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Constitutional
Law I
Section
10
Writing
Assignment 3*
University
of Iowa College of Law
Iowa
City, Iowa
Nicholas
Johnson
Spring
2003
One night, a squad of soldiers under Lt. Joe’s command spotted some figures moving through the dark, approaching the base camp. Having been warned about the possibility of sabotage and suicide attacks, the squad immediately opened fire. Two of the unknown figures were killed instantly, and the third died ten minutes later.
Unfortunately, it turned out that the victims were neither Al Qaeda terrorists nor Taliban soldiers. They were three British television reporters, who were investigating a possible story about American soldiers increasing their vigilance at base camps because of concern about increased terrorism as a result of locals' anger over the seemingly inevitable Iraq war.
The deaths of the British reporters created an immediate frenzy, with British Prime Minister Blair expressing “serious concern” over the American soldiers’ “apparent dereliction of duty.” He further suggested that the British alliance with the United States was “implicated” as a result of this incident.
Shortly thereafter, a U.S. Marine JAG officer brought charges against Lt. Joe, and informed Lt. Joe’s commanding officer, all pursuant to Article 30 [of the Uniform Code of Military Justice, codified at 10 U.S.C. § 830]. The commanding officer initiated an Article 32 [10 U.S.C. § 832] investigation, and appointed a Marine Captain outside Lt. Joe’s chain of command.
The military investigator conducting the Article 32 investigation discovered the following:
1) Some of the soldiers who shot the British reporters claimed that their rules of engagement, as promulgated by Lt. Joe, authorized them to shoot on sight anyone approaching the base camp at nighttime who was not identifiable as a United States soldier.While the Article 32 investigation was pending, Prime Minister Blair made another statement about how upset the families of the reporters were about their untimely deaths. He reiterated his concern about the incident and the impact that it was having on U.S.-U.K. joint military relations.2) A couple of the soldiers on duty the night the British reporters were shot did not themselves shoot, and they did not recall any rules of engagement of the sort described above.
3) Lt. Joe stated that he could not remember the exact rules of engagement that he promulgated, but it would not have been surprising if he had in fact told his soldiers that they were authorized to shoot on sight at nighttime.
At a news conference about the latest Republican tax-cut plan, a reporter asked President Bush about the Lt. Joe incident. President Bush responded that he was aware of the matter and that it was of grave concern to him but that he was going to let the military investigation proceed on its own before reaching any decision.
Secretary Rumsfeld, characteristically, was more blunt. At a press conference about the latest military action in Iraq, the following exchange took place:
"Ewen MacAskill of the Guardian, Mr. Secretary. Surely you must be aware of the mounting anger in Great Britain over the shooting of the British reporters by your Marines outside Kabul, and the Prime Minister's comments regarding the incident. Aren't you concerned that this is going to weaken U.S.-British joint operations in Iraq?"Predictably, Secretary Rumsfeld’s comments drew intense media attention, and two days later, at a briefing about military operations in Afghanistan, reporters peppered him with questions about how he could be certain that the British would be satisfied with the outcome of the military investigation into the Lt. Joe incident. On this occasion Secretary Rumsfeld was quoted as having said,"Mr. MacAskill, you well know that Great Britain continues to be a strong ally and partner in our effort to effect a regime change. I don’t expect that the Afghanistan incident with the British reporters is going to cause any problems whatsoever in that regard. It’ll be taken care of.”
"If I may follow up, Mr. Secretary, just what do you mean by ' taken care of '?"
"Well, uh, well, let's just say that I'm confident the Prime Minister and our British friends will be satisfied with the outcome.”
“Look, this is not rocket science. Any appeal ultimately goes through the U.S. Court of Appeals for the Armed Forces. The judges on that court serve 15 year terms, and one of the three judge's terms expires later this year. I’m sure he’ll demonstrate that he understands the value of national security, and if he doesn’t, well, I’m sure the President will take that into account.”Although the Article 32 investigator has not yet made any recommendations to a court martial regarding charges against Lt. Joe, Lt. Joe's lawyers have filed an action in the United States District Court for the Southern District of Iowa, naming Defense Secretary Donald Rumsfeld and other DOD officials as defendants. They have just filed a motion seeking the following relief:
(1) An injunction to prevent the convening of any court martial of Lt. Joe on grounds it would be biased against him. The motion asserts that the statements of President Bush, as the commander-in-chief, and Secretary Rumsfeld demonstrate that they have prejudged him and that the court martial will simply “rubber stamp” his conviction so as to appease the British.Shortly after Lt. Joe filed his complaint and the defendants answered, the district court held a status conference. At the status conference, the district court raised the question of whether it had jurisdiction to grant declaratory and injunctive relief in this case, and whether the issue of damages was ripe. The transcript of that conference contains the following exchange:(2) In the alternative, a declaration that the statement that he gave to the Article 32 investigator was obtained in violation of his rights under the Fifth Amendment and Article 31 of the Uniform Code of Military Justice. Specifically, Lt. Joe alleges that the Article 32 investigator did not inform him that (a) he was free to refrain from making any statement and (b) that any statement he made could be used against him.
(3) Following the issuance of the declaration in (2), above, an injunction barring the use in any court martial of the statement that Lt. Joe gave to the Article 32 investigator.
(4) Damages against the United States for the alleged violation of his Fifth and Sixth Amendment rights when he was questioned by the Article 32 investigator without counsel and without being informed that he was free to not make a statement or that any statement he made could be used against him.
THE COURT [Judge Judith S.]: Counselors, I’m wondering whether the court has jurisdiction to interfere with a proceeding in an entirely different judicial system, especially when no court martial has even been convened. It seems to me it would be like interfering with a potential state court prosecution, and I’m not sure I have jurisdiction to do that.DEFENSE COUNSEL: Uh, yes, Your Honor brings up a good point.
PLAINTIFF’S COUNSEL: Well, I’m not sure that I agree, but before I say anything definite, I think I’d want to do some research.
THE COURT: Always a good idea. Unless, counselor [meaning defense counsel], you have a case at hand that supports my thought.
DEFENSE COUNSEL: I’m sorry, Your Honor, I don’t.
THE COURT: Very well, I’ll expect briefs on this matter.
DEFENSE COUNSEL: Very good, Your Honor. I believe you also indicated that the damages claim was not ripe.
THE COURT: I did not say that. I was merely wondering whether it might not be ripe. It seems to me that maybe he hasn’t yet suffered any constitutional violation if the statements he gave haven’t been used against him at this point. If neither of you knows either way, then I’ll expect briefing on that issue as well. Let’s see; what if we say the briefs are due by noon on March 12, 2003. Does that work for both of you?
DEFENSE COUNSEL and PLAINTIFF’S COUNSEL: Yes, Your Honor. Thank you, Your Honor.
1. For purposes of this brief, you are to assume that rules of engagement allowing soldiers to shoot suspects on sight without warning, even at nighttime, are unlawful.
2. Cases on “unlawful command influence” might be found in what is now known as the Court of Appeals for the Armed Forces (formerly the Court of Military Appeals).
3. You must comply with the local rules of the Southern District of Iowa, particularly Local Rules 7.1, 10.1, and 11.1. The local rules are available at the court’s website, http://www.iasd.uscourts.gov or in the Law Library. The only exceptions to those rules are that (1) your briefs are to be at least 15 pages (say, 15-18), double-spaced (excluding caption, table of contents, table of authorities, and statement of facts); (2) if you are filing a brief on behalf of Lt. Joe do not need to prepare a notice of motion; and (3) no proof of service is necessary.
4. By way of reminder: As announced in class, although proper Blue Book form was not required for Writing Assignments 1 and 2, it is required for this one.
5. Do not put your name on your brief; use the number Julianne Bruce has e-mailed you which is part of a new numbering system for this project.
6. If you have been assigned an odd number (e.g., 1, 3, etc.) you are representing Lt. Joe. If you have been assigned an even number (e.g., 2, 4, etc.) you are representing the defendants.
7. The caption page is the cover page of the court pleading. It identifies the court that it is being filed in, the parties, the type of pleading, and time and date of the hearing.
It should look something like this:
ATTORNEY [insert your number]
University of Iowa College of Law
Iowa City, IA 52242
(319) 335-9034Attorney for Defendants
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
LIEUTENANT GEORGE IRVING JOE, |
DEFENDANT’S BRIEF RE |
v.
DONALD RUMSFELD et al., |
DATE: March 14, 2003 |
8. The table of authorities lists all the legal sources (cases, statutes, constitutional provisions, secondary sources such as books or law review articles) cited in the memorandum of points and authorities, along with the page(s) for which each source is cited. It should look something like this:
TABLE OF AUTHORITIES
Cases
Smith v. Jones, ___ U.S.
___ (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . .5, 12-13
U.S. Constitution
Amend. V. . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . .4
Statutes
28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3