D.C. Circuit Review – Reviewed: “‘Code Red’ Is Just a Term We Use Down at Gitmo.”

by Aaron Nielson — Friday, Sept. 2, 2016@Aaron_L_Nielson

Contrary to the old canard that “every law professor … can recite A Few Good Men from memory,” I don’t think I’ve ever actually seen A Few Good Men in its entirety. Sure, I’ve stumbled across snippets of it (it seems like it has been rebroadcast on TNT, I don’t know, about four million times). But I’ve never felt the need to sit down and watch it – life is too short. That said, I feel like I have the gist of it down through cultural osmosis. And this week the D.C. Circuit feels like an Aaron Sorkin kind of court.

The two most interesting cases this week—both written by Judge Griffith—concern, respectively, Guantanamo Bay and a tragic hazing episode on a military base.

Let’s start with the hazing case: United States v. Rico Williams. This case is startling for a host of reasons. Here is how Judge Griffith began opinion: “Army Sergeant Juwan Johnson died in July 2005 after participating in a violent hazing ritual near Ramstein Air Force Base in Germany. A jury convicted appellant Rico Williams of second-degree murder and witness tampering for his role in the hazing and in covering up information about Johnson’s death. We affirm Williams’s conviction for witness tampering, but we reverse his murder conviction.”

That introduction to the story is bad enough, but it gets worse. It turns out that gangs are operating on our overseas military bases. In particular, Williams was the “governor” of a gang called “BOS,” “Brothers of the Struggle,” or “Gangster Disciples.” It seems that “the BOS was made up of members of the U.S. Army and Air Force at Ramstein but was not affiliated with the military. Expert evidence at trial connected the BOS to the Gangster Disciples, an American gang with roots in Chicago and individual ‘sets,’ or local groups, around the world.” Is this common knowledge? Before today, did everyone but me know that some members of the military join Chicago-based gangs, while still in active service? Am I the only one who is alarmed by this?

Let’s continue. In Germany (and presumably elsewhere), the BOS uses an initiation ritual known as a “jump-in.” “During a typical jump-in, approximately six members of the BOS hit the initiate for about six minutes. Blows were to be landed only between the neck and the waist, and the initiate was forbidden from defending himself in any way. During the jump-in, the initiates were asked repeatedly if they wanted to proceed. If they said no, the initiation ended. After a jump-in, the new member would be hugged, kissed on the cheek, shown the BOS handshake, and taken out to celebrate.” According to Judge Griffith, before Johnson’s initiation, the BOS at Ramstein had jumped-in “around fifteen to eighteen” new members.

Johnson’s jump-in, however, was different. I’ll spare you the ugly details. Long story short, although Johnson “never lost consciousness during the jump-in,” afterwards, he said he was too sore to celebrate. The next morning he was dead. A jury thereafter convicted Williams (who fled the country) of murder.

The key question on appeal was whether “a prosecutorial misstatement of law during closing argument substantially prejudiced the outcome of his trial.” The victim’s consent, of course, is not a defense to murder. But was Johnson’s consent relevant to mens rea? During closing argument, the prosecutor said “you can’t even consider it in his intent or anything else.” Judge Griffith, joined by Judge Kavanaugh, concluded that was wrong: “The rule that consent cannot be a defense to homicide means simply that consent is not an affirmative defense in the vein of justification or excuse. This rule does not foreclose a jury from considering all relevant facts and circumstances surrounding a homicide to determine whether the defendant consciously disregarded an extreme risk to human life, and therefore whether a necessary element of the crime had been proven.”

Judge Kavanaugh concurred in “the excellent majority opinion” and said his “vote to reverse Williams’ murder conviction is not a hard call.” Judge Henderson, however, dissented: “My colleagues reverse Rico Williams’s murder conviction because of eleven words the prosecutor uttered in her rebuttal closing argument. In their view, the prosecutor’s statement was legally incorrect and Williams was substantially prejudiced because the district court failed to cure the error and because the evidence was close. I disagree with each component of that analysis. The prosecutor misstated nothing. The district court’s charge was correct and balanced. And the evidence of guilt was powerful.”*

What happened to Johnson was not a “code red,” but it was still a tragedy.

The second case this week comes straight from Guantanamo Bay. In Re: Abd Al-Rahim Hussein Al-Nashiri, the court ruled against “the alleged mastermind of the bombings of the U.S.S. Cole and the French supertanker the M/V Limburg, as well as the attempted bombing of the U.S.S. The Sullivans.” After local authorities caught Al-Nashiri in Dubai in 2002, he was transferred to Gitmo in 2006, where the government convened a military commission to try him. (“The government is seeking the death penalty.”) Al-Nashir, however, objects. Yet “Al-Nashiri does not challenge the structural or procedural features of the military commissions created by Congress. He does not assert that the commissions are unconstitutional or that he was improperly classified as an ‘alien unprivileged enemy belligerent’ subject to their jurisdiction. Instead, he argues that the offenses for which he has been charged are not triable by a military commission under the MCA because they were not ‘committed in the context of and associated with hostilities.’”

Judge Griffith joined by Judge Sentelle concluded that any challenge should be stayed under “Schlesinger v. Councilman, 420 U.S. 738 (1975), where the Supreme Court directed federal courts to generally refrain from enjoining ongoing courts-martial.” Thus it is possible that Al-Nashiri will ultimately prevail on the merits of his argument, but he has to wait for the commission process to run its course. (Note; if you follow this line of cases, you should definitely read this one. There is a lot of interesting analysis, especially of Hamdan v. Rumsfeld. The Supreme Court in Hamdan pointedly did not apply Councilman, but Griffith notes “[m]uch has changed since Hamdan” to beef up the “procedural protections” of the military commissions. The panel also was not persuaded by Al-Nashiri’s complaint that the “commission proceedings have been unreasonably delayed.” “To be clear, we are troubled by the estimate of Al-Nashiri’s counsel that appellate review in this court might not occur until 2024. But counsel offered this prediction for the first time during rebuttal at oral argument, providing no information on the cause of this anticipated lag between trial and appeal to our court, and no opportunity for the government to respond.”)

Judge Tatel dissented. He agreed that “Judge Griffith makes a strong case,” but nonetheless believes that “criminal prosecutions of non-servicemembers in military commissions and criminal prosecutions of servicemembers in courts-martial” are different in kind. Furthermore, the “unique and troubling circumstances” of Al-Nashir’s case counsel against abstention: “According to the unclassified version of Al-Nashiri’s brief, local authorities in the United Arab Emirates seized him in October 2002 and transferred him to United States custody. The CIA then detained him at secret locations, commonly referred to as black sites, as part of its ‘newly-formed Rendition, Detention, and Interrogation (RDI) Program. Al-Nashiri asserts that this program employed extreme interrogation tactics with the hopes of inducing ‘learned helplessness’ among the detainees.” According to Al-Nashiri, this included “[Redacted] use of improvised interrogation methods, such as water dousing, wherein a detainee was doused with cold water and rolled into a carpet, which would then be soaked with water in order to induce suffocation.” As Tatel put it: “I believe that abstention—again, assuming Al-Nashiri’s allegations are true—is unwarranted.”

Wow. These kinds of cases are not the bread and butter of the D.C. Circuit: Where is the “admin law”?

Well, there is Petro Star Inc. v. FERC—a noteworthy case, but probably not one that is going to be the springboard for a movie. Here, Judge Srinivasan (joined by Judges Tatel and Edwards) concluded that FERC did not meaningfully respond to Petro Star’s evidence regarding the FERC’s Quality Bank formula’s undervaluation of Resid (a component in crude oil). If any of that makes sense to you, read this opinion. Otherwise, just remember that this is another case in which an agency lost because it did not provide enough of a response to evidence. (If you want a bit more flavor, there is paragraph: “Since 1984, the Federal Energy Regulatory Commission (FERC) has relied upon the Quality Bank to calculate monetary adjustments between oil companies that use the Trans Alaska Pipeline System (TAPS) to transport oil in a commingled stream. The Quality Bank ‘charges shippers of relatively low-quality petroleum who benefit from commingling and distributes the proceeds to shippers of higher quality petroleum whose product is degraded by commingling.’ The Quality Bank is thus a zero-sum transfer mechanism: the goal is to ‘place each [company] in the same economic position it would enjoy if it received the same petroleum at Valdez that it delivered to [the pipeline] on the North Slope.’” Yup, that’s FERC.)

Finally, there are two more cases: Mako Communications, LLC v. FCC and SecurityPoint Holdings, Inc. v. TSA. In Mako, the panel (Judge Srinivasan, joined by Judges Griffith and Sentelle) denied petitions claiming that the FCC violated the Spectrum Act by not providing protections for low-power television stations while redistributing bands to increase mobile broadband access. And in SecurityPoint, the panel (Judge Williams, joined by Judges Henderson and Srinivasan) “conclude[d] that SecurityPoint is a prevailing party [because of this case] and, in doing so, overrule[d] Waterman Steamship Corp. v. Maritime Subsidy Board, 901 F.2d 1119 (D.C. Cir. 1990), as inconsistent with the Supreme Court’s later decision in Shalala v. Schaefer, 509 U.S. 292 (1993).”

And who wrote the now discredited opinion in Waterman? None other than Judge Williams! Bravo—I love intellectual honesty. (Presumably Mr. Sorkin does too.)

 

* Judge Henderson’s recounting of the jump-in is more graphic than the majority’s. Few cases are happy (else they would not exist), but this one is particularly tragic.

 

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

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