Joint Service Committee on Military Justice § 540F Report

The Joint Service Committee on Military Justice has submitted its subcommittee's Prosecutorial Authority Study report in response to § 540F of the National Defense Authorization Act for Fiscal Year 2020. The report, which cost the taxpayers $109,000 (that's $1185 per page, if you don't count the appendices), can be found here. There's also a one-page summary here. The report's conclusion states:

The JSS-PAS finds that implementation of the alternative military justice system defined by Section 540F is neither feasible nor advisable. Likewise, the JSS-PAS finds that conducting a pilot program for such a system would be infeasible and inadvisable. Commanders are central to the military justice system and the current commander-centric system works. Commanders are trained to make decisions and rely on their experience and the legal advice of their judge advocates to inform those decisions.

Careful study has shown that commanders are well-equipped and capable of decision-making in the field of discipline. Commanders have been proven to make reasonable disposition decisions in penetrative sexual assault cases, and the military justice system compares favorably in terms of reporting, investigation, and prosecution in sexual assault cases with civilian jurisdictions.

Comparing the U.S military justice systems to the systems of allied military justice systems is a false equivalency. Allied militaries, particularly the “Five Eyes” allies, are but a small fraction of the size of the active U.S. military, and the few cases tried in each of those allied militaries is proportionally even smaller (with convictions even proportionately smaller still). Despite having far fewer cases and smaller militaries, changing to prosecutor-centric military justice systems has shown no improvement in reporting, investigating, or prosecuting criminal offenses in the military justice systems of U.S. allies. And in the case of one of those allies, the reform led to an invalidation of the military justice system – something that would be enormously detrimental to the U.S. military, which remains engaged in ongoing combat operations. The U.S. should be wary of change for the sake of change; the data from allied military justice systems does not support any assertion that such a radical change will make our own system better.

Commanders need full authority under the UCMJ to enforce good order and discipline. Commanders must have the full range of tools available to rehabilitate service members capable of continued service, punish those whose conduct risks military readiness, and set the expectation amongst all service members that indiscipline will be handled swiftly by a commander with authority. Parceling out these tools amongst differing authorities with differing perspectives and purposes will only serve to weaken the effectiveness of all of the tools. Divesting commanders of the mechanism to enforce good order and discipline will result in a less effective military and will weaken the national security of the United States.

The Lorance case

Nathaniel Penn provides a fascinating piece of  investigative journalism in his new article on Army 1st LT Clint Lorance (it's quite long, and I hope he turned his research into a book). This is the sordid saga of a LT whose actions wreaked havoc on those within his platoon, whom a panel (jury) of Army Soldiers convicted of murder, and whom President Trump later pardoned after Fox News transformed Lorance into a weapon in the polarizing culture wars it has helped fuel.  

It's a troubling read, as the reporter details how zealous advocates with their own political agendas used false characterizations and lies to manipulate the Commander-In-Chief, as well as millions of Americans who didn't know better, into believing that the LT wasn't the murderer the facts proved him to be (he was convicted after all) -- instead wrongly portraying him as a scapegoat for supposedly bad policy decisions by the Obama Administration.  One take-away from this piece: facts don't matter, propaganda does.  Not reassuring for a democracy, nor for its military.

It appears that the Chief of the Defence Staff (CDS) of the Canadian Forces has, in fact, suspended his order of 2 October 2019, entitled: Designation of Commanding Officers with respect to Officers and Non-Commissioned Members on the Strength of the Office of the Chief Military Judge Dept ID 3763 (the 'Designation Order').

It appears that he did so on 15 September 2020.  However, unlike the notoriety of several recent courts martial judgments, which stayed prosecutions in light of the CDS' refusal to rescind the impugned Designation Order, the order suspending the Designation Order was not announced or promulgated notoriously and publicly.

The following Blog post, entitled "Military Judicial Independence: I have heard of orders, and rumours of orders ..." elaborates on the lack of publicity and notoriety of this significant development in the administration of military justice in the Canadian Forces.

It would appear that the principal cause for the recent stays of prosecution in courts martial has been addressed - for now.  However, there remains potential for further applications of a similar nature, based upon the Canadian Forces Organization Order pertaining to the Office of the Chief Military Judge.  Moreover, the broader issue regarding the general application of the Code of Service Discipline to military judges will still be the subject of an appeal (and cross appeal) before the Court Martial Appeal Court of Canada (R v Captain Crépeau, 2020 CM 3007).

U.S. Sanctions on ICC Prosecutor

Courthouse News Services reports that,

The Trump administration announced Wednesday it is placing sanctions on the International Criminal Court’s chief prosecutor, escalating its feud with the global judicial body investigating American military actions in Afghanistan.

Secretary of State Mike Pompeo told reporters that the White House will sanction Fatou Bensouda, the prosecutor of the world’s only permanent court for atrocity crimes, as well as another staff member for their involvement in an investigation into whether U.S. military personnel committed war crimes in Afghanistan.

“These coercive acts, directed at an international judicial institution and its civil servants, are unprecedented and constitute serious attacks against the Court, the Rome Statute system of international criminal justice, and the rule of law more generally,” the court said in a statement on the sanctions.

The time has come to appoint a new Chief Military Judge (Canada)

This past Monday, 21 September 2020, marks six months since the former Chief Military Judge, Colonel Mario Dutil, retired when he reached 60 years of age, the ‘compulsory retirement age’ (CRA) for members of the Canadian Forces – even military judges.  Since that time, the Deputy Chief Military Judge, Lieutenant-Colonel Louis-Vincent d’Auteuil, has been the de jure Acting Chief Military Judge by virtue of section 165.29 of the National Defence Act. 

That role was not ‘new’ to Lieutenant-Colonel d’Auteuil; he had filled it for the better part of two years while Director of Military Prosecutions (DMP) attempted, unsuccessfully, to prosecute the former Chief Military Judge, including an unsuccessful application for judicial review when the Deputy Chief Military Judge declined, for compelling reasons, to assign a military judge to preside over that problematic court martial. 

Members of the Canadian Forces have been waiting for six months for the Governor in Council to appoint a new Chief Military Judge. 

Four months after the Chief Military Judge retired, the Chief of the Defence Staff (CDS), General Jonathan Vance, announced his intention to retire, once the Governor in Council named his successor. There was speculation that the CDS’ successor might be announced before the Throne Speech of 23 September 2020; however, that did not happen. 

During the past six months, the Governor in Council has not been inactive. They have appointed several Superior Court and even Federal Court judges. They have enacted regulations. The government even found the time to prorogue Parliament in order to deliver a Speech from the Throne that, frankly, was a little lacklustre and vague about specifics, even when measured against past Speeches from the Throne. 

As I discuss in this linked Blog article: What does this ongoing delay in the appointment of a new Chief Military Judge say about the current government’s commitment to the Rule of Law in the administration of military justice? And, in light of the current 'crisis' in the Code of Service Discipline regarding judicial independence, what might the continued vacancy in this position signal regarding the dialogues between the military judiciary, the leadership of the Canadian Forces, and the political decision-makers who are responsible both for appointing military judges and for enacting any legislative amendments to the Code of Service Discipline?