Wednesday, May 6, 2015

Retired officers among those convicted in Venezuela

A military court in Venezuela has sentenced nine active and retired officers to seven-year terms on charges of instigating a rebellion. Details can be found here. The Inter-American Court of Human Rights has repeatedly held that retired personnel are not subject to trial by court-martial.

Reparations and Guantánamo's cleared detainees

Justice (Ret) John Paul Stevens
Retired U.S. Supreme Court Justice John Paul Stevens gave a remarkable speech on Monday in Washington, D.C. It is available here. Addressing a meeting of Lawyers for Civil Justice, he urged the government to compensate the 57 Guantánamo detainees who have been cleared for release by the six federal agencies that decide such matters. Fifty of them were cleared for transfer over five years ago. All 57 remain imprisoned because Congress has entirely barred their entry into the United States and rendered it all but impossible for the administration to move them elsewhere. "These onerous provisions have hindered the President's ability to close Guantanamo, make no sense, and have no precedent in our history." He analogizes persuasively to the compensation and apology granted to Japanese Americans who were relocated and interned during World War II. Justice Stevens mentioned that it costs the taxpayers $3 million per detainee per year to maintain the facility at Guantánamo, in contrast with the $75,000 its costs to house an inmate in a "supermax" prison.

Tuesday, May 5, 2015

Military trials for ex-Yemeni chief of staff and other officials

Abd Rabbuh Mansour Hadi, the President of Yemen, has ordered Hassan Khairan, the recently-replaced chief of staff, and other senior officials, including governors, to be tried by military courts. According to this account, the reason is "their alleged support for the Houthis and allied former President Ali Abdullah Saleh."

Article III's Irrelevance to Court-Martial Jurisdiction: A Reply to Professors Corn and Jenks

It is always flattering when serious scholars take the time to respond in print to one’s scholarship, and that’s what my friends Geoff Corn and Chris Jenks have done in their new paper, A Military Justice Solution in Search of a Problem, a response to my recent article, Military Courts and Article III (about which I’ve previously blogged in detail here). Despite the fact that Professors Corn and Jenks mischaracterize various aspects of my article, I’d ordinarily be inclined to leave well enough alone, and let readers decide for themselves who has the better of the relevant arguments.

In this case, though, I feel compelled to pen a reply for two separate—but related—reasons: First, those who only read the Corn and Jenks piece would not only have no idea what my article was actually about, but would also come away with the impression that I spend 50-some-odd pages making up a solution to a made-up problem. Second, and far more importantly, the Corn and Jenks response in many ways vindicates the central descriptive claim of my article—that contemporary courts and commentators have systematically failed to appreciate the Article III implications of modern military jurisdiction. After all, in their response to an article about the relationship between military courts and Article III, Corn and Jenks not only say virtually nothing about Article III, but the one thing they do say is that Article III is (and should be) all-but irrelevant to the constitutional scope of contemporary court-martial jurisdiction over servicemembers and civilian contractors alike. Reasonable people can surely disagree about the extent to which Article III (to say nothing of the rest of the Constitution) limits the jurisdiction of non-Article III federal military adjudication. What I hope no reasonable person can dispute is that such limits exist.

Does the amount in controversy matter in civil cases in Chinese military courts?

For commercial cases, the amount in controversy does matter in determining which Chinese military court will hear your dispute.

On 30 April, the Supreme People's Court adjusted the jurisdiction of higher and intermediate level courts, for both the civilian and military courts in first instance civil/commercial cases in 关于调整高级人民法院和中级人民法院管辖第一审民商事案件标准的通知 (Notice on adjusting jurisdiction for higher and intermediate courts in 1st instance Civil/Commercial cases).  From 1 May:
  • The PLA Military Court now has jurisdiction over civil cases with an amount in controversy of RMB 100 million or more; and
  • Military region military courts have jurisdiction over civil cases with an amount in controversy of RMB 20 million to 100 million.
Judgments from the military courts are not yet published on the Court's Supreme People's Court database.  Earlier this year, (as reported here), a PLA legal academic suggested a change in that policy.