Wednesday, January 27, 2021

The Gillibrand bill in a new political environment

Jennifer Steinhauer writes in The New York Times:
After years of failure to curb the scourge of sexual assault in the military, Lloyd J. Austin III, the new secretary of defense, is open to considering significant revisions to how those crimes are prosecuted, a potential sea change that generations of commanders have resisted.
Overhauling the way the military handles sexual assault cases — by taking them outside the military chain of command and assigning them to military prosecutors with no connection to the accused — would need approval by Congress, where some legislators have long pushed for such a system.
President [Joseph R.] Biden has been a vocal proponent of these changes, even as general after general has gone to Capitol Hill to argue against them over the past decade. “I had a real run-in with one of the members of the Joint Chiefs in the cabinet room on the issue,” Mr. Biden said last year at a fund-raiser.

Tuesday, January 26, 2021

Town Hall 12: Is pardoning a war crime a war crime?

Global Military Justice Town Hall 12: Is Pardoning a War Crime a War Crime? When: Mon Feb 1, 2021 9am – 10:30am Eastern Time - New York Where:
Our guest speaker will be Prof. Stewart Ford (UIC John Marshall Law School). His American Univ. Int'l L. Rev. article can be found here: Bring a friend!
Meeting ID: 832 4510 6870 Passcode: 251326
One tap mobile +13126266799,,83245106870#,,,,*251326# US (Chicago) +16468769923,,83245106870#,,,,*251326# US (New York) Dial by your location +1 312 626 6799 US (Chicago) +1 646 876 9923 US (New York) +1 301 715 8592 US (Washington DC) +1 408 638 0968 US (San Jose) +1 669 900 6833 US (San Jose) +1 253 215 8782 US (Tacoma) +1 346 248 7799 US (Houston)

Learn how the Army is leading change in criminal justice

Military Justice—Learning and Leading Change in American Criminal Justice (Webinar) Sponsored by the ABA Criminal Justice Section Friday, February 19, 2021 3:00-4:30 pm Eastern
The military justice system has undergone tremendous change over the past twenty years—in many ways attempting to emulate or keep pace with civilian criminal justice. Now, as the American criminal justice system grapples with the complexities of sexual assault prosecutions and the mainstream call for criminal justice reform, particularly in the area of sexual assault prosecutions, appellate review, and protecting the rights of the accused, many of the military justice system’s policies are being recognized and hailed as truly progressive. Join an esteemed panel of military justice experts from the Army Judge Advocate General’s Corps as they delve into the progressive nature of the military justice system and discuss how we are leading change in criminal justice and where we go from here.
Moderator: MAJ Scott Goble, Chief, Strategic Communications, Strategic Initiatives Office, Office of the Judge Advocate General
Ms. Karen Carlisle, Director, Soldier and Family Legal Services, Office of The Judge Advocate General
LTC Adam Kazin, Deputy Chief, Criminal Law Division, Office of The Judge Advocate General
LTC Rebecca Farrell, Chair, Criminal Law Department, The Judge Advocate Generals Legal Center and School
LTC Phil Staten, Chief, Trial Counsel Assistance Program
LTC Angela Swilley, Deputy Chief, Defense Appellate Division

Monday, January 25, 2021

New developments in Chinese military law and discipline at the unit level -- reform or redux?

"Our principle is that the [Communist] Party commands the gun, and the gun must never be allowed to command the Party."        Mao Zedong

The purpose of this post is to highlight the significant changes to the internal discipline system of the Chinese People's Liberation Army (PLA) at the unit level made by revisions to the Discipline Regulation that came into force May 1, 2018.

In a previous post in November, 2017 I surveyed PLA internal discipline at the unit level under the Regulations on Discipline of the Chinese PLA of 2010. Much of "who can do what to whom" remains the same under the revised Regulation - the possible punishments for officers, civilian cadres and soldiers, the punishment authority of units from the company level up to the Central Military Commission, the financial and career consequences of punishments, disciplinary probation for non-commissioned members, administrative custody, and the discipline process, including appeals, are all for the most part unchanged from the 2010 Regulation. Nevertheless, the revisions in 2018 that are highlighted below demonstrate a marked shift in Chinese thinking about the relative roles of military and Party discipline in the fostering and maintaining of military efficiency and combat capability.

First, a few of the more cosmetic changes. 

The extensive reorganization of the PLA during the period 2015-17 required revisions to the 2010 Discipline Regulation. As a result of the reorganization the seven geographic Military Area Commands across China became five Theatre Commands, and the four Headquarters Departments of the PLA (the General Staff Headquarters, and the General Political, General Logistics, and General Armaments Departments) were rolled into a substantially larger Central Military Commission. The subordinate status of the naval service, the air force and the rocket force, was raised in relation to the ground forces. These changes alone account for many of the revisions to the 2010 Discipline Regulation simply to rename the reformed organs and agencies. As well, the revisions get rid of the reference to the Chinese administrative punishment of "re-education through labour" that was abolished, at least on paper, in December of 2013. Finally, "Xi Jinping's thinking on strengthening the army" is elevated into the pantheon of previous Chinese leaders, from Mao to Hu Jintao, whose guiding principles are to inform the administration of military discipline (Art.4, formerly Art.6).

The most significant changes to Chinese military discipline effected in 2018 introduce new disciplinary offences that are derived from the internal discipline of the Communist Party of China (CPC), and further diminish the already limited role of operational commanders in the day-to-day administration of military discipline that I remarked on in the earlier post - with a concomitant rise in the role and influence of political organs and political officers.

Under Art.11 of the 2010 Regulations overall responsibility for disciplinary punishment was shared between the political organs in respect of officers and civilian cadres on the one hand and military headquarters (siling bu) in respect of the junior ranks and non-commissioned members on the other. But with the amendments in 2018 overall responsibility for the punishment of both officers and other ranks now rests with the Discipline Inspection and Supervision Department (Art.10). The DISD is a political organ established in units at the regiment level and above, all the way up to the Discipline Inspection Commission of the Central Military Commission. Each DISD reports both to a Party committee at the same level in the military hierarchy and to its immediately superior DISD.

The Discipline Regulation treats non-commissioned members (everyone except officers and conscripts) in a special way. If they refuse to perform their duty despite efforts to reform them NCM's can be put on probation for up to six months instead of proceeding immediately with charges. Then if their behaviour is not corrected discipline is instituted. Under the Discipline Regulation as it stood in 2010 the relevant leading cadres decided whether to impose probation on a non-commissioned member, and the administration of probation was the responsibility of the office of the Commanding Officer (siling jiguan). But by Art.235 the Political Work Department in each unit now takes on the responsibilities that were formerly discharged by the Commanding Officer.

In the earlier post I also described "administrative custody" (xingzheng kanguan), a measure involving short-term custody that is designed to deal with a breakdown of discipline by individuals or groups and restore order. Under the new Art.224 the approval authority for administrative custody is pushed down to the battalion level in respect of conscripts and both junior and intermediate NCM's, and military commanders at each level retain the authority they share with political commissars to order administrative custody. But by Art.227 the management of administrative custody is taken away from military commanders and given to the Political Work Department in each unit.

These changes disclose an apparent policy decision to reduce the influence of operational commanders in the administration of military discipline in units of the Chinese PLA, and to augment the already predominant role of the Party. But the clearest indication of increasing Party control of military discipline appears from several of the new disciplinary offences introduced in 2018. In the earlier post I described the various PLA discipline offences under the 2010 regulations, and stated:

"Art.82 creates the only specifically political offences to be found in the Regulation on Discipline. It is an offence to publish or otherwise disseminate writings with erroneous political opinions, or to participate in prohibited political organizations or activities."

The 2018 revisions to the Discipline Regulation go much further by introducing several distinctly political offences that are inspired by, or even copied from, Chinese Communist Party discipline. The following new military offences (as translated by the author) are derived directly from the Communist Party Discipline Regulation of 2015 (revised, 2018):

    Art.114: Those who disseminate the political line, guiding principles and policies of the Opposition, oppose the socialist system, the absolute leadership of the Party over the army, the centralized leadership or the chairman responsibility system of the Central Military Commission, and other erroneous opinions, or who publicly issue articles, speeches, manifestos, statements, etc. with erroneous political views such as "de-politicize the army" and "nationalize the army", or provide conditions to facilitate the conduct described above...shall be punished...

(derived from Art.45, 46 and 47 of the CPC Discipline Regulation, 2015)

    Art.115: Those who vilify the image of the Party, the State, or the army, disparage or slander leaders of the Party, the State or the army, or heroes and model workers, or distort or deny the history of the Party, military history, or the glorious traditions and fine work style of the army...shall be punished...

(see Art.46(3) of the CPC Discipline Regulation, 2015)

    Art.116: Those who organize or join organizations that oppose the leadership of the Party, oppose the socialist system, or are hostile to the government, as well as political organizations prohibited by the State or the army such as superstitious and evil cults, or make contact with illegal organizations or illegal publications in society or someone with political problems...shall be punished...

(from Art.49 and 50 of the CPC Discipline Regulation, 2015)

The 2018 revisions to military discipline regulations also expand the range of disciplinary offences to include some kinds of immoral acts that originated in Party discipline proscriptions. Thus, the new offence in

    Art.151: Those who engage in power for sex transactions or give property or money for sex transactions...shall be punished...

is taken verbatim from the CPC Discipline Regulation, 2015, Art.103.

An earlier CPC Discipline Regulation in 2004 proscribed some other immoral acts such as bigamy, adultery (especially involving a spouse of a PLA member in active service), abuse of authority in order to have a sexual relationship, prostitution and drug use. These were "Serious Violations of Socialist Morality" or "Harmful to Social Management Order" under Art.150, 151, 156 and 160. By Art.176 the 2004 CPC Discipline Regulation gave the Central Military Commission the authority to formulate supplementary regulations for the PLA "on the basis of these [Party] regulations", and the CMC took up the invitation the following year with the making of "Supplementary Provisions on the Army's Implementation of the Regulation of the Communist Party of China on Disciplinary Actions" of 2005. Under this instrument the CMC created several offences that could be punished by Party discipline such as warnings, loss of Party position, Party probation, or expulsion from the Party. Most of the offences under the Supplementary Provisions mirror military disciplinary offences found in the military Discipline Regulation, but a small number have a political nature. Art.7 of the Supplementary Provisions is very similar to another new political offence found in Art.117 of the revised military Discipline Regulation:

    Art.117: Those who organize or participate in parades, demonstrations or sit-ins, as well as collective petitions, superstitions and other activities prohibited by the army...shall be punished...

Bigamy and adultery are likely punishable as "improper sexual behaviour" contrary to Art.99 of the 2010 Discipline Regulation (that became Art.165 in 2018), but other Party proscriptions from 2004 intended to address various kinds of immorality did not find their way into either the CMC Supplementary Provisions of 2005 or the 2010 Discipline Regulation. Nevertheless, with the revisions of 2018 there are now several new military disciplinary offences that are inspired by the Party Discipline Regulation from 2004 - sexual harassment (Art.165), frequenting prostitutes or engaging in prostitution (Art.166), and taking drugs (Art.166).

Transplanting Party discipline offences into the revised military Discipline Regulation is significant. Party membership is widespread in the PLA, and almost universal among the officer corps - and those who violate Party discipline are liable to a range of punishments up to and including expulsion from the Party. But Party membership is voluntary. Under the 2018 revisions to military discipline the liability for several offences against Party discipline that used to be limited to those PLA members who were also Party members now extends to every member of the Chinese PLA, including conscripts, whether they are members of the Party or not. And military sanctions, including a disciplinary discharge from military service, can be imposed for a much wider range of purely political activities.

Art.251 of the revised PLA Discipline Regulation adds the following new language to what was Art.170 in the 2010 version:

"The chief officers in charge at all levels are the persons primarily responsible for maintaining discipline and discipline inspection, and bear the corresponding leadership responsibilities."

The "chief officers in charge" (zhengzhi shouzhang) of units of the PLA consists of the operational and political co-commanders of the unit and their deputies together with the heads of the unit logistics and armaments departments. Yet it is difficult to see how anyone but political officers can discharge the obligations imposed by Art.251 without the necessary tools. Only political officers have decision-making authority with respect to opening an investigation of a disciplinary offence, making a finding of responsibility, and deciding appropriate punishment. Only political officers have a role in the administration of probation for NCM's and the management of administrative custody. Significantly, "punishment responsibility" as a whole, including enforcement of the new political offences, rests squarely with political officers of the Discipline Inspection and Supervision Departments with no role for operational commanders apart from ensuring (under Art.189, formerly Art.135) that punishment decisions made by the political organs are implemented.

The "Red vs. Expert" debate has kept Chinese scholars and some Western commentators busy since Mao first referred to this "contradiction" in the late 1950's. In the military context the issue refers to the tension between expert military operators in the General Staff, General Logistics and General Armaments career streams and their counterparts, the political officers, who are distinctively badged as such and typically follow a different career track. Control and influence in the PLA has swung back and forth between the two groups ever since the Gutian conference when Mao's faction succeeded in having political officers installed in units of the fledgling Workers' and Peasants' Red Army down to the company level. During periods of threatened or actual hostilities the operators seem to regain more influence at the expense of the Party apparatus. But for the present, with the revisions to the PLA Discipline Regulation in 2018, the Party commands the gun, arguably to a greater extent that at any other time in its history.

Lawful Orders, the Joint Chiefs Memo, and the Peaceful Transition of Political Power

As the nation comes to terms with one of the most turbulent and tumultuous elections in American history, from a military justice perspective it is worthwhile to reflect on how the existing obligation to obey lawful orders helps to maintain military effectiveness while ensuring the conditions for a peaceful transfer of political authority. Despite the widespread turmoil caused by then-President Trump’s systematic election denialism, the transfer of political power from one administration to the next occurred as scheduled – without serious concern that the outgoing president would be able to utilize the military to retain political power.

The expectation that the armed forces will remain politically neutral is a matter that Americans can take for granted. However, this certitude can potentially be undermined if the chief commander of the military demonstrates, as Donald Trump routinely did, a willingness to retain political authority at all costs. This is especially true given that from the campaign trail to Inauguration Day and into his presidency, President Trump repeatedly described military leadership as “my generals” and the armed forces as “my military.”

This, of course, was never true. President Trump led the military as commander-in-chief, but both the president and the military owe allegiance to the Constitution of the United States and, by extension, to the American people.

That then-President Trump could not call on the military to support his systemic campaign of election denialism is attributable to one simple yet significant fact: military members are obliged to carry out only lawful orders – even if the orders come directly from the commander-in-chief. This fact stands in sharp contrast to then-candidate Trump’s assertion that, even if the president orders troops to violate the law by, in this example, torturing detainees, “They [military members] won’t refuse. They’re not gonna refuse me. Believe me.”

President Trump’s Election Denialism Crusade Not Backed By “His” Military

The (now) former president’s orchestrated campaign of election denialism notoriously came to a head with the appalling siege on the U.S. Capitol. In the wake of that attack, a memorandum posted by the Joint Chiefs of Staff addressed to “the joint force” confirmed for the military and the American people what the commander-in-chief never seemed to fully comprehend.

In the words of the Joint Chiefs, “the U.S. military will obey lawful orders from civilian leadership, support civil authorities to protect lives and property, ensure public safety in accordance with the law, and remain fully committed to protecting and defending the Constitution of the United States against all enemies, foreign and domestic.” Any action to “disrupt the Constitutional process is not only against our traditions, values, and oath; it is against the law.” This would include any order that would have been given for the military to disrupt the transfer of political authority from one president to the next: even if that order came from the sitting commander-in-chief.

Perhaps the most sinister aspect of the systemic misinformation campaign now former President Trump fabricated to cast doubt on the legitimacy of the electoral process is that he put his own personal interests above the nation’s. This should come as no surprise: for someone who reportedly loathes “losers” so much, it must be personally devastating to lose at the polls and become the first one-term president in nearly three decades.

While former President Trump’s dangerous personal crusade to overturn the results of the presidential election culminated in the horrific Capitol siege, the longstanding conviction that the armed forces are “his” military that is led by “his” generals was exposed for what it has always been: a narcissistic delusion.

The presidential oath obligates the president to “preserve, protect and defend the Constitution of the United States.” Both the oath of commissioning and of enlistment sworn by military members obliges them to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” For both leader and led, president and military member, defending the Constitution is an obligation to the American people.

When President Trump deliberately attempted to subvert the results of the election in support of his own personal crusade, he became a domestic enemy of the Constitution of the United States and, by extension, of the American people. As dangerous as this crusade was, his election denialism remained confined to unhinged political messaging and a futile spate of court cases.

Through all this, what was one powerful tool that was never even a legitimate option to use? “His” military.