Friday, February 27, 2015

Great way to look like you are batting .1000

A retired Navy JAG Corps lawyer, Commander Wayne L. Johnson, has written an interesting letter to Navy Times about a peculiarity in the U.S. Coast Guard's reporting of trial results: just include the convictions, never mind the acquittals:
As I was reading the results of Coast Guard courts-martial, I noticed something interesting about how the service provides the information to the media ["Coast Guard renders court-martial verdicts in late 2014," Jan. 27]. 
The other branches of the military release all of their court-martial results, including those where the verdict was not guilty, while the Coast Guard, as a matter of policy, provides only the convictions. To the uninformed it would appear the USCG has a 100 percent conviction rate, which of course is not true. 
Why does the Coast Guard not provide all the court-martial verdicts? The other services do this, but they do not release the names of those found not guilty, only the guilty. 
If you go back over the past two years, about a third of the results reported by the other services are not guilty — particularly in cases involving things like rape and indecent assault. 
The public should be told the whole story in that regard and not just be given this limited view by Coast Guard leaders. I imagine the senior officials at the USCG are only giving the conviction results to send a slanted, untrue message that everyone charged is being found guilty. 
It is also interesting that the Coast Guard does not provide the names of those convicted even though, unlike Article 15 or administrative discharges, the names of those convicted at a court-martial (at least general and special courts-martial) are public records. In fact, I do not recall seeing any of the other services posting summary court-martial results, only general and special. 
One would think the services would be more uniform as to what results they do and do not release. It is my belief the Coast Guard should adopt what its sister services in the Department of Defense are releasing.
Seems like a fair point. 

Now you see it . . .

Responding with alacrity to an order abating the 9/11 military commissions case and a pending hearing in the USS Cole bombing case, the Defense Department has rescinded an order that required military commission military judges to remain at Guantánamo Bay until their cases were completed. The order had been found to give rise to at least the appearance of unlawful influence. The Miami Herald's indefatigable Carol Rosenberg has the story.

Why did the President of Pakistan amend the new military courts provisions of the Army Act by means of a mere ordinance?

Dawn has the answer, in this February 26 editorial:
IN a strange, mostly unexplained twist, President Mamnoon Hussain has promulgated an ordinance further revising the recently amended Army Act to ostensibly aid the functioning of military courts by allowing for trials in camera, ie without the presence of the public or the media, and over video link if necessary.
The idea, according to a special assistant of the prime minister who handles legal matters, is to enhance security for presiding officers, military prosecutors, witnesses and defence lawyers by shielding their identity from the public and the media.

While that may seem like a sensible idea — and only at first blush — it is quite incredible that already the law dealing with military courts is being amended in such a clandestine manner and without any debate.

The need for a presidential ordinance — a legislative tool that has been used in the past to undermine parliamentary democracy — points to either one of two problems. 
Military courts were either mooted in haste and only now are the real-world impediments to their functioning becoming apparent, hence the need to tweak the law.

Or the government and the military which demanded such courts do not feel obliged to maintain any level of transparency in the operation of these courts and are now confident enough to introduce changes that essentially seal off their functioning from any kind of public and media scrutiny.

OHCHR: Colombia bill does not meet international requirements

Tom Howland, the representative of the UN High Commissioner for Human Rights in Bogota, has stated that the government-sponsored bill currently before the Colombian Congress does not meet the country's international legal obligations. According to this report, he urged that Colombia confront past offenses in a direct manner.

Fraying civil-military judicial relations in Pakistan?

There's an interesting additional subplot to the controversy surrounding Pakistan's new military courts. So far it has seemed that on the one hand, the government has moved aggressively to present the Supreme Court (before which 13 Constitutional Petitions challenging the 21st Amendment are pending) with a fait accompli by a show of activity towards getting the new courts up and running, while at the same time retarding the Supreme Court's process by pretending not to have realized that it had been ordered to submit a concise statement of its position to the Court, while on the other hand the civilian anti-terror courts have made a show of activity to move some cases ahead.

The latest wrinkle in this arm-wrestling match seems to be that the High Courts have refused to make their judges available to serve as magistrates for the taking of statements in military court cases. As background:
The home department made a reference to a letter received from the Pakistan Army’s 5-Core Karachi Office, dated February 15, wherein it was stated that military courts have been established in light of the recent constitutional amendments for trial of accused persons, who were involved in heinous offences. It was further said that prior to the commencement of the trial, some of the accused wanted to voluntarily record their confessional statements under Section 164 of the Criminal Procedure Code (CrPC). The home department was asked to ensure nomination of judicial magistrates to record the statements of the accused.
According to this article (quoting an unnamed judicial official), “All the high courts raised similar objections to the requests, asking the home departments to approach the relevant district and sessions judges to name their subordinate judicial magistrates for the military courts to record the confessional statements of the accused persons.” The civilian courts are not going quietly.