Saturday, November 16, 2019

Give it a break?

"This may be controversial, as everything the President seems to do has been, however this needed to happen and hopefully a few more! These individuals are very good people and Clint [Lorance] has dealt with everything as well as he could I know that personally. Congrats to all 3 well done President [Donald J. Trump]. To those who are gonna argue the 'good order and discipline will be lost' argument give it a break."

From this comment by "MAGA" on another blog

By way of contrast, consider this letter sent by Capt. Aubrey M. Daniel III, trial counsel in the Calley case to President Richard M. Nixon.

The U.S. Army Court of Criminal Appeals decision in United States v. Lorance can be found here.

Friday, November 15, 2019

A busy day for the commander in chief

Pres. Donald J. Trump
President Donald J. Trump today granted important relief in three military justice cases. The New York Times has the story here. Comments are invited.

The White House Press Office released this statement:
Today, President Donald J. Trump signed an Executive Grant of Clemency (Full Pardon) for Army First Lieutenant Clint Lorance, an Executive Grant of Clemency (Full Pardon) for Army Major Mathew Golsteyn, and an order directing the promotion of Special Warfare Operator First Class Edward R. Gallagher to the grade of E-7, the rank he held before he was tried and found not guilty of nearly all of the charges against him.

In early July 2012, only days after Lieutenant Lorance had taken command of his platoon in one of the most dangerous battle zones in Afghanistan, a motorcycle with three men approached him and his men with unusual speed. Under difficult circumstances and prioritizing the lives of American troops, Lorance ordered his men to engage, and two of the three men were killed. Following these events, Lorance was convicted of several charges. He has served more than six years of a 19-year sentence he received. Many Americans have sought executive clemency for Lorance, including 124,000 people who have signed a petition to the White House, as well as several members of Congress, including Senators Bill Cassidy and John Kennedy, and Representatives Steve Scalise, Garret Graves, Duncan Hunter, Paul Gosar, Adam Kinzinger, Scott Perry, Brian Babin, Neal Dunn, Michael Waltz, Louie Gohmert, Daniel Webster, Steve King, Ralph Norman, Mark Meadows, Clay Higgins, Ralph Abraham, Mike Johnson, and Jody Hice.

Major Mathew Golsteyn, an officer of the United States Army and graduate of West Point, is currently set to stand trial for an allegedly unlawful killing in connection with one of the largest battles of the Afghanistan War. As our forces cleared the Taliban from the city of Marjah, an Improvised Explosive Device detonated, killing two Marines. The terrorist bombmaker, as identified by an Afghan informant, who had killed our troops, was detained and questioned. Golsteyn was compelled to release him, however, due in part to deficiencies within the fledgling Afghan detention system. Golsteyn has said he later shot the terrorist because he was certain that the terrorist’s bombmaking activities would continue to threaten American troops and their Afghan partners, including Afghan civilians who had helped identify him. After nearly a decade-long inquiry and multiple investigations, a swift resolution to the case of Major Golsteyn is in the interests of justice. Clemency for Major Golsteyn has broad support, including from Representatives Louie Gohmert, Duncan Hunter, Mike Johnson, Ralph Abraham, and Clay Higgins, American author and Marine combat veteran Bing West, and Army combat veteran Pete Hegseth.

Before the prosecution of Special Warfare Operator First Class Edward Gallagher, he had been selected for promotion to Senior Chief, awarded a Bronze Star with a “V” for valor, and assigned to an important position in the Navy as an instructor. Though ultimately acquitted on all of the most serious charges, he was stripped of these honors as he awaited his trial and its outcome. Given his service to our Nation, a promotion back to the rank and pay grade of Chief Petty Officer is justified.

The United States military justice system helps ensure good order and discipline for our millions of uniformed military members and holds to account those who violate the Uniform Code of Military Justice. Due in part to this system, we have the most disciplined, most effective, most respected, and most feared fighting force in the world.

The President, as Commander-in-Chief, is ultimately responsible for ensuring that the law is enforced and when appropriate, that mercy is granted. For more than two hundred years, presidents have used their authority to offer second chances to deserving individuals, including those in uniform who have served our country. These actions are in keeping with this long history. As the President has stated, “when our soldiers have to fight for our country, I want to give them the confidence to fight.”

Thursday, November 14, 2019

Pakistan to provide Jadhav a right to civilian court review

Remember Kulbhushan Jadhav, an Indian citizen convicted by a Pakistani military court, and the subject of proceedings before the International Court of Justice? (Pakistan denied him reqjuired consular access.) In response to the ICJ's decision, Pakistan is preparing legislation that would afford him a right to seek review in a civilian court. Details here.

Tuesday, November 12, 2019

Incomplete reform in Spain

Santiago Casajus
On October 29, 2019, Carlos Lesmes Serrano, the Acting President of the Spanish Supreme Court and Acting President of the General Council of the Judiciary since December 4, 2018, presided over the opening of the judicial year for military jurisdiction in Spain.  In 2015, important legal reforms transformed military jurisdiction into an integral part of ordinary jurisdiction by means of the modification of the Organic Law of the Judiciary.  On October 15, 2015, the President of the Spanish Supreme Court, for the first time, presided over the opening of the judicial year for military jurisdiction.  The event on October 29, 2019, therefore, was the fifth such celebration and according to Lesmes, the custom had now become a consolidated tradition. 

In the opinion of Santiago Casajus, a Spanish military lawyer in the reserves, the reform of the military justice system in Spain is not yet complete.  He noted that the October 29th celebration demonstrated various things:

1. That military jurisdiction, expressly recognized in article 117 of the Spanish Constitution, is (still) distinct from ordinary jurisdiction, which already had its solemn opening of the judicial year in the presence of King Felipe VI.

2. That "jurisdictional unity", proclaimed as a constitutional precept, was done by a benchmark, -- the creation of a military chamber in the Spanish Supreme Court, without having an effect on the rest of the judicial bodies that comprise military jurisdiction.

3. The legislature failed to ensure real and effective jurisdictional unity by preserving military jurisdiction.

4. Under the rule of law, the function of judging and executing what has been judged is entrusted to a unique combination of independent and impartial judges and therefore, there is no room for other kinds of jurisdiction.

Casajus points out that the members of the military legal corps have not been integrated into the ordinary legal career pattern.  Their promotions, evaluations and classifications for promotion etc. are carried out by the Ministry of Defense.  

The members of military judicial bodies are part of a disciplined and hierarchical system whose independence is not guaranteed.  They live in the same quarters as their military commanders, whom they depend on for the normal development of their activities.  Someone who today is carrying out a jurisdictional function tomorrow can be called upon to be a legal adviser to a military commander, prosecutor in a military trial, or vice versa as is currently the case with members of the military legal corps.  Only when the military lawyer is completely separated from military administration and integrated into the ordinary legal system and judiciary will s/he have the requisite independence.

New military courts building inaugurated in Bogotá

There is a spanking new 7-storey courthouse in Bogotá to house the military justice system. El Universal has this report. The building is named for Navy Lieut. Laura Rocio, a military judge who was murdered in 2005. The system has 234 judges, with 19,000 [!] cases, most of them involving desertion charges, in process.