Vladeck on "the new military federalism"

Prof. Steve Vladeck

Global Military Justice Reform contributor (and prolific University of Texas law professor) Steve Vladeck has written this must-read post for the Harvard Law Review Blog about what he calls "The New Military Federalism." Here is what he says about limits on military appellate jurisdiction, taking friendly issue with the account in Justice Elena Kagan's opinion in Ortiz:

Despite Justice Kagan’s suggestion in Ortiz that courts-martial today bring with them “an appellate process . . . that replicates the judicial apparatus found in most States,” the analogy is quite a bit more complicated—and its implications not nearly as obvious.

Among other things, the trial courts in the military are not courts of record; only some convictions by court-martial can even be appealed to the service-branch appeals courts; those intermediate appeals courts do a substantial percentage of their work summarily; and CAAF—the “Supreme Court of the military justice system”—conducts plenary review in no more than 40 cases each year, in the majority of which it engages in exceptionally modest error correction.

And whereas the Supreme Court’s jurisdiction over state courts allows it to directly review rulings by intermediate state courts when the state court of last resort has declined to exercise discretionary jurisdiction, the same is not true for CAAF. Not only can the Supreme Court only review “decisions” by CAAF, but it can only review such decisions in capital cases, cases certified to CAAF by a service-branch Judge Advocate General, or cases in which CAAF granted a discretionary petition for review or otherwise “granted relief.” In other words, unlike what’s true for criminal appeals raising federal questions from every other jurisdiction in the country, CAAF has the power to foreclose the Supreme Court’s direct appellate review, at least in non-capital cases. (In Dalmazzi and Cox—the two cases dismissed as improvidently granted in light of Ortiz—the Court ducked an important question about whether it can review decisions in which CAAF initially grants review then hears argument and issues a published opinion at the end of which it vacates its prior grant of review.)

What this means in practice is that there are practical and structural reasons for the Justices to eschew application of federalism-like principles to their relationship with CAAF. In point of fact, there are plenty of cases that the Court can take from CAAF but doesn’t, and there are even more cases that it can’t take but otherwise should.

The editor (who -- full disclosure -- was among the petitioner's counsel in Ortiz) would add a further dimension: the Solicitor General's Office takes the position that only "issues" on which CAAF has granted review are eligible for Supreme Court review on certiorari, so an ungranted issue in a case in which CAAF granted review on some other issue is outside the Supreme Court's jurisdiction. This is plainly wrong given the text of the statute and the legislative history but the Supreme Court has yet to confront, much less resolve, the matter. The SG should abandon his position not only because it is legally wrong as a matter of statutory construction but because it violates the Court's own view, expressed in Denedo, that the congressional grant of certiorari jurisdiction over CAAF should not be read "parsimoniously," and, most importantly, is just plain unfair. This needs to be fixed yesterday.

Random selection produces all-male panel, acquittal in sex case

"Having a five-man panel is definitely not the answer."

Military sexual trauma support group founder Marie Claude Gagnon, commenting here on the acquittal of a military policeman on charges of sexually assaulting a female superior. Details here from the Canadian Press. The panel was randomly selected by an independent court-martial administrator under the standard Canadian process.

From the Drama Desk

The Times of India has this review by Debarun Borthakur of the 1991 drama "Court Martial." The verdict:

Court Martial is an intense play that touches upon some of the societal issues such as casteism, intolerance and superstitions that are prevalent in a disciplined institution such as the Indian Army. Director Rathna Shekar did a neat job in knitting the amateur cast and pulling off a play that has been staged hundreds of times across the country by different theatre productions. If they could fix a few holes in the acting department, this Samahaara Theatre Co-operative’s production would be a riveting watch.

Transparency watch

Remember that Oregon National Guardsman who posted anti-immigrant comments on social media? He's received disciplinary action, but the authorities won't say what it was. This is ridiculous. The case raises an issue of free speech -- regardless of how it ought to be resolved -- and the public ought to be able to know specifically what the charges were, whether he received nonjudicial punishment or, perhaps, a summary court-martial -- how he pleaded, and what the punishment was.

Conscientious objection finally recognized in South Korea

The Constitutional Court of South Korea yesterday recognized a right to conscientious objection, departing from two earlier decisions. The New York Times has a good report on the decision and its political and legal context. The government must provide alternate forms of national service. The ruling is not yet on the court's English-language website.

A check of the court's decisions, however, yields another interesting decision from 2016, concerning whether a riot-police constable can be detained in the guardhouse in disciplinary proceedings. Regrettably, the posted version is unclear since it seems to indicate that a 4-justice opinion was the majority, prevailing over a 5-justice dissent. Help!

Is he a soldier or not?

A former inspector general of Uganda's police is challenging his trial by court-martial. The Justice and Constitutional Affairs Minister, Maj Gen Kahinda Otafiire, has commented:

When journalists inquired from him about the status of Gen Kale Kayihura, shortly after the event, he said the former Inspector General of Police will be subjected to military law because he is still a serving army official.

“When Gen Kayihura was relieved of his duties as IGP, he did not lose his army status and that is why the court martial, which is constitutionally recognised, will determine his fate because he is a soldier. His fate is now with the Court Martial and not any other person,” Gen Otafiire said. 

Gen Kayihura is being detained at Makindye Army Barracks.

Today's the day

The South Korean Constitutional Court will issue its ruling today on conscientious objection, according to this report. The country's courts have repeatedly grappled with whether to recognize a right to conscientious objection. Perhaps today's decision will do so and put the matter to rest once and for all.

Not so fast

Prof. Anthony Ghiotto

Professor Anthony Ghiotto of Campbell University School of Law questions in this op-ed the wisdom of having judge advocates prosecute immigration cases in the federal courts. Excerpt:

[I]n not opposing the Department of Justice’s request, the top military lawyers failed their subordinate JAGs. They have allowed 21 JAGs to walk into a political firestorm with grave due process concerns – a situation where President [Donald J.] Trump tweeted that the defendants should not have any access to the legal system.

They will walk into courtrooms and conduct mass trials with 40 to 70 defendants. These defendants do not speak English. They often share one public defender and may only spend five minutes consulting with that overworked attorney. They have no ability to mount a defense. The detainees in Iraq in 2007, in Afghanistan in 2010, and at Guantanamo Bay now have more due process rights and more access to legal representation.

Allowing JAGs to serve in this capacity politicizes their work and endorses these questionable court proceedings. It shifts the nature of the JAG Corps from an institution dedicated to candid legal advice in the war-fighting context to a political tool used for political objectives whenever the Department of Justice is not adequately funded.

Leila Sadat on the Bemba Gombo reversal

Leila N. Sadat has written a devastating critique of the recent decision of the ICC Appeals Chamber in the Bemba Gombo case. On the question of command responsibility:

The Majority then turned to an evaluation of Bemba’s responsibility under Article 28. This part of the judgment was highly anticipated, for it was the Appeals Chamber’s first real opportunity to elaborate upon Article 28. Bemba’s high-powered new defense team included not one but two international criminal law academics and experts, including a military lawyer, and the issues were heavily litigated and briefed. One would have expected a decision along the lines of the Čelebići Camp judgment at the ICTY which was replete with authority and considered both the Statute and customary international law to the extent required. Instead, the Majority and Separate Opinion taken together amount to approximately 30 pages, much of which is devoted to the parties’ arguments. The Dissenting Opinion (141 pages), elaborates in much greater detail, but is, of course, a dissent. Importantly, we learn from the opinions that 2 of the 5 members of the Appeals Chamber (Monagan & Hofmanski), following Judge Steiner, believe that causation is required under Article 28. We learn from the Separate Opinion of judges Morrison and Van den Wyngaert that they disagree. We don’t know the views of President Eboe-Osuji (whose opinion is not available as of this writing),* meaning that the law on this point is still unclear.

The Appeals Chamber split 3-2 on the meaning of “all necessary and reasonable measures” which the commander is required to take under Article 28. The Majority argued for “an assessment of what measures were at his or her disposal in the circumstances at the time.” (para. 168), and criticized the Trial Chamber extensively, identifying seven specific errors in its assessment. The Dissenting Opinion objected to the Majority’s analysis, arguing that it represented selective and unwarranted de novo review, and themselves reviewing the evidence in a much more extensive manner (hence the greater number of pages devoted to the issue). The Dissenting Opinion argued, probably correctly, that if the Appeals Chamber is going to conduct de novo review of the facts, it must review and analyze all the evidence presented to the Trial Chamber. Certainly, even under the classic standard of review, where Appeals Chambers at the ad hoc Tribunals were obliged to engage in factual review of a Trial Chamber decision, their review was extensive. Again, some key ICTY judgments come to mind such as the Krstić case.

The question of Bemba’s status as a “remote” commander was the key issue for the Majority. It asserted he was owed a certain deference due to the “limitations that Mr. Bemba would have faced in investigating and prosecuting crimes as a remote commander sending troops to a foreign country.” (para. 191) This extraordinary statement – uttered without a single case, treaty or treatise to support it — appears not only to shelter Mr. Bemba but serves the interests of any state, regional organization or even rebel group whose forces cross borders, an increasingly frequent occurrence in today’s world. It could be argued that a commander in those circumstances should be required to exercise an even higher level of due diligence and supervision exactly because of the risks involved and the fact that most modern commanders have almost immediate access to their forces through cell and satellite phones and other modern communications methods.

The Separate Opinion asserts that the “main responsibility of the higher-level commander is to make sure that the unit commanders are up to the task of controlling their troops.” (para. 34) It adds that it is important “not to get into a mind-set that gives priority to the desire to hold responsible those in high leadership positions and to always ascribe to them the highest levels of moral and legal culpability.” (para. 35) This broad – and unfootnoted — statement turns much of international criminal law theory on its head. Given its profound potential implications, more analysis and elaboration of the judges’ meaning would have been useful.

* His concurring separate opinion is now available here. (Footnote added.) Paragraphs 210-16 of the opinion are of particular interest:

210. From the perspective of accomplice liability, a focused appreciation of the legal consequences of the commander’s failure to submit the matter to the competent authorities requires keeping in mind that the commander (whose only prosecutable conduct is failure to have the matter investigated or prosecuted, because he was never in a position to prevent or repress) need not be held criminally responsible ‘for’ the crime of the subordinate in every instance of such a crime. It is possible—and indeed legally more sensible—to punish the commander ‘for crimes within the jurisdiction of the Court’ committed by a subordinate, whenever it can be shown beyond reasonable doubt that the commander’s failure to punish resulted in the subordinate’s commission of a ‘crime within the jurisdiction of the Court.’ That means, then, that while every instance of failure can be viewed as dereliction of duty (assuming that dereliction is ‘a crime within the jurisdiction of the Court’—a proposition already shown as highly doubtful indeed), not every instance of failure can be viewed as having resulted in the subordinate’s commission of a ‘crime within the jurisdiction of the Court.’ This is particularly the case when the subordinates commit no further crime, following the one that the commander failed to submit the matter to the competent authorities.

211. But, there may be cases in which a commander’s failure to submit the matter to the competent authorities will appreciably be seen as having resulted in a subordinate’s subsequent commission of a ‘crime within the jurisdiction of the Court.’ As noted earlier, the annals of warfare never ruled out the possibility that certain commanders would wilfully refrain from having subordinates who committed war crimes investigated or prosecuted (typically rapes and pillage), treating such violations as licenses to deserving soldiers, thus encouraging further crimes of that kind. Thus, for purposes of article 28, a commander whose past failure is proven to have resulted in subordinates’ subsequent commission of crimes may, specifically in the terms of article 28, be held criminally responsible ‘for’ such subsequent ‘crimes within the jurisdiction of the Court.’ 

212. It is granted that, aside from considerations of dereliction duty, the complexities of article 28 may engage the possibility that a commander may be punished, as an accessory after the fact, for the first (and possibly only) instance of the subordinates’ commission of crimes. Still, from the point of view of principle, the only way in which it will be fair to convict a commander ‘for’ the crime committed by the subordinate is if the commander’s conduct contributed to the offence: that is to say, the offence was as ‘a result of’ the commander’s failure. Failure with respect to a first or only violation cannot be said to have contributed to that particular violation.

213. It may be convenient, for purposes of prosecution based on the theory of accomplice liability, that the precedent and the subsequent episodes of criminality may be in close temporal proximity to one other, both occurring during the tenure of the accused commander. But, that such was not the case would be entirely irrelevant in characterising the nature of the commander’s responsibility under article 28—as either dereliction of duty or accomplice liability—for failing to submit the matter to the competent authorities. Indeed, it should not matter that the commander who had failed to have subordinates investigated or prosecuted on the previous occasion of criminal conduct may no longer be in post as commander at the time of the subsequent commission of crimes. All that matters is the import of the phrase ‘as a result of’ in article 28, which connects the subordinate’s crime to the commander’s failure to submit to competent authorities for investigation or prosecution. And, it means that the failure of the accused commander to have the earlier criminal conduct investigated or
prosecuted had resulted in the subsequent one.

214. It may be noted at this juncture that there is no statute of limitation for international crimes. Thus, provided there is cogent evidence showing that a subsequent crime was as a result of a wilful failure to have an earlier crime investigated or prosecuted, the commander who failed to investigate or prosecute the precedent crime may still be prosecuted and held responsible for the subsequent crime, though that commander was no longer in post when the subsequent crime was committed.

215. Upon the foregoing analysis, the theory of accomplice liability continues to rationalise the norm of command responsibility for both the purposes of the failure to submit to competent authorities for investigation and prosecution subordinates who committed crimes and the failure to prevent or repress the crimes of subordinates.

216. To conclude the discussion in this segment, it may be said that the theory of complicity puts two important and necessarily connected considerations into sharper relief. First, it makes the element of causality plainer to see in the interrelated criminality of the conducts of both the superior and the subordinate. And, in consequence, it puts in plainer perspective the fairness of holding the superior criminally responsible for the crimes committed by the subordinate. But, it all comes at the price of proof beyond reasonable doubt that the latter was caused by the former. And it is a very fair price.

Footnote omitted.

A parting shot from Prof. Bamzai

Prof. Aditya Bamzai participated as an amicus curiae in the recently-decided Ortiz case in the Supreme Court of the United States. He had suggested that the Court lacked jurisdiction under the U.S. Constitution, a position that a clear majority of the Court rejected. Now, at Lawfare, he's given his take on where the path should lead in the future, concluding:

The Framers of the Constitution limited the Supreme Court’s original and appellate jurisdiction primarily because of the burdens that travel to a centralized court placed on U.S. citizens in the 18th century. Rather than require litigants to journey long distances to a central court in the first instance, the Constitution contemplates some local adjudication, followed by an appeal to the “one Supreme Court.” In our modern era, the constitutional text has remained the same while advances in transportation capabilities have happily reduced, though by no means eliminated, this concern. Those advances do not diminish Ortiz’s jurisprudential importance, but they limit, in some ways, the consequences of Ortiz’s precise holding about the Supreme Court’s appellate jurisdiction.

Nevertheless, the same tension between the two legal principles that I have identified above has arisen before and will surely arise again in other contexts—perhaps next time in a case with significant real-world consequences. At that time in the future, one can only hope that the Supreme Court will articulate legal principles that apply consistently to a broad set of cases and that are readily traceable to the Constitution’s text, structure and history.

Free speech

Global Military Justice Reform does not have a foreign policy. It also does not have an immigration policy. It does, however, "go about Athens making inquiry of the citizens." In that vein, one wonders whether the service can, consistent with the First Amendment, punish the social media posts of a 21-year-old Oregon National Guard military police PFC, reported here by Huffington Post:

An Oregon National Guardsman is facing disciplinary action after suggesting that undocumented immigrants are “lucky we aren’t executing them.”

Private First Class Gerod Martin wrote the offensive comment Wednesday on a Facebook page to raise funds for the Texas-based Refugee and Immigrant Center for Education and Legal Services.

“Waste of money,” Martin, 21, wrote in a comment that has since been deleted. “They’re lucky we aren’t executing them.”

Martin’s Facebook account appears to have been deleted as well, or has been set to private. Screenshots of Martin’s page show him wearing his Oregon National Guard uniform in his profile picture. “Just a young buck serving his country,” he wrote on the page.

Martin’s comments violated the uniform code of military justice, Maj. Stephen Bomar of the Oregon National Guard told ABC affiliate KATU. He said the organization will hold Martin accountable for his actions but hasn’t decided on a punishment yet.

“This was a clear violation in uniform to say anything like that, or anything political because we enforce the policies of our politicians,” Bomar said. “That was just a horrific comment.”

Disciplinary action? Really? 

Why does India need its own Farr and Flipper to undo miscarriage of military justice

(Note: This piece was posted today at Medium and is a bit longer than usual)

Not many in India would have heard about a young British soldier called Private Harry Farr. Not many would also have heard about the ‘shot at dawn’ memorial at Staffordshire in the United Kingdom.

The memorial is a tribute to 309 British and Commonwealth soldiers who were court martialled and shot during World War I primarily for offences of cowardice and desertion. Young Harry Farr was one of them. This battle hardened soldier fought bravely for the British in the First Great War. His trench was shelled and he sustained a disability due to which he was repeatedly admitted in hospital. At one stage he was refused admission in a medical establishment on the pretext that he was not ‘physically wounded’. He was suffering from ‘shell shock’ or what is now known as Post Traumatic Stress Syndrome (PTSD). Private Farr, in a fragile frame of mind, went missing for three hours, and when located, was arrested and arraigned before a Court Martial, which, after a mere twenty minutes of trial, awarded the punishment of death by a firing squad.

The family fought a long war for justice when documents were discovered that despite his medical condition the young soldier had been forcibly sent to the front. The family could not meet success even at the High Court. Despite being refused positive judicial intervention, the United Kingdom, in 2007, granted a posthumous pardon to Private Farr thereby restoring the family’s honour. And with him, due to lack of individual evidence, a total of 306 soldiers executed that dawn were pardoned, providing them the benefit of doubt.

Then is the story of Lieutenant Henry O Flipper of the United States Army. Lt Flipper, born a slave, was the first African-American cadet at West Point to have graduated and commissioned in the US Army. As a military engineer, he was the inventor of the ‘Flipper’s Ditch’, a drainage system for malaria infested swamps, which is still used. Lt Flipper was accused of embezzlement and Court Martialled. He was found ‘not guilty’ of embezzlement but convicted for ‘conduct unbecoming of an officer’ for not having informed his Commanding Officer about some missing funds in his unit, and dismissed from service in the year 1881. Post his dismissal, Lt Flipper built up a successful career also recognized by the Government which appointed him at high offices. Interestingly, despite having been dismissed from service, West Point instituted an award in his name and placed his bust in the academy. Perusal of documents of the conviction pointed out the bias in his trial. It was long thought that his dismissal was the result of an inherent resentment towards African-Americans at the time. It was also discovered that the then Judge Advocate General of the Army wrote a detailed note to the President stating that his dismissal was unwarranted but it was never put up to the President and his dismissal was approved through a one-line non-speaking order. While reviewing the documents and showing moral courage of impeccable nature, the US Army in the year 1976 opined that his conviction was unjust but also stated that it had no power to overturn it, however his dismissal was converted into ‘honourable discharge’ which was permissible with the powers of the Army. In 1999, fully restoring the honour of the first officer of colour commissioned into the United States Army, the then President, William J. Clinton, granted a full and unconditional pardon to Lt Flipper.

It’s ironic that the basic provisions of Courts Martial, especially Summary Courts Martial, practiced by the British during World War I, remain the same as on date under the Indian statute except cosmetic changes. The only real changes in how the provisions are effectuated have been forced upon the system due to judicial intervention primarily by the High Courts and the Supreme Court over the years. Though it is also totally agreeable that today’s military hierarchy is much more sensitive towards injustice or miscarriage of justice than the rank and file of the yesteryears. There was a time when the Courts could not even go into the appreciation of evidence of Courts Martial, something which was altered much later in the year 2009 with the inception of the Armed Forces Tribunal.

Why do I write this?

Why I am writing this here today is that due to the primitive nature of military justice being practiced in our country in the past, there are glaring instances of injustice and miscarriage of justice that have come to light years later, some due to a closer analysis in hindsight. Some are such which appear so nonsensical that these would not seem compatible with any of the values professed by our great military which is the pride of the nation. Many affected fought it out and succeeded, but some lost judicially and yet others did not even try. Some died without closure, some are living and looking for closure, and interestingly, under the Indian law, setting things right, even after a judicial verdict to the contrary, is not a far-fetched idea and is in fact provided by the statute, thereby triggering my urge to write this today.

Two glaring examples come to my mind:

The Samba Spy Case

Much has been written about this case popularly known as the Samba Spy Scandal. Many books have also been penned. Many of those affected have exhausted their legal remedies as per law and the judgment rendered in their favour by the Delhi High Court was ultimately overturned by the Supreme Court on an appeal filed by the Union of India. There is, hence, no judicial remedy remaining. But other doors are still not closed, as I would explain a little later. Coming back to the case, de hors the fact that they were unable to secure a final decision in their favour, there are some extremely jarring notes that would move even an untrained non-legal eye-

All accused were implicated essentially on just the statements of two spies, that is, Sarwan Das and Aya Singh and an officer of the rank of Captain who implicated (by his statements) about 52 personnel including, hold your breath, an officer of the Judge Advocate General’s department. The two spies were initially arrested in 1975 but they apparently named others in 1978. The said Captain clearly stated in his cross examination that he had been badly tortured to elicit his statements.

The entire case was built up on the premise of the statement of Aya Singh that one Capt Nagial was the initiator and had visited Pakistan in the year 1974. The charge was later established to be false and Capt Nagial was acquitted of the same by a Court Martial but implicated and convicted in some other case. When the foundation itself was faulty, there was no reason for proceeding in the matter.

Around 40 to 50 personnel and officers were finally accused of spying for Pakistan. All of them were from the same location of a Brigade based in Samba, a small town. Is it possible for such a large number of people being involved in spying for Pakistan from such a small station?

Statements were obtained from another Havildar, called Ram Swarup, who died of injuries after interrogation. The case was built up on confessional statements but there were large-scale allegations of torture.

Aya Singh, the kingpin on whose statements the case had progressed, was apparently killed later while crossing the Indo-Pak border. Could a person with such credentials be considered a reliable witness and could his statements be relied upon to implicate such a higher number of personnel located in a small town?

When no evidence was found by Court Martial against some personnel, their services were administratively terminated.

It is understood that a report was sought by the then Prime Minister from civilian agencies which established that the large-scale implications were no true.

Swaran Dass later made an open statement under oath that he had implicated innocent personnel after being tortured. The statement, made in 1994, was widely covered in the media as were other aspects of the case.

The above points do shake the very foundation of allegations of a large-scale conspiracy. On the face of it, something drastically went wrong somewhere but the wheels were not turned back to avoid criticism.

The curious case of Brig Pritam Singh

In one of his recent articles, Lieutenant General HS Panag, the former General Officer Commanding of Indian Army’s Northern Command, provided an interesting insight into the travesty faced by Brigadier Pritam Singh, known as ‘Sher Bachha’ (Son of a Tiger) on account of his stellar contribution to the battle of Poonch in 1947. Wounded in World War II, Brig Singh was also awarded the Military Cross after he escaped a Prisoners of War Camp. For one year, Brig Singh, then a Lt Col, resisted all the might of the enemy and ensured the retention of Poonch with India. He was promoted to the rank of Brigadier immediately thereafter (as per the system in vogue, officers were promoted directly from Battalion Commanders in the rank of Lt Col as Brigade Commanders in the rank of Brig). Though his contribution is legendary and he was again wounded in the Poonch operations, which area would have had a different history but for the valiant officer and his resolve, this piece is not about his military prowess. Brig Singh, in 1951, was dismissed from service by way of a Court Martial for misappropriating a sum of about Rupees Ten Thousand and a carpet. Other charges were also put into motion, but all collapsed. The carpet was meant as a present for the Air Force from the Raja of Poonch but it was alleged that Brig Singh had stolen the carpet for his own use. Despite the testimony of the Raja that it was indeed a gift from him to the Air Force which was being transported by Brig (then Lt Col) Singh’s battalion, the Court Martial went ahead and convicted him without even examining any evidence or witness in his presence as mandated by law. The allegation of misappropriation was with regard to excessive amount drawn than the actual expenditure and the time when the offence had supposedly occurred was a period when Brig Singh was admitted in a hospital after being wounded in war. Failing to pin him down on corruption charges, the Court Martial managed to convict him primarily on procedural lapses. It was well known during those times that many of his peers were envious of the trajectory of his career and the accolades he had achieved and the word amongst the military masses was that the entire episode was a result of this jealousy to stop his ascent.

Those times were strange. Punishments handed down by the military were not questioned. Courts were loath in entertaining petitions against military authorities and individuals were not aware of their rights. The direct result was that many injustices went unchallenged and this too, perhaps, was one in that list.

Brigadier Pritam Singh died in Punjab, unsung.

Restoring the Clock.

However, there is still a chance of redemption, but not by way of judicial remedy since the same is closed in the Samba Spy Case and barred by limitation in Brig Pritam Singh’s case. The fact that many of those who were affected are no more living makes the situation even more complicated.

Though invocation of judicial remedy is not possible, the Central Government still can very much undo the harm caused to the very concept of justice in such cases. Section 165 of the Army Act empowers the Government to annul any proceeding of any Court Martial on account of being illegal or unjust. This power is unfettered and it does not matter whether a person has exhausted his or her legal remedies or not, and with what result. If, based on the material available, the Government comes to the conclusion that the Court Martial was not just, it can annul the entire proceedings and restore the honour to those who were treated unjustly. In cases of those whose services were terminated or Presidential Pleasure withdrawn, the same, being merely an administrative non-judicial act, can always be reversed by the same authority which had passed the orders of punishment in the first place.

The remedies that I speak of above are not ordinary and are meant for extraordinary situations. However, keeping in view the fact that the systems of military justice in the yesteryears were primitive and there is a possibility of innocents having been meted out unjust punishments, it would only be right, with due diligence, to explore this exercise with full moral courage for restoring their honour.

We need our own version of Private Farr and Lieutenant Flipper here. Though there is bound to be resistance in such cases citing wrong precedents being set, a hackneyed and regularly exercised excuse, a strong political will can make it happen. Besides, setting aside of unjust actions is not a new phenomenon and that is the very reason such rules exist to undo miscarriage of justice. If ‘precedents’ are to be given so much undue emphasis, then the mere existence of those provisions in the statute book becomes superfluous and infructuous.

Will we have our Farr and Flipper moment in India?

Time will tell.

"The Caine Mutiny Court-Martial" to be performed aboard USS North Carolina

Humphrey Bogart
as you-know-who

Herman Wouk's famous play about USS Caine and her wartime skipper (Lt. Cdr. Philip Francis Queeg, he of the ball-bearings and strawberry ice cream) will be performed in Wilmington, NC, aboard USS North Carolina. Details here. Scroll down for a "what's wrong with this picture?" Hint: nice patterned tie on the four-striper to the left.

Not military justice (yet)

You can't make this stuff up. A Uganda People's Defence Force officer has gone to court to stop another officer (senior to him) from marrying the woman he claims is already his wife. He's also complained, without success, to military authorities. Details here.

Is bigamy an offense under Uganda's military law? If so, is this bigamy? The Marriage Act 1904 provides:

36. Marriages under customary law.

Any person who is married under this Act, or whose marriage is declared by this Act to be valid, shall be incapable, during the continuance of that marriage, of contracting a valid marriage under any customary law, but, except as aforesaid, nothing in this Act shall affect the validity of any marriage contracted under or in accordance with any customary law, or in any manner applied to marriages so contracted.

There are criminal penalties. Section 179 of the UPDF Act 2005 makes civilian crimes service offenses.

According to this article,

an individual who learns that their spouse has left them for another marriage, like [Roselyn] Namukasa did, can seek redress in courts of law. He says that the aggrieved party can go to court and get an order nullifying the marriage.

“And these people are obliged to separate otherwise not doing so would be contempt of court. One is expected to go back to their partner. On whether he or she will accept you, that is another issue,” [Daniel] Angualia concludes.

Bigamy may be an ignored offence, as the advocate alleges.

That comes off as a leeway for it to be prevalent, but you cannot rule out that a time will come when the state will gain interest in prosecuting suspects of the crime. Since it cannot be told when that will happen, the commendable way forward is to be on the good side of the law.

For a U.S. Army bigamy case, click here.

The Hit & Run inquiry

New Zealand is gearing up for a year-long inquiry into allegations concerning civilian deaths resulting from an SAS operation in Afghanistan. Details here. The Defence Force is assembling a team to represent it in connection with the inquiry. The inquiry itself is being led by a former prime minister and a judge of the Supreme Court. The incumbent Chief of Defence Force previously headed the SAS; his successor did not.

How to hide 280 pounds of cocaine on board a ship

The Juan Sebastian de Elcano is a training ship of the Spanish Royal Navy and at 113 meters (371 ft) long, it is the third-largest tall ship in the world. Despite being the Spanish Navy's most "emblematic and symbolic vessel," Spain's Guardia Civil found 127 kg (280 lbs) of cocaine on board the training ship on July 30, 2014 – stashed in a storeroom where reserve sails are kept. The cocaine was found at the end of a training cruise which stopped in Cartagena de Indias (Colombia) and New York, among other ports, and terminated in Cadiz, Spain.

Despite four years of investigation, the authorities were unable to determine who of the 185 crew members of the training ship was/were responsible for introducing the 280 pounds of cocaine onto the ship during the 2014 voyage. On June 15, 2018, the Military Court, considering the case, determined that the "lack of vigilance" made it impossible to identify those responsible. The lack of control was evident in the lack of a registry of the sailors who embarked or disembarked at the different ports. Even more dramatic was the fact that the Ministry of Defense promoted the ship's Captain at the time of the crime, to the post of Vice Admiral of the Cadiz Arsenal.

The Court proceedings noted that two of the sailors who worked in that storeroom had been processed in another case for trafficking 19.8 kilos of cocaine during the same voyage, and other members of the crew had also been accused of bringing different quantities of drugs on board in Colombia in order to sell them in New York. But according to the proceedings, these facts were not sufficient to charge them with bringing 280 pounds of the drugs on board "when they were not the only ones who presumably carried out this kind of cocaine trafficking."

The situation described by the judge is one of absolute lack of control. Although in theory, the storeroom in which the cocaine was found was reserved to those who worked there, "the lack of vigilance regarding keys and a correct monitoring of the book dedicated to the control of the keys" resulted in a situation where "anyone could enter and stay in the storeroom for whatever time necessary to hide the packages of cocaine." In addition, crew members who were not assigned to work in the storeroom also used it as a place for relaxation.

Furthermore, the judge noted that the Juan Sebastián Elcano was anchored for four days in Cartagena "during which the majority of the crew left the ship with passes, without the military guard controlling neither their entries and exits from the ship, nor the effects which they brought on board; which, it appears, they also did not do in the other ports at which they stopped." That is to say that any member of the crew could bring on board cocaine without anyone registering it.

It appears that the crime of hiding of 280 pounds of cocaine on the ship will remain unpunished although seven crew members were punished for the petty crimes of trafficking in small quantities of cocaine.

Supreme Court rules that it can review CAAF cases

Supreme Court of
the United States

Brushing back an argument by a law professor who filed a brief and orally argued as a friend of the court, the Supreme Court of the United States held yesterday in Ortiz v. United States that its statutory grant of jurisdiction to review decisions of the United States Court of Appeals for the Armed Forces is constitutional. The Court had previously reviewed 9 CAAF cases without controversy over its jurisdiction, but now it has laid the matter to rest. This aspect of the case will inevitably be closely studied in Federal Courts classes across the country. Reaching the merits, the decision also rejects a claim that judges cannot serve simultaneously on the Court of Military Commission Review and one of the four service Courts of Criminal Appeals. Justice Elena Kagan wrote for the Court. Justice Clarence Thomas joined in that opinion but added a concurring opinion. Justices Samuel Alito and Neil Gorsuch dissented.

Sens. Ernst, Leahy, Gillibrand question use of JAGs in immigration cases

Sen. Joni Ernst

Sen. Joni Ernst (R - IA), who is a retired Army Reserve/National Guard lieutenant colonel, has joined two Democratic Senators -- Kirsten Gillibrand (NY) and Patrick Leahy (VT) -- in questioning the use of JAG Corps officers to prosecute immigration cases in federal district court, according to this report. There's a link in the article to their joint letter to Defense Secretary James Mattis.

Clerkship opportunity -- now

U.S. Court of Appeals
for the Armed Forces

Looking for a federal appellate clerkship? Check this out.

Peacekeeping and accountability

Bruce C. Rashkow, formerly of the UN Office of Legal Affairs, has a timely article on United Nations Peacekeeping: Strengthening Accountability for Injuries to Third Parties in the Winter 2018 issue of the ABA's International Law News. His bottom line:

It remains to be seen whether and to what extent the General Assembly, and in particular the Member States who provide military contingents to UN peacekeeping operations, will accept and act on proposals to strengthen the accountability for SEA [sexual exploitation and abuse] within UN peacekeeping operations and more generally throughout the UN system, and whether and to what extent it will implement its special regime for harms caused to third parties in the peacekeeping context.

The UN needs to correct its past failures and must act in a timely and conscientious manner to implement existing policies and enact new policies to end a culture of impunity. It is clear that further concrete actions will be needed to achieve accountability and justice.

And now for something completely different

A head-scratching item from Axios:

Defense Secretary James Mattis has approved a Justice Department request to send 21 active-duty military lawyers to the southern border, the Pentagon confirmed to MSNBC's Rachel Maddow Wednesday night. 

The details: The DOJ wants the active-duty Judge Advocate[s] General[] (JAGs) sent to six cities in Texas, Arizona, and New Mexico to work as prosecutors for roughly six months on cases regarding undocumented immigrants. The decision comes in the heat of the battle over the Trump administration's application of a "zero-tolerance" policy to illegal border crossings, which refers all adults crossing illegally to the DOJ for criminal prosecution. 

"The Secretary of Defense has approved a Department of Justice (DOJ) request to detail 21 attorneys with criminal trial experience to DOJ for a period of 179 days. The DOD attorneys will be appointed as Special Assistant United States Attorneys and will work full time, assisting in prosecuting reactive border immigration cases, with a focus on misdemeanor improper entry and felony illegal reentry cases." — Statement from the Defense Department, per Rachel Maddow.

The DoD Office of General Counsel must have scrubbed this for Posse Comitatus Act issues. It would be interesting to see the memorandum. This is the governing directive. Encl (3) ¶ 1b provides in part:

b. Permissible Direct Assistance. Categories of active participation in direct law enforcement-type activities (e.g., search, seizure, and arrest) that are not restricted by law or DoD policy are: 

(1) Actions taken for the primary purpose of furthering a DoD or foreign affairs function of the United States, regardless of incidental benefits to civil authorities. This does not include actions taken for the primary purpose of aiding civilian law enforcement officials or otherwise serving as a subterfuge to avoid the restrictions of the Posse Comitatus Act. Actions under this provision may include (depending on the nature of the DoD interest and the authority governing the specific action in question): . . .

Is appearing for the government in federal district court in a criminal case "active participation in direct law enforcement-type activities"? If so, does the prosecution of undocumented immigrants further a foreign affairs function?

It would take considerable time to identify the required number of JAG Corps officers in a position to answer the call (presumably only volunteers would be involved) and get them properly trained and deployed.

Rank and court-martial membership

Must the president of a court-martial always be senior to the accused? That issue may be coming up in Uganda. Is the solution to recall a retired officer who is senior to the accused?

Armed Forces Tribunal -- is broader jurisdiction needed?

Writing in Daily News & Analysis, Global Military Justice Reform contributor Wing Cdr (R) U C Jha usefully suggests that the jurisdiction of India's Armed Forces Tribunal should be broader. He notes these shortcomings:

The AFT is not empowered to intervene in matters relating to summary trials, leave, and transfers and postings. As regard to its appellate jurisdiction, the tribunal is devoid of its jurisdiction in cases of summary court martial where punishment awarded by the court is less than three months of imprisonment or dismissal.

The AFT Act does not make any provision for legal aid. Insufficiency of legal aid poses a serious handicap for the Armed Forces personnel approaching the tribunal. The question of legal aid becomes more pertinent in the context of the Armed Forces because the fundamental rights of those serving in the forces have been abrogated by the Constitution. Under Section 15 (6) of the AFT Act, the Tribunal has the power ‘to enhance the punishment awarded by a court-martial’. It is against the fundamental principles of natural justice as such ‘coercive’ power is not exercised by the military appellate courts in other democracies.

The AFT has been given the power to punish people for committing contempt of proceedings in the court (ie, criminal contempt). However, if any order has not been followed by the government officials, the AFT lacks the power to get their orders executed by way of civil contempt. This is a serious lacuna.

Guantanamo contempt conviction overturned

Hon. Royce C. Lamberth

Senior federal district judge Royce C. Lamberth has overturned the contempt conviction imposed by a Guantanamo military commission judge on U.S. Marine Corps Brigadier General John G. Baker, chief defense counsel of the military commissions. Judge Lamberth, who long ago served as an Army judge advocate, ruled that he had jurisdiction over General Baker's habeas corpus petition, that General Baker's claim was not moot, and that the contempt conviction was invalid because it was decided only by the military judge and not by the voting members of the commission, as the Military Commissions Act requires. Click here for Carol Rosenberg's account.

Civilian + Facebook = military trial

Welcome to Tunisia, which continues to try civilians in military courts. Here's the latest.

How short is too short?

Is a 2-year renewable term of office for the president of a standing court-martial sufficient to guaranty independence? That's the deal in Uganda. Current news here.

Personal tech and military justice

Many law enforcement officers resist having their pictures taken during law enforcement activity. In this era of personal tech, where smartphones double as video cameras and are inexpensive and omnipresent, it's not surprising that they can be useful in recording police abuse. The same is true of military operations. The Washington Post reports here on an Israeli legislative proposal that would criminalize the taking of video of IDF personnel that hurts a soldier's spirit or harms national security.

Labor law and the armed forces

The Irish Examiner has this report on the aftermath of Ireland's recent court settlement about the application of some wage-and-hour standards to military personnel. Excerpt:

PDForra [Permanent Defence Forces Other Ranks Representative Association]general secretary Gerard Guinan said members of the Defence Forces have been unable, as a result of an exclusion clause contained in the Act, to avail of all of the full and ordinary statutory rights and entitlements relating to carryover of unused annual leave, minimum periods of daily rest, maximum weekly working hours, and related workplace rights and benefits. He said PDForra had been fighting for these rights for several years.

“In fact, the basis for this case was lodged as a claim by PDForra in 2013 and the Department of Defence have stonewalled us until last week, when eventually they changed the regulation,” said Mr Guinan.

He said it was now being conceded by the Government that effectively it will not rely on the exclusion clause contained in the legislation and will bring members of the Defence Forces within the scope of the Act, subject to the application of exclusions/derogations permitted by the Working Time Directive.

The Department of Defence can revoke the Working Time Directive for the Defence Forces if there is a national emergency. Mr Guinan said he accepted that.

“It needs to be remembered that these rights are designed to protect the health and safety of workers. There are many more cases where different aspects of the directive are being breached, from our perspective.”

A new look at an old issue

Hankyoreh reports:

The question of conscientious objection – that is, refusing to enroll in the military or bear arms because of religious beliefs – will be reviewed by the full bench of South Korea’s Supreme Court for the first time in 14 years. Public arguments on the matter will also be held at the end of August. This appears to reflect a growing push for the creation of an alternative to mandatory military service, with an increasing number of district courts acquitting conscientious objectors. Amid progress in peace talks on the Korean Peninsula, attention is turning to whether there will be a change in judicial rulings that have stressed the national security situation.

The law works in mysterious ways. The current reshuffling of political and other relationships in the region may make this a propitious time for South Korean authorities to take a fresh look at the issue.

Uganda, again

Why is Uganda bringing a former inspector general of police before a court-martial? Initial details here.

Exam Question

Yesterday the U.S. Court of Appeals for the Armed Forces decided United States v. Dinger. At issue was whether a retired Marine gunnery sergeant could be sentenced to a punitive discharge in light of a statute that seemed to preclude it. Expressly overruling prior cases, the court affirmed, holding "that in § 6332 Congress did not prohibit a court-martial from sentencing a retiree to a punitive discharge or any other available punishment established by the President."

By permitting a punishment that was not permitted at the time of the offense, does the decision violate Fifth Amendment due process? Discuss Bouie v. City of Columbia, 378 U.S. 347 (1964), in your answer.

UN Report on Human Rights in India: Reality

The 14 June 2018 report of the Office of the UN High Commissioner for Human Rights (OHCHR) has given rise to fears about the situation of human rights in India, particularly in the state of J&K. The report undermines the United Nations-led consensus on zero tolerance against terrorism and fails to see the actions taken by India in this context. Some of the issues highlighted in the report and the factual position are as follows.

Para 44: Section 7 of the AFSPA gives security forces virtual immunity against prosecution for any human rights violation; further in the nearly 28 years that the law has been in force, not a single prosecution of armed forces personnel has been granted by the Central Government. Sanctions have been accorded in a few cases.

The law under which military personnel may be prosecuted in India is more stringent than those in a large number of democracies.

Para 45: Section 4 of the AFSPA  allows army personnel to use lethal force not only in self-defence but also against any person contravening laws or orders “prohibiting the assembly of five or more persons”, and this contravenes several international standards on the use of force and related principles of proportionality and necessity.

Such powers have been granted to the armed forces in Australia, Belgium, the UK, the USA and elsewhere. In India, the instructions issued to military commanders are explicit and comprehensive. They provide that in case commanders decide to open fire, they must: (a) give warning in the local language that the fire will be effective; (b) attract attention before firing by bugle or other means; (c) control fire by issuing personal orders on both the ‘number of rounds’ to be fired and the ‘object to be aimed’ at; (d) cease firing immediately once the object has been attained; (e) take immediate steps to secure the wounded; and (f) ensure a high standard of discipline. These rules of engagement have approval of the Supreme Court. 

Para 47: In 2005, the government had appointed a committee to review the AFSPA. The committee reported that the AFSPA had become “a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness”.

The findings of the committee have been selectively quoted in the UN report, which failed to mention other parts of the report:“...though an overwhelming majority of the citizen groups and individuals pleaded for the repeal of the Act, they were firmly of the view at the same time that the Army should remain to fight the insurgents.”

Para 47: A committee established by the Central Government in 2012 to review laws against sexual violence, recommended that the AFSPA be amended so that cases of sexual violence by members of the armed forces could be brought under the purview of ordinary criminal law.

Though the recommendation of the committee was outside its mandate, the 2013 amendment to the India Penal Code provides that if a member of the armed forces commits rape in a deployed area, he shall be awarded a minimum punishment of RI for 10 years, which may be extended to imprisonment for life, and shall also be liable to fine.

Para 52: There are slight variations in the justice systems governing each of the central police forces (CPF) and that “to some degree the processes are less defined, providing for greater ambiguity in the administration of justice within these security forces”.

The legal system of the CPF is well defined and contained in Acts and Rules. There is no ambiguity in the system.

Para 54: The Indian authorities have insisted that allegations of human rights violations by the security forces are appropriately handled by the military justice system. However, according to the Special Rapporteur on Independence of Judges and Lawyers, military courts do not meet international fair trial standards and thus are not suitable to try offences committed against civilians.

This is a general comment applicable to military legal systems the world over and not exclusively to the Indian military justice system.

Para 55: In July 2017, the Armed Forces Tribunal suspended the life sentences and granted bail to five Indian Army personnel who had been convicted by a court-martial for extrajudicial killings. According to report, the Tribunal’s decision has not been made public.

The Armed Forces Tribunal is a judicial body, functioning independently under the supervision of the Supreme Court. The action of the Tribunal is within the power granted to it under Section 15 of the Act.

Para 72: The report mentions the Army Chief’s warning to protesters that “tough action” would be taken against anyone intervening in security operations.

However, it does not mention the social and developmental activities undertaken by the armed forces in J&K in the last few decades.

There is no doubt that the non-state armed groups (NSAGs) in J&K have committed a range of crimes, including kidnappings, killing of civilians and sexual violence. There is ample evidence to show that these NSAGs have been trained and armed by Pakistan. However, the UN report fails to take cognizance of this. Para 29 of the report states that since it was not possible to directly verify allegations, the findings were arrived at using a “reasonable grounds” standard of proof. One does not expect a report by a UN body to rely on allegations that are not supported by evidence.