Flawed prosecution in Diaz Commentary
Flawed prosecution in Diaz

Donald G. Rehkopf, Jr. [Brenna, Brenna & Boyce PLLC]: "Lawyers and law students, civilian and military, need to pause and seriously consider both the court-martial and verdict in the case of Navy JAG, Lieutenant Commander Matthew Diaz. My comments are not about the moral issues or that of civil disobedience for the greater good. Rather, the basic question – that the media has uniformly ignored – is how and why this case ever made it to court. Aside from almost certain disbarment if his conviction is upheld, the prosecution was fundamentally flawed.

The core allegation in Diaz, the alleged transmittal of a roster of the prisoners held at Guantanamo Bay, which the government claims was "classified." The government knew that was a false allegation but relied upon the mantra of "national security" to keep its "secret" safe. At best, the government could claim that the roster was "For Official Use Only," which is not a classification category under federal law.

JURIST readers may recall that the military charged former Army Chaplain, Captain James Yee and Air Force Senior Airman, Ahmad Al Halabi with similar "crimes" after tours at GTMO. Yee was exonerated completely while Al Halabi had all but a couple of minor charges either dismissed or withdrawn by the government. Indeed, the government finally agreed that the prisoner [after more than 5 years, they are not "detainees"] rosters were not classified. I know, because I was the lead counsel in U.S. v. Al Halabi and with the very able assistance of my military JAG co-counsel, Majors James Key and Kim London, we established that the names of the prisoners and their ISN's could not be legally "classified" under U.S. law. Captain Yee's attorneys made similar arguments, resulting in his ultimate vindication.

The government had to know of the Al Halabi results, and thus the question becomes, was the fact that a similar roster in Al Halabi was ultimately conceded by the government not to be classified, disclosed pursuant to the prosecution's duties under Brady v. Maryland, 373 U.S. 83 (1963), and Kyles v. Whitley, 514 U.S. 419 (1995), a standard adopted by the U.S. Court of Appeals for the Armed Forces, see United States v. Roberts, 59 M.J. 323 (2004). The Navy "knew" for sure, because the government "detailed" (assigned) a Navy JAG as an assistant prosecutor in the Al Halabi case.

Trials, especially criminal trials, are in theory about "truth" and "justice." After reading the many media reports, to include the fine coverage in JURIST, one has to wonder however, if either truth or justice exists in the Diaz case."

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