Eric Montalvo

  • March 24, 2010
    Guest Post

    by Maj. (Ret.) Eric Montalvo, Esq., Founding Partner, The Federal Practice Group Worldwide Service. He has handled several Military Commission cases including U.S. v. Al Bahlul, U.S. v. Hawsawi (the alleged 9/11 co-conspirator), and the case of the U.S. v. Jawad, fighting for and securing the release of one of the youngest Guantanamo Bay detainees in 2009.

    The Supreme Court on Monday declined to review the D.C. Circuit Court's ruling in Kiyemba V. Obama (Supreme Court docket 09-581). The D.C. Circuit Court held that the judiciary may not review executive branch decisions regarding when or where to transfer detainees that it is prepared to release from Guantanamo Bay. This case is now informally referred to as "Kiyemba II." Ten current Guantanamo detainees who have been cleared for release object to being returned to their country of national origin out of fear or concern for their safety and well-being.

    In Kiyemba I, the Court granted certiorari on the question of "whether a federal court exercising habeas jurisdiction has the power to order the release of prisoners held at Guantanamo Bay "where the Executive detention is indefinite and without authorization in law, and release into the continental United States is the only possible effective remedy." In the vacation and remand to the D.C. Circuit Court the Supreme Court held that "no court has yet ruled in this case in light of the new facts, and we decline to be the first to do so."

    The Court's ruling creates uncertainty in the system which is already wrought with indecision and indefinite consternation. The Supreme Court has created an exception to the general rule that a court loses jurisdiction where there is no case or controversy and a court's decision will no longer have an impact on plaintiff. The Court has recognized that some questions may involve proceedings that are frequently repetitive, but come to a conclusion prior to the normal life cycle of litigation effectively depriving the Court of jurisdiction. The Court may assume jurisdiction where there was injury that was "capable of repetition, yet evading review." The classic example of the Court utilizing this exception is in the abortion line cases. These cases present such a circumstance and allow the government to alter the justiciability issue simply by changing the facts in the 9th inning.

  • February 1, 2010
    Guest Post

    by Maj. (Ret.) Eric Montalvo, Esq., Founding Partner, The Federal Practice Group Worldwide  Service

    On January 20, 2009 the world changed for a moment. President Barack Obama was sworn in as the 44th President of the United States. He became the first African American to hold this office and one of his first acts as President was to publish the now infamous "transparency memo" on January 21, 2009. This memo highlighted three key policy objectives: 1) government should be transparent; 2) government should be participatory; and 3) government should be collaborative.

    This promise of transparency is at best illusive. On January 22, 2010, almost one year to the date that this memo was published, the Obama administration announced that it would be implementing a policy of indefinite detention for 50 or so Guantanamo Bay detainees. The President has decided to travel upon this path in part to "cover up" our use of "harsh interrogation techniques" and intelligence gathering procedures. In theory, the evidence obtained through these techniques cannot be used to successfully sustain a conviction.

    If the techniques are that egregious, the President should grant immunity to those who engaged in such conduct so that closure can be obtained and this sad chapter in American history can be closed. Disclosure of the torture techniques that are purportedly no longer sanctioned can cause no harm. If the concern is incitement of the enemy, then the government can pursue National Security Courts or remit the persons to others jurisdictions to be investigated for their alleged war crimes and/or civil crimes.

  • November 19, 2009
    Guest Post

    by Maj. (Ret.) Eric Montalvo, Esq., Founding Partner, The Federal Practice Group Worldwide Service. He is a former Marine Corps Judge Advocate (JAG). Eric currently specializes in national security law and military law. He is noteworthy for his work in securing the release of Mohammad Jawad, one of the youngest Guantanamo Bay detainees.

    On November 5, 2009 U.S. Army Major Nidal Malik Hasan by all accounts shot and killed 12 soldiers and 1 civilian aboard Fort Hood, Texas. On November 10, 2009, President Obama (also the Commander-in-Chief) proclaimed the following at a memorial service held at Fort Hood:

    It may be hard to comprehend the twisted logic that led to this tragedy but this much we do know - no faith justifies these murderous and craven acts; no just and loving God looks upon them with favor ... for what he has done, we know that the killer will be met with justice - in this world, and the next. [Emphasis added.]

    On November 12, 2009 President Obama ordered an investigation into the intelligence breakdown surrounding Hasan. On November 13, 2009 an announcement was made that capital charges had been preferred and that Hasan would be facing the death penalty. This is just seven days after the incident. One has to wonder if this is truly possible or whether the military justice system may be opening itself up to scrutiny due to undue command influence.

    Unlawful command influence (UCI) is the improper interference with the military justice court-martial process, and has been quoted as "the mortal enemy of military justice." UCI prohibits any person subject to the Uniform Code of Military Justice (UCMJ) from attempting to "coerce or ... influence the action of a court-martial ... in reaching the findings or sentence in any case or the action of any convening, approving, or reviewing authority with respect to such authority's judicial acts." The exercise of command influence tends to deprive service members of their constitutional rights. An appellate court may generally not affirm the findings or sentence unless it is persuaded beyond a reasonable doubt that the findings and sentence have not been affected by command influence. The Commander-in-Chief's comments seemingly create the appearance that undue command influence has occurred.

    It takes an average of 30-60 days to charge and process a service member who has left his unit without authority commonly known as a "deserter" or "AWOL status." These are the clearest cut cases to prosecute which can be proven almost entirely through documentary evidence. To effectively charge someone in the military with a capital offense one would need to consider several practical concerns. The first is the general unfamiliarity with capital litigation among the military lawyers and the convening authority who will refer the case to court martial. The second significant issue arises from the additional procedural requirements mandated by the UCMJ in relation to capital charging and sentencing. Prior to arraignment the trial counsel must disclose all of the aggravating factors the prosecutor intends to prove at trial. This typically requires all of the evidence to be available in order to substantiate these assertions. The third and most significant issue is the completion of the investigation. It is hard to imagine that the criminal investigative division of the Army fully investigated the case, authored a report, presented it to the prosecutor and the prosecutor then titled the charges within seven days. The declassification or transfer of the material within intelligence agencies that may provide important evidence cannot have been processed within seven days as they admittedly do not even know what that evidence is. The charge requires personal knowledge of the events or that the matters were investigated. A challenge to the preferral could un-do the entire process. This timeline is simply unheard of and seemingly legally reckless from a prosecutorial standpoint. It is apparent that the Commander-in-Chief has "influenced" the actions of military commanders by "motivating" the military justice system to move at a speed of resolution with which it is unfamiliar.

    The military justice system will be placed under great scrutiny in the near term as the case progresses. There are many procedural and substantive protections which appear on their face to give the UCMJ credibility. In the end, this careless progress may even inure to the benefit of the accused but it is another example and sad indictment of the rush to judgment and lack of real justice within the military justice system that supports its status as an oxymoron.

  • October 20, 2009
    Guest Post

    By Maj. (Ret.) Eric Montalvo, Esq., Founding Partner, The Federal Practice Group Worldwide Service, and former Marine Corps Judge Advocate (JAG). Eric currently specializes in national security law and military law. He is noteworthy for his work in securing the release of Mohammad Jawad, one of the youngest Guantanamo Bay detainees.

    Imagine for the moment you are walking along a sidewalk and suddenly you hear and feel an explosion. As you run for your life someone tackles you and gives you over to the police. Within hours you are hooded and handed over to a foreign power and a month later put on a plane to somewhere. The foreign power who has detained you continues to make allegations that you were somehow involved in the explosion which you repeatedly deny. The foreign power "invents" a legal process which is found to be inadequate, the second version is found inadequate as well, and they are now working on a third version. The judges, prosecutors, and most defense counsel have no experience as it relates to national security litigation and capital punishment. You are introduced and assigned to military defense counsels who wear the same uniform as the prosecutors. Men, some of whom may be totally innocent, awake every day to this indefinite detention. This is the reality of the Military Commissions system for detainees at Guantanamo Bay.

    Trial by the Military Commissions does not present defendants with a meaningful opportunity to challenge the bases of their detention. Even a determination by the Commission that it does not have personal jurisdiction over a defendant, or, after trial, that the defendant should be acquitted, does not have a binding effect. The Bush Administration policy maintained a policy of indefinite detention regardless of the outcome as described by the Pentagon Press Secretary Geoff Morrell whereby he stated at a news conference, "even if he [the detainee] were acquitted of the charges that are before him, he would still be considered an enemy combatant and therefore would continue to be subjected to-subject to continued detention." It is a policy that is currently being followed by the Obama Administration and, in the meanwhile, detainees are held with no hope of release.

    The primary purpose of drafting the Constitution was to limit government power. The Due Process guarantees found in the Bill of Rights were meant to empower individuals against arbitrary government action. This is a bedrock principle of American jurisprudence and is being completely ignored as a policy concern in relation to Guantanamo detainees.