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| Waikiki & Diamond Head, Honolulu |
After the Supreme Court's 6-3 (or 5-4, as Stevens, J. merely concurred in the result) decision in Solorio v. United States, 483 U.S. 435 (1987), prosecutions like that of MSgt Cosby became constitutional again. Nonetheless, his trial violates human rights principles, under which only service-connected offenses may be tried by court-martial, there appearing to be no military nexus other than his active duty status. The UN Draft Principles Governing the Administration of Justice Through Military Tribunals, state that "[t]he jurisdiction of military courts should be limited to offences of a strictly military nature committed by military personnel." See also 2013 Report of the Special Rapporteur on the Independence of Judges and Lawyers [Gabriela Knaul], para. 34.
Why isn't this case being tried in the Hawai'i courts? For a ThinkTechHawaii conversation about the case between Honolulu criminal defense lawyer Eric Seitz and former U.S. Coast Guard military judge Jay Fidell (yes, brother of) check this YouTube link.
Should Solorio be reconsidered? Justice Antonin Scalia is the sole remaining member of the Supreme Court who sat on that case. He joined the majority opinion. Congress could also choose to limit court-martial subject matter jurisdiction by requiring service-connection and the President could impose such a limit through a change to the Manual for Courts-Martial's disposition criteria.
Full disclosure: the editor represented the ACLU as an amicus curiae in Solorio.
I believe the Solorio case should be reconsidered. There is a worldwide trend to better ensure and promote respect for human rights, including those of an accused. By definition military tribunals are tribunals of exception which, in many respects, derogate from the norms applied before and by civilian tribunals. While recognizing the need for discipline in the military, it is not obvious why in peacetime prosecutions of ordinary criminal law offences should take place before military tribunals, especially in view of the adverse differential treatment given to an accused in these proceedings. The prosecution of these offences could and should take place before civilian courts, i.e. criminal courts. Then disciplinary proceedings, I mean real disciplinary proceedings, could be instituted before military tribunals.
ReplyDeleteShould this proposal be unacceptable, at least prosecutions of ordinary criminal law offences before military tribunals should be limited to instances where there is a real military nexus, i.e. in cases where the offence is a " service connected offence." A status test, to wit the fact that the accused is a member of the Armed Forces 7 days a week, 365 days a year, is too broad a test. Such a test allows for the military prosecution of ordinary criminal law offences committed in civilian-like circumstances by soldiers on holidays and not on duty.
In the cases of Moriarity v. Canada 2014 CMAC 1 and Vezina v. Canada 2014 CMAC 3, the Court Martial Appeal Court of Canada reasserted the need for a military nexus in the form of " a service connected offence." In Canada v. Wehmeier 2014 CMAC 5 the CMAC terminated proceedings instituted before a military tribunal against a civilian accompanying the Canadian Forces in Germany. The Court was satisfied that the prosecution of the accused in the military justice system was arbitrary because it lacked any connection with the objectives sought to be achieved by making accompanying civilians subject to the Code of Service Discipline: see par. 58 of the reasons for judgment.
Throughout the world national jurisdictions are reviewing their existing procedure to offer an accused better compliance with human rights and fundamental rights. The United States have been a leader in promoting and trying to enforce abroad respect for human rights. The courts should seized the opportunity to reconsider the Solorio case so as to provide inland to their citizens what they advocate abroad for other nationals.