What is a military duty?

Today the United States Court of Appeals for the Armed Forces decided United States v. Blanks. Affirming a decision of the U.S. Air Force Court of Criminal Appeals, the court, in a scholarly opinion by Judge Kevin A. Ohlson invoked stare decisis for the proposition that negligent dereliction of duty is an offense under the Uniform Code of Military Justice.

So far so good. But the offense at issue was the accused's negligent dereliction of duty in failing to provide adequate financial support to his dependent spouse. Dereliction of duty requires, among other things, some duty. In military law, I would argue, the duty ought to be of a military character. The Manual for Courts-Martial explains "duty" as follows:

A duty may be imposed by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the service.

What was the source of the duty this enlisted accused failed to perform through negligent dereliction? Principle No. 8 of the Draft Principles Governing the Administration of Justice Through Military Tribunals provides that "[t]he jurisdiction of military courts should be limited to offences of a strictly military nature committed by military personnel." But simply labeling a GI's failure to provide spousal support dereliction doesn't make it a military offense. In United States v. Hayes, 71 M.J. 112 (C.A.A.F. 2011), another unanimous decision, the court observed (in note 2):

The various iterations of the MCM beginning in 1951 and culminating in the current 2008 version list examples of conduct to illustrate the limits of Article 92(3), UCMJ. All of the examples listed constitute military-specific duties. See, e.g., MCM para. 171c (1951 ed.); MCM para. 171c (1969 ed.); MCM pt. IV, para. 16.c.(3)(d). A review of our jurisprudence uncovered no example of this Court affirming a conviction for dereliction of duty imposed by state law alone. See United States v. Shavrnoch, 49 M.J. 334, 339 (C.A.A.F. 1998) (accused guilty of dereliction of duty for under-age drinking based on an Air Force regulation); United States v. Bivins, 49 M.J. 328, 332 (C.A.A.F. 1998).

Bottom line: Color me skeptical. Perhaps there was evidence of a custom of the service, but even so, the conduct at issue in the disputed finding of guilt that was examined in Blanks should have been adjudicated, if anywhere, in a state domestic relations court, not a criminal court, and certainly not a court-martial.

Fair Trial Manual

Amnesty International's Fair Trial Manual (2d ed. 2014) is available here. The following portions (pp. 221-26) (footnotes omitted) bear on military courts:

29.3 SPECIALIZED COURTS

Specialized criminal courts may not be created to try people on the basis of their race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status. Such courts would contravene the principle of equality before the courts and the prohibition of discrimination. (See Chapter 11, Right to equality before the law and courts.)

However, the creation of specialized courts to try certain groups of people may be permissible if justified on objective and reasonable grounds. For example, juvenile courts should be established for criminal proceedings against people who were under 18 at the time of the alleged crime (see Chapter 27). Specialized criminal courts staffed by specially trained prosecutors and judges may be established to try those accused of gender-based violence as a temporary measure to redress the barriers to justice faced by victims of such violence. Military courts should only try members of the armed forces for breaches of military discipline (see 29.4 below). Such courts must be established by law, competent, independent and impartial and must ensure respect for fair trial rights.

29.4 MILITARY COURTS

Military courts have been established in many countries to try military personnel for breaches of military discipline. Worryingly, in some countries their jurisdiction has been extended to try civilians, or to try military personnel for "ordinary criminal offences", human rights violations and crimes under international law. Limitations on the scope of military courts' jurisdiction under human rights law have been developed in view of the true purpose of such courts, the right to a fair trial by a competent, independent and impartial tribunal and the duty of states to ensure accountability and prevent impunity for human rights violations and crimes under international law.

The Inter-American Court has stated: "When a military court takes jurisdiction over a matter that regular courts should hear, the individual's right to a hearing by a competent, independent and impartial tribunal previously established by law and, a fortiori, his right to due process are violated." 

The African Commission concluded that a trial of journalists before a military court violated Article 7(1) of the African Charter and was inconsistent with Principle 5 of the Basic Principles on the Independence of the Judiciary. In addition, the accused were denied access to counsel and the right to be represented by lawyers of their choice.

Fair trial standards must be respected when individuals are tried in military courts. This includes proceedings against members of the military for those breaches of military discipline that, due to the nature of the offence or the seriousness of the potential penalty, are considered as "criminal" offences under international human rights law.

Analysis of whether a criminal proceeding in a military court is fair should include whether: the court's jurisdiction is consistent with domestic law and international standards (see 29.4.2- 29.4.4 below); the tribunal is free from interference by superiors or outside influence; the tribunal has the judicial capacity for the proper administration of justice; the judges are, and are seen to be, competent, independent and impartial; and the accused is afforded at least the minimum guarantees set out in international fair trial standards.

An acquittal in Canada

A Canadian military judge presiding at a standing court-martial has acquitted a reserve officer. According to this report, the case has an interesting twist:

For the two counts of conduct to the prejudice of good order and discipline, Judge Lt.-Col. Louis-Vincent d’Auteuil found the prosecution had failed to prove that [Capt. Todd] Bannister received proper notification of the cadets’ harassment and abuse prevention policy.

While that policy was available digitally, it was not considered an official order.

During an interview following the verdict, [defense counsel J.L.P.L.] Boutin opposed the idea that Bannister was found not guilty on a technicality.

“It is not a technicality, this is a basic legal requirement. Someone can not be found guilty of an offence, an offence that calls for serious consequences, in this instance up to imprisonment, without… applying some basic legal standard,” he said. “Everybody has their own perception as to what is acceptable and what is not… you have to prove beyond a reasonable doubt the standard exists, that is was well-defined and it was known. And (the prosecution) fell short of doing that.”

While the judge said the alleged behaviour was not condoned, he ruled the prosecution did not provide sufficient evidence from a criminal standard that Bannister had behaved in a disgraceful manner.

The ruling is not yet available on the Chief Military Judge's website. The prosecution can appeal to the Court Martial Appeal Court of Canada. 

Jurisdictional fight erupts in Uganda

NTV reports here on a court-martial case in which the accused are a combination of civilians and police officers:

The General Court Martial at Makindye has revisited its earlier decision and cancelled bail for three police officers.

The police officers; Fisal Katende, Amon Kwarisima and James Magada had been granted bail in January this year on grounds that they are junior officers who could not interfere with CMI investigations or threaten witnesses.

However, today Lt. Gen Andrew Gutti the head of the 7 member court reversed his earlier decision after the accused men’s lawyer, Caleb Alaka who informed him that his clients will not submit to the jurisdiction of his court as they are not military officers.

Alaka based his decision on a High Court ruling in which Justice Margaret Oguli-Oumo ordered for the immediate release of the police officers from custody on grounds that the army court acted unreasonably to charge serving police officers with offences of being in unlawful possession of firearms yet they need guns in the execution of their duties.

Alaka then asked the court to immediately discharge the police officers adding that they cannot plead to fresh charges of being in unlawful possession of weapons.

It's at that point that Lt. Gen Gutti ordered that all the 7 police officers be remanded to Makindye police Military barracks and their civilian co-accused be taken to Kigo prison until 27th March 2018.

The accused had reported back to the Military court today for the mention of their case.

It would seem that a crisis has arisen in the conflicting jurisdictional rulings of the High Court and the court-martial and the retaliatory revocation of bail. Mr. Alaka has crossed swords with the court-martial in the past.

Please give us your evidence

Carol Rosenberg, dean of the Guantanamo press corps, has reported here on the latest developments in the military commissions. Officials involved in the firing of the convening authority and his legal advisor have been ordered to submit declarations. But what about the convening authority and legal advisor -- surely they too are material witnesses with respect to the defense's concern about unlawful command influence? She writes:

Separately, the judge noted that now that [Harvey] Rishikof and [Gary] Brown are "private citizens," he was inviting, not ordering, them to submit their own declarations, explaining their versions of events.

But wait a minute. Rule for Military Commissions 703 provides that evidence may be obtained from civilians by subpoena, with enforcement by warrant of attachment. The fact that a witness is no longer employed by the federal government is irrelevant. Wouldn't a federal district judge issue a subpoena, rather than a mere invitation, in comparable circumstances?

DRC: military trial for policeman

A policeman who killed a civilian protester has been sentenced to life in prison by a military court in the Democratic Republic of the Congo. Details here from The Citizen.

Human rights norms strongly disfavor the trial of civilians by military courts. The African Charter on Human and Peoples' Rights has been construed to forbid it outright. But what of police personnel?

"The reality is catching up with the metaphor"

Check out Just Security's National Security Law podcast Episode 61. Lively discussion of possible unlawful command influence in the military commissions, beginning at 29:00, and co-starring Professors Bobby Chesney and Steve Vladeck. "Hold my beer" (Pohl, J.).

Defense lawyers walk out of Burkina Faso coup trial

Voice of America reports here on the suspension of a military trial in Ouagadougou:

The trial began Tuesday for 84 people accused of masterminding a 2015 coup attempt in Burkina Faso, with the West African nation's capital under tight security.

Former presidential aides Gen. Gilbert Diendere and Gen. Djibril Bassole are among those facing a military tribunal. Hundreds of security forces deployed around the court building.

The trial, however, was suspended by the military tribunal president Tuesday afternoon after defense lawyers walked out of the court, arguing against irregularities in the trial, and that a military tribunal wasn't independent enough to judge the accused.

* * * 

Many in Burkina Faso have questioned the military tribunal's ability to deliver a fair trial since its members are appointed by the ministry of defense and head of state. The military courts are outside the control of the body responsible for overseeing the independence of the judiciary, rights group Amnesty International said.

"We are not going to attend a trial that doesn't respect the minimum of legal proceedings," said a defense lawyer, Benao Batis, before all defense lawyers left the courtroom.

After the lawyers left, the president of the tribunal Saidou Ouedraogo announced the suspension of the trial. It wasn't clear when it would resume.

Some of the victims burst into tears as they learned the trial has been suspended and no date has been set up for its reopening.

"The president should have continued with the proceedings to set up the jury before suspending the trial," said Seraphin Some, a lawyer for the victims.

Earlier, Chrizogome Zougmore, chairman of a local human rights group, had said: "This is a real test for the credibility of the justice system in our country always accused of favoring the political system in place."

OSCE summary of jurisprudence on military courts

The following appears in OSCE Office for Democratic Institutions and Human Rights, Legal Digest of International Fair Trial Rights 68-70 (2012):

3.3.4 Military tribunals

Military tribunals may be used in two contexts, both of which require compliance with independence and impartiality. The first and most common use of military tribunals is for disciplinary procedures against military personnel that, depending on the nature of the charge and the purpose and severity of the applicable penalty, may amount to a criminal proceeding for the purposes of Article 14 of the ICCPR and Article 6 of the ECHR (See also 1.1).262 The second situation is where military tribunals are used to try military personnel, and sometimes civilians, in respect of special categories of offences, such as war crimes.

In principle, a military tribunal is capable of constituting an independent and impartial tribunal, despite the fact that it functions within the framework of the armed forces and, therefore, the executive branch of government.263 This will only be the case so long as sufficient safeguards are in place to guarantee the independence and impartiality of the judicial officers concerned.264 Very often, problems will lie with the ability or otherwise of a military convening officer to dissolve a military tribunal, or to ratify or modify the sentence imposed by the court martial.265 The status of the judicial officers as serving members of the armed service who can themselves be subject to pressure from superiors or to disciplinary proceedings is also a matter of concern.266 This would create the danger that the military judge might allow him or herself to be unduly influenced by considerations that have nothing to do with the nature and merits of the case.267 In Cooper v United Kingdom, however, the European Court of Human Rights held that the Court Martial convened in that case was provided with sufficient guarantees to comply with Article 6 of the ECHR, by virtue of the fact that there was a civilian judge advocate dealing with questions of law and that, although the president was a senior serving officer in the Royal Air Force, his post was full-time and would be held for a number of years prior to his retirement, at a time when that officer had no effective hope of promotion and thus not capable of being influenced by such factors.268

As explained in the UN ECOSOC’s Siracusa Principles, the right to a fair and public hearing may be subject to legitimate restrictions that are strictly required by the exigencies of an emergency situation, i.e., an emergency declared under Article 4 of the ICCPR or Article 15 of the ECHR as one threatening the life of the nation. Even in such situations, however, the Siracusa Principles explain that the denial of certain rights can never occur, even in an emergency situation. This includes the principle that civilians must normally be tried by the ordinary courts but that, where it is found strictly necessary to establish military tribunals or special courts to try civilians, “their competence, independence and impartiality shall be ensured and the need for them reviewed periodically by the competent authority”.269

The Human Rights Committee has noted the existence in many countries of military courts that try civilians. Although neither the ICCPR nor the ECHR explicitly prohibit the trial of civilians by such courts, the current trend at the international level excludes criminal jurisdiction of military courts over civilians. The Human Rights Committee has said that such trials must be in full conformity with the requirements of Article 14 of the ICCPR and that the trial of civilians by military courts should be exceptional, i.e., “limited to cases where the State party can show that resorting to such trials is necessary and justified by objective and serious reasons, and where with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials”.270 In practice, the Human Rights Committee no longer hesitates to criticize States whose legislation permits military courts to try civilians. In the Concluding Observations on Slovakia’s periodic report, for example, the Committee noted with concern that civilians could be tried by military courts in certain cases, including betrayal of State secrets, espionage and State security. Therefore, the Committee recommended that the Criminal Code be amended so as to prohibit the trial of civilians by military tribunals in any circumstances.271 There is an increasing view by treaty bodies that military tribunals should not try civilians. This is also the position of the European Court of Human Rights, as expressed, for example, in Ergin v Turkey, concerning an applicant newspaper editor charged with incitement to evade military service: “The Court derives support in its approach from developments over the last decade at international level, which confirm the existence of a trend towards excluding the criminal jurisdiction of military courts over civilians.”272

The Ergin v Turkey case is emblematic, in that the European Court of Human Rights put forward the following principles:

a. While it cannot be contended that the ECHR absolutely excludes the jurisdiction of military courts to try cases in which civilians are implicated, the existence of such jurisdiction should be subjected to particularly careful scrutiny;273
b. The situation in which a civilian must appear before a court composed, if only in part, of members of the armed forces seriously undermines the confidence that courts ought to inspire in a democratic society;274
c. When a court is composed solely of military judges the concern is all the more valid. Only in very exceptional circumstances could the determination of criminal charges against civilians by such courts be held to be compatible with Article 6 of ECHR;275 and
d. The jurisdiction of military criminal justice should not extend to civilians unless there are compelling reasons justifying such a situation, and if so only on a clear and foreseeable legal basis. The existence of such reasons must be substantiated in each specific case. It is not sufficient for the national legislation to allocate certain categories of offences to military courts in abstracto.276

In order to safeguard the rights of an accused under Article 14(1) and (3) of the ICCPR, the Committee has commented that judges in military or special courts should have the authority to consider any allegations made of violations of the rights of the accused during any stage of the prosecution.277

Good soldiers, the White House, and the role of commanders

Retired U.S. Air Force chief prosecutor Col. Don Christensen writes in The Atlantic concerning White House chief of staff John Kelly's defense of former colleague Rob Porter:

John Kelly’s over-the-top support for Porter was wrong. But Chief of Staff Kelly was only acting as General Kelly would have. His statements highlight the fundamental flaw of the military’s commander-controlled justice system. Commanders might genuinely believe a subordinate is incapable of abuse, or they might find the subordinate too valuable to the mission not to support in court. The former is naive, the latter reprehensible—and both are reason to remove commanders from the equation entirely. Just as many members of the public recognized that Kelly’s bias disqualified him from impartially judging his aide, the country should recognize that commanders are unqualified to pass judgment on their own Rob Porters.

The case of the disappearing convening authority

Harvey Rishikof

The military judge presiding over a Guantanamo military commission has ordered the government to submit declarations from Defense Secretary James Mattis and acting general counsel William S. Castle setting forth the reasons commissions convening authority Harvey Rishikof and his legal advisor were fired. The defense has raised an unlawful influence issue; the government says the reasons for the firings are innocuous. Details here.

Unit cohesion through blisters

The Corps has been vague on what kinds of activities will include combat conditioning and physical training. But images posted by Marine officials in a command release in January show Marines breaking piles of rocks when the Corps conducted a simulation of the new CCU.

It may elicit a negative connotation of old-fashioned prison chain gangs. But Marine Corps officials say the hard physical conditioning, while a tool for punishment, is also used to build camaraderie, unit cohesion and foster leadership traits.

From this Marine Times article about a delay in the reopening of the Corps' correctional custody unit at Camp Hansen, Okinawa

Prof. Chesney on military commissions

Given the current chaos -- there's no better description -- in the Guantanamo military commissions, Prof. Bobby Chesney of the University of Texas Law School has written a thoughtful post for Lawfare. He observes:

None of this is to say that commissions should be abolished as to all circumstances and for all time. They should not be. Commissions arose originally because there are combat circumstances in which a commission may provide the only realistic prospect for doing justice, and at least to that degree they should remain available. Where there is a perfectly reasonable civilian trial alternative, however, and especially where that alternative indisputably is more likely to resolve a case within a reasonable period of time, the case for sticking with the commissions year-after-year falls apart. 

It’s past time to move these cases to civilian courts, precisely so that justice can be done.

The Editor has long been of the view that any case that can be tried in civilian court should be tried there rather than in a military commission. (And just how military are the military commissions, anyway?) I agree that a place remains for military commissions in theory, but only those commissions that are governed by the Uniform Code of Military Justice (10 U.S.C. ch. 47), not those governed by the Military Commissions Act (10 U.S.C. ch. 47A). Some offenders have a right to be tried by a military court; others, including those who are subject to the MCA, do not. See you in Foley Square.

Religion in uniform

Brig. Gen. Eyal Krim

Haaretz has this editorial about the role of religion in the IDF. Excerpt:

The event: a party at a military post on Mount Hermon to celebrate the discharge of a soldier. The snafu: soldiers ordered pizza with sausage. The rapid response: “Two brigade commanders and the deputy division commander called me because they brought the pizza into the post.” The lesson: “The highest-ranking officers in the Israeli army get involved during a kashrut incident.”

The episode was related proudly some two weeks ago by the Chief Military Rabbi, Brig. Gen. Eyal Krim, during a speech before young men attending a military academy in Beit She’an. The averted pizza snafu was just one of many anecdotes. Krim who just two years ago was slammed for comments he made about raping women in wartime, expressing reservations about the recruitment of women in the army, and disparaging gay people made additional comments that add up to a sad truth: Israel is the only democracy in the world in which religious law plays such a decisive role in the military.

Editor's note to self: add Brig. Gen. Krim to photo gallery of hirsute officers for class on Goldman v. Weinberger, 475 U.S. 503 (1986).

Stonewalling in Rio

Human Rights Watch has issued another timely report, this time concerning the signs of impunity in Brazil. Excerpt from the NGO's press statement:

Under international and regional norms, cases involving alleged extrajudicial executions and other grave human rights violations should not be tried before military courts. The Inter-American Court on Human Rights has ruled that “military criminal jurisdiction is not the competent jurisdiction to investigate and, if applicable, prosecute and punish those responsible for human rights violations.”

The Inter-American Commission on Human Rights has held that it is not appropriate to try violations of human rights in military jurisdictions, given that “when the State permits investigations to be conducted by the entities with possible involvement, independence and impartiality are clearly compromised.”

Military trial for children in Somalia

Human Rights Watch has issued a report about conditions in Somalia, including the trial of dozens of boys in military courts. Excerpt:

There is no consistent government treatment of children it suspects are connected to Al-Shabab. While government officials have previously admitted to detaining boys deemed high risk, other factors, including a boy’s economic status, clan affiliation and external attention to the case, also determine their fate. Many boys are eventually released without charge, often after relatives intervene and bribe officials to ensure their release. Some children are handed over to child rehabilitation and reintegration centers run by nongovernmental organizations (NGOs), while others face trial before military courts for criminal charges of Al-Shabab membership, murder or conflict-related offenses.

Under international human rights law, governments are obligated to recognize the special situation of children who have been recruited or used in armed conflict, including children involved in terrorism-related activities, and provide assistance for their physical and psychological recovery and social reintegration. While children who were members of armed groups can be tried for serious crimes, non-judicial measures should be considered, and legal proceedings should be in accordance with international juvenile justice standards, taking into consideration the best interests of the child. Sentencing should prioritize rehabilitation and reintegration into society. The UN Committee on the Rights of the Child, which interprets the Convention on the Rights of the Child that Somalia ratified in 2015, discourages countries from bringing criminal proceedings against children within the military justice system.

While prosecutions and imprisonment of children on security charges in Somalia is not widespread, children are being tried for Al-Shabab-related crimes in military courts, largely as adults. The courts have shown no consistency on dealing with these cases, yet basic due process, including the right to present a defense and the prohibition on the use of coerced evidence, is regularly flouted.

What makes a military commission military?

Carol Rosenberg's Miami Herald article about the government's appeal of Judge Vance Spath's order abating the Nashiri military commission trial notes that the lead prosecutor for that case is on loan from his usual employment as an Assistant United States Attorney in the Eastern District of Louisiana.

As those who follow the case know, there have been several civilians on the defense side, although they have withdrawn. And until he was removed (for reasons that have still not been revealed), the convening authority, Harvey Rishikof, was (like one of his predecessors, Susan Crawford) a civilian. Being a court-martial convening authority is ordinarily an attribute of military command (the codal exceptions being the President, who is commander in chief under the Constitution, the Secretary of Defense, and the service secretaries), but in the case of the commissions convening authority, only the convening authority attribute exists and not the fact of command, akin to the smile of Lewis Carroll's Cheshire Cat.

To be sure, the presiding judge is a military officer, and the commission's members will be if and when the Nashiri case ever goes to trial, but at a certain point it seems fair to ask whether this is in substance a military institution or whether its military character has been so diluted that it is only a legal trompe l'oeil.

An unusual punishment in Bahraini military prosecutions

According to the Bahrain News Agency, the High Military Court of Appeals has issued a variety of rulings on prosecution and defense appeals in a terrorism case.

One interesting dimension of the case is that the accuseds were, as part of the sentence, deprived of their Bahraini citizenship. Australia also has citizenship-stripping legislation, but only for dual nationals. Prof. Audrey Macklin of the University of Toronto critically explored citizenship-stripping legislation in this 2014 article in the Queen's Law Journal.

From the New Yorker

“I’m not oblivious. I know what [wearing Class B uniforms to court] says. What little respect you have for the commission is obvious. A short-sleeve shirt, no tie, no coat; I get it. That’s the message. That’s been the message from the defense for five months.”

Military judge (Col.) Vance Spath, at a hearing in the now-abated Nashiri military commission case, as quoted by Amy Davidson Sorkin here in The New Yorker

Not even one?

Air Force Magazine quoth:

A senior House Armed Services Committee Democrat has asked the Air Force to explain why it's never court martialed a general officer, accusing the service of having "different spanks for different ranks."

The request came from Rep. Jackie Speier (D-Calif.), the senior Democrat on the Military Personnel Subcommittee, during a Feb. 7 hearing on senior leader misconduct. During the hearing, Speier said she had a problem with the fact that “there have been 70,000 courts-martial in the Air Force, for instance, and not one general officer has ever been court-martialed.”

The 70,000 figure is reported to be a Protect Our Defenders estimate; the zero figure is confirmed. The annual reports of the Code Committee that have been issued since the UCMJ went into effect in 1951 include data on the number of cases tried in each of the armed forces. For example, the first such report indicates (at p. 31) that the Judge Advocate General of the Air Force received 2822 records of trial in the year ending May 30, 1952.

Special prosecutor named to evaluate charges against Canada's chief military judge

Lt.-Col. Mark Poland

A reserve officer has been named special prosecutor in the case of Canada's chief military judge, Col. Mario Dutil. The Ottawa Citizen reports:

When conducting a post-charge review, prosecutors must conduct a two-stage analysis to determine whether or not to prefer a matter for trial by court martial, according to the Canadian Forces. [Lt.-Col. Mark] Poland, in this case, must first consider whether there is a reasonable prospect of conviction should the matter proceed to trial by court martial, based on all of the evidence and the law, and second whether the public interest requires that a prosecution be pursued, the military noted in a news release.

For the purposes of military prosecutions, a special prosecutor is an officer of the Canadian Armed Forces who is a member of the bar of a province in good standing and who is not a member of the Legal Branch.

Poland is an Infantry Officer in the Reserve Force, currently serving as the Commanding Officer of the Royal Highland Fusiliers of Canada in Cambridge, Ontario. In his civilian career he is the Crown Attorney of the Waterloo Region with the Ontario Ministry of the Attorney General.

Civilians convicted by Uganda court-martial

In Uganda, a civilian who uses a firearm in the commission of a crime is subject to trial by court-martial, as this latest case attests. The accuseds changed their pleas to guilty after having been held in pretrial confinement since 2016.

See also Egypt, Pakistan, Bahrain.

Egyptian military prosecutions upheld

Anadolu Agency reports that Egypt's highest military court has upheld the convictions of 91 civilians. There is no right to review in civilian court.

Human rights jurisprudence strongly disfavors the trial of civilians in military courts and requires access to civilian appellate courts.

Transparency watch in Australia

BuzzFeed News continues to report on efforts to gain access to the names of Australian military personnel who are tried by military courts. Excerpt:

While public access to defence court martials is theoretically possible, it is made exceedingly difficult by the defence department; the organisation refuses to publish court lists, and requires media personnel to be escorted in and out of proceedings.

How about listing who is being tried for what, when, and where on a website that is accessible to the public, as in Canada? 

What would you have done?

The U.S. Army has docked a retiring-under-pressure major general one pay grade for sending 1000 texts to the wife of an enlisted man who worked for him. USA Today has the story here.

Should he have been court-martialed? given nonjudicial punishment?

Presidents Day 2018

Somaliland military trial for civilian attorney

The Somaliland Lawyers Association has condemned the arrest of a civilian attorney who has been ordered held by a military court. Details here. Article 104 of the Somaliland Constitution bars military trial for civilians, in keeping with contemporary human rights norms.

Advantage of set-off unavailable to Indian Air Force personnel

This refers to Economic Times news item “CJI Dipak Misra seeks Attorney General’s aid to tweak court martial laws for Indian Air Force.” The issue relates to an anomaly in law which allows court-martialled army or navy personnel a set-off of their pre-trial custody period against their jail terms, but not air force personnel because successive governments have failed to insert a clause to this effect in the Air Force Act.

First the background: In 1973 the Criminal Procedure Code (Cr PC) was passed by the Parliament replacing the Act of 1898.  A new section 428 stating that the period of detention undergone by the accused to be set off against the sentence of imprisonment was incorporated in it. This provision was made on the recommendations of the Joint Committee of Parliament which was of the view that in many cases an accused person is made to suffer jail life for a period out of proportion to the gravity of offence or to the punishment provided by a statute. In some cases, the sentence imposed is a fraction of the time spent by the accused as under-trial prisoner. This provision allowed setting-off of the period of detention undergone as an under-trial prisoner against the sentence of imprisonment was meant to mitigate suffering of an accused. The Amendment Act of 1978 further amended s. 428 with a view to making it clear that it did not apply to imprisonment in default of payment of fine. In order to claim benefit of set-off under s. 428 two essential conditions are required to be fulfilled: (i) the accused-claimant has on conviction been sentenced to imprisonment for a term, and (ii) the claimant –accused has undergone detention during investigation, enquiry or trial before the date of conviction. However, no such amendment was introduced in the three services Acts (i.e. the Army Act, 1950, the Air Force Act, 1950 and the Navy Act, 1957).

High Courts on set-off: There was a divergence of opinion between various High Courts whether the provision of set-off contained in s. 428 of the Cr PC was applicable to persons sentenced to undergo imprisonment by a court martial under the services Acts. The High Courts of Madras (PP Chandrasekharan v. Union of India 1977), Delhi (Sqn Ldr F R Jesuratnam v Chief of the Air Staff, 1976) and Punjab & Haryana (RL Sharma v. Union of India 1975) had taken a view that the benefit of s. 428 of the Cr PC cannot be claimed by persons convicted by court martial. A single judge of the Kerala HC (S Subramanian v. Union of India 1979) and a Division bench of the Calcutta HC (AS Bhisht v Union of India, 1986) had taken a contrary view.

The Supreme Court: Finally the Supreme Court in Ajmer Singh v. Union of India [1987 SC 1646] resolved the conflict by holding that the three service Acts (Army Act, 1950, Air Force Act, 1950 and the Navy Act 1957) constitute special law conferring special jurisdiction and powers on court martial and prescribing a special form of procedure for trial of offences under these Acts. Section 428 of the Cr PC contains an intrinsic indication that the provision of set-off cannot be claimed by persons convicted and sentenced by court martial. The reason being that section 5 of the Cr PC renders the provisions of the Code inapplicable in respect of all matters covered by a special law. Section 5 of the Cr PC provides: “Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.” The Supreme Court approved the decision of the Madras, Delhi, and Punjab & Haryana HCs and overruled the decisions of the Kerala and Calcutta HCs. In Ajit Kumar v Union of India 1988, the provision of set-off was reaffirmed by the Supreme Court.

The Army HQ proposed an amendment to the Army Act to incorporate the provision of s. 428 of Cr PC. Thus in 1992, through an Amendment Act, section 169A was added in the Army Act. It provided:

Period of Custody undergone by the officer or person to be set off against the imprisonment- When a person or officer subject to this Act  is sentenced by a court-martial to a term of imprisonment, not being an imprisonment in default of payment of fine, the period spent by him in civil or military custody during investigation, inquiry or trial of the same case, and before the date of order of such sentence, shall be set off against the term of imprisonment imposed upon him ,and the liability of such person or officer to undergo imprisonment on such order of sentence shall be restricted to the remainder, if any, of the term of imprisonment imposed upon him.

There were a few other amendments introduced in the Army Act by this Amending Act of 1992. For instance, it omitted the “Field Punishment” from the Act [s. 80(j)] and also provided that the court martial is to give brief reasons in support of findings [amendment to Army Rule 62(a)]. The Navy Act incorporated the provision of set-off through Amendment Act of 2005 [(section 151 (3)].

In India, there service HQs operate independently. The Air Force was perhaps not aware of the amendments in the Army Act till the Amending Act of 1992 was passed by the Parliament. The reason why the provisions of set-off have not yet been introduced in the Air Force Act is perfunctory approach of the officials and their superiors who are expected to take up the amendment to the Act. I remember that in one of the informal discussions, the JAG (Air) had stated that the judge advocates are aware about the provision of s. 428 of the Cr PC. Further, the trial Judge Advocates should in turn ensure that the members of courts martial keep the provision in mind while awarding sentence. This could be one reason why Air Force has still not gone for incorporating provisions of set-off in the Air Force Act. Unfortunately, the “Field Punishment” still exists under the Air Force Act.

In the three services, it is a considered opinion that the Judge Advocate Generals followed by the Staff Officers’ Committee (the Committee consisting of the Adjutant General of the Army, Air Officer-in-Charge Administration of the Air Force and the Chief of Personnel of the Navy) would study and recommend changes in the military legal system. Unfortunately, the personnel of the armed forces are not trained in drafting law. This is the task of a Committee headed by Parliamentarian and the Ministry of Law and Justice.

There are many more lacunas and differences in the three services Acts. On many occasions, I have taken up the issue of removing anomalies in the services Act with the Parliamentary Standing Committee and also petitioned Rajya Sabha, but unfortunately response has not been encouraging. Hopefully, with the Supreme Court taking cognizance of “one” such lacuna in the Air Force Act, a thorough revision of the three services Act would be undertaken by the Government.

Unlawful command influence decision

The U.S. Navy-Marine Corps Court of Criminal Appeals has handed down an important ruling on unlawful command influence in the hazing case of United States v. Ortiz. Excerpt:

MajGen Smith’s statements suggest that he was personally offended by those alleged to have violated his hazing policy. He repeatedly emphasized that he would show those accused of hazing who was really in charge. He was unwilling to wait for the law enforcement investigative process to conclude before taking action against those accused of hazing. He equated the actions of those accused of hazing as a show of disrespect to the Commandant of the Marine Corps and their fellow Marines who had died while in service to the nation. He threatened to shut down all operational training in 1st MarDiv in order to address hazing if it continued. And most troubling, he let everyone know that he was personally offended by those who were accused of hazing, because they had “just . . . flipped [him] the bird” and he was headed their way to show them how unwise that decision and action was within his command. The timing of all of these actions coincided with the appellee and twenty other Marines being placed into pretrial confinement on allegations of hazing. Having considered the totality of the actions taken and statements made by MajGen Smith—and considering their demeanor, tone, and context—we agree with the military judge’s conclusion that a reasonable person would impute to MajGen Smith a disqualifying personal, rather than official, feeling or interest in the outcome of the appellee’s case. [Footnote omitted.]

For some unstated reason, the court issued the decision as nonprecedential. 

Nashiri military commission case abated

From the transcript of the Nashiri military commission case:

JUDGE VANCE SPATH: Yesterday I listed kind of questions that we need answered, frankly, from a court superior to me. And again, I would have hoped we had started that process. Maybe we have and I haven't seen it, but I don't think so. There's a little bit of it in General Baker's filings in federal court, but not much. That's mostly focused on the contempt issue. 

If General Baker's reading the statute correctly and the Manual correctly, he can excuse counsel at any time and we'll be right back here next time. Again, I don't believe he is. Doesn't matter. 

We need somebody to tell us, is that really what that says, despite, obviously, every other court system in America thinking differently, despite the clear intent of when people make an appearance, despite the clear difference of learned counsel. Maybe I'm wrong, but nobody's asked anybody in any appellate court or court above me. And then, of course, the other issue is learned counsel. 

Is Lieutenant Piette right, that he gets them all the time? Because that's what he thinks, right? He's said that over and over. Any questions? Nope, can't do it without learned counsel, even though I've ruled you don't get learned counsel. Nope. 

Because again, the efficient administration of justice means we do this one time, not twice, if we can help it; and that everybody who has an interest doesn't travel down here for the next 25 years doing this. Because that's what we keep doing. 

So hopefully somebody is going to take action. I am abating these proceedings indefinitely. I will tell you right now, the reason I'm not dismissing -- I debated it for hours -- I am not rewarding the defense for their clear misbehavior and misconduct. That would be the wrong answer. But I am abating these procedures -- these proceedings indefinitely until a superior court orders me to resume. 

And whatever that looks like, either myself or my successor will pick it up and start going. If it is -- the superior court tells me next week, Spath, you abused your discretion, get to work, I'll get to work, or whoever takes my place. Hopefully the appellate court will give us some guidance. Maybe they'll say Lieutenant Piette, you're stuck. Colonel Spath got the law right, you don't get learned counsel if it's not practicable, and it's not practicable. Get to work. And then Lieutenant Piette can sit there and not ask questions from now until we finish the trial. 

But that's where we're at. We're done until a superior court tells me to keep going. It can be CMCR. It can be the Washington -- or the District in D.C. They're all superior to me. But that's where we're at. 

We need action. We need somebody to look at this process. We need somebody to give us direction. I would suggest it sooner than later, but that's where we're at. 

The March hearing, obviously, isn't going to happen, I don't think. Again, maybe I'm wrong. Maybe we'll have quick guidance from CMCR, and then we'll be here in March. 

As I said, I follow the law. I follow orders. I don't just disobey them at will, scoff at the process; but we do have a situation where people are. They've demonstrated it, and we can't fix it without somebody getting involved. 

I have great empathy to everybody involved; I really do. I mean that across the board, everybody. It's a lot of work, a lot of time, a lot of effort. It is -- it's not easy. 

So that's what I meant when I said filings might not be particularly helpful for a little while, Lieutenant Piette. 

We are in abatement. We're out. Thank you. We're in recess.

Postscript: Charlie Savage's report in The New York Times appears here. 

Transparency watch, prosecution standards in Australia

Brig. Jennifer Woodward
Director of Military Prosecutions

BuzzFeed News reports here on a dispute over media access to the names of Australian military who have been charged with serious criminal offenses. Excerpt:

More than 150 Australian defence personnel have been charged with serious criminal offences in military courts and tribunals over a four-year period, BuzzFeed News can reveal. But the nation's defence department wants to keep their identities secret.

Documents obtained under Australia's freedom of information laws reveal that since September 2014 the Directorate of Military Prosecution brought charges against 152 defence personnel across Australia’s army, navy and air force.

But while in an ordinary Australian court the names of the alleged offenders would generally be publicly accessible, the defence department's registrar of military justice, group captain Nina Harvey, has sought to suppress all of their identities.

Also of interest: the 2016 report of the Director of Military Prosecutions. Annex A reproduces the DMP's prosecution policy.

Certiorari sought in Ronald Gray capital case

Ronald A. Gray, who is under a death sentence as the result of a general court-martial, has filed this petition for a writ of certiorari or mandamus with the Supreme Court of the United States. The case is Gray v. United States, No. 17-7769. Here are the Questions Presented:

Petitioner has substantial, unexhausted constitutional challenges to his death sentence. Congress assigned to the Court of Appeals for the Armed Forces (CAAF) mandatory appellate jurisdiction in capital cases, 10 U.S.C. § 867(a)(1), and the authority to issue extraordinary relief, including coram nobis, in furtherance thereof. United States v. Denedo, 556 U.S. 904, 917 (2009). Accordingly, the Article III district court, consistent with traditional practice, has repeatedly declined to conduct habeas review of Petitioner’s claims until the Article I military courts address them. CAAF nevertheless refused to conduct mandatory review and held that it lacked jurisdiction to consider a petition for coram nobis in a case that is final under the Uniform Code of Military Justice. Gray v. United States, 77 M.J. 5, 6 (CAAF 2017).

The Questions Presented are: 

1. Which court system, Article I military or Article III civil, appropriately exercises jurisdiction in final military cases to conduct initial review of constitutional claims that arise after or in conjunction with direct appeal?

2. Does 28 U.S.C. § 1259(1) confer certiorari jurisdiction over a decision of the Court of Appeals for the Armed Forces dismissing a coram nobis petition in a military death penalty case?

The per curiam decision of the U.S. Court of Appeals for the Armed Forces can be found here. 

11 months and counting

In less than 11 months, the 23rd Amendment to the Constitution of Pakistan will expire. That's the measure that extended for two years an earlier amendment that permitted the country's military courts to try civilians. The earlier measure also had a two-year sunset clause. The idea behind both was that during the successive two-year periods the country's civilian courts could be put in working order. That didn't happen during the life of the 21st Amendment and there is no sign that any steps have been taken toward that end under the 23rd Amendment. The sun will set again early in 2019. Don't look for progress on the civilian court front; look for another two-year amendment* or, worse yet, something permanent.

* In the Editor's opinion, legislation that purports to alter a constitution for only a fixed period is not really constitutional in character. Perhaps the next amendment--assuming it too has a sunset clause--will be challenged on this basis.

South Korea's military justice reform

The Korea Herald is running an editorial strongly in favor of current moves to reform South Korea's military justice system. Excerpt:

The military cannot be an exception to the principle of independence and the impartiality of investigations and trials.

The point of the reform is to change a closed authoritarian system in which commanders call the shots over military police, military prosecution and military courts into a more open and democratic one. In the present system, commanders of divisions or higher units can select military prosecutors, supervise arrests and indictments, choose presiding judges and commute sentences.

This concentration of power has been blamed for allowing military authorities to suppress or cover up human rights violations in barracks such as assaults, bullying and suspicious deaths, and slap criminals on the wrists. These judicial aberrations were made possible because it is nearly impossible to go against commanders who control just about anything in their units, including personnel and judicial matters.

Under the proposed reforms, which were drafted by the Defense Ministry, trial judges in the five military courts will be civilians.

No military jurisdiction over police

Hon. Margret Oumo Oguli
High Court of Uganda

Justice Margret Oumo Oguli, Deputy Head of the Civil Division of the High Court of Uganda, has ruled that the general court-martial has no jurisdiction over police officers and that prior disciplinary proceedings by the police meant a military trial would constitute impermissible double jeopardy. She awarded damages to former Police Professional Standards Unit commander Joel Aguma "for the trauma caused by his arrest, detention and prosecution before the military court." Seven other police officials are affected by the ruling.

By the numbers

Global Military Justice Reform just added the 181st jurisdiction from which readers have found us: Mayotte. Bienvenu! While we are doing the numbers, we've had 533,134 hits, 4098 posts and 557 comments (real names only, please) since the blog was launched.

Thanks to everyone who has made this all possible. On to jurisdiction No. 182 . . .

AFSPA issue raised in Indian Army case

Global Military Justice Reform contributor Wing Cdr (Ret) U C Jha has this op-ed in Daily News & Analysis concerning the issuance of an FIR against an Indian Army officer and 10 of his Garhwal Rifles soldiers. The Supreme Court of India on Monday halted the proceedings, according to this report in The Chandigarh Tribune.

Closed trial at Ofer

The high-profile trial of Ahed Tamimi, a teenage Palestinian protester, has been closed to everyone but her family, despite her attorney's and her family's preference that it be open to the public. Details here, from the Washington Post.

Principle No. 7 of the 2006 UN Draft Principles Governing the Administration of Justice Through Military Tribunals (the Decaux Principles) provides:

Jurisdiction of military tribunals to try minors under the age of 18

Strict respect for the guarantees provided in the Convention on the Rights of the Child and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) should govern the prosecution and punishment of minors, who fall within the category of vulnerable persons. In no case, therefore, should minors be placed under the jurisdiction of military courts. (Footnote omitted.)

A familiar question in Uganda

Once again, civilians charged in the Uganda general court-martial are objecting to the court's jurisdiction. Details here, from The Observer.

Human rights jurisprudence strongly disfavors the trial of civilians in military courts.

More trouble at Guantánamo

The headline for Carol Rosenberg's latest Guantánamo article in the Miami Herald is hard to beat: "Military judge wants civilian attorneys arrested for quitting USS Cole case." Excerpt:

The judge in the USS Cole terrorism case ordered prosecutors Tuesday to draft warrants instructing U.S. Marshals to seize two civilian defense attorneys who have quit the case and ignored his orders and a subpoena to appear at the war court.

Air Force Col. Vance Spath, the judge, said he would sign the “writs of attachment” on Wednesday and cautioned from the bench that the lawyer for Pentagon-paid attorneys Rosa Eliades and Mary Spears should hustle to federal court, if the lawyer wants to stop what are essentially arrest warrants.

Presumably the lawyers in question will be in federal court today, unless they already are there.

Meanwhile, there has still been no official word on why the military commissions' civilian convening authority and his legal advisor were fired. Military law experts have been mulling whether the firings were unlawful under the command influence provision of the Military Commissions Act.

Things do seem to be flying out of control.

Since Sutherland Springs shootings, many more names added to background check list for gun ownership

CNN has this long and detailed report on recent efforts to ensure that everyone who should be on the background check list for gun ownership because of a dishonorable discharge is listed. Thousands of names have been quietly added.