Nonsensical and Dangerous (Updated)

November 27, 2012 Comments Off

Most of you already know that the Supreme Court of Kansas chose to disbar former Navy Judge Advocate Matthew Diaz, who was convicted of, in short, improper handling and disseminating of classified material while serving as a defense lawyer at GITMO. Interestingly, they chose not to accept the recommendation of the disciplinary administrator that would have allowed Diaz to practice law.

Here’s a bit more detail on the conviction, via the appellate decision (notes: “composed of members” means that he had a jury and a dismissal is equivalent to a dishonorable discharge).

A general court-martial composed of members convicted Appellant, contrary to his pleas, of one specification of violating a lawful general order, one specification of conduct unbecoming an officer and a gentleman, one specification of communicating classified information, and one specification of removing classified material, in violation of Articles 92, 133, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. ยงยง 892, 933, 934 (2000). The members sentenced Appellant to six months confinement and dismissal from the Navy. The convening authority approved the findings and the sentence as adjudged.

There are many lessons to be learned from this case. CAAFlog has already done an excellent job of recapping this debacle. I’d like to highlight two points:

1. No enough was made about the involvement of a Chihuahua.

Prosecutors said Diaz went to his office in January 2005 and used his classified computer to log onto a classified military network and access a database with detainee information. They say he printed information that included the names of 550 detainees, their nationalities, the interrogators assigned to them and intelligence sources and methods.

Prosecutors said Diaz then cut the document into 39 sheets that he placed inside a card with a big heart and a Chihuahua on its front and mailed it to Barbara Olshansky, who at the time worked for the Center for Constitutional Rights.

The nonprofit legal group was suing the federal government to obtain the names of detainees after the U.S. Supreme Court had ruled the detainees had the right to challenge their detention. Olshansky turned the document over to federal authorities, and they traced it to Diaz.

How bad is it when the nonprofit seeking to nail the government turns your handiwork over to the government?

2. It is important that, in any appellate matter, we as advocates should avoid having our arguments labeled as “nonsensical and dangerous.”

We begin our analysis by recognizing that in apparent support of respondent’s position that the military courts have sufficiently disciplined him, he repeats an argument he made before those tribunals. Respondent essentially argues that while his actions were wrong his motive was virtuous. In short, he disclosed the information to protect the Guantanamo Bay detainees’ habeas corpus rights declared in the United States Supreme Court opinion of Rasul v. Bush, 542 U.S. 466, 124 S. Ct. 2886, 159 L. Ed. 2d 548 (2004). During the general court-martial proceedings, that tribunal excluded respondent’s motive evidence showing his purported honorable intent in disclosing the classified information. As noted by the hearing panel, the United States Navy-Marine Corps Court of Criminal Appeals affirmed, finding his motive argument “nonsensical and dangerous.” United States v. Diaz, No. 200700970, 2009 WL 690614, at *5 (N.M. Ct. Crim. App. 2009) (unpublished opinion).

UPDATE:

Going back 5 years (while I was still in uniform), Scott Greenfield at Simple Justice addressed this very topic, prior to both appellate decisions (published CAAF decision and unpublished NMCCA decision) and disbarment action. Interesting to juxtapose his take on this subject with the eventual decisions of three appellate courts.

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