Tuesday, May 31, 2016

Navdeep Singh in the spotlight

Global Military Justice Reform contributor Major (ret) Navdeep Singh, left, is the subject of this lengthy and substantive profile in Bar & Bench, a leading online Indian legal publication. Congratulations, Navdeep!

The Danish Military Justice System, 2016 ed.

The Danish Military Prosecution Service has published a new edition of its excellent description of the Danish military justice system. You can find it here. Many thanks to Military Prosecutor General Lars Stevnsborg for the link.

The Danish system is European Convention-compliant and has a great deal to recommend it. See what you think!

De facto retirement

A judge of the High Court of Uganda at Kampala has ruled that General David Sejusa must be deemed no longer in the Army (as he had contended) because he has not been paid or give any duties for over a year. The ruling is important because Gen. Sejusa is facing charges in a court-martial, and presumably that case would go away if he is no longer a serving officer. The Uganda People's Defence Force has vowed to take the case to the Court of Appeal. Details here.

Judicial independence in Nepal

Nepal's República reports here on a remarkable decision by an Army special court. Major General Prakash Thaka was dismissed several years ago by a court of inquiry been headed by the officer who is currently the Chief of Army Staff. The charges were perjury and abuse of authority and negligence in failing to identify forged educational records that were submitted by a brigadier general. Gen. Thaka and another officer were dismissed. On review, the special court acquitted Gen. Thaka. Whether he will now be restored to duty remains to be seen. The news report does not say what happened to the other officer.

Perhaps there is more to the story (as there often is), but considering the position currently held by the officer who headed the court of inquiry, Gen. Thaka's acquittal is impressive evidence of judicial independence.

Torture and death penalty for civilian defendants in Egyptian military court

Amnesty International has protested the latest case in which civilians have been sentenced to death by an Egyptian military court. Excerpt:
An Egyptian military court has sentenced eight civilians to death and another 18 individuals to lengthy prison terms, after a grossly unfair military trial that relied on “confessions” extracted under horrific torture including defendants being whipped with a burning cloth, said Amnesty International today. 
“This verdict is an affront to justice and must be quashed immediately,” said Magdalena Mughrabi-Talhami, Amnesty International’s Regional Deputy Program Director for the Middle East and North Africa. 
“Sentencing to death men who were tortured into ‘confessions’ is an egregious injustice, even by the degraded standards of Egypt’s justice system. They must receive a fair trial before an ordinary civilian court that meets international standards and excludes torture-tainted evidence, without the recourse to the death penalty.”

Monday, May 30, 2016

Secret military trial in Warsaw

A Polish Army lieutenant colonel has been sentenced to six years' confinement for spying on behalf of Russia. The trial before the Warsaw Regional Military Court was conducted behind closed doors. Word of the proceedings did not emerge until a radio station reported on the case. An appeal is being prepared. Details here.

When the war is over . . .

Chris Bray
Former U.S. Army infantry sergeant Chris Bray writes in a Memorial Day essay for Salon:
. . . The hunger for combat personnel leads to a reduction of standards, with the recruiting or retention of soldiers who aren’t psychologically fit to fight. They do improper things, or horrible things, and are tried by courts-martial. Then the war ends, and soldiers and lawyers try to clean up the result. It’s a process of cause and effect that’s about as predictable as the operation of a clock.
*   *   * 
The recruiting and retention crises caused by sustained wars lead to horrifying acts, which lead to postwar attempts to reconsider the limits of justice for warriors who should never have been sent into combat. That entirely predictable reality should be baked into national policy and our shared understanding of war. The impact that it would have on military law would be enormous – and beneficial.

Transparency watch: Spain

Thanks to an initiative by the Unified Association of Civil Guards, Spain will now be making public the decisions of the central and territorial military courts, as provided in the new Military Penal Code. Until now, only those of the military chamber of the Supreme Court have been published. Details here.

Sunday, May 29, 2016

What's up at Guantanamo?

Lawfare has here reproduced Brig. Gen. Mark Martins' review of the state of play at the Military Commissions. It a worthwhile read from the Chief Prosecutor.


What to do when a charged soldier is cleared? That question has arisen in Australia, as witness this report. Should a formal exoneration be issued? What if there is sufficient evidence to proceed but the case is dropped for prudential reasons? What if there is probable cause but an acquittal (for which there may be no reliable explanation)? What if a charge is dismissed at the close of the government's case? What if the case goes away because the putative victim refuses to testify?

In U.S. law, there is such a thing as a Certificate of Innocence. In at least one case that comes to mind,  a general issued a letter informing one of his Marines that in the general's eyes the Marine was innocent.

How does this all play out if the military can administratively separate a member when criminal prosecution fizzles? 

Memorial Day, May 30, 2016

Ball's Bluff National Cemetery, Loudon County, Virginia

A basic issue remains unresolved in Paraguay

Pres. Horacio Cartes
The Paraguayan Senate has sent a communiqué to the president urging publication in the Official Gazette of three 1980 laws relating to military justice. Details on the controversy can be found here, in Spanish. If the laws were not properly published, persons who are confined under them would have to be freed. The military has argued that the laws are of limited application because they concern only active duty military personnel.

Double jeopardy?

Is this double jeopardy, or the consequence of a successful appeal?

The Indian Express reports:
The Punjab and Haryana High Court on Monday stayed proceedings of issuing a fresh charge sheet against an Army Naik for using criminal force against his superior. The court noted that Army Naik Munish Kumar (technical assistant), of 153 Medium Regiment, has been issued fresh charge sheet for which he had already been tried earlier under the military law. . . .
It was also submitted that the petitioner challenged the outcome of the Summary Court Martial before Chief of the Army Staff and after a long period he received reply dated January 25 that the Summary Court Martial proceedings dated December 6, 2014, have been set aside during the review and that a fresh trial is being conducted under HQ Western Command as the unit of the petitioner has been moved to a new location.

Saturday, May 28, 2016

Wear your cover

The Supreme Court of Spain has upheld the two-day suspension a sergeant imposed on a Guardia Civil for failing to wear his tricorn cap when saluting and making his report. Details here (in Spanish). 

The fat Fat Leonard file

The Washington Post's Craig Whitlock has this lengthy article on the disturbing web of corruption cases engendered by a powerful Navy contractor. Some administrative actions have been taken, such as the issuance of Secretarial Letters of Censure, but the major punitive actions have come in the federal courts. One might speculate that that is because the civilian at the center of the case for a time had a mole inside NCIS. Still, it seems remarkable that the military justice apparatus has not been widely used, despite the fact that many of those involved were subject to the UCMJ either as active duty personnel or as retired regulars. One can only assume that the statute of limitations was a major impediment to some prosecutions.

We're from Missouri

Richard Lardner of the Associated Press has this story on the ongoing controversy over whether the then-Vice Chairman of the Joint Chiefs of Staff misled the Senate in the course of successfully resisting legislation that would have changed the current commander-centric charging system for sexual assault and other major offenses. Excerpt:
The Pentagon is relying on information it won't make public to dispute an Associated Press investigation that found the military misled Congress about sexual assault cases to blunt support for Senate legislation.

In a report sent Thursday to a bipartisan group of senators, the Pentagon refers to undisclosed files about several of the cases to challenge AP's findings. But the response, which faults AP for inconsistencies and misunderstandings, fails to conclusively counter the investigation.
The Pentagon has asserted that commanders saw to it that cases declined by civilian prosecutors were successfully pursued. The AP's ability to test that assertion based on actual case records has been thwarted:
The Navy judge advocate general's office last year ordered the Naval Criminal Investigative Service to release investigative reports after AP appealed NCIS's refusal to do so. NCIS blacked out all the names in the reports, including the accused.

Condor caged?*

The Independent (Argentina) yesterday reported:

A court in Argentina has found 15 ex-military officers guilty of forming part of an international conspiracy – known as Operation Condor – to track and kill or disappear political opponents across South America.

In [the] historic ruling former dictator Reynaldo Bignone was given a 20-year prison sentence, while General Santiago Riveros was handed 25 years. Uruguayan Colonel Manuel Cordero – the only non-Argentine defendant – was also jailed for 25 years.

The trial, which lasted more than three years, is the first to recognise the region-wide pact created amongst South American military dictators to suppress opposition during the 1970s.

It included the cases of 105 victims of the transnational terror network, including 45 Uruguayans and 22 Chileans. The vast majority (89) were kidnapped and disappeared in Argentina.

The Operation Condor network was devised in 1975 by military officials from Argentina, Brazil, Bolivia, Chile, Paraguay and Uruguay with the aim of silencing left-wing dissidents that sought refuge in neighbouring countries.

* An interesting name for an operation based on the bird's character.

Constitutional rights and courts in India, reference to Guantanamo in a magisterial order

It was interesting to read a reference to Guantanamo in an order by a Judicial Magistrate in India in a news report by The Indian Express.

In the said case, the Police had requested the Court for extension of judicial custody of a person stating that though it (the Police) did not require him for interrogation, he should be sent to judicial custody. The Court reportedly observed that such a step would in fact amount to extra-judicial custody.

To make it clear to readers, in India, police custody is the period when after an offence the person is in the custody of the police where he could be interrogated and investigated. However, after a certain period, usually Courts send the person to judicial custody where the accused is under the charge of the prisons department (also known as jails department) where the police has no access, control or jurisdiction, and where a person may also be kept simply for the reason that he may not interfere with the investigation.

Despite the slow moving judicial system in India and despite all pitfalls, it is refreshing to note how, like other democracies, constitutional rights and independence are respected and cherished. I may however clarify here that the Court of a Judicial Magistrate is the lowest part of the judicial hierarchy and is not a Court of Record and neither does it lay down law, but Indian Constitutional Courts (High Courts and Supreme Court), ever since the early 1950s, have consistently upheld such principles. Readers may also be surprised to learn that even handcuffing of accused is not allowed in India except in the case of dangerous prisoners. The law on the use of handcuffs is explained succinctly here.

Coming back to the order of the Court, the following excerpt from the news report adequately catches the spirit of the order of the Magistrate:

The court also questioned the police for seeking Alam’s detention time and again. “If such a trend is sanctioned by the courts of law… (considering) the might of the state with an approximate number of more than 200 police stations, with every police station registering an FIR, granting 90 days of exhaustive remand… before the accused reaches a court of law for trial, he would have already spent 49 years and three months in jail, thus negating the whole presumption of innocence of the accused guaranteed to him by law,” said the court. “The fact remains that the accused is involved in an offence as alleged in the FIR. But the accused hasn’t been detained for 90 days, but many 90 days commencing from April 15, 2015,” said the court. “If the accused is anti-national and detrimental to society, let the state discharge its duty in bringing the guilty to book so that they are punished suitably… However, despite the fact that the state alleges the accused to be anti-national, the right of the accused as guaranteed by the Constitution and principles of justice… can’t be denied to the accused indefinitely,” said the court.

Friday, May 27, 2016

Guardgate continues

Col. James L. Pohl
Military Commission Judge
In hopes of persuading Military Commission judge James L. Pohl to accelerate the effective date of his order permitting females guard to once again transport male Guantanamo detainees, the Secretary of Defense and Chairman of the Joint Chiefs of Staff have issued conciliatory statements. Not really an apology, according to one of KSM's defense counsel. Here's ABC News's report. What do you think?

The militarization of Venezuela

Venezuela is in the midst of a stunning, political, economic and social collapse.  The country of 30 million people is facing dire food and medicine shortages, power outages that have forced the workweek for government employees to be reduced to two days, and one of the world's highest murder rates.  Earlier this month, President Nicolas Maduro declared a state of emergency to counter what he called "foreign threats."

The militarization of Venezuela is very evident in the exaggerated presence of members of the military impeding demonstrations by the opposition and the systematic vigilance of the military of the long lines of people for food.  The military has arrested civilians for manifesting their discontent with some irregular situation in the sale of food as well as for having to wait for innumerable hours on line just to buy food.  It's not just a case of justified or unjustified detention, but some civilians are being tried by military tribunals when it is clear that no civilian should be tried by a military court. Despite this well known jurisprudence of the Inter-American Court, the Constitutional Chamber as well as the Criminal Law Chamber of the Supreme Court have interpreted the Venezuelan Constitution, in a manner so as to conflict with international human rights norms, and to permit the trial of civilians by military courts.

In 2015, several persons were tried by military courts during protests against the long food lines after having been charged with the crimes of "attack" and "insulting the armed forces," both of which are set forth in Article 501 and 502 of the Code of Military Justice.

With the recent declaration of a state of emergency it is feared that more civilians will be processed by military justice for expressing a certain amount of discontent for the long food lines.  The government is trying to resolve everything with the participation of the military, who are the ones controlling the basic businesses, the distribution of food and some of the universities, --all of which is contrary to any democratic advance.

WaPo op-ed by Sen. Gillibrand

Sen. Kirsten Gillibrand (D.-NY)
Here's how it begins:
Three years ago, during a Senate Armed Services Committee hearing at the height of a contentious debate about sexual assault in the military, one of our nation’s highest-ranking military officials — the vice chairman of the Joint Chiefs of Staff — blatantly misled Congress to defeat a policy reform. The question now is: Does Congress care?
For Sen. Kirsten Gillibrand's full Washington Post op-ed, click here

Thursday, May 26, 2016

Get thee back to jail

Haaretz reports:
The Military Court at Ofer recently denied the IDF’s request to reimprison Mohammad Zdaka, who was freed as a gesture to Palestinian Authority President Mahmoud Abbas in 2008.
The court ruled that the army’s conduct was unjust and unjustifiable, and that the request to return Zdaka to prison was prompted by his filing for compensation for the four years he served in prison from 2010 to 2014.
This report comes on the heels of criticism of Israeli military justice noted by Gene the other day.

Legislation on little cat feet

n., complainer, complaint; v.t., to complain (Yiddish; Eng., colloq.) 
As part of the FY17 National Defense Authorization Act, Congress is on the verge of passing major military justice legislation. The numerous major and minor changes are based overwhelmingly on an Obama administration proposal that grew out of the work of the Pentagon's Military Justice Review Group.

The House Report, H. Rep. No. 114-537, can be found here. The military justice provisions start at p. 600. The report correctly states that the changes "represent the first comprehensive revision of the Uniform Code of Military Justice in decades." The Senate Report, S. Rep. No. 114-255, can be found here. The report includes a potpourri of military justice changes; the comprehensive revision portion begins at p. 589.

Legislative consideration of the proposed UCMJ changes has been conducted in secret in both chambers. There has been one closed briefing, that we know of. Presumably, there has been a good deal of back-and-forth between House and Senate Armed Services Committee staffs, on the one hand, and the Defense Department, on the other. And we know of stray correspondence that the Hill has received (from the ABA, of all places) objecting to parts of the legislation. What's missing is hearings that are open to the public, and in which competing viewpoints can be heard and tested.

Shame on Congress for conducting the public's business in this fashion on an issue as important as military justice. "Public Law" is not a figure of speech. It is difficult to think of a more effective -- or more profoundly scandalous -- way to erode public confidence in the administration of military justice than to frame legislation, effectively, in secret.

Wednesday, May 25, 2016

Military court trial for jailbreaking

The News International reports:
The Supreme Court (SC) on Tuesday suspended death sentence of a person who was convicted by the military court for breaking Bannu Jail. 
A three-member bench of the apex court headed by Chief Justice Anwar Zaheer Jamali heard the appeal of one Muhammad Arabi, who was awarded death sentence by the military court for breaking Bannu Jail. 
Counsel for the appellant submitted before the court that the military court without hearing his client had awarded the death sentence. The court while suspending the sentence issued notice to the respondents and adjourned the hearing for indefinite period. 
The Chief Justice directed the court office to club all the appeals of the convicts, who were awarded sentence by military courts.

South Africa's military and judicial supremacy

The following article suggests a coming crisis in judicial oversight of military personnel actions in South Africa:
South African National Defence Force (SANDF) chief Solly Shoke says he will approach the court to seek clarity on the jurisdiction of civilian courts to intervene in military disciplinary matters.
He was speaking at briefing in Pretoria yesterday, where he announced the recall to duty of about 500 soldiers who have been on special leave since 2009.
The members were part of violent protests at the Union Buildings.
The South African National Defence Union (SANDU) has on several occasions successfully challenged the lawfulness of the disciplinary action taken against the soldiers.
Shoke says the SANDF wanted to deal with the matters as quickly as possible, but they’ve been frustrated by continued court action.
“I will be approaching the courts so that we can address the boundary issues as it impacts discipline in the Defence Force.”
Shoke says that he’s not ruled out the possibility of further attempts to discipline the soldiers.
He adds the main reason for the recall was his discomfort with paying soldiers who are sitting at home.
SANDU says the soldiers have been at home for the past 80 months, at a salary bill of about R7 million a month.
The history of miscues on the part of SANDF's personnel management apparatus has seemed fairly obvious, and the notion of placing blame on the courts strikes one as a clear case of blaming the messenger. The courts have several times rejected SANDF's attempts to apply procedural shortcuts in dealing with the demonstrators. Also, last time we looked, the country had no military judges who could actually preside at courts-martial.

The duelists return

"It's clear that nothing has changed despite the military's claim that things have gotten better," [Sen. Kirsten] Gillibrand, the top Democrat on the Senate Armed Services personnel subcommittee, said at a news conference on Tuesday.

[Sen. Claire] McCaskill's office takes issues with the findings in the Gillibrand report.

"Not one of the cases examined in this report was handled in the newly reformed military justice system — so while this is an interesting examination of the previous system, it's largely irrelevant to this year's debate," said John LaBombard, a McCaskill spokesman.

Quoted in this NBC News report 

Editor's query: And when Congress enacts this year's NDAA's UCMJ changes, will opponents of commander-centric disposition-authority reform say we have to wait until we see data on conviction rates under those changes as well? When do we stop kicking the reform can down the legislative road? 

Human rights group to boycott IDF military justice complaints process

B'Tselem, the Israeli human right group, will no longer file complaints of soldier misconduct.
B’Tselem declared today that “there is no longer any point” to submitting complaints to Israeli’s army judicial system. The decision ends 25 years of the human rights organization bringing cases to Israel’s military court and supporting investigations into the killings of Palestinians. 
The decision to end army cooperation follows stalled and faulty investigations in more than 700 cases since 2000, which resulted in a 3 percent conviction rate. The rights group has in effect given up on believing in the system’s ability to correct itself, or provide accountability. 
“We provide them with all of our evidence, but we feel sometimes that they use the evidence and testimonies that we provide them to find a contradiction, not to find justice,” [Iyad] Haddad lamented. “Why should we give the Israeli investigators a gun with which to shoot the victims again?”
Soldier misconduct is prosecuted in special military tribunals. Palestinians cannot file complaints directly against the Israeli military, nor can they schedule times to give witness statements independently. They rely on groups like B’Tselem to advocate on their behalf.
Details here. Click here for B'Tselem's announcement and report.

Tuesday, May 24, 2016

A misbegotten court

Prof. Steve Vladeck
Global Military Justice Reform contributor Steve Vladeck puts the stake through the heart of the U.S. Court of Military Commission Review in this must-read Just Security post. Excerpt:
What Friday's ruling [by the U.S. Court of Appeals for the District of Columbia Circuit in Khadr] really underscores, once again, is how misbegotten an experiment the Court of Military Commission Review, specifically, has turned out to be. In a nutshell, not only does the CMCR suffer from inherent structural flaws that the political branches seem uninterested in fixing, but its substantive role in the military commission process has turned out to be not only woefully inefficient, but affirmatively counter-productive from both the government's and the defendants' perspectives. Simply put, the CMCR has become an object lesson in how not to create new non-Article III federal courts — and an expensive one, at that.
Strong message follows. 
CBC News reports:

[Canadian] Military police conducted 135 sexual assault and misconduct investigations last year, a one-third increase from 2014, CBC News has learned.

Only a fraction of the complaints — 17 of them — were directed from the newly established crisis response centre at the Department of National Defence.

That organization was set up in the aftermath of a scathing report last year by former Supreme Court of Canada justice Marie Deschamps, who documented what she described as an "endemic" culture of sexual harassment in the military.

The U. S. DoD released figures for 2015 recently and can be viewed at this link.

How would you like a punch in the nose?

. . . and a trial in military court, even though you are a civilian? Consider this case, where both the victim and the accused were British civilians in Cyprus. Excerpt:
Judge Robert Hill, sentencing, said: "Somewhere toward the end of the evening the defendant found herself in the ladies lavatory together with a number of other women. 
"One of the other women was the alleged victim, Catherine Warhurst. The allegation is there was a confrontation between the defendant and her which resulted in the defendant punching her once to the nose in the lavatory. 
"Against the background of this there was something of a melee going on at various stages." 
Judge Hill gave [Zoe] Phythian a conditional discharge for 12 months. He found that she did punch Ms Warhurst but rejected other allegations of violence. 
He agreed that she was entitled to an explanation for the late night message but was provoked by Ms Warhurst's abrupt response and her friends defending her. 
He added: "This descended into a gesture of violence of the mildest sort." 
Phythian, whose husband did not attend court today, declined to comment.
Good thinking.

Monday, May 23, 2016

Comments policy reminder

Comments are encouraged, but must be submitted under your real name.

New report from Sen. Gillibrand

Sen. Kirsten Gillibrand
Sen. Kirsten Gillibrand (D.-NY) has issued this report in response to the latest DoD data. The report comments:

No data bear out the military’s claim that commanders have been tougher on sexual assault cases than independent military prosecutors would be. In fact, using the limited files provided by the DoD for this report, it appears that commanders are leaving convictions on the table by refusing to effectively prosecute sexual assault cases. It is here that it is vital to note that commanders, acting as the sole convening authorities in these cases, lack the significant legal and investigative training and experience that highly trained prosecutors have. Where many variables may appear odd to an untrained observer, fact patterns in sexual assault cases, both inside and outside the military, can offer key insight to a trained prosecutor. [Emphasis in original.]
Policy recommendations:
Below are several policy recommendations for the Congress to consider implementing via this year’s NDAA that would positively benefit the efficiency and effectiveness of the UCMJ in combating sexual assault:
1. Remove the decision to prosecute from the chain of command: Align the military with the federal criminal justice system by removing the convening authority as the disposition authority and instead vest that decision with experienced military prosecutors with extensive litigation experience.
2. Improve transparency of the military justice system: Provide public access to court-martial records, modeled off of a system such as the civilian PACER system, as well as provide an opportunity for any member of the public who wishes to observe a trial in progress to do so.

3. Ensure accurate accounting of crime statistics: Track military justice statistics in one common database, including information on case disposition, administrative action, and non-judicial punishments. The database should capture statistics from all sexual assault cases, including those involving military spouses, domestic partners, and children.

4. Improve the proficiency of the military’s litigation field: Cultivate and retain the most talented and motivated litigators through added career protections for those judge advocates who have volunteered to spend consecutive tours in litigation billets.

5. Provide adequate supervision in complex cases: Ensure that the most experienced litigators are supervising more junior counsels in every complex case, to ensure that the counsel is adequately representing the interests of the government or accused.

6. Adequately address retaliation against crime victims: Currently, the services do not adequately track or address retaliation against victims of crime, especially sexual assault victims, despite evidence that retaliation is prevalent in the services. Establish a system to track incidents of retaliation, including the initial report, subsequent investigation, punitive or administrative action taken against the o ender, supportive actions taken for the victim, and information on the victim’s ultimate career trajectory. Hold those who retaliate accountable, rather than ignore the problem.

7. Enhance punishment for offenders who abuse their authority: Amend Article 120 of the UCMJ to increase the maximum punishment available for sexual offenders who abuse their authority and assault military victims who are lower-ranking.

Protection for Russian military judges

Russian President Vladimir Putin has approved legislation that authorizes military police protection for military judges and their families. A few details here. One wonders what led to the measure.

13 PNG soldiers standing civilian trial on mutiny charges

Thirteen members of the Papua New Guinea Defence Force, ranging from private to major, are on trial in the civilian National Court on charges of mutiny. Details here.

Military training of "bad guys"?

The Independent (UK) reports:
Britain is providing military training and support to the majority of the countries named on its own human rights abusers watchlist,The Independent can reveal.
The Foreign & Commonwealth Office (FCO) designated 30 nations as “human rights priority” countries last year, warning of their conduct on a range of issues from internal repression to the use of sexual violence in armed conflict.
It would be interesting to know if the training includes a program on the Rule of Law in military operations.  The Judge Advocate General of the Army School (TJAGSA) holds many publications on the Rule of Law in military operations.  See also the Naval Postgraduate School library.

Some years ago, the Naval Justice School began such a training program for foreign military leaders.  It became known as Defense Institute of International Legal Studies (DIILS), and was headed by an old friend CAPT Guy Abbate.  I see now that it is headed by an Army officer and the organization falls under the Defense Security Cooperation Agency.  I see that there is a program within the Naval Small Craft Instruction and Technical Training School taught by Navy JAs. 

I had the experience in 1996 of traveling to Mali on one such mission.  Now off the bucket list is travel to the fabled "city" of Timbuktu.

The program then was to have a cadre come to NJS for liaison and basic familiarization, and then travel to the particular country for a three to four day seminar.  The seminar was attended by not just military lawyers but officers and civilians.

Sunday, May 22, 2016

Uganda's general court-martial

Uganda's general court-martial has a new chairman, Lieut. Gen. Andrew Gutti. This article gives his vitae, including the double-take-inducing fact that he himself has been an accused in court-martial proceedings. He was acquitted of creating ghost soldiers to be placed on the UPDF payroll.

A letter to the editor

The following letter to the editor was printed in The Jerusalem Post about the Azariah court-martial:
Just a court hearing 
In “Redrawing Sykes-Picot” (Editor’s Notes, May 20), Post editor-in- chief Yaakov Katz briefly alludes to the fact that our presumptive incoming defense minister, Avigdor Liberman, attended a court hearing for the IDF soldier who is being prosecuted for manslaughter in killing a Palestinian attacker “even though the military had unequivocally denounced the act.” 
Surely, Katz is missing the point – the fact that the military, together with former defense minister Moshe Ya’alon, denounced the killing so unequivocally is deeply troubling and must surely be prejudicial to any fair trial.

There was never a need for the military or any defense minister to try to usurp the role of a military judge. It is this conduct that is totally unacceptable. What is unacceptable about attending a court hearing?
Do you disagree? If so, with which part? 

Israel: further political fallout of the Azariah court-martial

The New York Times has this smart op-ed by Ronen Bergman about the continuing political ramifications of the prosecution of IDF Sgt. Elor Azariah on charges of shooting dead an injured Palestinian. Excerpt:
This latest round of this conflict began on March 24: Elor Azariah, a sergeant in the I.D.F., shot and killed a Palestinian assailant who was lying wounded on the ground after stabbing one of Sergeant Azariah’s comrades. The I.D.F. top brass condemned the killing. A spokesman for Lt. Gen. Gadi Eisenkot, the chief of staff, said, “This isn’t the I.D.F., these are not the I.D.F.’s values.” 
But right-wing politicians backed Sergeant Azariah. “I.D.F. soldiers, our children, stand before murderous attacks by terrorists who come to kill them,” the prime minister said. “They have to make decisions in real time.” Mr. Lieberman, then still the leader of a small far-right opposition party, turned up in military court to support the soldier. [Prime Minister Benjamin] Netanyahu also called the soldier’s father to offer support. 
An I.D.F. general told me that the top brass saw the telephone call as a gross defiance of the military’s authority. . . .
Watch this space.

Saturday, May 21, 2016

Bar independence in Somaliland

The Somaliland Minister of Justice has recommended that a human rights lawyer be disbarred after demanding that the prosecution of a civilian be transferred from a military court to a civilian one. Details here.

Military justice in Kenya

The Daily Nation has this lengthy account of military justice in the Kenya Defence Forces. Excerpt:

Court documents seen by the Sunday Nation provide interesting insights into the military's "hard justice" with soldiers being held in detention for long periods without trial and, in certain cases, being summarily dismissed.
"Very sadly, there is an alarming extent to which the military violates the rights of its staff," says Mr Katwa Kigen, a lawyer representing a soldier who has been in military detention since July last year. He says the detention is illegal. 
However, military spokesman Colonel David Obonyo defended the decisions taken by the court.
The article reviews a variety of cases, involving both officers and enlisted personnel, with the government spokesman pushing back on criticism. For example:
One interesting case is that of Lt Col Lukale Moses Sande, a former legal specialist in the military, who was summarily dismissed from the force in May 2014 after 13 years of service. 
Lt Col Sande's letter of termination reads, in part: "The above named senior officer whose termination of commission with benefits has been approved will proceed on annual/terminal leave." 
The letter is signed by Lt Col D.M. Mutegi on behalf of the Chief of Defence Forces. Lt Col Sande was never court-martialed or given notice to show cause, said Mr Were. 
"How do you go to work and get a termination letter out of the blue[]?" he asked. 
[Defense attorney Odera] Were contends that the termination was illegal since only the President has the powers to terminate Lt Col Sande's commission according to Section 251(a) of the KDF Act that deals with senior officers above the rank of a major. 
Lt Col Sande has sued the KDF in the High Court and is seeking Sh56 million in salary and allowances for the years he would have served until the age of 56, according to military rules. 
His dismissal, he say, is against the Employment Act 2007. 
However, Col Obonyo said the officer was not being honest about his dismissal. 
"He knows very well why he was dismissed. Ask him to tell you. He (Lt Col Sande) is a renowned lawyer and it is mischievous and unfair for him to come to the media about it," he said.

Review of Detainee Abuse

The Deputy Inspector General for Intelligence has released a "Review of DoD-Directed Investigations of Detainee Abuse (U)"

Friday, May 20, 2016

Prof. Witt's review of "Court-Martial"

Prof. John Fabian Witt
Yale Law School's Professor John Fabian Witt has this review of Chris Bray's "Court-Martial" in the Wall Street Journal. He comments:
The court-martial does not reflect our nation’s deepest values. It sidesteps them, based on the view, right or wrong, that justice and due process must give way to discipline if we want to field a military force capable of defending the nation. Military justice is not merely a different kind of justice. It is justice mixed with military discipline, which means that, from the Constitution’s perspective, it is justice compromised.

"Booted": new HRW report

Human Rights Watch's May 19, 2016 report, Booted: Lack of Recourse for Wrongfully Discharged US Military Rape Survivors, is available online. Excerpt:
[V]irtually nothing has been done to address the ongoing harm done to thousands of veterans who reported sexual assault before reforms took place and lost their military careers as a result of improper administrative discharges. 
“Personality Disorder” discharges—a term used to describe a mental health condition that can disqualify someone from military service—were once “the fastest and easiest way to get rid of someone” in the military. The use of personality disorder discharges declined dramatically in 2010 after government studies revealed proper procedures were often not followed. Nonetheless, these, and other types of questionable mental health discharges, are still in use and they comprise part of the discharges examined in this report because of the continuing harm suffered by veterans who received these discharges and have no recourse to correct their records. 
Moreover, the reforms have not fixed every type of problematic discharge from the military for sexual assault survivors. Many were discharged with a less than honorable discharge (also known as “bad paper”) for misconduct related to their sexual assaults, which can exclude veterans from virtually all benefits. In the course of reporting a sexual assault, the victim may reveal conduct that is prohibited under the Uniform Code of Military Justice (such as adultery or fraternization), which may lead to a discharge. Prior to 2011, male service members in particular risked being thrown out of service for homosexual conduct for reporting rape by a male, even though the conduct was non-consensual. Symptoms of trauma may also impact performance and lead to a misconduct discharge. All of these types of discharges can create lasting harm and are nearly impossible to remedy.

Cracking down on bullying in ROK

South Korea has enacted new military justice legislation. According to this report:
South Korea’s National Assembly passed a revised military criminal act on Thursday, requiring mandatory legal action to be taken against violence among military personnel even in the absence of a victim’s call for retribution.
The revision of the Military Criminal Act, proposed by the Ministry of National Defense last year and passed by the assembly earlier in the day, is aimed at wiping out any violence and bullying inside military barracks, the government said.
Before the revision, violent acts or threats on soldiers could lead to legal punishment, but only if victims wanted retribution. This allowed some offenses to go unpunished.
“Violence and threatening between soldiers have become an evil custom of our military that could not have been rooted out under the previous law,” the ministry said. “There has been a need to rewrite the Military Criminal Law so the military could bring charges and punish offenders regardless of the victims’ intent.”

There to serve

Photo / Michael Cunningham, Northern Advocate
By Michael Cunningham,
The Northern Advocate
Naval Commander Philip Wiig was found guilty of indecent assault this week by a court martial following an incident where he groped a subordinate's backside at the Devonport Naval base's bar four years ago.
There was a former senior MP who did the same thing at a Press Gallery Christmas party a few years back and it's remained under the radar, essentially because the groped, offended woman didn't want to cause a fuss.
The notion of her laying a complaint with the police never entered her head. That's one of the differences between military and civilian life. With the military it's called 'discipline' with civilians it's called 'yeah-nah'.
But is appearing before your peers at a court martial anachronistic?
Prissy Peter Dunne says it is. Courts-martial, he says, are a hangover from wartime situations where maintaining discipline is paramount. The military's the only service organisation that tries its own members.

The writer concludes they serve a purpose and should be extended to civilians--really?
Perhaps court martials are the answer then - and rather than being scrapped, the principle should be extended.
By Lawrence Smith Fairfax, NZ
Stuff.nz reports that:
A senior Navy commander who repeatedly groped a subordinate's buttocks has been dismissed from service.
Commander Philip Wiig​ was found guilty of one charge of indecent assault following events that happened after a function on board the HMNZS Canterbury on May 17, 2012.

Thursday, May 19, 2016

Private Manning's case goes to Army Court of Criminal Appeals

Chelsea Manning has filed a brief at the U.S. Army Court of Criminal Appeals. It can be found here, on The Guardian's website. The ACLU and the Open Society Justice Institute filed briefs as amici curiae.

Quaere: why don't U.S. military appellate courts have provision for public access to filed briefs? It's not that hard to do.

Israeli selective conscientious objection case

This article describes the case of an Israeli woman who is in jail for refusing to serve in the IDF. Israel, like the U.S., does not recognize selective conscientious objection or objection based on merely political grounds. Who will blink in this test of wills?

New court-martial "head"

The Monitor reports:  Ugandan President Yoweri Museveni has appointed Lt Gen Andrew Gutti as the new chairman of the General Court Martial, replacing the late Maj Gen Levi Karuhanga.

New Vision has some biographical information here.  Interestingly they report "he was decorated with the prestigious Legion of Merit medal of USA for exceptional meritorious conduct in the performance of outstanding services and achievements."

As The Monitor reports, he has been in court before.
Lt Gen Andrew Gutti to give evidence in the ongoing trial of former commander of the Ugandan peace keeping force in Mogadishu, Brig Michael Ondoga.
Brig Ondoga [wa]s charged with failing to brief his superiors while in the African Union offensive operations against the al-Shabaab Islamic militants in Somalia. He has been on remand since October 21, 2013, when he was first arraigned in the military court.

Wednesday, May 18, 2016

High Court stays court-martial in a case of alleged double jeopardy

It seems that the Punjab & Haryana High Court has stayed the proceedings of a Summary Court Martial (SCM) and a charge-sheet served to a soldier who had been tried earlier for the same offence.

While the exact contours of the case are not yet available, it seems an apparent case of double jeopardy.

It is also interesting to see the Constitutional Court take cognizance of the subject matter since the Armed Forces Tribunal (AFT) has on earlier occasions refused to entertain or provide relief in such matters on the ground that the AFT’s jurisdiction over court martial commences only after the verdict of the Court Martial has been rendered- a very restrictive and limited view in my opinion.

The news has been reported here.

Where should these charges be tried?

There are times when you read a news story and your head starts to swim. This is one of them. An Army medic is on trial in federal district court in Honolulu on murder charges (the victim was his wife). So far so good, so to speak. In the course of the investigation, evidence turned up that supports prostitution and child pornography charges. Those are being pursued by the Army as a military justice matter.

Isn't child pornography a federal crime? And if the Assimilative Crimes Act applies, wouldn't a violation of state prostitution law also be triable in district court? Here's the story. What do you think? Did the U.S. Attorney's Office tell the Army to take a hike?