Wednesday, April 30, 2014

Mexican lower house unanimously approves military justice reform measure

The Mexican Chamber of Deputies today unanimously approved a bill to reform the military justice system. The measure, which had already passed the Senate, "will allow members of the armed forces who commit crimes against civilians to be tried in civilian courts, a historic change that human rights defenders have been demanding for years."
Mario Patron, deputy director of Mexico's Human Rights Centre Miguel Agustin Pro Juarez, said the military code "was subjecting civilian victims to a jurisdiction that is neither independent nor impartial."
He said the reform is a clear step forward, but suggested that cases of soldiers whose human rights have been violated by other soldiers should also go to civilian court.

Military trial for civilians in Cameroon as well

The Cameroon Tribune tells here of the referral of charges against five members of a criminal gang to military court.

Another Egyptian military trial for civilians

The Daily News (Egypt) has this story about a military court trial of Egyptian and Sudanese civilians. They are charged with "being present in a restricted area, attempting to illegally pass the border, and possessing live ammunition without a permit." "Because the defendants are civilians, No Military Trials [for Civilians, an NGO] said they should be tried in front of a civilian court instead of a military court[]."

Is it time to sunset the U.S. Court of Appeals for the Armed Forces?

U.S. Court of Appeals for the
Armed Forces Courthouse
The Defense Department's establishment of the Military Justice Review Group affords an opportunity to re-evaluate basic aspects of the architecture of American military justice. One is whether the U.S. Court of Appeals for the Armed Forces ought to be preserved or its jurisdiction transferred to another court. (This is not a new issue; it was briefly raised by the DoD General Counsel during the Carter administration, in a discourse that was informed by a study of Reform of the Court of Military Appeals (also known as "the Rainbow Book" due to its pastel-colored chapters) prepared in 1979 by then-DoD attorney Andrew S. Effron. Decades later, and after distinguished service with the Senate Armed Services Committee and on the Court of Appeals, he now heads the Review Group.)

What, if any, changes ought to be made in the military appellate process involves several component issues, and what, if anything, ought to be done with respect to the Court of Appeals cannot intelligently be examined in a vacuum. With that important caveat, can a case be made that, as part of a larger overhaul of the military justice system, the court's jurisdiction should be transferred (presumably with some changes) to the U.S. Court of Appeals for the District of Columbia Circuit? Here are some thoughts to kick off the discussion:

1. The court decides about 40 cases per term on full opinion. That is less than one per judge per month. (It may well be that the current rate of grants is about right or even a bit high in terms of whether the UCMJ-required "good cause" has been shown. But whether more petitions for review should be granted -- on which access to the Supreme Court turns -- is not the issue for present purposes; the numbers are what they are.)

2. The court denies review in several hundred cases each year. These are decided without plenary briefing and oral argument. (Many petitioners for review cite no errors (the so-called "merits cases")). If court-martial appellate jurisdiction were transferred to an Article III court of appeals, these cases would almost certainly be summarily affirmed if not dismissed.

3. The court's FY15 budget is $13,723,000.

4. A review of the court's opinions reveals that few cases turn on issues truly peculiar to the military, and that even those that do could readily be adjudicated, given competent appellate advocacy, by judges without specialized knowledge. The uniformed military legal experience of the judges has varied widely, ranging from zero to very considerable but in any event rarely of recent vintage. Moreover, Congress has provided for generalist Article III judges to sit on the court by designation. Judges of the geographical circuits unquestionably deal with matters at least as arcane as military justice.

5. Having a specialized court with a small plenary docket caseload encourages attention to minutiae.

6. A number of common law countries that -- like the United States -- retain courts-martial, such as the UK, Canada, Australia, New Zealand, and Ireland, rely in whole or in major part on non-specialist judges of the regular appellate courts for the adjudication of court-martial appeals.

7. Sunsetting the court would imply no adverse judgment on its work. In 1950, there was a task to be performed in breathing life into what was, in important respects, a new system of criminal justice (even if critical elements such as the role of the commander were anything but new). That function has been performed, so despite ups and downs, Mission Accomplished (not intended ironically) may be a fair way of characterizing the court's six-decade-long trajectory. Additionally, the process of integration into the normal landscape of civilian federal criminal justice has proven inexorable, including the assimilation of the Federal Rules of Evidence through the Military Rules of Evidence and the availability of direct Supreme Court review (albeit for only about one court-martial in 10).

8. Development of a military trial bench since 1968, including in two branches a nod in the direction of fixed terms of office, makes appellate paternalism both less appropriate in principle and less necessary in fact. If paternalism ever was a proper institutional stance, it no longer plays a significant role in the court's jurisprudence and hence nothing of significance would be lost from this perspective if military appellate jurisdiction were transferred to the D.C. Circuit. Even if it were possible to compare the overall defense-friendliness of the two courts, that is not a principled basis for assigning appellate jurisdiction. If the D.C. Circuit can be trusted to dispense justice to civilian federal criminal defendants and military commission accuseds, it can be trusted to do so for court-martial accuseds.

9. If military commission accuseds are entitled (as they are) to appellate review by judges enjoying Article III protection, court-martial accuseds should be as well, but Congress has shown no recent interest in conferring Article III status on the judges of the Court of Appeals for the Armed Forces and there is no reason to expect that to change.

10. To the extent that Congress was particularly concerned about rooting out unlawful command influence when it enacted the UCMJ and created the Court of Military Appeals, doctrine on that subject is now highly developed and can be administered and further elaborated as effectively by an Article III court as by the Court of Appeals for the Armed Forces.

11. Is the D.C. Circuit the right court to which to transfer military appellate jurisdiction? Opinions on this may differ, but that court, in contrast with, for example, the U.S. Court of Appeals for the Federal Circuit, regularly hears criminal appeals from district court.

12. Federal courts are not immortal. Consider the Court of Claims (1855-1982), U.S. Court for China (1906-43); Commerce Court (1910-13), U.S. Court of Customs and Patent Appeals (1910-82), U.S. District Court for the Canal Zone (1912-82), Emergency Court of Appeals (1942-62), U.S. Court for Berlin (1955-90); Temporary Emergency Court of Appeals (1971-93), Special Court under the Regional Rail Reorganization Act of 1973 (1973-96), and Special Division of the D.C. Circuit (1978-88).


Tuesday, April 29, 2014

Military Justice Review Group

Sr. Judge Andrew S. Effron
Director of the Military
Justice Review Group
Suggestions to the Pentagon's Military Justice Review Group for improvements in the military justice system can now be emailed to The Office of General Counsel has recommended that comments be submitted by July 1, 2014.

Here are some personal suggestions to kick off the conversation:

Basket 1, Jurisdiction

1.1  Impose a statutory service-connection requirement (less petty offense and overseas exceptions) and overturn the Court of Military Appeals' decision regarding dependent-victim cases in United States v. Solorio, 21 M.J. 251 (C.M.A. 1986), aff'd, 483 U.S. 435 (1987)

1.2  Repeal the Graham Amendment to Art. 2(a), UCMJ, on personal jurisdiction over civilians serving with or accompany an armed force in the field in time of declared war or a contingency operation or, if it is retained, provide for civilian representation on courts-martial of civilians

1.3  Amend the Military Extraterritorial Jurisdiction Act to remove the exemption for host-state nationals

Basket 2, Courts-Martial

2.1  Abolish summary courts-martial

2.2  Create standing special and general courts-martial

Basket 3, Convening Authority and the Prosecution Function

3.1  Abolish convening authorities

3.2  Create an independent Chief Trial Counsel in each branch with disposition power for all offenses other than minor disciplinary offenses

3.3  Require disposition decisions to be made in accordance with Justice Department standards for the prosecution of criminal cases in the district courts

3.4  Create an independent court-martial administrator in each branch to select court members

Basket 4, Military Judges

4.1  Institute nonrenewable 10-year terms for trial and appellate military judges

4.2  Military judge implementation of pretrial agreements

4.3  Judge sentencing (including the power to suspend) except in capital cases

Basket 5, Appellate and Collateral Review

5.1  Abolish the service courts of criminal appeals

5.2  Abolish CAAF and transfer its jurisdiction to the D.C. Circuit (and if not, (a) repeal the political balance requirement, (b) make terms nonrenewable, and (c) repeal the 7-year-cooling-off-period modification of the Joe Baum Act)

5.3  Appeal as of right as to findings and sentence (including sentence appropriateness) for all courts-martial

5.4  Abolish TJAGs' power to certify cases

5.5  Subject all CAAF decisions to potential U.S. Supreme Court review by writ of certiorari, making it clear in the process that all issues are reviewable, not simply those on which CAAF has granted review

5.6  Organic act for collateral review of courts-martial

Basket 6, Nonjudicial Punishment

6.1  Require proof beyond a reasonable doubt

6.2  Make clear that Art. 15, UCMJ, "vessel exception" cannot be enlarged by deeming personnel to continue within its scope even after they have as a practical matter been transferred off vessel

Basket 7, Punitive Articles

7.1  Restrict Art. 134(2), UCMJ, to the original (Articles of War) intent

Basket 8, Transparency

8.1  Mandate prompt public/media access to trial and appellate case documents via the federal courts' PACER system

Basket 9, Rule making

9.1  Transfer the service secretaries' and TJAGs' military justice rule making powers to the President or Secretary of Defense

9.2  Require a single set of uniform rules of trial procedure and professional and judicial conduct

Basket 10, Economy/Austerity Measures

10.1  End Project Outreach

10.2  Abolish the Code Committee

10.3  Consolidate service law schools

What are your suggestions? Use the comment function below. No anonymous comments, please.

Gambling in Casablanca?

The Judge Advocates General
and their clients testify before the
Senate Armed Services Committee
CAAFlog, an unofficial blog co-sponsored by the National Institute of Military Justice and devoted to close examination of American military justice, especially at the appellate level, has this post by Capt Zachary D Spilman of the Marine Corps. He maintains that, in light of a recent spate of cases, there is an appearance of bias in the fact that the Judge Advocate General of the Air Force lopsidedly uses his power to certify cases to the U.S. Court of Appeals for the Armed Forces for the benefit of the prosecution rather than the defense. The certifications are "suspiciously one-sided" and "uncertified cases, when juxtaposed with the cases that were certified, are evidence of a pro-prosecution bias in the certification process employed by the Judge Advocate General of the Air Force" (emphasis added).

Thinking about this recent post about the Judge Advocate General of the Canadian Forces, should anyone be surprised if holders of these offices act (or appear to act) as partisans of the management rather than as impartial decision makers exercising a judicial function? Isn't the real issue not whether the certification power is being used asymmetrically (or looks that way), or whether, as Capt Spilman notes, the process is insufficiently transparent and adversarial, but whether the U.S. service TJAGs should have such a power at all? Whatever sense it made when the UCMJ was enacted in 1950, times have changed and the certification power not only does nothing today to foster public confidence in the administration of justice, but, as he suggests, detracts from it.

This structural issue merits consideration by DoD's Military Justice Review Group.

Monday, April 28, 2014

Jury composition in Guantanamo military commission

Richard Kammen
An interesting issue has been raised in the military commission case of Abd al-Rahim al-Nashiri, who is accused of helping attack the USS Cole. According to this Lawfare post by Wells Bennett, civilian defense counsel Richard Kammen wishes to probe why the convening authority selected no general officers to serve on the commission panel:
[H]e explains [that] his side still needs to [k]now how un-random the process might be. Kammen notes, for example, that the Convening Authority seemingly has excluded generals from the pool. Why? Kammen also notes that the purposes of courts martial and commissions are different; the relationships between the convening officer and the would-be jurors should reflect that. The military judge observes that the structure here was designed by Congress, and approved by the President. Kammen acknowledges as much, but predicts that a civilian court might find the differences between this selection process, and that of a civilian court in a capital case, to be so great the commissions mechanism “cannot stand.”

Trouble in Bulgaria

Chief Judge Veselin Pengezov
Naharnet reports that the chief judge of the Bulgarian Military Appeals Court and his predecessor (currently serving as chief judge of the Sofia Appeals Court) have been charged with abuse of power and embezzling European Union funds. Both jurists have denied the charges. The charges were brought by the Military Prosecutor's Office, according to Focus News. Another account reported that Sofia chief judge
[Veselin] Pengezov explained he had prosecution immunity as a magistrate and that besides did not understand why he should be tried by the military only for being a former general. He also believes the trial against him is politically motivated.

Amnesty International on Mexican military justice reform

Amnesty International has issued this statement on pending proposals for reform of the Mexican military justice system.
“The reform of the Code of Military Justice would be an historic move. The lack of independence and impartiality of the military justice system has ensured impunity until now, preventing justice for the victims of human rights violations committed by the Mexican military,” said Rupert Knox, Amnesty International’s researcher on Mexico.

Imperfect appellate review

The Supreme Court of
the United States
The United States Court of Appeals for the Armed Forces (CAAF) case of United States v. Moss, 73 M.J. 64 (C.A.A.F. 2014), underscores a serious defect in the current arrangements for United States Supreme Court review of courts-martial. Congress ought to fix it. It should be on the Military Justice Review Group's to-do list.

Pay close attention; this is complicated.

Private First Class (PFC) Amanda N. Moss was arraigned on a charge of desertion but fled before trial, and hence was tried, convicted, and sentenced in absentia. Before the trial she executed an Army-drafted form requesting the appointment of military appellate defense counsel to represent her before the first-level appellate court, the Army Court of Criminal Appeals (ACCA). Having received a sentence serious enough to entitle her case to review by that court, the Defense Appellate Division represented her there. Her conviction and sentence were affirmed.

Then, on petition filed by Army appellate defense counsel, but not personally approved by PFC Moss (unless you read the earlier request for appellate representation before ACCA to cover the civilian CAAF as well), CAAF granted discretionary review under the statutory broad "good cause shown" standard, on issues relating to her representation at trial. Despite the fact that both parties believed the case was properly filed, CAAF concluded that PFC Moss's request for counsel extended only to the first-tier of appellate review (ACCA) and not the second (CAAF). As a result, by a 3-2 vote, CAAF vacated its earlier grant of review and dismissed the petition without reaching the merits of the case. Senior Judge Effron, who now directs the Military Justice Review Group, joined in Chief Judge Baker's dissent.

Under the current appellate structure, the Supreme Court cannot entertain a petition for certiorari in a military case unless CAAF has granted review. (It's a little more complicated because some cases get to CAAF by certificate for review or because they are capital cases, but the vast majority of cases come there by petition of the accused.) In Moss, CAAF at first granted review, finding good cause with respect to concerning the accused's representation at trial, but in the end vacated that grant not because the representation issues did not constitute good cause, but because PFC Moss had not authorized the petition. Based on the plain meaning of the statute,  Moss is a case in which CAAF "granted" review.

Since 2010, CAAF has taken the position that if it grants review and remands to one of the service courts, it is not obligated to grant review of the same issue a second time if the case comes back to following the decision on remand. Its Rule 21(b)(5)(G) provides that in those circumstances a petitioner must tell CAAF what issues he/she intends to seek certiorari on, plainly implying that an earlier grant of review does not survive a later denial of review in the same case. See, e.g., United States v. Nerad, 71 M.J. 321 (C.A.A.F. 2012) (mem.). CAAF got seriously out of its lane when it arrogated to itself the power to decide whether petitioners before it had certworthy issues. A case can entail "good cause" for purposes of CAAF review but still be a lost cause when it comes to the prospects for a grant of certiorari, but that is none of CAAF's affair. One Supreme Court obstacle course is enough.

Despite the plain meaning of the statute, if a petition for review were granted and thereafter vacated, the government would argue that the case was outside the reach of the certiorari statute. The Supreme Court would likely agree despite its indication in United States v. Denedo, 129 S. Ct. 2213, 2219 (2009), that the statute should not be read parsimoniously. We will never learn the Court's actual thinking, though, because denials of certiorari are unexplained.

Once CAAF grants review, a case should remain eligible for Supreme Court review even if some intervening event occurs or comes to light that effectively precludes a grant of certiorari, such as the death of the petitioner or a determination that the case is not final or has become moot or academic. Here, CAAF did not recant its finding of good cause regarding the trial issues, but rather ruled that the petition for review was never properly filed. It made a legal determination that appellate defense counsel were not authorized to seek CAAF review. Because denial of a petition for review is not itself reviewable, the correctness of that ruling, which involves no specialized knowledge and on which the CAAF judges were narrowly divided, is completely insulated from direct review by the nation's highest court. (As for the possibility of collateral review, PFC Moss would gain no traction if she tried to press this threshold issue in a district court or the Court of Federal Claims, since it was fully considered by CAAF.)

It's of course an odd set of facts, although far from the first time a petition for review by the Court of Appeals has been filed on the basis of a form request for appellate representation. But the issue is broader. For example, what if, as can happen, it only becomes apparent after the Court of Appeals grants review on some issue that the petition was not timely filed? The result there would presumably be a Moss order vacating the grant of review, and the petitioner in such a case could not ask the Supreme Court to review the determination that the petition was untimely.

What is to be done?

It is tempting to suggest that the Court of Appeals should adopt a different approach and not conflate the question of whether there is some issue that constitutes good cause (and therefore can be the basis for a petition for review) and impediments such as timeliness, client-authorization, or mootness. But normal appellate practice suggests that a petition suffering from one of those defects should be dismissed as improvidently granted, whenever the flaw is discerned, even if that is after good cause has been found to exist and review granted. The problem is therefore, in the end, one that only Congress can fix. It put the limitation on Supreme Court review in the statute, and it can (and should) take it out. Moss is simply another (albeit strange) illustration of why that is so.

Slow consideration of military justice reform in Indonesia

The Jakarta Post notes that the Indonesian parliament has been mulling military justice reform legislation for 10 years. According to this account, there has been
sluggish progress regarding military tribunals. The open tribunal on the Cebongan attack [in which members of the Army’s Special Forces (Kopassus) raided a prison, killing an inmate who they claimed was a thug who killed one of their comrades], held after mounting public pressure, was a rare event. The legislature has been debating revisions to the Military Tribunal Law since 2004. The bill stipulates that military personnel suspected of criminal acts will be brought before a civil court, rather than a military tribunal, as the latter usually gives administrative penalties rather than penalties aimed at deterrence.
Analyst Wahyudi Djafar has noted that even if accused military personnel were to be brought before a military tribunal, the tribunal should adhere to principles such as transparency and accountability, besides handing out punishment befitting the crime. Apparently, these requirements have become major obstacles to the amendment of the Military Tribunal Law. 
As a result, today’s military tribunals still preserve impunity, giving lenient punishment and freeing masterminds from individual responsibility. 
The pattern is similar to the tribunal of Kopassus members found guilty of abduction and forced disappearance of student activists in 1998; perpetrators were brought to court, but the one giving the assignment is still protected by law.

Sunday, April 27, 2014

Conscientious objection in Kyrgyzstan

Kyrgyzstan has been wrestling with conscientious objection following a 2013 decision of the Supreme Court, according to this Forum 18 News Service report. Criminal convictions of Jehovah's Witnesses have been set aside, but what to do legislatively for the future? Among the questions: Must the individual's objection be religiously based, or can it be, as in the United States, derived from other moral values that function with the same intensity? If the individual is found entitled to C.O. status, must the alternative service fee be paid to the Defense Ministry or may it be paid into the general government fund? A sincere objector might well object to being put in a position of helping pay for defense operations to which he objects.
Deputy Defence Minister Zamir Suerkulov defended the proposed restriction of the right to apply to pay the "alternative service" fee only to members of registered pacifist religious organisations. Asked what would happen to non-religious conscientious objectors or members of unregistered religious communities if the amendments are adopted, he told Forum 18: "They would have to serve [in the army]."
The legal amendments were ordered in a November 2013 decision of the Supreme Court's Constitutional Chamber, which declared three provisions of the current Law on General Obligations of Citizens, on Military and Alternative Service unconstitutional, effectively annulling them: that the "alternative service" fee goes to the military; that conscientious objectors during this period are under military supervision; and that when completed individuals are assigned to the military reserve. It said these deficiencies of the Law needed to be remedied (see F18News 25 February 2014).

Foreign courts, American judgment

U.S. Senator Patrick Leahy
The Leahy Law is an American human rights law that prohibits the U.S. from providing training or assistance to foreign military units where credible evidence exists that the units engaged in serious human rights violations.

In implementation, the Leahy Law uses a complex vetting process to determine whether foreign units are cleared or blocked from receiving U.S. training and assistance.

If a unit is blocked during vetting because of human rights violations, the law permits remediation if the abuses are adequately addressed. This is where the law gets interesting to followers of worldwide military justice developments.

The 2014 legislative update to the Leahy Law lists two separate standards for remediation. Title 22 of the United States Code (Foreign Relations) says that units will remain blocked until "the Government of such country is taking effective steps to bring the responsible members of the security forces unit to justice." Title 10 (Armed Forces) says that no funds will be made available "unless all necessary corrective steps have been taken."

How these remediation steps will be applied is still unclear. Must adjudged sentences match American sensibilities? Will units be remediated if suspects are acquitted? Will foreign military courts be perceived as adequate effective/corrective steps?

Saturday, April 26, 2014

The cloak of secrecy over Chinese military courts

A cloak of secrecy covers the Chinese military courts.  The cloak is especially effective against foreign observers, viewing them through the prism of language and scholarly inattention.  Since the prosecution of General Gu Junshan was announced in March, anonymous spokesmen have explained why he will be tried in a military court with the entire proceedings conducted in secret. This means that the Chinese public is confused about these issues. This brief blogpost will look at:
  • the reasons the spokesmen are giving for keeping the case secret
  • some possible reasons that the military courts are kept out of the public eye.

Why is the Gu Junshan case secret?

An article on the website of the Center for Civil and Commercial Law of Renmin University of China (in Chinese) explains why.  
  1. Cases involving fallen high military officials are generally not made public. 
  2. Criminal cases of fallen high officials generally involve military secrets.  In Gu's case, as the deputy chief of the General Logistics Department, he would have been responsible for the financing, production, supply and storage of military equipment and supplies.  All of these are classified as secret by People's Liberation Army (PLA) secrecy regulations. 
  3. The PLA has framework regulations on secrecy issued by the Central Military Commission (CMC) (the major departments under the PLA are authorized to issue implementing regulations) that stipulate the three levels of military secrets. [The PLA regulations are part of the corpus of China's state secrecy legislation.  Translations of some of those regulations can be found here, not including the PLA secrecy regulations.]
  4. A trial that is not open is not the same as a secret trial.

Why do the Chinese military courts have a stealth profile on the internet?

This question does not have an easy answer from Chinese internet sources. Reasons could include the following:
  • An internet profile for the military courts may not have been considered at all.
  • The military courts may be exempt from requirements to put court judgments on line. 
  • Most cases involve military secrets. 
  • The sites would be hacked.
  • Unflattering details about the conduct of PLA officials and soldiers would be revealed, diminishing the prestige of the PLA.
  • if certain judgments are made public, military judges may feel that the quality of their judgments compares unfavorably with that of civilian judges.
  • Gaps in basic legislation identified by CMC lawyers would become more apparent and have negative consequences.
If someone better informed can comment further, the public would benefit. Please use the comment function.

More on Mexico

On April 30, 2009, four senators from the Democratic Revolution Party (PRD) proposed amendments to the Mexican Code of Military Justice and the Federal Law against Organized Crime.  For the next five years more proposals and amendments were added by different Senators and parliamentary committees and on April 24, as Gene Fidell reported, the Mexican Senate unanimously approved an amendment to the Code of Military Justice to allow for members of the armed forces who commit a crime against civilians to be tried in civilian courts.  This change was brought about by the efforts of both the Mexican judiciary and Congress to comply with the November 23, 2009 judgment of the Inter-American Court of Human Rights in the case of Radilla Pacheco v. Mexico, in which the Inter- American Court called upon the state to adopt the appropriate legislative reforms in order to make its Code of Military Justice and the Federal Criminal Code compatible with the international standards in this subject and the American Convention on Human Rights.

The Mexican Senate gave as the initiative for the amendments the fact that Mexican society is in a serious state of insecurity due to diverse criminal groups.  These groups operate generating terror in a violent and threatening manner.  The aggression manifests itself by destabilizing national security and places in question the capacity of Mexico to guarantee the pacific cohesion of the civilian population.  The Mexican National Human Rights Commission received until 2008 more than 6,000 complaints against the army for serious violations of human rights including some under the umbrella of narcotics operations.  The Mexican National Human Rights Commission mentioned that the crimes complained of included serious violations such as torture, robbery, privation of life and intimidation.

The amendments are designed to treat the member of the military as a civil servant who is no different from any other public servant.  For that reason there should not exist specialized tribunals for members of the military since they do not exist for civil servants.

Article 57 of the Code of Military Justice is to be reformed stipulating that the crimes against military discipline are those committed by members of the military while in service and those in which both the military and civilians are involved will be under the jurisdiction of the civilian authorities.

The punishment for crimes against civilians in which members of the military are involved will be increased in Article 5 of the Federal Law against Organized Crime, which sets forth the sentences that will be imposed on those who commit offenses while involved in organized crime.

Who should investigate sexual assault in the National Guard?

Calif. State Sen. Alex Padilla
The Veterans Affairs Committee of the California State Senate has approved a bill that would require civilian law enforcement investigation of sexual assault allegations arising in the California National Guard, reports NBC Bay Area. The bill was proposed by State Sen. Alex Padilla. According to NBC:
The California National Guard has adopted a rule requiring outside investigations of military sexual assault, but Padilla’s legislation would put the practice into law. Lt. Col. Darrin Bender, the Guard’s chief state policy and liaison, said he anticipates that the Guard will support the proposed law. 

An important Article 32 hearing

According to this Reuters article, the Army is conducting an Article 32 investigation at Joint Base Lewis-McChord into the 2007 shooting deaths of two unarmed Iraqi teenage boys. The accused is Sgt. 1st Class Michael Barbera.

Two questions that come to mind are why it took two years for word of the incident to surface and why an Article 32 hearing was not conducted when it did. On the first, it is worth recalling that the May 30, 2013 report of the Defense Legal Policy Board’s (recently disbanded) Subcommittee on Military Justice in Combat Zones lists a variety of obstacles to reporting (pp. 57-59). “One survey of Marines and soldiers in Iraq reported that . . . only 40% of Marines and 55% of soldiers indicated they would report a unit member for injuring or killing an innocent non-combatant.” These are shocking data. It is unlikely that non-reporting can be eliminated entirety, but training and “redundant operational oversight” (p. 59) can help drive up reporting.

Slow-rolling v. the power of the pen

Stars and Stripes, the Pentagon-subsidized newspaper overseen by the Defense Media Activity, has a long tradition of editorial independence. Here is the latest example, a piece by reporter Jennifer Hlad showing how accountability in a case from Japan occurred only after the newspaper started (and kept) asking questions.
According to the [Department of the Army Inspector General's] investigation report, [Major General Michael T.] Harrison and another colonel discussed Stars and Stripes’ query shortly after it was made and decided not to respond.
Instead, Harrison and the colonel decided to “slow roll their response because the Stars and Stripes was not always favorable to them.”
The officers “hoped to finish their AR [Army Regulation] 15-6 investigation before the story came out,” the report said.
Stars and Stripes continued to ask the Army about the results of the investigation against him.
On Jan. 30, 2014, a spokeswoman told Stars and Stripes that nothing had changed, however, the IG investigation was completed in August, and he was reprimanded in December.

Friday, April 25, 2014


As of tonight, 10,000 hits, 83 countries (welcome, Somalia).

Sexual assault controversy in the Canadian Forces

McLean's and L’actualité, leading Canadian periodicals, have disclosed that they will be running a big story about the treatment of sexual assault in the military as the cover story for their May 5 issues. Here's a related piece from CTV News.

Military Court Rules of the United States (LexisNexis 2d ed. 2014)

LexisNexis has announced publication of the second edition of Military Court Rules of the United States (2014). The volume, a project of the National Institute of Military Justice, includes trial and appellate rules of procedure for courts-martial and military commissions, service rules of professional responsibility and judicial conduct, as well as citation guides. Essays by subject matter experts introduce each chapter. Special thanks to Sparky Abraham, Yale Law School Class of 2014, for assistance with this edition.

The title Judge Advocate General: a misleading misnomer in Canada

Justice (ret) Gilles Létourneau
Canada inherited from the British military penal system the term Judge Advocate  General (JAG). “The Office of the Judge Advocate General can be traced back to the Articles of War of 1639 issued by Charles I. He gave authority “… to the Council of War and the Advocate of the Army to enquire of the actors and circumstances of offences. Orders issued in 1662 by Charles II gave authority to the “… Judge Advocate of the Forces …” to take information and depositions as occasion should require in all matters triable before court martial”: see Letourneau & Drapeau, Military Justice in Action, Thomson Reuters Canada Ltd., Toronto, Ontario, Canada, 2011, at p. 56. The first JAG in Canada was appointed on October 1, 1911: ibidem.

While the term “JAG” leads one to believe that, in Canada, the person appointed to that position is a judge, he is not a judge at all. He is a senior legal adviser to the Governor General, the Minister of National Defence (Minister), the Defence Department and the Canadian Forces, in matters relating to military law. He is also responsible to the Minister in the performance of his or her duties and functions: see ss.9.1 and 9.3 of the National Defence Act. This is a far cry from a judge who enjoys judicial independence, especially independence from the chain of command. In plain and simple words he is a lawyer. He is himself part of the chain of command as the Commander of all military lawyers. He attends all senior management meetings at National Defence Headquarters.

However I suspect the term “Judge” in the title JAG allows him to be paid the salary of a judge of a Superior or High Court although he is not a judge. I have to remain in the realm of suspicions because his salary and consequential benefits are determined in an Annex to the Government Decree appointing him which is kept confidential. Even the members of Parliament do not have a copy of it.

This is quite surprising because in Canada the remuneration of all public servants, be they the Prime Minister, the members of Parliament, the Chief Justice of the Supreme Court of Canada, her colleagues, judges of all courts across Canada, is public and easily accessible. Demands to have access to the Annex have been denied by the very Government that claims to be transparent. I guess Canadians will have to take a rain check on this one for the time being. Usually when a document like that is kept confidential and access is denied, it is not because it is under norms. On the contrary. In fact, his classification should be his military classification with a corresponding salary much inferior to the salary of a superior or High Court judge.

I think it is fair to say that the misnomer is confusing and misleading for everybody, especially the lay person, but convenient for the incumbent. The title JAG is a remnant of a distant past. For the sake of clarity and the better administration of military justice,  the title should be changed to reflect the current reality as well as the conditions and benefits which attach to the function that it is rather than the function that it is not.

Viva Mexico!

The Associated Press reports that, in response to a recommendation of the Inter-American Court of Human Rights, the Mexican Senate has unanimously passed a bill that will permit military personnel to be tried in civilian courts for offenses against civilians:
Mexico's military code currently says that all crimes committed by soldiers on duty are considered crimes against military discipline. The provision has been subject of scrutiny because human rights activists claim it has long allowed security forces to take over cases of soldiers accused of abusing, torturing and executing civilians.
The bill now has to be passed by the Chamber of Deputies. 

Thursday, April 24, 2014

Quote of the day

Gen. Martin E. Dempsey
Chairman, Joint
Chiefs of Staff
“We’ve been given about a year to demonstrate both that we will treat this with the urgency that it deserves and that we can turn the trend lines in a more positive direction,” Army Gen. Martin E. Dempsey, chairman of the Joint Chiefs of Staff, told reporters April 11.
But, he added: “If it occurs that after a period of very intense and renewed emphasis on this that we can’t solve it, I’m not going to fight it being taken away from us.”
Quoted in Craig Whitlock, Fresh reports of sexual misconduct undercut Pentagon’s argument for internal fix, Washington Post, Apr. 24, 2014 (emphasis added).

Defense boycott in Sierra Leone court-martial

Proceedings appear to have ground to a halt in the Sierra Leone mutiny court-martial as defense counsel for all but one of the 14 accuseds have boycotted the trial. Read all about it in this report from Awoko. Judge Advocate Otto M. During has refused the lead prosecutor's application to take evidence anyway.
Defence counsel Robert B. Kowa representing the 14th accused S.L 1087 Captain Prince Sesay disclosed to Awoko that they were informed that the lawyers representing the 1st to 13th accused persons will not attend since they have unresolved issues with the Ministry of Defence.
Obviously[,] he said[,] "that will stultify the proceedings simply on the facts that if evidence is led by prosecution I will be constrained to cross examine, and this will be unfair to the other accused persons since their lawyers are absent."

Wednesday, April 23, 2014

Summary trials and transparency: a case in New Zealand

This editorial in the New Zealand Herald raises questions about insufficient transparency in the conduct of a summary trial of an officer of the New Zealand Defence Force:
Investigations by this newspaper resulted in the Defence Force revealing that a soldier had been charged with planting explosive devices, which contravened the Geneva Convention. That aspect raised obvious concerns about the potential harm to the Army's reputation.
Despite repeated requests for updates on the investigation, the Herald on Sunday was not informed of the summary trial which took place this week. The officer was let off the charges due to a lack of evidence.
A subsequent terse press statement confirmed only the hearing of a charge under the Armed Forces Discipline Act that the officer had negligently failed to ensure targets would be visually identified when ordering the placement of a booby trap. The charge had been dismissed because of a lack of evidence, and the officer had been granted permanent name suppression.
"No further comment will be made in relation to this trial," the statement added. The second officer facing charges relating to the booby trapping is yet to learn whether he will face a court martial next month. This is obviously a matter of considerable significance to the Defence Force.
The charges invite scrutiny here and abroad of its attitude to the international rules of war. There are clear implications for the reputation of this country. We believe our soldiers fight fiercely but fairly. When there is reason to question that view, the public has the right to know, in detail, what the officers did and whether this was common practice. Yet the Defence's Force's antediluvian response means people have no idea what evidence was offered and why it was deemed insufficient.
This penchant for secrecy is par for the course when the force risks being embarrassed. It has reserved for itself the right to bury inconvenient truths.

Command influence in Sri Lanka?

In the wake of a YouTube clip documenting harassment of Sri Lanka Army recruits, we read the following in the Sunday Leader:
The Army had said, last week, that, following investigations into the video, the Commander of the Army had ordered the authorities to follow up on the case and take strict disciplinary action against all those who had violated the military code of conduct.
Command influence, anyone? 

Prosecutorial independence at issue in Kenyan court-martial

Phinhas Mugo, of the Kenya Defence Forces, has brought an action in the High Court to halt his court-martial. Among the issues he has raised is whether Brigadier KO Dindi, who is the chief legal advisor to the KDF, can also serve as a prosecutor. According to this account, Mugo maintains that
section 213 (6) of KDF Act is clear that the Director of Military Prosecution shall be a separate office from the Defence Force or ministry.
His argument is that the court martial should not allow persons holding two offices to prosecute.
He further says the failure to adhere to the law makes his prosecution illegal.

Kevin J. Barry

Capt. Kevin J. Barry, USCG
April 24 marks the fifth anniversary of the death of Captain Kevin J. Barry, USCG (Ret). Kevin, a Bronx native who served as a trial and appellate military judge, was a pioneer in military justice reform in the United States and a persistent foe of injustice. He was a founder of the National Institute of Military Justice. Faith, family, country, and friends were supremely important to him. He died at age 66 after a lengthy and heroic struggle against cancer. His obituary in the Washington Post reported that U.S. District Judge Royce C. Lamberth, a longtime friend, called him "probably one of the most outstanding military lawyers I ever knew in my whole career. His views carried great weight."
"When he criticized the system, careful attention was paid by Congress as well as the judicial system," Lamberth said. "I think he had a tremendous impact because his views were so well thought out, well considered and well respected."
There is a link to Kevin's powerful essay "The Gift of Cancer," among others, on this website.

Trial of civilians by courts-martial: Sudan

Last July the Sudanese National Assembly passed amendments to the Armed Forces Act 2007 that would subject civilians to military trial for numerous vaguely-worded offenses. Human rights groups such as RedressHuman Rights Watch and the African Centre for Justice and Peace Studies criticized the legislation and had encouraged the president of Sudan not to approve it.

Judicial independence at Guantanamo

Col. James L. Pohl
Guantanamo Military Judge
Query: does a judge in a military court meet the test for independence under Article 14(1) of the International Covenant on Civil and Political Rights, to which the U.S. is a party, if he is recalled from retirement for brief renewable periods? This seems to be one of the many issues currently engulfing the military commission sitting at Guantanamo Bay, Cuba.

Tuesday, April 22, 2014

Kenya Defence Forces Act, No. 25 of 2012

Readers who are following the Kenya Navy desertion trial currently underway may want to consult the Kenya Defence Forces Act, No. 25 of 2012. Of note, s. 213 provides for a Director of Military Prosecutions with power to make charging decisions. Some good trial coverage appears here.

That case in Hawai'i

Waikiki & Diamond Head, Honolulu
According to this news report, "Honolulu police began the investigation into [Ivanice "Ivy"] Harris’ disappearance and death, but the Naval Criminal Investigative Service took over the case." Anyone know why? Have defense counsel challenged the exercise of military jurisdiction?

NCIS's website states that its "mission is to investigate and defeat criminal, terrorist, and foreign intelligence threats to the United States Navy and Marine Corps -- ashore, afloat, and in cyberspace."

The accused, Marine Master Sgt. Nathaniel L. Cosby, has claimed self-defense. Here is some good reporting from KITV4 television.

The FBI reported in January that Ms. Harris's pimp, Mark “Meezilini” Miles, Jr., is one of 10 persons indicted by a federal grand jury in Portland, Oregon.

Monday, April 21, 2014

Why is this case being tried by court-martial?

Waikiki & Diamond Head, Honolulu
U.S. Marine Corps master sergeant Nathaniel Cosby is being tried by general court-martial for the unpremeditated murder of a prostitute in Waikiki, according to this news account. He is also charged with obstructing justice and attempting to patronize a prostitute. (Another account states that the victim's pimp is in (civilian) federal custody on a charge of transporting her to Hawai'i to work as a prostitute.)

After the Supreme Court's 6-3 (or 5-4, as Stevens, J. merely concurred in the result) decision in Solorio v. United States, 483 U.S. 435 (1987), prosecutions like that of MSgt Cosby became constitutional again. Nonetheless, his trial violates human rights principles, under which only service-connected offenses may be tried by court-martial, there appearing to be no military nexus other than his active duty status. The UN Draft Principles Governing the Administration of Justice Through Military Tribunals, state that "[t]he jurisdiction of military courts should be limited to offences of a strictly military nature committed by military personnel." See also 2013 Report of the Special Rapporteur on the Independence of Judges and Lawyers [Gabriela Knaul], para. 34.

Why isn't this case being tried in the Hawai'i courts? For a ThinkTechHawaii conversation about the case between Honolulu criminal defense lawyer Eric Seitz and former U.S. Coast Guard military judge Jay Fidell (yes, brother of) check this YouTube link.

Should Solorio be reconsidered? Justice Antonin Scalia is the sole remaining member of the Supreme Court who sat on that case. He joined the majority opinion. Congress could also choose to limit court-martial subject matter jurisdiction by requiring service-connection and the President could impose such a limit through a change to the Manual for Courts-Martial's disposition criteria.

Full disclosure: the editor represented the ACLU as an amicus curiae in Solorio.

Sunday, April 20, 2014

Readership progress report

In a mere six days, Global Military Justice Reform has had over 1000 hits and added readers in four more countries (82 as of this morning). Comments, on the other hand, remain sparse. If you have any thoughts on the posts, please comment -- and remember to give your name. If you know of pertinent developments (pending or decided cases, legislation, news, meetings, or professional writing), send a link to the editor (Gene Fidell) or any of the other GMJR contributors shown at the lower right side of the page.

Above all, thanks to everyone -- readers and contributors -- for your interest in military justice reform.

Sierra Leone mutiny trial begins

Pres. Ernest Bai Koroma
The prosecutor's opening statement in the mutiny court-martial being tried in Freetown is reported here. The accuseds' goal, he contended, was to overthrow the government of Sierra Leone and remove President Ernest Bai Koroma.
"He said all the accused persons agreed upon methodology, planning and tactics to disturb senior officers and that some of the plans they had wanted to introduce include, converting Sierra Leone into a hot spot, dividing Sierra Leone, plans not be opened to negotiation during the mutiny, execute Cabinet Ministers, not to accept any deal, subjecting the country to alert, exerting fraud and dictatorship and advance to establish coup and political change."
The defense has waived opening argument for the time being.

Saturday, April 19, 2014

Tunisian chief of military justice fired

Pres. Moncef Marzouki
Moncef Marzouki, interim president of Tunisia, has fired the country's director of military justice. The action, reported here, came a few days after the Military Court of Appeal sentenced several former officials who were convicted of killing protesters--the Martyrs of the Revolution--during a 2011 revolution. Judge Ali al-Fontasi was named as the new director of military justice. Five other defendants were acquitted. The court's decision was criticized for being too lenient. One press account reported:
The Military Prosecution called, Monday, on various parties to keep the military justice away from disputes and not to use the verdicts pronounced in the cases of martyrs and wounded of the Revolution as a means to question the integrity of the military justice.
The Criminal Chamber of the Military Appeal Court which pronounced the verdicts offers all guarantees of independence, the military prosecution indicated in a statement.

People's Liberation Army legal reform

Susan Finder's Supreme People's Court Monitor has this must-read post about the latest development regarding the administration of justice in the People's Liberation Army: issuance of a "Legal Protection Opinion" on improving protection of the rights of the military, military personnel, and dependents. The document itself is not (yet?) available, so systemic transparency remains a serious issue. 

More trouble with the Guantánamo military commissions

Today's New York Times includes this report on the latest in a string of problems with the slow-moving military commissions being conducted at the U.S. Naval Station, Guantánamo Bay, Cuba. This time it involves the Federal Bureau of Investigation:
"The F.B.I.’s inquiry [into the defense counsel for the accused 9/11 plotters] became the focus of the pretrial hearings at Guantánamo this week, after the [security] contractor [assigned to one of the teams of defense counsel] disclosed it to the defense team. It was a reminder that, no matter how much the proceedings at the island military prison resemble a familiar American trial, the invisible hand of the United States government is at work there in ways unlike anything seen in typical courtrooms."

Friday, April 18, 2014

Luftwaffe military justice in World War II

Former Reichskriegsgericht
Light reading it isn't, but fascinating and well worth the time: Capt. Edith Rose Gardner, Military Justice in the German Air Force During World War II, 49 J. Crim. L., Criminology & Police Sci. 195 (1958). Exclusive military jurisdiction over offenses by military personnel was abolished in 1919. During the Weimar Republic period offenses were tried in the civilian courts. Prosecutors were civilians, but military lawyers protected the interests of the accused. "Only the units of the Navy afloat were permitted to retain the traditional concept and function of military law." P. 196. The Nazi government reinstituted military justice by a May 12, 1933 decree. Capt. Gardner concluded, surprisingly, by observing that "the military justice system of the former [German Air Force] may prove a satisfactory guide for the present forces of the Federal Republic of Germany." P. 211.

Thursday, April 17, 2014

Markin v. Russia's continuing aftershocks

Konstantin Markin
Konstantin Markin is one persistent hombre. Consider this summary of his years-long struggle in the Russian military and constitutional courts and the European Court of Human Rights over parental leave from his duties as a radio intelligence officer in the Russian Army -- and this one of the jurisprudential fallout as of the end of 2013. Additional background can be found in this article by William E. Pomeranz of the Kennan Institute.

Another step towards the protection of the accused before military courts

In The Queen v. Wehmeier 2014 CMAC 5, the Court Martial Appeal Court of Canada (CMAC) enhanced the protection of civilians prosecuted before military tribunals. Mr. Wehmeier was a former member of the Canadian Forces (CF). He was hired by the CF for two months to work as a “peer educator” at a “third location decompression center” operated by the CF in Germany. The Center’s function was to assist CF members returning from Afghanistan.

While there he attended a beer festival, allegedly became intoxicated and committed offences against three members of the CF. He was immediately repatriated to Canada and charged with the following ordinary criminal offences: sexual assault contrary to s. 130 of the National Defence Act (Act) and s. 271 of the Criminal Code of Canada (Cr.C.), uttering threats contrary to s. 130 of the Act and par. 264.1(1)(a) of the Cr.C., and assault contrary to s. 130 of the Act and s. 266 of the Cr.C.

The Chief Military Judge who heard the case terminated the proceedings but without adjudicating the merits. He was of the view that they amounted to an abuse of prosecutorial discretion. The Supreme Court of Canada has recognized that there are two forms of abuse of process which can be caught by s. 7 of the constitutionalised Canadian Charter of Rights and Freedoms (Charter). In essence, s.7 gives everyone the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The two forms of abuse of process caught by the provision are prosecutorial conduct affecting the fairness of a trial and prosecutorial conduct that contravenes fundamental notions of justice and thus undermines the integrity of the judicial process: see R. v. O’Connor (1995) 4 S.C.R. 411, at par. 73; R. v. Nixon (2011) 2 S.C.R. 566, at par. 36.

The CMAC also came to the conclusion that the proceedings should be terminated without adjudicating the merits, but for different and more fundamental reasons. It found that there was no prosecutorial abuse of discretion, but that this was not the end of the matter because a breach of s. 7 of the Charter can occur even if there is no abuse of prosecutorial discretion in the laying and prosecution of a charge. At par. 49 of its reasons for judgment, the CMAC ruled that “the principle of prosecutorial discretion cannot shelter the fruit of the exercise of that discretion from review on substantive grounds.” At pars. 54 and 55 it endorsed the following principles as regards the prosecution of civilians before military tribunals:
[54] As noted earlier in these reasons, in Wehmeier 2 the Chief Military Judge found that Parliament’s objective in enacting paragraphs 60(1)(f) and 61(1)(b) of the NDA was that Canada retain primary jurisdiction over CF members and the persons who accompany them in order to protect their interests and have them tried according to our law and not according to foreign penal law. The provisions subjecting civilians to the CSD were intended to limit the jurisdiction of military courts such that jurisdiction would only be exercised if it was “absolutely essential or in the interests of the civilians themselves that they do so”: Wehmeier 2 at paragraph 24.
[55] In his memorandum of fact and law, the respondent reviews the particular needs of military discipline as it relates to accompanying civilians. He summarizes his conclusions at paragraph 51, a summary that we find correctly states Parliament’s intent:
The existence of Canadian military jurisdiction would allow the military to ensure the safety of our people abroad by affording it some enforceable control over civilians, help limit the reach of repressive foreign jurisdiction and extend the application of Canadian law and procedures to the civilians in foreign places. In all cases, Parliament’s intent was that military jurisdiction would only be exercised over civilians accompanying the forces when it was absolutely necessary or in the best interests of the civilians themselves to do so.
Since the accused had been repatriated to Canada within five days after the occurrence of the alleged offences, the prosecution in the military courts was not necessary to protect the accused from foreign penal jurisdiction. The rationale for the prosecution before a military tribunal did not explain why a prosecution before a military as opposed to a civilian tribunal is necessary. “It is not sufficient,” the CMAC said, “to simply assert the public interest in having charges laid in the military justice system.” At par. 58, it found that the prosecution in the military justice system was arbitrary because it lacked “any connection with the objectives sought to be achieved by making accompanying civilians subject to the CSD (Code of Service Discipline).”

In addition, the CMAC found that the proceedings in the military justice system were not in accordance with the principles of fundamental justice because of the disproportionate effect on the individual relative to the state’s interest in the proceedings. Such effect arises from the accused’s loss of certain procedural rights when prosecuted before military tribunals: the right to be tried by a jury, the right to have the prosecutor elect to proceed by summary conviction as well as the right to benefit of the range of sentencing options available in the Cr.C.

The decision is a major breakthrough in the search for equality of rights under the Charter, especially for civilians, including teenagers, who accompany members of the CF. The time has come to ensure that the overall interests of justice should prevail when what is at stake is either the prosecution of ordinary criminal offences as opposed to purely military disciplinary proceedings or, as in this case, the prosecution of civilians.

There is, however, one disturbing conclusion in the CMAC decision. After having said at par. 28 of its reasons that prosecutorial discretion was a term of art which refers to “the use of those powers that constitute the core of the Attorney General’s office and which are protected from the influence of improper political and other vitiating factors by the principle of independence,” the CMAC went on to say that it was satisfied on the record before it that the existing differences between the position of the Attorney General and the Director of Military Prosecutions  (DMP) “do not justify a conclusion that a different scope of prosecutorial discretion applies to the DMP”: see par. 31.

It should be recalled that under the Act, both the Prosecution and the Service Defence fall under the jurisdiction of the Judge Advocate General who is the commander of all military lawyers, the supervisor of the military justice system and the legal adviser to the Minister of National Defence and the chain of command. It should also be recalled that he is not a judge, that he is not elected, that he is not accountable in the House of Commons and that his appointment is political.

Finally it should be kept in mind that the Attorney General is given broad discretionary prosecutorial powers because he is the ultimate keeper of the public peace, a responsibility conferred upon neither the Judge Advocate General nor the Minister of National Defence. In addition, by constitutional convention the Attorney General is not bound by a decision of Cabinet in the exercise of his powers and duties to administer justice in Canada. No such power is given to the Minister of National Defence. It is an open secret that, contrary to the conditions characterizing the Director of Public Prosecutions in Canada, the Director of Military Prosecutions is far from being independent from the chain of command and “protected from the influence of improper political and other vitiating factors by the principle of independence.”

These fundamental and principled differences and guarantees should be kept in mind in future cases when reviewing the prosecutorial discretion of the Director of Military Prosecutions.