Monday, March 1, 2021

Department of serendipity (one in a series)

A job announcement on the website of the U.S. Court of Appeals for the Armed Forces seeks applicants for a two-year (renewable) at-will appointment as a staff attorney on the Central Legal Staff. According to the announcement:

The principal tasks of the staff attorney include:

• Performing a comprehensive legal review and analysis of petitions for review, to include a complete de novo review of records of trial;

• Performing a comprehensive legal analysis of extraordinary writs, motions, and other pleadings;

• Preparing legal memoranda on petitions for review or other pleadings, to include recommendations for disposition;

• Preparing orders of the Court on behalf of the Clerk of the Court;

• Performing other duties as assigned. [Emphasis added.]

The part of particular interest is the italicized language in the first bullet. 

Here is what Art. 67(a)(3), UCMJ says:

The Court of Appeals for the Armed Forces shall review the record in—

* * * 

(3) all cases reviewed by a Court of Criminal Appeals in which, upon petition of the accused and on good cause shown, the Court of Appeals for the Armed Forces has granted a review.

"We are all textualists now," Justice Elena Kagan has famously said. As you read the text of the statute, does it contemplate that the court will conduct its own de novo review of the record of trial before it has granted review? Doesn't the past tense of the terminal "has granted a review" clause indicate that the duty to "review the record" arises only after good cause has been shown and the petition has been granted? Is the court putting the review-the-record cart before the grant-of-review-for-good-cause horse?

The next judge

Just Security has posted this column titled The Next Judge: U.S. Court of Appeals for the Armed Forces' Looming Vacancy. In it, the Editor concludes:
What makes for a good judge? Sheer smarts? Academic qualifications? Temperament? Empathy? Ability to get along with others? Writing skills? Personally, my hope is that the Department of Defense, the White House, and those on Capitol Hill who have roles to play in the process will take their time and cast their net broadly. People who are interested in serving on the U.S. Court of Appeals for the Armed Forces should thoughtfully consider their qualifications and credentials, consult with others, and if they are willing to run the risk of being disappointed, allow their names to be put forward.

Comments are welcome. (Real names only, please.) 

Town Hall 13: So you want to be a CAAF judge?

Town Hall 13, concerning the upcoming vacancy on the U.S. Court of Appeals for the Armed Forces, begins at 9:00 a.m., East Coast time.

Everything you always wondered about  but were afraid to ask.  
Please join us for a discussion of the  standards for picking the next CAAF judge.
Monday, March 19:00 – 10:30am (US East Coast time)
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Sunday, February 28, 2021

Add Puntland to the list

Authorities in Puntland, a region in Somalia, have come under fire for prosecuting freelance journalist Kilwe Adan Farah in military court. Excerpt from this Horn Observer account:

During the Saturday’s court hearing, Kilwe was brought at the First Instance Court of the Armed Forces where a military prosecutor put forward five charges: Instigation of delinquency; Instigation of Disobey to the Laws; Publication or Circulation of False, Exaggerated or Tendencious News Capable of Disturbing Public Order; Offence against the Authorities by Means of Damaging Posters; and Bringing the Nation or the State into Contempt. The prosecutor asked the Military Court to sentence Kilwe with 10 years imprisonment.

However, the defense lawyer Mustafe Mohamed Jama, who is representing Kilwe on behalf of [the Somali Journalists Syndicate], challenged the military prosecutor’s charges and questioned the military court’s jurisdiction over the journalist’s case. The lawyer also insisted that his client is a professional journalist and that journalism was not a crime under the Somali laws and therefore there was no a case to be heard at the Court.

The report adds:

A London based international barrister, Michael Polak who is helping with the Kilwe case stated "moving from a charge of attempted murder, which has been abandoned, to offences clearly aimed at preventing journalistic activity and pursuing Kilwe through the Military Court when he is a civilian shows that these proceedings are a farce. The President of Puntland and the Military Court Judge must step forward to end this embarrassing affair.”

The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, promulgated by the African Commission on Human and Peoples' Rights provide:


a) The only purpose of Military Courts shall be to determine offences of a purely military nature committed by military personnel.

b) While exercising this function, Military Courts are required to respect fair trial standards enunciated in the African Charter and in these guidelines.

c) Military courts should not in any circumstances whatsoever have jurisdiction over civilians. Similarly, Special Tribunals should not try offences which fall within the jurisdiction of regular courts. [Emphasis added.]

Despite this, a number of African countries persist in trying civilians in military courts.

Friday, February 26, 2021

A first in Spain

For the first time, a woman has been named to head a Spanish military court. Details here. Excerpt:

A woman will preside for the first time over a Spanish military court and will do so in Seville. Auditor colonel María Inmaculada Benavente Cózar was elected this Thursday by the Plenary of the General Council of the Judiciary as auditor president of the Second Territorial Military Court of Seville by obtaining 16 of the 21 possible votes, with the blank votes of the members Álvaro Cuesta, Concepción Sáez, Pilar Sepúlveda, Clara Martínez de Careaga and Rafael Mozo.

Judge Benavente has a most impressive record, according to this report.