A stray suggestion to the Military Justice Review Group

Since the Pentagon's Military Justice Review Group website does not show comments and suggestions that the group receives, here is one your humble editor has just submitted:

Given the maturation of the court-martial trial process, including development of the role of the military judge, shouldn’t review by the Courts of Criminal Appeals be governed by the same standards as apply to appellate review of trials of criminal cases in the district courts? The last sentence of Article 66(c) seems to be another of the artifacts in the Code that have been overtaken by events and can now be dispensed with.

Have you submitted something? If so, please post it here using the Comment feature. 

Government urges closed hearing on force-feeding at Guantanamo [corrected]

The government is urging a federal district judge to close a hearing about force-feeding of a Guantanamo detainee. According to this report in Air Force Times:

In the administration’s court filing, the Justice Department said that opening the hearing would require “closely monitoring every question to and every answer from each witness” to ensure that no classified information is released. The Justice Department proposed that the participants present unclassified opening statements that would be open to the public. In addition, the government said it would create a public version of the transcript of the hearing on a speeded-up basis.

The former Navy commander at Guantanamo Bay, Rear Admiral Richard Butler, said in a court declaration filed in July that even though the forced cell extraction videos are lawful, humane and appropriate, they “are particularly susceptible to use as propaganda and to incite a public reaction because of their depiction of forcible … guard interaction with detainees.”

The videos that also contain footage of forced-feedings could be used “to foment anti-American sentiment and inflame Muslim sensitivities as it depicts … personnel providing medical care to a detainee while he is restrained,” Butler said in the declaration.

Releasing a video showing a detainee receiving medical care while restrained “would exacerbate the world’s perception of detainees in U.S. custody,” Butler added. “Public release, in whole or in part, of videos showing forced cell extractions” or feedings would cause “serious damage to national security.”

Editor's red-faced mea culpa: The initial version of this post referred to the case as pending before a military commission judge Guantanamo, when in fact it is before a federal district judge in Washington, D.C. On October 2, 2014, Judge Gladys Kessler denied the government's motion. There is a link to her opinion in this article.

UN experts oppose Colombian military justice bill

A group of UN experts has gone on record as opposing the current military justice bill under consideration by the Colombian Congress:

. . . Bill No. 85 would give military courts extensive jurisdiction covering, among others, homicide, breaches of international humanitarian law, breaches of information and data protection, crimes against public security and other crimes that should fall within the jurisdiction of ordinary criminal courts.

“We call on the Government to ensure that the jurisdiction of military tribunals be limited to criminal offences and breaches of discipline of a strictly military nature and allegedly committed by active members of the armed forces,” the experts said.

“Crimes amounting to serious human rights violations should always fall within the jurisdiction of ordinary courts, including when the alleged acts were committed by military or police personnel,” they underscored.

Since military courts in Colombia are part of the executive branch, extending their jurisdiction to matters that should be heard by ordinary criminal courts would exacerbate the problems and concerns already existing in terms of access to justice, impunity for human rights violations, and respect for the fair trial and due process guarantees of the accused, it was noted.

The experts, who are appointed by the UN Human Rights Council and carry out their mandates in an unpaid capacity, offered their advisory services to assist Colombia in its efforts to strengthen its legislative and institutional framework for the achievement of human rights and peace for all.

Does law have a place in China's military and national defense reforms?

Does law have a place in China's military and national defense reforms?  The answer to that, according to recent publications by China's top military legal officials, the Legislative Affairs Bureau  (Office) of the Central Military Commission (linked here (in Chinese)) and Col. Shi Qingren, a researcher at China's Academy of Military Sciences (linked here)(in English), is yes.

According to Col. Shi, foreign researchers haven't been paying much attention to China's military reform, which means that fewer are paying attention to the military legal reforms (except for the regular readers of this blog). Col. Shi tells us that improving the military legal system is an important aspect of bringing China's military policies and mechanisms into the modern age. 

The Legislative Affairs Bureau officials gives us a glimpse into some of their thinking, echoing some of the points made by their head in November 2013:

• strategic reforms need a legal basis, they must be done according to legal procedures, methods, and authorization;
• Improvements to legislation need to go together with strategic reforms;
• To prevent conflicts between current legislation and military reforms, legislation needs to be amended simultaneously.
• The legislative framework needs to break out of its current restrictions.
• Better planning and arrangements for military legislation are needed.
• In particular, instead of narrowly amending a few provisions, an entire body of legislation needs to be overhauled.
• Expert review, more consultation, and better channels are needed.
• Legislative drafting needs to be pulled out of departments, to avoid the legalization of departmental interests.
• Military legislation needs to be better coordinated with civilian legislation

The Chinese leadership meets in October, for the Fourth Plenum of the 18th Chinese Communist Party Central Committee, to focus on the rule of law.  It is likely that some broad principles for military legal reform will be laid down, but this prediction with be (dis)proved by events.

South African Defence Review 2014

The 2014 South African Defence Review is now available online. Chapter 12 deals with military discipline. Echoing a point made in last year's edition and the one before that, the 2014 version asserts:

[C]hallenges arising from the application of the Military Discipline Supplementary Measures Act and limited training thereon have led to perceptions that military discipline has been compromised and the authority of Commanders eroded. The current system has specifically disempowered commanders by removing the summary discipline system away from the commander to the military courts.

Low batting average

Defence Web reports:

The latest available annual report of the [South African] Department of Defence and Military Veterans, for the 2012/13 financial year, show[s] its legal services division as having achieved a success rate in court of just under 15%. Of the 104 cases that went to court by fa[r] the majori[ty] of rulings – 90 – went against military lawyers.

Can some reader in South Africa shed light on this?

Grammar Police

Under the category of "bad advice" we find this gem, from an online article about unusual plurals:

"2. COURTS-MARTIAL

"Here 'martial' is the adjective for military. So 'courts-martial' is preferred, but 'court-martials' is also acceptable."

Sorry, but "court-martials" is not acceptable. Just ask the Judge Advocates General. 

Human Rights Watch argues for justice reform in Somalia

In a statement submitted to the UN Human Rights Council, Human Rights Watch has stressed the need for justice reform in Somalia:

Lack of progress on the government’s plans to reform and equip the civilian justice system has left the military court administering justice for a broad range of cases and defendants in proceedings that fall short of international fair trial standards. Despite serious due process concerns, the military court has sentenced numerous defendants to death: 13 executions have taken place in Mogadishu in 2014-9 since July alone.

The Somali government should immediately impose a moratorium on the death penalty, move forward with its reform agendas, and create an enabling environment for the prosecution of sexual violence.  This includes pressing the AMISOM [African Union Mission in Somalia] leadership to ensure credible and impartial investigations into allegations of sexual exploitation and abuse by AMISOM forces that ensure the safety of victims and witnesses.

As noted here, three more death sentences were handed down just the other day by the Somali military court. The HRW statement also suggests that "the UN should also oversee investigations into abuses by AMISOM forces."

Quote of the day

"I think we'll still get there," Gillibrand said of the 60 votes needed [for cloture] in the Senate. "We will win this battle."

Sen. Kerstin Gillibrand (D.-NY),

referring to the Military Justice Improvement Act

Three capital sentences in Somalia

The military court in Somalia has sentenced three soldiers to death in connection with armed robberies of two civilian buses. The soldiers have a month in which to appeal to the Military Supreme Court. A news account reported that "[l]ast[m]onth, [the] Somali Military Court warned that any armed soldier found on robbery or rape will be executed in a bid to restore the peace and stability of many regions in the country’s south and central regions."

Important anniversary in U.S. Navy

One hundred sixty-four years ago, Congress passed the Act of Sept. 28, 1850, 9 Stat. 513, which, in a 27-word proviso (at p. 515), abolished flogging in the U.S. Navy and merchant marine. The Hampton Roads Naval Museum has the story.

Indian court-martial capital sentence questioned by NGO

In 1991, an Indian Army soldier was sentenced to death for murdering two comrades. Twenty-three years later he is still on death row, his case having bounced around the Indian courts and at times languished for years. The Asian Centre for Human Rights questions whether the arrangements in India comport with UN safeguards:

Citing the case of death-row convict Devendra Nath Rai, Asian Centre for Human Rights stated Rai, an Army Jawan, was accused of homicidal murder of his two colleagues on 15 October 1991 and sentenced to death by the Court Martial. Following appeal, the Allahabad High Court converted the death sentence to life imprisonment on the ground that the case did not fall in the “rarest of the rare” category. However, the Supreme Court on 10th January 2006 directed the Allahabad High Court to reconsider its judgment on the quantum of sentence while noting that the High Court without considering the balance sheet of aggravating and mitigating circumstances abruptly concluded the case as not being covered by the “rarest of rare” category. To decide the quantum of sentence, the Allahabad High Court sat on the case for more than eight years, dismissed the Writ Petition for “want of prosecution” in the meanwhile, and thereafter, restored the case vide order dated 28.01.2014 and transferred it to the Armed Forces Tribunal, Lucknow in view of Section 13 of the Armed Forces Act, 2007. When ACHR's counsel met Rai at Naini Jail, Allahabad on 20th August 2014, Rai had no idea about the status of the trial and was absolutely incoherent, indicating clear signs of mental imbalance.

“The trial of Rai has been going on for last 23 years. With the trial being referred back to the Armed Forces Tribunal, it has the potential to continue for another 23 years if he is again awarded death sentence and files appeals before the Allahabad High Court and the Supreme Court! This is such a travesty of justice.” – stated Mr Suhas Chakma, Director of Asian Centre for Human Rights.

Life sentence for desertion

Lt Jeffery Okurih Pepela of the Kenya Navy has received a life sentence for desertion, having been found guilty of abandoning his post as officer in charge of the Maritime Surveillance Radar Station at Mansura in 2007. He is one of a large group of Kenya Defence Forces personnel who accepted employment with Blackwater and other private security companies in Iraq, Kuwait and Afghanistan without having been discharged from the KDF. The last time a member of the KDF was sentenced to life imprisonment was in 1982, following an abortive coup. Lt Pepela's defense counsel is taking steps to appeal.

Reform, it seems, in Tunisia

The Tunisian National Constituent Assembly has reached agreement on a number of controversial issues for constitutional change. One is of interest to readers of Global Military Justice Reform:

Article 107 on military courts was also amended to include a new clause assigning to these courts the task of dealing "with crimes committed by members of the military." A previous version of the article only gave these courts the mission of investigating military crimes.

The implication seems to be that military court jurisdiction would not extend to the prosecution of civilians. We'll be watching for clarification in coming days.

National Lawyers Guild Military Law Task Force website

The National Lawyers Guild's Military Law Task Force has a useful website. The task force publishes a quarterly online newsletter called On Watch. Also available on the website is an AWOL guide for attorneys and GI counselors. Kathleen Gilberd is the group's executive director.

Officer and soldiers in military custody in Mexico

The New York Times reports today that an officer and seven soldiers of the Mexican Army are in military custody in connection with the death of 22 civilians. The Wall Street Journal adds that they are being held for violating military discipline. The issue that will have to be confronted is whether they will be tried in civilian or military court. The Journal's report notes that "[t]he Defense Ministry's statement on Thursday said its investigation was independent of the probes being undertaken by civilian authorities, leaving open the possibility that [the] soldiers could face charges in civilian courts."

The Gutenberg Bible heist

The Military Collegium of the Russian Federation Supreme Court has affirmed the sentences of three ex-officers (a former colonel, major and captain) of the Federal Security Service (FSB) for stealing and attempting to fence two volumes of the Gutenberg Bible. The 15th century tomes were stolen from the Moscow State University Research Library, according to this account from the Russian Legal Information Agency.

Query: why shouldn't these offenses have been tried in the ordinary civilian courts?

Proposal to create special courts in Bolivia and eliminate military jurisdiction

Sen. Marcelo Antezana

A draft law proposing the elimination of military courts in favor of special courts under the Supreme Tribunal of Justice (TSJ) is being proposed by Senator Marcelo Antezana, a former Chief of the Army.  The opposition senator received legal advice on the drafting of this bill from Osvaldo Rojas, the lawyer for detained noncom Johnny Gil.

The bill was presented to the Legislative Assembly last year but was not discussed.  Rojas argues that neither the Permanent Court of Military Justice (TPJM) nor the Supreme Court of Military Justice are recognized in the Bolivian Constitution.  Article 180 of the Constitution, however, states that "military jurisdiction will judge crimes of military nature regulated by law."

What they are proposing is not the complete disappearance of military justice, but rather that within the TSJ special chambers be created to deal with military offenses, including a judge or tribunal specialized in military law.

Detention-shopping skirmish continues in the Philippines

It's not over: a lawyers' group in the Philippines is seeking to have a retired Army major general returned to civilian custody by the court that ordered him transferred, purportedly for his own safety, to military custody. According to this account, the National Union of Peoples' Lawyers . . .

said under Section 1 of Republic Act 7055, “members of the Armed Forces of the Philippines and other persons subject to military law, including members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses penalized under the Revised Penal Code, other special penal laws, or local government ordinances, regardless of whether or not civilians are co-accused, victims, or offended parties, which may be natural or juridical persons, shall be tried by the proper civil court…”

“Consistent with the narrowing of the scope and coverage of military law to those in active service, the general rule is that military law jurisdiction over officers, cadets, and others in the military service of the Philippines ceases on discharge or other separation from the service, and that jurisdiction as to an offense committed during the period of the service thus terminated is not reinstated by a reentry in the military service.

In this case, the motion [to retransfer] stated that kidnapping with serious illegal detention under the Revised Penal Code is not covered by the Articles of War nor is the accused subject to military law.

“Considered a civilian charged under civilian law, it cannot be made plainer that allowing accused [General Jovito] Palparan to stay in military detention is a treatment special if not extraordinary from that of others falling in the same classification,” the motion stated.

The Economist on South Korean military abuses

The Economist has this (and more) to say about calls for reform in the South Korean armed forces:

Calls for sweeping reform to barrack-room culture are all too familiar. Physical abuse in South Korea’s 650,000-strong conscript army has long been tolerated as a means to toughen troops against a northern army thought to be twice as large. Two military coups and a long period of martial law (under the current president’s late father, Park Chung-hee) have given the army exceptional leeway in how it conducts its affairs. It is largely immune from democratic oversight.

That means tormentors are not properly punished. Around 150 bodies remain in the army’s morgue. Their cause of death is given as “failure to adjust to military life”. But relatives refuse to collect the bodies because they want an independent investigation to confirm the cause of death. Military courts, says Choe Kang-wook, a former lawyer in the army, are the “shame of South Korea”. High-ranking generals without legal knowledge preside over court proceedings.

Australian Senate hearing on Defence Abuse Response Taskforce

The Brisbane Courier-Mail reports here on a lively Senate hearing concerning complaints about the work of the Defence Abuse Response Taskforce. So far, payments totaling over $46 million have been either approved or actually made to 1100 victims of abuse.

How to discourage litigation

Lahore High Court

From Pakistan comes word of this shocking case in which an Air Force officer was punished for having gone to the civilian High Court in Lahore (LHC) to complain about the service's selective refusal to permit him to retire early. Now he is seeking to have those responsible held in contempt of court.

According to the charge-sheet attached with the fresh petition, [Squadron Leader Akhtar] Abbas was being tried by a Field General Court Martial for various charges, including a charge under Section 65 of the PAF Act, entitled ‘An Act Prejudical To Good Order And Air Force Discipline’.

His crime is that he “while being in the service of PAF, filed a writ petition against the federation of Pakistan and chief of air staff in the LHC’s Rawalpindi bench”.

HRW responds to criticism of its report on AMISOM peacekeeper discipline

Human Rights Watch has released a point-by-point rebuttal of criticisms leveled at its recent report on peacekeeper indiscipline in the African Union Mission in Somalia (AMISOM). For example:

8. Are the AU and AMISOM already providing training and awareness-raising on the issue of sexual exploitation and abuse? 

The Human Rights Watch report includes steps taken by the AU and AMISOM over the last year aimed at establishing institutional policies and structures to tackle sexual exploitation and abuse. Human Rights Watch also assessed how troop-contributing countries have to varying degrees deployed legal officers, military investigators, and intelligence officers to Somalia to investigate misconduct by their troops as well as conducting pre-deployment training.

However, Human Rights Watch concluded that troop-contributing countries have not sufficiently used the investigative and legal resources at their disposal to tackle sexual exploitation and abuse. Legal advisers deployed to Somalia told Human Rights Watch that they had not participated in any boards of inquiry into sexual exploitation and abuses. It appears that very few cases involving Somali victims were heard by Uganda’s divisional court martial when it was posted to Mogadishu for a year and Human Rights Watch identified only one case of rape, of a child, pending before a military court in Uganda.

In addition, as the then-Special Representative of the Chairperson of the African Union Commission for Somalia, Mahamat Saleh Annadif, acknowledged in his response to Human Rights Watch’s queries, AMISOM has not developed appropriate investigative capacity and complaints mechanisms. Human Rights Watch found that the one board of inquiry at the AMISOM headquarters level established following allegations of gang-rape by Ugandan soldiers in Mogadishu in August 2013 was clearly inadequate.

HIV+ soldiers can serve in South Africa

The High Court in Pretoria has ruled that five HIV+ soldiers should not have been dismissed from the South African National Defence Force.

Judge Meyer Joffe ruled that the SANDF’s defence of their own health policy for the second time was "vexatious, frivolous and abusive" and ordered the defence force to pay costs, Section 27 legal advisor Violet Kaseke said on Friday.

Earlier this year, Section 27 and two defence force unions had gone to court arguing that the military continued to make personnel decisions based solely on issues of health status, despite a previous ruling that deemed this unconstitutional.

The issue dates back to 2008 when civil rights groups and defence force unions took the SANDF to court over its then health classification policy, which excluded HIV-positive individuals from recruitment, external deployment and promotion.

That policy was then ruled to be unconstitutional, with the high court maintaining that it "unreasonably and unjustifiably infringed the rights of aspirant and current HIV-positive members".

The issue returned to court this year when the lobby groups, acting on behalf of five applicants, argued that the SANDF was not adhering to its current health policy, implemented in 2009.

Friday’s ruling reaffirms that healthy individuals who are HIV-positive should in no way be discriminated against in any form of employment through blanket restrictions, said Ms Kaseke.

Sentencing shift in Taiwan

With last year's shift of cases from the military justice system to the civilian courts, there is some evidence that Taiwanese sentences will be less draconian than they previously were. For example, in this embezzlement case, the military court handed down a sentence of 14 years' confinement but the civilian court sentence was two and one-half years. In this spying case, life imprisonment was changed to 18 years.

Mexican court-martial transparency questioned

The Associated Press has moved this story about several cases involving military personnel. It begins by observing that "[c]harges against Mexican military personnel are rare. Most cases involving active duty personnel are handled by military courts, which give little, if any, information about their resolution." Several of the cases mentioned, however, seem to have been handled by civilian authorities.

The Nigerian mutiny case

This Daily Trust article promises "the inside story" on the Nigerian mutiny case that led to 12 capital sentences, including how the final verdict was reached.  It doesn't deliver what it promises, quoting from witness statements and defense counsel, but it does give a sense of how high feelings are running about the case.

More questions about constitutionality of Nigerian capital case

From an editorial in Premium Times about the recent capital sentences awarded to 12 Nigerian soldiers convicted of mutiny and other offenses:

"There are serious doubts whether the court martial under the Army Act complied with the essential rules of fair hearing. The guarantee of fair hearing in criminal proceedings under Nigeria's Constitution requires a clear separation of the roles of the prosecutor, judge and defence. Yet, in a court martial, the Army is the investigator, prosecutor, defence counsel, and the judge. This is akin to placing soldiers charged before a court martial beneath the protections provided for in our constitution. We agree that persons who opt to go into the armed forces subject themselves to a special regime with its own forms of discipline. We draw the line, however, at any suggestion that our men and women in uniform should thereby be placed outside the protection of the Constitution."

Nigeria's military justice system is based on the pre-Findlay command-centric UK model.

Chilling complaints of sexual misconduct

Two days ago Global Military Justice Reform noted that there was testimony in a case at Ft. Leonard Wood that a command sergeant major had threatened that trainees would not graduate if more complaints of sexual misconduct surfaced. Now it appears there also was testimony that a lieutenant colonel made a similar comment. Both Missouri senators are now on the case, as is a public interest organization. No word yet from the base commander. Query: are the 2013 military justice reforms working, or do these reports suggest that Congress needs to do more (such as pass Sen. Kerstin Gillibrand's Military Justice Improvement Act)?

Transparency watch: media access to charge sheets

Air Force Times reports here on the dismissal of charges against a military training instructor on the ground that they did not state an offense. This can happen, but what's so hard about making the charge sheet available, the better the understand the military judge's ruling? "The Air Force did not immediately provide a charge sheet detailing the alleged offenses, including when they occurred."

Quote of the day

"Think about it," he said. "If you're a judge and you know that your boss can remove you if he doesn't like your decisions, well, human nature tells you that is going to most likely influence the way you make your decisions."

Randy Frye, president of the Association

of Administrative Law Judges,

on Iowa Gov. Terry Branstad's

move to shift state administrative

law judge to at-will status

What's this got to do with military justice? Judges in the U.S. Navy, Marine Corps, and Air Force all serve without fixed terms of judicial office.

As for those in the U.S. Army and Coast Guard who, by regulation, enjoy three-year fixed terms that are subject to possible renewal, consider this from para 89 of yesterday's decision of the Supreme Court of India in Madras Bar Association v. Union of India, Transferred Case (C) No. 250 of 2006 [shared by Global Military Justice Reform's indefatigable contributor Navdeep Singh]:

Insofar as the validity of Section 8 of the NTT [National Tax Tribunal] Act is concerned, it clearly emerges from a perusal thereof, that a Chairperson/Member is appointed to the NTT, in the first instance, for a duration of 5 years. Such Chairperson/Member is eligible for reappointment, for a further period of 5 years. We have no hesitation to accept the submissions advanced at the hands of the learned counsel for the petitioners, that a provision for reappointment would itself have the effect of undermining the independence of the Chairperson/Members of the NTT. Every Chairperson/Member appointed to the NTT, would be constrained to decide matters, in a manner that would ensure his reappointment in terms of Section 8 of the NTT Act. His decisions may or may not be based on his independent understanding. We are satisfied, that the above provision would undermine the independence and fairness of the Chairperson and Members of the NTT. . . .

Nor is India alone in viewing the renewability of fixed terms of office as compromising judicial independence. Click here (South Africa).

Some good news from Myanmar

The Irriwaddy has this story about the referral of rape charges against a soldier to civilian court rather than military court. This has happened occasionally in the past, but infrequently enough that it is news. "Civilian courts are . . . rarely used to hear cases of rape involving soldiers, and rights groups complain that the courts-martial justice system lacks transparency, with details of military trials’ outcomes very difficult to obtain."

Colombian court upholds right to conscientious objection

The Constitutional Court in Colombia has upheld the right to conscientious objection, freedom of worship and religious freedom in a recent decision that declared that a young man could not be compelled to participate in compulsory military service if his religious beliefs prevent him from engaging in violence or belonging to armed groups.

The military argued that the young man could perform combat support functions that would not include direct participation in tactical operations. The court ordered the military to release the young man from his military service obligations.

Tug of war continues between civilian and military courts in La Paz

Jhonny Félix Gil Leniz

The long-running case of NCO Jhonny Félix Gil Leniz continues to make the news in Bolivia. Most recently, a civilian judge has ordered the military court to reconsider its decision keeping Gil in pretrial detention in three days' time. Correo del Sur has the story.

Should Spain's Guardia Civil be subject to military justice?

A case from the Canary Islands has raised an interesting recurring question: should personnel of the Guardia Civil be subject to military justice, even though the Guardia is not part of Spain's armed forces? Here is the story according to El Confidencial Digital. In other countries with militarized police forces (e.g., Chile's carabineros), the concern has been whether victims of police misconduct can get a fair shake from military courts. Here, in contrast, it is a question of internal discipline not affecting members of the public: the accused is simply charged with insulting a superior. The controversy could wind up at the European Court of Human Rights.

Speaking of transparency

Brig. Michael Ondoga, UPDF (right)

The major general serving as president of the general court-martial that is taking evidence behind closed doors at Uganda's Makindye Barracks has warned a defense attorney not to leak information about the proceedings:

"The court has been hearing the testimony of the first prosecution witness, Lt. Col. Edson Muhanguzi, formally the commander of the Uganda Battle Group ten in Somalia in camera because of its 'sensitivity' to national security and the African Union led operations against the al-shabaab terrorists in the horn of Africa nation.

"He is the only witness who has so far testified since [Brig. Michael] Ondoga's trial began. According to the state, Muhanguzi's testimony touches on the sensitive areas of the operations against the al-shabaab terrorists, deployment and the military hardware deployed against the enemy among others."

Colombian president promises to limit court-martial jurisdiction

Pres. Juan Manuel Santos

According to this summary in Colombia Reports, "Colombia President Juan Manuel Santos vowed this week that cases related to extra-judicial killings and human rights breaches committed by the Colombian military would never be tried in military courts." The Colombian Congress is considering legislation that would affect where such cases are tried.

Lt Col Butch Bracknell on transparency -- part 2

Lt Col Robert Bracknell, USMC (left)

Jurist has posted Marine Lt Col Robert Bracknell's second essay on military justice transparency. This one deals with the little-known system for professional discipline of judge advocates and civilian lawyers who practice before courts-martial. The system is administered by the Judge Advocates General. The essay "critiques exempting military attorney misconduct and judicial misconduct records; including reports of investigations, findings and sanctions, from being released to the public and advocates for legislative changes that promote regulatory systems similar to those employed by the state bars." This is another excellent, thought-provoking proposal that deserves attention from Congress and the armed forces. Click here for Lt Col Bracknell's earlier proposal concerning transparency of court-martial records.

Allegation of attempt to discourage sexual assault complaints

The U.S. armed forces continue to fight sexual assault in the ranks. Under intense congressional scrutiny, cases are going to trial, resulting in (predictably) some convictions and some acquittals. Disturbing testimony was heard yesterday in an Army court-martial at Ft. Leonard Wood in Missouri:

An Army National Guardsman testified here Tuesday that her company of soldiers in training was told by a high-ranking noncommissioned officer that the group might not graduate if additional reports of sexual assault surfaced

From the bench, Third Circuit Court Chief Trial Judge Col. Jeffrey Nance asked the low-ranking guardsman, who now lives in Maryland, for clarification.

The woman, Private Alleita Gray, testified that 14th Military Police Brigade Command Sgt. Major Scott Dooley told her company that “if any more sexual assault cases come forward” the whole company of soldiers wouldn't graduate. The comment came several months ago during advanced individual training, Gray said. Such a class could have anywhere from 100 to 200 soldiers in it.

“Well, that's remarkable, but not relevant,” Nance said in response.

The Army declined to comment because the court-martial is still going on.

Private Manning back in court . . . as a plaintiff

Private Chelsea E. Manning is back in court, this time as a plaintiff suing Secretary of Defense Chuck Hagel and various U.S. Army officials. The complaint, filed in the United States District Court for the District of Columbia, can be found here. It asks, among other things, that the court

(a) Declare that Defendants’ actions denying Plaintiff necessary medical treatment for gender dysphoria violate the Eighth Amendment to the United States Constitution;

(b) Enter an injunction directing Defendants and their agents to provide Plaintiff with clinically appropriate treatment under the Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People developed by the World Professional Association for Transgender Health, including, but not limited to, (1) providing hormone therapy for Plaintiff’s gender dysphoria; (2) permitting Plaintiff to express her female gender by following female grooming standards, including dress and hair length; and (3) providing Plaintiff with treatment by a clinician who is qualified to treat gender dysphoria.

Pvt. Manning is represented by a team of American Civil Liberties Union lawyers headed by Arthur B. Spitzer, long-time Legal Director of the ACLU's National Capital Area affiliate, and by David E. Coombs, who was civilian defense counsel in the court-martial.

Did capital court-martial violate Nigerian Constitution?

Olisa Agbakoba, SAN

Dr. Olisa Agbakoba, a Nigerian human rights lawyer and former president of the Nigerian Bar Association, contends in this Guardian (Lagos) op-ed that the recent Army capital court-martial was unconstitutional:

The manner, procedure and process by which these condemned soldiers were sentenced to death is contrary to the Nigerian Constitution. The reason is because the Army was investigator, prosecutor and judge all rolled into one. This is contrary to the rules of natural justice as consecrated at Section 36 of the Nigerian Constitution.

The constitution and composition of the Court Martial are fundamentally flawed as they violate the fundamental rights of the convicted soldiers to fair hearing and trial as enshrined in the Constitution.

The commander, Brig-Gen B.T. Ndiomu, who set up the Court Martial, is a party interested. He appointed all 9 members of the Court Martial, namely, the President, Brig-Gen C.C. Okonkwo, two waiting members, a judge advocate and two prosecuting officers and the investigators. The Judge advocate who is to assist the Court Martial on legal points is far junior to the President of the Court Martial. By military tradition of obedience to superior orders, it is difficult for the Judge advocate to give unwanted advice to the President of the Court Martial, who is a far superior officer.

The Supreme Court of Nigeria has decided in Gani Fawehinmi v LPDC [Legal Practitioners Disciplinary Committee v. Fawehinmi (1985) NWLR (Pt. 7) 300] ... "that whenever a procedure allows admixture of the investigator, prosecutor and judge to be appointed or controlled by one authority, it is impossible for the accused to obtain fair trial."

It is my opinion that the principles laid down by the Supreme Court of Nigeria in Gani's case are fully applicable to the decision of the Court Martial.

Congressional Research Service report on major court rulings concerning enemy combatant detainees

The Library of Congress's Congressional Research Service has issued this useful report on Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings. The authors are Jennifer K. Elsea and Michael John Garcia.

Abu Qatada's case in Jordan

This Associated Press article reveals an interesting fact about the trial of Abu Qatada in Jordan: after his attorneys questioned the independence of the military court, authorities substituted civilian judges. The issue had delayed his deportation from the UK. A verdict is expected on Sept. 24, 2014.

Quote of the day

"[I]n a workplace environment that relies on top-down leadership, the continued lack of transparency by military leaders in their handling of assaults, harassment and hazing will remain.

"Without change among the brass, a shift in thinking among the rank and file won't happen. As [Sen. Kirsten] Gillibrand [D-N.Y.] has said, leaders who show their reluctance to act on these issues shouldn't be relied on to guide the necessary change."

Editorial, "Military's Slow Moves to Change Its Culture," The Virginian-Pilot, Sept. 23, 2014

Brief tenure in Somalia

Col. Abdirahman Mohamed Turyare

After only four months on the bench, Somalia military court chief Col. Abdirahman Mohamed Turyare has been appointed Director of the National Intelligence and Security Agency. Details here. He had earlier made the news for urging UN authorities to refrain from criticizing the court system he headed.

Horse-trading over jurisdiction

Global Military Justice Reform continues to wonder when military personnel are tried in courts-martial for off-base offenses. It is rare that the details of negotiations between civilian and military authorities over such matters become public, but this story from The Fayetteville Observer is the exception. It turns out Ft. Bragg and local civilian authorities had made a deal as to which one would try the case, but the Army reneged when Ft. Bragg officials rotated out, and the accused is not getting his preference. Should the accused's preference for a military forum matter?

Military justice reform in Republic of Korea faces resistance

The Korea Times has this article about proposals for basic changes relating to the Republic of Korea's armed forces. On military justice, the author has this to say:

Currently, the military operates two kinds of courts -- a general military court, the court of first instance or initial trial court, and a high military court, the appeals court.

If a defendant or prosecutor lodges a second appeal following a decision by the high military court, the case then goes to the Supreme Court for a final ruling.

One of the most radical arguments regarding reforming the military's judicial system is a call to remove the military courts in peace time, and operate them only in times of war.

Those who support this idea say that this measure would be a way of strengthening the independence of trials, as it is an outdated practice that only officers should control the entire trial process in the military courts -- beginning from investigation, to indictment, through to the formation of judge panels and, ultimately, the issuance of rulings. 

They claim that judges in civilian courts have sufficient professionalism to make a decision on military-related crimes and that abolishing the military courts is an international trend driven by efforts to guarantee the independence of military trials. Military courts currently don't operate in Japan, Sweden, Austria and Belgium.

Should the military have a role in civilian law enforcement?

Today's New York Times includes this story about issues surrounding cooperation between military criminal investigators and civilian law enforcement authorities. Click here for an earlier post about the recent Ninth Circuit panel decision in a case involving the Naval Criminal Investigative Service (NCIS). No word yet on whether the government will seek rehearing en banc or Supreme Court review of the panel's decision.

Drill sergeant's trial begins at Ft. Leonard Wood

The St. Louis Post-Dispatch reports here on a court-martial, set to begin this morning, of a drill sergeant accused of 27 specifications of misconduct with female subordinates:

At least one woman said [Staff Sgt. Angel M.] Sanchez threatened that she’d be kicked out of the Army if she didn’t engage in sexual acts with him. He’s accused of improperly touching a fellow drill sergeant, as well as other women during floor counts with the “intent to gratify his own sexual desires,” records say.

He’s accused of harassing low-level soldiers, telling one: “When you get to your new unit don’t be a whore, you will be fresh meat.”

Why was this case tried by court-martial?

The Washington Post has this story about the case of U.S. Army Staff Sgt. Robert D. Carlson, who is now serving an eight-year court-martial sentence for off-base misconduct. The Army assumed jurisdiction after an Alaska state grand jury refused to indict. Why was this case tried by court-martial?