Thursday, November 23, 2017

Further attention to military justice in the House of Lords

Lord Thomas of Gresford OBE QC
The House of Lords returned to the subject to military justice today, with attention focusing on the Armed Forces Act 2006 s.42. The colloquy among several Members can be found here. Lord Thomas of Gresford QC observed:
My Lords, in March 1669 the Lord High Admiral, the Duke of York, later James II, issued a warrant to constitute a court martial. It was to be comprised of a rear admiral and six captains to enquire into the loss by fire of a ship of the line, the “Defiance”. In order to constitute the court, Samuel Pepys, then a civil servant with the title of the Clerk of the Acts, found himself suddenly and unexpectedly elevated to military rank. He wrote in his diary:

“But that which put me in good humour, both at noon and night, is the fancy that I am this day made a Captain of one of the King’s ships, Mr. Wren having this day sent me the Duke of York’s commission to be Captain of ‘The Jerzy,’ in order to my being of a Court-martiall for examining the loss of ‘The Defyance,’ … which do give me occasion of much mirth, and may be of some use to me, at least I shall get a little money by it for the time I have it; it being designed that I must really be a Captain to be able to sit in this Court”.
Samuel Pepys FRS

At the hearing, Mr Pepys managed the business, and as he put it,

“did lay the law open to them, and rattle the Master-Attendants out of their wits almost; and made the trial last till seven at night, not eating a bit all the day”.

However, he did forbear from giving judgment, lest, as he put it,

“evil use might be hereafter made of the precedent by putting the Duke of Buckingham, or any of these rude fellows that now are uppermost, to make packed Courts, by Captains made on purpose to serve their turns”.

Pepys instead left the proceedings to eat a ship-board meal of,

“salt beef … brown bread and brandy … so good as I never would desire to eat better meat while I live, only I would have cleaner dishes”.

I am grateful to my friend and colleague, Professor Eugene Fidell, of Yale University, author of the excellent book Military Justice: A Very Short Introduction, who drew these passages to my attention.

In the 1840s, a parliamentary Motion was brought criticising the Earl of Cardigan, of Light Brigade fame, who was colonel of the 11th Hussars. There were 350 men in the regiment, and in the space of two years he had conducted 107 courts martial, with 90 of his soldiers imprisoned in Lewes jail. But that was not his offence; his mortal sin was to have a soldier flogged on a Sunday at a church parade, which was what the Motion was about. Flogging was abolished by Sir George Osborne Morgan, the Liberal Member of Parliament for Wrexham—which has already had a mention and is of course my home town—who was the Judge Advocate in 1881.

I remember during my bus-conducting days in Wrexham that the bus driver I was working with was proud of the fact that he had survived field punishment number one while serving in the First World War—that is to say he was lashed, spreadeagled to the wheel of a gun carriage. Sixty thousand such sentences were imposed during that time, and at the same time 3,000 death sentences were pronounced by courts martial, of which about 10% were carried out. Their posthumous pardon is still a controversial issue.

I mention these historical occurrences because they have a left a degree of mistrust of courts martial in the public consciousness, which has not disappeared. Back in 1995, I defended a soldier before a court martial in Germany on a charge of murder. He was acquitted. Mr George Galloway MP, speaking in the House of Commons, complained of the bungling and incompetence of the investigation and prosecution, and continued:

“As a result of that bungling and incompetence”,

X—he named the defendant—

“who killed my constituent, has literally got away with murder and is currently at large in a military establishment in Telford, Shropshire. Does the Leader of the House understand that British military justice and law is increasingly seen as an ass”?—[Official Report, Commons, 2/3/95; col. 1209.]

I have never heard comments like that in Parliament about an acquittal by a jury.

The parents of the deceased girl in the case of X actually picketed the next court martial I appeared in in Germany, holding placards protesting against the system. That was the case of Martin, which ended up in the Judicial Committee of the House of Lords and, finally, in the European Court of Human Rights. The 17 year-old son of a soldier—not a soldier himself—serving in Germany was charged with the murder of a British civilian who had the status of an officer in the camp. He was held on remand at Colchester for eight months and then flown back to Germany for a court martial with all the trimmings. By that time his father had retired from the Army and was no longer serving. He was convicted. My appeal on the basis of abuse of process was lost in the House of Lords. The European Court of Human Rights, on the other hand, found that there had been a violation of the European convention on other grounds, and cautioned that only in very exceptional circumstances may civilians be court-martialled:

“The power of military criminal justice should not extend to civilians unless there are compelling reasons justifying such a situation, and if so only on a clear and foreseeable legal basis”.

The Government’s position on that case was criticised and questioned by the Joint Committee on Human Rights in its 12th report in May 2011.

I shall cite two more recent events. One is the Baha Mousa case, in which I appeared for one of the defendant officers, and it was in fact a High Court judge in that particular case. Nevertheless, the acquittals were not acceptable to the Government, who instituted an inquiry that cost millions of pounds. Within the last year there has been the case to which the noble and learned Lord, Lord Morris, referred, the conviction of Sergeant [Alexander] Blackman, which led to a lengthy newspaper campaign, protests and public demonstrations in Old Palace Yard and a rehearing of his appeal on grounds that had never been advanced at his trial. The substitution of his conviction for murder with one of manslaughter led to his immediate release.

What I am endeavouring to show is that there is no public confidence in the system. I know the system and I have every confidence in the judge advocates who sit on courts martial, particularly Judge Advocate [Jeff] Blackett, who has been referred to. They are highly skilled and experienced, and many of them hold certificates to sit on murder trials. However, in the last three Armed Forces Bills over 15 years, I have moved amendments unsuccessfully to improve the workings of the system. Every one of the five points that the noble and learned Lord, Lord Thomas of Cwmgiedd, has put forward is one that I have advanced. I had one success: in 2004 I managed to have the hallowed practice of a petty officer marching the defendant into a naval court martial hearing at the point of a cutlass finally abolished. The presumption of innocence hardly applies when you have the point of a sword in your back.

Specifically, I have called for the repeal of Section 42 and for the extension of universal jurisdiction to sexual crimes so that rape, murder and serious crime could be tried in the ordinary British courts if they are committed abroad. Now, though, with the return of the Army from Germany and the ease of travel that has caused all serious trials from Iraq and Afghanistan to be heard at Colchester or Bulford, the argument of distance is no longer relevant. I have argued that the protocol between the DSP and the DPP is not a satisfactory safeguard where serious charges are laid.

In 2013, the special rapporteur on the independence of judges and lawyers submitted a report to the General Assembly of the United Nations that stated:

“As a specialized jurisdiction aimed at serving the particular disciplinary needs of the military, the ratione materiae jurisdiction of military tribunals should be limited to … offences of a strictly military nature, in other words to offences that by their own nature relate exclusively to legally protected interests of military order, such as desertion, insubordination or abandonment of post or command”.

Paragraph 99 of that report reads:

“States should not resort to the concept of service-related acts to displace the jurisdiction belonging to the ordinary courts in favour of military tribunals. Ordinary criminal offences committed by military personnel should be tried in ordinary courts”.

That view was re-emphasised in a report to the United Nations on 9 June 2017, and is entirely in accordance with Decaux principle No. 8, which provides that the subject matter of military courts should be limited to offences of a strictly military nature committed by military personnel. The Decaux principles are the United Nations draft principles governing the administration of justice through military tribunals, adopted in 2006.

I therefore fully support the thinking behind the Motion, and thank the noble and learned Lord, Lord Morris, for moving it, and for emphasising a battle in which I have been engaged for a long time. I would advise those considering these matters to follow closely the case of Stillman v the Queen, which is currently before the Supreme Court of Canada. It raises the very issue under discussion. Corporal Stillman, in a private quarrel, shot an individual with his own revolver in the residential area of a military camp but was tried by court martial. The repeal of Section 42 would be wholly in accord with contemporary human rights norms and would remove the strong public prejudice against trial by court martial, starting from before Mr Pepys down to the present day.

“And so to bed”.

95 more cases sent to Pakistan's military courts

The Pakistan Army has prevailed upon the government to send over 95 more cases for trial by military courts. The Express Tribune has the story here.

Pakistan is one of the world's most persistent offenders of the human rights norm that severely disfavors the trial of civilians in military courts.

Thanksgiving


Wednesday, November 22, 2017

Our Crimes, Their Misdemeanors

General Ratko Mladic, the former top general of the Bosnian Serb Army, was sentenced yesterday in the International Criminal Tribunal for the Former Yugoslavia (ICTY) to life imprisonment for his involvement in war crimes and genocide in Bosnia-Herzegovina in the 1990s.

General Mladic was a fugitive until 2011, hiding in Bosnia's Republika Srpska territory and in Serbia, often with state support. He received -- and continues to receive -- a general's pension as a retired Serbian general.

How would his criminal case have been handled differently in the Serbian military justice system?

This is the last major case for the ICTY. Remaining appeals and other ICTY business will begin to be transitioned to the Mechanism for International Criminal Tribunals (MICT), also in The Hague. 

Tuesday, November 21, 2017

Military commissions convening authority ruling on Brigadier General Baker's contempt proceeding

From Defense Department Public Affairs:
Convening Authority Rules on Military Commission's Contempt Proceedings Against Brig. Gen. Baker
The Office of Military Commissions (OMC) Convening Authority (CA) has reviewed the contempt proceedings against Brigadier General John G. Baker, United States Marine Corps, Military Commissions Defense Organization. The CA has determined that the findings of the military judge are correct in law and fact. The CA is forwarding the findings and record of proceedings to the appropriate authority overseeing Brig. Gen. Baker's service as a Judge Advocate within the Department of the Navy, the DoD Standards of Conduct Office, and the DoD General Counsel's Office, and the Staff Judge Advocate to the Commandant of the United States Marine Corps for an administrative ethics review. The CA is not requiring that Brig. Gen. Baker pay the original $1,000 fine or serve the remaining confinement term, which was initially 21 days.
With regard to the underlying security concerns that led to the attempted resignation of defense counsel in the case of United States v. Al-Nashiri, the CA will also recommend to the Joint Detention Group at Guantanamo Bay that a "clean" facility be designated or constructed which would provide continued assurances and confidence that attorney-client meeting spaces are not subject to monitoring, as the commission proceeds.
The CA noted that it was within the military judge's authority to rule upon the defense counsels' request to withdraw from the case. The presiding judge, US Air Force Colonel Judge Vance Spath, found that there was "no good cause" to withdraw after reviewing both the classified and unclassified information concerning the defense's motion.
During the Oct. 31 proceeding, Judge Spath said, "On 20 September 2017, again after consideration of all the classified and unclassified filings. there wasn't any basis to find there had been an intrusion into attorney-client communications between this accused and this defense team."
The CA acknowledged that the classified nature of the proceedings have shaped the commission's proceedings. The declassification of relevant documents concerning this matter needs to be expedited to ensure the now-classified analysis can be shared with the appropriate parties to reinforce the integrity of the process. The CA will work with the necessary declassification authorities to improve this area of concern.
Editor's comment: Referring General Baker for an ethics review is appalling and yet another self-inflicted wound for the military commissions.

Nominations are now open for Global Military Justice Reform's 2017 Man of the Year. General Baker comes to mind. Anyone else?

Military law and discipline at the danwei level in the People's Liberation Army

“First, we must keep in mind that the military must unswervingly adhere to the Party’s absolute leadership and obey the Party’s orders. Second, being able to fight and win a war [is] absolutely necessary for a strong military. Third, the PLA must maintain its discipline. The military must be governed strictly according to laws.”[1]

Modern military forces the world over are usually governed by a body of national military law that is intended to promote and maintain a high level of military discipline among those who are charged with the responsibility of the national defence. A large and growing English-language literature explores these national laws of many countries around the world, with the curious exception of the People’s Republic of China – and this, despite the size of China’s armed forces and the rising influence of the state (and Party) they serve. Such scholarly attention as the subject has garnered has focussed on the operation of Chinese military courts, with scant attention paid to the role of law in the maintenance of military discipline at the unit (danwei) level. In China, the Regulations on Discipline of the Chinese PLA is one of the key instruments for maintaining discipline at the unit level within the PLA. Discipline regulations were first instituted in the PLA in 1951 replacing the venerable Three Main Rules of Discipline and Eight Points for Attention that were the earliest formal rules applied from 1928 in the Chinese Workers’ and Peasants’ Red Army, the forerunner of the PLA. The Regulations have been modified or supplanted on several occasions since, and the most recent iteration was adopted by the Central Military Commission in May of 2010, coming into force the following month. The current version of the Regulations on Discipline has not previously appeared in English translation, but excerpts are now available [here] on the website of China Law Translate.

The Regulations consist of 179 Articles divided into seven chapters dealing, in Chapter II, with rewards such as medals and commendations, and in Chapter III with punishment. (The formal application of both rewards and punishments in the maintenance of military discipline in China predates the empire. The civil reforms of Lord Shang in the pre-Imperial state of Qin introduced a system of rewards and punishments that became a hallmark of Qin military discipline, and was continued in the army of the new empire after 221 BCE.) The remaining chapters deal with introductory matters (Chapter I), special measures (Chapter IV), complaints and appeals (Chapter V), the duties of leading cadres and discipline inspection (Chapter VI) and supplementary provisions (Chapter VII).

The Regulations apply to all officers, civilian cadres, non-commissioned officers and soldiers of the PLA, as well as to reservists when engaged in hostilities. They also apply to cadets attending military academic institutions and to members of the People’s Armed Police Force, the branch of China’s armed forces with particular responsibility for internal security.

For your military justice bookshelf (or stocking-stuffer)

Major General Michael Scott, CB, CBE, DSO, Scapegoats: Thirteen Victims of Military Injustice (Skyhorse 2015), xiv + 322 pp, $24.99. No. 3 is the unfortunate Vice Admiral John Byng, RN (1704-57). Can you guess the other dozen?

Nepal Army raises double jeopardy issue

The Nepal Army has appealed the murder conviction of three Army officers who were convicted in civilian court following earlier military legal proceedings that handed down six-month sentences. Excerpt from this My República report:
On April 17, 2017, Kavre District Court had convicted Colonel Boby Khatri and Captains Sunil Prasad Adhikari and Amit Pun in the murder of the teenage girl during the Maoist insurgency and slapped life terms on them. The court acquitted Major Niranjan Basnet, who was also accused, stating that the evidence against him was insufficient. 
Khatri, Adhikari and Pun are no longer in the army.

The writ petition has moved the apex court to annual the Kavre district court verdict, arguing that it goes against a precedent set by the Supreme Court and flouts the universal principle against double jeopardy. The writ petition has also claimed that Kavre district court lacked the jurisdiction to hand down such a verdict.

The writ petition has stated that the three army officers had already undergone the punishment handed down by a military court of inquiry and the district court in pronouncing its own verdict had breached its jurisdiction.

Trouble in Gambia: soldiers held without trial

Agence France Presse reports from Banjul:
When strongman Yahya Jammeh left The Gambia for exile after 22 years, new foreign minister Ousainou Darboe pledged the tiny nation would become the “human rights capital of Africa”.

His remarks came days after Jammeh’s forced departure in January, and followed the release of droves of political prisoners from the country’s notorious jails — the face of years of flagrant rights abuses under the mercurial leader.

But as the first anniversary approaches of the December 1 election that would eventually spell regime change for Banjul, AFP has learnt that a dozen soldiers are currently being held in Gambian detention far beyond the remit of the constitution, in some cases for months.

Summer internship at U.S. Army Court of Criminal Appeals

How did you spend your summer vacation? Here's a report from an FIU College of Law student who spent hers usefully, interning at the U.S. Army Court of Criminal Appeals. Great experience for an aspiring JAG.

Human shield case

The High Court in Srinagar has given the government two weeks to report on the status of its investigation into a human shield case involving the 53rd Rashstriya Rifles, according to this report. The incident is being investigated by civilian authorities.

Compensation awarded in Taiwan draftee's death

Taipei Times reports:
The Taiwan High Court yesterday upheld an earlier ruling that army personnel were responsible for the death of Hung Wen-pu (洪文璞), a conscript who committed suicide after being bullied, and said that Hung’s parents should receive NT$2.86 million (US$94,483) in compensation from Army Command Headquarters. 
The compensation was increased from the NT$1.97 million ordered in the first ruling at the district court. 
However, yesterday’s ruling can be appealed.

Uganda police officers withdraw jurisdictional objection to court-martial

There's been a surprising turn of events in the court-martial case involving members of the Uganda police. According to this report from The Independent:
Seven Senior Police Officers have been charged before the Army Court in Makindye with kidnap of two people.

These had refused to plead to the said charges last month saying the General Court Martial had no jurisdiction to try their case, and were then remanded to prison.

On Monday, SPC Joel Aguma, SSP Nixon Agasirwe Karuhanga, D/ASP James Magada, D/AIP Benon Atwebembeirwe, D/Sgt Abel Tumukunde, SPC Faisal Katende and D/CPL Amon Kwarisima appeared before the seven-member-panel of the Army Court, and pleaded not guilty to the allegation.

Through their lawyers led by Caleb Alaka they informed the Court Chairman Lt. Gen. Andrew Gutti that they had dropped the earlier objections and are now willing to take plea.

The officers are jointly charged with two foreigners Rene Rutangugira and Bahati Mugenga for allegedly conveying two people Joel Mutabazi and Jackson Mutabaazi to the Rwanda Government without their consent.
It's unclear why the accuseds dropped their jurisdictional objection. Perhaps a plea bargain?

Human rights norms limit the use of courts-martial to military personnel.

By the numbers

It's that time again. From the glass-enclosed newsroom high above Global Military Justice Reform Plaza, we are proud to report another landmark. As of a few moments ago, we have had 500,000 hits from readers in 179 jurisdictions, 3887 posts, and 529 comments.

Many thanks to our readers, contributors, and commenters for making this landmark possible.

Happy Thanksgiving to one and all.

Suriname massacre case drags on

Pres. Desi Bouterse
The military trial of Suriname's President Desi Bouterse drags on. A final decision is not expected until the second half of 2018. The charges grow out of a 1982 massacre of 15 opponents of the regime at Fort Zeelandia. Details here.

Definitely what Pres. Abraham Lincoln would have called "a case of the slows."

No presidential clemency for Hebron shooter

Israeli President Reuven Rivlin has refused to grant clemency to IDF Sgt. Elor Azaria, who was convicted of manslaughter by a court-martial for shooting a Palestinian demonstrator who had been subdued. The soldier's 14-month sentence had previously been reduced by Chief of Staff Gadi Eisenkot. Details here.

Impunity in Mexico

Peter Orsi of the Associated Press reports:
The vast majority of human rights abuses allegedly committed by soldiers waging Mexico's war on drug gangs go unsolved and unpunished despite reforms letting civilian authorities investigate and prosecute such crimes, a report said Tuesday. 
The Washington Office on Latin America study, described as the first comprehensive analysis of military abuse investigations handled by the Attorney General's Office, found there were just 16 convictions of soldiers in the civilian judicial system out of 505 criminal investigations from 2012 through 2016, a prosecutorial success rate of 3.2 percent. 
Moreover, there were only two "chain of command responsibility" convictions for officers whose orders led to abuses, it said. 
The report said factors that hinder civilian investigations of the military include parallel civilian and military probes, limited access to troops' testimony and soldiers tampering with crime scenes or giving false testimony. 
"This militarized public security model has negatively impacted Mexico's criminal justice system. The civilian justice system faces challenges — including military authorities' actions resulting in the obstruction or delay of investigations — which limit civilian authorities' ability to sanction soldiers implicated in crimes and human rights violations," the group said.

Monday, November 20, 2017

More on the Military Justice Improvement Act

Sens. Mazie Hirono (D-HI), Kirsten Gillibrand (D-NY), and other Senators from  both sides of the aisle are featured in this Big Island Video News video about the need for enactment of the reintroduced Military Justice Improvement Act.

Department of Serendipity

From the time Congress first extended the certiorari jurisdiction of the Supreme Court to reach decisions of the then-U.S. Court of Military Appeals, certiorari has been limited by statute to cases in which that court granted discretionary review. This excludes the lion's share of courts-martial and is a limitation not imposed on state, civilian federal, and military commission cases.

The following, discovered serendipitously, appears on page 34 of Senate Report No. 98-53, April 5, 1983, which accompanied the Military Justice Act of 1983:
In the federal civilian system, of course, any criminal conviction is ultimately subject to Supreme Court review via a petition for a writ of certiorari. Where appropriate the Committee wishes to achieve parity with the civilian system to the maximum extent practicable, but recognizes that the unique nature of the military justice system dictates that the Court of Military Appeals should remain the principle interpreter of the UCMJ and at least at the outset, restricting direct access to the Supreme Court to cases the Court of Military Appeals has agreed to hear is necessary as a practical matter. [Emphasis added.]
The notion that it was somehow impracticable (aside from politically) for military accuseds to have the same access to the Nation's highest court as other criminal defendants was ludicrous at the time and it remains ludicrous. But even if that were not the case, might we not agree that after 34 years we are no longer at "the outset" and that the time has come to set this right?

HASC? SASC? SECDEF? OGC? TJAGs? JSC? DOJ? Anybody home?

CAAF nominee approved by SASC

The Senate Armed Services Committee last week approved the nomination of Prof. Gregory E. Maggs to be a judge of the U.S. Court of Appeals for the Armed Forces. The nomination now moves to the full Senate.

Sunday, November 19, 2017

Who should investigate this Cypriot case?

The Attorney General of Cyprus will be investigating allegations that a National Guard commanding officer assaulted one of his soldiers. A military investigative report will be turned over to civilian authorities. Details here.

Senator Gillibrand reintroduces reform measure

Sen. Kirsten Gillibrand
Senator Kirsten Gillibrand has again introduced her bill to shift the disposition power from commanders to lawyers outside the chain of command, according to this report. Excerpt:
"We're not seeing the system get better," New York Senator Kirsten Gillibrand (D-NY) said.

This is the fifth time New York Senator Kirsten Gillibrand has introduced her bill called the Military Justice Improvement Act.

She said she hasn't been given a vote on the bill in nearly two and a half years.

"It is something that people think is debatable, it is something that people think is unanimous and a lot of people don't want to take on the generals. When the generals say no they want to leave it the way it is and I think that is the wrong instinct," Gillibrand added.

Saturday, November 18, 2017

Lieber writing prize

Via OpinioJuris:

The American Society of International Law’s Lieber Society on the Law of Armed Conflict awards the Francis Lieber Prize to the authors of publications that the judges consider to be outstanding in the field of law and armed conflict. Both monographs and articles (including chapters in books of essays) are eligible for consideration — the prize is awarded to the best submission in each of these two categories.

Submissions, including a letter or message of nomination, must be received by 10 January 2018. Three copies of books must be submitted. Electronic submission of articles is encouraged. Authors may submit their own work. All submissions must include contact information (e‑mail, fax, phone, address) and relevant information demonstrating compliance with eligibility criteria. The Prize Committee will acknowledge receipt of the submission by e‑mail.

Thursday, November 16, 2017

Military justice and World Philosophy Day

The Taipei Times reports on a World Philosophy Day panel. Excerpt:
The “pursuit of reasoning” has become popular in Taiwanese society and it is timely to re-emphasize the importance of philosophy because it provides “good tools” through which people can reflect on the issues they encounter in their daily lives, said Claire Lin (林靜君), event coordinator and deputy head of the Philosophical Education Development Organization. 
There has been more reflection on the relationship between individuals and society, especially since the high-profile death of army corporal Hung Chung-chiu (洪仲丘), which raised awareness of social justice, Lin said. 
The 24-year-old conscript died of heat exhaustion on July 4, 2013, after being forced to do strenuous exercise in a confined facility. 
Hung’s death raised questions about human rights violations in the military, sparked mass protests in the nation and led to the prosecution of several military officers and non-commissioned officers and major legal reforms, such as the abolition of military courts during peacetime.

"We do owe society a notice"

“When we discharge one of these people, he’s no longer our problem,” said Lt. Gen. Richard Harding, formerly the service’s top legal officer. “But these people who resort to dispute resolution at the end of a weapon, when we boot them out of the service, we do owe society a notice.”

From this Stars and Stripes article about the Devin P. Kelley case by Nancy Montgomery

Wednesday, November 15, 2017

Single code urged for Indian Armed Forces

Global Military Justice Reform contributor Wing Commander (Ret) U C Jha has written this op-ed for Daily News & Analysis, urging India to move to a single disciplinary code for its armed forces. Excerpt:
The three service Acts differ on various safeguards available to military personnel. These Acts are unable to answer the needs of the modern soldier and are quite at odds with the liberal interpretation of the Indian Constitution. The existence of the separate Acts makes the use, interpretation, and amendment more complicated. It would be easier to modernise and amend a common code for the services than to do so individually. Following the creation of India’s tri-service Strategic Forces Command and uniformity in the functioning of the three services at various levels, there is a need for a uniform disciplinary code for the three services. A uniform code would be more appropriate in view of the fact that the three services are increasingly deployed on joint operations in India and abroad, for which they train together. A modern and fair system of service law is as important to supporting operational effectiveness as having the best-trained and equipped forces as possible.
The argument is unanswerable, but how long will it take to achieve the goal? One question that might be raised is whether the proposed common code would also cover forces such as the Indian Coast Guard, the Border Security Force or the other Central Armed Police Forces. 

Monday, November 13, 2017

Good news for US practitioners

LexisNexis Adds All Content from US Department of Defense Boards for the Correction of Military Records to Lexis Advance

Addition helps veterans and advocates address service records and discharge status preventing access to needed veteran care and services

NEW YORK, November 9, 2017 – LexisNexis Legal & Professional today announced that it has added the US Department of Defense (DOD) Boards for the Correction of Military Records to its flagship Lexis Advance offering, creating the only online resource for veterans and their advocates to search military record change information from each branch of the military, comprehensively and all in one place. The action is part of the company’s ongoing Pro Bono Task Force work to support American military veterans.

“All of us at LexisNexis are proud to help veterans by providing them and their representatives the tools and resources they need to address military service and discharge records that prevent veterans from accessing vital care and services,” said Kermit Lowery, retired US Army JAG Officer and current vice president of legal for the North American Legal Research Solutions business of LexisNexis.

The unique set of content added by LexisNexis contains more than 127,000 decisions and changes addressing errors or removing injustices to individual military records and discharge status of service members in the United States Army, Air Force, Navy (including Marine Corps) and Coast Guard between 2008 to the present. It is sourced from the DOD BCMR Board of Decisions and is now, for the first time, offered in a combined, searchable database on Lexis Advance through the Premier Federal Core Agency & Admin Materials collection.

Access to a unified database of this information is a helpful new tool for individual veterans and the lawyers, organizations and others who advocate for them. The ability to conduct a single search, find and assess changes to military records and discharge status across all branches of the military helps advocates find precedent and see trends and patterns into what worked to achieve a record change or discharge upgrade when it was legitimately warranted. This is particularly important for veterans suffering from Post-Traumatic Stress Disorder (PTSD) or Traumatic Brain Injuries (TBI) who may have been discharged under less than honorable circumstances, preventing their access to VA health care services, VA home loans, educational benefits and temporary shelter if homeless.

“Any veteran suffering from PTSD and TBI has legitimate health concerns, and they should be treated as such,” said Lowery. “For those facing challenges getting the care and services they need based on their discharge status, if we can help them and their legal advocates find ways to open up access to those services where warranted, we feel we are doing the right thing by the men and women who serve our country,” said Lowery.

About the LexisNexis Pro Bono Task Force
The LexisNexis Pro Bono Task Force is a group within LexisNexis responsible for managing the company's pro bono activities to maximize the value realized from those activities, both by the company and by the group beneficiaries. The Pro Bono Task Force identifies appropriate pro bono opportunities, encourages LexisNexis employees to use their two paid pro bono volunteering days per year with approved pro bono organizations, coordinates the donation of equipment and services to approved pro bono organizations, and develops programs and policies to foster the long term success of the company's pro bono initiative.

Prof. Corn interview on the SEAL Team 6 case from Mali

Prof. Geoffrey Corn
South Texas College of Law's Professor Geoffrey Corn's excellent Vox interview about the SEAL Team 6 case out of Mali can be found here. He provides a clear account of the process, including the interservice aspects. Excerpt:
The biggest difference is who decides whether a case gets sent to trial. In most civilian jurisdictions, a prosecutor will recommend a charge to a grand jury — like the Paul Manafort case. The grand jury is going to decide if they think there’s enough evidence to support sending a case to trial.

In the military, prosecutors will advise the commander. But it is the commanding general or admiral who will decide whether or not a case should be sent to a felony-level trial, what we call a “general court-martial.”

The prosecutor doesn’t make that decision. The prosecutor tries the case and makes a recommendation, but the general or admiral isn’t bound by that recommendation. It’s like going to the mayor of your city and asking what cases should be sent to trial.

Where should this case have been tried?

A member of Ukraine's border security force, following orders, shoots at a car to stop it, killing a passenger. He is tried in a civilian court and sentenced to 13 years in prison. On appeal, the judgment is overturned and a new trial ordered. Now a member of parliament is arguing that the country has to reinstate military courts, according to this account.
"Such precedents do not add public confidence in the judicial system, which is why it is now necessary to reform it decisively. From my point of view, it was the case of Serhiy Kolmohorov that showed the need to return to the legislative settlement of military justice activities. Civilian courts have not right and should not bring in verdict or make decisions in military cases," [Iryna] Friz said.

Sunday, November 12, 2017

Shhhh. Court's in session

Tasnim News Agency reports that Bahrain has new rules ensuring the secrecy of military courts. Details here. Excerpt:
Head of Bahrain's Military Judiciary Brigadier Yusuf Rashid Flaifel said that the High Military Court has issued a decision prohibiting the circulation of any information, data or news by any audio-visual, electronic or written media, BNA reported.

Saturday, November 11, 2017

The Texas gunman's court-martial

The Associated Press writes here, in the Fresno Bee, about the military justice system and the U.S. Air Force court-martial of Texas mass murderer Devin P. Kelley. What did the members (jurors) know in his case? Why isn't it easier to get the record of trial? Excerpt:
The Air Force has so far released only a handful of pages from Kelley's trial record. The service is planning to release more.

Typically, however, transparency in connection with military trial records is minimal. While all of the services make brief courts-martial results public, documents from the proceedings, such as the charges, courtroom transcripts and pretrial agreements, are available only through the federal open records law, the Freedom of Information Act. That's a potentially time-consuming process and there are no assurances the requested documents will be released.
Do the victims' families have a cause of action against the government for negligence in failing to report Kelley's conviction? Vice News has this report. 

Thursday, November 9, 2017

Is there life after active duty?

Langdell Hall, Harvard Law School
Ask Jenna Reed, an LL.M. candidate at Harvard (and Marine Corps Reserve judge advocate, about to pin on Major), featured here.

Should the latest church shooter have been able to get guns?

Task & Purpose has a useful run-through by Adam Weinstein of the legal issues surrounding Devin P. Kelley's ability to purchase guns. Bottom line:
The upshot is that in a nation of roughly 320 million people and 300 million firearms, with a longstanding tradition of individual gun rights and a lot of anger, there are more ways for people with malign intent to get guns than there are to stop them.

Wednesday, November 8, 2017

Contempt at the military commissions

Prof. David Glazier
Prof. David Glazier of Loyola Law School in Los Angeles has done excellent work over the years delving into the history of military commissions. Here, on Lawfare, is his timely take on the particular question of contempt in a military commission. His concluding observation:
The Guantanamo commissions confront a number of highly complex legal issues—many of which would be entirely avoidable by simply shifting the trials to federal courts—such as identifying the origin dates and lawful scope of the so-called “war on terror,” establishing the degree to which constitutional and international due process and criminal procedure rules apply to the trials and determining what substantive limitations on subject matter jurisdiction may be mandated by the law of war. Many commentators, myself included, have expressed serious doubts that the commissions are up to the task and predict that final judgments in any of the high profile cases will necessarily be delayed by many more years of litigation and appeals. The unauthorized confinement of an American general resulting from a military commission judge's inability to correctly apply a longstanding U.S. military law rule further undermines the tribunal's' credibility.

Tuesday, November 7, 2017

Standards for violating human rights

Egypt's Constitutional Court has articulated standards for when civilians may be tried by military courts, according to this article in AhramOnline. Excerpt:
Article 204 of Egypt's 2014 constitution stipulates that "Civilians cannot stand trial before military courts except for crimes that represent a direct assault against military facilities, military barracks, or whatever falls under their authority; stipulated military or border zones; its equipment, vehicles, weapons, ammunition, documents, military secrets, public funds or military factories."

Law 136/2014, which was amended in 2016, stipulates that crimes committed against public facilities such as power plants, electricity towers, gas lines, railways, roads and bridges or any other public property fall under the jurisdiction of the military court system until 2021.

The court today set three main conditions for civilians to be referred to military courts according to the Law 136/2014.

First, the crime must be directly committed on a facility secured by the armed forces.

Second, the facility in question must be under the actual and direct protection of the armed forces at the time of the crime.

Third, the violation must come under crimes punishable by the penal code and Law.
Human rights jurisprudence strongly disfavors the use of military courts to try civilians.  

A basic question is raised in Pakistan

How's this for an eye-catching editorial title? "Are military courts needed?" You can find the answer--which is No--here in the Daily Times. Excerpt:
Pakistan’s military courts operate with absolute impunity. It is not uncommon for the authorities to randomly release information just about punishments meted out to individuals without any accompanying details about their arrests, trial and evidence used to convict them. And then, there is no real right to appeal. Pakistan is the only country in South Asia to allow military courts to try civilians.
Have any steps been taken to upgrade Pakistan's civilian justice system? Weaknesses there were the rationale for instituting military courts in the first place. Parliament: anybody home? 

Grievance reforms needed in India

Global Military Justice Reform contributor Wing Cdr (Ret) U C Jha has written here for Daily News & Analysis about the need for reform of the Indian armed forces' grievance system. Excerpt:
A military person who deems himself wronged by any superior/commanding officer may complain to the higher authorities for the redress of his grievances. The Regulations of the three services provide different procedures for the processing of complaints. The complaints by the officers are addressed to the Central Government, while that of the other ranks to the respective service chiefs. The intermediate authorities in the chain of command can interview the complainant, investigate the matter and forward the complaint, along with detailed paragraph-wise comments to the next superior authority. The complainant is not informed about the comments of the intermediate authorities on his grievance application. This amounts to a violation of the principles of natural justice because the comments furnished by the intermediate authorities to higher authorities are essential to the complainant, so as to enable him to know what has been commented against him/her by the said military authority while forwarding the complaint.
His conclusion: "the Government must ensure that the grievance redressal system is updated and remains in tune with the times."

Monday, November 6, 2017

Notification (or not) of court-martial results

The New York Times reports here on the Air Force's apparent failure to report Devin P. Kelley's court-martial conviction, thereby allowing him to purchase firearms. Excerpt:
A day after a gunman massacred parishioners in a small Texas church, the Air Force admitted on Monday that it had failed to enter the man’s domestic violence court-martial into a federal database that could have blocked him from buying the rifle he used to kill 26 people. 
Under federal law, the conviction of the gunman, Devin P. Kelley, for domestic assault on his wife and toddler stepson — he had cracked the child’s skull — should have stopped Mr. Kelley from legally purchasing the military-style rifle and three other guns he acquired in the last four years. 
“The Air Force has launched a review of how the service handled the criminal records of former Airman Devin P. Kelley following his 2012 domestic violence conviction,” the Air Force said in a statement. 
The statement said Heather Wilson, the Air Force secretary, and Gen. David Goldfein, the Air Force chief of staff, had ordered the Air Force inspector general to “conduct a complete review of the Kelley case.” 
The Air Force also said it was looking into whether other convictions had been improperly left unreported to the federal database for firearms background checks.
One assumes the other services will be reviewing their own court-martial reporting practices as well. 

Texas shooter's court-martial

Devin P. Kelley, who yesterday murdered over two dozen churchgoers in Texas, had been convicted in 2012 by a U.S. Air Force general court-martial for assaulting his wife and child. The per curiam decision of the Court of Criminal Appeals can be found here. The Court of Appeals for the Armed Forces denied discretionary review in 2014.

Why is this case being tried in military court?

Uganda is at it again. Police officers, a foreign military retiree and another foreign civilian are to be tried by court-martial, according to this article by Sulaiman Kakaire in The Observer. Excerpt:
Last week, Okoth Ochola, the deputy inspector general of police, surrendered two senior police officers and seven lower-ranking personnel to CMI [Chieftaincy of Military Intelligence]. They were later on charged with kidnapping and being in illegal possession of firearms contrary to the UPDF Act.

Those charged include; the commandant of Police Professional Standards Unit, Senior Commissioner of Police Joel Aguma; Senior Superintendent of Police Nixon Agasirwe, former commander of Police Special Operations; Sgt Abel Tumukunde of the Flying Squad, Assistant Superintendent of Police James Magada from Crime Intelligence; Faisal Katende under the Flying Squad and Amon Kwarisima.

Civilians charged were Rene Rutagungira, a retired soldier in the Rwandese military, and Bahati Mugenga Irunga, a Congolese national.

The accused are alleged to have kidnapped and forcefully repatriated Lt Joel Mutabazi, a former bodyguard of Rwandan president Paul Kagame, who had been granted political asylum in Uganda. Mutabazi and Jackson Kalemera were among several other refugees repatriated back home where they faced threats to their lives.
A constitutional challenge is being prepared.

Part VI of Uganda's Police Act 1994 establishes police disciplinary courts with jurisdiction over  police officials. Under s. 49, their proceedings do not preempt normal criminal prosecution.

Human rights jurisprudence strongly disfavors the trial of civilians by court-martial.

The price of military ju$tice

Some interesting data out of New Zealand, thanks to this article by Kirsty Lawrence in Stuff:
Almost 100 courts martial have been held in the past 17 years, with the cost to taxpayers stretching well past $1 million.

And a disciplinary crackdown at Linton Military Camp in Manawatū is a small, but high-profile part of that.

Figures released under the Official Information Act show the Defence Force has held 99 courts martial across the three sectors – army, navy and air force – since 2000.

The cost of holding these courts martial was $1.7 million, at an average cost of $17,200.
One wonders what the comparable cost data are in the United States and other countries. 

Sunday, November 5, 2017

"Where justice goes to die"

Phillip Carter has written a powerful column for Slate about the latest military commissions wreckage. "A minor derailment of the Guantanamo trials turned into a full-fledged train wreck." Excerpt:
What’s clear after this incident [the I'm-not-giving-you-a-hearing contempt trial of chief defense counsel Brig. Gen. John G. Baker] is that the Guantanamo war courts have gone off the rails and broken down so completely that they cannot be repaired. They now labor under the weight of ethical dilemmas like this, years of delay, and confusion about basic rules that make any effort to move them forward impossible.
It is difficult to see when -- no, whether -- Americans who lost loved ones in the 9/11 attacks will find closure.

From military to civilian court in Turkey

This news account reports on a 2011 soldier-on-soldier homicide case that began in military court and will end in a civilian one "because the country abolished military high courts by amending the constitution after a failed coup attempt." The accused had been sentenced to four and a half years' confinement for involuntary manslaughter, but the Military Court of Cassation upheld an appeal by the victim's family.

Saturday, November 4, 2017

Let my people go

Under the pressure of a potentially adverse habeas corpus decision by U.S. District Judge Royce C. Lamberth,  U.S. Marine Corps Brigadier General John G. Baker, chief defense counsel for the military commissions, has been released from arrest in quarters -- for the time being. Politico has the story here.

Memo from the Chief of Army Staff: send more cases

The Chief of Army Staff of Pakistan has expressed concern that not enough cases are being sent to military courts. No cases have been referred since January. Details here.

Human rights jurisprudence strongly disfavors the trial of civilians by military tribunals.

Editor's question: who is in charge here, the government or the army?

Friday, November 3, 2017

Baker v. Spath (D.D.C.)

Hon. Royce C. Lamberth
Senior Judge (D.D.C.)
A decision on the petition for a writ of habeas corpus in Baker v. Spath is expected to be handed down at 2:00 p.m. today at the U.S. District Court for the District of Columbia.

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Thursday, November 2, 2017

Baker v. Spath

Here is the petitioner's brief in Brigadier General John G. Baker's habeas corpus case, Baker v. Spath. The case has been assigned to Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia. A hearing has been scheduled for 5:00 p.m. today.
Hon. Royce C. Lamberth
Col. Vance Spath, USAF
Brig Gen John G. Baker, USMC