Wednesday, January 31, 2018

Defence Minister of India directs withdrawal of appeals from the Supreme Court against promotional benefits granted by courts to a category of officers

In a morale boosting move and a landmark step to withdraw unnecessary litigation from the Courts, the Defence Minister, Ms Nirmala Sitharaman, has directed the withdrawal of appeals filed by the Ministry of Defence against judicial verdicts favouring officers commissioned under the Short Service Commissioned and Women Entry Schemes, who entered service prior to the year 2006, and who were not granted the promotional benefits of a new cadre restructuring policy on the ground of a self created internal negative interpretation.

A Committee of Experts in its report submitted in 2015, had come down heavily upon the establishment for filing the said appeals in the Supreme Court.

The interesting part of the whole case was that while the Navy and the Air Force had granted similar benefits to their own officers emanating out of the same policy, the Army had withheld the same.

The Week reports the issue in greater detail.

Guantánamo detentions executive order

President Donald J. Trump
President Donald J. Trump yesterday issued this executive order concerning detentions at Guantánamo Bay Naval Station:

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1.  Findings.  (a)  Consistent with long-standing law of war principles and applicable law, the United States may detain certain persons captured in connection with an armed conflict for the duration of the conflict.

(b)  Following the terrorist attacks of September 11, 2001, the 2001 Authorization for Use of Military Force (AUMF) and other authorities authorized the United States to detain certain persons who were a part of or substantially supported al-Qa’ida, the Taliban, or associated forces engaged in hostilities against the United States or its coalition partners.  Today, the United States remains engaged in an armed conflict with al‑Qa’ida, the Taliban, and associated forces, including with the Islamic State of Iraq and Syria.

(c)  The detention operations at the U.S. Naval Station Guantánamo Bay are legal, safe, humane, and conducted consistent with United States and international law.

(d)  Those operations are continuing given that a number of the remaining individuals at the detention facility are being prosecuted in military commissions, while others must be detained to protect against continuing, significant threats to the security of the United States, as determined by periodic reviews.

(e)  Given that some of the current detainee population represent the most difficult and dangerous cases from among those historically detained at the facility, there is significant reason for concern regarding their reengagement in hostilities should they have the opportunity.

Is Chelsea Manning Ineligible for her Senate Run?

Private Chelsea Manning
Army Private Chelsea Manning filed paperwork earlier this month to run for the U.S. Senate in Maryland. While Chelsea’s sentence was commuted last year, her appeal before the Army Court of Appeals (ACCA) is still pending. She filed her appellate brief with the Army Court in May 2016, and I could not locate any reports that she has withdrawn her appeal. At court-martial she was sentenced, in part, to a dishonorable discharge, necessitating automatic appellate review of her case by ACCA.

If her appeal is still pending, she is almost certainly on appellate leave status, meaning she is technically still a Soldier in the regular Army.  (See Article 76a of the UCMJ, and paragraphs 5-19 through 5-22 of Army Regulation 600-8-10.) Soldiers serving on active duty are ineligible to run for partisan office.

Everyone who has practiced at the appellate courts knows clients frustrated they are not given their DD 214 and remain in the service while they await their appeal, even though they are no longer in confinement. I haven’t seen anything that suggests Chelsea is any different from other service members who await final adjudication of their case while on appellate leave status.

Now I know there’s a lot of conjecture here, but it strikes me that Chelsea Manning has a few options to avoid subjecting herself to additional UCMJ proceedings. The Secretary of the Army can grant her permission to run, but there's no indication this permission was sought or granted. She could also withdraw her appeal or from her Senate campaign. Otherwise, she is likely flouting DOD policy and may be subject to further court-martial punishment. Thoughts?

Tuesday, January 30, 2018

Riesbeck: a perfect storm?

Hope Hedge Seck reports here on United States v. Riesbeck, 77 M.J. ___, 2018 CAAF LEXIS 50 (C.A.A.F. 2018), for What is the case about? Member selection? Unlawful command influence? Congressional crosswinds? Inherent difficulties that come with an 18th century military justice system that remains, to quote the Army, "owned and operated" by commanders? You be the judge.

Full house

Hon. Gregory E. Maggs
U.S. Court of Appeals
for the Armed Forces
And now there are five (or soon will be) on the U.S. Court of Appeals for the Armed Forces. The Senate has confirmed the nomination of Prof. Gregory E. Maggs to fill the current vacancy. Congratulations!

WhatsApp case continues in Gambia

R. v. Blackadder
The WhatsApp treason court-martial has resumed in Gambia. Here is an example of the examination of witnesses, thanks to Forayaa's continuing detailed coverage by Yankuba Jallow and Kebba Secka:
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.

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.
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."

Monday, January 29, 2018

Francophone video on Niger court-martial

Voice of America has posted this video report concerning the recently concluded high-profile court-martial in Niger (en français).
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.

Major Navdeep Singh's book goes into a second edition

Maj. (Ret) Navdeep Singh
A second edition of Major (Ret) Navdeep Singh's book "Maimed By the System," has been published. Some of his harrowing accounts are noted in this review by Bhartesh Singh Thakur for the Chandigarh Tribune. Major Singh is a practicing advocate representing military personnel and veterans as well as a contributor to Global Military Justice Reform. Congratulations!

Sunday, January 28, 2018

Jurisdiction creep?

Now the military courts are in their fourth and final year. But have any reforms been introduced in the centuries-old law and justice system? The day is not far when people will ask military courts to also settle their fiscal and property disputes. Why have people been forced into believing that they cannot get justice form ordinary courts?

Peshawar attorney Irshal Ahmad, writing about Pakistan's penchant for military courts here in The News International

Saturday, January 27, 2018

Nobody attacks a stronger opponent

Related image

From 2013 to 2017, 195 UN peacekeepers have been killed by acts of violence, more than during any other 5-year period.  In 2017, 56 were killed, the highest number since 1994.

UN Secretary General Antonio Guterres requested Lt. Gen. Carlos Alberto dos Santos Cruz, a retired Brazilian military officer, to lead a high-level review of UN peacekeeping because of the spike in fatalities.  His report, "Nobody attacks a stronger opponent," was released on January 22d and faulted "a deficit of leadership" that prevented the peacekeeping forces from adapting to the reality that they have become targets.  The United Nations is most often attacked as a result of inaction, the report stated.

To remedy the spike in fatalities the report recommends that the UN peacekeepers deter and repel attacks and use force to defeat attackers.  The peacekeeping missions "should identify threats to their security and take the initiative, using all the tactics, to neutralize or eliminate the threats.  Missions should go where the threat is, in order to neutralize it.  Missions should also push combat to the night, to take advantage of their superior technology."

Although it is clear that the blue helmet and the UN flag no longer offer sufficient protection from attacks, especially in Africa, turning the peacekeepers into warriors might require calling them something else.

High Court review sought of Royal Bhutan Army trial

The High Court of Bhutan has been asked to review the proceedings of a Royal Bhutan Army embezzlement trial. Details here and here. One report notes:
[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.

“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.
According to the second article linked above,
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.

#MeToo, unlawful command influence, and disposition authority

Col (Ret) Don Christensen
This just in from Task & Purpose senior editor Jared Keller:
[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.”

Transparency and disciplinary action

Military Times's Geoff Ziezulewicz is continuing to track the naval justice aspects of the McCain and Fitzgerald cases. His latest article, "Secrecy and uncertainty surround[] Navy discipline for fatal ship collisions," can be found here. Excerpt:
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.

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.
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?

Friday, January 26, 2018

More on Canadian chief judge's case

The Globe & Mail's report by Lars Hagberg on the charges against Canada's chief military judge adds some details to yesterday's breaking news:
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.

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.
The power to appoint or remove a chief military judge is vested in the cabinet. 

Grant of pension by Armed Forces Tribunal to widow of court martialed officer who died during pendency of appeal

The Principal Bench of the Armed Forces Tribunal (AFT) has granted pension to the widow of an officer who had been cashiered from service after a court martial and who died during the pendency of his appeal against the verdict of the said court martial.

Lt Col SK Malhotra was cashiered for the offence of abetment of theft of two barrels of petrol. He had challenged the verdict in the Delhi High Court and the petition was transferred to the AFT on its inception in 2009. The officer however died before the conclusion of the challenge.

The widow of the officer had, after the officer’s death, submitted a mercy petition to the Government for grant of pension since it is permissible under the rules for the Government to grant pension (at its discretion) even to officers dismissed from service if they had minimum length of qualifying service for pension at the time of dismissal. The mercy petition however was rejected by the Government through a non-speaking order.

The AFT, while disposing the pending appeal, had directed the Government to reconsider the mercy petition  of the widow for pension by way of a reasoned order since the officer had died before his guilt or otherwise could be established in the appellate process.

The Government however again rejected the prayer of the widow primarily on the pretext that she was not facing extreme hardship since her children were “married and settled”. The said rejection was challenged by the widow through a fresh petition before the AFT.

Allowing the petition, the AFT has directed the Government to release the family pension to the widow by holding the grounds professed by the Respondents to be unreasonable.  The tribunal has ruled that marriage of children does not imply that the widow does not require financial support for sustenance or that the children must necessarily be taking care of her financial needs. The tribunal has also found fault in the rejection order of the Government since in its earlier order the tribunal had observed that her claim for pension was an ‘independent right’, an observation that had not been challenged in any higher forum. The tribunal, based on equities, has granted pension to the widow from the date of the order (without past arrears), and has also held that the order would not be cited as a precedent.

Though the tribunal has appreciably granted pension to the wife of the late officer, still the entire saga reflects poorly upon the system on many accounts. Firstly, the non-culmination of a process set in motion in 1997 for such a long time. Secondly, the Government’s rejection of the petition in the first instance without assigning any reasons. Thirdly, the Government’s rejection of the petition for the second time by assigning flimsy reasons only in order to circumvent the order of the AFT, showing in the bargain that the rejection was more out of prestige than proper application of mind. Fourthly, the AFT terming its own order non-precedential would lead to the proposition of law still remaining grey for future cases with no judicial guidance to both sides as to how to settle such matters if they so arise in the future.

Perhaps we would have the benefit of a Constitutional Court decision on the issue in the future.  

Thursday, January 25, 2018

Canadian chief judge facing court-martial

Perhaps a sign of a healthy military justice system, but rather scandalous nonetheless:  Canada's Chief Military Judge is facing court-martial charges. Specifics unknown at this time, but the charges include "one count of an act of a fraudulent nature; one count of willfully making a false entry in a document; and one count of conduct to the prejudice of good order and discipline."

Decaux Principles Workshop: extension of comment period

Last month, we posted an invitation for comments on the 2016 Decaux Principles (Draft Principles Governing the Administration of Justice Through Military Tribunals), with a January 20, 2018 deadline. Comments are still welcome, so if you did not have a chance to prepare anything before, you still can do so. Comments can be submitted in response to this post (real names only, please) or emailed to the Editor at Yale Law School. Please comment no later than February 20, 2018.

A breath of fresh air; a call for open communications

The Canadian Military Criminal Justice System
requires a wall-to-wall review by Parliament
As reported in an earlier blog (January 17, 2018) the Canadian Judge Advocate General (JAG), Commodore Geneviève Bernatchez, has announced that she is looking forward to significant consultations with key stakeholders and those who have expertise and interest in the military justice system. This is a new new and welcome direction by the Office of the JAG.

Commodore Bernatchez also noted that she is looking forward to the results of the next independent review to be undertaken within the next two years pursuant to section 273.601 of the National Defence Act.

My only comment to this is: "the sooner, the better"; why wait two years?


The following provides a succinct summary of the origins and status of the independent review of the National Defence Act by external actors:
  • 1997 SOMALIA COMMISSION OF INQUIRY. The five-volume Report by the Commission of Inquiry into the Deployment of Canadian Forces to Somalia titled "Dishonored legacy: the lessons of the Somalia affair".” The inquiry, which took place between 1995-1997, was chaired by the Honorable Mr. Justice Gilles Létourneau of the Federal Court of Appeal and included the Honorable Mr. Justice Robert C. Rutherford and Mr. Peter Desbarats. The inquiry was cut short by the government in the months before the 1997 General Election. The 2,000-page report was critical of the senior leadership of the Department and the Canadian Forces, combat operational preparedness of the deployed troops, discipline and the military justice system. The report was the catalyst for causing fundamental, system-wide structural changes to the military justice system. Due to its sound reasoning based on a foundation of extensive research, abundant evidence and a well-structured analysis, as well as the sober sagacity and candour of its authors, over the course of the past 21 years many of the recommendations contained in the report have been implemented causing a sustained impetus for a broad scheme of necessary ongoing reforms. 

Statutory requirement for an cyclical independent review of the NDA

In the wake of these reports, section 96 of Bill C-25 – An Act to Amend the National Defence Act (Assented to on December 10, 1998, S.C 1998, c. 35) introduced the requirement for the Minister of National Defence to undertake further and regular independent review of the amendments to the NDA every five years - following the bill’s coming into force.

Effectively, since 1998, there has been two such independent reviews, one in 2003 and the other in 2011.
  • 2003 LAMER REPORT. The First Independent Review, conducted by the Right Honourable Antonio Lamer, former Chief Justice of the Supreme Court of Canada, “related solely to the provisions and operation of Bill C-25, and did not encompass the NDA as a whole.” The Lamer Report made a total of eighty-eight [88] recommendations, which, in large part, related to designing better guarantees of the independence of key players such as military judges and the Director of Defense Counsel Services, and improving the grievance and military police complaints process. In addition, the proposed amendments to the Code of Service Discipline reflected a desire to incorporate certain Criminal Code rules into the military justice system. Finally, Bill C-60 – An Act to Amend the National Defence Act (court martial) (assented to June 18, 2008, S.C. 2008, c. 29) responded to recommendations made in the Lamer Report and made three significant adjustments to the military justice system:
  1. Reduced the types of court-martial to two (General Court Martial and Standing Court Martial),
  2. Introduced the possibility for the accused to elect the type of court martial to be convened, and
  3. Put forth the requirement that military panels reach unanimous verdicts (rather than simply majority verdicts). 
  • 2011 LESAGE REPORT. In December 2011, the Honourable Patrick J. Lesage published the Report of the Second Independent Review Authority . The document was introduced in the House of Commons on June 8, 2012. The report makes fifty-five [55] recommendations for both the military justice system and the Canadian Forces grievance process. Approximately two-thirds of the recommendations report are related to the military justice system, the remaining third dealing with the Canadian Forces Military Police Group, the Military Police Complaints Commission, and the Canadian Forces grievance process.

Wednesday, January 24, 2018

Breaking rocks

Task & Purpose: U.S. Marine Corps on Okinawa is reinstating breaking rocks. Read all about it here. Excerpt:
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.”

Call for action on proposed reforms in Indonesia

A Human Rights Watch statement observes:
[HadiTjahjanto 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.”

Tuesday, January 23, 2018

Don't insult the army (in Tunisia)

Human Rights Watch has issued a strong statement about the prosecution of a member of the Tunisian Parliament for insulting the army:
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.”

Coast Guard jury-stacking leads to dismissal of charges with prejudice

In a landmark decision by Judge Margaret A. Ryan, the 5-member civilian United States Court of Appeals for the Armed Forces today unanimously reversed a contested Coast Guard general court-martial case and dismissed with prejudice charges of rape by force, communicating indecent language, and making a false official statement. The court found that the convening authority had stacked the panel by detailing a high percentage of women (7 out of 10). This was a form of unlawful command influence. The opinion recites that the inference that the purpose of detailing such a high percentage of women was to affect the findings and sentence
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

Marking time: four years and counting

Bill C-15: An Act to Amend the National Defence Act was tabled in Parliament on June 2011 and was enacted into law on June 19, 2013. Yet, more than half of this bill has yet to be put into force, including all provisions aimed at strengthening the military justice system. Citing sources in the Office of the Minister of National Defence, the Canadian Parliamentary Precinct, Hill Times, now reports  that there is "No money to bring in missing-in-action military justice reforms four years after being made law" because to do so would require a "substantial commitment of time and resources."


Bill C-15 was the subject of more than two years of extensive consultation, including eight (8) separate meetings of the Standing Committee on National Defence, and five full meetings of the Senate Committee on Legal and Constitutional Affairs. In many respects, the contents of the Bill were specifically aimed at improving the rights of members of the CAF, and strengthening the military justice system such as the scope of sentencing principles, absolute discharge, intermittent sentences, restitution, and allowing victim impact statements.

The McCain and Fitz cases: an editorial view

The Military Times editorial board has written here about what it considers the high stakes in the charges against the skippers of the McCain and the Fitzgerald. Was the decision to prefer negligent homicide charges "dicey"? "It’s a move that will have a potentially far-reaching impact on all services and service members up and down the chain of command. It raises unsettling questions about the scope — and limitations — of a commander’s responsibility." The editors write:
The Navy is taking a big risk here.

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?
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.

Monday, January 22, 2018

Why were these cases tried in a military court?

Pakistan Today reports that the execution of three civilians who were sentenced to death by a Pakistani military court has been stayed by the Supreme Court. But why were these cases tried by such a court in the first place?
"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. 

What's up with the Mounties?

Changing the culture of an organization, especially a traditionally conservative and hierarchically bureaucratic one like a military force, is probably the hardest thing to do in any restructuring effort — but that’s especially true if the culture is shaped by history and training. The RCMP is hypersensitive to criticism, and that’s largely because its members view loyalty to the traditions of their service in the same light as any military around the world; they are taught to be fiercely proud of their identity and purpose. And its ill-fitting task of contract policing sets the backdrop for practically all of the problems that confront the force.

Ken Hansen, of Maclean's Magazine, writing here on the Royal Canadian Mounted Police

Does Chelsea Manning's run for the Senate violate the UCMJ?

The Daily Caller reports here on whether Chelsea Manning's candidacy for the U.S. Senate violates a DoD punitive regulation and could therefore lead to disciplinary action under the Uniform Code of Military Justice. Victor M. Hansen, a retired Army judge advocate who teaches at New England Law, comments
. . . 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.”
*   *   * 
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?

Sunday, January 21, 2018

The McCain and Fitz cases

USS John S. McCain
USS Fitzgerald
Military Times's Geoff Ziezulewicz and Mark D. Faram have this report on the challenges and potential implications of the preferral of charges against the COs of USS John S. McCain (DDG-56) and USS Fitzgerald (DDG-62). Excerpt:
[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.”

Saturday, January 20, 2018

Shutdown Day 1

Still at it in Venezuela

Venezuela has tried two civilian taxi drivers along with eight Special Forces officers (one of whom was retired) in a military court, according to this report from Venezuela al Día.

Human rights norms strong disfavor the trial of civilians in military courts. The Inter-American Court of Human Rights has also condemned the exercise of military jurisdiction over military retirees.

Shutdown and military justice (huh?)

Under the alarming headline "Shutdown could cause court martial for some troops in debt" we have this Federal News Radio piece by Scott Maucione to thank for the following unfortunate comments:
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.

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.
Let's look at the Manual for Courts-Martial, shall we? Paragraph 71 states the elements of the offense and provides an explanation:
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 toward
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.]
Honk 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.

The shutdown will certainly raise a host of legal concerns; this isn't one of them.

10 more cases approved for the gallows

Ten more men convicted by Pakistan's military courts have had their death sentences approved by the Chief of Army Staff. All 10 admitted their guilt. Details here; nothing about any legal issues the accused men raised.

Friday, January 19, 2018

Military courts gone wrong in Lebanon

From Voice of America we learn:
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.

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."
Essentially every aspect of this case violates some cardinal principle of human rights.

Thursday, January 18, 2018

Negligent homicide in naval mishaps

H/T to Don Rehkopf for inviting this Naval Institute Proceedings article by Captain Kevin S. Eyer, USN (Ret) to the Editor's attention.

Military justice proceedings occasioned by the fatal accidents involving USS John S. McCain and USS Fitzgerald are certain to grip the attention not only of observers within the Navy but in the other armed forces and in the country as a whole. It may be well to bear in mind, as always, the presumption of innocence and await a fuller development of the facts and circumstances before reaching conclusions not only as to anyone's culpability but also as to the wisdom of invoking the UCMJ process.

Human Rights Watch 2017 world report

Human Rights Watch's invaluable comprehensive and in many respects discouraging 2017 world report (covering events of 2016) is available here. Use search terms "military courts" and "military justice" to locate information concerning military justice reform efforts (or the lack thereof).

Don't hold your breath for reform in Indonesia

Reporting on the selection of Air Chief Marshal Hadi Tjahjanto as Indonesia's new military chief, The Diplomat observes:
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.

Accountability: lessons from naval history

Captain Michael Junge of the Naval War College has written an outstanding, detailed post for War on the Rocks concerning the application of military justice to U.S. Navy vessel casualties. He notes:
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.

In 1999, President Bill Clinton abolished loss of numbers as a punishment. As Jay M. Fidell (a former Coast Guard military judge) and the Editor wrote in 2001 in the Naval Law Review:
. . . 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).

Comments welcome. (Anonymous comments will not be posted.)

How long is too long?

In an editorial published in the Ottawa Citizen on January 16, 2018, questions are being raised about the continued suspension of Vice-Admiral Mark Norman by his then boss, General Jonathan Vance, Chief of the Defence Staff, on January 6, 2017. While conducting their investigation into allegations of unauthorized leaks of Cabinet confidences related to the procurement of a supply vessel, the Royal Canadian Mounted Police (RCMP) has executed a number of search warrants (including Norman's family home) and interviewed approximately 30 people.

Today, the Ottawa Citizen reveals that the Norman case has now been transferred from the head office of the Public Prosecution Office to a subsidiary office in Halifax, Nova Scotia. The Ottawa Citizen also reveals that the RCMP are now re-interviewing federal public servants. William E. Gladstone's famous adage: "Justice delayed is justice denied" aptly fits the current scenario.

Wednesday, January 17, 2018

Canadian Comprehensive Review

The 2017 draft interim report for the comprehensive review of the Canadian court-martial system has been made available by the Judge Advocate General, Commodore Geneviève Bernatchezhere. Comments are most welcome (nothing anonymous, please).

Amnesty International statement on Tunisia's misuse of military courts

Amnesty International has issued a powerful statement on the misuse of military courts in Tunisia. Excerpt:
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.

Women in the IDF

Haaretz contributor Roni Rosenberg raises questions about the treatment of crimes against women in the IDF. Excerpt:
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.

At the Supreme Court

JUSTICE [ANTHONY M.] KENNEDY: Do you think Marbury v. Madison is right? [Laughter.] Particularly as to the interpretation with such exceptions as Congress may make.

MR. [STEPHEN I.] VLADECK: So, I will confess, Justice Kennedy, that I may perhaps belong in the school of scholars who thinks that Chief Justice [John] Marshall read both the statute and the Constitution to reach the constitutional questions he wanted to reach. I'm not sure that he nevertheless didn't end up with the right -- with the wrong answer. And, again, I think, for purposes of the question presented in this case on this Court's jurisdiction, the more relevant case is not Marbury but Bollman.

From the Supreme Court oral argument in Dalmazzi v. United States, January 16, 2018

Amy Howe's smart report on the argument can be found here and here.

Full disclosure: the Editor is one of the petitioners' counsel.

Monday, January 15, 2018

A clear and urgent legislative challenge: reforming the Canadian Military Justice system

January 15, 2018. In the wake of the publication of the Interim Report on the Court Martial System, an essay titled "Time for Parliament to legislate control over Canada's military criminal justice system" was published in the Parliamentary Precinct Weekly, Hill Times.

The authors, Joshua Juneau and Michel W. Drapeau remind readers that it is the legislature turn to study and undertake a systemic review of the military justice system, to provide sweeping recommended structural improvements, modernization and reforms to the National Defence Act as well as to provide sufficient civilian oversight to regulate and control the military establishment.