Happy New Year

Before we go ashore . . .

As we close the books on 2019, let's run the numbers from the beginning (4:07 p.m., Jan. 12, 2014) to today:

Posts, 5168
Comments, 736
Hits, 744,649
Jurisdictions, 186
Contributors, 21

From all of us (i.e., the Editor) here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza, thank you for making this blog a success. Your homework for 2020:

• keep reading and commenting (real names only, please)
• if you are a contributor, keep posting
• if you would like to become a contributor, contact the Editor
• if you are a shy person and know of something newsworthy, send a link to any of the contributors or the Editor
• tell your friends and colleagues about Global Military Justice Reform

Best wishes!

An eventful year for state military justice

As noted in this post, several states enacted new military justice legislation in 2019 for their National Guard and Air National Guard. We must add Idaho and Oklahoma to the list. The Idaho Code of Military Justice, as amended, took effect on July 1, 2019. Among the key provisions:

ARTICLE 2. PERSONS SUBJECT TO THIS CODE — JURISDICTION 

(a) This code applies to all members of the state military forces when serving in a title 32 status or state active duty status as defined in article 1(a)(5) of this code. This code does not apply to members serving in a title 10 status or members of the unorganized militia as defined in section 46-102, Idaho Code. 

(b) Subject matter jurisdiction is established if a nexus exists between an offense, either military or nonmilitary, and the state military force, regardless of duty status. Courts-martial convened by the governor or his designated representative have primary jurisdiction of military offenses as defined in article 1(a)(18) of this code. A proper civilian court has primary jurisdiction of a nonmilitary offense when an act or omission violates both this code and local criminal law, foreign or domestic. In such a case, a court-martial may be initiated only after the civilian authority has declined to prosecute or dismissed the charge, provided jeopardy has not attached. Jurisdiction over attempted crimes, conspiracy crimes, solicitation, and accessory crimes must be determined by the underlying offense.

 The Oklahoma measure can be found here. This website gives links to state military justice legislation.

A positive step in Bangkok

The Bangkok Post reports that a number of military court cases have been transferred into the civilian system. Excerpt:

A total of 43 cases involving security and criminal offences have been transferred from military courts to courts of justice under an order of the National Council for Peace and Order (NCPO), says Prayut Phetkhun, deputy spokesman of the Office of the Attorney-General.

NCPO Order No 9/2019, signed by Gen Prayut Chan-o-cha before an elected government was formed, lifts NCPO Orders Nos 37/2014, 38/2014, 43/2014, 50/2014 and 55/2016. As a result, security and criminal cases being considered by the military courts must be transferred to the courts of justice and cases being considered by the military prosecutors must be transferred to the Office of the Attorney-General.

Eye-catching Military.com headline

Pagan Nevada Guard Soldier Gets Waiver to Grow Beard; More May Follow. "The Nevada Army Guard's first religious accommodation waiver granted a Norse Pagan soldier permission to grow a beard. Now, it is considering two similar requests from Pagan soldiers, according to a recent Army news release."

As we wrap up 2019 . . .

Over at CAAFlog suspense is mounting as 2019's top 10 U.S. military justice stories are unveiled. But what would make the list globally (including stories from the United States)? Here are a dozen, but feel free to add your own (real names only for comments, please):

• The Supreme Court of Canada decided the Stillman case, upholding the exercise of court-martial jurisdiction over civilian offenses, despite the loss of jury-trial rights.

• Development of the 2019 Yale Draft Principles for Military Summary Proceedings. The Yale Draft will be the subject of a panel discussion at the May 2020 conference of the International Society for Military Law and the Law of War in Aix-en-Provence. Nonjudicial proceedings affect far more service members than courts-martial but have not been the subject of comparable scrutiny. Pascal Lévesque's book will contribute to the debate.

• The use of the President's pardon power in several high-profile military cases became the subject of controversy.

• New (third) editions of two law school casebooks came on the market: Dean Lisa Schenck's Modern Military Justice and Eugene R. Fidell, Elizabeth L. Hillman, Joshua E. Kastenberg, Franklin D. Rosenblatt, Dwight H. Sullivan, and Rachel E. VanLandingham, Military Justice Cases and Materials.

• The Department of the Navy conducted a review of Navy and Marine Corps legal services. The report has not yet been released.

• The Gallagher case. Heavily covered, with important late-in-the-year reporting by Dave Philipps of The New York Times. Was the video that is now publicly available shown to the panel? Or the interview of the SEAL petty officer who testified that he, rather than Chief Gallagher, killed the victim?

• A few countries continued to try civilians in courts-martial. Think: Algeria, Lebanon, Uganda, Egypt, Jordan, Cameroon. Suriname convicted its president, Desi Bouterse, in a military trial for long-ago murders.

• Something that did not happen: Pakistan allowed the legislation under which its military courts could try civilians to lapse.

• Following proceedings in the International Court of Justice concerning a violation of the Vienna Convention on Consular Relations, Pakistan will afford Indian national Kulbhushan Jadhav a right to civilian review of his military trial.

• The military commissions at Guantánamo continued to inch to trial. There are, however, signs of life. Carol Rosenberg continues as dean of the Guantánamo Bay press corps.

• The CBS television show "The Code" cratered.

• Several states, including Massachusetts and Illinois, updated their state codes of military justice. These laws apply to  personnel of the National Guard and Air National Guard when not in federal status.

CAAF 2018-19 Annual Report

U.S. Court of Appeals
for the Armed Forces
Washington, D.C.

The report of the U.S. Court of Appeals for the Armed Forces for the year ending Sept. 30, 2019, is available here. Bottom line: the caseload continues to be pretty anemic; petitions were up from the preceding year but oral arguments and total opinions issued were slightly off. The time from filing of the petition to the grant of review was the longest it's been in ten years. On the other hand, the time between petition filing and final decision was dramatically reduced from the year before.

The court denied review in 360 cases, thereby foreclosing review by the Supreme Court. (Congress once again this year failed to afford court-martial appellants the same access to the Supreme Court as is enjoyed by state, civilian federal, and military commission defendants.)

Another county heard from

Sharp-eyed readers will have noticed that we now have had readership from our 186th jurisdiction: Eswatini. The country was formerly known as Swaziland.

Welcome aboard!

The Gallagher Case

Pulitzer-winning Dave Philipps of The New York Times has an important At War column about newly-revealed emails and videotapes regarding the case of retired U.S. Navy Chief Petty Officer Edward R. Gallagher. Excerpt:

Now hours of video interviews recorded by Navy authorities and obtained by The Times let the public hear, for the first time, members of the platoon speak in their own words. The never-before-released video and other images are part of a new episode of The Weekly streaming now on Hulu and airing Sunday on FX.

This is "must" reading and viewing.

Why was this Somali police officer tried in a court-martial?

A Somali police officer has been sentenced to death for the murder of a civilian. But why was he tried in a military court? This news report doesn't say.

Whether constabularies should be subject to military justice is a contentious issue in some countries, such as Spain (where the Guardia Civil is subject to military justice).

Why is this attempted murder case in the military justice system?

The Colorado Springs Gazette's story about the case omits key details, such as who the victim was (civilian v. military) and where the offenses took place. The mug shot was taken by the local sheriff's department. Were they simply holding the accused for the Air Force?

Happy holidays to everyone

ISMLLW to meet in Aix-en-Provence

The International Society for Military Law and the Law of War will meet in Aix-en-Provence May 12-16, 2020. The program is titled "Dealing with tensions, crisis and war in accordance with international law and humanitarian principles." The detailed schedule of events can be found here.

Army Crime Report, FY2018

The U.S. Army Provost Marshal General's FY2018 Army Crime Report (Sept. 2019) is available here. The page devoted to corrections observes:

5. Army Corrections 

In FY2018, Army correctional facilities handled a total of 91 pre-trial prisoners (56 were Army pre-trial prisoners), in-processed a total of 372 prisoners (306 were Army prisoners), and released a total of 415 prisoners (337 were Army prisoners). As of September 2018, there were 604 Army Prisoners incarcerated within DoD correctional facilities, 189 in federal correctional facilities, 92 on mandatory supervised release, and 192 on parole. As illustrated in Figure V-5 [omitted here], a disproportionate number of Army prisoners are junior Soldiers (E1-E4). Junior Soldiers composed 65% of the prisoner population despite reflecting 41% of the AD [active duty] population. Also, a disproportionate number of prisoners are male (99%) compared to their AD population size (84%). 

In FY2018, 58% of the Army prisoner population’s primary confining offense was sex crimes and 35% for other violent crimes. Of the sex crimes, 44% were against adult victims and 56% against children. Of the violent crimes, 68% were for murder, 18% for assault, 10% for child pornography, and 4% for other violent offenses (e.g., robbery, kidnapping). 95% of the population have a sentence length of one year or more and 3% of the population have a life sentence. 85% of those serving a life sentence were convicted of murder and 15% were convicted of other crimes (e.g., rape, aiding the enemy).

Well and truly available

The third edition of Military Justice Cases and Materials is now well and truly available from Carolina Academic Press, just in time for the Spring 2020 semester. The book is edited by Profs. Rachel VanLandingham (Southwestern) and Joshua Kastenberg (New Mexico), Mills College President Elizabeth L. Hillman, Col. (ret.) Dwight H. Sullivan, LTC (ret.) Franklin D. Rosenblatt, and the editor. Prof. Stephen I. Vladeck (UT Austin) contributed the foreword. A Teaching Manual is also available from the publisher. The book is up-to-date, and includes the current text of the UCMJ, the Draft Principles Governing the Administration of Justice Through Military Tribunals (2006, Yale Draft 2018), and a host of U.S. and foreign materials. (Pp. clxi + 926; 1 illus.*)

* Guess who?

You won't find this under your tree

Geoff Ziezulewicz has surveyed some military practitioners about do's and don'ts of being a suspect in a military case. Here's his report from Military Times. Do other suggestions come to mind? Please comment (real names only, please).

Dealing with unhappy military recruits--with Chinese characteristics

"Military service according to law
is every citizen's glorious duty"

This story on the CNN website sparked this contributor to do a bit of digging into the background and backstory of this Chinese recruit who wanted to back out of military service. The English language report can be found here.

The recruit's name is Zhang Fakang, a native of Danzhou, Hainan Province. Through a Google search, I discovered he is far from the only one.  See reports on punishments of:
a recruit from Gansu Province; another case from Hainan Province: a recruit from Hebei Province; 26 from Heilongjiang Province; and one from Guizhou Province.

There are media reports from many other provinces as well. What can we see from this report on Zhang is the following:

1. When he wanted to quit and his superiors were unsuccessful in persuading him to remain in the service, they sent a message to the local recruitment office asking them to send someone to change his thinking (市征兵办收到部队发函，请派人到部队协助做好张发康的思想转化工作). In other cases, parents have been drafted to persuade their sons.

2. When persuasion failed, the recruit was punished under the Military Service Law and Temporary Measures on Resolving the Issue of New Recruits Refusing Military Service (Temporary Measures, 解决新兵拒服兵役问题暂行办法）的通知》（军动〔2018〕238号), and related measures. The Temporary Measures do not appear to be publicly available but are cited in media accounts of new recruits refusing military service. 

3. From the account in the English language version of the People's Liberation Army Daily, it is clear that Zhang (and other recruits) are being punished through China's social credit system):

First, include him into the list of those who are seriously discreditable in fulfilling national defense obligations for life, and impose joint punishments on him. He will be banned from applying for going abroad, purchasing real estate, taking flights, long-distance trains or buses, or loans and insurance services for two years. 

Second, forbid him to be employed as civil servants, or in those jobs managed in accordance with the Civil Servant Law, nor to be recruited by government agencies and enterprises as temporary staff.

Third, indicate his information of "military service status" in the household registration information system as "rejection of military service."

Yale Law School’s Paul Tsai China Center Senior Fellow, Jeremy Daum, has written extensively on China's social credit system--this is one of his recent articles.  Social credit system punishments are often done through multi-institution memoranda of understanding (MOU) (see this analysis of some of the legal issues in these memoranda), as is also true in the area of punishing new recruits who demand to leave military service.  This contributor is having trouble finding the MOU for Hainan but found an analogous one for another province. But it is likely that the principles are the same and many Communist Party, state, and other institutions are involved. 

Shaanxi Province MOU on joint punishments
in the area of military service

For historical parallels to Ming Dynasty China, see Harvard Professor Michael Szonyi's book: The Art of Being Governed: Everyday Politicals in Late Imperial China.

Exam question

Consider this Washington Post story about questionable gestures at the Army-Navy Game.

If you were the respective Academy Superintendents, what (if anything) would you do or say? (15 points)

Gambia v. Myanmar

Gambia has initiated proceedings in the International Court of Justice over Myanmar's treatment of the Rohingya minority. Nobel laureate Aung San Suu Kyi says her country's military justice system should instead be allowed to function:

In her closing remarks Thursday, Suu Kyi appealed to the court not to supplant Myanmar's military justice system by imposing international justice, saying that to do so "in effect surgically removes a critical limb from the body. The limb that helps armed forces to self-correct, to improve, to better perform their functions within the constitutional order.”

She said international tribunals often take at least four to eight years to investigate serious crimes. She said a second court martial of a senior officer is expected in coming weeks over the events in August 2017.

“I’m confident that there will be further courts martial,” she said.

Ms. Suu Kyi testified, in part:

Under its 2008 constitution, Myanmar has a military justice system. Criminal cases against soldiers or officers for possible war crimes committed in Rakhine must be investigated and prosecuted by that system. On Nov. 25, 2019, the Office of the Judge Advocate General announced the start of a court-martial for allegations linked to the Gu Dar Pyin village incident, one of the 12 main incidents referred to earlier. The office also let it be known that there will be additional courts-martial if further incriminating evidence is brought by the Independent Commission of Enquiry. The ICOE is an independent special investigation procedure established for Rakhine allegations by the president of Myanmar, chaired by a former deputy foreign minister from the Philippines, with three other members, including a former undersecretary-general of the United Nations from Japan.

On Nov. 26, 2019, this commission announced that it had taken about 1,500 witness statements from all affected groups in Rakhine and that it has interviewed 29 military personnel who were deployed to the affected townships in northern Rakhine during the military operations from Aug. 25, 2017, to Sept. 5, 2017, as well as 20 police personnel who were stationed at the police posts that were attacked on Aug. 25, 2017. There is currently no other fact-finding body in the world that has garnered relevant firsthand information on what occurred in Rakhine in 2017 to the same extent as the Independent Commission of Enquiry and the Office of the Judge Advocate General in Myanmar.

This fact reinforces my sense that I should refrain from any action or statement that could undermine the integrity of these ongoing criminal justice processes in Myanmar. They must be allowed to run their course. It is never easy for armed forces to recognize self-interest in accountability for their members, and to implement a will to accountability through actual investigations and prosecutions. I respectfully invite the members of the court to consider for a moment the record of other countries. This is a common challenge, even in resource-rich countries.

Rubbish and military justice

Lebanon is at it again: rubbish crisis protesters are to be tried in military courts, according to this report. Excerpt:

“It has become abundantly clear that civilians cannot get a fair trial in Lebanon‘s military courts,” Lama Fakih, [Human Right Watch's] deputy Middle East director, told Al Jazeera. “Military courts have no business trying civilians, and Lebanon should end this troubling practice.”

Aly Sleem, who was also arrested during a protest that summer and faces a military trial for which the date has not yet been set, told Al Jazeera that these trials are being used to suppress opposition.

“Military trials are being used as a tool [for] oppressing citizens,” he told Al Jazeera.

Sleem was charged with damaging police property, an accusation that he denies. As is standard with military trials, he was not allowed access to a lawyer during the period of investigation.

Bullying and harassment at USCG Academy?

The Connecticut Mirror brings us a report on apparently ongoing problems at the U. S. Coast Guard Academy.

Congress issues scathing report on bullying, harassment at Coast Guard Academy

Two congressional committees issued a scathing report Wednesday on bullying and harassment at the Coast Guard Academy that determined officers at the New London facility conducted deficient and incomplete investigations and retaliated against those who made complaints.

The report was released at a joint hearing of the House Homeland Security Committee and the House Government Oversight and Reform Committee that focused on the Coast Guard’s failure to conduct prompt, thorough and impartial investigations into allegations of harassment. The academy was also criticized for failing to take corrective actions, including holding those responsible for bullying or retaliation accountable.

Reassuring words from the Chairman of the Joint Chiefs (but he doesn't have the final say)

Genghis Khan

General Mark A. Milley, chairman of the Joint Chiefs of Staff, spoke to the House Armed Services Committee about President Donald J. Trump's recent intervention in three military justice cases:

"We do maintain, and we will maintain good order and discipline," Milley told lawmakers during a hearing before the House Armed Services Committee on Wednesday. "We will not turn into a gang of raping and burning, pillaging throughout … That is not going to happen because of this or anything else."

Milley, the military's top officer, was responding to questions from Democratic Congressman Seth Moulton of Massachusetts, a Marine Corps veteran who said he received a text message from a Marines sergeant major raising concerns about Mr. Trump's decision to intervene in the military justice cases of three service members last month. Some warned the president's move would undermine the military justice system.

The unidentified sergeant major who texted Moulton called Mr. Trump's efforts "appalling" and said it "encourages folks to start burning villages and pillaging like Genghis Khan."

"I think that the uniform code of military justice and the means by which we maintain good order and discipl[in]e are a critical element in order to maintain that capability and some level of humanity in combat zones," Milley said, adding that the president is "part of the process" and has the legal authorities to intervene.

Who's right? The Chairman or the Sergeant Major? What assurance is there that this history will not repeat itself?

For a defense of President Trump's actions, consider this piece from The Hill, which concludes:

Like Presidents [Richard M.] Nixon and [Barack] Obama before him, President Trump acted to balance what he felt was unfair action by the military bureaucracy. The president must be the final arbiter of the military justice system and be allowed to issue clemency — without question — when he feels it is the right thing to do.

"Without question"?

Classification and declassification

J. William Leonard has written this very informative piece for Just Security on Attorney General William Barr's unusual grant of declassification authority. Consider this paragraph:

In one regard, subjecting classification decisions made by executive branch agencies to independent review often demonstrates how agencies have kept information secret for reasons other than safeguarding the national security. For example, in 1995 President Bill Clinton established (and since then every successor president has continued) the Interagency Security Classification Appeals Panel (ISCAP), which is delegated presidential authority to decide on appeals by persons who have filed challenges to agency classification decisions. Since the ISCAP’s initial decision in 1996 through the end of FY17 (the most recent year for which data is available), agency decisions to retain the classified status of requested information have been overridden by the panel, either in whole or in part, 75% of the time. Only once has an ISCAP decision to declassify specific information been appealed directly to the president by an agency head. In that case, President [Barack] Obama directed the declassification and release of portions of a President’s Daily Brief over the objections of the CIA.

Pakistan Airports Security Force: to court-martial or not to court-martial?

On December 3, 2019, The Express Tribune of Pakistan reported that members of that country's Airports Security Force  (ASF) would be subject to trial by court-martial for misconduct at Islamabad International Airport. While there seems little doubt that the reported conduct (if proved) is concerning, this raises some interesting questions about whether court-martial is the appropriate forum.

The ASF was established by the Airports Security Force Act 1975. While the ASF was placed under the authority of Pakistan's Ministry of Defence following the hijacking of a Pakistani civil aircraft at Islamabad in March 1981, it seems clear that it is a civilian law enforcement agency - not a military force.

So if that is so, how is it that members of the ASF are subject to trial by court-martial? It seems that the answer lies in section 5 of the Pakistan Army Act 1952, which provides that:

"The [Federal Government] may, by notification, apply all or any provisions of this Act to any force raised and maintained in Pakistan under the authority of the [Federal Government [or a Provincial Government]]." (Notes omitted.)

While this writer has not been able to locate the notification in respect of the ASF, there are indications in the publicly available material that such a notification has been issued.

So what we have here is (another) civilian agency which has been made subject to military law...

Principle 6 of the Yale Draft of the UN Draft Principles Governing the Administration of Justice Through Military Tribunals states that:

"Military courts have no jurisdiction to try civilians except where there are very exceptional circumstances and compelling reasons based on a clear and foreseeable legal basis, made as a matter of record, justifying such a military trial. Those circumstances only exist, where:
(a) Such a trial is explicitly permitted or required by international humanitarian law;
(b) The civilian is serving with or accompanying a force deployed outside the territory of the sending State and there is no appropriate civilian court available; or
(c) The civilian who is no longer subject to military law is to be tried in respect of an offence allegedly committed while he or she was serving as a uniformed member of the armed forces or he or she was a civilian subject to military law under paragraph (b)."

Without doubt, the application of the Pakistan Army Act 1952 to members of the ASF is not consistent with Principle 6. While Principle 6 is not binding at international law, it does represent  an international benchmark agreed to by experts in military and human rights law from many jurisdictions. The Government of Pakistan would do well to consider whether it is really necessary to extend military law to these civilian law enforcement personnel, or whether it would not be more appropriate to adopt and enforce a civilian code of conduct along the lines of Chapter XII of Pakistan's Police Ordinance 2002.

Not quite right

The following paragraph appears in this essay from the Daily Signal:

Other presidents probably would have waited to see what the Trident Review Board did before acting. Trident Review Boards are composed of fellow SEALs, who sit in judgment of fellow SEALs, and decide whether or not to allow their shipmates to keep their Tridents, given the alleged misconduct.

Au contraire. These boards merely make a recommendation. The recommendation goes to the convening authority (Commander Naval Special Warfare Command). That flag officer in turn makes a recommendation to the Navy Military Personnel Command in Millington, TN. The final decision rests there, barring a veto by higher uniformed or civilian authority. Links to the governing rules can be found here.

The Intercept has a story with this paragraph:

Although Gallagher was the only member of SEAL Team 7 to be tried and convicted for posing with the dead ISIS fighter, several other members of his Alpha platoon also posed with the body. Green determined that all of them, including Gallagher, would go before a review board of senior enlisted SEALs in a Navy justice process similar to a civil trial, and be judged as to whether they deserved to keep their Tridents. If the board deemed their conduct unworthy of the SEAL identity, all would be stripped of their Tridents and removed from Naval Special Warfare. The measure would allow Green to send a message that Gallagher’s conduct was beneath the Navy SEALs.

Again, the implication that the buck stops with the board is incorrect. Also, the suggestion that the board process is similar to a civil trial is a reach, as the COMNAVSPECWARINST reveals.

War crimes and pardons

Pardons in the context of war crimes continue to make the news. War on the Rocks offers this essay by Andrew M. Bell and Thomas Gift. The authors conclude:

We understand the deep opposition to [Pres. Donald J.] Trump’s pardons — and we share it. We don’t think his actions completely decimate the law of war or imply that the vast majority of U.S. military personnel won’t continue to advance its principles. Yet they undoubtedly raise serious concerns about ensuring compliance with the laws of war and about maintaining the distinctive culture of the U.S. military. Ultimately, pardons for war crimes (and other similar dismissals of the law of war) will harm the U.S. military’s potential to maintain the highest values of professionalism and honor — values that have long been its hallmarks.

By the numbers

Business is booming here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza. It's been a while since we ran the numbers, so here's a status report:

Hits, 735,605
Posts, 5141
Comments, 730
Jurisdictions, holding steady at 185 (c'mon, Nauru)
Contributors, 21

Thanks, as always, to everyone. Tell a friend about Global Military Justice Reform. If you are a contributor, write a post; if not, post a comment (real names only, please).

Swiss Military Court of Cassation

The Swiss Judicial Commission has proposed to the Federal Assembly that all members of the Military Court of Cassation be re-elected for the 2020-23. The judges, with their party affiliations, are:

Colonel SMG Paul Tschümperlin (PPD), president
Chief Sergeant André Jomini (PLR), judge
Chief Sergeant Michael Beusch (PS), judge
Colonel Laurent Schneuwly (PPD), judge
Colonel Stefan Wehrenberg (UDC), judge
Colonel SMG Nicolas von Werdt (UDC), deputy judge
Colonel Beat Hirt (PLR), deputy judge
Chief Mattia Pontarolo (PPD), deputy judge, pinned
Soldier Bleicker Olivier (without party), deputy judge

The Federal Assembly is scheduled to act on December 18. 2019.

War crimes and pardons

LTC Dan Maurer

Lieutenant Colonel Dan Maurer of the Army has written a brilliant and timely piece for Lawfare with the title "Should There Be a War Crime Pardon Exception?" Excerpt:

The following set of additional factors ought to guide presidents in exercising their Article II power to pardon when the beneficiary of that clemency is a service member accused or convicted under the UCMJ for crimes proscribed by the law of war:

• If the service member has been convicted by court-martial and the appellate process through the Court of Appeals for the Armed Forces (CAAF) is complete (any remedy for the soldier has been granted or denied by the judicial process), do not pardon.

• If the service member has been convicted, but the appellate process is not yet complete, presume no pardon. Grant only if an objective and prudent person, knowing the relevant facts, would likely not think that the United States tolerates conduct that constitutes a war crime under international humanitarian law; and the rationale for clemency outweighs the recommendations of the relevant civilian and military chain-of-command; and if an objective and prudent military commander would agree that an enemy belligerent, under similar circumstances, would deserve a pardon from his or her own government for conduct committed against a U.S. civilian or service member.

• If the service member has been charged, but court-martial adjudication at trial is not yet complete, presume no pardon. Grant only if doing so satisfies any of the three conditions above.

• If not yet charged, do not grant a pardon, and do not engage in or seek to influence the UCMJ disposition decision. Doing so raises the specter of undue influence, if not “unlawful command influence” that unjustifiably taints the public’s perception of the system’s fairness and due process.

Meanwhile, in Madrid

The Fifth Chamber of the Spanish Supreme Court, by a vote of 3-2, has upheld the punishment imposed on a member of the Guardia Civil for having broken in the door to the office of the Special Corruption Prosecutor. The defendant had been assigned to duty there but found the door locked, so he broke it open. A video camera recorded the incident and the defendant was identified from the tape. The tape, however, was destroyed. Held, the penalty stands because personnel who viewed the tape before it was destroyed were able to identify the defendant from the back. Not good enough, according to the dissenters, one of whom was the court's president. El Confidencial Digital's detailed account of the matter can be found here.

A union victory in Salerno

A court in Salerno has dismissed charges against the Unione Nazionale Arma Carabinieri (UNAC), a labor union representing Italy's carabinieri. It appears from this article from the Gazzetta di Salerno that the union had been under charges for accusing senior officials of corruption. The court entered an acquittal on grounds of lack of evidence. The union's statement on the decision can be found here (in Italian).

Gen. Yamashita's case and current developments

Gen. Tomoyuki Yamashita

This piece by Adam Serwer for The Atlantic is worth study. A thought-provoking quotation from the famous and perhaps prescient dissent in Yamashita appears at the end.

Yale Draft Principles for Military Summary Proceedings

A workshop conducted last month at Yale Law School has produced a set of draft principles for military summary proceedings. A copy of the Yale Draft Principles can be found here.

Comments are invited.

Important decision of Supreme Court of India qua jurisdiction of the Armed Forces Tribunal

The Supreme Court of India has rendered an important decision on the jurisdiction of the Armed Forces Tribunal (AFT).

The AFT had quashed the convening order for a General Court Martial issued in respect of a Brigadier on the grounds that there was not enough material to establish his culpability so as to convene a Court Martial against him.

The Union of India had challenged the verdict of the AFT on the pretext that the jurisdiction of the AFT under Section 15 of the Armed Forces Tribunal Act, 2007, came into play only after the completion of a Court Martial since the same deals with “Appeals” against verdicts of Courts Martial. The Union had also averred that the AFT had no reason to set aside the convening order even on merits of the case.

The Supreme Court of India has however held that while it is correct that Section 15 only deals with appeals arising out of Courts Martial, Section 14 dealt with other ‘Service Matters’ which were administrative in nature (and not judicial) and hence it was well within the powers of the AFT to exercise jurisdiction under Section 14 if not Section 15. The Supreme Court has upheld the decision to set aside the convening order on merits as well.

A detailed note on the matter (and the decision) available at Live Law.

Bouterse sentenced by Suriname military court

President Desi Bouterse

Suriname's President Desiré Delano (Desi) Bouterse has been sentenced to 20 years in prison over the execution of 15 military and political opponents in December 1982. 

This ruling by Suriname’s all-female Military Court, headed by Judge Cynthia Valstein–Montnor, ends this first phase of the trial, which started in 2007. Bouterse’s lawyer, Irwin Kanhai, has already announced he will appeal the decision.

The background of this trial is this. Bouterse was one of the leaders of the February 25, 1980, ‘Sergeants-coup’ which ended the government of President Henck Arron, the first leader of Surinam, after its independence from the Netherlands in 1975. Previous to his military career in Suriname, Bouterse had been a NCO – sports-instructor in the Dutch Army.

Since the new leaders did not manage to revitalize the struggling economy, dissatisfaction grew, also within the Surinam Armed Forces. On December 7, 1982, Bouterse ordered the arrest of 16 prominent individuals, amongst whom two military officers, scientists, businessmen, journalists and a union leader. (One of the two officers was lieutenant Soerindre Rambocus, who graduated in 1978 from the Netherlands’ Royal Military Academy, together with the author of this blog.) The group was transported to Fort Zeelandia in Paramaribo, Surinam’s capital. As witnesses have testified, the death sentences were read out that night by Bouterse, after which many individuals were tortured and 15 were subsequently shot on the ramparts of Fort Zeelandia. Yesterday’s judgment speaks of 93 bullet holes in the wall where the executions took place. One person, union leader Frank Derby, was sent home. He recorded a statement before his death in 2001, which was used as evidence in yesterday’s judgment. On December 10, 1982, Bouterse proclaimed on the national television that the group had been shot, while trying to flee the Fort. In 2007 he apologized for the killings, but maintained that he had not been present in person. 

Bouterse remained the military dictator of Suriname from 1980 until 1988. After that period parliamentary democracy was reintroduced and Bouterse became the leader of the National Democratic Party. He was elected President of the Republic in 2010 and re-elected in 2015. In 2012 the Surinam Parliament adapted an ‘Amnesty Law’, for those involved in the killings. The Military Court judged in 2016 that the Amnesty Law interfered with the constitutional guarantee of a ‘fair trial’ and could therefore not be applied.

In 1999, Bouterse was convicted in absentia for trafficking 474 kilograms of cocaine, by a court in the Netherlands. He has denied these allegations. Bouterse is placed on an Interpol watch list, but currently enjoys diplomatic immunity. His son Dino was sentenced to 16 years in a US jail in 2015 for offering a home base to Hezbollah and trafficking drugs. (see: https://www.reuters.com/article/us-suriname-hezbollah-idUSKBN0M61UN20150310)

As stated above, Bouterse’s lawyer has announced he will appeal the judgment. President Bouterse (74) was not in Suriname when the judgment was read out, since he was currently on a State Visit to China, where he was received by President Xi Jinping. His spokesperson denounced the ruling as a ‘political trial, initiated by the opposition’. It is to be expected that the appeal will also take a long time. 

Interestingly, in his position as President of the Republic the Surinamese Constitution grants Bouterse the option to pardon himself. But perhaps, just like in Argentina in 2004, a Suriname court could annul such a pardon. (See: http://news.bbc.co.uk/2/hi/americas/3551895.stm. See also (in Dutch) the interesting report by G. Spong, advisor to the Military Court: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=13&ved=2ahUKEwiS6Y_-rZLmAhUQalAKHQbGByI4ChAWMAJ6BAgEEAc&url=http%3A%2F%2Fwww.starnieuws.com%2Findex.php%2Fbeyond_files%2Fget_file%2F7ca464179eba5f312baf09b016d8c1e4.pdf&usg=AOvVaw2-hUo-59lktwhOsTpIkDl-

Off with his stripes

On 22 December 1894, after several hours of deliberation, the verdict was reached. Seven judges unanimously convicted Alfred Dreyfus of collusion with a foreign power, to the maximum penalty under section 76 of the Criminal Code: permanent exile in a walled fortification (prison), the cancellation of his army rank and military degradation. Dreyfus was not sentenced to death, as it had been abolished for political crimes since 1848.

Conviction,_degradation,_and_deportation

Dreyfus was convicted of treason for his alleged crime of passing military secrets to the Germans. The Jewish artillery captain, convicted on flimsy evidence in a highly irregular trial, began his life sentence on the notorious Devil’s Island Prison in French Guyana four months later.

www.history.com

J'Accuse has become a not unknown epithet similar to the Queen's "off with his head" shout out before Jack's trial even began.*

In 1898, Major Hubert Henry, discoverer of the original letter attributed to Dreyfus, admitted that he had forged much of the evidence against Dreyfus and then Henry committed suicide. Soon afterward, Esterhazy fled the country. The military was forced to order a new court-martial for Dreyfus. In 1899, he was found guilty in another show trial and sentenced to 10 years in prison. However, a new French administration pardoned him, and in 1906 the supreme court of appeals overturned his conviction.

*Readers of Lewis Carroll, and in particular, Alice's Adventures in Wonderland or Alice Through the Looking Glass may remember the "trial" of Jack for stealing the tarts.

On 12 July 1906, Dreyfus was officially exonerated by a military commission. The day after his exoneration, he was readmitted into the army with a promotion to the rank of major (Chef d'Escadron). A week later, he was made Knight of the Legion of Honour,[7] and subsequently assigned to command an artillery unit at Vincennes. On 15 October 1906, he was placed in command of another artillery unit at Saint-Denis.

Dreyfus served in WW-I attaining the rank of lieutenant colonel.

Throughout all of his ordeal he remained loyal to France.

Researchers can visit the Musée d'art et d'histoire du judaïsme (Museum of Jewish art and history), which includes personal letters, photographs of the trial, legal documents, writings by Dreyfus during his time in prison, personal family photographs, and his officer stripes that were ripped out as a symbol of treason. The museum has an online platform dedicated to the Dreyfus Affair.

Here is a link to France: Military Justice System (2013).

Over the years, the French Military Justice System has progressively led to a system in which military justice is combined with that of ordinary justice. The government has sought to treat military personnel in the same manner as ordinary civilians with regard to offenses committed while on duty. The administration of justice does, however, differ depending on whether the service member committed an offense on French territory or on foreign soil. Another major distinction that remains between the military system and the civilian system is that of the competent jurisdiction to handle the administration of justice during times of peace and during times of war. During times of peace, the jurisdiction of all military courts is abolished. During times of war, military courts have primary jurisdiction to deal with offenses. 

Trident Review Boards

Controversy continues over whether Chief Petty Officer Edward R. Gallagher and other Navy SEALs should have been permitted to retain their Trident pins. Students of military justice may find it helpful to have a summary of the governing regulations and procedures.

Commander, Naval Special Warfare Command is required by OPNAVINST 1414.9B ¶ 5b to "establish and maintain an instruction that delineates strict prerequisites and formal procedures for qualification, re-qualification, disqualification, and failure to qualify within" the Sea, Air, and Land (SEAL) program. This has been accomplished by issuance of COMNAVSPECWARCOMINST 1221.1A.

According to Navy Military Personnel Manual 1220-085 ¶ 4a, "[m]embers whose Navy Enlisted Classification(s) (NEC(s)) is/are removed for disciplinary and/or administrative action per MILPERSMAN 1220-300 are no longer authorized to wear the insignia."  "An enlisted member previously qualified shall be disqualified by an appropriate qualifying officer if that member fails to continue to meet the requirements set forth in MILPERSMAN 1220-300" (¶ 5).

A Note on presidential power over military justice

The President of the United States has many powers with respect to military justice. Some are generic, others are case-specific. It may be worthwhile to catalog them. If this Note omits anything, please add a comment. (Use your full name; anonymous and pseudonymous posts are not permitted on this blog.)

Generic powers:

• Sign or veto Acts of Congress that amend the Uniform Code of Military Justice or other federal laws that may affect courts-martial. U.S. Const. art. I, § 7
• Prescribe and amend maximum punishments. Arts. 18(a), 19(a), 20(a), 56, UCMJ
• Prescribe and amend rules for impaneling courts-martial, waiving preliminary hearings, prescribing what disposition-related information submitted after a preliminary hearing must be analyzed; and pretrial, trial, and post-trial rules of procedure and evidence. Arts. 29(b)(1), 32(a)(1)(B), 32(c)(3), 36(a), UCMJ
• Prescribe regulations for non-judicial punishment. Art. 15(a), UCMJ
• Direct the Secretary of Defense to issue non-binding guidance for the disposition of charges. Art. 33, UCMJ; see MCM App. 2.1
• Withhold the authority of a subordinate to dispose of charges in types of cases or generally. R.C.M. 401(a)
• Empower commanding officers not otherwise authorized to convene courts-martial to be convening authorities. Art. 22(a)(9), UCMJ
• Appoint and remove judges of the U.S. Court of Appeals for the Armed Forces. Art. 142(b)-(c), UCMJ
• Appoint the Judge Advocates General. E.g., 10 U.S.C. § 7037(a) (Army TJAG)

Case-specific powers:

• Grant pardons, before or after conviction, and lesser forms of clemency. U.S. Const. art. II, § 2; see also art. 57(a)(3), UCMJ
• Approve death sentences adjudged by general courts-martial. Art. 57(a)(3), UCMJ; R.C.M. 1207
• Convene courts-martial. Arts. 22(a)(1), 23(a)(1), 24(a)(1), UCMJ; R.C.M. 504(b)
• Dismiss commissioned officers. Art. 4, UCMJ; R.C.M. 107
• Grant immunity. R.C.M. 704(c)
• Withhold the authority of a subordinate to dispose of charges in individual cases. R.C.M. 401(a)

More on Tridentgate

Rachel VanLandingham (along with Geoff Corn) follows her CNN interview with a piece in LawFare.

The Gallagher Case: President Trump Corrupts the Profession of Arms.

This chaos in military discipline and personnel actions is the direct result of Trump’s reckless dismissal of the judgments of his military commanders and his misunderstanding of the profession of arms. The president has legal authority to intervene in these matters, but his misguided actions risk not only undermining the authority of his commanders but also eroding the honor and integrity of the U.S. armed forces. The Spencer/Esper soap opera may be at the forefront of the news cycle, but the real story is the corruption of military good order and discipline.

Happy Thanksgiving

Tridentgate

Prof. Rachel E. VanLandingham
Southwestern School of Law

Global Military Justice Reform contributor Professor and Lt. Col. (Ret) Rachel E. VanLandingham sheds light on the Trident controversy in this CNN interview.