Happy birthday to the editor

The blog's readers and contributors wish you many safe returns, Gene.

Pictured at a press conference in San Antonio in October 2015. 

The Lincoln Conspirators Trial: canon or anticanon?

Prof. Martin S. Lederman

Georgetown University law professor Martin S. Lederman has done it again. Here is a link to his brilliant article in the March 2018 issue of the Columbia Law Review, provocatively titled "The Law(?) of the Lincoln Assassination." He argues:

It is no accident that “military men generally have hesitated to regard the occasion as a sound precedent or, indeed, as anything more than an indication of the intensity of popular feeling at the moment.” For that is exactly what it was. And thus, until very recently, not only for “military men” but for lawyers and historians, too, to cite the Lincoln tribunal as constitutional authority would have been akin to invoking Korematsu, Dred Scott, or Buck v. Bell as authoritative precedent: Like those cases, the Lincoln assassination tribunal has long been firmly ensconced in the constitutional “anticanon.” 

Of course, there is nothing inherently illegitimate about an effort to transform once discredited constitutional ideas or examples into tomorrow’s orthodoxy. The burden, however, is on those who would resuscitate the Lincoln assassination trial—and use it to justify a deviation from Article III norms in a very different historical context and in a starkly different armed conflict—to offer compelling reasons why that singular proceeding should, all of a sudden, emerge from its century and a half of constitutional exile.

Prof. Lederman's earlier Georgetown Law Journal article on wartime military tribunals can be found here. 

Prof. VanLandingham on atrocity speech

Global Military Justice Reform contributor Prof. Rachel VanLandingham has this book review on Lawfare, dealing with Gregory S. Gordon's 2017 “Atrocity Speech Law: Foundation, Fragmentation, Fruition” (Oxford). She writes:

There is room for skepticism of this book’s underlying belief in the deterrence value of international criminal law—that it actually helps prevent future atrocities. Though Gordon is far from being the only scholar or policymaker to believe in such a benefit, international criminal law has simply yet to show its deterrent value; it sporadically meets other objectives such as retribution, incapacitation, reconciliation, and delegitimization. But it does bear saying that, since modern international criminal law’s birth at Nuremberg, those contemplating the commission of genocide and war crimes haven’t seem overly concerned by the possibility of being dragged to The Hague or elsewhere to stand trial for their crimes—be they atrocity speech crimes or the atrocities themselves.

Hence the claim by “Atrocity Speech Law” that fixing the broken relationship between speech and international crimes will contribute to atrocity prevention strikes this reviewer, at least, as unrealistic. To be sure, Gordon is not without available replies; perhaps one reason international criminal law has seemingly had such little deterrent effect at least with respect to atrocity speech crimes is because the law criminalizing such behavior is, in a word, a mess. Notice, and clear notice at that, is integral to the criminal law’s mission, in international as well as domestic law.

If the specific speech crime reforms of this book were somehow incorporated into the Rome Statute, or into charters of future war crimes tribunals such as a tribunal for Syria, and if these crimes were actually prosecuted, and the jurists interpreting them were to follow this book’s advice—then there is some hope for greater legal clarity and hence improved legal notice. That would allow for some optimism that the atrocities arising from such speech crimes would, in some measure, be deterred.

Dual office-holding, Dalmazzi, and Rear Admiral Jackson

Prof. Steve Vladeck

Global Military Justice Reform contributor Prof. Steve Vladeck (counsel in the Dalmazzi case in the Supreme Court)* has written this column for The Atlantic on the dual office-holding statute and the appointment of Navy admiral (and White House physician) Dr. Ronny Jackson as Secretary of the Department of Veterans Affairs. Steve observes:

[F]ew modern presidents have surrounded themselves with as many current and former flag officers—including retired General James Mattis as secretary of defense; John Kelly, a retired Marine Corps general, as secretary of homeland security and then White House chief of staff; and H.R. McMaster—a three-star Army general—as the outgoing national-security adviser (who himself succeeded retired Lieutenant General Michael Flynn).

He concludes:

Compared to some of the other headline-generating cases the Supreme Court is hearing this term—on the constitutionality of partisan gerrymandering, the travel ban, and public-sector unions, among others—Dalmazzi has largely flown under the radar. But the Jackson nomination helps to underscore the stakes. As a federal appeals court concluded in 1975, the dual-officeholding ban “assure[s] civilian preeminence in government” by “prevent[ing] the military establishment from insinuating itself into the civil branch of government and thereby growing ‘paramount’ to it.” If there really is no remedy for violations of the ban, it is hard to see how the statute could continue to serve that purpose—or stop someone like Trump from filling more and more senior civilian positions throughout the executive branch with active-duty military officers.

* Full disclosure: the Editor is also one of Dalmazzi's attorneys.

Can an investigating magistrate later serve as judge?

That is one of the questions raised in the failed putsch trial currently going on in Burkina Faso. The president of the court has refused to recuse himself, and the Court of Cassation has refused to intervene. Details of the legal issues can be found here in a column by Amadou Traoré. Excerpt:

"This article answers three questions. The first is that the accused has the right to challenge members of the military court. The second is that it is also the duty of every magistrate in a military jurisdiction to disclose the alleged grounds for disqualification attached to his person so that the Tribunal may decide by reasoned decision. The third is that the grounds for recusation are identical to those of the ordinary courts according to the classification of the offense."

An important ruling in Madrid

The Military Chamber of the Spanish Supreme Court in a judgment issued on March 28, 2018 rejected the defense of "superior orders" as a cause for exemption from responsibility. The plenary of Chamber Five, the Military Chamber, established in this judgment that in a democratic system, exemption of responsibility "for reasons of superior orders" is inappropriate for members of the military and the military police (guardia civil) since the legal system obligates an individual not to comply with an illegal order.

The Supreme Court reversed the lower court (Tribunal Militar Central), which had punished a low level guardia for the offense of inattention to service but in fact punished his superior, a higher level guardia, on the theory that the low level guardia was simply following orders. The low level guardia, who had failed to carry out his duties, was not punished.

The Military Chamber of the Supreme Court stated that in a democratic system this exemption from responsibility based on superior orders is inappropriate because this way of seeing things is based on an outlook derived from authoritarian systems.  The authoritarian system defends the person giving orders and when something is ordered it must be carried out even if it infringes upon the law and the  one who complied has no responsibility for having complied with the order.  This does not happen in a constitutional democratic system in which compliance with the law is what matters, and all authority is derived from the law.  It is not possible to hide behind an order when failing to comply with a law and to not bear responsibility, no one is above the law.

In addition, the Chamber stated that in the Spanish legal order "there is no duty of due obedience in which one must obey everything that is ordered, without bearing responsibility for what one has done."  The system which is followed is one of legal obedience, that is, there is an obligation to obey one's superior in relation to every order which is in accord with the law and as a corollary to disobey every order which is contrary to the law.  That does not mean that there is no duty of hierarchical obedience, and it is certain that the higher level guardia was superior to the lower level guardia.  Consequently, the higher level officer, as the superior, is the one who determines how the duty is to be carried out and the lower level guardia has no autonomous option as to how to carry it out.

A tug-o'-war in Kenya

What happens when the accused in a court-martial requests that senior officers be summoned to testify but the court-martial proves unwilling or unable to effect service of process? The High Court tells the court-martial it has to do so. But then what? Who will win this legal tug-o'-war?

Details here, from Kenya.

Should a military tribunal try a minor under the age of 18?

The Canadian Broadcasting Corporation (CBC) reports the case of a reservist who, after reporting being sexually assaulted by her fellow reservists in 2012, was charged under the Code of Service Discipline for "Disobeying a Lawful Command" prohibiting underage drinking. She was fined $300.00. [See section 83 of the National Defence Act - Disobedience of a lawful command].
CBC also reports that at the time, of the assault, Courtney Dunne was 16 years of age having been enrolled less than two weeks prior to the rape.

Leaving aside the obvious incongruence of the military charging the victim of a rape and not her alleged assailants, her trial raises another critical issue, namely the trial of minors by the Canadian military justice system. As a minimum, her trial appears to  be in contravention with the spirit of the United Nations Convention of the Rights of the Child [ratified by Canada in 1991] which lists specific safeguards applicable to minors under the age of 18 on the basis of the age.

Struggle for judicial supremacy in Uganda

The general court-martial in Uganda seems to be in a standoff with the High Court over whether police officials are subject to military trial. Details here.

In another doubtful action in an unrelated treason case, the general court-martial excluded members of the public and the defendants' family members from the court during the testimony of a witness who was a public figure.

Protecting judicial quality -- a view from Singapore

The following article on a current debate in Singapore recently appeared in TodayOnline:

It is important to have a strong and trusted Judiciary as the bedrock of the rule of law in Singapore, said Minister for Law and Home Affairs K. Shanmugam in Parliament on Wednesday (March 21), adding that the Government has taken steps to protect the Judiciary from abuse and contempt. He was responding to questions filed by Member of Parliament for Holland-Bukit Timah GRC Christopher De Souza on the measures the Government is taking to ensure that the Singapore Judiciary continues to be able to attract legal talent of the highest caliber, as well as how the situation in Singapore compare with that of the United Kingdom. Mr De Souza had distributed three articles regarding difficulties in recruiting top judges in the UK. Below is an excerpt of Mr Shanmugam’s parliamentary speech:

The article which the Member has distributed speaks of a “crisis in recruiting judges to the top levels of the bench” in the United Kingdom.

It says that the UK courts are unable to attract high-calibre legal talent to fill the vacancies in the Bench.

There are likely to be several reasons. One reason is said to be because of “a perception that judges are not valued”.

The article also says that the judges went to the Employment Tribunal to argue their case on their own remuneration packages, specifically pension arrangements.

And the Government is appealing against the Tribunal’s ruling. So here you have judges taking up their cases to the Employment Tribunal against the Government and now the Government is appealing against that decision.

I think many of us will find this turn of events quite surprising. The UK Judiciary has always been perceived as being in an exalted position – highly valued, world class, and really beyond these sorts of squabbles.

Our own legal system is derived from the British system, and we owe much to them. And many of us grew up as lawyers, knowing and believing that the British Judiciary was in fact the gold standard.

So, it is therefore quite saddening to read this article.

Some of the difficulties faced by judges in the UK have been quite public for some time.

One of the reasons for this state of affairs, (in my view), is that – for some time, the UK Judiciary does not appear to have been given the resources it may have needed.

And also Judges have been subjected to unfair public attacks. These attacks have undermined the standing, prestige and morale of the Judiciary.

USAO/OSJA cooperation

The U.S. Army's 50th Public Affairs Detachment reports:

The Task Force Marne and Fort Stewart Office of the Staff Judge Advocate held a Prosecution Partnership Agreement Signing Ceremony at the 3rd Infantry Division Museum on Fort Stewart, Georgia, March 22.

The agreement establishes the relationship and responsibilities between the United States Attorney’s Office (USAO) and the OSJA in administering the federal misdemeanors and felony prosecution program for offenses perpetrated by civilians and certain egregious offenses committed by service members on FSGA and Hunter Army Airfield, Georgia.

“Civilians are not subject to the Uniform Code of Military Justice for crimes committed on the installation,” said Lt. Col. Eric W. Widmar, staff judge advocate, Task Force Marne and Fort Stewart/Hunter Army Airfield. “This can include anything from domestic violence situations - where you have civilian spouses - to drug and weapon offenses.”

Widmar said the Department of Justice is responsible for prosecuting federal offenses in U.S. District Court, whether before a district or magistrate judge. However, the U.S. Attorney may appoint an Army attorney as a Special Assistant United States Attorney with the authority to prosecute civilians in federal court under the supervision of the U.S. Attorney’s office.

The memorandum of agreement creates a felony prosecution program in which the USAO provides resources in the form of training and supervision in order to enable uniformed attorneys the ability to prosecute these more serious offenses in United States district courts.

Peacekeeper discipline and sentencing

What sentence should a soldier receive for defiling a 14-year-old? In Uganda, for a first offender serving in Somalia: dismissal from the military. Here's the story.

Civilians' case before Bahraini military court of cassation

Anadolu Agency reports:

A military appellate court in Bahrain on Monday examined appeals submitted by seven civilians convicted earlier on different charges, according to Bahrain’s official news agency.

Last year, Bahrain’s constitution was amended to allow civilians to be tried by military tribunals.

The seven defendants include four who were sentenced to death earlier after being convicted of attempting to assassinate Bahraini army chief Khalifa bin Ahmed Al Khalifa.

The court has postponed trial proceedings until April 11 to allow defense lawyers to present appeal requests.

Verdicts delivered by Bahrain’s military court of cassation -- the military establishment’s highest appellate court -- are final and cannot be challenged.

What's wrong with this picture? 

Annual AFRICOM legal conference in Germany

The U.S. Africa Command has issued the following news release:

U.S. Africa Command (USAFRICOM) Office of Legal Counsel hosted the Africa Military Law Forum (AMLF) at the NATO School Oberammergau (NSO), Feb. 27 – March 1.

The AMLF is an annual event which gathers African military legal professionals together to discuss best practices when advising militaries.

At this fourth iteration of the AMLF, 27 African officers from 21 African nations met with their U.S. and Allied counterparts to discuss pressing issues which could improve military operational adherence to the law. The representatives from the Office of Legal Counsel of the African Union attended as well as representatives of the International Committee of the Red Cross (ICRC), which is working with the African Union in Ethiopia.

Col. (ret.) Mark Maxwell, USAFRICOM Deputy Legal Counsel, described this AMLF and its participants as follows: “We have a full range of people here at the AMLF. We have lieutenants, who are very young in their career. We have brigadier generals. I think we have the whole gamut of what issues they face and most importantly, that not any one nation has all the answers. It is a collaboration that we hope will bring out best practices and also an opportunity for us to be able to create relationships.”

Military courts for Japan? Not likely

Jeffrey W. Hornung, writing here in War on the Rocks about possible changes to the Japanese Constitution:

Opponents have also suggested that the revision could lead to the establishment of military tribunals. Even if the SDF are legally recognized as a military, there will be no change in how SDF personnel are treated in Japan’s judicial system. The SDF currently has no military justice system with military tribunals; if a member of the SDF breaks the law, he or she is subject to the same penal code and courts as other Japanese citizens. To establish military tribunals, Japan must revise Article 76 of the constitution to recognize the existence of special courts. While [Prime Minister Shinzo] Abe has referred to several other articles he would consider revising, he has never made any public reference to Article 76.

An important issue to be addressed in Mexico

Reforma reports:

"The Supreme Court of Justice will review whether Article 293 of the Code of Military Justice, which provides for the crime of abuse of authority, is constitutional, as it does not have a specific penalty and leaves to the discretion of the military judges the imposition of punishment."

Tunisian military court seeks to try a parliamentarian; he's not playing

A member of the Tunisian Parliament is refusing to attend his trial before a military court on the ground that the court has no lawful jurisdiction over civilians. Details here.

Human rights principles strongly disfavor the exercise of military jurisdiction over civilians.

Dear New State Dept Legal Adviser....

The International Humanitarian Law Committee of the American Branch of the International Law Association just submitted a letter to the U.S. State Dept.'s new legal adviser. It gently but pointedly reminds the current administration that IHL and IHRL law co-exist, and covers both targeting and detention legal issues, amongst others. For those interested in the recent Yale Law School workshop on the 2006 UN Draft Principles Governing the Administration of Justice Through Military Tribunals, please see this letter's reference to ICCPR Articles 9.4 and 14, pg 4. Click on the title of this post for the letter.

Clemency and battlefield crimes

Pres. Donald J. Trump

Fox News has this report on requests for executive clemency in court-martial cases arising from battlefield crimes. Excerpt:

[1LT Michael] Behenna, now 34, is one of about a dozen veterans who were paroled or continue to be held in Leavenworth because of combat-zone crime convictions that many military experts and political leaders say never should have happened. They are seeking a pardon from President Donald Trump, who has so far granted just two--one to former Sheriff Joe Arpaio of Arizona, and the other to a former Navy sailor, Kri[s]tian Saucier, who took photos of classified areas in a submarine and served a year in federal prison.

"If these guys messed up, there are administrative ways to handle it. But we charge them with murder," Scott Behenna told Fox News. "These guys are put on multiple tours, and they're stressed out. We're fighting an enemy that has no uniform. These guys had no criminal record, I'd have any of them as my neighbor, even living in my home. They're phenomenal people. We second-guessed them and put them in prison."

It will be interesting to know what position the Judge Advocates General take on these pardon applications. That information may never become public, unless media representatives ask about it at some White House press briefing. 

A special day

George III

On this day, George III, left, issued the 1774 Articles of War. They became the model for the June 30, 1775 American Articles of War, and continue to cast a long shadow over the United States' commander-centric military justice system.

Why were they fired?

Harvey Rishikof

Been wondering why the Convening Authority for military commissions and his legal advisor were fired? Politico's Josh Gerstein has the story here, with government affidavits here. Carol Rosenberg of the Miami Herald has the firees' account here. See what you think. Further discovery and an evidentiary hearing seem inevitable.

An evening at the theatre

The Times of India reports on a revival of "Court Martial." Excerpt:

This Monday beat the blues by catching a special show of the popular Hindi play, Court Martial. The play, set up within an army backdrop, will give you an insight into the methods of functioning of an army trial court. The story also deals with the rift between the upper and lower castes. Abhijeet Choudhary, who has directed the play, says “The play conveys the message that the army should be above social prejudices. Written by Swadesh Deepak in 1991, the play has been around for more than two decades. And yet it manages to impress every time.”

Who picks the judges?

The Constitutional Council of Burkina Faso has rejected a claim by the defense bar that judges of the military court should be selected by the Superior Council of the Judiciary, like other judges. The decision can be found here. Excerpt (computer-generated translation):

Considering that the Military Tribunal is a specific jurisdiction; that the appointments and assignments in this jurisdiction derogate from the rules of common law; that these appointments and assignments are not within the purview of the Superior Council of the Judiciary; it follows that Articles 14 and 18, paragraph 3, of Law 24/94/ADP of 24 May 1994 of the Code of Military Justice, together with its amendments, are not contrary to the Constitution.

Decaux Principles Workshop

On March 23-24, 2018, Yale Law School is hosting a workshop on the 2006 UN Draft Principles Governing the Administration of Justice Through Military Tribunals, with generous support from the Oscar M. Ruebhausen Fund.

Open hearing for minor who wants one?

On Monday, the [Israeli] Military Court of Appeals said it rejected the request to hold [Ahed] Tamimi’s trial in open court because in-camera hearings are more likely to assure a minor a fair trial. But it’s hard to accept this argument. Tamimi’s bail hearings were all held in open court.

From this editorial in Haaretz.

Knocking out the judge

There's been a remarkable decision from the U.S. Air Force Court of Criminal Appeals. In United States v. Vargas, No. ACM 38991 (A.F.C.C.A. 2018), the primary issue was whether the military judge should have recused himself because he was a material witness with respect to the apparently improper removal of another military judge from sexual assault cases. The recusal issue was directly related to a claim of unlawful command influence (UCI).

Judging by the opinion, which for some reason doesn't name names, a number of lawyers and several judges knew about a concerted effort to remove the original judge. It is unclear whether any of them will be subject to professional discipline or removal from the bench. Such matters are typically handled under the radar.

The Air Force Court held that the second judge's refusal to recuse was an abuse of discretion, set aside the findings and (29-year!) sentence, and authorized a rehearing. It did so without addressing the merits of the UCI issue. See p. 11. But in serious UCI cases, dismissal with prejudice is a possible outcome. This is plainly such a case. That being so, one wonders why the CCA did not order an evidentiary hearing on the UCI issue before a judge from another armed force. Presumably, the UCI issue will now be renewed before whichever judge (from whichever armed force) is lucky or unlucky enough to inherit this case.

Air Force judges currently serve on an at-will basis. Unlike the Army and the Coast Guard, the Air Force (like the Navy and Marine Corps) has never seen fit to create terms of office of any duration by rule. Will the three-year terms with which it will soon have to live under the 2018 Manual for Courts-Martial changes stiffen anyone's back or prevent a recurrence? Might there be some different structure that would better foster public confidence in the administration of justice?

The U.S. Court of Appeals for the Armed Forces should grant review if this case comes to it. It should invite amici curiae to participate. If, as history suggests, the flaw that at least in part explains what happened in Vargas is structural, Congress needs to get back to work now, before the new changes take effect.

Minors in Israeli military courts

B'Tselem, a Jerusalem-based NGO, has just released Yael Stein's Minors in Jeopardy: Violation of the Rights of Palestinian Minors by Israel's Military Courts, available here. A summary can be found here. Excerpt:

The military juvenile court does no more than approve plea bargains

The military juvenile court came into existence in 2009 and has been operating ever since. The state considers its establishment a landmark achievement in the protection of minors’ rights in the military justice system. In practice, however, it has failed to improve the safeguarding of the rights of minors facing charges.

The jurisdiction of the military juvenile courts does not extend to minors’ remand hearings, both pre- or post-indictment, despite there being no substantive reason for this limitation and even though the hearings constitute a major part of the legal proceedings against the minors. Remand hearings are held at the ordinary military court. However, when one of the detainees whose case is being heard on a particular day is a minor, the judge instructs the adult detainees and the spectators to leave the courtroom, and hears the minor’s case separately. Yet it is still the same military judge, and it is still the same military courtroom.

The military juvenile court is given the authority to hear the trial itself. Yet trial hearings are very rare because the overwhelming majority of the cases are closed in a plea bargain between the defense and the prosecution; the prosecution usually drops some of the charges, the defendant pleads guilty to others, and the parties agree on the sentence, including the length of the prison term and the fine to be paid. The reason that so many defendants are prepared to enter into plea bargains is the military courts’ policy on detention which results in minors being kept in custody from the time they are arrested until after they serve their prison sentence.

Going through trial while in prison is fraught with a host of difficulties, including multiple, exhausting trips back and forth between the detention facility and the court. In addition, defendants know that if convicted, they will surely be given a prison sentence, and that even in the extremely unlikely event that they are ultimately acquitted, they will probably have been behind bars – in custodial remand – the same or more time as the prison term they would get in a plea bargain.

All this results in a situation in which the military prosecution rarely has to go to trial, in which it would have to present evidence of the minors’ guilt and give them the chance to refute it by examining witnesses and presenting alternative evidence. It is thus that the role of the military juvenile court is reduced to signing off on plea bargains already reached between the prosecution and the defense.

Obedience to orders

The American Constitution Society for Law and Policy has just released an issue brief by Christopher Fonzone titled What the Military Law of Obedience Does (and Doesn't) Do.  You can find it here. According to the author, "the military law of obedience is a doctrine designed to protect service members from having to obey manifestly illegal orders. As the response to then-candidate [Donald J.] Trump’s comments on waterboarding and the targeting of civilians demonstrates, the doctrine helps ensure that the U.S. military does not transgress clear and well-known legal commands. But what the law of obedience most distinctly is not is a tool for saving the Nation from simply unwise or legally contested orders."

Judge halts UK recruit abuse trial after RMP failures

In 2014 allegations emerged of wide scale abuse of recruits at the Army Foundation College, a training establishment at Harrowgate in Yorkshire. An investigation by the Royal Military Police led to 18 NCOs and SNCOs being charged with assault and ill-treatment of subordinates. Three trials were to take place, "the Harrowgate 10", "the Harrowgate 2" and "the Harrowgate 6". Today Assistant Judge Advocate General, His Honour Judge Alan Large stayed "the Harrowgate 10" trial as an abuse of process after it emerged that the RMP decided not to investigate evidence pointing away from the defendants' guilt. Judge Large condemned the RMP for a "seriously flawed" and "totally blinkered approach" to the investigation.

The Prosecution offered no evidence against "the Harrowgate 2" and "the Harrowgate 6".

Details of the trial and the comments from the solicitor for three of the accused can be found here and a summary of the evidence that was heard before the trial was stopped can be found here.

The case has led to calls from the campaign group Liberty.

While the case has raised significant concerns about the RMP's decision and training it is important to note that the case was stopped following defence applications to an independent judge. Colonel Simpson, Deputy Assistant Chief of Staff has said "Given this ruling, the Service Prosecuting Authority and the Royal Military Police will be conducting a review to ensure that lessons are learned", perhaps the first lesson for RMP is be sure your sins will find you out...

Tentative SCC hearing date in Stillman case

The Supreme Court of Canada has set October 15, 2018 as the tentative date for hearing Stillman v. H.M. The Queen, No. 37701.

Conscientious objection decision in ROK by August

The Republic of Korea Constitutional Court is expected to rule by August on whether there is a right to conscientious objection to military service, according to this Korea Times report.

A view from Guantánamo

Two Yale Law School students, Aisha I. Saad and Zoe A.Y. Weinberg, who went to Guantánamo as military commission observers under the aegis of the National Institute of Military Justice, have this thought-provoking op-ed in the March 15, 2018 for The New York Times. Writing in their personal capacity, they comment:

Now that the Trump administration has raised the possibility that it may add to the ranks of detainees, Americans no longer have the luxury of forgetting about Guantánamo. We need to end this failed judicial experiment. No new cases should be brought to Guantánamo. Instead, they should be brought to federal courts, which already handle complex terrorism-related cases and allow for better civilian oversight and press access. And the Pentagon must open the door to plea deals when appropriate and honor those that have already been struck; they may be the only real hope for closing cases tainted by torture.

Juvenile on juvenile sexual assault on military bases-what to do?

The media is reporting a problem on U.S. military bases.

"When the children of U.S. service members sexually assault one another on a military base there often is no justice.

That's because federal law governs civilians on many U.S. military installations, and federal prosecutors have little interest in pursuing juvenile sex assault cases. As a result, both victims seeking closure and young offenders needing treatment often receive neither, an Associated Press investigation found.

One solution, known as "retrocession," offers some hope."

Basically, retrocession means the military gives the cases over to the local prosecutor for action where the MCIO and command believe there are credible allegations. The process has been tried and seems to be working at several Army and Marine Corps installations.

Note we are talking about juvenile accused's who are not subject to UCMJ jurisdiction.

Military Times reports that:

A decade after the Pentagon began confronting rape in the ranks, the U.S. military frequently fails to provide justice to the children of service members when they are sexually assaulted by other kids on base.

. . .

Instead of punishment or rehabilitation, young offenders may be shuffled into the civilian world.

The Pentagon doesn’t know the problem’s true extent, but officials promised “appropriate actions.”

Some have been trying to get Congress to allow local authorities to handle crimes against juveniles.  However, "Base commanders objected, and state officials worried they would inherit new problems, said Haines, a 29-year federal prosecutor who wrote a book about the issue."

[Federal Enclave Law, Atlas Books (2011) may be the book.]

A 2012 U.S. Attorney General National Task Force on Children Exposed to Violence describes some of the issues and also some of the proposed ways to address them.

Term of office, trial and appellate military judges

Gene has posted the changes to the Manual for Courts-Martial (MCM).  (I have started to bookmark it for my own purposes, and that version is here.)  There are a number of significant changes but I want to focus on just one for the moment because of its historical significance.  Rule 502(c)(3) MCM (2018) now provides:

"A person assigned for duty as a military judge shall serve as a military judge for a term of not less than three years, subject to such provisions for reassignment as may be prescribed in regulations issued by the Secretary concerned."

Worried that your court-martial judges will be independent rather than the wants and whims of commanders or others of influence?

When the Uniform Code of Military Justice was first enacted there was no set term of office--statutorily that gap with federal civilian judges continues.  Judge advocates would be assigned duties as a military judge in the normal process of conducting officer assignments.  Generally, military officers are assigned to duties or a unit for three years.  That assignment could be adjusted to be shorter or longer depending on the needs of the Service.  The underlying concern here is that a military judge's assignment could be shortened or terminated because leadership didn't like their judicial philosophy or rulings or findings or sentences.  Anecdotally, there have been some judges removed because of alleged unfitness, some of whom have been returned to the bench after an investigation.  There have been a number of published cases supporting concerns for judicial independence.

Unlawful "command influence is the mortal enemy of military justice." United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986), cert. denied, 479 U.S. 1085, 94 L. Ed. 2d 146, 107 S. Ct. 1289 (1987). Indeed, even "the appearance of unlawful command influence is as devastating to the military justice system as the actual manipulation of any given trial. Cf. United States v. Cruz, 25 M.J. 326 (C.M.A. 1987)." United States v Allen, 33 M.J. at 212. Accordingly, we cannot countenance -- indeed, we condemn -- the calculated carping to the judge's judicial superiors [the then Deputy Judge Advocate General of the Navy] about his sentencing philosophy. Part of the trade-off in a system in which judges lack tenure and professionally survive only by grace, see United States v. Graf, 35 M.J. 450 (C.M.A. 1992), cert. denied, 127 L. Ed. 2d 206, 114 S. Ct. 917 (1994), is special vigilance to assure judicial independence. See United States v. Allen, [33 M.J. 209 (C.M.A. 1991)]; United States v. Mabe, 33 M.J. 200 (C.M.A. 1991).

U.S. v. Campos, 42 M.J. 253, 260 (C.A.A.F. 1995) (emphasis added).  How can that be fair, or perceived to be fair, if the military judge has a concern about his current or future assignments?  Would the military judge consciously or unconsciously lean in favor of the government and prosecution for personal and professional reasons--to the prejudice of the accused and a fair military justice process.  In a recent case with a tortuous appellate and trial history, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) had this to say--in 2018.

R.C.M. 902(b)(5) targets a military judge's conflicts of interest by demanding disqualification when he or she "has a personal interest, financial or otherwise, that could be substantially affected by the outcome of the proceeding." In this context, a personal interest is "extra-judicial" as opposed to judicial. The UCMJ acknowledges and mitigates the personal interest that "results from the well-recognized effect of fitness-report evaluations on a military lawyer's service advancement and security." Article 26(c), UCMJ, prohibits a CA or any member of a CA's staff from "prepar[ing] or review[ing] any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to his performance of duty as a military judge." The Navy Performance Evaluation System Manual specifically addresses evaluation of the performance of military justice duties: "[Fitness reports] on military judges and appellate judges may properly evaluate their professional and military performance, but may not include marks, comments, or recommendations sbased on their judicial opinions or rulings, or the results thereof."

U.S. v. Hutchins, (N-M Ct. Crim. App. 29 Jan. 2018) (citations omitted).  To be clear, the CAAF finds there are sufficient safeguards in place.  See U.S. v. Mitchell, 39 M.J. 131, 142 (C.M.A. 1994).

With the background in mind let's litigate and see what can be done about terms of office as a way to protect judicial independence.

United States v. Graf

Appellant claims that his affirmed court-martial conviction was secured in violation of "the Due Process Clause" of the Fifth Amendment to the United States Constitution.  He asserts that the military judge who conducted his court-martial and the appellate military judges who decided his appeal had no "fixed terms of office" of any length. (Final Brief at 1.) He argues that the absence of fixed terms of office for these judges and their institutional control by the Judge Advocate General of the Navy precluded them from having the judicial independence required by this provision of the Constitution for judges in serious criminal cases. Accordingly, he asks that his court-martial conviction be set aside and that a new court-martial and appeal, if necessary, be ordered before military judges with some fixed term of office. E.g. Généreux v. Her Majesty The Queen, No. 22103, SCR (Sup. Ct. of Canada, Feb. 13, 1992).

United States v. Graf, 35 M.J. 450, 1992 CMA LEXIS 1032 (C.M.A. 1992) cert. denied Graf v. United States, 510 U.S. 1085 (1994).  The issue seemed dead until along came United States v. Weiss, 36 M.J. 224 (C.M.A. 1992), aff'd, Weiss v. United States, 510 U.S. 163 (1994). Weiss raised two issues: were military trial and appellate judges designated in violation of the Appointments Clause, U.S. Constitution and the Graf issue.  Bottom line, the Supreme Court determined that "The absence of tenure as a historical matter in the system of military justice, and the number of safeguards in place to ensure impartiality, lead us to reject petitioners' due process challenge."  510 U.S. at 181.

War lost?  Battle won? War still going?

Apparently, the war was lost.  But, subsequent to the Graf and Weiss litigation, the U. S. Army and the U. S. Coast Guard each issued a regulation giving military judges a three-year term of office, similar to what is in the new Rule 502(c)(3).  The other Services declined to impose any regulation.  

Now, almost 25 years later, the President through his rule-making power in Article 36, UCMJ, has ordered all of the Services to have a fixed term of office--a uniform rule.  The question remains, is three years sufficient to ensure judicial independence.  Federal judges serve for life, federal magistrate judges serve for 10 years.

Is the response, "Your Honor, the prosecution rests."

Or should it be, "Your Honor, the prosecution requests you reconsider your ruling requiring a term of office for only three years for the following reasons."

Lexsitus: new free resource for international criminal law research

As a U.S. military lawyer, the other day I realized that my work computer, for whatever reason, was not able to access many of the international humanitarian law blogs and source materials from the ICRC. This caused me to reflect on how the goals of international criminal justice depend so much on effective dissemination: the right legal materials, in the right language, available on time to the proper legal advisers, investigators, or judges.

The Centre for International Law Research and Policy (CILRAP) seeks to address the challenge of dissemination through several of its initiatives. CILRAP is not just a Wikipedia of international criminal law but also a hub for original leading scholarship.

The most recent CILRAP initiative is called Lexsitus. From the CILRAP website:

Lexsitus assists the learning of, and work with, legal sources in international criminal law. It provides structured online-access to AV-lectures, commentary, case law, preparatory works, and digests, at the level of each article and main provision of the Statute of the International Criminal Court. It contains more than 230 lectures by a Lexsitus Faculty of initially 50 leading experts in international criminal law from around the world. Lexsitus has been made by CILRAP, HELM Studio and Mithya Labs, with funding from the Norwegian Ministry of Foreign Affairs and the International Nuremberg Principles Academy, a key project partner. The Project has been academically co-directed by Professors Morten Bergsmo (Peking University Law School) and Mark Klamberg (Stockholm University), and the Lexsitus Project Consortium includes academics at Stockholm University, Peking University, National University of Singapore, Salzburg University, O.P. Jindal Global University, and the University of Oslo. You can access Lexsitus here.

Congratulations to the Lexsitus editors on this important achievement. Military lawyers ought to keep Lexsitus bookmarked -- and hope their government computers do not block it.

Whither Canadian military justice?

Global Military Justice Reform contributor Tim Dunne has written this critical Chronicle Herald op-ed about Canada's military justice system. Excerpt:

Change is overdue

Canadians tried before military tribunals are denied many rights guaranteed to a person prosecuted before a civil court. But the most striking is this denial of the right to a jury trial.

When paragraph 11(f) of the Charter was drafted and enacted, there was a requirement for a “military nexus” — a direct link to the circumstances of an alleged offence and the discipline, efficiency or morale of the military. Without this connection, military tribunals had no jurisdiction.

Did Parliament intend to deprive Canadian soldiers of their constitutional right to a jury trial for a serious criminal offence in no way related to military service or to the performance of their military duties?

At a Jan. 12, 1981 meeting of the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, the wording of what is now paragraph 11(f) of the Charter was tabled for the first time. Through 1980-81, there were discussions on a proposal by New Democrat MP Svend Robinson that military personnel be entitled to jury trials.

The only justification for the exception set out in paragraph 11(f) was provided by the then attorney general Jean Chrétien. He said, “Jury trials in cases under military law before a service tribunal have never existed either under Canadian or American law.”

A better reason is provided in Rubsun Ho’s 1996 article, “A World that has Walls: A Charter Analysis of Service Tribunals.” It says “the standard justification for allowing the military to deny an individual right to trial by jury is derived from the special conditions under which service tribunals may be forced to proceed.”

“During times of war or insurrection, convening a jury may be impracticable or unfeasible. The military hierarchy must be able to work efficiently and expeditiously to dispose of any disciplinary problems it may encounter, and wide discretion must be given to front line officers to enforce their authority.”

But this refers to military offences in a military context and in time of conflict, not to offences of a civil nature committed in peacetime in purely civil circumstances.

This begs the question: Are courts martial necessary in Canada in peacetime?

Should Italy abolish its military courts?

That is the question, according to this report in Il Dubbio. Dr. Gioacchino Tornatore of the Military Court of Appeal has argued against abolition on the occasion of the beginning of the judicial year, despite the Italian system's low numbers. Excerpt (modified computer translation):

He took the opportunity to launch an appeal to the future government for a wider jurisdiction to be entrusted to the military judiciary. In many instances these are cases of crimes already known for some time in the world of soldiers, while in others they are new, as in the case of defamation on social media, or sexist insults against military women in an environment with a strong chauvinist presence. Many cases resulted in  convictions; in others the proceedings are still pending. The statistical data on the work of the military courts are so insignificant that if they were evaluated according to the standards of the Ministry of Justice, the auditors would jump because according to the Ministry it is estimated that each court must cover a catchment area of ​​382,191 citizens; military justice, on the other hand, can count on three courts, in Verona, Rome, Naples, and covers a total of 310,000 people. In fact, many argue that it is better to integrate the military magistrates into the ordinary judiciary, perhaps creating specialized sections. Dr. Tornatore does not agree on this point and appeals to the future government. "In the last review by the legislature -- he said -- attention to the military magistracy focused nearly unanimously on the abolition of this special judicial system, with transfer of its current jurisdiction to the ordinary judiciary, with a view to unification of the courts and the possible creation of specialized sections that can continue to deal with the crimes currently reserved for the jurisdiction of the Military Courts. Tornatore is against doing so and sees as the solution "to give and return to the military judges jurisdictional powers that the ordinary magistracy is dealing with today". The debate on abolition is still ongoing.

Additional caseload data can be found here.

Wing Cdr (R) Jha weighs in on the Armed Forces (Special Powers) Act

The article “AFSPA in Practice” by Lt Gen (R) HS Panag of 4 March 2018 has created a series of confusion on the functioning of the Indian armed forces in the aid to civil power. The four issues raised by the author (points 1-4) have been clarified and are as follows. 

1.      ….. violations stem from overzealous actions of the security forces. These also get the protection of AFSPA from prosecution in civil courts.

Correct Position: Section 7 of the AFSPA (J&K) provides that prosecution, suit or legal proceedings can be instituted in the case with the sanction of the Central Government. The members of the armed forces have no protection for the violations done by them during the aid to civil power. There have been cases where the Central Government has given sanction for prosecution of the members of the armed forces by the civil (criminal) courts.

2.      The benchmark judgement given on July 8, 2016 by a three-judge bench examined all aspects in detail and ruled that every allegation of the “use of excessive force” must be investigated. It made the registration of an FIR mandatory in such cases.

Correct Position: This was decision of two-judge bench in the case of Extra Judicial Execution Victim Families Association (EEVFAM) v. Union of India and pertains to allegations of fake-encounter killings in the State of Manipur. The allegations against state police (special forces) as well as security forces were that these forces while operating in the state of Manipur have killed few insurgents in fake encounter. The Supreme Court has directed that such uses of excessive force in Manipur must be investigated and directed lodging of FIR. The case is continuing.

The incident of three deaths in self-defence in J&K must not be linked with the case of Manipur. The conclusion made by the author that “Thus the registration of an FIR (against Major Aditya) is within reason and is mandatory…” is wrong and out of context.

3.      When the charge-sheet is filed in court, if both the inquiries are in consonance, that a wrong has been done, the Army takes over the case under Army Act Section 125 and conducts a trial by court-martial. In cases where only the police investigations find that an offence has been committed, the Army informs the court about its own inquiry and invokes AFSPA. …… However, under the AFSPA, central government permission is required to proceed with such cases. This has never been granted up till now.

Correct Position: The author is perhaps not aware of the legal position. Army Act s. 125 gives power to a military commander to take over cases of military member if he has committed a civil offence (i.e. under concurrent jurisdiction). After a case comes up in the civil court, the accused person is required to be handed over to the military for the trial and shall be detained in the military custody. At the same time, a civil (criminal) court may demand under section 126 that a military accused be handed over for his trial in a civil court. In case of any dispute as to the forum of trial, the decision of the Central Government remains final. The procedure for resolving the dispute is contained in the Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules 1978. The author is wrong to suggest that Army invokes AFSPA in such cases.

4.      In fact, experienced commanders in J&K always insist that an FIR be filed in all cases of deaths caused by use of force by security forces irrespective of whether the local police had filed one or not. This is to ensure proper investigation and legitimate closure of the case. The emotive protests against the lodging of an FIR in the instant case are due to ignorance of the law and Army’s own time tested policy…..

Correct Position: The author appears confused about the lodging of FIR by the members of armed forces under Cr PC s. 154, whenever they use force against insurgents or recover weapons/stores etc., with the lodging of FIR against the members of the armed forces for the use of force in self-defence or during anti-insurgency operations. In the instant case FIR was lodged against the members of the armed forces for using force in self-defence or for protection of the government property. The J&K Government has now clarified that no FIR has been lodged against Major Aditya.

When the armed forces act in the “aid to civil power” under Cr PC sections 130 or 131, their members cannot be prosecuted unless the sanction of the Central Government is obtained under the Cr PC s. 132. When members of the armed forces function in the “aid to civil power” under AFSPA, this protection is available under AFSPA s. 7. This must not be confused with the issue of concurrent jurisdiction under Army Act s. 126 and 126.

2018 Amendments to Manual for Courts-Martial, United States

Executive Order 13,825, which promulgates the 2018 amendments to the Manual for Courts-Martial, United States, appeared in yesterday's Federal Register. See 83 Fed. Reg. 9889 (Mar. 8, 2018). The searchable .pdf format document weighs in at a whopping 465 pages.

Leave granted in Stillman case

The Supreme Court of Canada today granted leave to appeal in Stillman v. H.M. The Queen, No. 37701. The court dismissed the Editor's motion for leave to intervene in support of the application for leave to appeal without prejudice to his right to apply for leave to intervene in the appeal.

The Office of the Registrar has provided the following summary of the case:

In R. v. Moriarity, [2015] 3 SCR 485, a constitutional challenge based on s. 7 of the Charter to s. 130(1)(a) of the National Defence Act was dismissed. The Supreme Court left open the question whether s. 130(1)(a) violates s. 11(f) of the Charter (which protects the right to a jury trial for anyone charged with an offence where the punishment would be five years or more imprisonment “except in the case of an offence under military law tried before a military tribunal.”)

Following the decision in Moriarity, a constitutional challenge against s. 130(1)(a) was brought by in the Court Martial Appeal Court specifically on the basis that it violated s. 11(f) of the Charter. The Court Martial Appeal Court rejected the challenge: R. v. Royes, 2016 CMAC 1. Leave to appeal was denied.

The cases that have given rise to the current application for leave were all in the system at the time that Moriarity and Royes were being decided. The Court Martial Appeal Court concluded it was bound by its decision in Royes and dismissed the Applicants’ constitutional challenges to s. 130(1)(a).

Postscript: According to the Supreme Court's website, the average time between the granting of leave and the hearing in 2017 was 7.4 months. The average time between the hearing and issuance of the judgment in 2017 was 4.6 months.