Thursday, June 21, 2018

Clerkship opportunity -- now

U.S. Court of Appeals
for the Armed Forces
Looking for a federal appellate clerkship? Check this out.

Peacekeeping and accountability

Bruce C. Rashkow, formerly of the UN Office of Legal Affairs, has a timely article on United Nations Peacekeeping: Strengthening Accountability for Injuries to Third Parties in the Winter 2018 issue of the ABA's International Law News. His bottom line:
It remains to be seen whether and to what extent the General Assembly, and in particular the Member States who provide military contingents to UN peacekeeping operations, will accept and act on proposals to strengthen the accountability for SEA [sexual exploitation and abuse] within UN peacekeeping operations and more generally throughout the UN system, and whether and to what extent it will implement its special regime for harms caused to third parties in the peacekeeping context.

The UN needs to correct its past failures and must act in a timely and conscientious manner to implement existing policies and enact new policies to end a culture of impunity. It is clear that further concrete actions will be needed to achieve accountability and justice.

And now for something completely different

Defense Secretary James Mattis has approved a Justice Department request to send 21 active-duty military lawyers to the southern border, the Pentagon confirmed to MSNBC's Rachel Maddow Wednesday night. 
The details: The DOJ wants the active-duty Judge Advocate[s] General[] (JAGs) sent to six cities in Texas, Arizona, and New Mexico to work as prosecutors for roughly six months on cases regarding undocumented immigrants. The decision comes in the heat of the battle over the Trump administration's application of a "zero-tolerance" policy to illegal border crossings, which refers all adults crossing illegally to the DOJ for criminal prosecution. 
"The Secretary of Defense has approved a Department of Justice (DOJ) request to detail 21 attorneys with criminal trial experience to DOJ for a period of 179 days. The DOD attorneys will be appointed as Special Assistant United States Attorneys and will work full time, assisting in prosecuting reactive border immigration cases, with a focus on misdemeanor improper entry and felony illegal reentry cases." — Statement from the Defense Department, per Rachel Maddow.
The DoD Office of General Counsel must have scrubbed this for Posse Comitatus Act issues. It would be interesting to see the memorandum. This is the governing directive. Encl (3) ¶ 1b provides in part:
b. Permissible Direct Assistance. Categories of active participation in direct law enforcement-type activities (e.g., search, seizure, and arrest) that are not restricted by law or DoD policy are: 
(1) Actions taken for the primary purpose of furthering a DoD or foreign affairs function of the United States, regardless of incidental benefits to civil authorities. This does not include actions taken for the primary purpose of aiding civilian law enforcement officials or otherwise serving as a subterfuge to avoid the restrictions of the Posse Comitatus Act. Actions under this provision may include (depending on the nature of the DoD interest and the authority governing the specific action in question): . . .
Is appearing for the government in federal district court in a criminal case "active participation in direct law enforcement-type activities"? If so, does the prosecution of undocumented immigrants further a foreign affairs function?

It would take considerable time to identify the required number of JAG Corps officers in a position to answer the call (presumably only volunteers would be involved) and get them properly trained and deployed.

Rank and court-martial membership

Must the president of a court-martial always be senior to the accused? That issue may be coming up in Uganda. Is the solution to recall a retired officer who is senior to the accused?

Armed Forces Tribunal -- is broader jurisdiction needed?

Writing in Daily News & Analysis, Global Military Justice Reform contributor Wing Cdr (R) U C Jha usefully suggests that the jurisdiction of India's Armed Forces Tribunal should be broader. He notes these shortcomings:
The AFT is not empowered to intervene in matters relating to summary trials, leave, and transfers and postings. As regard to its appellate jurisdiction, the tribunal is devoid of its jurisdiction in cases of summary court martial where punishment awarded by the court is less than three months of imprisonment or dismissal.

The AFT Act does not make any provision for legal aid. Insufficiency of legal aid poses a serious handicap for the Armed Forces personnel approaching the tribunal. The question of legal aid becomes more pertinent in the context of the Armed Forces because the fundamental rights of those serving in the forces have been abrogated by the Constitution. Under Section 15 (6) of the AFT Act, the Tribunal has the power ‘to enhance the punishment awarded by a court-martial’. It is against the fundamental principles of natural justice as such ‘coercive’ power is not exercised by the military appellate courts in other democracies.

The AFT has been given the power to punish people for committing contempt of proceedings in the court (ie, criminal contempt). However, if any order has not been followed by the government officials, the AFT lacks the power to get their orders executed by way of civil contempt. This is a serious lacuna.