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| President Donald J. Trump |
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| Private Chelsea Manning |
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| Hon. Gregory E. Maggs U.S. Court of Appeals for the Armed Forces |
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| R. v. Blackadder |
Corporal Jino Sanneh, the fifth prosecution witness in the ongoing criminal trial involving 12 soldiers facing treasonable charges, said he was not the administrator of a ‘Whatsapp’ group allegedly created by some soldiers.Not to make light of a serious matter, but the colloquy is reminiscent of the examination of Private S. Baldrick in the court-martial episode of "Blackadder Goes Forth."
He made the assertion whilst under cross-examination by defence lawyer Sheriff Kumba Jobe, on Friday the 26th January 2018, before the panellist of the general Court-Martial.
Sanneh testified that he removed himself from the group chat called “True Friends” when the group was discovered by the authorities, before his arrest.
‘‘How can you remove yourself from the group when you are not an administrator?’’ asked Lawyer Jobe.
‘‘I don’t know,’’ answered the witness.
“Why did you remove yourself from the group chat and delete the messages therein?” asked Lawyer Jobe.
“I don’t know,” answered the witness.
“You deleted them in an effort to cover up yourself,” said Lawyer Jobe.
The witness responded in the negative.
“Can you remember who created the ‘Whatsapp’ group?” asked Lawyer Jobe.
“Actually, I don’t know who created the group but I was added by Sergeant Yusupha Jatta,” responded Corporal Sanneh; that he was added in the Month of July, 2017.
“Was there any force or duress used against you to join the group or you came voluntarily?” asked Lawyer Jobe.
“I was invited,” the witness responded.
“You accepted the invitation without duress, force or threats?” asked Lawyer Jobe.
“Yes sir,” responded the witness.
“As you joined the group, do you know the responsibility and the accountability of the group members?” Lawyer Jobe asked.
“I don’t know,” said the witness.
“How many members were in the group?” asked Lawyer Jobe.
“I know only one member,” the witness said.
“Do you know 7114956?” asked Lawyer Jobe.
“I can’t remember,” he said.
In Niger the trial of soldiers accused of conspiracy against state authority in 2015 has just ended with the verdict of the five judges of the military court. General Salou Souleymane, former chief of staff of the army, presents as the brains of the case is sentenced to 15 years in prison.
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| Maj. (Ret) Navdeep Singh |
[Major] Sonam Tshering submitted to the court that the Anti-Corruption Commission (ACC) had interrogated the witness under duress. He added that one of the shopkeepers, Karna Bahadhur Kharka, was kept in detention for more than a month and another shopkeeper, Tsheten Dorji, was interrogated for two days.According to the second article linked above,
“Karna Bahadhur had said that he must have received payment between Nu 900,000 to Nu 1,050,000 only while Tsheten Dorji had said that about Nu 125,000 was adjusted. How can court treat the shopkeepers’ assumption as evidence?” he asked. “I am also doubtful if ACC recorded voices of the witnesses as it claimed.”
He said that military court did not even call the witnesses. The court based the judgment on the statement submitted by the ACC given by the two witnesses. The court did not prove beyond reasonable doubt.
“The military court also did not consider the two percent TDS of the total expenditure that was paid to the RRCO. Embezzlement amount was based on the entire expenditure incurred,” he appealed. He said that if a ration bill is Nu 1,000, only 800 worth of ration was spent, the balance ration is returned to the shopkeepers, but the court considered embezzlement amount based on the actual bill instead of the total bill spent.”
Sonam Tshering added that the military court did not even consider the military internal audit and Royal Audit Authority’s investigation.
Lt Colonel [Karma] Tharchin [another accused] also requested the HC to investigate how the Royal Bhutan Army (RBA) violated the procedure by terminating and court-martialling the defendants without even waiting for the 10-days appeal period.
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| Col (Ret) Don Christensen |
[I]n order to fully address sexual assault in the armed forces, the DoD will have to tackle its biggest institutional challenge yet: reforming the concept of unlawful command influence [UCI] detailed in Article 37 of the Uniform Code of Military Justice.
The UCI concept, intended to prevent military leaders from interfering in court-martial proceedings, was shaped as a due-process protection in 1950, when the UCMJ replaced the Revolutionary War-era Articles of War and Articles for the Government of the Navy. But critics say it has since evolved into a double-edged sword that gives control of judicial proceedings to unit commanders, who may end up derailing justice for their own reasons.
“The fact that commanders are in control of the process hampers leaders from being able to address the appropriateness about sexual assault,” Don Christensen, a retired Air Force chief prosecutor and president of advocacy organization Protect Our Defenders, told Task & Purpose. “In an independent system, commanders can actually lead as opposed to staying silent, but the current military leadership has refused to be self-reflective about the process. [They] push the virtues of the command-and-control system without ever thinking about the problems it causes.”
More than five months after 17 sailors were crushed and drowned aboard the destroyers Fitzgerald and John S. McCain, the Navy is declining to make public the number and nature of disciplinary actions taken against crew members.This might be a good opportunity to revisit public information policies as well as the substance of previous disposition decisions. Indeed, should transparency standards on the disposition of cases differ from one service to another? How about going purple on this?
At the same time, uncertainty exists regarding the status of past disciplinary actions. Navy officials confirmed this week that the service is reviewing an unknown number of disciplinary measures that were meted out last year.
That review “is both considering all previous actions and reviewing cases in which no action was taken to ensure fairness, consistency, and appropriate accountability,” Navy spokesman Lt. Cmdr. Daniel Day said in an email.
The charges relate to allegations that [Chief Military Judge Mario] Dutil engaged in an inappropriate personal relationship with a subordinate, and that he knowingly signed a travel claim containing false information, according to a military spokesman.The power to appoint or remove a chief military judge is vested in the cabinet.
While none of the charges have been proven in court, the very fact that they were laid had officials throughout the Department of National Defence scrambling to understand the potential impacts – and how the case would proceed.
Military police first started investigating Dutil in November 2015 after receiving a complaint that he had engaged in an inappropriate relationship with a subordinate, according to spokesman Maj. Jean-Marc Mercier.
The alleged relationship is believed to have lasted from November 2014 to October 2015 and while consensual, was not permitted under military regulations, Mercier said.
It was during the course of their investigation into that relationship, Mercier said, that military police uncovered evidence to suggest Dutil knowingly signed a travel claim containing false information in September 2015.* * *
This isn't the first time that Dutil, who took over his current role in 2006, has been accused of violating the military's rules on personal relationships.
But a special committee of three judges dismissed a complaint in April 2016 on the basis that it did not have any impact on Dutil's conduct as a judge. Military police did not lay any charges at that time.
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| The Canadian Military Criminal Justice System requires a wall-to-wall review by Parliament |
Breaking rocks is not “punitive punishment,” such as confinement or brig time as a result of a court-martial, [CWO5 Joseph] Moschetto said. The purpose of correctional custody is “to correct the negative attitudes and motivations of junior enlisted members in order to allow them to meet their initial service obligations.”
[Hadi] Tjahjanto should also pledge to reform the military tribunal system to allow civilian courts to prosecute military personnel implicated in rights abuses against civilians. The 2004 Armed Forces Law placed the military courts under the supervision of Indonesia's Supreme Court but the military controls the composition, organization, procedure, and administration of the military courts.
During the United Nations Universal Periodic Review of Indonesia’s human rights record in 2007, 2012, and 2017, the Indonesian government made a commitment to reform the military tribunal system. The promised reforms included adding to the military criminal code the crimes of torture, and other acts of violence. However, the government has yet to add those offenses to the military criminal code.
“Marshal Tjahjanto should publicly support legal reforms to empower civilian courts to try soldiers implicated in rights abuses,” [HRW Asia Director Brad] Adams said. “It’s a crucial step for holding Indonesia’s military accountable.”
A Tunisian blogger who recently won election to parliament is facing two military court trials for criticizing the army and its top brass on social media, Human Rights Watch said today.
The prosecutor filed the cases against Yassine Ayari, after his election victory as an independent candidate, in December 2017. Ayari was prosecuted twice in military courts, in 2015 and 2016, for insulting the military and spent four and-a-half months in prison.
“Time and again, the military prosecutor has gone after Yassine Ayari for his nonviolent criticism of the army,” said Amna Guellali, Tunisia director at Human Rights Watch. “Seven years after the ouster of President Zine el-Abidine Ben Ali, Tunisian authorities should repeal all laws that criminalize defamation of state institutions or officials and end military court jurisdiction over civilians.”
is fully supported by the record. The salient facts paint a clear picture of court stacking based on gender in an atmosphere of external pressure to achieve specific results in sexual assault cases. Against that backdrop, purposefully selecting a panel that is seventy percent female, most of whom are victim advocates, from a roster of officers that was only twenty percent female and a pool of enlisted that was only thirteen percent female, smacks of a panel that was “hand-picked” by or for the Government. United States v. Hedges, 11 C.M.A. 642, 642, 29 C.M.R. 458, 459 (1960); cf. Dowty, 60 M.J. at 171 (“[A] desire for representativeness cannot be a subterfuge to pack the panel.” (citation omitted)). While we are loath to subscribe to the notion that women are more inclined to reach a finding of guilty in a rape case than men, the facts of this case raise the specter that those tasked with choosing Appellant’s court-martial panel hoped to select members predisposed to “understand the testimony” of sexual assault victims, Smith, 27 M.J. at 250, in accordance with this misguided view.The court added:
The Government, set on arguing that there was no error, hasn’t even claimed to meet its burden to show the error was harmless. Yet the error in this case is both so obvious and so egregious that it adversely affected not only Appellant’s right to a fair trial by an impartial panel, but also the essential fairness and integrity of the military justice system. Article 25, UCMJ; Article 37, UCMJ; see McClain, 22 M.J. at 132. We thus decline to authorize a rehearing, and order that the charges and specifications be dismissed with prejudice. Article 67(d), UCMJ, 10 U.S.C. § 867(d) (2012); Lewis, 63 M.J. at 416. Due to the patent and intolerable efforts to manipulate the member selection process, contra every requirement of the law, Article 37, UCMJ; Smith, 27 M.J. at 250−51; McClain, 22 M.J. at 132, the failures of the military judge, the DuBay military judge, and the CGCCA, to investigate, recognize, or ameliorate the clear court stacking in this case, and the actual prejudice to the Appellant of being tried by a panel cherry-picked for the Government, dismissal with prejudice is the only remedy that can “eradicate the unlawful command influence and ensure the public perception of fairness in the military justice system.” Lewis, 63 M.J. at 416.The strongly-worded decision in United States v. Riesbeck -- which acidly observes (at 4 n.6) that the fact that the case had to reach the Court of Appeals a second time "is a stain on the military justice system" -- can be found here.
The Navy is taking a big risk here.It is concerning that the editorial concludes that the two commanding officers deserve to be punished. Maybe they do, but maybe they don't. It would be fairer to wait for the facts to unfold in the Article 32, UCMJ, preliminary hearings.
Will these criminal charges discourage future leaders from seeking command?
Will this make commanders more risk-averse when making the split-second, life-or-death decisions that they might face?
Will this hurt morale if sailors view this as a politically motivated decision by admirals seeking to appease their critics?
"Muhammad Liaqat was allegedly involved in a fatal attack on a journalist, while Sabir Shah and Shafaqat were sentenced to death over the murder of Advocate Arshad Ali in Lahore."Human rights jurisprudence strongly disfavors the trial of civilians by military courts.
. . . that Manning’s run for office is legally prohibited and could result in prosecution.
“It’s prohibited for the obvious reason that you don’t want someone serving two masters on active-duty,” Hansen stated. “But in Manning’s case, it’s less of a concern, because she’s on excess leave – she has less connection with the military than GOP Sen. Lindsey Graham did when he was an Air Force reserve judge advocate general and certainly less than Army Lt. Gen. H.R. McMaster does while serving as national security adviser to Donald Trump.”
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According to Hansen, the Army likely wants the issue of Manning to fade away from the public spotlight rather than having a commander take the time to open an investigation.Query: is the Defense Department's political candidacy regulation unconstitutional as applied?
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| USS John S. McCain |
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| USS Fitzgerald |
[The Naval War College's Captain Michael] Junge criticized the Navy’s opacity regarding the Fitz and McCain investigations regarding who received non-judicial punishment, and why. He also said he wished the service would release the full investigations into the collisions, instead of the piecemeal information that has come to public light thus far.
“I really wish the Navy had released the real report,” Junge said. “Right now it looks like there must be something else that’s not been released to make these charges stick.”
Kathy Roth-Douquet, CEO of Blue Star Families, says the lack of savings combined with a period of no pay could put some service members in violation of the Uniform Code of Military Justice.Let's look at the Manual for Courts-Martial, shall we? Paragraph 71 states the elements of the offense and provides an explanation:
The code states any service member who borrows money and dishonorably fails to pay is in violation and shall be punished by a military court.
The maximum punishment is six months o[f] confinement. Obviously, a person’s military career is severely hampered if found guilty as well.
b. Elements.
(1) That the accused was indebted to a certain person or entity in a certain sum;
(2) That this debt became due and payable on or about a certain date;
(3) That while the debt was still due and payable the accused dishonorably failed to pay this debt; and
(4) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
c. Explanation. More than negligence in nonpayment is necessary. The failure to pay must be characterized by deceit, evasion, false promises, or other distinctly culpable circumstances indicating a deliberate nonpayment or grossly indifferent attitude towardHonk if you think any member of the armed forces should be losing sleep for fear of a court-martial because s/he won't be able to make a car payment on time as a result of the shutdown.
one’s just obligations. For a debt to form the basis of this offense, the accused must not have had a defense, or an equivalent offset or counterclaim, either in fact or according to the accused’s belief, at the time alleged. The offense should not be charged if there was a genuine dispute between the parties as to the facts or law relating to the debt which would affect the obligation of the accused to pay. The offense is not committed if the creditor or creditors involved are satisfied with the conduct of the debtor with respect to payment. The length of the period of nonpayment and any denial of indebtedness which
the accused may have made may tend to prove that the accused’s conduct was dishonorable, but the court-martial may convict only if it finds from all of the evidence that the conduct was in fact dishonorable. [Highlighting added.]
A Lebanese military court handed down a six-month prison sentence to a journalist for presenting views critical of the army, a court official told AFP said Thursday.Essentially every aspect of this case violates some cardinal principle of human rights.
Hanin Ghaddar, also a researcher known for her criticism of the powerful Hezbollah movement, was sentenced in absentia on January 10 over an expose at a conference in the United States, the source said.
Her sentence sparked outrage among fellow journalists and academics in Lebanon, where they said free speech and freedom of the press were once again being challenged.
The court official said the ruling found Ghaddar, a US resident, guilty of "defaming the Lebanese army, harming its reputation and accusing it of distinguishing between Lebanese citizens."
Internal reform on issues such as military impunity on human rights, criminals, illegal military business, and discipline violations, stalled in the second term of the SBY [General Susilo Bambang Yudhoyono] administration and will not be a priority now. Tackling those issues would face strong internal challenges from the military and so far such reforms have not gained much support from the government and parliament. For instance, article 65 of the 2004 TNI [Indonesian Armed Forces] law states that criminal violations, including human rights abuses conducted by military officers, must be held accountable in civilian rather than military courts. A subsequent military justice bill was proposed in 2004 and since then has received strong resistance from the military leadership and also gotten little attention from the executive and legislative agencies.
Where death of sailors is involved, courts-martial are not always certain. When the USS Stark (FFG 31) was struck by two missiles killing 37 sailors, Navy leaders chose to not court-martial Capt. Glenn Brindell, his executive officer, or his tactical action officer. Cmdr. Scott Waddell was not court-martialed for his actions in command of the USS Greeneville (SSN 772) that killed 9 Japanese citizens. Cmdr. Martin Arriola was not court-martialed after the USS Porter (DDG 78) was struck by another vessel in 2012.There have been occasional courts-martial for commanding officers in the Coast Guard as well for collisions and groundings, regardless of whether lives have been lost. For example, the O-5 commander of USCGC Owasco was taken to a general court-martial following a grounding within sight of the U.S. Coast Guard Academy. (The trial counsel acidly described him as having been a passenger on his own ship.) More recently, the O-4 commander of USCGC Mesquite, a buoy tender operating on the Great Lakes, was prosecuted following a grounding that resulted in the loss of the cutter (but no loss of life), although the conviction was later overturned and he was simply punished at Admiral's Mast.
. . . Since, especially for crimes of command, dismissal or brig time are highly unlikely to be adjudged in a court-martial, and since involuntary separation can be effected through a board of officers (unless the offender chooses to retire or otherwise "go quietly"), abolition of loss of numbers means that essentially the same sanctions--notably, letters of reprimand--can be imposed at admiral's mast as are likely to emerge from a court-martial.
The net effect of abolition, therefore, coupled with the rise of administrative measures such as removal from promotion lists, detachment for cause, retirement grade determinations, and the like, seems to be either to mark or to accelerate the demise of the general court-martial as the forum of choice for the administration of justice in cases involving crimes of command by naval officers.
This evolution may make sense, but it is worth pondering since it is not without cost. It entails a rejection of the court-martial apparatus with all of its highly-touted protections for the individual (proof beyond a reasonable doubt, cross-examination of witnesses, "blue ribbon" juries, resolution of legal issues by a trained judiciary, to name a few) that have been developed especially over the last 50 years, as well as loss of the incalculable benefit of increased public confidence that justice has been done. Shifting a category of cases from the trial forum to a command-focused forum of, if anything, even greater antiquity, seems anomalous. Moreover, shifting to what may seem a more lenient forum a category of cases in which the accused is always an officer can be expected to generate consternation among enlisted personnel, not to mention the public. A court-martial can still reduce an enlisted member's pay grade; it can no longer even reduce an officer's seniority within a pay grade. The separate disciplinary treatment of officers and enlisted personnel has become a little more separate, and crimes of command have seemingly been decriminalized, the UCMJ notwithstanding.
Beyond all these considerations lies the loss of something even more elusive. The Joint Service Committee's explanation for abolition was right on a certain level: loss of numbers had become virtually a museum piece. It was essentially a 19th or even an 18th century sanction struggling to survive in a 21st century Navy. It had a certain anachronistic quality that tied the naval present to the naval past. Indeed, it also had an unmistakably ritualistic ring to it, like the old requirement that holiday colors be displayed when a general court-martial was in session. Even today, precise seniority has consequences at every turn, not simply for deciding who gets to be president of a court or board or who gets which quarters, but also, which ship renders passing honors and who salutes whom. Issues of seniority continue to pervade naval life. At the risk of sounding like old fogies, given all this, were we too hasty in throwing loss of numbers over the side? Will we one-day regret having done so?Eugene R. Fidell & Jay M. Fidell, Loss of Numbers, 48 Naval L. Rev. 194, 198-99 (2001) (footnote omitted).
Since 2011, at least 10 civilians have been tried before military courts in cases related to the free expression of opinions, usually for criticizing the army or state officials. In September 2016, a military prosecutor charged Jamel Arfaoui, an independent journalist, for undermining the reputation of the army in an article he wrote on a news website. In November 2014, Sahbi Jouini, a police union leader, was convicted in absentia and sentenced to two years in prison for defaming the army, after he accused the army of failing to use information adequately to combat terrorism. In May 2013, blogger Hakim Ghanmi was tried before a military court for “undermining the reputation of the army” after he complained about the director of a military hospital.
After reading a number of books of judicial decisions by Israeli military courts in 2017, one learns that a woman's privacy, autonomy, body and dignity aren't worth much. These rulings dealt with photographing female soldiers in intimate situations, as well as distributing the video clips or the photographs to various groups. Any intelligent person understands that there is no greater damage to privacy, but in spite of that, the sentences handed down by the military courts in these cases are very light.
The damage caused to the female soldiers is such that in one case, one of the soldiers said she tried to commit suicide. The many studies written about such cases support the victims testimony. Although the military courts use harsh language in their decisions, when it comes to sentencing its an entirely different story: The sentences are very lenient, and fail to reflect the seriousness of the deed and create sufficient deterrence.
