Friday, October 31, 2014

Exam question (except this is for real)

Iowa State Senator Joni Ernst
Next Tuesday is Election Day in the United States. Among the numerous hotly contested races is one for United States Senator from Iowa. One of the candidates is a state legislator who is a lieutenant colonel in the Iowa National Guard. She has made disparaging remarks about President Barack Obama. The Iowa Code of Military Justice (ICMJ) provides:
29B.85  CONTEMPT TOWARD OFFICIALS.
Any person subject to this code who uses contemptuous words against the president, the governor, or the governor of any other state, territory, commonwealth, or possession in which that person may be serving, shall be punished as a court-martial may direct.
See also Uniform Code of Military Justice (UCMJ) art. 88. Consider the candidate's comments as quoted in this Des Moines Register letter to the editor from a Vietnam-era veteran:
Earlier this year, [State Sen. Joni] Ernst said that President Obama (her commander in chief) has "overstepped his bounds" and that he was a "dictator" and that he "should be removed from office" or "impeached."
The veteran also wrote:
Our commanding officer told us, "Nobody in the military is allowed to publicly say anything negative or contemptuous about our commander in chief." They told us that we would be prosecuted if we did. [Emphasis added.]
1. Has this candidate violated either the UCMJ (as the letter-writer contends) or the ICMJ? If so, by making which of the quoted comments?
2. Is she subject to the UCMJ when not in federal service?
3. Are her remarks protected by the First Amendment?

House arrest issue in Colombia

Supreme Court of Colombia
In addition to the roiling debate over the military justice bill, a controversy has arisen over whether elderly or sick military prisoners can be transferred to house arrest. Colombian law permits this for prisoners who are over age 70, but there is an exception for those convicted of aggravated murder, rape or crimes under the Rome Statute of the International Criminal Court. The Supreme Court will have to decide whether there is residual power to permit house arrest despite the statutory exception. Details in this report from El Observador.

Rock bottom

Carol Rosenberg
Every time you think you've heard it all about the military commissions at Guantanamo, some new item comes across the screen. In that vein readers' attention is invited to a Miami Herald article headlined "War court censors word ‘female’ in legal argument", by the doyenne of the Guantanamo press corps, Carol Rosenberg.

Thursday, October 30, 2014

Decorations watch

Fresh on the heels of the conviction of a Canadian officer for wearing decorations she had not been awarded comes this decision of a panel of the United States Court of Appeals for the Ninth Circuit upholding the conviction of Elven Joe Swisher, a U.S. Marine Corps veteran, for wearing decorations he hadn't earned, at a Marine Corps League event. Click here for Stars and Stripes' story. Ironically, Congress (as the Ninth Circuit mentions in a footnote) has repealed the provision that formerly punished the wearing of unearned decorations -- but too late to help this defendant. The repeal would presumably bear on whether the government will seek rehearing en banc or review by the Supreme Court.

Speaking of medals, the United States Court of Appeals for the Sixth Circuit will hear a case seeking to compel the Army Board for Correction of Military Records to consider a request by the widow of a World War II officer that it award her late husband the Congressional Medal of Honor, according to this Associated Press story. 

The right of women soldiers to care for minor children

The Superior Court of Justice of the Canary Islands, Spain, issued a judgment in favor of a female soldier who sought to be excused from various tasks such as manoeuvres, guard duty, etc. because she had two children under the age of 12.  The judgment was practically identical to one that the same court issued on March 10, 2014, which was the first in Spain to recognize the civil right of members of the military to the full conciliation of their family and work life when they have minors to care for.

This second judgment was notified on October 2, 2014.  The petitioner appealed the order of her Colonel, Chief of the Regiment of Light Infantry, "Tenerife 49," to which she is assigned, who had modified the conditions of her reduced work schedule so that she would have "a minimum operative preparation," or in other words, that she would be fit and ready.

The Colonel, issued his Order on August 1, 2012, for the male and female members of the military under his command, who had received a reduced work schedule, so that they would maintain "50 % of the guard duty and services, as well as a minimum of 10 days participation in SIC/SADAV exercises.

Nevertheless, in both the current and March 2014 judgments, against which there is no further recourse, and in which Judge Juan Ignacio Moreno Luque-Casariego presided, the Superior Court of Justice of the Canary Islands is conclusive:  The Court finds that there is no reasonable and individualized justification to cover "the necessities of service," but rather that the Order is supported by "a mere invocation of a good state of preparation" of military members with a reduced work schedule and exoneration of services, guard duty, manoeuvres and the like.  The Superior Court of Justice considers that the resolution of the Colonel-Chief "incurs in an evident fraud of the law" in so far as it "cares about the minimum operative preparation of the female soldier" and that the Regiment of Light Infantry "does not lose its operative capacity," whereas it violates the 2007 Law for the Effective Equality of Women and Men as well as the 2011 Organic Law on the Rights and Duties of Members of the Armed Forces.