendants' nearby recreational marijuana operations"; "prospective New Vision guests also worry that Defendants' recreational marijuana operations will attract crime." [Emphasis provided.] Their alleged damages are further undercut by the fact that revenues from the sale of cannabis in Colorado—including from canna-tourism—have generated tens of millions of dollars to the benefit of the state's economy.
Their sole proffer of current damages is the alleged statements of booking agents for two high school ski teams who have stayed at the hotel in the past, and allegedly said "that their teams will not return due to defendants' marijuana operations." Since plaintiffs are unable to prove that they have suffered any actual injury as a result of a marijuana business that has not yet even opened, their lawsuit is subject to dismissal on this ground alone.
Similar to the New Vision plaintiffs, the Reilly's action is also subject to dismissal for failure to state a claim. The Reilly plaintiffs own approximately 105 acres of land adjacent to a recreational marijuana grow operation. The Reillys do not live on the land but "often visit on weekends" with their children and friends. They allege injuries as a result of the construction of the marijuana operation on the adjacent property that "has already marred the mountain views from the Reilly's property."
The Reillys also contend that their property is located in a residential development that is subject to restrictive covenants. While they concede that the marijuana operation is properly zoned and located outside the boundaries subject to those covenants, they continue to argue that "if it were within those boundaries [of the residential development], it would violate numerous covenants." Finally, the remainder of their alleged damages stems from what they contend is the fact that "marijuana plants are highly odorous … and their offensive smell travels long distances."
Aside from the fact that their allegation concerning the foul odor of marijuana plants is subjective and that they are arguably hyper-sensitive plaintiffs in this regard—thus defeating claims for both public and private nuisance—they impliedly acknowledge that an industrial manufacturing plant could be properly zoned for the same location. Accordingly, the Reilly lawsuit asserts vague and speculative damages, and not actual harm, inviting dismissal for failure to state a claim on which relief can be granted.
What is actually at the core of these lawsuits, however, is the plaintiffs' efforts in both actions to compel state official enforcement of federal laws—specifically, the Controlled Substances Act of 1970.
In their lawsuits, both sets of plaintiffs argue at the outset that the CSA makes dealing in marijuana a felony. Both lawsuits contend that, "Despite the express federal prohibition on marijuana, Colorado and many of its local jurisdictions have enacted laws, ordinances and regulations designed to promote growth of a billion dollar commercial marijuana industry."
Essentially, the plaintiffs in both cases are arguing for official enforcement of the CSA, using alleged RICO claims as the vehicle to carry them to success. Both sets of plaintiffs are facing significant challenges with respect to their RICO claims. RICO laws have historically targeted white-collar conspirators and organized crime. The purpose of RICO is basically deterrence and punishment. RICO laws are very complex and an expanded discussion of it is well beyond the scope of this piece. It is sufficient to say that for purposes of these lawsuits, the State of Colorado officials, as well as the private entity defendants, are not likely to be found by a federal court as "criminal organizations" within the meaning of RICO.
The plaintiffs' inability to show any injury in fact, combined with the failure of their RICO claims leaves them in the position of regulatory beneficiaries: members of the public who seek to have courts adjudicate the legality of official action.
In these recent cases, plaintiffs begin their argument by making a federal preemption argument. While the Supremacy Clause, contained in Article VI of the Constitution, establishes the US Constitution, federal statutes and treaties as "the supreme law of the land," it is not without limitations. The Tenth Amendment, which is part of the Bill of Rights, states that the federal government possesses only those powers delegated to it by the Constitution. All remaining powers are reserved for the states or the people.
New York v. United States and Printz v. United States both recognized the tempering effect of the Tenth Amendment on the Supremacy Clause, when it articulated the anti-commandeering doctrine, which prohibits the federal government from commandeering state governments. Writing for the majority in New York, Justice O'Connor held that, "As an initial matter, Congress may not simply 'commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program."
The anti-commandeering doctrine was further developed five years after New York, when the Printz court expanded the doctrine's reach. Said the court, "We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States' officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty."
The presumption against federal preemption when it involves the exercise of historic police powers of the states is a well-established principle in American jurisprudence. State medical marijuana laws have generally been permitted this presumption, since they are enacted pursuant to traditional state police powers in defining criminal conduct and regulating drugs and medical practices.
In fact, the CSA on which the Colorado plaintiffs rely explicitly contains a statutory preemption provision that articulates Congress's intent with respect to the relationship between state and federal law. Section 903 states: "No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together."
What this means is that the federal government is free to expend its own resources to implement and enforce its own laws, but it may not compel States to use its resources to enforce federal law.
Circling back to whether the Colorado plaintiffs have standing to "vindicate the federal laws prohibiting the cultivation and sale of recreational marijuana," clarification can be found in Heckler v. Chaney, where Justice Rehnquist found that "when an agency refuses to act it generally does not exercise its coercive power over an individual's liberty or property rights," and therefore there is no aggrieved individual with standing to sue.
Since the Colorado plaintiffs are in actuality seeking state official enforcement of federal law, pre-trial motions will, in all probability, dispose of these twin lawsuits.
Roxane Peyser practices business and regulatory law, specifically focusing on the cannabis industry, from her offices in Colorado. She has represented a wide range of cannabis businesses, as well as those in supporting industries. Ms. Peyser received input on the RICO aspects of this issue from Michael J. Zomcik of Barnisa & Zomcik in Houston, Texas.
Suggested citation: Roxane Peyser, Lujan Eliminates Plaintiffs' Standing In New Marijuana Cases, JURIST- Professional Commentary, Mar. 30, 2015, http://jurist.org/professional/2015/03/roxane-peyser-lujan-marijuana.php.
Twenty-five years on, Kreis has been widely applied, with arguably disastrous consequences for military personnel and veterans seeking judicial examination of BCMR decisions. The APA's inaptly named "arbitrary and capricious" standard (which fails to include analysis of whether the case at bar is "unsupported by substantial evidence" and/or is "otherwise not in accordance with law") already afforded ample deference to military decisions. With Kreis added to it, the courts merely need to engage in a connect-the-dots exercise of finding a "rational connection between the facts found and the choice made." This is not an onerous task. As one expert has noted [PDF], the unusual deference accorded to the military means "[it] typically has little to fear from the federal courts."
A recent decision from the DC Circuit, Haselwander v. McHugh, may change that, if only slightly. While the panel's decision obviously does not overrule Kreis, it does spell out a three-step process of review that helps restore considerations of fairness and justice to what has arguably become a review process largely unconcerned with those matters. The first two steps explained by the court are familiar and uncontroversial: the court owes the district court no particular deference and reviews BCMR decisions de novo and the court must set aside BCMR decisions not supported by reasoned decisionmaking." It is the final step that offers plaintiffs and appellants a glimmer of hope.
Reaching for assistance from the US Claims Court, the predecessor to the US Court of Federal Claims and the Federal Circuit, the DC Circuit in Haselwander approvingly quoted Yee v. United States, stating, "[W]hen a correction board fails to correct an injustice clearly presented in the record before it, it is acting in violation of its statutory mandate." It also quotes Caddington v. United States: "We feel that the Secretary and his boards have an abiding moral sanction to determine, insofar as possible, the true nature of an alleged injustice and to take steps to grant thorough and fitting relief." "Applying these principles to the case at hand," the DC Circuit concluded that the Army Board for the Correction of Military Records (ABCMR) "failed to fulfill its statutory mandate and that the denial of Haselwander's application was arbitrary and capricious."
The facts of the case are illuminating. Mr. Haselwander was serving in Vietnam when an enemy rocket exploded near his tent and injured him. He was taken to an aid station where he was bandaged and photographed. While he was being medically tended, he learned that some of his dogs (he served with the 49th Infantry Scout Dog Platoon) had also been injured in the attack and he immediately left to assist them. He flew with one of the wounded dogs to a veterinary hospital. The medical staff that treated Mr. Haselwander apparently did not complete his paperwork. The Army did not award him the Purple Heart for his wounds.
Mr. Haselwander first applied to the ABCMR in 2007. He requested that his records be corrected to show that he was awarded the Purple Heart. He supplied photographs of himself in bandages taken on the day of the attack and identified witnesses to the attack, one of whom did receive the Purple Heart. The ABCMR denied his application, stating, "[T]here is no available evidence of record to show that the applicant was treated for a wound that was sustained as the result of enemy action."
Mr. Haselwander applied a second time, providing additional evidence in the form of letters from fellow soldiers who were eyewitnesses to the rocket attack, to Mr. Haselwander's wounds and to his medical treatment. He also provided a "Daily Staff Journal" of June 6, 1966 that noted the rocket attack and the human and canine casualties of the attack. The journal entry did not identify the victims by name. The ABCMR again denied his application. According to the Board, "[T]he available evidence is not sufficiently substantiating to show that the applicant was wounded as the result of hostile action, that he received medical treatment for any such wound and that such medical treatment was made a matter of official record."
In 2010, Mr. Haselwander sought review of the ABCMR decisions in the US District Court for the District of Columbia. The error alleged by Haselwander was the failure of the Army to record his injuries and medical treatment. He contended the ABCMR's decision not to correct his records and award him a Purple Heart was arbitrary, capricious and unsupported by substantial evidence.
Rejecting Mr. Haselwander's claim, the court noted:
[I]t is patently clear from the record that the ABCMR's decision to deny a recommendation of correction with regard to plaintiff's military record was properly based on the lack of substantiating medical records, as required by the strict regulatory criteria for award of the Purple Heart.
Applying the "unusually deferential" standard of review initiated by Kreis, the court concluded, "because the record clearly shows that the ABCMR examined the relevant data and articulated a satisfactory explanation for its action, including a rational connection between the facts found and the choice made, the ABCMR's decision was not unlawful."
By the court's reasoning, because the medical staff treating Mr. Haselwander failed to complete paperwork for his injuries (seemingly because Mr. Haselwander left medical treatment to assist the wounded dogs), no official medical records of his injuries existed and because no medical records of his injuries existed, Mr. Haselwander was not entitled to the Purple Heart. The court was technically correct: if there is no medical record, and there was none, the criteria for awarding the Purple Heart are not met. The court evinced no concern that the Army might have erred by failing to complete a medical record that would have entitled Mr. Haselwander to the Purple Heart or that the purpose of the ABCMR is to remedy such errors.
Reversing the district court, the DC Circuit found that the ABCMR "misapprehends its powers and duties as a record correction body when it denies an application because the applicant's records are incomplete. The void in Haselwander's medical records is the very error that he seeks to have corrected..." The ABCMR's decision, the court concluded, "defies reason and is devoid of any evidentiary support" and is "patently unfair," "myopic" and "unworthy of any deference." A starker contrast with the view of the court is hard to imagine.
Haselwander illustrates well the blunt instrument that the "unusually deferential" standard of review so often is. Having no concern for the fairness of a decision rendered pursuant to a statute that arguably has fairness as its raison d'être, Kreis is ill conceived, notwithstanding the logic and precedent on which it is based. A judicial filter so coarse that only the "most egregious" military decisions are prevented, while "merely egregious" ones get a pass, is repugnant to the principle of co-equal government, not to mention justice. And courts should not have to choose between following the letter of Kreis and ignoring the remedial spirit of 10 USC § 1552. Haselwander points in the right direction.
Raymond J. Toney practices military law from his offices in Emeryville, CA. He has represented numerous veterans suffering from combat-related PTSD. His web address is www.militarylawpro.com.
Suggested citation: Raymond J. Toney, Haselwander v. McHugh: DC Circuit Restores Fairness to Its Review of the Boards for the Correction of Military Records, JURIST - Professional Commentary, Feb. 6, 2015, http://jurist.org/hotline/2015/02/raymond-toney-military-records.php.
However, some workers' compensation schemes provide for an exception to this general rule of immunity that is commonly referred to as the "deliberate intent" exception. In these states, the deliberate intent exception is a narrow one that applies when an employer acts with a "deliberate intention" to harm its employee.
The 1978 West Virginia Supreme Court of Appeals case of Mandolidis v. Elkins Indus., Inc. was the catalyst that inspired West Virginia's current deliberate intent law. After Mandolidis, the West Virginia Legislature adopted several of the rules articulated in that decision.
On its face, West Virginia's current deliberate intent statute is unexceptional. The statute mandates that a participating West Virginia employer can lose its workers' compensation immunity in two instances. The first such instance is when an employer acted with a consciously, subjectively and deliberately formed intent to injure or kill an employee.
The second exception is broader and can only be met if five criteria are satisfied. These criteria can be summarized as requiring:
(A) The existence of a specific unsafe working condition which presented a high degree of risk and a strong probability of serious injury/death;
(B) The employer's actual knowledge of that specific unsafe working condition and the risk it posed;
(C) That the specific unsafe working condition violated a state or federal safety statute, rule or regulation, or violated a commonly accepted and well-known safety standard (as demonstrated by written evidence) within the industry or business of the employer;
(D) That despite the existence of the first three criteria, the employer nonetheless exposed the employee to the specific unsafe working condition; and
(E) That the employee suffered a compensable injury or death as a result of being exposed to the specific unsafe working condition.
Pursuant to West Virginia law, all five of these elements must be met in order for a plaintiff/employee to successfully prove deliberate intent. Failure to satisfy even one of these elements necessitates that a deliberate intent claim be resolved in favor of the defendant/employer. However, in practice, this requirement is sometimes not strictly applied. As such, West Virginia has a relatively high number of deliberate intent cases per year, and parties routinely settle claims that would probably not be viable in other states.
Ten members of the West Virginia House of Delegates and six members of the West Virginia Senate are trying to change the language of the state's deliberate intent statute in an effort to modify how it's applied. West Virginia House Bill 2011 ("HB 2011") and Senate Bill No. 11 ("SB 11") were introduced this January. The bills attempt to modify the deliberate intent statute in an effort to restrict that cause of action in West Virginia. Thus far, these efforts have concentrated exclusively on limiting the second method by which a plaintiff/employee can claim a case of deliberate intent.
The original drafts of the bills proposed three changes to the second exception. Perhaps the most significant of these proposed changes was the addition of language that articulated what was necessary in order for a plaintiff/employee to satisfy the "actual knowledge" requirement of subparagraph (B), stated above. These bills made clear that "constructive knowledge," or proof of what an employer should have known, are not enough to satisfy the actual knowledge standard and further stated that such actual knowledge can never be presumed. The bills further noted that these proposed changes were in direct response to the 2013 West Virginia Supreme Court case McComas v. ACF Industries, LLC. In that case, the West Virginia Supreme Court said that employers should not be allowed to turn a "blind eye" to workplace hazards. McComas further held that if a safety statute, rule, regulation or commonly accepted and well-known safety standard within the relevant industry imposed a specific duty upon the employer to inspect for a given danger and that such inspection would have revealed the specific unsafe working condition at issue, that the employer may be found to have actual knowledge of the specific unsafe working condition for purposes of subparagraph (B).
On January 30, 2015, the West Virginia House Judiciary Committee substituted the original draft of HB 2011 for a modified version of the bill. This new version both adds to and subtracts from the changes proposed in the original draft, but nonetheless contains similar language explaining the requirements necessary for a plaintiff/employee to satisfy the actual knowledge prong of subparagraph (B).
There have been mixed reactions to the bills. Proponents argue the proposed changes would make West Virginia's deliberate intent law more consistent with the law of other states. These proponents further claim that such tort reform is necessary in order to attract new business to the state and protect existing businesses from expensive litigation. Supporters of the bill also point out that deliberate intent lawsuits will remain an option when an employer acts intentionally or truly possessed actual knowledge of the specific unsafe working condition. Opponents argue the bill puts the state's workers at risk and unfairly insulates businesses from liability. This opposition cites events like the 2010 Big Branch mine disaster as proof that West Virginia needs a robust deliberate intent law.
While the bills being considered in the legislature are still in their early stages, this proposed legislation could result in significant changes to the deliberate intent law of a state that has historically applied that law in a very distinctive way. While tort reform is usually not the most publicized of issues, anyone who has a job or runs a business in West Virginia could be affected by this change that would modify more than 35 years of West Virginia's Workers' Compensation law. Such a proposed change is certainly worth following.
Christopher Edwards is an associate attorney at Bowles Rice, LLP, in Charleston, West Virginia. His practice focuses on litigation, deliberate intent, workplace safety and education law. Christopher received his JD from Washington and Lee University School of Law, where he graduated cum laude.
Suggested citation: Christopher Edwards, West Virginia Legislature Proposes Substantial Changes to Deliberate Intent Statute, JURIST - Professional Commentary, Feb. 5, 2015, http://jurist.org/professional/2015/02/christopher-edwards-workers-compensation.php.
The Houthis staged an apparently successful coup in Yemen after months of careful groundwork. The once-marginalized northern Zaidi Shia group, now at the head of a well-organized and rapidly expanding insurgency, prefers to be called Ansar Allah. Ansar Allah fighters stormed the presidential palace on January 20 without major bloodshed. On January 22, the government of President Abdu Rabbu Mansour Hadi resigned, leaving Ansar Allah in de facto control.
Former president Ali Abdullah Saleh, who was forced to step down after more than three decades in power as a result of Yemen's 2011 uprising, played a vital role in securing the tribal alliances that allowed Ansar Allah's fighters to leave Saada, their northern stronghold, and occupy Sanaa, the capital, last September. People close to the events have told me that Saleh was also pivotal in ensuring that Yemen's armed forces did not oppose Ansar Allah when it seized Sanaa in September or surrounded the presidential palace in January.
The 2011 uprising ended when, in a Gulf Cooperation Council (GCC) initiative, Saleh handed over power to Hadi, the vice president. In return, Saleh received blanket immunity from prosecution for crimes during his 33-year rule. The agreement also shielded his aides from prosecution for "political crimes" that did not constitute terrorist acts.
Despite the agreement, adopted into law in September 2012, Hadi decreed the creation of an independent commission of inquiry to investigate alleged rights abuses committed during the uprising, when government security forces killed scores of protesters. The commission was to recommend measures to hold those responsible to account and recommend redress to victims, but it was never created.
During the transition period after Saleh's removal, the UN stipulated that the government should take "steps aimed at achieving national reconciliation and transitional justice, and measures to ensure that violations of human rights and humanitarian law do not occur in future." In response, the departing Hadi government's legal affairs minister had drafted a transitional justice law—but it is unlikely to be adopted any time soon.
The government was not alone in shirking justice. As part of the transitional process, Yemen held a 10-month long National Dialogue Conference (NDC) that brought together many segments of society, with nine working groups, including one on transitional justice. But it could agree only a weak declaration due to the influence of Saleh's General People's Congress party. The best the Dialogue Conference could come up with was: "Human rights violators shall not elude accountability in accordance with the mechanisms defined by the transitional justice law"—hardly a ringing demand for justice.
Moreover, the final Dialogue Conference report, published January 2014, stated that its recommendations "cannot contradict the GCC Initiative and its executive mechanism and its principles and cannot contradict with UN Security Council resolutions 2014 and 2051"—presumably including the immunity from prosecution for Saleh and his associates.
No further steps were taken in 2014 to address past—or continuing—human rights abuses. Since he relinquished the presidency in 2011, Saleh has been able to remain in Sanaa and lead his party, which still has a majority of parliamentary seats and wields considerable power. Saleh's interference in the transitional arrangements led the UN Security Council to impose sanctions on him, as well as on two Ansar Allah commanders, in November, including a global travel ban and asset freezes. Hadi moved some Saleh relatives linked to abuses from their earlier posts, but gave them new ones.
Had there been further steps for justice, including domestic criminal investigations, they may have stigmatized Saleh and peeled away his legitimacy. In other countries, steps toward prosecuting current or former leaders implicated in widespread abuses have severely diminished their political influence.
While the diplomatic community has paid lip service to the need for justice, accountability and transparency, in private most foreign envoys have given priority to short-sighted notions of national interest and stability over public debate on individual rights. I have had meeting after meeting with foreign diplomats who insisted that Human Rights Watch's continued criticism of the immunity law and its calls for accountability, were—as one put it—tantamount to asking to "engulf Yemen in flames."
The sad reality now is that Yemen has become "engulfed in flames"—and things could get worse. Had Saleh and his cronies been made to stand trial for their alleged wrongdoings, rather than given a squalid "get out of jail free card," it is hard to believe that he would have retained the political capital he has used to such destabilizing effect. Of course, the failure to bring Yemen's most powerful rights abusers to justice is not the sole driver of instability and conflict, and there have been many other contributing factors. But the positive impact of pursuing justice is often given short shrift when weighing competing factors in resolving conflicts. At least, as far as Yemen is concerned, there seems little doubt that Saleh has been the main beneficiary of the Yemeni government's failure—supported by influential allies—to address impunity.
Yemen is certainly not the first country where ignoring atrocities has reinforced a culture of impunity. Afghanistan, the Democratic Republic of Congo, Bosnia and Herzegovina, Sierra Leone, Angola and Sudan, are just a few examples. Human Rights Watch has documented the unwelcome repercussions that can stem from the decision to overlook serious international crimes and include those implicated in human rights abuses in new governmental power structures in an effort to consolidate peace. These can include encouraging an atmosphere of mistrust and revenge that leaders can later manipulate to foment violence for their own political ends.
Apart from the political argument in favor of effective transitional accountability mechanisms, one also must never forget the more fundamental issue—that justice is important as a matter of principle, a key element of the rule of law.
In the short-term, it is easy to understand the temptation to forego justice in an effort to end armed conflict. Some politicians argue that the path to peace is more realistic and immediate if we don't hold abusers to account. However, Yemen is yet another reminder that a decision to ignore atrocities and to reinforce a culture of impunity may carry a high price.
Belkis Wille is the Yemen and Kuwait researcher with Human Rights Watch. She is responsible for researching abuses and conducting local and international advocacy on human rights issues affecting these countries. Previously, Wille worked at the Geneva-based World Organisation Against Torture, leading its Middle East and North Africa work from Tunisia and carrying out advocacy and trainings on torture prevention in Libya. Wille received her B.A. from Harvard University, her graduate diploma in law from City University London and her LL.M in human rights and humanitarian law from the University of Essex.
Suggested citation: Belkis Wille, Yemen: A False Choice on Justice, JURIST- Professional Commentary, Feb. 4, 2015, http://jurist.org/professional/2015/02/belkis-wille-yemen-choice.php.
While these events and issues were fresh in people's minds, Illinois legislators provoked public outrage by reviving an eavesdropping law that the Supreme Court of Illinois struck down earlier in the year—in part because it prohibited citizens from recording public interactions with police.
Sponsors and supporters of the new version of the law, including Democrat and Republican legislators and the Illinois chapter of the American Civil Liberties Union, insisted that the new statute would allow citizens to record police and that the public's concern was unwarranted. In fact however, Illinois' new eavesdropping law is confusing and harsh. Although it does not ban all recording of police—the court took that off the table—it discourages it about as much possible.
But before getting into those details, some background is in order. In most states, it is always legal to record your own conversations with police or anyone else. You never have to get the other person's consent or tell them you are recording.
Twelve states, however, have "two-party consent" laws that generally forbid recording a conversation unless every participant consents. Typically these are part of an "eavesdropping" or "wiretapping" statute, even though most people (and dictionaries) consider eavesdropping and wiretapping to involve listening in on someone else's conversation, not recording your own.
A previous version of Illinois' "two-party consent" law enacted in 1994 was one of the country's most controversial because it was unusually strict and seemed designed to prevent citizens from recording interactions with police and other government officials. Unlike other two-party consent laws, it did not include any exceptions allowing citizens to record police openly (rather than secretly) or in public settings. It did however allow police to record many types of encounters with citizens. It also made illegally recording police, prosecutors or judges a Class 1 felony—with a sentence of four to 15 years in prison—but made illegally recording a private citizen a Class 4 felony, with a lower sentencing range of one to three years in prison.
And in fact the government often enforced the law against people who recorded their interactions with police or others in government. For example, in 2009 Christopher Drew was charged with a felony for recording police as they arrested him for selling his artwork on a downtown Chicago sidewalk. In 2010 Michael Allison was charged with a felony for carrying a tape recorder into his own court hearing after the court refused to provide him with a court reporter. ("You violated my right to privacy," the judge told him in open court.)
That same year Tiawanda Moore was charged with a felony because she recorded conversations with internal affairs investigators at a Chicago police station after they seemed to be unconcerned about her report of an officer's unwanted sexual advances. (A jury acquitted her.)
Critics charged that, by preventing people from recording police and others, the law violated the right to free speech. The courts ultimately agreed. In 2012 the US Court of Appeals for the Seventh Circuit ruled in ACLU v. Alvarez that the statute likely violated the First Amendment by preventing citizens from openly recording police officers who were performing their duties in public and speaking loud enough for bystanders to hear them. The US District Court for the Northern District of Illinois later concluded that the statute indeed violated the First Amendment as applied to that specific conduct.
In 2014 the Supreme Court of Illinois struck down the entire statute because it was overbroad and violated the First Amendment in People v. Clark and People v. Melongo. The court held that the law was not narrowly tailored to serve the government's interest in protecting people's privacy because it prohibited recording not only private conversations but also public conversations, including "public interactions of police officers with citizens."
Before the end of the year the Illinois General Assembly passed, and outgoing Governor of Illinois Pat Quinn signed, the new eavesdropping law, which is similar in many ways to the old one. Like the old law, the new statute prohibits recording a conversation without the consent of all parties—though now only when the recording is made "surreptitiously" and at least one party to the conversation has a "reasonable expectation" of privacy.
Like the old law, the new statute punishes unlawfully recording police, prosecutors and judges more harshly than it punishes unlawfully recording anyone else—though it does not punish it as severely as before. Now unlawfully recording a conversation with a police officer, prosecutor or judge is a Class 3 felony, with a prison sentence of two to four years, while recording a conversation with anyone else is a Class 4 felony, with a sentence of one to three years. So, to be sure, the new law is less offensive in some respects than the old one.
But it still has serious problems. For one, it is vague. It does not explain how to determine whether someone has a reasonable expectation of privacy, so citizens often cannot know whether recording a given conversation would be legal or a crime. Courts consider questions of when and where someone has a reasonable expectation of privacy on a case-by-case basis, considering numerous factors, usually in the context of determining whether police conducted a Fourth Amendment "search." It is not reasonable to expect ordinary people to know that entire body of case law, let alone apply it to their own unique circumstances on the fly.
True, the Seventh Circuit and Supreme Court of Illinois have said that police do not have an expectation of privacy in "public" encounters with citizens, so it should be legal under this law to record police in public. But the courts did not explain what counts as a "public" interaction, so even someone familiar with those decisions could not be sure whether it would be legal to record in many circumstances. As a result people who want to avoid spending years of their lives in prison are likely to avoid recording police (or anyone) anywhere, except perhaps in the most obviously public settings.
And what about recording in private settings? Presumably that is where crooked cops and politicians prefer to perform their worst deeds, so people's right to record them there should receive at least as much protection as the right to record them in public.
The new statute's focus on recording "surreptitiously" is not as big an improvement as it might seem. Surreptitious recording could after all be necessary to expose police misconduct—so banning it could help prevent exposure of misconduct.
The statute overall appears to be designed, like the old one, to protect and privilege police. Although the maximum sentence under the new law is shorter than the former maximum, the statute still gives longer jail terms to people who record police, prosecutors and judges. The only apparent purpose for that is to make people especially afraid to record police, prosecutors and judges. The new law also allows police to record certain interactions with citizens and to secretly eavesdrop on citizens' conversations for 24 hours without a warrant during investigations of certain crimes.
In sum, the new law criminalizes recording to the maximum extent that current case law allows. It is a blanket ban on recording without consent, with a narrow carve-out for the (mostly unspecified) circumstances in which courts have said that the state must allow recording, with special punishments for citizens who unlawfully record police and special privileges for police who record citizens. If a legislature wanted to discourage recording—especially of interactions with police—as much as possible, it would pass this law.
Will the court uphold it? It should not. Because citizens often cannot know in advance whether recording a conversation is legal, the law is unconstitutionally vague and violates Due Process. And because the statute's vagueness will deter people from making recordings for fear of prosecution, it also frustrates free speech and violates the First Amendment.
But before the courts can weigh in on the statute, the legislature should just repeal it. Any replacement should, at a minimum, explicitly protect people's right to record their own interactions with government officials regarding their official duties, regardless of when or where they occur. The overwhelming majority of states respect that right, and Illinois has no justification for not doing so—especially given its well-known history of crime and corruption at all levels of government. If their legislators will not do that much, Illinoisans should question whose interests they are looking out for.
Jacob Huebert is senior attorney at the Liberty Justice Center, the Illinois Policy Institute's free-market public-interest litigation center. He is the author of a book "Libertarianism Today" and his writing has been published widely in scholarly, professional and popular publications. Jacob is admitted to practice in the State of Illinois, as well as the US Supreme Court, the United States Court of Appeals for the Seventh Circuit, the United States Court of Appeals for the Sixth Circuit and several other federal courts.
Suggested citation: Jacob Huebert, What's Wrong with Illinois' New Eavesdropping Law, JURIST - Professional Commentary, Jan. 29, 2015, http://jurist.org/professional/2015/01/jacob-huebert-illinois-eavesdropping-law.php.
Mr. Olson was led to the above view as a result of a legal case that originated [PDF] in the US District Court for the Middle District of Pennsylvania and was appealed to the US Court of Appeals for the Third Circuit. In Thorpe v. Borough of Jim Thorpe, the surviving sons of legendary athlete Jim Thorpe sued the Borough of Jim Thorpe, Pennsylvania for failing to comply with the requirements of NAGPRA. In that case the court declared that NAGPRA (specifically, its provisions governing inventories and repatriation of Native American human remains and associated funerary objects in museum and federal agency holdings or collections) is applicable to the remains of Jim Thorpe, an enrolled member of the Sac and Fox Nation, that are presently interred in municipal land in the Borough of Jim Thorpe. According to the court's interpretation of NAGPRA, interred human remains are deemed to be "holdings or collections" and therefore the statute authorizes—even requires—that where human remains are in a grave controlled by an institution or a state or local government agency that receives federal funds, the human remains must be disinterred and transferred to a lineal descendant or culturally affiliated Indian tribe when requested. Thus according to the court, Native American graves protection occurs through disinterment or, in other words, we need to destroy graves in order to protect them.
On appeal the Third Circuit reversed [PDF] the District Court, holding that "the Borough is not a 'museum' under NAGPRA for the purposes of Thorpe's burial." Concluding that it was "confronted with the unusual situation in which the literal application of NAGPRA will produce a result demonstrably at odds with the intention of its drafters," the court felt it had to "look beyond the text of NAGPRA to identify the intentions of the drafters of the statute, and that intent must control our analysis."
The Third Circuit reversed the District Court on the grounds that "Congress did not intend the result required by a literal application of the text of NAGPRA." The court did not find the law in the text of the statute.
Reading and digesting the reasoning used by both courts to reach their opposite decisions in Thorpe v. Borough of Jim Thorpe, Mr. Olson cannot be blamed for asserting that few if any lawmakers had foreseen such a fact pattern in the original debate over NAGPRA. Still contrary to Mr. Olson's assertion, Congress had foreseen it. The text of NAGPRA should have been used to decide Thorpe v. Borough of Jim Thorpe. The courts were not looking in the right place.
In NAGPRA, Congress included a provision stating that "[n]othing in this [Act] shall be construed to ... limit any procedural or substantive right which may otherwise be secured to individuals or Indian tribes or Native Hawaiian organizations." Jim Thorpe, who died intestate in March 1953, was a California resident. At the time of his death, California law provided that the priority of right to control the disposition of his remains and the duty of interment devolved upon his surviving spouse, Patricia Thorpe. In May 1954 Patricia Thorpe entered into an agreement with the Boroughs of Mauch Chunk and East Mauch Chunk, Pennsylvania. The parties agreed on the terms and conditions for consolidating the Boroughs and renaming them the Borough of Jim Thorpe, and for the interment in Borough land of Jim Thorpe's remains.
To apply NAGPRA to the buried remains of Jim Thorpe would limit the right of his surviving spouse, Patricia Thorpe, to control the disposition of his remains under California law. That outcome contradicts the text of NAGPRA.
Perhaps one reason that Congress included limitations on applying NAGPRA was in order not to place the Act in tension with the Tenth Amendment of the US Constitution ("The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"). The power to determine the priority of the right of custody of a corpse for the purpose of the disposition of the corpse (including burial) has traditionally been reserved to the states. Similarly the states traditionally have exercised authority over the disinterment of human remains that are buried on non-federal and non-tribal lands. Thus, the plaintiffs in Thorpe v. Borough of Jim Thorpe may ask that Jim Thorpe's remains be transferred to them, but they should be doing so before a Pennsylvania state court and not a federal one. For its part though, NAGPRA is the antithesis of a law that disrupts the physical repose of the dead by authorizing the disinterment of Native American burials.
As 2014 came to a close, the remains of more than 180,000 Native American individuals had been listed in museum and federal agency inventories. More than 50,000 individuals had been included in Federal Register notices of inventory completion, which established the right of the Indian tribes and Native Hawaiian organizations listed in the notices to receive control of those ancestors. In addition approximately $40 million had been awarded by the Secretary of the Interior to museums, Indian tribes and Native Hawaiian organizations to assist with fulfilling the consultation, documentation and transfer requirements of NAGPRA.
The NAGPRA compliance process is ongoing and, based on the annual reports published by the National NAGPRA Program, the progress has been profound. According to two NAGPRA representatives from for the Caddo Nation, "[w]ith the help of the Native American Graves Protection and Repatriation Act ... we have continued to not only claim and rename our past but also have asserted the identity of the Caddo as being the 'Real Chiefs' governing our history and culture." The NAGPRA coordinator for a museum adds,
From the consultations and conversations that result from dealing with NAGPRA, museums have the potential of creating new kinds of relationships with Native American communities. When tribes see that museums are genuinely committed to NAGPRA ... new friendships and partnerships can develop.
NAGPRA is not an example of a law whose effect is the opposite of what Congress intended. Rather Congress may proudly claim, in the words of Morris Udall, "[i]n the larger scope of history, this is a very small thing. In the smaller scope of conscience, it may be the biggest thing we have ever done."
Elizabeth C. Varner is President of the Lawyers' Committee for Cultural Heritage Preservation (LCCHP). Diane Penneys Edelman is Vice-President of the LCCHP. She is also a Professor at Villanova University School of Law. Leila Amineddoleh is Executive Director of the LCCHP. The LCCHP is a nonprofit organization created to promote the preservation and protection of cultural heritage resources in the US and internationally through education and advocacy.
Suggested citation: Elizabeth C. Varner, Diane Penneys Edelman, Leila Amineddoleh, NAGPRA and Congress's Foresight, JURIST - Professional Commentary, Jan. 18, 2015, http://jurist.org/professional/2015/01/varner-edelman-amineddoleh-nagpra.php.
The new European tool answers the outcome of a long process of reflection and negotiation that started with the European Council of Tampere in 1999 in order to progressively establish an area of freedom, security and justice in Europe.
And for good reason: the free movement of people within the European Union has created many cross-border situations such as owning estates in different countries. This European and/or international ownership entails the application of multiple inheritance laws and creates conflict of law rules for succession that are currently deeply heterogeneous between the European member states. Some member states apply the law of the nationality to govern a succession, in others the law where the person is a resident; some retain a principle of scission between movables and immovables, while others address the issue as a unity.
The European succession regulation (hereafter "SR") puts an end to this legislative cacophony for the approximately 450,000 cross-border successions [PDF] that are settled in Europe each year.
Except for Denmark, United Kingdom and Ireland, the new regulation provides a direct application in all SR member states and enjoys a universal character—the selected law can be the law of a member state, a third state or a non-member state. This means, for example, that an American citizen who owns a property in Europe could use these provisions. Therefore, the SR deserved to be known by any person holding estates in Europe, and to be comprehended by any international attorneys whose clients know cross-border elements in consistency with Europe.
The text is primarily geared to avoid conflicts of laws of succession. It provides the principle of the unity of the succession as "a whole"—a single law is now applicable to all the deceased's estates irrespective of their nature and their location. The goal is to simplify and to unify the law of the succession as a natural consequence of globalization, rather than to solve complex connecting issues between domestic and international laws. Therefore, SR provisions become the new base of international estate planning in Europe.
However, the scope of application is reduced to succession law only. Matrimonial property law, trust law and tax law are expressly excluded from the regulation. Accordingly, international lawyers shall continue to draw attention to these surrounding legal issues in order to provide global and adequate estate planning strategies.
In the absence of any choice of law, the law of the state in which the deceased had his habitual residence at the time of death governs his succession as a whole. For instance, a Spaniard has his habitual residence in Italy; Italian law shall govern the law applicable to his succession, and shall be applied to all of his movable and immovable estates whether their locations are in Spain, Italy or Belgium.
The major feature of the regulation is the introduction of a professio juris mechanism—jcurrently prohibited in several European jurisdictions, such as France, Belgium or Luxembourg—has the expression of "party autonomy." In other words, this means that the possibility for an individual to express the choice of law applicable to his or her future succession. The use of choice of law is an excellent tool for international estate planning by demonstrating a secured devolution of properties. Moreover, the person becomes Master of his estates' fate in an international context. However, in order to avoid any forum shopping temptation, the choice of law is confined to the law of the nationality the deceased possesses at the time of making the choice or at the time of death.
Some practical aspects strengthen the implementation of this new mode of European harmonization. In order to ensure efficiency and rapidity to the settlement of a succession, SR imposes the principle of mutual recognition and enforcement of decisions in the area of succession between the member states. Thus, no special procedure or review as the substance is required for a decision to be recognized or enforced in another member state. The principal innovation of the SR is the creation of the European Certificate of Succession (ECS), a new cross-border instrument which ensures to prove the capacity and powers of heirs, surviving spouse, executor or administrator of the estates throughout the member states. For this purpose, a standard form of ECS has been recently published in the Official Journal of the European Union and is now available in 23 languages. In order to harmonize the different legal systems in the best possible ways, the regulation also calls member states to adapt unknown right in rem to the closest equivalent right in rem under the law of that other member state. For example, if French law governs the succession law, a legal equivalent concept of Anglo-American trusts shall have to be considered if such device is concerned, although French law does not know these trusts.
One can easily consider that the SR solves the legal issues in matters of succession in Europe, based on a thorough harmonization of conflict of laws. But in fact, SR suffers from exceptions, which underline a renewal of conflict of laws and legal issues. For instance, the SR accepts the mechanism of renvoi when the law of a third state, including its private international rules, governs by default the succession and sends back to the law of a SR member state or another third state. This situation may happen when American law is the default governing law that sends back to the law of the situs applied to immovables according to the American succession conflict of laws. Therefore, depending on the situation, the unity of the applicable law is being weakened when the deceased has his habitual residence in a third state.
Another controversial situation is the possibility to disregard a foreign law when its application in exceptional circumstances would be contrary to the public policy of a SR member state. The European public policy does not elicit much debate since all member states subscribe to the Charter of Fundamental Rights of the European Union and are parties to the European Convention of Human Rights; however there is still a pending discussion among scholars about the appreciation of domestic public policy since the domestic laws are not unified. For instance, the concept of forced heirship—unknown in common law jurisdictions—is ruled as a public policy in France, owns a constitutional value in Germany, but does not enjoy such strong protection in Spain. Therefore, the interpretation of these potential exceptions will be the Court of Justice of the European Union's heyday.
Most importantly, the practice of succession law becomes deeply international with the implementation of such regulation. Lawyers become indirectly international lawyers, and the stage directors of the unification of legal systems despite themselves, under the cloak of an implementation of freedom of movement, legal security and justice. The issue is how best to play in the international lawyers' game at a time when there are 28 jurisdictions in Europe, and thus so many domestic laws and languages to know. This would entail in particular a stronger legal training in comparative and international law, and an alliance of skills between legal international professionals.
To what extent would it be enough to ensure quality and legal security for individuals? There is a subsidiary issue of whether/how to balance between a—voluntary or involuntary—convergence of legal systems and the safeguarding of the individual legal culture of each member state.
Angelique Devaux is a French Qualified Attorney for which she has practiced for several years in Paris, France, before moving to the US. She is also an LL.M American Law graduate at Indiana University Robert McKinney School of Law where she gives some lectures in French or European Law. In the meantime, she is a monthly contributor to ICONnect blog of Consitutional Law. Her areas of research essentially focus on Family Law, International Private Law (Conflict of Laws) and Comparative Law.
Suggested citation: Angelique Devaux, Successions in Europe: What's New in 2015?, JURIST- Professional Commentary, Jan. 15, 2015, http://jurist.org/professional/2015/01/angelique-devaux-successions-europe.php.
Even though community members who had applied for the permit had agreed to parking and other restrictions, the Kennesaw City Council refused to issue a permit by a 4-1 vote. The city's "retail only" excuse quickly fell apart considering that the city council had granted a permit to a Pentecostal church in a retail center. This pointed to blatant discrimination.
Faced with the threat of litigation and a Department of Justice Civil Rights investigation, the Kennesaw City Council changed its decision. "We hope that this will end the issue of us being outsiders," the mosque spokesperson Amjad Taufique told the news media.
But this is not the first time that a Muslim community in metro Atlanta has faced obstacles in building or expanding a mosque in recent years. Muslim-Americans in Lilburn and Alpharetta also encountered roadblocks. Local officials only backed down after a filing of lawsuits and intervention by the Department of Justice Civil Rights Division.
This unfortunate pattern of discrimination is not unique to Georgia either. As an ACLU map of anti-Muslim activity shows, Muslims across the country, from California to New York, to Texas to Ohio, have faced vandalism or other criminal acts targeting their places of worship or refusals by local officials to issue necessary zoning permits for the construction and expansion of mosques. And while the excuse often proffered is noise, traffic and parking, local officials or residents can hardly fool anyone that what actually lies behind such attitudes is bias towards Muslim-Americans.
Preventing Muslims or any other group from practicing their faith is unAmerican. Religious freedom is one of America's most fundamental liberties and a central principle upon which this country was founded.
Denying people of faith a permit to construct a place of worship because of their faith violates the law. Federal law protects the right to build a church, synagogue, mosque or any other house of worship. In fact, in 2000 Congress recognized the need to protect religious freedom by passing legislation against religious discrimination in zoning regulations. The Religious Land Use and Institutionalized Persons Act (RLUIPA), passed with overwhelming bipartisan support, prohibits local governments from using zoning regulations to substantially burden religious exercise or to discriminate against houses of worship. This law was passed to ensure that in the face of controversy, local governments do not play favorites with religious groups or prevent certain groups from practicing their religion.
The connection between land use and the fundamental right to practice one's religion is crucial, as emphasized in the Joint Statement of Senators Hatch and Kennedy, RLUIPA's co-sponsors: "The right to build, buy or rent such a space (for churches and synagogues) is an indispensable adjunct to the core First Amendment right to assemble for religious purposes."
RLUIPA's provisions apply to programs and activities receiving federal financial assistance and where local procedures permit the government to make "individualized assessments of the proposed uses for the property involved."
Per RLUIPA, if a zoning decision imposes a substantial burden on the religious exercise of a faith group, the city must show that the decision is narrowly tailored to serve a compelling governmental interest and is the least restrictive means to achieve that purpose. This federal law also requires local governments to treat houses of worship on equal footing with similar non-religious facilities. RLUIPA also mandates that different religious groups be treated equally by government.
This statute represents a Congressional attempt at providing a mechanism for enforcing the free exercise clause of the First Amendment. It does not however supersede the traditional remedies for free exercise violations available under the First Amendment. Municipalities can be held liable for monetary and injunctive relief as a result of their unconstitutional or illegal laws and policies which run counter to the First Amendment Free Exercise Clause.
In examining these claims, strict scrutiny applies where, as in Kennesaw, the burden on religion results from an individualized governmental assessment. Zoning decisions, by their nature, impose individual assessment regimes in that they involve case-by-case evaluations of the propriety of proposed activity against land use regulations. Courts have recognized the "vulnerability of religious institutions—especially those that are not affiliated with the mainstream Protestant sects or the Roman Catholic Church—to subtle forms of discrimination when, as in the case of the grant or denial of zoning variances, a state delegates essentially standardless discretion to nonprofessionals operating without procedural safeguards."
In Kennesaw, given the fact that the city had already granted a permit to another religious institution in a retail center and the fact that the mosque applicants had already agreed to a variety of measures to address any supposed concerns regarding parking and traffic, it was highly unlikely that the city would be able to meet the high standard of review. Kennesaw City Council members made the right calculation in changing their decision on granting a permit to the mosque; their position would stand no chance in court. It would have been much better however if they had acted in favor of religious liberty in the first place and not only when faced with the potential for litigation.
Our political leaders and the constituents they represent must be reminded that discrimination is a losing proposition and that adherence to the Constitution is not optional. We must ensure that those who have lived and worshipped peacefully in Georgia for decades have the right to continue to do so. "I would invite our neighbors to really come and visit us and be understanding who we are, what we are, what we do and if any hard feelings are there, that would hopefully remove any of that," said Taufique. Rather than to giving in to politics of hate, it is time to accept this invitation.
Azadeh Shahshahani is National Security/Immigrants' Rights Project Director at the ACLU of Georgia and President of the National Lawyers Guild. You can follow her on Twitter at ashahshahani.
Suggested citation: Azadeh Shahshahani, Mosque Controversy, JURIST- Professional Commentary, Jan. 9, 2015, http://jurist.org/professional/2015/08/azadeh-shahshahani-mosque-controversy.
Launching new human rights protection campaigns, organizing demonstrations and protests would be popular ways for people to answer such a call. In the past, actions like these were often scheduled on Human Rights Day. However, it seems that this 10th of December in Crimea will pass without any special events, since the local authorities denied [Ukrainian] the motion of the Committee on Protection of Rights of the Crimean Tatars to hold a Human Rights Day demonstration in Simferopol (capital of the peninsula).
In their response, the authorities explained the refusal due to the New Year Eve's festivities, which shall take place in the city center starting December 1, as well as possible impediments to the citizens and public transport. Moreover, the Crimean prosecutor's office presented a warning [Ukrainian] to the leaders of the Committee that any extremist activity will be not acceptable with regard to conduction of public demonstrations. Similar anti-extremist warnings were issued to Mejlis (the representative body of the Crimean Tatar People) and several media outlets earlier this year. It means that the respective authorities found the media was engaged in extremist activity. The media source will face liquidation unless they stop publishing materials designated in the warnings as dangerous.
Governmental methods to fight extremism raised concerns before (e.g. UK application of the term "domestic extremist"). Such methods should not be used as a pretext for abuse of power and human rights violations. The Russian Federal 2002 law [Russian] "On Counteracting Extremist Activity" gives a considerably broad definition to extremism, which can be extended to all individuals and organizations that provided any assistance in the activity of persons accused of extremism. This law also provides for creation of a list of extremist literature [Russian], which currently contains over 2,500 titles. According to Russian activists [PDF], misuse of this law is becoming a repressive instrument against very different groups in Russia.
The introduction of the notion of "extremism" is not the only new thing resulting from the change in effective control over the Crimean peninsula. Human Rights Watch (HRW) report [PDF] "Rights in Retreat: Abuses in Crimea", published in November 2014 raised a number of concerns such as imposition of Russian citizenship on residents of Crimea, failure to investigate forced disappearances of people, unwarranted searches, persecution of groups and individuals opposed to Russian occupation. The human rights activists also stress that the de-facto authorities allow the 'self-defense forces' to conduct the searches and that the percentage of the Crimean Tatars in the local authorities declined [Russian] from about 15% to 3% after this autumn's elections. Another violation is limitation of the Ukrainian and Crimean Tatar languages in public education despite that the new "constitution" of the Crimea declared three state languages (Russian, Ukrainian and Crimean Tatar). According to the "minister" of education of the Crimea the number of school with classes taught in Ukrainian decreased [Ukrainian] to 20 as of October 10, 2014 (before the occupation there were more than 150 such schools).
All in all, the HRW report as well as the report of the Council of Europe Commissioner for Human Rights allow to draw a conclusion that there are three groups rendered vulnerable by the current state of affairs: the indigenous Crimean Tatars, ethnic Ukrainians and all those who have refused Russian citizenship.
In such situation not only the state, which has effective control, but also the state of citizenship of the Crimea residents shall put all efforts for the protection of human rights. As Council of Europe Commissioner for Human Rights Niels Muižnieks [JURIST] underlined during his recent visit to Kyiv, Ukrainian citizens living in the Crimea should not be isolated and Ukraine needs to do everything in its power to protect their rights. Starting from late February only a few steps have been taken in this direction.
According to the Ukrainian Justice Minister, the European Court of Human Rights (ECHR) is considering three cases filed by Ukraine against Russia [Russian]. The applications were based on article 33 of the European Convention for the Protection of Human Rights and Fundamental Freedoms [PDF], which allows any contracting state to file an application against another state for violation of the rights and freedoms guaranteed under the Convention.
The first inter-state application was filed on 13 March 2014 (after the foreign military troops appeared in Crimea but before the so-called 'referendum'). Due to increasing concerns about possible human rights infringements the Ukrainian government requested the imposition of interim measures based on Article 39 of the ECHR Rules. This request was satisfied and the President of the Third Section of the ECHR called upon both Contracting Parties to "refrain from taking any measures, which might entail breaches of the Convention rights of the civilian population and to comply with their engagements under the Convention, notably in respect for Articles 2 (right to life) and 3 (prohibition of inhuman or degrading treatment). This interim measure remains in force.
In this case (application no. 20958/14) the Government of Ukraine maintains that Russia, by having effective control over the respective territory, exercised jurisdiction and failed to prevent various violations of the Convention (Article 2right to life, Article 3prohibition of inhumane or degrading treatment), Article 5right to liberty and security, Article 6right to a fair trial, Article 8right to respect for private life, Article 9freedom of religion, Article 10freedom of expression, Article 11freedom of assembly and association, Article 13right to an effective remedy and Article14prohibition of discrimination of the Convention and Article 1 of Protocol No. 1 (protection of property) and Article 2 of Protocol No. 4 (freedom of movement) to the Convention). The Russian government is still to submit its comments on the admissibility of the application. The second case Ukraine v. Russia (no. 43800/14) was lodged on June 13, 2014 and concerned abduction and transportation of orphans from Eastern Ukraine to Russia. The third case (no. 49537/14) seeks protection for Crimean Tatar leader Mustafa Dzhemilov and his son Hayser, who is illegally held in custody in Russia.
The court practice of the ECHR on inter-state cases is rather small with one decision that stands out. In 2001 it decided the merits of Cyprus v. Turkey (no. 25781/94), which concerned the situation in Northern Cyprus after the Turkish invasion in 1974. Awarding the compensation was postponed till 2014, when the court ordered Turkey to pay Cyprus 90,000,000 Euros for 14 violations of the Convention (right to liberty, right to property, right to a fair trial, right to respect of private life and others).
Apart from filing cases with international courts, there are also steps that can be undertaken by Ukraine to protect its citizens' rights. Among those, on March 20, 2014 the Verkhovna Rada (Ukrainian Parliament) adopted a resolution No. 1140-VII [Ukrainian] "On Declaration of the Verkhovna Rada regarding the Guarantees of the Rights of the Crimean Tatar People in the State of Ukraine". This document recognized the Crimean Tatars as indigenous people, recognized their representative and executive bodies acting in the Crimea and strongly condemned any attempts to limit the rights of all nations in the Crimea caused by the Russian occupation. Unfortunately most actions state in the resolution have not been implemented. Also, there is a lot to improve for the Crimean residents, who maintained Ukrainian citizenship, and, for example, are experiencing difficulties with Ukrainian authorities when crossing the administrative border with the Crimea.
To conclude, both the newly elected Ukrainian government and the Russian government, which claims his citizens' rights are its priority, have a unique opportunity to adopt a Human Rights 365 approach for the people in Crimea.
Anastasiia Shtanieva is a practicing lawyer and trained mediator. She holds a bachelor degree with honors from National University of "Kyiv-Mohyla Academy" (Kyiv, Ukraine). Her areas of expertise are dispute resolution, international commercial arbitration and corporate law. She was also invited to speak on several events on mediation in Ukraine.
Suggested citation: Anastasiia Shtanieva, Human Rights 365 in Crimea, JURIST - Professional Commentary, Dec. 12, 2014, http://jurist.org/professional/2014/11/anastasiia-shtanieva-crimea-rights.php.
As reported, the incident at Haditha began with an Iraqi insurgent ambush against a squad of 12 US Marines in Haditha, Iraq. The ancient Sunni Muslim city lies in the restive al Anbar Province in western Iraq. The ambush on November 19, 2005 erupted a few months shy of the third anniversary of the American invasion there. The ambush triggered a day-long battle that ultimately left one Marine dead, 11 gravely wounded, as well as three dozen Iraqi combatants and defenseless civilians dead, including several children who were wounded and orphaned. All were killed or injured by well-aimed Marine Corps rockets, bombs and infantrymen armed with the deadliest personal weapons money can buy. The US spent billions of dollars training and equipping these men to be relentless killers. Ultimately, America got what it paid for.
Sadly, by November 19, 2005, the celebrated American-fueled "drive up to Baghdad" to seize ethereal weapons of mass destruction and destroy an odious dictatorship was long forgotten. The passive occupation had morphed into thirty-two months of burgeoning internecine violence. Death was everywhere, and Iraq was a smoking hole. Then, suddenly, crushing big-unit slap downs were out and Iraqi-friendly counter-insurgency tactics were in. When the ambush and subsequent horror were revealed, "shock and awe" had indeed been replaced by shock and "uh-oh." Unfortunately, somebody forgot to tell the Marines. World opinion—never supportive—turned particularly sour after a sensationalized report in a US magazine alleged the ambushed Marines had intentionally slaughtered the defenseless civilians in a rampage of retribution. The grave crimes were allegedly compounded by sympathetic officers who aided and abetted the enlisted mens' attempts to evade justice by a variety of means.
Ostensibly in place to curb excessive battlefield violence were several layers of international and American laws aimed at ensuring a so-called clean war—an oxymoron if there ever were one. Arcane and unenforceable, they in part mandated legal prohibitions aimed at diminishing deaths of noncombatants. Arguably the most definitive and least enforceable of these presumptive mandates were (and remain) the illusory "customary laws" of battlefield decency and current international laws of war, promulgated by the Hague Conventions of 1889 and 1907, the Geneva Conventions of 1949 and the Nuremberg Conventions, adopted by the UN on December 11, 1945. Collectively these prohibitions are known informally in American military legal ranks as the Laws of Land Warfare. The purpose of them is to protect the innocent victims of war regardless of which side they are on. These laws are categorized as jus in bello (law in war), jus ad bellum (law on the use of force) and jus contra bellum (law on the prevention of war). Current events continue to demonstrate how effective they truly are.
American service members who violate any of the aforementioned mandates face potential prosecution under the provisions of the Uniform Code of Military Justice. This code guides the promulgation of Standard Operating Procedures, Rules of Engagement and specific orders and directives applicable to unique combat circumstances and other exigencies of military service. Violating any of those instruments can lead to criminal prosecution by a variety of military and Federal law enforcement agencies and institutions. However, UCMJ and its associated components were not created to ensure justice for alleged military defaulters; they were written to ensure the good order and discipline of the Armed Forces of the US in time of war. Justice is ideal, but ensuring discipline is the purpose.
Such was the case for four officers and four enlisted Marines who were indicted almost a year to the day after the alleged excesses were committed. Many forces immediately came into play when they were charged. The UCMJ provides for both the prosecution and defense of alleged perpetrators. A senior officer, in this case three-star Lieutenant General James N. Mattis (called the "convening authority"), was appointed by the Commandant of the Marine Corps to decide what should be done. He was aided by a staff legal officer called a Staff Judge Advocate (SJA) to advise him when, how, who and why the alleged defaulters should be prosecuted. Incidentally, the Marine lawyer responsible for recommending these actions is now Major General John R. Ewers, Staff Judge Advocate to the Commandant of the Marine Corps, the Corps' senior legal authority.
After consultations with his SJA Mattis, he made a reputedly unfettered decision to prosecute the accused for murder, aggravated assault, dereliction of duty, lying and cover-up. Once he decided on his course of action, Mattis directed the prosecutorial team assembled by his SJA to act upon the criminal complaints they decided upon. Meanwhile, his legal staff designated how the procedures would be implemented to include deciding which of his staff lawyers would be defense attorneys, who would fill the jury pool (called a "panel" in military parlance) and what access would be provided to the public. All of this was predicated to ensure an outcome the convening authority, and the US Marine Corps, wished to see. Most of the time, that is precisely what happens. While all of this was going on, former Secretary of Defense Donald Rumsfeld set up a shadow "body" composed of high-ranking Pentagon and administration officials to oversee the Haditha investigations, leak secret documents and pontificate grandly, the most damning evidence of the political motivations and influence over the ongoing prosecutions.
Englade calls the procedure initiated by Mattis "a clever manipulation [of UCMJ]" by the US Marine Corps that "turned the military justice system inside out, making a mockery of any naively held concepts of consistency with the spirit of the UCMJ." For reasons unfathomable to this observer, Englade asserts the UCMJ "fosters transparency, accountability and prosecutorial competence." Only an uninitiated civilian could believe that. Nothing is further from the truth. In fact, the opposite is correct. The last thing any convening authority seeks is transparency, accountability and prosecutorial competence. Anonymity, invisibility and quiet, immediate implementation of predetermined sentence is the real goal. Military discipline only works well when its recipients believe the only alternative to disobedience of orders is to believe any lawful alternative will include swift, harsh and certain retribution.
Nobody sane willingly obeys orders that will almost certainly get them killed. It is a reality that has survived the millennia. To combat perceived cowardice, the powers-that-be have always resorted to heinous measures to obtain cooperation. Examples abound. In World War I, the French revived the practice of decimation, a procedure Roman Legions once practiced to ensure esprit by killing every tenth man in any unit that failed its mission whether or not the condemned were guilty of anything. During World War II, the British executed 350 men by firing squad for Lack of Moral Fiber and the Soviet Union admitted shooting 150,00 men for desertion. Soviet Premier Joseph Stalin once told Prime Minister Winston Churchill "it takes a very brave man to be a coward in the Red Army." It is law filled with contradictions and extremes.
Closer to home, the US executed 160 soldiers and other members of the armed forces between 1942 and 1961. There have been no military executions since 1961, although the death penalty is still available under the UCMJ. It certainly isn't without precedence. During World War I, the US Army executed 36 soldiers by hanging between November 5, 1917 and June 20, 1919. Eleven unfortunates fell from grace in France while the remaining 25 hangings occurred in the continental US. During World War II, when more than 50,000 American service members deserted in Europe, the US Army shot one man and imprisoned thousands more, often with sentences of twenty to fifty years, to encourage fortitude. Of the total court-martialed for all offenses, 106 were executed for murder (including twenty-one involving rape), fifty-three for rape and unfortunate Eddie Slovik for desertion. Most were black. Charging, executing and imprisoning American service members capriciously is certainly not without precedence.
To put a fine point on this thesis, American armed forces can and will manipulate the implementation and execution of military law to suit its needs. In the case of eight Marines charged with murdering twenty-four civilians at Haditha, finding them guilty did not suit its needs for political reasons far outside the scope of this article. Another fine example is the case of Mr. William Laws Calley, a former Army officer found guilty of murdering twenty-two unarmed South Vietnamese civilians during the Vietnam War. After several sentencing reductions, his original sentence of life in prison was turned into an order of house arrest, but after three years, President Nixon reduced his sentence to fulfilled with a presidential pardon.
After Haditha, eight men from the maligned infantry battalion, including the commander, were prosecuted. All of them faced ruination and long terms of imprisonment. Ultimately, charges were dismissed against six Marines, including the commander. One lieutenant was tried and acquitted post-haste of hindering the investigation in a mockery of military jurisprudence. Finally, the staff sergeant charged with leading the massacre was convicted of negligent dereliction of duty and discharged from the Corps without serving a day in confinement. Six calendar years earlier, Staff Sergeant Frank D. Wuterich was charged with twenty-eight counts of murder and aggravated assault, as well as lesser charges. He faced life in prison without parole. He ultimately pleaded guilty to misdemeanor dereliction of duty, equivalent to unlawfully having his hands in his pockets. It should however be noted that putting them there is a grave threat to good order and discipline that calls for a maximum penalty of three months in jail.
Mr. Englade argues the "handling of the incident and its aftermath was a fiasco; the worst known performance by a Corps legal unit in multiple cases in the organization's history. Normally, Corps trial counsel have a 93 percent conviction rate; in the Haditha proceedings it was 12.5 percent. Worse, it likely caused serious damage to the military justice system as a whole." On the contrary, there were no mistakes in the entire seven year ordeal except in the case against Lt. Col. Jeffrey Chessani, the defendant's commanding officer and a career Marine officer with an impeccable record. He was a marked man. The Marine Corps tried everything it could to crush his career and drive him in disgrace from the Corps. In that instance, it failed miserably when his investigating officer and two appellate courts found then Col. Ewers guilty of offering bad advice to Lt. Gen. Mattis that led to the dismissal of charges against Chessani for improper command influence in the prosecution of his case. Even the motive of that remarkable gaff has been questioned and examined ever since.
The Marine Corps rewards esprit and holds commanders who create grief for the institution ultimately responsible for their actions. The Marine Corps wanted his head and worked diligently to obtain it. It didn't, however, anticipate he would be represented by a powerful civilian advocacy law firm with deep pockets and crackerjack lawyers. The mistakes that led to his complete exoneration began immediately after he was charged and didn't conclude until he was allowed to retire from the Marine Corps with his rank and integrity intact. It was not an accident. When the tenants of the UCMJ was challenged by competent authority, it could not withstand the scrutiny of precedent and withered on the vine.
It is easy now to look back on the painful seven years it took to bring the case to a close and point out the glaring legal errors, the evidentiary inconsistencies and lies, deceit and obfuscation practiced by all the players involved in the longest, most expensive and fruitless criminal prosecution in the history of the US. It however was not a conspiracy, or an attempt to cover-up criminal behavior; it was the validation of a unique, unfair and malleable UCMJ that has as much to do with justice as military music has to do with beautiful serenades.
Nathaniel R. Helms is a Missouri-based writer with 30 years experience as a reporter, military affairs writer, and author of two non-fiction books about United States Marines in Iraq. His book My Men Are My Heroes: The Brad Kasal Story, Meredith 2007/reprint Naval Institute Press 2012, was selected by the USMC Commandant for recommended reading by Marines and designated a "Marine Corps Classic" by the Marine Corps League; his second book Not Time For Truth: The Marines, Justice and Haditha, Helms/Maj. Haytham Faraj, USMC (Ret.), Naval Institute Press, 2014, is available now. Helms is a Vietnam combat veteran, former Galveston, TX police officer, and investigative news reporter with extensive experience covering police and courts before reporting on the Yugoslavian civil war for seven months during early 1993.
Suggested citation: Nathaniel R. Helms, The Uniform Code of Military Justice Has Never Had Anything To Do With Justice, JURIST- Professional Commentary, Nov. 25, 2014, http://jurist.org/professional/2014/11/nathaniel-helms-ucmj-justice.php