Tuesday, October 31, 2017

A classified conflict of interest

Carol Rosenberg
Carol Rosenberg writes from Guantánamo that military commission prosecutors have moved to cite three civilian defense counsel for contempt for withdrawing from a case without the court's permission. The prosecutors also want Marine Brigadier General John G. Baker, who is the chief defense counsel and permitted the lawyers to withdraw, to testify about the matter, details of which remain classified.

David Luban writes here on Just Security about "The Guantánamo Ethics Mess." He writes:
The heart of the issue is whether a lawyer can be forced to continue a representation that no U.S. jurisdiction’s ethics rules permit. Hopefully, Judge Spath would agree that the answer is no. But then why not address the issue at Military Commission headquarters in Alexandria, Virginia, not in Cuba?

Opposition leader sentenced by military court in Cameroon

Amnesty International has reported on the results of a military trial in Cameroon:
A military court in Cameroon has sentenced an opposition party leader to 25 years in prison after an unfair trial, Amnesty International said today.
Aboubakar Siddiki, President of the main opposition party in northern Cameroon, ‘Mouvement patriotique du salut camerounais’, was today convicted of charges including hostility against the homeland, revolution and contempt of the President, despite no credible evidence being presented to the court. In the same trial, Abdoulaye Harissou, a well-known notary, was also sentenced to three years prison for non-denunciation. However, the court finally dropped all charges against three journalists - Baba Wame, Felix Ebole Bola and Rodrigue Tongue –who were charged in 2014 with ‘non-denunciation’ of information and sources in relation to the same affair.
Human rights jurisprudence strongly disfavors the trial of civilians by military courts. 

Sunday, October 29, 2017

A professional responsibility crisis no longer looms at Guantánamo--it's here

Richard Kammen
Carol Rosenberg, the Miami Herald's dean-for-life of the Guantánamo press corps, has the story about the latest developments in the military commissions. Excerpt:
A Pentagon shuttle departed for Guantánamo Sunday morning without three civilian lawyers who quit the USS Cole case, setting the stage for a showdown Monday with the military judge who ordered them to the remote U.S. Navy base in Cuba.

Veteran death-penalty defense attorney Rick Kammen and colleagues Rosa Eliades and Mary Spears resigned from the team Oct. 11 over a classified ethical conflict. The judge said, under his reading of the rulebook, they cannot leave the case without his permission.
“The military judge has ordered U.S. citizens to go to what the government claims is a foreign country to provide unethical legal services to keep the façade of justice that is the military commissions running. This order is illegal and neither I nor the other civilians are going to Guantánamo,” Kammen told the Miami Herald Sunday morning. “The fundamental problem, of course, is government misconduct and the judge’s willingness to tolerate this misconduct, which gives rise to the requirement that we withdraw as Mr. [Abd al Rahim] al-Nashiri’s lawyers.”
The underlying circumstances need to be made public if the public is going to have a prayer of understanding what's going on.

Rough seas for HMS Vigilant

There's big trouble aboard a British submarine. According to this account by Clive R. Wootson Jr. in the Washington Post:
According to the Sun, Cmdr. Stuart Armstrong, the sub’s captain, has been relieved of duty amid the investigation, which includes a photo that surfaced of the woman he was allegedly intimate with wearing the captain’s uniform. The No. 2, Lt. Cmdr. Michael Seal, also faces disciplinary action.

Other members of the crew have threatened to resign over the widespread breaches in Royal Navy rules.

The Daily Mail did some math on what the recent developments mean for one of the free world’s strongest deterrents to nuclear war: “Around 10 percent of HMS Vigilant’s 168-strong crew have either been kicked out, quit, are under investigation or have been removed in what is believed to be one of the biggest sex and drugs scandals to hit the Navy.”

Marine Corps recruit abuse courts-martial

The Beaufort Gazette reports here on the impending Camp Lejeune trial of a Marine Corps drill instructor. Reporter Wade Livingston does a deep dive, all the way back to the notorious "Ribbon Creek incident" in 1956. Excerpt:
In the upcoming week, in perhaps the highest-profile court-martial spotlighting Marine Corps recruit training since [Sgt. Matthew] McKeon’s, Gunnery Sgt. Joseph Felix will stand trial at Camp Lejeune, N.C., for allegedly abusing two Muslim recruits, one of whom — Raheel Siddiqui — leaped to his death on March 18, 2016, after a reported altercation with Felix, his DI.
Felix’s court-martial — and that of his former battalion commander, Lt. Col. Joshua Kissoon, scheduled for March 2018 — is no doubt a significant moment for the Corps, one that will again raise questions about how Parris Island makes Marines. Some see parallels between McKeon’s actions and Felix’s alleged behavior — a continuation of a culture of cruelty made possible by a permissive command climate. Others see the incidents as anomalies and distinctly separate events. Still others say that now, just as in 1956, the Corps is in crisis.
And while the death of Siddiqui — the 20-year-old Pakistani-American and former high-school valedictorian from Taylor, Mich. — has spawned other hazing and recruit-abuse investigations and prompted more changes to recruit training, it’s unclear what place the tragedy will hold in the Corps’, and Parris Island’s, history.

Saturday, October 28, 2017

A Vietnam-era tale

Novelist Lucian K. Truscott IV (USMA '69) tells an interesting Vietnam-era anecdote in this piece from Salon. Excerpt:
The easiest way to get me out of the Army was to charge me with insubordination and court martial me. But the officer to whom I had been insubordinate was Major General Rogers, and he didn’t want to testify at a court martial in which he could be questioned about the details of the insubordination I was charged with. They knew I would take the opportunity of the court martial to put the Army’s drug policy — and the way Rogers was implementing it — on trial. So the word was passed down to the brigade commander to get me on something under the Army’s catch-all charge. “Conduct unbecoming” could be anything they said it was. 
It just so happened there was a Specialist Fourth Class (Spec-4) who had recently been caught with marijuana, so the brigade commander told my battalion commander to offer him a deal. They would drop the charges against him if he reported that I had flashed a peace sign at him instead of saluting when we passed in the battalion area. The Spec-4 got word to me through one of the cooks in the mess hall that I was being set up. Sure enough, I was called into the battalion commander’s office and charged with conduct unbecoming an officer and a gentleman. The charge was that I had formed a “V” with my forefingers and flashed the peace sign when the Spec-4 saluted me. And what do you know, but they had pressured two of the other lieutenants in my company to say that they had witnessed this grave offense against the Uniform Code of Military Justice.
Read the rest for the dénouement and this gifted writer's thoughts on whether Article 133, UCMJ (conduct unbecoming) should apply to the Commander in Chief. 

Full circle in Bahrain

Civilians are being tried by military courts again in Bahrain. With depressing symmetry, Bahrain put four civilians on trial in a military court again this week, almost exactly six years after it stopped the practice as part of a much vaunted “reform” program.

Human Rights First senior advisor Brian Dooley, writing here in Huffington Post

Friday, October 27, 2017

For your military law bookshelf

Fred L. Borch, the prolific Regimental Historian and Archivist of the U.S. Army JAG Corps, has an interesting new book out, published in August by Oxford University Press: War Crimes Trials in the Netherlands East Indies, 1946-1949. It seems that if you quote promotional code ALAUTHC4 there is a 30% discount ($50.40).

Congratulations on this important contribution to the literature, Fred!

Thursday, October 26, 2017

Acquittal rates in Canada

Global Military Justice Reform contributor (and Ottawa law professor and practitioner) Col. (Ret) [Maître] Michel Drapeau speaks here with CBC News on the conviction/acquittal rate for Canadian Forces sex assault prosecutions. 

A court-martial in India

The Times of India reports that a soldier who crossed the Line of Control in 2016 and was held prisoner by Pakistan for four months before being turned over to Indian authorities pleaded guilty yesterday to having done so willfully. A general court-martial sentenced him to rigorous imprisonment for two months and 29 days and loss of two years' pension credit. The adjudged sentence is subject to confirmation before it becomes final. Thereafter it will be subject to appellate review. Daily News & Analysis reports:
Though the soldier maintained that he inadvertently crossed the LoC, there were reports that [Chandu BabulalChavan had deserted his post during the surgical strikes carried out in September last year. 
Pakistan had handed over Chavan in January this year. The soldier had returned through the land transit route of Attari-Wagah border. The BSF [Border Security Force] handed him over to the Army which took him to an undisclosed location. 
The 22-year-old, who was posted with 37 Rashtriya Rifles, had surrendered to Pakistani forces, the Inter-Services Public Relations, Pakistan Army's media wing had said in a statement. 
They, in fact, alleged that the Sepoy crossed over willfully over 'his grievances of maltreatment against his commanders'.
Chavan belongs to Borvihir village in Dhule district of Maharashtra. His grandmother suffered a cardiac arrest and died after the family was informed that he was captured by the Pakistan Army.

Tuesday, October 24, 2017

The Decaux Principles and the House of Lords

Lord Thomas of Gresford OBE QC
Lord Thomas of Gresford OBE QC asked the following question in the House of Lords on October 23, 2017:
My Lords, I, too, welcome the Minister’s Answer and the prospect of a review. I want to ask her about the United Nations’ 2006 Decaux principles. On 7 June this year, the United Nations special rapporteur on the independence of judges and lawyers, in his report to the United Nations Human Rights Council, called on states to ensure that the jurisdiction of military tribunals is limited to military offences committed by active members of the military, in order to protect an individual’s ordinary rights to fair trial and due process. Does the Minister agree that Section 42 of the 2006 Act, which provides for military tribunals trying civil cases, is inconsistent with principle 8 of the Decaux principles: that military courts may try military personnel only for offences of a strictly military matter?
The text of the entire discussion -- "Reviewing the Armed Forces Act 2006 and serious offences committed by members of the armed forces" -- in the House of Lords can be found here. Video can be found here, beginning at 15:00:50.

For your military justice bookshelf

Wing Cdr (Ret) U C Jha, IAF
Global Military Justice Reform contributor Wing Cdr (Ret) U C Jha has written a new edition of his book on the Armed Forces (Special Powers) Act: Indian Military Domestic Deployment: Armed Forces Special Powers Act and Human Rights. Details here. Congratulations!

Monday, October 23, 2017

Comparative conviction rates: probative?

CBC News has run a substantial article about the prosecution of sex assault in the Canadian Forces. One point the piece makes is that there conviction rate for courts-martial is about half that of civilian courts. But the military data base is small -- arguably too small to permit meaningful conclusions to be drawn. Excerpt:
"The rate of conviction isn't a measure of success in any prosecution service, whether it's a military prosecution service or a civilian criminal justice system across the country," said Col. Bruce MacGregor in an interview with CBC News.
His annual reports, tabled in Parliament, show that between April 1, 2014, and March 31, 2017, there were 17 courts martial where the accused faced one or more charges of sexual assault.
Those resulted in four guilty verdicts, eight not guilty findings, four cases in which charges were stayed and one case that was withdrawn.
That amounts to a conviction rate of slightly more than 23 per cent.
In civilian courts, the rate of conviction for sexual assault was 43 per cent in 2014-15, according to Statistics Canada.

Military justice system review planned in UK

BT reports:
An independent review of the British military justice system, including the controversial use of majority verdicts in courts martial, is to be carried out, the Government has announced.

The Tory administration said the move was aimed to ensure the system “was effective as it can be for the 21st century”.

It follows calls for the court martial system to be brought into line with the civil courts, with the right for the most serious cases, such as rape and murder, to be tried by a jury and overseen by a judge.
The consultation will apparently not be conducted in public. Editor's note: that sounds like a self-inflicted wound in an era of transparency.

Sunday, October 22, 2017

Why was this case sent to a military court?

Suspected members of a terrorist cell have been charged in a Bahraini military court. Details here. Only a few months ago the country amended its legislation to permit such courts to try civilians. Doing so violates contemporary human rights norms.

Thailand's military courts

The Bangkok Post has published a tough column by Alan Dawson on a visit to one of Thailand's military courts, under the title "The Intimidation Game." Contrary to contemporary human rights norms, these courts can try civilians. Excerpt:
The military prosecutors don't allow lawyers in their courts but agreed to let two people from iLaw attend. They did not actually shackle them and use duct tape to ensure their silence. The iLaw representatives, however, had to wear special badges at all times, like yellow stars. This was not because they are Jews but because they are worse -- members of a human rights group.

Saturday, October 21, 2017

Military Justice Act of 2016 program at GWU

Sponsored by ABA Standing Committee on Armed Forces Law, ABA Standing Committee on Law and National Security, ABA Criminal Justice Section, ABA GPSOLO: Military Lawyers Committee, National Institute of Military Justice, and Judge Advocates Association

November 1, 2017 | 11:30 a.m.  2:30 p.m.
Light lunch at 11:30 a.m. | Event begins at 12:00 p.m.


The George Washington University Law School Student Conference Center, Lisner Hall (2nd Floor) 2023 G St. NW, Washington, DC 20052

Opening Presentation: Legislative Background of the Military Justice Act of 2016
COL (Ret. U.S. Army) Patricia Ham, Executive Director, Military Justice Review Group

Moderator: Professor David A. Schlueter, Saint Mary’s University School of Law

Panel 1: Disposition: Offense through Trial; Articles 32 & 33; Pre-Trial Agreements
  1. COL William Smoot, Chief, Criminal Law Division, U.S. Army OTJAG
  2. LTC Sara Root, Chief, Mobile Training Team MJA 2016, U.S. Army OTJAG
  3. MAJ Wes Braun, Chief Joint Service Policy & Legislation, Military Justice Division, U.S. Air Force Legal Operations Agency
  4. LT Alexandra Nica, JAGC, Criminal Law Division, OJAG
Panel 2: Sentencing: Members, Judge Alone, and Sentencing Standards
  1. COL Peter Yob, Special Victim Program Manager, U.S. Army OTJAG
  2. LTC Jay Thoman, Chief, Criminal Law Policy Branch, U.S. Army OTJAG
  3. MAJ Wes Braun, Chief Joint Service Policy & Legislation, Military Justice Division, U.S. Air Force Legal Operations Agency
  4. LT Alexandra Nica, JAGC, Criminal Law Division, OJAG
Closing Presentation: The New Transparency: DoD Pacer-like System; Data Collection Ms. Eleanor Vuono, Member, Military Justice Review Group

RSVP by October 30, 2017 to NSLA@law.gwu.edu

Wednesday, October 18, 2017

A step backwards in Brazil

"A military member of the Armed Forces doesn't act as a private citizen, but as the State itself, under its supreme power, and deserves to be judged by a specialized judiciary."

Brazil's Minister of Defense, commenting here on President Michel Temer's approval of legislation transferring from civilian to military jurisdiction serious cases in which the victim is a civilian and the perpetrator is a member of the armed forces

The George III Award for retrograde legislation is hereby conferred on Mr. Temer and the Brazilian Congress.

Tuesday, October 17, 2017

Judicial Proceedings Panel reports

The Judicial Proceedings Panel (JPP) has issued the following news release:
The Judicial Proceedings Since Fiscal Year 2012 Amendments Panel (JPP) has released its final report-the culmination of three years of the Panel's review and assessment of issues involving judicial proceedings under the Uniform Code of Military Justice related to sexual assault in the Armed Forces.
Over the course of its term, the JPP issued 11 reports to the Secretary of Defense and Congress presenting its research, findings, and recommendations on the topics assigned to it by Congress and on two topics referred by a predecessor sexual assault advisory committee--the Response Systems Panel. The JPP also investigated two additional issues that came to its attention as the Panel conducted its other assessments: retaliation against those who report sexual assault and the rights of victims at the appellate stage of the judicial process.
The Judicial Proceedings Panel Final Report addresses these JPP reports, which can be found on the JPP website at http://jpp.whs.mil. These reports are:
  • Judicial Proceedings Panel Initial Report (February 2015)
  • Judicial Proceedings Panel Report on Restitution and Compensation for Military Adult Sexual Assault Crimes (February 2016)
  • Judicial Proceedings Panel Report on Article 120 of the Uniform Code of Military Justice (February 2016)
  • Judicial Proceedings Panel Report on Retaliation Related to Sexual Assault Offenses (February 2016)
  • Judicial Proceedings Panel Report on Statistical Data Regarding Military Adjudication of Sexual Assault Offenses (April 2016)
  • Judicial Proceedings Panel Report on Military Defense Counsel Resources and Experience in Sexual Assault Cases (April 2017)
  • Judicial Proceedings Panel Report on Victims' Appellate Rights (June 2017)
  • Judicial Proceedings Panel Report on Sexual Assault Investigations in the Military (September 2017)
  • Judicial Proceedings Panel Report on Statistical Data Regarding Military Adjudication of Sexual Assault Offenses for Fiscal Year 2015 (September 2017)
  • Judicial Proceedings Panel Report on Panel Concerns Regarding the Fair Administration of Military Justice in Sexual Assault Cases (September 2017)
A five-member independent federal advisory committee tasked by Congress in 2013 to conduct an independent review and assessment of military judicial proceedings for sexual assault offenses since fiscal year 2012, the JPP held 32 public meetings between August 2014 and July 2017 during which the members heard testimony from hundreds of witnesses, including sexual assault survivors and victim advocacy organizations, military leaders, military and civilian prosecutors, defense counsel and victims' counsel, former military judges, victim services personnel, and numerous others. The Panel also received thousands of pages of documents from the Department of Defense, the military Services, and other interested parties.
During three years of review, the JPP has observed and assessed many constructive and important changes to combat sexual assault in the military and improve support for victims. The Panel emphasizes the fundamental importance of a fair and just military justice system to the operational readiness of the United States Armed Forces. As stated in the Judicial Proceedings Panel Report on Panel Concerns Regarding the Fair Administration of Military Justice in Sexual Assault Cases, "It is vital for the military justice system to strike the right balance between the needs of the victim and the needs of the defendant. Both must be properly addressed if the system is to be fair and just, and perceived as such."
The Panel thanks the hundreds of individuals who have contributed their time, insights, and effort to its work, including its staff. The Panel also expresses its thanks to the Secretary of Defense and Congress for their recognition and support.
More information about the JPP, including the full version of this report and testimony and materials considered by the Panel members, is available on the JPP's website at http://jpp.whs.mil.

Monday, October 16, 2017

Egyptian decision not a panacea

The Constitutional Court's decision in Egypt that allocates protest cases to civilian courts rather than military courts may be little cause for celebration. According to this article, the cases will now go to state security courts, which have their own problems. Excerpt:
With the existence of Law 136/2014, which gives military judiciary authority over the protection of vital facilities, the ordinary criminal court saw that the case should be referred to a military court. The latter rejected the case on the grounds that no harming of public facilities actually took place – an argument upheld by the Constitutional Court.
Military trials of civilians have been a source of controversy among human rights defenders. But whether Saturday’s verdict was a victory in that context is debatable. Both [lawyer Negad] El-Borai and [Mokhtar Mounir, a lawyer at the Association for Freedom of Thought and Expression,] pointed out that State Security Emergency courts would now replace military trials in protest cases.
“Like in the military judiciary, those emergency courts do not protect basic due process,” El-Borai said concerning the rights of the defendants. “As the Cassation Court has to fully re-examine cases, the state may be looking to take off pressure by accelerating the process though emergency courts,” he said.
Mounir pointed out that it is expected that misdemeanor cases related to protests would go to emergency courts, according to a new cabinet decision to refer certain crimes to those courts including violations of the Protest Law.
What about past cases? "Existing verdicts would have to be appealed before the same military judiciary using the Constitutional Court’s verdict." says attorney Mounir.

Sunday, October 15, 2017

Lies, damn lies, and statistics

In the past we've noted unexpectedly high numbers of hits from Russia. Today it is Germany. Our analytical tools report that in the past two hours, Global Military Justice Reform has had a whopping (and literally unbelievable) 1012 hits from Germany, a mere three from the United States, and just one from Indonesia. As we have previously reported, the data must be taken with a grain of salt. It's unclear if this reflects some nefarious plot (think: 2016 US presidential election), but from the glass-enclosed newsroom high above Global Military Justice Reform Plaza, it's disturbing and readers should be aware of it.

Saturday, October 14, 2017

Some things are becoming constants

Regardless of country or Service, senior officers are getting into trouble and sex is somewhere in the allegations along with some lying to investigators.  The Times of India brings us this little piece.

Brigadier loses 10-yr seniority for affair with colonel's wife
The brigadier faced as many as 13 charges, including adultery, falsifying official documents and violation of good order and military discipline[.]
[He] was awarded a 10-year loss of seniority and "a severe reprimand" by a general court martial after he pleaded guilty to committing adultery during the military trial.
"Stealing the affections of a brother officer's wife'' - euphemism for a sexual affair is considered a very serious misdemeanour and unbecoming conduct in the armed forces. Usually, officers indicted for such offence are summarily sacked, sometimes without pension and other benefits. "But the punishment is relatively less in the brigadier's case because he pleaded guilty to the charges," said an officer.
See here for an earlier blog, sort of the same subject.

Up until some years ago, the U. S. Navy had a court-martial punishment called 'loss of numbers,' the same principle as applied to the Brigadier here. Someone decided to remove that as a possible punishment--I wonder if they should bring that possible punishment back?

A surprising ruling in Egypt

Global Military Justice Reform is more than willing to kvetch when the circumstances warrant -- which is all too often. Now for a pleasant surprise from Egypt. The Constitutional Court ruled today the protest cases must be tried in civilian rather than military courts. Here is an excerpt from this account:
Egypt's Supreme Constitutional Court ruled on Saturday that protest-related cases fall under the jurisdiction of the regular judiciary, not military courts.
The court’s ruling was in response to six cases submitted by the State Lawsuits Authority to determine which judicial authority should review cases involving illegal protest and obstructing roads in Upper Egypt's Beni Suef.
The Beni Suef cases were the subject of a judicial dispute between the regular criminal court and the military court in the governorate.
The Constitutional Court said in its reasoning that the defendants were to be tried in regular court given that they are not members of the Armed Forces and their crimes did not involve public institutions or properties.

Welcome aboard!

Global Military Justice Reform is proud to welcome a new contributor: Captain (ret) John Byron, U.S. Navy. We look forward to having his insights as a line officer/submariner and highly regarded commentator on naval matters.

One skipper’s view of captain’s mast

Post by John Byron,  Captain, USN (Ret)
Yes, it’s non-judicial. But it needs to be just and seen as such by all the interested parties.
Who are they?
  • The accused standing at the bar.
  • The rest of the crew, who’ll both judge the skipper and should find lessons on good order and discipline.
  •  Higher authority, the Fourth Estate, and the general public, as the Commanding Officer of USS SHILOH (CG-67) recently discovered.
So the question is how best to serve this goal, to make the justice of non-judicial punishment visible to all.
The answer I came to early in my command tours, USS GUDGEON (SS-567) and later Naval Ordinance Test Unit Cape Canaveral: hold all masts in public, with as many of the crew attending as space and other duties allow.
Admittedly, doing so was contrary to my upbringing and experience in the five ships I’d served in previously. In them (and most or all of the rest of the Navy), mast was always held in private, the chain of command and the alleged miscreant the only attendees, even witnesses kept out until called upon. It’s the way it was.
But, with some misgivings at first and an Executive Officer and Chief of the Boat rather dubious, I decided to go back to earlier tradition, the days of sail and punishment in view of the crew topside before the mast. I found the results to be better than I could have anticipated. It really worked. 
Why do it this way, hold mast in public? Three reasons:
  • The accused stands before peers and suddenly the bluster and bravado that led to the incident seem a lot less brave. It’s intimidating to be seen as letting down the crew and the ship’s reputation with misbehavior. The prospect of later having to stand before shipmates accused of wrongdoing concentrates the mind wonderfully.
  • It informs the crew of the fairness of the proceedings, something often lost when the main source of crew information is the accused—found to have committed the offense with which charged—then going to the crew with his or her version of how they got screwed at mast. Trust me—it happens 100% of the time when no one else sees the actual mast
  • Most importantly, it makes the skipper conscious that the whole crew is audience and needs to see clearly that what happens at mast is fair and proper. Being arbitrary and vindictive tells the crew their captain is a jerk, a moral brake on mean behavior that a skipper has authority for but never justification.
Not many masts in a diesel submarine or a happy shore command, but those I did run (with one exception*) were done in front of the whole crew, to its benefit and mine.
Skippers: hold your masts in front of the whole crew.

*I had a really fine young sailor who’d made a mistake and needed to be called to account. But I didn’t want to wreck his future in the boat. So mast was private and very quiet, sentence suspended on good behavior, and I was pleased months later to pin submarine dolphins on a well-qualified squared-away submariner. Judgment call. That’s what you get paid for.