Thursday, December 12, 2019

Bullying and harassment at USCG Academy?

The Connecticut Mirror brings us a report on apparently ongoing problems at the U. S. Coast Guard Academy.

Two congressional committees issued a scathing report Wednesday on bullying and harassment at the Coast Guard Academy that determined officers at the New London facility conducted deficient and incomplete investigations and retaliated against those who made complaints.
The report was released at a joint hearing of the House Homeland Security Committee and the House Government Oversight and Reform Committee that focused on the Coast Guard’s failure to conduct prompt, thorough and impartial investigations into allegations of harassment. The academy was also criticized for failing to take corrective actions, including holding those responsible for bullying or retaliation accountable.

Reassuring words from the Chairman of the Joint Chiefs (but he doesn't have the final say)

Genghis Khan
General Mark A. Milley, chairman of the Joint Chiefs of Staff, spoke to the House Armed Services Committee about President Donald J. Trump's recent intervention in three military justice cases:
"We do maintain, and we will maintain good order and discipline," Milley told lawmakers during a hearing before the House Armed Services Committee on Wednesday. "We will not turn into a gang of raping and burning, pillaging throughout … That is not going to happen because of this or anything else."

Milley, the military's top officer, was responding to questions from Democratic Congressman Seth Moulton of Massachusetts, a Marine Corps veteran who said he received a text message from a Marines sergeant major raising concerns about Mr. Trump's decision to intervene in the military justice cases of three service members last month. Some warned the president's move would undermine the military justice system.

The unidentified sergeant major who texted Moulton called Mr. Trump's efforts "appalling" and said it "encourages folks to start burning villages and pillaging like Genghis Khan."

"I think that the uniform code of military justice and the means by which we maintain good order and discipl[in]e are a critical element in order to maintain that capability and some level of humanity in combat zones," Milley said, adding that the president is "part of the process" and has the legal authorities to intervene.
Who's right? The Chairman or the Sergeant Major? What assurance is there that this history will not repeat itself?

For a defense of President Trump's actions, consider this piece from The Hill, which concludes:
Like Presidents [Richard M.] Nixon and [Barack] Obama before him, President Trump acted to balance what he felt was unfair action by the military bureaucracy. The president must be the final arbiter of the military justice system and be allowed to issue clemency — without question — when he feels it is the right thing to do.
"Without question"?

Monday, December 9, 2019

Classification and declassification

J. William Leonard has written this very informative piece for Just Security on Attorney General William Barr's unusual grant of declassification authority. Consider this paragraph:
In one regard, subjecting classification decisions made by executive branch agencies to independent review often demonstrates how agencies have kept information secret for reasons other than safeguarding the national security. For example, in 1995 President Bill Clinton established (and since then every successor president has continued) the Interagency Security Classification Appeals Panel (ISCAP), which is delegated presidential authority to decide on appeals by persons who have filed challenges to agency classification decisions. Since the ISCAP’s initial decision in 1996 through the end of FY17 (the most recent year for which data is available), agency decisions to retain the classified status of requested information have been overridden by the panel, either in whole or in part, 75% of the time. Only once has an ISCAP decision to declassify specific information been appealed directly to the president by an agency head. In that case, President [Barack] Obama directed the declassification and release of portions of a President’s Daily Brief over the objections of the CIA.

Sunday, December 8, 2019

Pakistan Airports Security Force: to court-martial or not to court-martial?

On December 3, 2019, The Express Tribune of Pakistan reported that members of that country's Airports Security Force  (ASF) would be subject to trial by court-martial for misconduct at Islamabad International Airport. While there seems little doubt that the reported conduct (if proved) is concerning, this raises some interesting questions about whether court-martial is the appropriate forum.

The ASF was established by the Airports Security Force Act 1975. While the ASF was placed under the authority of Pakistan's Ministry of Defence following the hijacking of a Pakistani civil aircraft at Islamabad in March 1981, it seems clear that it is a civilian law enforcement agency - not a military force.

So if that is so, how is it that members of the ASF are subject to trial by court-martial? It seems that the answer lies in section 5 of the Pakistan Army Act 1952, which provides that:

"The [Federal Government] may, by notification, apply all or any provisions of this Act to any force raised and maintained in Pakistan under the authority of the [Federal Government [or a Provincial Government]]." (Notes omitted.)

While this writer has not been able to locate the notification in respect of the ASF, there are indications in the publicly available material that such a notification has been issued.

So what we have here is (another) civilian agency which has been made subject to military law...

Principle 6 of the Yale Draft of the UN Draft Principles Governing the Administration of Justice Through Military Tribunals states that:

"Military courts have no jurisdiction to try civilians except where there are very exceptional circumstances and compelling reasons based on a clear and foreseeable legal basis, made as a matter of record, justifying such a military trial. Those circumstances only exist, where:
(a) Such a trial is explicitly permitted or required by international humanitarian law;
(b) The civilian is serving with or accompanying a force deployed outside the territory of the sending State and there is no appropriate civilian court available; or
(c) The civilian who is no longer subject to military law is to be tried in respect of an offence allegedly committed while he or she was serving as a uniformed member of the armed forces or he or she was a civilian subject to military law under paragraph (b)."

Without doubt, the application of the Pakistan Army Act 1952 to members of the ASF is not consistent with Principle 6. While Principle 6 is not binding at international law, it does represent  an international benchmark agreed to by experts in military and human rights law from many jurisdictions. The Government of Pakistan would do well to consider whether it is really necessary to extend military law to these civilian law enforcement personnel, or whether it would not be more appropriate to adopt and enforce a civilian code of conduct along the lines of Chapter XII of Pakistan's Police Ordinance 2002.

Friday, December 6, 2019

Not quite right

The following paragraph appears in this essay from the Daily Signal:
Other presidents probably would have waited to see what the Trident Review Board did before acting. Trident Review Boards are composed of fellow SEALs, who sit in judgment of fellow SEALs, and decide whether or not to allow their shipmates to keep their Tridents, given the alleged misconduct.
Au contraire. These boards merely make a recommendation. The recommendation goes to the convening authority (Commander Naval Special Warfare Command). That flag officer in turn makes a recommendation to the Navy Military Personnel Command in Millington, TN. The final decision rests there, barring a veto by higher uniformed or civilian authority. Links to the governing rules can be found here.

The Intercept has a story with this paragraph:
Although Gallagher was the only member of SEAL Team 7 to be tried and convicted for posing with the dead ISIS fighter, several other members of his Alpha platoon also posed with the body. Green determined that all of them, including Gallagher, would go before a review board of senior enlisted SEALs in a Navy justice process similar to a civil trial, and be judged as to whether they deserved to keep their Tridents. If the board deemed their conduct unworthy of the SEAL identity, all would be stripped of their Tridents and removed from Naval Special Warfare. The measure would allow Green to send a message that Gallagher’s conduct was beneath the Navy SEALs.
Again, the implication that the buck stops with the board is incorrect. Also, the suggestion that the board process is similar to a civil trial is a reach, as the COMNAVSPECWARINST reveals.

War crimes and pardons

Pardons in the context of war crimes continue to make the news. War on the Rocks offers this essay by Andrew M. Bell and Thomas Gift. The authors conclude:
We understand the deep opposition to [Pres. Donald J.] Trump’s pardons — and we share it. We don’t think his actions completely decimate the law of war or imply that the vast majority of U.S. military personnel won’t continue to advance its principles. Yet they undoubtedly raise serious concerns about ensuring compliance with the laws of war and about maintaining the distinctive culture of the U.S. military. Ultimately, pardons for war crimes (and other similar dismissals of the law of war) will harm the U.S. military’s potential to maintain the highest values of professionalism and honor — values that have long been its hallmarks.

Thursday, December 5, 2019

By the numbers

Business is booming here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza. It's been a while since we ran the numbers, so here's a status report:

Hits, 735,605
Posts, 5141
Comments, 730
Jurisdictions, holding steady at 185 (c'mon, Nauru)
Contributors, 21

Thanks, as always, to everyone. Tell a friend about Global Military Justice Reform. If you are a contributor, write a post; if not, post a comment (real names only, please).

Swiss Military Court of Cassation

The Swiss Judicial Commission has proposed to the Federal Assembly that all members of the Military Court of Cassation be re-elected for the 2020-23. The judges, with their party affiliations, are:
Colonel SMG Paul Tschümperlin (PPD), president
Chief Sergeant André Jomini (PLR), judge
Chief Sergeant Michael Beusch (PS), judge
Colonel Laurent Schneuwly (PPD), judge
Colonel Stefan Wehrenberg (UDC), judge
Colonel SMG Nicolas von Werdt (UDC), deputy judge
Colonel Beat Hirt (PLR), deputy judge
Chief Mattia Pontarolo (PPD), deputy judge, pinned
Soldier Bleicker Olivier (without party), deputy judge
The Federal Assembly is scheduled to act on December 18. 2019.

Wednesday, December 4, 2019

War crimes and pardons

LTC Dan Maurer
Lieutenant Colonel Dan Maurer of the Army has written a brilliant and timely piece for Lawfare with the title "Should There Be a War Crime Pardon Exception?" Excerpt:
The following set of additional factors ought to guide presidents in exercising their Article II power to pardon when the beneficiary of that clemency is a service member accused or convicted under the UCMJ for crimes proscribed by the law of war:
  • If the service member has been convicted by court-martial and the appellate process through the Court of Appeals for the Armed Forces (CAAF) is complete (any remedy for the soldier has been granted or denied by the judicial process), do not pardon.
  • If the service member has been convicted, but the appellate process is not yet complete, presume no pardon. Grant only if an objective and prudent person, knowing the relevant facts, would likely not think that the United States tolerates conduct that constitutes a war crime under international humanitarian law; and the rationale for clemency outweighs the recommendations of the relevant civilian and military chain-of-command; and if an objective and prudent military commander would agree that an enemy belligerent, under similar circumstances, would deserve a pardon from his or her own government for conduct committed against a U.S. civilian or service member.
  • If the service member has been charged, but court-martial adjudication at trial is not yet complete, presume no pardon. Grant only if doing so satisfies any of the three conditions above.
  • If not yet charged, do not grant a pardon, and do not engage in or seek to influence the UCMJ disposition decision. Doing so raises the specter of undue influence, if not “unlawful command influence” that unjustifiably taints the public’s perception of the system’s fairness and due process.

Tuesday, December 3, 2019

Meanwhile, in Madrid

The Fifth Chamber of the Spanish Supreme Court, by a vote of 3-2, has upheld the punishment imposed on a member of the Guardia Civil for having broken in the door to the office of the Special Corruption Prosecutor. The defendant had been assigned to duty there but found the door locked, so he broke it open. A video camera recorded the incident and the defendant was identified from the tape. The tape, however, was destroyed. Held, the penalty stands because personnel who viewed the tape before it was destroyed were able to identify the defendant from the back. Not good enough, according to the dissenters, one of whom was the court's president. El Confidencial Digital's detailed account of the matter can be found here.

A union victory in Salerno

A court in Salerno has dismissed charges against the Unione Nazionale Arma Carabinieri (UNAC), a labor union representing Italy's carabinieri. It appears from this article from the Gazzetta di Salerno that the union had been under charges for accusing senior officials of corruption. The court entered an acquittal on grounds of lack of evidence. The union's statement on the decision can be found here (in Italian).

Monday, December 2, 2019

Gen. Yamashita's case and current developments

Gen. Tomoyuki Yamashita
This piece by Adam Serwer for The Atlantic is worth study. A thought-provoking quotation from the famous and perhaps prescient dissent in Yamashita appears at the end.

Yale Draft Principles for Military Summary Proceedings

A workshop conducted last month at Yale Law School has produced a set of draft principles for military summary proceedings. A copy of the Yale Draft Principles can be found here.

Comments are invited.

Sunday, December 1, 2019

Important decision of Supreme Court of India qua jurisdiction of the Armed Forces Tribunal

The Supreme Court of India has rendered an important decision on the jurisdiction of the Armed Forces Tribunal (AFT).

The AFT had quashed the convening order for a General Court Martial issued in respect of a Brigadier on the grounds that there was not enough material to establish his culpability so as to convene a Court Martial against him.

The Union of India had challenged the verdict of the AFT on the pretext that the jurisdiction of the AFT under Section 15 of the Armed Forces Tribunal Act, 2007, came into play only after the completion of a Court Martial since the same deals with “Appeals” against verdicts of Courts Martial. The Union had also averred that the AFT had no reason to set aside the convening order even on merits of the case.

The Supreme Court of India has however held that while it is correct that Section 15 only deals with appeals arising out of Courts Martial, Section 14 dealt with other ‘Service Matters’ which were administrative in nature (and not judicial) and hence it was well within the powers of the AFT to exercise jurisdiction under Section 14 if not Section 15. The Supreme Court has upheld the decision to set aside the convening order on merits as well.

A detailed note on the matter (and the decision) available at Live Law.

Bouterse sentenced by Suriname military court

President Desi Bouterse
Suriname's President Desiré Delano (Desi) Bouterse has been sentenced to 20 years in prison over the execution of 15 military and political opponents in December 1982. 
This ruling by Suriname’s all-female Military Court, headed by Judge Cynthia Valstein–Montnor, ends this first phase of the trial, which started in 2007. Bouterse’s lawyer, Irwin Kanhai, has already announced he will appeal the decision.
The background of this trial is this. Bouterse was one of the leaders of the February 25, 1980, ‘Sergeants-coup’ which ended the government of President Henck Arron, the first leader of Surinam, after its independence from the Netherlands in 1975. Previous to his military career in Suriname, Bouterse had been a NCO – sports-instructor in the Dutch Army.
Since the new leaders did not manage to revitalize the struggling economy, dissatisfaction grew, also within the Surinam Armed Forces. On December 7, 1982, Bouterse ordered the arrest of 16 prominent individuals, amongst whom two military officers, scientists, businessmen, journalists and a union leader. (One of the two officers was lieutenant Soerindre Rambocus, who graduated in 1978 from the Netherlands’ Royal Military Academy, together with the author of this blog.) The group was transported to Fort Zeelandia in Paramaribo, Surinam’s capital. As witnesses have testified, the death sentences were read out that night by Bouterse, after which many individuals were tortured and 15 were subsequently shot on the ramparts of Fort Zeelandia. Yesterday’s judgment speaks of 93 bullet holes in the wall where the executions took place. One person, union leader Frank Derby, was sent home. He recorded a statement before his death in 2001, which was used as evidence in yesterday’s judgment. On December 10, 1982, Bouterse proclaimed on the national television that the group had been shot, while trying to flee the Fort. In 2007 he apologized for the killings, but maintained that he had not been present in person. 
Bouterse remained the military dictator of Suriname from 1980 until 1988. After that period parliamentary democracy was reintroduced and Bouterse became the leader of the National Democratic Party. He was elected President of the Republic in 2010 and re-elected in 2015. In 2012 the Surinam Parliament adapted an ‘Amnesty Law’, for those involved in the killings. The Military Court judged in 2016 that the Amnesty Law interfered with the constitutional guarantee of a ‘fair trial’ and could therefore not be applied.
In 1999, Bouterse was convicted in absentia for trafficking 474 kilograms of cocaine, by a court in the Netherlands. He has denied these allegations. Bouterse is placed on an Interpol watch list, but currently enjoys diplomatic immunity. His son Dino was sentenced to 16 years in a US jail in 2015 for offering a home base to Hezbollah and trafficking drugs. (see: https://www.reuters.com/article/us-suriname-hezbollah-idUSKBN0M61UN20150310)

As stated above, Bouterse’s lawyer has announced he will appeal the judgment. President Bouterse (74) was not in Suriname when the judgment was read out, since he was currently on a State Visit to China, where he was received by President Xi Jinping. His spokesperson denounced the ruling as a ‘political trial, initiated by the opposition’. It is to be expected that the appeal will also take a long time. 

Interestingly, in his position as President of the Republic the Surinamese Constitution grants Bouterse the option to pardon himself. But perhaps, just like in Argentina in 2004, a Suriname court could annul such a pardon. (See: http://news.bbc.co.uk/2/hi/americas/3551895.stmSee also (in Dutch) the interesting report by G. Spong, advisor to the Military Court: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=13&ved=2ahUKEwiS6Y_-rZLmAhUQalAKHQbGByI4ChAWMAJ6BAgEEAc&url=http%3A%2F%2Fwww.starnieuws.com%2Findex.php%2Fbeyond_files%2Fget_file%2F7ca464179eba5f312baf09b016d8c1e4.pdf&usg=AOvVaw2-hUo-59lktwhOsTpIkDl-

Off with his stripes

On 22 December 1894, after several hours of deliberation, the verdict was reached. Seven judges unanimously convicted Alfred Dreyfus of collusion with a foreign power, to the maximum penalty under section 76 of the Criminal Code: permanent exile in a walled fortification (prison), the cancellation of his army rank and military degradation. Dreyfus was not sentenced to death, as it had been abolished for political crimes since 1848.
Conviction,_degradation,_and_deportation
Dreyfus was convicted of treason for his alleged crime of passing military secrets to the Germans. The Jewish artillery captain, convicted on flimsy evidence in a highly irregular trial, began his life sentence on the notorious Devil’s Island Prison in French Guyana four months later.
www.history.com

J'Accuse has become a not unknown epithet similar to the Queen's "off with his head" shout out before Jack's trial even began.*
In 1898, Major Hubert Henry, discoverer of the original letter attributed to Dreyfus, admitted that he had forged much of the evidence against Dreyfus and then Henry committed suicide. Soon afterward, Esterhazy fled the country. The military was forced to order a new court-martial for Dreyfus. In 1899, he was found guilty in another show trial and sentenced to 10 years in prison. However, a new French administration pardoned him, and in 1906 the supreme court of appeals overturned his conviction.
*Readers of Lewis Carroll, and in particular, Alice's Adventures in Wonderland or Alice Through the Looking Glass may remember the "trial" of Jack for stealing the tarts.
On 12 July 1906, Dreyfus was officially exonerated by a military commission. The day after his exoneration, he was readmitted into the army with a promotion to the rank of major (Chef d'Escadron). A week later, he was made Knight of the Legion of Honour,[7] and subsequently assigned to command an artillery unit at Vincennes. On 15 October 1906, he was placed in command of another artillery unit at Saint-Denis.
Dreyfus served in WW-I attaining the rank of lieutenant colonel.

Throughout all of his ordeal he remained loyal to France.

Researchers can visit the Musée d'art et d'histoire du judaïsme (Museum of Jewish art and history), which includes personal letters, photographs of the trial, legal documents, writings by Dreyfus during his time in prison, personal family photographs, and his officer stripes that were ripped out as a symbol of treason. The museum has an online platform dedicated to the Dreyfus Affair.

Here is a link to France: Military Justice System (2013).
Over the years, the French Military Justice System has progressively led to a system in which military justice is combined with that of ordinary justice. The government has sought to treat military personnel in the same manner as ordinary civilians with regard to offenses committed while on duty. The administration of justice does, however, differ depending on whether the service member committed an offense on French territory or on foreign soil. Another major distinction that remains between the military system and the civilian system is that of the competent jurisdiction to handle the administration of justice during times of peace and during times of war. During times of peace, the jurisdiction of all military courts is abolished. During times of war, military courts have primary jurisdiction to deal with offenses. 

Saturday, November 30, 2019

Trident Review Boards

Controversy continues over whether Chief Petty Officer Edward R. Gallagher and other Navy SEALs should have been permitted to retain their Trident pins. Students of military justice may find it helpful to have a summary of the governing regulations and procedures.

Commander, Naval Special Warfare Command is required by OPNAVINST 1414.9B ¶ 5b to "establish and maintain an instruction that delineates strict prerequisites and formal procedures for qualification, re-qualification, disqualification, and failure to qualify within" the Sea, Air, and Land (SEAL) program. This has been accomplished by issuance of COMNAVSPECWARCOMINST 1221.1A.

According to Navy Military Personnel Manual 1220-085 ¶ 4a, "[m]embers whose Navy Enlisted Classification(s) (NEC(s)) is/are removed for disciplinary and/or administrative action per MILPERSMAN 1220-300 are no longer authorized to wear the insignia."  "An enlisted member previously qualified shall be disqualified by an appropriate qualifying officer if that member fails to continue to meet the requirements set forth in MILPERSMAN 1220-300" (¶ 5).

Thursday, November 28, 2019

A Note on presidential power over military justice

The President of the United States has many powers with respect to military justice. Some are generic, others are case-specific. It may be worthwhile to catalog them. If this Note omits anything, please add a comment. (Use your full name; anonymous and pseudonymous posts are not permitted on this blog.)

Generic powers:
  • Sign or veto Acts of Congress that amend the Uniform Code of Military Justice or other federal laws that may affect courts-martial. U.S. Const. art. I, § 7
  • Prescribe and amend maximum punishments. Arts. 18(a), 19(a), 20(a), 56, UCMJ
  • Prescribe and amend rules for impaneling courts-martial, waiving preliminary hearings, prescribing what disposition-related information submitted after a preliminary hearing must be analyzed; and pretrial, trial, and post-trial rules of procedure and evidence. Arts. 29(b)(1), 32(a)(1)(B), 32(c)(3), 36(a), UCMJ
  • Prescribe regulations for non-judicial punishment. Art. 15(a), UCMJ
  • Direct the Secretary of Defense to issue non-binding guidance for the disposition of charges. Art. 33, UCMJ; see MCM App. 2.1
  • Withhold the authority of a subordinate to dispose of charges in types of cases or generally. R.C.M. 401(a)
  • Empower commanding officers not otherwise authorized to convene courts-martial to be convening authorities. Art. 22(a)(9), UCMJ
  • Appoint and remove judges of the U.S. Court of Appeals for the Armed Forces. Art. 142(b)-(c), UCMJ
  • Appoint the Judge Advocates General. E.g., 10 U.S.C. § 7037(a) (Army TJAG)
Case-specific powers:
  • Grant pardons, before or after conviction, and lesser forms of clemency. U.S. Const. art. II, § 2; see also art. 57(a)(3), UCMJ
  • Approve death sentences adjudged by general courts-martial. Art. 57(a)(3), UCMJ; R.C.M. 1207
  • Convene courts-martial. Arts. 22(a)(1), 23(a)(1), 24(a)(1), UCMJ; R.C.M. 504(b)
  • Dismiss commissioned officers. Art. 4, UCMJ; R.C.M. 107
  • Grant immunity. R.C.M. 704(c)
  • Withhold the authority of a subordinate to dispose of charges in individual cases. R.C.M. 401(a)

More on Tridentgate

Rachel VanLandingham (along with Geoff Corn) follows her CNN interview with a piece in LawFare.

This chaos in military discipline and personnel actions is the direct result of Trump’s reckless dismissal of the judgments of his military commanders and his misunderstanding of the profession of arms. The president has legal authority to intervene in these matters, but his misguided actions risk not only undermining the authority of his commanders but also eroding the honor and integrity of the U.S. armed forces. The Spencer/Esper soap opera may be at the forefront of the news cycle, but the real story is the corruption of military good order and discipline.

Happy Thanksgiving


Tuesday, November 26, 2019

Tridentgate

Prof. Rachel E. VanLandingham
Southwestern School of Law
Global Military Justice Reform contributor Professor and Lt. Col. (Ret) Rachel E. VanLandingham sheds light on the Trident controversy in this CNN interview.

Sunday, November 24, 2019

From the newsroom

The subject of American military justice is front and center right now. Global Military Justice Reform's area of interest is broader, of course, and although our coverage of developments is necessarily uneven due to language constraints, we have arguably spent less time and space on developments in the United States than we might have. We would like to contribute more to public understanding of these domestic matters (after all, our glass-enclosed newsroom high above Global Military Justice Reform Plaza is located in the U.S., even though the Editor happens to be writing this post a knife-throw from the Royal Courts of Justice and the Inns of Court in London). Posts and comments concerning domestic U.S. matters are emphatically welcomed. If you would like to become a contributor, please contact the Editor. If you simply want to comment on others' posts, have at it -- but use your real name. (Otherwise, your comment will not be posted to the site.)

The rule against anonymous and pseudonymous posts is central to this blog's editorial policy. We will maintain it, since such a rule and a related commitment to the meaningful curation of comments are essential to the responsible exchange of professional views.

Saturday, November 23, 2019

Limits of presidential powers

Pres. Donald J. Trump
The New York Times has this piece about the limits of presidential powers over the armed forces. "He could, hypothetically, also order all the Air Force’s jets painted pink, appoint his chauffeur to an elite commando force or require all officers to wear long, red ties on Fridays."

Thursday, November 21, 2019

About that trident . . .

Is the Gallagher case over yet? Here's the latest. Excerpt:
A SEAL stationed at Naval Base Coronado, who asked not to be named because he was not authorized to speak publicly, said that both Mr. Trump and Admiral Green had strong support at the base, and that the SEALs there were dismayed to see the two leaders at odds.

He said that most of the SEALs he had spoken with about the matter were discouraged that war fighters who aspired to be silent professionals had been drawn into a political dispute. He noted that part of the SEAL ethos is the statement, “I do not advertise the nature of my work, nor seek recognition for my actions.”

Wednesday, November 20, 2019

Results of trial in Singapore

A tragic accident took the life of Singapore Armed Forces soldier Aloysius Pang. Useful details can be found here in a report from Straits Times.

Has the White House Counsel prepared a memo on this UCMJ provision?

10 U.S.C § 804. Art. 4. Dismissed officer’s right to trial by court-martial
(a) If any commissioned officer, dismissed by order of the President, makes a written application for trial by court-martial, setting forth, under oath, that he has been wrongfully dismissed, the President, as soon as practicable, shall convene a general court-martial to try that officer on the charges on which he was dismissed. A court-martial so convened has jurisdiction to try the dismissed officer on those charges, and he shall be considered to have waived the right to plead any statute of limitations applicable to any offense with which he is charged. The court-martial may, as part of its sentence, adjudge the affirmance of the dismissal, but if the court-martial acquits the accused or if the sentence adjudged, as finally approved or affirmed, does not include dismissal or death, the Secretary concerned shall substitute for the dismissal ordered by the President a form of discharge authorized for administrative issue. 
(b) If the President fails to convene a general court-martial within six months from the presentation of an application for trial under this article, the Secretary concerned shall substitute for the dismissal ordered by the President a form of discharge authorized for administrative issue. 
(c) If a discharge is substituted for a dismissal under this article, the President alone may reappoint the officer to such commissioned grade and with such rank as, in the opinion of the President, that former officer would have attained had he not been dismissed. The reappointment of such a former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only insofar as the President may direct. All time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances. 
(d) If an officer is discharged from any armed force by administrative action or is dropped from the rolls by order of the President, he has no right to trial under this article.

This time in history

History Channel reminds us that today marks the day when
Twenty-four high-ranking Nazis go on trial in Nuremberg, Germany, for atrocities committed during World War II.
The Nuremberg Trials were conducted by an international tribunal made up of representatives from the United States, the Soviet Union, France and Great Britain. It was the first trial of its kind in history, and the defendants faced charges ranging from crimes against peace, to crimes of war, to crimes against humanity. Lord Justice Geoffrey Lawrence, the British member, presided over the proceedings, which lasted 10 months and consisted of 216 court sessions.

Trump, clemency and human rights

The Office of the UN High Commissioner for Human Rights has issued the following statement:
We are very concerned by the recent US presidential pardons for three US service members accused of war crimes. These three cases involve serious violations of international humanitarian law (IHL), both proven and alleged, including the shooting of a group of civilians and execution of a captured member of an armed group.

International Humanitarian Law establishes the obligation to investigate violations and prosecute war crimes. By investigating these allegations, and initiating and completing criminal proceedings, the US military justice system has been complying with these obligations under international law.

The full pardons in two cases, and the order directing promotion in the third case, run against the letter and the spirit of international law which requires accountability for such violations. The pardon terminating pending criminal proceedings in the case of Major Mathew Golsteyn is particularly troubling, as it cuts short the regular judicial process.

Victims of gross human rights violations and serious violations of international humanitarian law have the right to a remedy. This right includes equal and effective access to justice, the right to the truth, and to see perpetrators serve punishments proportionate to the seriousness of their conduct, rather than see them absolved of responsibility.

While pardons exist in international law, and can properly address issues of injustice or unfairness, in the present cases no circumstances have been advanced to suggest anything other than simply voiding the otherwise proper process of law in the cases. These pardons send a disturbing signal to military forces all around the world.

Tuesday, November 19, 2019

LTC Vindman's Case

Army judge advocate Lieutenant Colonel Dan Maurer, a West Point faculty member writing in his personal capacity, has a fine essay on Lawfare concerning the civil-military relations and military justice aspects of LTC Alexander S. Vindman's compliance with a congressional subpoena in the impeachment investigation. Excerpt:
When the conduct of an officer is entangled with a long-standing quarrel between two political branches flexing their respective constitutional authorities, the question of what applied justice looks like is determined both by how Congress has defined a generally applicable criminal sanction and what factors the president has directed his military leaders to consider in any case. The “even-handed administration of the law,” as the president’s own court-martial prosecution guidance says, should consider the “nature, seriousness, and circumstances of the offense and the accused’s culpability.” The dynamics of the civil-military relationship, set against the backdrop of a true separation of powers crisis, characterize the nature and seriousness of the incident and provide the relevant circumstances to frame Vindman’s conduct—along with any legal response.
Honk if you would represent LTC Vindman pro bono if anyone got on his case. 

Monday, November 18, 2019

For your military law bookshelf

Wing Commander (Ret) Dr U C Jha has a new book out: The Evolution of Military Law in India, Including the Mutiny Acts and Articles of War. Details here.

Congratulations to Dr Jha!

Pardons and command responsibility

U.S. Disciplinary Barracks
Ft. Leavenworth, Kansas
Fred Kaplan writes on President Donald J. Trump's recent military justice actions here on Slate. Can a pardon, lawful under domestic law, nonetheless implicate command responsibility?

Mr. Trump's pardons in the spotlight

The New York Times's Dave Philipps writes here about recent actions by President Donald J. Trump in military justice cases. "[M]any in the military, especially in military legal circles, are not celebrating. Mr. Trump’s reprieves, issued against the advice of top defense officials, were seen as a sign of disregard not only for the decisions of military juries, but for the judicial process itself."

From this piece by Graeme Wood in The Atlantic:
"Deregulation is much stupider in war than it is in those other fields. If you deregulate polluters, you may end up poisoning the environment—but at least the environment is inanimate, and does not arm itself reciprocally, to match the violence you freed yourself to commit against it. Battlefield enemies are different. ISIS is already willing to commit atrocities against Americans, but now more scrupulous rivals of the United States can reasonably infer that if they fight us according to the laws of armed conflict, they are suckers. One reason more than 80 countries allied to fight ISIS is that they flagrantly ignored these laws. Now we do too."

BBC Reports: 'International Criminal Court may investigate UK war crimes cover-up'

Image result for British Army iraqThe BBC and the Sunday Times last week alleged that the British Government had covered up the killing of civillians in Iraq and Afghanistan after interviewing 11 detectives involved with the Iraq Historic Allegations Team (IHAT) and Operation Northmoor (a similar investigation into British conduct in Afghanistan). The detectives claimed to have found credible evidence of war crimes although the Service Prosecuting Authority decided not to prosecute. The 'failure to investigate' may now lead the International Criminal Court to open its own enquiry into the conduct of the British Army. Full details can be found here. 

The issue of war crimes investigations is particularly sensitive in the UK following the Al-Sweady inquiry and the striking off of controversial lawyer Phil Shiner who pursued a vast number of baseless claims agains the Ministry of Defence. Unquestionably this will be one to watch on both the domestic and international stage.

Service personnel must have the same safeguards as civilians

Image result for royal courts of justice
Royal Courts of Justice, London
The Court Martial Appeal Court (CMAC) has recently ruled on whether there was a power to dismiss charges in the Court Martial prior to arraignment. Unlike in the Crown Court, there is no explicit statutory power to dismiss charges in the Service Justice System. Two non-commissioned officers of the Royal Air Force had applied to dismiss the charges against them, arguing that the Armed Forces (Court Martial) Rules 2009 (“the Rules”) gave a judge advocate the requisite powers. The Crown contended that no such power existed, and the matter came before HHJ Jeff Blackett, the Judge Advocate General, for hearing.

The Defendants argued:
  • That s.163 of the Armed Forces Act 2006 (“AFA 2006”) empowered the Secretary of State for Defence to import the relevant provisions of the Crime and Disorder Act 1998 by the making of rules.
  • By making Rule 26 of the Rules, the Secretary of State had delegated the power to import the provisions of the Act to a judge advocate.
  • In the alternative, a judge advocate could use their powers under Rule 25 to stop proceedings which would in the Crown Court be dismissed under the provisions of the Act.
  • There should be a power to dismiss in the Court Martial because service personnel should be treated no differently to a defendant in the Crown Court unless there was a good service reason to do so, and there were no such service reasons.
The Judge Advocate General ruled that neither Rule 25 nor Rule 26 applied and there was no power to import a power to dismiss into the Court Martial. The Defendants were not permitted to apply to have the charges against them dismissed.

The Defendants appealed the ruling to CMAC where the appeal was heard by Simon LJ, William Davis and Jefford JJ. Unlike the Crown Court, defendants in the Court Martial may appeal preliminary rulings. Prior to the hearing the Crown conceded that s.163 AFA 2006 empowered the Secretary of State to import a power to dismiss by the making of rules.

The Defendants renewed their arguments regarding Rule 26 and the need to treat service personnel no differently to a defendant in the Crown Court unless there was a good service reason to do so. The Defendants also expanded on a submission made to the Judge Advocate General that prior to AFA 2006 there had been a power to dismiss charges held by the convening officer, and absent clear parliamentary language it was wrong to assume the protection had been extinguished. AFA 2006 was silent on that point.

Simon LJ gave the judgment allowing the appeal:
‘Differences in the processes between the Court Martial on the one hand and the magistrates’ court and the Crown Court on the other, notably that the former did not involve the summary sending of a case, were such that rule 26(a) did not apply, but, in the absence of any Service reason for depriving a defendant of his right to ask for dismissal of a case, the saving represented by rule 26(b) applied as the interests of justice required the judge advocate to apply a comparable process to that in the Crown Court. That right had existed prior to the coming into force of the Armed Forces Act 2006 and no reason could be discerned for concluding that the right had been removed by that Act.’
Commentary

It is perhaps surprising that the AFA 2006 was in force for a decade before this issue was successfully challenged. What is more surprising is the parliamentary oversight that led to AFA 2006 not explicitly addressing this issue. Before the AFA 2006 the convening officer (a part of the chain of command within a defendant’s particular service) had the power to dismiss charges against a defendant. In exercising this power, the convening officer was not required to apply the test in Galbraith, rather it was a command decision.

Undoubtably the role of the convening officer needed to be abolished as its continued existence fatally compromised prosecutorial independence and the independence of the Service Justice System as a whole. However, AFA 2006 transferred many of the functions of the convening officer to the Director of Service Prosecutions and the Judge Advocate General where they could be exercised independently. Clearly the power to dismiss could have been transferred to the Judge Advocate General. Given the silence of the AFA 2006 the only conclusion to be drawn is that this was an error of drafting within the act, which had far reaching consequences.

The power to dismiss is a fundamental protection for a defendant. It prevents weak cases from entering the system and putting the defendant in peril of wrongful conviction. The power to dismiss also protects the Service Justice System and HM Forces as a whole. The Service Justice System is protected by having weak cases weeded out early before they occupy considerable periods of court time and associated resources. This prevents delay in other cases, delay which can reduce the quality of evidence. Delay in resolving cases has a wider impact on the Armed Forces as delay undermines the morale of individuals and units, distracts service personnel from their duties and impact on operation effectiveness. By allowing Defendants to apply to dismiss charges CMAC has ensured that defendants who have chosen to serve Queen and Country are not disadvantaged. Additionally, the efficiency of the Service Justice System has improved with knock on benefits to all of HM Forces.

The judgment was reported as R v H & J [2019] EWCA Crim 1863

This article was first posted at 5pumpcourt.com

Saturday, November 16, 2019

Give it a break?

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

From this comment by "MAGA" on another blog

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

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

Friday, November 15, 2019

A busy day for the commander in chief

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

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

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

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

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

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

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

Thursday, November 14, 2019

Pakistan to provide Jadhav a right to civilian court review

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

Tuesday, November 12, 2019

Incomplete reform in Spain

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

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


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


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

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

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

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

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

New military courts building inaugurated in Bogotá

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

Friday, November 8, 2019

Cortright v. Resor

The New York Times "At War" blog (to get it, subscribe here) has a fascinating post by David Cortright (as in Cortright v. Resor, 447 F.2d 245 (2d Cir. 1971) (2-1 decision)).

Brookings reports on Tunisia's failure to implement reforms

The Brookings Institution has published this smart report by Hamza Mighri and Sharon Grewal on Tunisia's failure to end its use of military courts to try civilians. Excerpt:
In the last five years, Tunisia’s three military courts — in Tunis, Sfax, and Kef — have tried a number of civilians. In the most high profile case, Yassine Ayari, a blogger and current member of parliament, was sentenced in absentia in 2014 to three years in prison for publishing comments on Facebook that “defamed” the military command and “undermined the army’s morale.” At least ten other bloggers and social media activists have been investigated on similar defamation charges by both civilian and military courts.

Beyond defamation, military courts have also been used to target political opponents. In May 2017, Prime Minister Youssef Chahed asked a military court to try prominent Tunisian businessman Chafik Jarraya and seven other personalities, ostensibly for corruption and treason, but likely because they had been funding rivals within the party Chahed belonged to at the time, Nidaa Tounes. In November 2018, Slim Riahi, then-secretary-general of Nidaa Tounes, filed a case in a military court against Chahed accusing him of plotting a coup (the case was soon dismissed). Finally, the late President Beji Caid Essebsi in December 2018 asked the judiciary to investigate his primary political rival, the Ennahda party, on accusations of harboring a secret military apparatus.
Human rights norms strongly disfavor the trial of civilians by military courts.