Monday, July 16, 2018

Military justice in Uganda

The Observer reports here on military justice as applied to senior officers in the Uganda People's Defense Force. Excerpt:
Dr David Mushabe, a senior litigator of civil and military law who was retained by [Gen. David] Sejusa, told The Observer that the nature of the army court means it can operate at the whims of the commander-in-chief who appoints its heads.

“The manner in which the court is structured, both legally and in practice, it is not possible for any person who is not in the good books of the commander-in-chief to get justice in the military courts until they petition for the intervention of the civil courts,” he said.

Mushabe, who is handling several cases before the military court, makes reference to his experience while handling former spy chief, Sejusa’s cases.

“I am not surprised that [Gen. Kale Kayihura] has not been charged. It is only those who don’t know what happens there that are shocked,” he said.

“All the people who preside over the court are appointed by the commander-in-chief and they are serving officers of the military who by military practice are expected to obey his commands….So, if you are someone like Gen Kayihura, who has rubbed him the wrong way, you are likely to face a team that acts on his [the president’s] orders and directives. This is what I have experienced while handling Gen Sejusa’s case.”

“I am the witness. While handling the Sejusa case, you would submit to the panel about any act that contravenes the law, but they will just say the law is the law, and it not the practice of the court,” he said.
Uganda also regularly tries civilians in its general court-martial, contrary to human rights standards. 

Transparency watch: the Kafr Qasem record of trial hearing

The Israeli Military Court of Appeals is conducting a proceeding to determine whether the record of trial of border policemen prosecuted as a result of a 1956 massacre should be opened to the public. Haaretz's Ofer Aderet has the story here. Excerpt:
In hearings behind closed doors over the past few months, numerous government officials, including the Foreign Ministry, the military censor, the state archivist and the army archivist gave testimony. The military prosecutor is opposed to making the information public. The main reasons were given behind closed doors, but the general grounds were stated as follows: “At this time, any additional revelation of the minutes from the Kafr Qasem trial, beyond those that the public can already examine, will harm the security of the state, its foreign relations, and in certain cases will certainly compromise people’s privacy and well-being, precluding release of the material from a legal standpoint.”

More time requested for amended draft law in Israel

The Israeli Supreme Court has been asked to allow the government another seven months to get its act together on new legislation on the conscription of ultra-Orthodox students. Haaretz has the story here. Excerpt:
“The induction of yeshiva students is one of the most complicated and sensitive issues facing Israeli society” says the petition. “This matter involves questions of identity, culture, economics, society and religion, questions which the court ruled had better be resolved by consent, as far as possible. Amending of the law is required in order to reach a balance between various interests and clashing objectives.”

Sunday, July 15, 2018

Death row SITREP

Dwight Sullivan
Dwight Sullivan sends the following --

“The more things change, the more they stay the same” is a common cliché. Even its French origin – “Plus ça change – plus ç’est la même chose” – is comfortably familiar. Less well known is its source. The phrase’s author was Alphonse Karr, a French journalist and novelist. The epigram appeared at the end of a short item in the January 1849 issue of his monthly periodical, Les Guêpes (The Wasps). ALPHONSE KARR, LES GUÊPES. SÉRIE 6 (ED. 1867-74) at 305. The essay that preceded it argued in favor of capital punishment. Id. at 304-05. That placement seems appropriate for a discussion of the state of the military death penalty. There have been some significant recent developments. Yet the more things change, the more they stay the same.

Starting with Gary Gilmore’s death-by-firing-squad on January 17, 1977, 34 states and the federal government have carried out 1477 post-Furman executions. Yet, despite court-martial panels adjudging 17 death sentences since President Reagan promulgated the U.S. military’s post-Furman death penalty system on January 24, 1984, the military has carried out none. Fifty-seven years have passed since the last military execution.

Today there are four inmates confined in a pod in the U.S. Disciplinary Barracks’ special housing unit that is military death row: Ronald Gray, Hasan Akbar, Timothy Hennis, and Nidal Hasan. All were convicted by an Army court-martial of at least two premeditated murders. The man who has been there the longest, Gray, was sentenced to death on April 12, 1988 for a series of murders and rapes in the Fort Bragg area. On July 28, 2008, President George W. Bush approved his death sentence – the first time a President approved a military death sentence since the Eisenhower administration. Almost a decade later, on June 28, 2018, the Supreme Court denied certiorari in Gray’s case, declining to review the U.S. Court of Appeals for the Armed Forces’ dismissal with prejudice of his writ-appeal. United States v. Gray, 77 M.J. 5 (C.A.A.F. 2017) (per curiam), cert. denied, 86 U.S.L.W. 3650 (June 28, 2018). Gray will presumably now return to the U.S. District Court for the District of Kansas to resume his collateral attack on his death sentence.

The news on June 28, 2018 was considerably better for another military death row inmate, Timothy Hennis, whose death penalty case is currently being briefed at CAAF. In Gamble v. United States, the petitioner was first convicted in Alabama state court of being a felon in possession of a firearm. For that and marijuana possession, he was sentenced to confinement for a year. Gamble was then tried in U.S. district court for being a felon in possession of a firearm arising from the same incident that led to his state conviction. After unsuccessfully arguing that his conviction in federal court was barred by the Fifth Amendment’s double jeopardy clause, Gamble was sentenced to 46 months’ imprisonment, three years of supervised release, and a $100 assessment. On the same day that it denied certiorari in Gray’s case, the Supreme Court granted certiorari in Gamble’s to answer this question: “Whether the Court should overrule the ‘separate sovereigns’ exception to the Double Jeopardy Clause.” Gamble v. United States, 86 U.S.L.W. 3650 (No. 17-646). If Gamble prevails, Hennis will be an even bigger winner. In 1989 – after having previously been convicted and sentenced to death in North Carolina state court only to have that death sentence overturned on appeal – Hennis was acquitted of three murders and rape in a second state trial. Under the separate sovereigns doctrine, he was convicted by a court-martial of those same crimes and sentenced to death in 2010. If the Supreme Court invalidates the separate sovereigns doctrine in Gamble, military death row’s population will likely decrease by one.

On Friday, July 6, 2018, an Air Force court-martial panel in Kansas declined to increase military death row’s population by one. The panel resentenced Andrew Witt to confinement for life without eligibility for parole for two murders and one attempted murder committed in 2004, his previous death sentence for those offenses having been reversed by CAAF. United States v. Witt, 75 M.J. 380 (C.A.A.F. 2016). Witt was the 13th service member under the current military justice system to have his death sentence set aside by one means or another. None has had his death sentence reimposed. Witt was the third to face an actual capital resentencing proceeding. Like Todd Dock and Wade Walker before him, he received a non-capital sentence at his retrial.

The Military Justice Act of 2016 will change the military death penalty system in several important ways. Effective January 1, 2019, it will eliminate the convening authority’s power to commute a death sentence – a power that survived Congress’s 2013 limitations on convening authorities’ clemency powers. See National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113–66, div. A, title XVII, § 1702(b), 127 Stat. 955 (2013). Of the 17 adjudged death sentences in the current system, two were commuted by convening authorities – though the more recent of those two commutations occurred in 1990. An accused will be allowed to enter a guilty plea to a capitally referred charge. The number of members in a capital court-martial panel will be fixed at 12, rather than 12 being the minimum. And a learned defense counsel requirement – subject to an impracticability exception – will apply at both the trial and appellate levels.

Yet despite those reforms, the military justice system remains for now what it has been for decades: a death penalty jurisdiction in theory but not execution. Plus ça change. . . .

[Disclaimer and Disclosure: The views presented are those of the author and do not necessarily represent the views of DoD or its components; they are made in the author’s personal capacity and should not be imputed to anyone else. The author has served as an appellate defense counsel in four military capital cases, including the Witt and Walker cases mentioned in this post.]

Saturday, July 14, 2018

Unintended consequences?

In an earlier post, Global Military Justice Reform contributor Phil Cave called attention to Army Major Dan Maurer's Lawfare post about the Supreme Court's decision in Ortiz v. United States. If you missed it, you should read the whole Maurer article, which of course reflects only his views, not those of the Army or its JAG Corps. Here's the conclusion:
. . .  We may take the recent, dramatic changes to the UCMJ by the Military Justice Act of 2016 as further “civilianization” of military law and circumstantial evidence that the circumstances once justifying the ancient lineage of the commander’s judicial power are slowly waning.

If the court is serious that commanders do not play a necessary function in making this system “judicial” in character, and that commanders’ valid reasons for good order and discipline are of a secondary consideration, then arguably there is no practical or philosophically sound reason for keeping commanders in the military justice decision loop at all, replacing them with either judge advocates or civilian criminal justice institutions. Ordering searches and seizures, compelling pretrial confinement, preferring and referring charges, convening courts-martial, and selecting panel members are now on the table as potential areas in which commanders should see their discretionary power (their “command decision” authority over legal matters) ebb, if we take the court’s meaning to its natural conclusion.

Even though this is not the holding of the case or a rule that rings with precedential value, the Ortiz argument surely does give opponents of the current structure a good argument for changing it, and should cause us to question whether Parker remains authoritative on the meaning and purpose of military law. And as [Prof. Stephen I.] Vladeck’s essay suggested, Ortiz may be a “harbinger of increased interest in military justice by the Justices themselves.” (Not an unwelcome development, given the range of ways in which the Constitution is said, by the CAAF, to apply differently to this separate “community.”) These are the unintended consequences of the court’s defense of its jurisdiction over the CAAF and was a missed opportunity for [Justice Samuel] Alito and [Prof. Aditya] Bamzai to remind the court of its own entrenched characterization of military criminal law.
It would be wrong to describe this as a case of "burning the village in order to save it," since at issue was not the validity of the military justice system, but simply the constitutionality of direct appellate review of decisions of the U.S. Court of Appeals for the Armed Forces. Still, there are implications for commander-centric military justice. Hats off to Major Maurer for calling attention to them.