Air Force Times reports:

The attorney for a former al-Qaida cook said Monday that the government did not deliver on a promise that led him to plead guilty to supporting terrorism, and she said that could discourage other inmates at Guantanamo from reaching deals with prosecutors.

Fine so far. But is there a problem?

Ibrahim Ahmed Mahmoud al-Qosi of Sudan was removed from a communal-living compound over the weekend, and placed in more isolated confinement, despite a recommendation in the plea agreement that he stay, a Pentagon official said (emphasis added).

So what’s the beef?

There was no guarantee that al-Qosi would stay in the prison camp reserved for the most cooperative detainees, but that was the recommendation of the Pentagon official who oversees the tribunal system and prosecutors made personal pledges to ensure that it happened.

Before agreeing to this provision, did the defense counsel or the prosecution talk to the task force commander to determine what course of action would be taken?

So what’s the beef? Is there a deal breaker? Why be upset if there was no guarantee?

In United States v. Smead, 68 M.J. 44 (C.A.A.F. 2009), the issue came up with an agreement that the accused sex-offender would be sent to Miramar for confinement. The reason being that Miramar has the better of the sex offender treatment programs compared to the USDB and any of the other military confinement facilities.

In the pretrial agreement entered into by the parties at Appellant’s initial hearing, Appellant agreed to plead guilty to a number of the charges against him, and the convening authority agreed to withdraw and dismiss the balance of the charges with prejudice. The pretrial agreement also provided that Appellant would be confined at the Miramar base brig so that he could complete a sex offender treatment program.

Smead raised this on appeal and got his wish.

At Appellant’s rehearing, the Government reinstated all charges against Appellant, including — over Appellant’s objection — the charges that had been dismissed with prejudice at the first court-martial. The parties then entered into a new pretrial agreement, which included new sentencing provisions and dismissal with prejudice of the charges previously dismissed after Appellant’s first court-martial. For the reasons set forth in Part II, we conclude under the particular circumstances of this case that the Government at the rehearing improperly reinstated charges previously dismissed with prejudice. In that regard, we note that the Government failed to implement several provisions of the initial pretrial agreement, and compounded its errors by failing to implement the order of the court below on remand. We also note that the Government did not negotiate an agreement providing for withdrawal from the pretrial agreement under applicable circumstances, and that the proceedings did not otherwise involve conditions authorizing reinstatement of previously dismissed charges.

But the error was not prejudicial. This case presents an interesting discussion of pretrial agreements, novel terms, construction or absence of usual terms, and the effects of winning on appeal regarding certain PTA issues.

Women usually go to Miramar for confinement. Officers usually go to the USDB. Beyond that the issue is one of bed space for the person according to the offenses and the sentence. True, most sex offenders go to Miramar and most involved with drugs and alcohol may end up at Charleston. But that’s not a guarantee, the bureaucrat at the Army assigns bed space generally on “Space A.”

Not a novel term, but the issue of deferment and waiver of forfeitures must take into account the members EAOS (ETS, EAS, and whatever the AF calls it).

Don’t get me wrong, I’m a supporter of being creative in fashioning pretrial agreements. Frankly I wish there were more options available to negotiate over. But currently there are limitations. From time to time I have offered and had accepted a restitution provision. If no later than 30 days from the date of trial (or some other suitable date) the accused pays the theft victim $x.00, for the loss of his stereo, the CA will take X clemency action (this presumes there has been no Article 139, UCMJ, claim paid). In another case, if the client pays $x.00 toward counseling for an assault victim, the CA will take X clemency action. Those are ways to get a victim made closer to whole rather than money in the Treasury and a way to help the CA feel better about giving a thief a break on confinement.

A regional prison is opening at Fort Leavenworth, combining the operations of military prisons elsewhere in the United States. The Joint Regional Confinement Facility will be operated by the Army Corrections Command. It’s located on the northeast Kansas post near the U.S. Disciplinary Barracks, the military’s maximum-security prison. Dedication ceremonies were scheduled Tuesday for the prison and a new brigade that will staff it. The 464-bed facility will get its first prisoners next month from Fort Sill, Okla., and reach 120 inmates by January. In 2005, the Base Realignment and Closure Commission decided to close prisons at Fort Sill, Fort Knox, Ky., and Lackland Air Force Base, Texas.

A Davis-Monthan airman is on trial in military court this week over allegations that he ran a fraudulent Russian bride ring, arranging sham marriages for money with members of the military so the foreign women could obtain legal status in the U.S.

The Record-Courier reports on the Davila case:

Family members of murdered soldier Timothy and Randy Miller are preparing for a day of testimony from the defense after a daylong hearing for the prosecution on Monday.

Army Times reports:

Family members of soldiers who are imprisoned at Fort Leavenworth for killings during the Iraq war are planning a rally in Leavenworth. The relatives call the inmates the Leavenworth 10, although two have been released from the prison. Scott Behenna, one of the organizers of the Labor Day weekend rally, says the group is not anti-military.

What impact, if any, might this have on Behanna’s continuing requests for clemency?

Marine Corps Times reports this piece of collateral consequences:

Some military veterans are angry that a World War II soldier who died in prison after pleading guilty to killing his wife is scheduled to be buried Tuesday in Denver’s Fort Logan National Cemetery. Raymond R. Sawyer, a former Marine from Colorado, died Aug. 11 in a Tucson, Ariz., state prison while serving 13 years for second-degree murder.

A former Navy officer who was serving time for hiring someone to kill his wife was killed in a Kansas military prison a month before he was supposed to be released. Officials at Fort Leavenworth say 54-year-old former Navy Lt. Cmdr. Michael Fricke was beaten with a baseball bat by another inmate on July 24. He died Thursday after his family authorized taking him off life support. Fricke had served 16 years of the 30-year sentence for his involvement in the murder of his wife, Roxanne, who was shot to death the parking lot of a Kempsville supermarket in 1988. Fricke pleaded guilty during his 1994 court-martial to avoid a possible death sentence. He said he agreed to pay a man he had been stationed with at Oceana Naval Air Station $25,000 to find someone to kill his wife.

United States v. Fricke, 53 M.J. 149 (C.A.A.F. 2000).

Here is subsequent action at NMCCA, in United States v. Fricke, NMCCA 9601293, 2004 CCA LEXIS (N-M. Ct. Crim. App. April 9, 200), rev. granted, 60 M.J. 332, 2004 CAAF LEXIS 914 (C.A.A.F., 2004), aff’d, 60 M.J. 332, 2004 CAAF LEXIS 907 (C.A.A.F., 2004).

A predecessor panel of this court affirmed the findings and sentence in the appellant’s general court-martial. United States v. Fricke, 48 M.J. 547 (N.M.Ct.Crim.App. 1998). Afterwards, our superior court affirmed our decision as to the findings, but set it aside as to the sentence. United States v. Fricke, 53 M.J. 149, 155-56 (C.A.A.F. 2000). The Court of Appeals for the Armed Forces (CAAF) also directed that the case be remanded to the Judge Advocate General for further proceedings in accordance with its decision and United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967) [*2] on the remaining issue of unlawful pretrial punishment, after which the record was to be returned to this court for review under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c). The proceedings directed by CAAF have been conducted, and the record is now before us for completion of review. Since the findings in this case have already been affirmed by our superior court, our review on remand is limited to the issue of unlawful pretrial punishment, specifically “the conditions actually imposed on appellant during his pretrial confinement and the intent of detention officials in imposing those conditions.” Fricke, 53 M.J. at 155; see United States v. Quiroz, 57 M.J. 583, 586 (N.M.Ct.Crim.App. 2002)(citing United States v. Riley, 55 M.J. 185, 188 (C.A.A.F. 2001)). We have carefully reviewed the entire record of trial, including the DuBay proceedings held pursuant to the mandate of our superior court. We have also considered the pleadings and supplemental briefs of both parties. Finding that the record does not support the appellant’s assertions of unlawful pretrial punishment, we conclude that the approved sentence is correct in law and fact, and that no error materially prejudicial to the substantial rights of the appellant occurred. Art. 66(c), UCMJ.

Fernando Garcia was convicted after a guilty plea before a general court martial. He then sought habeas relief in federal district court pursuant to 28 U.S.C. § 2241, arguing that the military appellate courts failed to afford him adequate review of his Fourth Amendment claim based on Georgia v. Randolph, 547 U.S. 103 (2006). Because we agree with the district court that the military courts gave this argument full and fair consideration, we affirm its denial of Mr. Garcia’s petition.

This was a guilty plea case. NMCCA affirmed the conviction and held that Garcia waived the Randolph issue with his guilty plea. CAAF denied his petition. Had Garcia not plead guilty, he may have benefitted from Randolph which came out after his trial but during the course of appellate proceedings. You will recollect that Randolph is the third-party consent to search case.

Mr. Garcia protests that it was unfair to find waiver in his case because he couldn’t have foreseen the decision in Randolph, which wasn’t decided until after he pled guilty. Accordingly, he contends Randolph should apply retroactively to his case despite his failure to raise the issue before the court martial and decision to plead guilty. But, again, Mr. Garcia thoroughly presented this argument to the military courts, even going so far as to urge adoption of a new rule explicitly permitting appellate review in such circumstances. Those courts found the argument without merit. The district court was thus correct to hold that it lacked authority to review Mr. Garcia’s claim any further. We affirm its denial of Mr. Garcia’s § 2241 habeas petition.