Saturday, January 31, 2015

Supreme Court Bar Association to join constitutional attack on Pakistani military courts legislation

The Supreme Court Bar Association will join in the legal proceedings in the Supreme Court of Pakistan challenging the legislation under which new military courts have been authorized to try civilians, according to this story in The Express Tribune. The Lahore High Court Bar Association already has a petition pending before the court, and the Pakistan Bar Council has previously indicated that it would join in the litigation.

"All back full"

The Pakistani government has reversed engines and is now not going to extend the 21st Amendment military courts to Azad Jammu and Kashmir (AJK) and Gilgit-Baltistan (GB), according to this report in Dawn. AJK and GB are part of Pakistan but are not covered by the country's Constitution. The reason for the change in policy has not been disclosed, but according to Dawn's account it presumably has to do with the areas' constitutional status.

Uganda capital court-martial adjourned for lack of a quorum

A UPDF general court-martial has had to adjourn because two members of the panel were otherwise occupied. Details here. Excerpt:
Most members of the court panel hold more than one office in the military and they don’t appear in court sometimes due to their busy schedules. This partly explains why some cases have been in the military court for a long time.
Surely service on a capital jury should take precedence over other military duties.

Civilian conviction not noted in service record: what is to be done?

Col. (ret) Don Christensen
Air Force Times has this report on a case in which a senior NCO is being retired at a pay grade lower than the one in which he last served, as he had not served in it for the required three years. He had been convicted years before in civilian court for threatening his girlfriend and served a short civilian jail term.

The offense was so old that sequential prosecution by a court-martial, much less nonjudicial punishment, was barred by the statute of limitations. The NCO had disclosed the civilian conviction to military authorities as required, and he received the necessary waiver for reenlistment. He was also repeatedly promoted. Apparently the civilian conviction was never made a part of his service record. Air Force Times notes:
Retired Col. Don Christensen, former Air Force chief prosecutor-turned-president of Protect Our Defenders, called the case a "perfect example of how the command-driven justice system covers for the crimes committed by military members. Clear message is if your commander likes you, you can get away with violence against women or sexual assault."
 The Air Force is taking steps to make sure this kind of thing doesn't happen again.

A case of the slows

The Ontario Superior Court, per Judge Martin James, has granted a stay of proceedings in a case that began as a military justice matter. The reason: unreasonable delay by the Canadian Armed Forces, in violation of s. 11(b) of the Canadian Charter of Rights and Freedoms. The decision is R. v. Ward, 2015 ONSC 83, available here. The Daily Observer has the story. Excerpt:
"In this case it is difficult to escape the conclusion that excessive delay took place as a result of lack of timely action, if not indifference, by governmental forces at different points leading up to the transfer to civilian authorities," James concluded. "Likewise it seems clear that (Ward) has suffered actual prejudice stemming from the delay. It is worth noting as well that inferred prejudice increases as time passes."

Friday, January 30, 2015

Is a new state military justice code in Alaska's future?

“Alaska’s military code was written in 1955 when we weren’t a state. . . . It has never been updated or truly affected or enacted since. It’s incredibly antiquated. It has no teeth, and for various reasons over the decades, it has never been enforced in Alaska.”

Alaska Adjutant General Mike Bridges, quoted here.

70 years on

Private Eddie Slovik
January 31 is the 70th anniversary of the execution of Private Eddie Slovik in France. PVT Slovik is the last American soldier to have been executed for desertion. (The last U.S. military execution was in 1961.)


Yesterday, Global Military Justice Reform's tracking system revealed that we had had our first reader from Honduras, giving us hits from 135 countries in a little over a year. For whatever reason, this landmark -- coupled with the dramatic developments in Pakistan and elsewhere -- caused the editor to think back to 1991, when Rear Admiral (ret) John S. Jenkins, Professor Stephen A. Saltzburg, Commander (ret) Philip D. Cave, the late and deeply-missed Captain (ret) Kevin J. Barry, and the editor gathered at the Army and Navy Club in Washington, D.C. to create the National Institute of Military Justice (NIMJ).* Happily, NIMJ has proved to be an enduring organization, now on its third generation of leaders.

In the ensuing quarter century it has become increasingly apparent that the United States is not the only country in the world that can benefit from an nongovernmental organization of lawyers who are well-versed in military justice and committed, as NIMJ is, to improving both the administration of justice in the armed forces and public understanding of the military justice system. Thus far, however, we have not seen the rise of comparable organizations in most other countries, although important steps have been taken, such as the creation of the Association of Military Court Advocates in the UK and the Armed Forces Tribunal Bar Association in India, and blogs such as that edited by Major (ret) Navdeep Singh.

Can more be done in these and other countries? The fact that a blog such as this proves to be of interest to individuals in 135 countries suggests that the answer is Yes. Will the next, say, five years witness the establishment of a crop of independent (i.e., not dominated by government) national military justice institutes dedicated to improvement, fairness, transparency and, ultimately, structural reform? Which country will be next? Practitioners and professors: the floor is open . . .

* Global Military Justice Reform is completely independent of NIMJ.

A practitioner's comments on Pakistan's courts-martial

Dr. Abdul Razzak, a sociologist as well as a defense counsel before Pakistan's military courts, has written this op-ed for The News International. Among his insights:
. . . Placing reliance upon military courts may be need of the time and perhaps the only option within the given social milieu. However, it needs to be appreciated that military courts are meant to deal with a military society that passes through a peculiar process of socialization, has distinct cultural traditions and there is zero tolerance against individual or collective deviance. The military officers dealing with process of justice are neither trained to adjudicate nor they are trained in application and interpretation of law. As military commanders they adjudicate deviant conduct to preserve discipline by all means. The military justice system usually does not negotiate justice by disregarding the essence of discipline. In our case the military society is a closed society and it jealously guards itself against any outside interference. The military persons are subject to a distinct law where there are no remedies in respect of fundamental rights. The process of investigation, pre-trial scrutiny and the process of trial itself is subservient to the intentions of the military commander ordering the trial. The military officers conducting the trial are often subordinate to or inferior in rank to the military commander convening the court. Most importantly the military court is not required to record any reasons to justify its judgment and it is only required to pass a finding of guilty or otherwise and award sentence. If there is no speaking order wherein evidence relied upon is discussed and analyzed, it becomes almost impossible for an appellate forum to review the judgment. The convicted person faces hardship in understanding the substance of case against him. This perhaps is not only illegal and unconstitutional but also is against the universal standards of administration of justice. Under the law a military court is an open court but hardly any proceedings are conducted in public view. The judgments of military courts in Pakistan are not open to any independent scrutiny by a civil court unlike several other countries including India, China, Canada, Australia and the list goes on. There is an appellate forum within the services which again is manned and managed by military officers. It is not the purpose here to stigmatize the process and procedure of trial by military courts. The idea is to draw attention towards the gap which is needed to be filled to present a better outlook of trials by military courts even if it is an undesirable option for a limited period of two years. . . .
 Dr. Razzak argues -- as have others -- that Pakistan should take the current opportunity to fix its dysfunctional civilian justice system. Editor's query: not so fast about pointing to China as a model for civilian appellate review of courts-martial given the virtually complete lack of transparency.

423 cases referred to military courts in Pakistan; most involve fugitives

Dawn reports that 423 cases from Khyber Pakhtunkhwa have been referred to Pakistan's new military courts. Judging by the sample pages from a longer (45-page) list partially reproduced in the newspaper's online version, many of the cases involve individuals who are currently in Afghanistan, rather than Pakistan. Only a few are currently in jail awaiting trial.

Service record-correction boards grant relief to U.S. transgender veterans

The Army, Navy and Air Force record-correction boards have now all granted relief to transgender veterans seeking to have their identity and names correctly noted on discharge documents. Details can be found in this report from The Rainbow Times. The National LGBT Bar Association, which has a Military Law Working Group, and lawyers from the firm of Orrick, Herrington & Sutcliffe have been working on this issue.

Thursday, January 29, 2015

When Is an “Amicus Curiae” Not a “Friend?”

Most experienced appellate counsel have noticed an increase in the filings of amicus curiae (“Friend of the Court”) briefs in recent years. That in and of itself is not a remarkable occurrence. What is remarkable is the fact that vast numbers of those briefs are increasingly being used as pure “lobbying” vehicles in favor of one party or another. And when federal appellate judges start either criticizing or rejecting amicus curiae briefs, it is perhaps time to look at all of this a bit more closely.

Court rules govern virtually everything in appellate practice and amicus curiae briefs are no exception. Consider Rule 37(1), of the Supreme Court of the United States [SCOTUS] on this point:
An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.
There we see that SCOTUS is looking for “relevant matter not already brought to its attention” as the guiding light for what that Court is looking for in an amicus curiae brief.

Federal Rule of Appellate Procedure [FRAP], Rule 29(b), is a bit more specific, requiring the amicus party to satisfy a two-prong test, to wit:
  (1) the movant’s interest; and
  (2) the reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.
Of course, neither prong is very difficult to satisfy in the average appeal, especially in criminal cases.

However, the U.S. Court of Appeals for the Armed Forces [CAAF] – for reasons unknown –  utilizes a totally different approach to briefs of amici curiae. There is no specific “test” or requirements as in SCOTUS Rule 37(1), or FRAP Rule 29(b). Indeed, the suggestion is just the opposite, viz., it is more or less assumed that an amicus curiae brief will generally be “in support of a party . . . .” or in support of “neither party.” CAAF Rule 26(b). Hence there is no suggestion that an amicus bring “relevant matter” not otherwise brought to the Court’s attention or even explain why the amicus curiae brief contains matters “relevant to the disposition of the case.”

And, there lies the issue.


Currently pending before the CAAF is the case of United States v. Schloff. On the merits, the issues involve a question of statutory interpretation of the scope of what constitutes a “touching” for a charge of “abusive sexual contact” under Article 120(g), UCMJ, 10 U.S.C. § 920(g). What is interesting however, is that after the government filed their Brief at CAAF, the Special Victim Counsel [SVC] filed an amicus curiae brief as well, not “in support of” the government, but simply “ON BEHALF OF VICTIM.” (sic). Nowhere does the SVC’s brief state:
 • What “relevant matter” it is bringing before the court “not already brought to its attention by the parties . . . .” [SCOTUS Rule 37(1)];
 • What the SVC’s “interest” is in the case [which may be inferred, but still is not specified]; or
 • “[T]he reason why an amicus brief is desirable and why the matters asserted are relevant to the disposition of the case.” [FRAP, Rule 29(b)].
Comparing the government’s brief with that of the SVC’s amicus curiae brief, the SVC brief essentially tracks and mirrors both the arguments and authorities raised by the government’s brief, with minor stylistic differences. The question then becomes, of what value to the CAAF is such an amicus brief when all it really does is to echo the government’s brief and lobby the Court to deny relief to the appellant via the SVC?


Modern appellate practice, until recently, has seen “friends of the court” briefs used in a number of constructive ways. For example, presenting historical data on the issues before the court; social science research and data that may be relevant to a particular disposition; adverse or unintended consequences of adopting a position urged by a party; flushing out complex issues in arcane areas of the law, e.g., admiralty law and patent law; and so forth.

Looking at Schloff, under CAAF’s ambiguous and broad amicus curiae rule, the SVC cannot be faulted for seeking amicus status. Yet, in United States v. Dearmond, 65 M.J. 423 (CAAF), rev. denied, 65 M.J. 424 (CAAF 2007), the Court without explanation denied amicus curiae status to a “pro bono victim advocate counsel.”  And in United States v. Green, 68 M.J. 205 (CAAF), aff'd 68 M.J. 360 (CAAF 2010), a majority of the CAAF denied an amicus curiae request over a dissent by Judge Baker and then C.J. Effron. Their dissent is instructive, which reads in relevant part:
Our rules do not preclude such a filing, nor indicate the standards by which this court should evaluate such a request. In that context, the courthouse door should be open, not closed. As a result, I would grant the motion; the court could then determine what consideration and weight, if any, to give to the filing.
And as the dissent noted:
Airman Basic Witt, an appellant in the Court of Criminal Appeals, requests the opportunity to file an amicus brief to inform this court as to how the issue(s) presented in the instant case will, in his view, impact the broader and uniform application of the law, including in his case.
Witt certainly satisfied the requirements of FRAP Rule 29(b) – at least in the minds of the dissenting judges.

Some years ago, Judge Posner of the Seventh Circuit Court of Appeals, authored a short opinion on when an amicus curiae brief was appropriate and when it should be denied. In Ryan v. Commodity Futures Trading Comm'n, 125 F.3d 1062 (7th Cir. 1997), in his capacity as Chief Judge, he first made the following observations and ultimately denied the amicus request:
The tendency of many judges of this court, including myself, has been to grant motions for leave to file amicus curiae briefs without careful consideration of “the reasons why a brief of an amicus curiae is desirable,” although the rule makes this a required part of the motion. After 16 years of reading amicus curiae briefs the vast majority of which have not assisted the judges, I have decided that it would be good to scrutinize these motions in a more careful, indeed a fish-eyed, fashion. Id. at 1063.
He continued as follows:
The vast majority of amicus curiae briefs are filed by allies of litigants and duplicate the arguments made in the litigants' briefs, in effect merely extending the length of the litigant's brief. Such amicus briefs should not be allowed. They are an abuse. The term “amicus curiae” means friend of the court, not friend of a party. Id. [Emphasis added, citation omitted]  * * * * *    We are not helped by an amicus curiae's expression of a “strongly held view” about the weight of the evidence . . . but by being pointed to considerations germane to our decision of the appeal that the parties for one reason or another have not brought to our attention. Id. at 1064 [internal citation omitted].
See also United States v. State of Michigan, 940 F.2d 143, 163 et seq. (6th Cir. 1991) [exhaustive discussion of the role and appropriateness of amici curiae curiae briefs]; and Anderson, Frenemies of the Court: The Many Faces of  Amicus Curiae, 49 U. Richmond L. Rev. (forthcoming 2015), available here:

Returning to Schloff, the SVC can be faulted in this writer’s opinion, for not demonstrating why the “victim” had a bona fide interest in what was by everyone’s admission, a pure question of law. Especially when the SVC’s brief is nothing more that a regurgitation of the government’s official brief. This should not be considered an ad hominem attack on the SVC because it is not. Rather, it is a critique of CAAF’s dysfunctional amicus curiae rule that encourages such briefs without aiding the Court (or the parties) by bringing “relevant matter” to the Court’s attention not addressed by the parties.

While appellate courts’ amicus rules should be interpreted liberally, they likewise need to ensure that such briefs are more than just “friends of a party” pleadings, duplicating what is already before the court. Judge Posner’s analysis is apt and persuasive and is consistent with SCOTUS Rule 37(1). CAAF’s Rules Committee should consider revising CAAF Rule 26(b), so that it is harmonious with FRAP Rule 29(b).

Demonstration in support of convicted member of Guardia Civil

The Unified Association of Civil Guards is going to hold nationwide gatherings and a demonstration in Madrid in support of a member of the Guardia Civil who was sentenced to four months' confinement for insulting a superior. Details can be found in this article in La Vanguardia Política.

Asylum denied in Spain

A military justice reform issue has emerged in Spain -- but it concerns Morocco. At issue is whether Spain erred in denying asylum to a civilian who was sentenced to life imprisonment by a Moroccan military court for participating in the Gdeim Izikin protest encampment in Western Sahara. The latest development is a hunger strike in support of the asylum-seeker, Hassana Aalia. at the Madrid airport. Morocco last year announced the end of military trials for civilians, with considerable fanfare. How is that reconciled with this case? Will the European Court of Human Rights -- assuming its jurisdiction is invoked -- find Spain's denial of asylum a violation of the European Convention on Human Rights? But will it be too late for this defendant? He is due to be deported by February 4.

Conscientious objection in Colombia

El Nuevo Herald reports that the Colombian Constitutional Court has opened the door to conscientious objection as a means of evading mandatory military service. Details here (in Spanish). Colombian conscripts serve between 12 and 24 months. The case is Dkt. No. T-455 of 2014. This was one of several holdings related to military service, summarized by El Tiempo here. Another holding sustained the exemption for only sons.

Caveat emptor (or vendor?)

"On one hand, we want to be in compliance. But we can't discriminate against anybody. . . . It's not like they are wearing a name tag."

Shawn Sortland, owner of Clear Choice Cannabis, in Tacoma, Washington, regarding a letter he received from the Armed Forces Disciplinary Control Board at Joint Base Lewis-McChord, advising retail marijuana shops that military personnel are banned from entering their businesses and buying cannabis products. He is consulting counsel.

The Gumri Case

Armenian News Magazine reports here on the current state of affairs in the case of a Russian soldier charged with the murder of six Armenian civilians in Gumri. A 10-member joint investigative committee has been established, with five from each country. The Russian authorities are holding the accused on the Russian Army based in Armenia, and apparently plan to try him there under Russian law. The Armenian parliament is to hold a hearing on the situation. Russian foreign minister Sergei Lavrov has complained that it is "disgusting and unacceptable" that foreign interests would seek to capitalize on the situation in order to obtain some geopolitical advantage.

Jockeying for position between host and sending States is hardly unprecedented, as repeatedly fraught U.S. relations with Japan over events on Okinawa have shown. Still, for the sending State to wind up with jurisdiction where the charges involve the death of six host State nationals is startling, and it would not be surprising if local opinion found it unacceptable.

More details on 21st Amendment hearing before Pakistan Supreme Court

The Express Tribune has published additional details about the hearing earlier this week in the Supreme Court of Pakistan in the challenge to the 21st Amendment and ancillary legislation authorizing new military courts. In addition to the federal attorney general, the four provinces and capital territory will also have to respond to the petition filed by the Lahore High Court Bar Association. Interestingly, Hamid Khan, counsel for the association, was asked about his own role in connection with framing the objected-to legislation. He replied that he was not a member of Parliament and merely participated in a group asked to offer suggestions. The court did not refer the case to a larger bench; perhaps that will occur once the various government responses have been received. Excerpts from the Express Tribune article:
During the hearing, LHCBA’s counsel Hamid Khan used articles 2A, 8, 9 and 175(3) [of the Constitution] to build his case against the 21st amendment.
Citing article 175(3) – which separates the judiciary from the executive – Khan argued that the new amendment undermined both the independence of the judiciary and the trichotomy of power. He added that the fresh legislation also infringed upon article 8 which declares laws inconsistent with or in derogation of fundamental rights to be void. The lawyer also contended that the amendment was passed without any debate in Parliament.
A member of the bench, Justice Mushir Alam, however, asked Khan how he would respond if article 239, which prevents any constitutional amendment from being challenged in any court of law, is invoked. The LHCBA counsel replied that he would argue on that point later on.
The News International notes here that the court denied an oral application for a stay of implementation of the new legislation. 

Wednesday, January 28, 2015

Did candidate (now Senator) Joni Ernst violate DoD regulations?

Sen. Joni Ernst (R.-IA)
The Des Moines Register has this op-ed by Steve Wikert, following up on an earlier piece he wrote about whether Iowa National Guard Lt. Col. (and now U.S. Senator) Joni Ernst was out of line in invoking her military status in her successful campaign. He now writes:
So has Joni Ernst broken military protocol? The problem is there is no simple answer.
The Iowa National Guard said that she is not subject to the UCMJ or the ICMJ, unless she is ordered to duty. But there are military regulations for off duty personnel when running a campaign. She did break Department of Defense regulations by not putting a disclaimer with images of herself in the Iowa National Guard. The National Guard also mentioned in its letter that contemptuous comments about state or federal officials by National Guard members during civilian activities "... could form the basis for adverse administrative action ..."

George III

Tomorrow is the anniversary of George III's death at Windsor Castle in 1820. He was succeeded in turn by his son George IV, then another son, William IV, and then his granddaughter Victoria. For readers who are interested in George III, whose 1774 Articles of War formed the basis for the 1775 American Articles of War, the editor recommends Janice Hadlow, A Royal Experiment: The Private Life of King George III (Holt 2014).

IDF discharges 43 reservists from elite Intelligence Corps unit

The Jerusalem Post reports that the Israel Defense Force has discharged 43 reservists assigned to the elite Unit 8200, a signal intelligence unit. The reservists had refused to serve in Palestinian territories.

New hearing date in 21st Amendment military courts litigation in Pakistan

The first Supreme Court hearing was held today in the cases challenging Pakistan's new 21st Amendment military courts. After hearing argument from counsel for the Lahore High Court Bar Association, the court announced that the Attorney General had been served and would need to file a response in two weeks' time. The case was adjourned until February 12.

How will Pakistan's new military courts work?

The News International has this useful report on how Pakistan's new 21st Amendment military courts will work. From it we learn:

  • the new courts' jurisdiction will extend to terrorism, extortion, and kidnapping for ransom
  • regular police will investigate cases, either alone or with military authorities
  • the Interior Ministry can only send to military courts cases that have been approved for transfer by provincial authorities
  • a Standard Operating Procedure has been developed
  • military courts were inevitable because the state has been unable to provide the necessary security for civilian judges trying high-profile terrorism cases
The last bullet is fascinating, as it means that only military officers can be afforded the necessary security. If so, how come it was possible for terrorists to attack the public school that serves military officers, with such devastating effects? If judicial security is the driving reason for the new courts, it doesn't wash. If judicial security is going to be the highest priority, that implies that trials will be held in perfectly secure surroundings by faceless judges. Meaning the venue will be military facilities not accessible by the public.

Tuesday, January 27, 2015

One month per word

The Spanish Supreme Court has affirmed a four-month sentence imposed on a member of the Guardia Civil for insulting a superior. Basically four words were at issue, which makes for a sentencing rate of one month per word. If you read Spanish, you'll find out what the words were from this article.

Civil-military relations in South Africa

What happens when South African civilian authorities press charges against military officers for, among other things, threatening to bulldoze a police station after the police arrest a group of soldiers at an unlicensed bar -- and two of the soldiers' officers refuse to appear in civilian court? Read all about it here.

Monday, January 26, 2015

U.S. Marshals Service investigating gaps in sex offender registration

A Scripps News Service investigative report has prompted the U.S. Marshals Service to open an investigation into gaps in the sex offender registration system as it applies to military convictions. Details here.

Two-member bench of Pakistan Supreme Court revives long-pending attack on court-martial system

Justice Jawwad S. Khawaja
A two-member bench of the Supreme Court of Pakistan has revived a case that had been in abeyance, apparently for lack of prosecution, challenging aspects of the court-martial system. PT has the story here:
The Supreme Court (SC) has restored the petitions for hearings, which were filed against court martial procedures and rejected by the apex court in January 2013.
The court has ordered that the petition for these hearings be fixed within two weeks despite government’s opposition.
A two-member bench of the SC, presided over by Justice Jawwad S Khawaja, took up the petition filed by Col (r) Akram for hearing on Monday. Akram had filed this petition in 2010, however it was dismissed after it was not contested in January 2013. The court has restored this petition for hearing.
Akram had argued that the charge-sheet carrying the allegations is not served to the accused during a court martial and he even does not know what he is being convicted for and what he is being punished for. The accused is not even provided access to the record, while the facility provided to the accused for filing an appeal against the conviction is equal to nil.
The Deputy Attorney General (DAG) opposed the petitions on behalf of the federal government saying that the court has already rejected these applications because it had not been persuaded by them earlier. The law does not allow for restoration of these petitions after one year.
The court remarked that the matter is crucial, therefore it would hear it.
This action suggests that the Court will also be attentive to the recent flurry of petitions attacking the expansion of military court jurisdiction under the 21st Amendment and related changes to the Army Act.

Former U.S. Army trial counsel convicted of rape and other offenses

A former U.S. Army military prosecutor has been convicted of rape and other offenses in a general court-martial conducted at Ft. Bragg. The AP has the story here. Of interest to those concerned with transparency in the administration of justice are these paragraphs:
The statement emailed to news media outlets on Monday was the first issued by the Army about the case and provided no details about the crimes for which Burris was convicted, the number of victims or whether they included other military personnel.
Past dockets listing scheduled courtroom proceedings at Fort Bragg in recent days are no longer available online, making it unclear what, if any, public notice was provided in advance of [Major Erik J.] Burris' trial. Non-military personnel cannot access the sprawling North Carolina base or its federal courthouse without approval.
Major Burris was sentenced to 20 years' confinement, a dismissal and total forfeitures. 

Russian soldiers in Armenia: who shall dispense justice?

Armenian News is running this report on the continued uncertainty over whether Russia or Armenia will try the Russian soldier who is suspected of having killed six Armenian civilians. The article refers to earlier cases in which Armenia tried Russian soldiers who were sentenced to lengthy prison terms only to be repatriated and freed within a few years.

Major Zaidi to enter political life; "Hobbit64" offers anonymous condemnation

Major Zaidi Ahmad, RMAF
Major Zaidi Ahmad, dismissed from the Royal Malaysian Air Force, for blowing the whistle on deficiencies in the indelible ink claimed to protect against electoral fraud, is going into politics, according to this FMT story. His plan is to work with an opposition party for free and fair elections. An anonymous retired Air Force officer (is he a lawyer?) has offered this assessment of his conduct and the court-martial:
Ever since Major Zaidi Ahmad’s media appearance and subsequent court martial, there has been a flood of opinion and accusations levelled at the military and the concepts of fair play within the armed forces. The court martial has been subject to much scrutiny as if viewing the movie A Few Good Men has provided everyone with an understanding of military jurisprudence.*
The myth that now follows Major Zaidi has turned out to loom larger than the man, hasn’t it?
The offenses he is accused of are: holding a press conference without clearance from Mindef PR, and the release of security-classified documents regarding his posting out of RMAF Butterworth. Please also note that servicemen are advised to be prudent about appearing in public in uniform: we must never use the uniform to draw attention from the public, or to serve our personal interests. Tolerances are made for shuttling between work and home, a detour to make a withdrawal from an ATM, but not, for example, to seek priority in a queue or at Happy Hours down at the tavern.

Sunday, January 25, 2015

Does this case need to be tried in a court-martial?

We read here that a murder case has been "transferred" from local law enforcement in Washington State to the Army. Should charges that one GI has murdered another off-base be tried by court-martial? Why refer to this as a transfer of jurisdiction when both the state and the Army could prosecute?

Washington Post opinion writer calls for abolition of West Point

Scott Beauchamp, a veteran and writer who lives in Portland, Maine, authored a stunning opinion piece in today's Washington Post. Forgive me for quoting it in full, but he called for the abolition of the service academies - the U.S. Military Academy for the Army (West Point), the U.S. Naval Academy, the U.S. Air Force Academy and the U.S. Coast Guard Academy - charging that they are are "centers of nepotism that turn below-average students into average officers. They are indulgences that taxpayers, who fund them, can no longer afford. They’ve outlived their use, and it’s time to shut them down.

The most compelling and obvious argument is the financial one. It officially costs about $205,000 to produce a West Point graduate, although a 2003 Government Accountability Office study put the price tag at more than $300,000; officers at the Air Force and Naval academies are minted for $322,000 and $275,000, respectively. According to at least one measurement, that’s about four times as much as it costs to produce an officer through the Reserve Officers’ Training Corps, which trains officers-to-be while they attend civilian colleges.

One reason for the expense is that attendance at the academies is free for cadets. In fact, since they’re technically members of the armed forces, the students get paid for going to school. As Bruce Fleming, a heretical professor at the Naval Academy, wrote for Salon, they receive 'a government-sponsored guarantee of a golden ticket to life: college at taxpayer expense with no student debts, the highest salary of any set of graduates, and guaranteed employment and . . . health benefits for at least five years, frequently well beyond.'

Perhaps risking your life in patriotic service merits lavish treatment. During my own Army service, not having to worry about housing or medical care surely allowed me to concentrate on my duties as a soldier. But graduates of the academies, which cover every possible expense for four years, make up only 20 percent of officers serving in the military. The rest are from the ROTC and Officer Candidate School, which is for college grads and enlisted personnel who want an officer’s commission. Are those other officers less deserving of a 'golden ticket'?

No, because they are not merely more numerous — they are also equally (or more) effective as officers. No evidence shows that officers who attended civilian colleges, or any one of the U.S. Senior Military Colleges such as the Citadel, are lesser leaders than their service-academy colleagues. Tom Ricks, a Pulitzer Prize-winning defense journalist, put it succinctly: 'After covering the U.S. military for nearly two decades, I’ve concluded that graduates of the service academies don’t stand out compared to other officers.' After all, perhaps the most preeminent Army leader in recent times, Colin Powell, is a product of the ROTC, not West Point.

This parity in skill has been slowly expressing itself in a rising number of promotions for ROTC officers over the past few decades. Thirty years ago, most Army three-star generals had graduated from West Point. As of 1997 (the last year for which data is available), only a third had. A study of naval officer ascension using data from 2003 concluded that, on average, there were no real differences in promotion rates between Naval Academy officers and ROTC officers. Of course, these arguments from statistics can’t be definitive, but they do indicate that ROTC officers are able to compete with their peers. Nearly half of the Joint Chiefs of Staff serving over the past decade bypassed the service academies.

These days, too, a little thrift wouldn’t hurt. The F-35 fighter jet, the most expensive boondoggle in weapons history, is six years late, has already cost taxpayers nearly $400 billion and still doesn’t work; in the latest budget, Congress allocated $120 million for M1 Abrams tanks the Army says it doesn’t want or need; the Daily Beast recently called the 2016 budget a Christmas present for military contractors. According to the Project on Government Oversight, it includes billions of dollars in spending that the Pentagon didn’t request.

Former defense secretary Robert Gates, who embodies bipartisan consensus, said at the Federal Innovation Summit last summer that 'what is needed most of all are leaders who are prepared to challenge conventional thinking, break crockery, stop doing what doesn’t work well or at all, and set a new course.' Well, here’s our chance.

Some arguments in favor of the service academies cite the rigorous selection process. But we really have no idea how elite their students are. Admittance requires a nomination from a member of Congress, the vice president, a secretary of the respective military branch or other high-level officials. These nominations are doled out in a process with vague guidelines and nonspecific criteria, making political patronage inevitable. The academies admit recruits according to Title 10, U.S. Code, Section 6954 — which, for guidance, merely says how many cadets can be admitted, who can nominate them and where they can come from. According to an investigation by USA Today, nepotism often governs the nominations, with many going to well-connected families or big-name donors.

Fleming has complained in numerous media outlets about the low quality of the students he teaches at the Naval Academy, and he says three Freedom of Information Act requests about the admissions process haven’t gotten him any closer to understanding why some students are admitted over others.

Gore Vidal (born at West Point and connected to the institution by heritage) depicted the service academies as loathsome breeding grounds for a permanent military-elite class of 'ring knockers,' as he wrote in the New York Review of Books in 1973. That’s exactly why people have been trying to shut the academies down since at least 1830, when folk hero and Tennessee congressman Davy Crockett tried to pass a bill abolishing West Point. Another attempt was made in 1863, when Sen. B.F. Wade (R-Ohio) said in the bill’s defense, 'I do not believe that there can be found, on the whole face of the Earth . . . any institution that has turned out so many false, ungrateful men as have emanated from this institution.'

As an enlisted Army infantryman, I served under platoon leaders who attended both West Point and ROTC. All were competent and professional. But the best graduated from the University of California at Santa Barbara. What made him singular was his bravery and his resourcefulness. He was willing, in small ways, to deviate from standard operating procedure when the situation called for it. He also connected to the enlisted guys in an extraordinary way.

The service academies are institutions with deep roots, but bravery and resourcefulness are eminently more American than any particular school. Our country deserves more officers like my platoon leader, and we can have them without the financial and social burden of the service academies."

Saturday, January 24, 2015

Gen. Fonseka pardoned in Sri Lanka

Gen. (ret) Sarath Fonseka
General (ret) Sarath Fonseka, former Sri Lanka Chief of Army Staff, has been pardoned and restored to his retired general officer status. The action follows the defeat of President Mahendra Rajapaksa, under whom he was court-martialed, in the recent election. Details here. Excerpt:
Fonseka was jailed after challenging then President Mahinda Rajapaksa in the 2010 election in a move widely condemned as political retribution by Rajapaksa.
[President Maithripala] Sirisena defeated Rajapaksa in a Jan. 8 presidential election. 
Fonseka was sentenced in November 2011 to three years in prison for allegedly implicating the defense secretary and president's brother in war crimes during the civil war. Before that sentence, he was court-martialed on several charges related to his military service. He was stripped of his title, medals, pension and other honors, dishonorably discharged from the army and given a separate 30-month jail term. Fonseka said the cases were a political vendetta against him for daring to run against Rajapaksa.
While in detention, Fonseka won a parliamentary seat on the opposition ticket in April 2010, but was disqualified from holding office after the court-martial.
Although Fonseka was freed from prison in 2012 as a result of a pardon by Rajapaksa, he was not allowed to contest elections. Under Sri Lankan law, a person who has served six months or more of a prison term longer than two years cannot contest elections for seven years.

Government factum submitted in Moriarity, Hannah and Vezina cases in Supreme Court of Canada

The Supreme Court of Canada
The government's factum in the Moriarity, Hannah and Vezina cases now pending before the Supreme Court of Canada is available on the web. It addresses a range of significant issues, including the vitality vel non of the nexus requirement.

The cases are to be argued on May 12, 2015.

New barrier to prosecution of military personnel in Turkey

Here's what seems to be an ominous development. Hurriyet Daily News reports that military personnel will only be subject to civilian prosecution for offenses committed in connection with the fight against the Kurdistan Workers Party (PKK) with the approval of the Prime Minister or the Defense Minister:
“Military persons, who fulfill duties or assigns duties due to duties designated in the Police Organization Act and Provincial Administration Act, and due to duties within the content of decisions made by parliament and Council of Ministers," will be subject to the new amendment adopted by parliament’s Justice Commission late on Jan. 22, the state-run Anadolu Agency reported.
Accordingly, the prosecution of military persons for crimes that they have allegedly committed while fulfilling their duties will require consent from top officials, as such crimes are within the “jurisdiction of the civil judiciary,” the agency said.
In February 2014, parliament adopted a new Military Law stipulating that the prime minister’s consent would be obligatory for the prosecution of the chief of General Staff and commanders of the Army, Navy and Air Force regarding crimes alleged to have been committed while in office. The same law also required the interior minister’s consent for the prosecution of the general commander of the Gendarmerie.
In line with the new legislation, when adopted, the prosecution of other personnel of the TSK [Turkish Armed Forces] will be contingent on the consent of the defense minister.
This was already the case with the prosecution of officials of the National Intelligence Organization (MİT), thanks to a bill also adopted in early 2014 that said the intelligence body would be able to contact all “structures that threaten national security, including terrorist organizations, in the course of its duty.”

New book by Wing Cdr (ret) U C Jha

One of India's most prolific and insightful writers on military law, Wing Cdr (ret) Dr. U C Jha, has a new book out, The Armed Forces Special Powers Act -- A Draconian Law? Details are available here. The publication notice advises:
The Armed Forces Special Powers Act (AFSPA) has become one of the most controversial laws, both in India and the world. A few NGOs and human rights activists have described it as draconian, alleging that it gives the armed forces unrestricted power to ‘arrest’ without warrant, ‘destroy property’ and ‘shoot to kill’, besides providing them with complete immunity. The loud and continuous clamour against the Act has drawn the attention of various international organizations. The UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns, has recently called for the repeal of the law, stating: “AFSPA allows the state to override rights. Such a law has no role in a democracy and should be scrapped.”
On the other hand, the armed forces hold that the AFSPA is necessary for tackling the growing menace of militancy and protecting their men from the unnecessary harassment caused by litigation. General V K Singh, the former chief of army staff and now a cabinet minister, has emphasized that the AFSPA is a ‘functional requirement’ of the armed forces. 
This is the first book in India not only to attempt a complete analysis of the various provisions of the AFSPA, but also to provide an insight into the legislative efforts of other democracies to meet the challenges of growing terrorism. It delves into cases of human rights violations in which members of the armed forces have been implicated, and at the same time, argues that it is equally important to safeguard the human rights of the members of the armed forces. In order to help find an amicable solution, the author makes a few recommendations for the consideration of the government and armed forces.
Congratulations to Wing Cdr. Jha on this addition to the literature. 

Friday, January 23, 2015

Military trial for blasphemy

Le Monde has this notice of a book by Waleed al-Husseini, who was tried in absentia by a PA military court and sentenced to seven and a year years for insulting religious sentiment. Never mind the offense; why is a military court trying a civilian?

Pakistan Supreme Court to hear challenges to military courts amendment

The Supreme Court of Pakistan will consider a group of petitions challenging the recently-enacted 21st Amendment and Army Act amendment, which authorize military courts to try civilians for two years, according to this report.
The petitions challenging the adaptation of 21st Amendment were filed by the Lahore High Court Bar Association (LHCBA) in the apex court Lahore Registry. About seven identical petitions were submitted in the apex court challenging the formation of military courts and the constitutional amendment.
The petitioners challenged the military court, arguing that the constitution of the Islamic Republic of Pakistan had no provision for a parallel judicial system in the country, and the passage of 21st Amendment was a deviation from the foundational structure of the constitution. The petitioners termed the military courts contrary to justice and pleaded the apex court to strike down this legislation. Earlier, a petition was filed by Molvi Iqbal Haider challenging the formation of military courts in the apex court and another one was filed by the Pakistan Justice Party Chairman Munsif Malik through his lawyer Ikram Chaudhry pleading the top court that the doctrine of necessity was buried by the apex court judgment of July 2009, while the incumbent democratic set up and the military establishment had restored this doctrine of necessity after the formation of military courts in the country.
The petitioner had pleaded that the political government and military establishment had resurrected the doctrine of necessity which was buried forever by the Supreme Court through the landmark July 31, 2009, judgment holding the Nov 3, 2007 emergency illegal. The petitioner had requested the Supreme Court to declare the 21st Amendment and creation of military courts against the salient features of the constitution which guaranteed fundamental rights of fair trial. Earlier, the National Assembly and the Senate had approved the 21st Amendment in the Constitution for the establishment of military courts in the country as a counter-terrorism effort by the political parties.
A three-member bench will hear the petitions on January 28. 

Thursday, January 22, 2015

Trial by candlelight

The editor has just submitted the following suggestion to the Defense Department Office of General Counsel's Military Justice Review Group:
Recent news stories about a Nigerian general court-martial said to have been conducted at night have reminded me of concerns I have had in the past about U.S. courts-martial being conducted surprisingly often at outlandish hours, including into the wee hours of the morning. I believe one or more of the services' rules of court include precatory language about normal court hours. 
In connection with the Review Group's identification of possible changes to the Manual for Courts-Martial, I recommend that consideration be given to including in the Manual a uniform rule that would define court hours as the regular duty day, subject to exceptions only in extraordinary circumstances set forth on the record. 
In my experience, courtroom dynamics and the relatively junior rank of defense counsel have caused issues of excessively long proceedings to be waived when they should not have been. Therefore a rule is necessary.
Please comment if you have a view on this question. And if you have submitted anything to the Military Justice Review Group, please copy and paste it into a comment so others can know about it.

Blogger prosecutor: Tunisian military has a right to go to court to defend itself

The chief prosecutor at the Tunisian military court of appeals, Wahid Bounenihas announced, in the context of the conviction of blogger Yassine Ayari, that the case was not subjective and did not rest on mere opinion. He explained that the military establishment has a right to invoke the legal system and asserted that the military justice system is independent and guarantees a fair process. Atari was sentenced to a year in prison. An appeal is being prepared.

Who will try the multiple murder case in Armenia?

Remember the case of the Russian soldier who is accused of having murdered six civilians in Armenia? According to the SOFA, it would seem that Armenia would conduct the trial -- or at least have a waivable right to do so. But this news report indicates that Russia will try the case, albeit on Armenian soil.

Wednesday, January 21, 2015

Military courts in Gilgit-Baltistan

There continues to be resistance to military courts in Gilgit-Baltistan, which are not subject to the Constitution of Pakistan. Details here. Excerpts:
While the amendment of the Constitution and the Army Act has been controversial enough in Pakistan, it is the extension of these courts to Gilgit-Baltistan that has raised eyebrows.
It may be recalled that on November 25, 2014, an Anti-Terrorism Court in Gilgit had sentenced the owner of the Jang-GEO Group, Mir Shakeelur Rehman, and actor Veena Malik and her husband Malik Asad to 26-year imprisonment and fined them Rs. 1.3 million each for blasphemy.
The judgment had stunned the legal and political fraternity of Pakistan because, legally, the Gilgit-Baltistan courts had no jurisdiction outside that area and could not proceed against a citizen of Pakistan. More importantly, the Pakistan Government itself clarified that Gilgit-Baltistan was not a constitutional part of Pakistan.
This being so, it boggles the mind as to how military courts can be extended to Gilgit-Baltistan now.
The reason is that the Constitution of Pakistan has been amended to set up these courts. The Constitution is not applicable in Gilgit-Baltistan. So, how can military courts be set up in Gilgit-Baltistan?
At CrimProfBlog they have this posting that may be of interest to our international audience.

Peter Margulies (Roger Williams University School of Law) has posted Detained Suspected Terrorists: Trial in Military Courts or Civilian Courts? (Harvard Journal of Law and Public Policy, forthcoming) on SSRN. Here is the abstract:
Military commissions, like detention in wartime, embody the Framers’ challenge in reconciling liberty and security. The U.S. Supreme Court has found that Congress’s war powers authorize establishment of military commissions. However, without proper constraints, military commissions pose tensions with individual rights and the Framers’ architecture of checks and balances.

Recently, the D.C. Circuit, applying a deferential plain error standard, rejected an Ex Post Facto Clause challenge to the military commission inchoate conspiracy conviction of Ali Hamza al Bahlul, a former aide to Osama bin Laden. The D.C. Circuit’s reasoning suggested that, under a less deferential de novo standard of review, inchoate conspiracy convictions for conduct prior to enactment of the Military Commissions Act of 2006 might pose problems, given the lack of recognition under international law for such charges.

UK soldier accused of raping Austrian girl

The soldier was arrested in Neustift last November 
A British soldier has been charged with raping and sexually abusing a six-year-old girl in Austria, prosecutors say.

The soldier, who has not been named, was arrested on 29 November in Tyrol where he was taking part in mountain military exercises.

He is due in court on 10 March.

A spokesman for the state prosecutor's office in Tyrol said prosecutors believed the man had entered the girl's unlocked family home while drunk in the early hours of the morning.

The soldier, who has not been named, was found in the girl's bedroom, by her father who was awoken by the noise, prosecutors said.

He was arrested in the town of Neustift and if found guilty faces up to 10 years in prison.

Hansjoerg Mayr, the spokesman for the state prosecutor, told the BBC the girl had been interviewed by the authorities.

A spokesman for the Army said it was aware a soldier had been charged in Austria with sexual offences relating to a child.

He added: "This matter is now subject to criminal proceedings led by the Austrian authorities and it is therefore inappropriate for us to comment further at this time."

This article originally appeared on the BBC Website. (21.01.2015)

Is Morocco ignoring its new military justice law?

A military court in Rabat has again postponed the case of a Malian citizen who has been in detention for over two years, despite the passage of legislation providing that civilians will not be tried in military courts and requiring the transfer of untried cases to civilian courts. Details here.