Wednesday, April 25, 2018

What's changed by the proposed new joint CCA rules?

Global Military Justice Reform readers will recall the recent publication of a proposed revision of the Joint Rules of Appellate Procedure for the service Courts of Criminal Appeals. We have obtained the following unofficial summary of the changes the proposal would make in the current rules. According to a footnote, the document "does not reflect the views of any agency or governmental entity." Here is it:

Major proposed revisions include:

Reorganized into sections to put into more logical clusters and to mirror CAAF and Federal Rules more closely:

                I. General 
              II. Attorneys
             III. Practice Before the Court
             IV. Proceedings of the Court

Rule 1: Courts of Criminal Appeals
  • Old Rule 1. 
  • Adds new subsection 1(c) to address certification and minimum tour requirements.
Rule 2: Scope of Rules; Title
  • New rule. 
  • Makes explicit that filings must comply not only w/ Jt Rules but w/ Service Court Rules. 
  • Rename from “Courts of Criminal Appeals Rules of Practice and Procedure” (colloquially called the “Joint Rules”) to “Joint Rules of Appellate Procedure for CCAs” (JRAP) modeled after Federal Rules of Appellate Procedure (FRAP). 
Rule 3: Service Court Rules 
  • Old Rule 26 (Internal Rules) 
  • Renamed and reworded.
Rule 4: Effective Date
  • New rule 
Rule 5: Jurisdiction
  • Old Rule 2. 
  • Substantially rewritten to account for changes to CCA jurisdiction per Military Justice Act of 2016 (MJA16).
Rule 6: Scope of Review
  • Old Rule 3.
  • Subsection (a) rewritten per MJA16. 
  • Subsection (b) added in attempt to define the record on appeal in greater detail. 
Rule 7: Quorum
  • Old Rule 4. 
  • Rewritten and reorganized to follow CAAF Rules and FRAP more closely.
Rule 12: Assignment of Counsel
  • Old Rule 11 
  • Major revision to account for MJA16, including requirement for learned counsel in capital cases. 
Rule 14: Notice of Appearance and Withdrawal of Counsel
  • Old Rule 13 (Notice of Appearance of Counsel) 
  • Adds subsection 14(b) requiring motion prior to withdrawal as some CCAs already have. 
Rule 15: Filing and Service
  • Old Rule 5. 
  • Modifies Rule 15(a) to make explicit that Service Court rules will dictate where and how to file pleadings. 
Rule 19: Briefs
  • New rule.
  • Makes explicit that form, content, and space limitations will derive from Service Court rules vice JRAP. 
  • But imposes requirement for Chief Judges to confer periodically to ensure that such rules are, when practicable, consistent across CCAs. 
Rule 20: Appeals by the Accused
  • Old Rule 15. 
  • Renamed from “Assignments of Error and Briefs” for consistency with MJA16 language 
  • Adds Rule 20(b) regarding Grostefon submission. 
Rule 22: Appeals by the United States
  • Old Rule 21. 
  • Updated to account for new Article 56(d) (Appeals of Sentence by the United States).
Rule 29: En Banc Proceedings
  • Old Rule 17. 
  • Reordered and modified to:
               Track FRAP more closely
               Use phrase “in regular active service” vice “present for duty”
               Add 29(d) from FRAP.

Rule 30: Contempt
  • New rule. 
  • Provides structure both to appeal of contempt punishments from lower courts as well as new contempt proceedings at CCA level. 
Rule 31: Art. 66(f) Proceedings
  • New rule based on MCA16’s new Art 66(f)(3) (“Additional Proceedings”), which effectively codifies DuBay.

Mighty attention-grabbing headline

We Are the Mighty (love that name) here offers 6 Things Not to Do While Getting an Article 15 (nonjudicial punishment). The Editor's favorite comes third: "Don't mouth off to your commander." This is always good advice.

Summary trials (administrative punishment for minor offenses) rarely make the news but account for far more cases than the better-known courts-martial. It's an area that can raise due process and human rights concerns and deserves much closer study than it has received.

Tuesday, April 24, 2018

Egyptian military court jails former chief auditor

Here is Amnesty International's report on the sentence meted out to Egypt's civilian former chief auditor by a military court. Excerpt:
Responding to the sentencing of Hisham Genina, former head of the Central Auditing Organisation in Egypt, to five years in prison on charges of “publishing false information for harming national security”, Amnesty International’s North Africa Campaigns Director, Najia Bounaim said:

“The arrest, military trial and outrageous five-year sentence for Hisham Genina is another example of the shameless silencing of anyone who is critical of the Egyptian authorities. We call for the immediate and unconditional release of Hisham Genina. His continued imprisonment for his criticism of the recent election process is a reprehensible violation of his right to freedom of expression.
Human rights jurisprudence strongly disfavors the trial of civilians by military courts. 

Where should these cases be tried?

The Irawaddy reports here on cases in which Myanmar's soldiers have committed crimes against civilians. Should the cases be tried in the civilian courts or before courts-martial?

Human rights advocates argue that serious human rights violations should be tried in the ordinary courts.

Haditha case movie

Adam Linehan's Task & Purpose article on a newly-released movie about the Haditha case begins this way:
On Sunday night, a full house turned up at the Tribeca Film Festival in Manhattan for the premiere of “House Two,” an investigative documentary more than decade in the making that makes troubling allegations regarding the Marine Corps’ handling of one of the most brutal war crimes cases of the Iraq War. It also raises questions about the involvement of the current Secretary of Defense in a serious miscarriage of justice.
Three top flight military justice experts -- all retired Marine judge advocates -- are quoted. (Spoiler alert: they don't see things the same way.) The movie is likely to cause a stir.