Want to know about pardons? Ask Margaret Love

Margaret Colgate Love
Former U.S. Pardon Attorney

Former U.S. Pardon Attorney Margaret Colgate Love has an important post on Lawfare: "War Crimes, Pardons and the Attorney General." In addition to reviewing the history, she points out some good news: at least the White House is involving the Justice Department in the high-profile cases said to be under consideration. Excerpt:

For anyone concerned about the orderly functioning of a constitutional power of the presidency, bringing the attorney general into the pardon decision-making loop should be good news. Over the past two years, [Donald J.] Trump has granted pardons and sentence commutations without so much as a nod to the long-established review process in the Justice Department, which has become ever more mired in case backlogs and official neglect. Now the president has an attorney general he trusts, and one who knows the ropes in pardon matters because he was personally responsible for them in his first tour at the Justice Department. It is therefore not too much to hope that the attorney general will once again step forward to guide and protect the president in his exercise of the unruly power.

This hope is a reasonable one, particularly given what is at stake in these war crimes cases. To date, this president’s quixotic approach to pardoning has surely raised eyebrows, but it has had no adverse consequences for U.S. military or diplomatic interests. The only harm done by grants of clemency like those to Joe Arpaio and Conrad Black is to a president’s reputation.

Her prediction:

If Attorney General [William] Barr’s advice to the president is to grant these pardons, or if he stands aside and lets the grants be made, it will compromise a long tradition of responsible advice-giving in pardon matters that has served the interests of the presidency since the Civil War. But I believe it is more likely that Barr will advise the president to forbear in these war crimes cases at least until the military justice system has run its course. . . .

Why the Air Force is investigating a cyber attack from the Navy

My headline comes from the headline of a Military Times piece.

The Air Force is investigating the Navy for a cyber intrusion into its network,

according to a memo obtained by Military Times.

For background, it's alleged that the military judge issued a gag order on the parties to the Gallagher case. (The Gallagher case has received other attention because of the pardon issue, as Rachel and others have noted here and elsewhere.) The Gallagher prosecutors and NCIS suspected that information, allegedly covered by the gag order, was being leaked to the press. To see if the leaks were from the defense counsel (but apparently not government personnel?) a "tracker" of some kind was sent to defense counsel and a member of the press who follows military justice cases. And then the defense discovered the intrusion. But wait. One of the defense counsel is an Air Force judge advocate. These are issues being presented to the military judge--we will abide his findings and rulings. In the meantime, CAPT Dave Wilson, the senior judge advocate in overall charge of Navy defense counsel has spoken out.

“In fact, I’ve learned that the Air Force is treating this malware as a cyber-intrusion on their network and have seized the Air Force Individual Military Counsel’s computer and phone for review,” he wrote. (Emphasis added.)

The report goes on:

Wilson worried that the hidden tracking software could undermine confidence and trust in the military’s electronic communication systems and their ability to protect attorney-client privilege for military defendants.

“An unintended consequence of the Government’s action and lack of transparency is a lack of confidence and trust in NMCI and other Government-provided networks used by defense counsel to provide Sixth Amendment right to counsel services to the Navy, Marine Corps and Coast Guardsmen,” Wilson wrote.

Navy Capt. Greg Hicks, the service’s top spokesman, last week declined to comment on the email device targeting Navy Times. But Hicks confirmed that NCIS is conducting “an ongoing investigation into the unauthorized disclosure of information covered by a judge’s protective order.”

We should all worry. Because of the extensive coverage in media outlets focused on military affairs, there's a reasonable chance that clients, future clients, and others involved in military justice will read of "Spywaregate." * See, e.g., Prosecutors in Navy war crimes case accused of spying on defense attorneys and Navy Times reporter.

What review is being done of defense counsel files by the Air Force? Have they engaged a 'taint' team to assist and hopefully protected privileged communications of not just Gallagher but other of the lawyer's clients.

Should all defense counsel now worry that what might be viewed as a one-time event becomes a habit?

When we tell clients about confidentiality, should we now have a disclaimer of some kind?

Even if the investigation is righteous, has the Navy gone about it the right way?

It has not been that long since the prosecutors at Camp Pendleton, CA, engaged in what has been viewed as a wholesale search of defense counsel offices looking for evidence against an accused represented by one of the lawyers. You can see more about that here.

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* I think this be Rachel's term.

Double killings?

Nicholas Casey of the NY Times reported today that Colombia's Army had ordered up "double killings" and then backpedaled following the front page NY Times article several days ago that we reported on earlier.  After the Times report, Gen. Nicacio Martinez Espinel refuted the story but told the Colombian newspaper El Tiempo that he would withdraw the pledge required of officers.  On Monday, Oct. 20, 2019, Guillermo Botero, Colombia's Defense Minister released results that indicated there had been a 33% surge in overall operations since mid-December, including a 124% increase in combat operations.  Between Dec. 11 and May 18, there were 67 deaths, up 6% from the same period last year, the number of those arrested increased 132% to 1, 713 arrests this year.

Reliable sources reported that a meeting of 15 members of the military was taking place right now at the headquarters of the Second Division of the Army, located in Bucaramanga, in order to get them to "confess" that they served as the sources for the Times report that was published earlier. Jose Miguel Vivanco, head of Americas Division, Human Rights Watch, sent a Twitter message to the Colombian Minister of Defense, in which in inquired whether this meeting was taking place.  "It would be very serious if reprisals were taken against officials for telling the truth" he stated.

Sexual misconduct in the Canadian Forces

Statistics Canada has produced the results of its survey titled: Sexual Misconduct in the Canadian Forces 2018 (A total of 36,000 CAF members participated in the survey.) A total of 1.6% of Regular Force members reported having been victims of sexual assault in the military work place or outside the workplace involving military members. A similar survey conducted in 2016 by Statistics Canada revealed that the prevalence of sexual assault in the Regular Force was 1.7%.  Obviously, sexual assault is an ongoing pervasive issue.

According to the survey, most victims of sexual assaults in the Regular Force (57%) said that these incidents did NOT come to the attention of anyone in authority.

Unlike sexual assault, the reporting of sexualized or discriminatory behaviours to someone in authority did increased in the Regular Force from 16% in 2016 to 28% in 2018.

 Aw noted in the report published last week by the Senate of Canada, titled "Sexual Harassment and Violence in the Canadian Armed Forces," immediate and decisive action must be taken to avoid further cases of military sexual trauma. One such action, is to return to civil authorities the power to  investigate and prosecute sexual assaults by amending section 70 of the National Defence Act.

The Editor weighs in on pardons

Fidell, Trump's Increasingly Questionable Pardons Should Make Congress Act, The Hill, May 21, 2019. Excerpt:

Presidents should be strongly discouraged from exercising the pardon power in ways that subvert American adherence to the law of armed conflict. The country has a duty to deter, investigate and prosecute war crimes. To permit open-ended use of the pardon power in these circumstances would blow a hole in our compliance with those requirements and subvert our own ability to demand compliance by opposing forces with the law of war.