Thursday, August 16, 2018

Defense counsel sues to overturn expulsion

A civilian defense counsel who was expelled from a court-martial in Uganda has sued the Attorney General to overturn the decision of the court-martial's president. Details here. Has he sued the wrong defendant?

Wednesday, August 15, 2018

Casebook supplement available

Congratulations to Judge Gregory E. Maggs and Dean Lisa M. Schenck on publication of the 2018 supplement to their West casebook, Modern Military Justice (2d ed. 2015). It is available here for download.

Tuesday, August 14, 2018

Meanwhile, in Manila

Speaking of unlawful command influence, does the following report from the official Philippine New Agency give you concern?
MANILA -- The Armed Forces of the Philippines (AFP) on Monday said it welcomes President Rodrigo R. Duterte's relief and court martial order against the commanding officers of the AFP Health Services Command (HSC) and AFP Medical Center (also known as the V. Luna Hospital) and 20 others for their alleged involvement in anomalous transactions.

"The AFP welcomes the pronouncement made by Presidential Spokesperson Secretary Harry Roque relieving from his post Brig. Gen. Edwin Leo Torrelavega, the Commander of the AFP Health Services Command and Col. Antonio Punzalan, the Commander of V. Luna Hospital, for them and around 20 others to face court martial proceedings," AFP chief-of-staff Gen. Carlito Galvez Jr. said.

The relief of these officials stemmed from the outcome of two different but parallel investigations ordered by the AFP chief.

"The task to thoroughly collect material and relevant information regarding the case started sometime in the month of May 2018. The results of which I transmitted to Malacañang by way of a letter to the President sometime this month (August)," the AFP chief added.

The case will be tried under the military justice system and the accused will be proceeded against in court martial proceedings where they will be given the opportunity to be heard.

Galvez said these personnel will be charged with violation of Article of War 95 (Fraud Against the Government).

He, however, said this is without prejudice to other infractions of the Articles of War that may have also been violated; and the accused military personnel’s right to due process.

"As the AFP chief-of-staff and like our Commander-in Chief, President Rodrigo Duterte, I am both saddened and offended by this report. I am not prejudging the named Officers and Enlisted Personnel as the would-be recommendations of the courts martial will be submitted to me for approval and further submission to the Commander-in-Chief for final approval," he added.

"But I commit to the members of the AFP, to the Filipino People, and to our beloved President and Commander-in-Chief that I will render justice to all concerned without undue haste. As the President said during the last SONA (State-of-the-Nation Address) corruption is corrosive. And the warning that— 'I will get you!' And I am one with him in that desire. At ito na yun,"* Galvez said.

In line with this and based on the investigation, the AFP chief bared that he will order that reforms be instituted in the AFPHSC along with a major revamp in that unit to address the systemic corruption.

"I will cause the installation only of officers and staff with the necessary qualifications, competencies, integrity, and unquestionable reputation, to run this institution which is vital to the health and well-being of our personnel and their dependents," Galvez added.
* Google Translate says this means "And that's it." 

SECDEF memo on discipline

Hon. James N. Mattis
Secretary of Defense
Secretary of Defense James N. Mattis has issued a memorandum on the importance of maintaining discipline. Excerpt:
Enforcing standards. is a critical component of making our force more lethal. Our leaders must uphold proven standards. They should know the difference between a mistake and a lack of discipline. If a subordinate makes a mistake, leaders should learn to coach them better. But we must not tolerate or ignore lapses in discipline, for our enemies will benefit if we do not correct and appropriately punish substandard conduct. Time, inconvenience, or administrative burdens are no excuse for allowing substandard conduct to persist.

The military justice system is a powerful tool that preserves good order and discipline while protecting the civil rights of Service members. It is a commander's duty to use it. Military leaders must not interfere with individual cases, but fairness to the accused does not prevent military officers from appropriately condemning and eradicating malignant behavior from our ranks. Leaders must be willing to choose the harder right over the easier wrong. Administrative actions should not be the default method to address illicit conduct simply because it [sic] is less burdensome than the military justice system. Leaders cannot be so risk-averse that they lose their focus on forging disciplined troops ready to ferociously and ethically defeat our enemies on the battlefield.
Why was this memo written? What does it mean? It refers to "the cancer of sexual misconduct." Is it an effort to nudge commanders to take more cases to court?

H/T to Military Times for the heads up.

Not military justice, but . . .

The decision of the Court of Appeal of New Zealand in Young v. Attorney General & Ministry of Defence (UK), [2018] NZCA 307 (Aug. 13, 2018), may be of interest to readers. Here, according the the judgment (Brown, J) is what the case concerns:
[5] . . .  [I]n our view the broad issues raised by the appeal are:

(a) Does New Zealand owe Ms [Hayley] Young [a former member of the Royal New Zealand Navy] an obligation to provide her with an effective remedy in the New Zealand courts for the alleged wrongdoing she suffered abroad at the hands of Royal Navy personnel: 
(i) as a matter of domestic law under the NZBORA [New Zealand Bill of Rights Act]? 
(ii) as a matter of international law because of the nature of the alleged wrongdoing involving arguable violation of Ms Young’s fundamental rights? 
(b) Should the Court dismiss the protest to jurisdiction by the MOD(UK) on the grounds that the alleged wrongdoing breached a fundamental principle of justice or some deep-rooted tradition of New Zealand which engages an iniquity exception to the state immunity doctrine? 
(c) Are the courts of England and Wales or the High Court of New Zealand the more appropriate forum for Ms Young’s claim against the MOD(UK)?
Held, appeal dismissed.