Saturday, November 16, 2019

Give it a break?

"This may be controversial, as everything the President seems to do has been, however this needed to happen and hopefully a few more! These individuals are very good people and Clint [Lorance] has dealt with everything as well as he could I know that personally. Congrats to all 3 well done President [Donald J. Trump]. To those who are gonna argue the 'good order and discipline will be lost' argument give it a break."

From this comment by "MAGA" on another blog

By way of contrast, consider this letter sent by Capt. Aubrey M. Daniel III, trial counsel in the Calley case to President Richard M. Nixon.

The U.S. Army Court of Criminal Appeals decision in United States v. Lorance can be found here.

Friday, November 15, 2019

A busy day for the commander in chief

Pres. Donald J. Trump
President Donald J. Trump today granted important relief in three military justice cases. The New York Times has the story here. Comments are invited.

The White House Press Office released this statement:
Today, President Donald J. Trump signed an Executive Grant of Clemency (Full Pardon) for Army First Lieutenant Clint Lorance, an Executive Grant of Clemency (Full Pardon) for Army Major Mathew Golsteyn, and an order directing the promotion of Special Warfare Operator First Class Edward R. Gallagher to the grade of E-7, the rank he held before he was tried and found not guilty of nearly all of the charges against him.

In early July 2012, only days after Lieutenant Lorance had taken command of his platoon in one of the most dangerous battle zones in Afghanistan, a motorcycle with three men approached him and his men with unusual speed. Under difficult circumstances and prioritizing the lives of American troops, Lorance ordered his men to engage, and two of the three men were killed. Following these events, Lorance was convicted of several charges. He has served more than six years of a 19-year sentence he received. Many Americans have sought executive clemency for Lorance, including 124,000 people who have signed a petition to the White House, as well as several members of Congress, including Senators Bill Cassidy and John Kennedy, and Representatives Steve Scalise, Garret Graves, Duncan Hunter, Paul Gosar, Adam Kinzinger, Scott Perry, Brian Babin, Neal Dunn, Michael Waltz, Louie Gohmert, Daniel Webster, Steve King, Ralph Norman, Mark Meadows, Clay Higgins, Ralph Abraham, Mike Johnson, and Jody Hice.

Major Mathew Golsteyn, an officer of the United States Army and graduate of West Point, is currently set to stand trial for an allegedly unlawful killing in connection with one of the largest battles of the Afghanistan War. As our forces cleared the Taliban from the city of Marjah, an Improvised Explosive Device detonated, killing two Marines. The terrorist bombmaker, as identified by an Afghan informant, who had killed our troops, was detained and questioned. Golsteyn was compelled to release him, however, due in part to deficiencies within the fledgling Afghan detention system. Golsteyn has said he later shot the terrorist because he was certain that the terrorist’s bombmaking activities would continue to threaten American troops and their Afghan partners, including Afghan civilians who had helped identify him. After nearly a decade-long inquiry and multiple investigations, a swift resolution to the case of Major Golsteyn is in the interests of justice. Clemency for Major Golsteyn has broad support, including from Representatives Louie Gohmert, Duncan Hunter, Mike Johnson, Ralph Abraham, and Clay Higgins, American author and Marine combat veteran Bing West, and Army combat veteran Pete Hegseth.

Before the prosecution of Special Warfare Operator First Class Edward Gallagher, he had been selected for promotion to Senior Chief, awarded a Bronze Star with a “V” for valor, and assigned to an important position in the Navy as an instructor. Though ultimately acquitted on all of the most serious charges, he was stripped of these honors as he awaited his trial and its outcome. Given his service to our Nation, a promotion back to the rank and pay grade of Chief Petty Officer is justified.

The United States military justice system helps ensure good order and discipline for our millions of uniformed military members and holds to account those who violate the Uniform Code of Military Justice. Due in part to this system, we have the most disciplined, most effective, most respected, and most feared fighting force in the world.

The President, as Commander-in-Chief, is ultimately responsible for ensuring that the law is enforced and when appropriate, that mercy is granted. For more than two hundred years, presidents have used their authority to offer second chances to deserving individuals, including those in uniform who have served our country. These actions are in keeping with this long history. As the President has stated, “when our soldiers have to fight for our country, I want to give them the confidence to fight.”

Thursday, November 14, 2019

Pakistan to provide Jadhav a right to civilian court review

Remember Kulbhushan Jadhav, an Indian citizen convicted by a Pakistani military court, and the subject of proceedings before the International Court of Justice? (Pakistan denied him reqjuired consular access.) In response to the ICJ's decision, Pakistan is preparing legislation that would afford him a right to seek review in a civilian court. Details here.

Tuesday, November 12, 2019

Incomplete reform in Spain

Santiago Casajus
On October 29, 2019, Carlos Lesmes Serrano, the Acting President of the Spanish Supreme Court and Acting President of the General Council of the Judiciary since December 4, 2018, presided over the opening of the judicial year for military jurisdiction in Spain.  In 2015, important legal reforms transformed military jurisdiction into an integral part of ordinary jurisdiction by means of the modification of the Organic Law of the Judiciary.  On October 15, 2015, the President of the Spanish Supreme Court, for the first time, presided over the opening of the judicial year for military jurisdiction.  The event on October 29, 2019, therefore, was the fifth such celebration and according to Lesmes, the custom had now become a consolidated tradition. 

In the opinion of Santiago Casajus, a Spanish military lawyer in the reserves, the reform of the military justice system in Spain is not yet complete.  He noted that the October 29th celebration demonstrated various things:


1. That military jurisdiction, expressly recognized in article 117 of the Spanish Constitution, is (still) distinct from ordinary jurisdiction, which already had its solemn opening of the judicial year in the presence of King Felipe VI.


2. That "jurisdictional unity", proclaimed as a constitutional precept, was done by a benchmark, -- the creation of a military chamber in the Spanish Supreme Court, without having an effect on the rest of the judicial bodies that comprise military jurisdiction.

3. The legislature failed to ensure real and effective jurisdictional unity by preserving military jurisdiction.

4. Under the rule of law, the function of judging and executing what has been judged is entrusted to a unique combination of independent and impartial judges and therefore, there is no room for other kinds of jurisdiction.

Casajus points out that the members of the military legal corps have not been integrated into the ordinary legal career pattern.  Their promotions, evaluations and classifications for promotion etc. are carried out by the Ministry of Defense.  

The members of military judicial bodies are part of a disciplined and hierarchical system whose independence is not guaranteed.  They live in the same quarters as their military commanders, whom they depend on for the normal development of their activities.  Someone who today is carrying out a jurisdictional function tomorrow can be called upon to be a legal adviser to a military commander, prosecutor in a military trial, or vice versa as is currently the case with members of the military legal corps.  Only when the military lawyer is completely separated from military administration and integrated into the ordinary legal system and judiciary will s/he have the requisite independence.

New military courts building inaugurated in Bogotá

There is a spanking new 7-storey courthouse in Bogotá to house the military justice system. El Universal has this report. The building is named for Navy Lieut. Laura Rocio, a military judge who was murdered in 2005. The system has 234 judges, with 19,000 [!] cases, most of them involving desertion charges, in process.

Friday, November 8, 2019

Cortright v. Resor

The New York Times "At War" blog (to get it, subscribe here) has a fascinating post by David Cortright (as in Cortright v. Resor, 447 F.2d 245 (2d Cir. 1971) (2-1 decision)).

Brookings reports on Tunisia's failure to implement reforms

The Brookings Institution has published this smart report by Hamza Mighri and Sharon Grewal on Tunisia's failure to end its use of military courts to try civilians. Excerpt:
In the last five years, Tunisia’s three military courts — in Tunis, Sfax, and Kef — have tried a number of civilians. In the most high profile case, Yassine Ayari, a blogger and current member of parliament, was sentenced in absentia in 2014 to three years in prison for publishing comments on Facebook that “defamed” the military command and “undermined the army’s morale.” At least ten other bloggers and social media activists have been investigated on similar defamation charges by both civilian and military courts.

Beyond defamation, military courts have also been used to target political opponents. In May 2017, Prime Minister Youssef Chahed asked a military court to try prominent Tunisian businessman Chafik Jarraya and seven other personalities, ostensibly for corruption and treason, but likely because they had been funding rivals within the party Chahed belonged to at the time, Nidaa Tounes. In November 2018, Slim Riahi, then-secretary-general of Nidaa Tounes, filed a case in a military court against Chahed accusing him of plotting a coup (the case was soon dismissed). Finally, the late President Beji Caid Essebsi in December 2018 asked the judiciary to investigate his primary political rival, the Ennahda party, on accusations of harboring a secret military apparatus.
Human rights norms strongly disfavor the trial of civilians by military courts.

Thursday, November 7, 2019

No expanded bench to decide Pakistani military court cases

The Peshawar High Court has denied a government request to convene an expanded bench to decide the more than 200 pending challenges to court-martial convictions. Dawn has this detailed report. The cases are set for hearing on November 26.

Golsteyn, Lorance, Gallagher & Trump

Pres. Donald J. Trump
Will the president intervene? Military.com's Matthew Cox and Hope Hedge Seck have the story here.

Do you think President Abraham Lincoln's grants are clemency during the Civil War are a valid precedent?

There is a report of pushback from the Pentagon. Here. Excerpt:
"[Defense Secretary Mark] Esper on Wednesday would not say if he supports the exoneration of Gallagher, Golsteyn and Lorance, but that he had a 'robust discussion' with [President Donald J.] Trump the day before to offer 'the facts, the options [and] my advice' on the matter."
The Washington Post has this similar report. 

Transparency watch

Why should military charges be kept from the news media after a public preliminary hearing has been conducted? Jeff Schogol has an important Task & Purpose story here, raising this and other issues in the context of the U.S. Marine Corps.
The Navy's Judge Advocate General's Office denied Task & Purpose's appeal for both documents on Nov. 1, adding that [2d Lt. Felippe] Maher's charge sheet could not be released "until 2nd Lt. Maher is convicted at a court-martial."
Only after there's been a [public] court-martial? What if there's an acquittal? Will the charges still not be released?

Tuesday, November 5, 2019

President is said to be on the verge of action in two military justice cases

Pres. Donald J. Trump
Army Times reports:

“I was able to confirm yesterday — from the president of the United States himself, the commander in chief — that action is imminent, especially on the two case of Clint Lorance and Matt Golsteyn," Fox News host Pete Hegseth first said. “The president, as the command[er]-in-chief, has a lot of latitude under the Uniformed [sic] Code of Military Justice to dismiss a case or change a sentence, and from what I understand, that is what will happen shortly."

Monday, November 4, 2019

Recognition for LTC Vindman

Prof. Joshua Kastenberg
Lt. Col., USAF (Ret)
Lt. Col. (Ret) and Prof. Joshua E. Kastenberg (UNM School of Law) has written a powerful op-ed for the Santa Fe New Mexican on the case of Lt. Col. Alexander S. Vindman. Bottom line:
"Lt. Col. Vindman did not violate any precept of law or custom of military service. To the contrary, he fulfilled a difficult constitutional duty expected of him. To this end, he is a patriot who leads by example, and the Congress, as well as the nation, owes him a further debt of recognition."

Sunday, November 3, 2019

Military justice amendments in Taiwan

The Taipei Times reports here on two imminent changes to military law. Excerpts:
The Legislative Yuan has completed a preliminary review of draft amendments to the Criminal Code of the Armed Forces (陸海空軍刑法) aimed at addressing repeat drunk driving as well as the spreading of disinformation by military personnel.
* .  * .  *
As the dissemination of misinformation is often conducted through the Internet, the Cabinet has also proposed an addendum to the code stipulating that people who spread military disinformation through radio and TV broadcasts, electronic communications or over the Internet would face 1.5 times the original penalties.

Saturday, November 2, 2019

California Military and Veterans Summit

The 2019 Military and Veterans Summit will be held in San Francisco on December 9. Details here.

The CLE-qualifying event is sponsored by the California Lawyers Association. Here's the rundown:
8:30 a.m. – 3:30 p.m. | Registration Opens
9:30 a.m. – 9:45 a.m. | Opening Remarks
9:45 a.m. – 10:45 a.m. | Sexual Assault in the Military: Legal Problems & Remedies (1 Hour MCLE Credit)
11:00 a.m . – 12:00 p.m. | LGBT Service-Members and Veterans Rights (1.0 Hour Recognition and Elimination of Bias)
12:00 p.m. – 1:00 p.m. | Luncheon with Keynote Speaker
1:15 p.m. – 2:15 p.m. | Discharge Upgrades: How to Restore Veteran Status and Benefits (1 Hour MCLE Credit)
2:30 p.m. – 2:45 p.m. | Veterans Law Judiciary
2:45 p.m. – 3:45 p.m. | Federal Appellate and Class Action Litigation Panel (1 Hour MCLE Credit)

Friday, November 1, 2019

President's budget for U.S. Court of Appeals for the Armed Forces for FY20

The President’s budget for the United States Court of Appeals for the Armed Forces for FY20 (March 2019) can be found here. Bottom line: $14,771,000. This is up slightly from FY19's enacted budget of $14,662,000.  The court is located in the Department of Defense for administrative purposes only.

How safe is LTC Alexander Vindman from reprisal?

Very, especially if the Army is saying things like this:
“Lt. Col. [Alexander S.] Vindman, who has served this country honorably for 20-plus years, is fully supported by the Army like every soldier, having earned a Purple Heart after being wounded in Iraq in 2004,” Army spokesman Matt Leonard told Military Times on Thursday. “As his career assignments reflect, Lt. Col. Vindman has a long history of selfless service to his country, including combat. Lt. Col. Vindman is afforded all protections anyone would be provided in his circumstances.”
Suggestions that this officer might suffer career damage for testifying in connection with the current House of Representatives investigation into President Donald J. Trump's attempted political quid pro quo with Ukraine are farfetched. As between the two, who is more likely to be in federal service on January 21, 2020? Odds on whether LTC Vindman makes Colonel?

Indian Army wants to preserve ban on adultery, homosexual acts

The [Indian] army believes that allowing homosexuality and adultery will break the fabric that binds it together and effect its teamwork spirit, which will damage the outcome of its combat related tasks. Officials explained this is especially crucial for cases such as the wife of a soldier posted in a remote area, having an affair with his co-soldier. The army still can charge its soldiers for adultery and homosexuality under section 45 (unbecoming conduct) of the Army Act.

From this article in the Economic Times

Thursday, October 31, 2019

O'Connor Law School student wins Jenkins Award

Rear Admiral
John S. Jenkins
U.S. Navy
According to the law school at ASU:
James Cromley, a third-year student at the Sandra Day O’Connor College of Law at Arizona State University, has won the John S. Jenkins Award for Excellence in Military Legal Studies.

Given by the National Institute of Military Justice, the Jenkins Award is presented for the best nominated paper written by a law student on a military legal topic. Cromley’s article, titled “In the Field or in the Courtroom: Redefining the APA’s Military Authority Exception in the Age of Modern Warfare,” examines the Administrative Procedure Act, and, specifically, the definition of “in the field in time of war.”
Congratulations to Mr. Cromley. Admiral Jenkins would have approved!

Wednesday, October 30, 2019

CNO cuts punishment in Gallagher case

Dave Philipps of The New York Times has the story here. Excerpt:
Military lawyers say that clemency is nearly always requested after a court-martial conviction, but it is rarely granted, and that having the top admiral in the Navy take over authority for a case is nearly unheard-of.

“In my 15 years of military law, I’ve never seen it,” said Patrick Korody, a former Navy prosecutor who has followed the Gallagher case. “But there is a feeling among military lawyers that the defense has just steamrolled everyone below, so giving it to the C.N.O. is the right decision. He has authority to do the proper thing.”

Despite the grim details of the case, Mr. Korody said, clemency for the SEAL, who led a platoon in combat in Iraq, was not unreasonable.

Monday, October 28, 2019

NPR: Navy legal review

NPR has run this story about current military justice issues in the Department of the Navy. Interviewees include Prof. David Schlueter (St. Mary's) and Prof. (and Global Military Justice Reform contributor) Rachel VanLandingham (Southwestern).

Sunday, October 27, 2019

Photo sharing and secrecy

Singapore has charged several service members for circulating photos of a fatal vehicle accident, deeming the matter a violation of the Official Secrets Act. Details here.

Should Article 66(c) be amended?

Newsweek reports here on efforts to engage Congress on the unusual review powers of the service Courts of Criminal Appeals. Additional coverage by Military.com's Hope Hedge Seck can be found here.

Thursday, October 24, 2019

Tomorrow is St. Crispin's Day

Consider this link, starring Mark Rylance. Not military justice, but nourishment for those who labor against heavy odds in the courtroom.

CAAF @ BYU

On October 16, the U.S. Court of Appeals for the Armed Forces heard argument at BYU's J. Reuben Clark Law School. Details here.

Wednesday, October 23, 2019

Pardon, Mademoiselle!

October 18, 2019.  News from Metz, France where  Mr. Maumont, a retired senior military officer, is on trial in civil court for sexually harassing his former secretary during 2011-2012. The incidents took place in the workplace; a recruiting office where she was the only woman present. He was 48. She was 33 years of age.

Maumont nicknamed her “his little cat” or “little kitty”.  He  send her SMS messages asking for a “kiss.” He told salacious jokes.  At trial, he recognized his attitude might not have been appropriate but he evoked the need to ensure “a relaxed working atmosphere.”

Judgment is expected on November 15th, 2019. The victim is identified as being the first woman to file such a complaint of harassment against a  military superior.

See article by France-bleu Lorraine-Nord. 

Is this man in the military or not?

You be the judge. It's a tangled tail from South Africa. From a distance, it looks like a serious runaround, and not surprising that Pikkie Greeff of the South African National Defence Union is speaking out.

Tuesday, October 22, 2019

Today in History

History brings us this reminder.
Air Force Sergeant Leonard Matlovich, a decorated veteran of the Vietnam War, is given a “general” discharge by the air force after publicly declaring his homosexuality. Matlovich, who appeared in his air force uniform on the cover of Time magazine above the headline “I AM A HOMOSEXUAL,” was challenging the ban against homosexuals in the U.S. military.
In 1979, after winning a much-publicized case against the air force, his discharge was upgraded to “honorable.” In 1988, Matlovich died at the age of 44 of complications from AIDS. He was buried with full military honors at the Congressional Cemetery in Washington, D.C. His tombstone reads, “A gay Vietnam Veteran. When I was in the military they gave me a medal for killing two men and a discharge for loving one.”

Saturday, October 19, 2019

"Leavenworth"

U.S. Disciplinary Barracks
Ft. Leavenworth, Kansas
Mike Hale of The New York Times reviews "Leavenworth," about the Lorance case here. Excerpt:
The filmmakers — the series is directed by Paul Pawlowski, a veteran of sports broadcasts and documentaries, and Steven Soderbergh is an executive producer — present all of this with brisk competence. They frame the obvious paradoxes, such as how conservative support of [1LT Clint] Lorance entails casting the troops who testified against him as liars or pawns. They don’t establish a real point of view, though, or weave the divergent threads in a way that’s particularly surprising or moving.

A non-comedy of errors: the Kunishige case

On October 17, 2019, the U.S. Navy-Marine Corps Court of Criminal Appeals decided United States v. Kunishige, No. 201800110. The case raises a plethora of issues, chiefly, but not only, just how far off the rails member selection can be under Art. 25(d)(2), UCMJ. Strongly recommended for close study. Comments are particularly invited.

What lessons should be learned?
Why aren't any names named?
Should anyone be disciplined?
Is training deficient for commanders, staff judge advocates, trial counsel, military judges?
Should United States v. Bartee be revisited, as the concurring judge recommends?
Since when can personnel lawfully volunteer for duty as panel members?
Should Art. 25, UCMJ, be amended?

Friday, October 18, 2019

Guardia Civil association protest

The Unified Association of the Civil Guard has protested the imprisonment of a Guardia Civil officer following a court-martial. The organization has protested outside the office of Spain's Ombudsman, as reported in this article.
"The situation was already taken by the association to the Ministry of Defense, which was asked last year to pardon the agent, suspending execution of the sentence until that request was resolved or a year elapsed. From the department headed by Margarita Robles, the AUGC denounces, 'they have never responded to this request, so the process was reactivated until recently when this worker was informed of his imminent imprisonment.'" [modified Google translation]
On to Strasbourg?

Score, Jehovah's Witnesses 1, Azerbaijan 0

The European Court of Human Rights has announced its decision in Mammadov v. Azerbaijan concerning conscientious objection. The court's press release and summary can be found here.
In today’s Chamber judgment in the case of Mushfig Mammadov and Others v. Azerbaijan (application no. 14604/08) the European Court of Human Rights held, unanimously, that there had been: a violation of Article 9 (right to freedom of conscience, thought and religion) of the European Convention on Human Rights. 
The case concerned the applicants’ refusal on religious grounds to serve in the army. 
The Court observed that the criminal prosecutions and convictions of the applicants on account of their refusal to perform military service had stemmed from the fact that there was no alternative service system under which individuals could benefit from conscientious objector status. That amounted to an interference which had not been necessary in a democratic society. The case highlighted an issue relating to the lack of legislation on civilian service as an alternative to military service in Azerbaijan. The enactment of such a law corresponded to a commitment entered into by Azerbaijan on its accession to the Council of Europe and was also a requirement under the country’s own Constitution.
The decision is available only in French.

Media excluded from Sudanese court-martial

A Sudanese court-martial has barred the media from covering several cases. Details here from Dabanga.

Who knew?

Bunker Hill Monument
Charlestown, Mass.
Turns out the Massachusetts militiaman who fired before seeing "the whites of their eyes" at Bunker Hill was court-martialed. The musket in question is up for sale. Details here.

The Gallagher Case

Pres. Donald J. Trump
Dave Philipps of The New York Times reports here on the case of Navy SEAL Chief Petty Officer Edward Gallagher. Excerpt:
[O]ne of Chief Gallagher’s most vocal supporters happens to be the commander in chief. President [Donald J.] Trump has repeatedly intervened, and has posted so many expressions of support for the SEAL on Twitter that the Navy now sees Chief Gallagher as untouchable, according to three Navy officials familiar with the case. Any talk of punishment has been shelved, not only for the chief, but for two other SEALs who had been facing possible discipline in the case, these officials said. 
Mr. Trump helped Chief Gallagher get released from confinement before his trial, and personally congratulated him on Twitter when he was acquitted.

“People want to hold these guys accountable,” said one Navy officer who was involved in the punishment deliberations. “But they are afraid that if you do anything, minutes later there will be a tweet from the White House, and the officer in charge will get axed.”

Thursday, October 17, 2019

Closed trial

In the U.S. an accused has the right to a public trial. Any closure has to be justified for very significant reasons.
A military court in Khartoum has ruled to ban media coverage of the trials of defendants accused of involvement in the foiled coup attempt in July, as well as the Court Martial of former Janjaweed leader Musa Hilal. The court said the ruling was in “order not to harm justice”.
Sudan Armed Forces (SAF) spokesman Brig Gen Amer El Hasan said “Musa Hilal belongs to the army and is therefore subject to the Sudan Armed Forces Act.”
Reported by Dabanger (Sudan).

Tuesday, October 15, 2019

Where should this case be tried?

A Rwandan military court has rejected a claim by militia members that they are not subject to military trial because they are civilians. Details here. The 25 defendants had been arrested by Congolese authorities in the DRC and were then turned over to Rwanda. "Lawyers had argued that the 25 were not members of the military at the time of their arrest and that Major (Rtd) Habib Mudathiru also retired from the army, making the entire group ‘civilians’ by status, who should be tried in a civilian court."

The Guardia Civil and military justice

This article from El País about the incarceration of an officer of the Guardia Civil offers the following information about the changing reach of Spanish military justice:
In 2007, the Government led by José Luis Rodríguez Zapatero reformed the Military Criminal Code, so that it only applies to members of the Civil Guard in case of war, state of siege, when they carry out military missions or are integrated into Army units. 
However, in 2015 the PP Government approved a counter-reform that extended the jurisdiction of military justice over members of "the armed institution" to all crimes against discipline, including that of insult to superior, for which [Luis Miguel Pouso Rodríguez] has been convicted.

Sunday, October 13, 2019

White House is reviewing Golsteyn case

Pres. Donald J. Trump
President Donald J. Trump has tweeted that the pending court-martial case of Army Reserve Major Mathew L. Golsteyn is under review at the White House. Details here. The tweet read:
The case of Major Mathew Golsteyn is now under review at the White House. Mathew is a highly decorated Green Beret who is being tried for killing a Taliban bombmaker. We train our boys to be killing machines, then prosecute them when they kill!

Thursday, October 10, 2019

Australia's military justice system and mental health issues

Brig Jennifer Woodward,
Director of Military
Prosecutions (Austl.)
After considerable delay, a bill is being prepared to update how Australia's Defence Force Discipline Act 1982 deals with mental health issues. The impetus for change has come from the Director of Military Prosecutions, Brig Jennifer Woodward. Details here

Will ISIS detainees be sent to Guantanamo?

It can't be ruled out, given current events in Syria. Charlie Savage's article in The New York Times raises the question. Whether ISIS fighters come within an AUMF would likely be an issue. Watch this space.

Saturday, October 5, 2019

Adultery in the Indian armed forces

The Indian Army hopes to preserve the offense of adultery, but quaere, does the statute cover forms of adultery other than where the other party is married to a fellow officer?

Thursday, October 3, 2019

Lebanon's military courts

L'Orient | Le Jour explains the background of Lebanon's use of military courts to try civilians. Excerpt:
After the incidents in 1958 between supporters of the UAS and those of Lebanese power represented by President Camille Chamoun, Parliament passed an anti-terrorism law, long before the subject became fashionable in the Western world. It was therefore a question of finding a legal framework for espionage, terrorism and everything related to the Lebanese army. This structure is criticized by human rights organizations, which reject, as a matter of principle, exceptional courts. But in the opinion of one party, military justice has proved itself and proved its usefulness in terrorism cases in particular, because the military court has a fast procedure, which indispensable in cases that affect the security of the country, the State and the country in general. It is sometimes accused of being expeditious. In fact, it is accelerated in the interest of stability. Indeed, most Western democracies today are introducing specialized courts for terrorism cases, because ordinary courts are not empowered to rule on those cases. In France, there are, for example, anti-terrorist judges. For [military prosecutor] Peter Germanos, the great judicial change took place in Lebanon with the amendment of the law in 2001 that allowed the military prosecutor to be placed under the authority of the Prosecutor General at the Court of Cassation, which is in principle totally independent. Administratively, however, the military prosecutor reports to the Ministry of Defense.
Notwithstanding these comments, human rights continues to strongly disfavor the use of military courts to try civilians. Lebanon's system, like those of Uganda, Pakistan, Cameroon, and a few other countries, disregards that principle.

Judicial review of courts-martial in Peshawar

There have been divergent outcomes in the Peshawar High Court in cases challenging the proceedings of military courts. As a result, the government has asked the court to convene an expanded bench to resolve the intra-court conflict. Details here, thanks to Dawn.

Tuesday, October 1, 2019

Jury of peers

A U.S. court-martial has military personnel on the "jury" almost always from the person's own Service. So what of elsewhere?

Nikolai P. Kovalev, Trial by Jury in Russian Military Courts, J. Power Insts. in Post-Soviet Societies, Issue 8, 2008.
One of peculiar features of the military criminal justice system in Russia is that in some cases military defendants may apply for trial by jury. Unlike the existing U.S. court-martial jury and the Russian military jury of the early 1900s (World War I period) which were comprised of the members of the armed forces, in modern Russia jurors trying military defendants are civilians. This article aims to provide a brief history of military jury in Russia and identify issues of independence and impartiality in Russian military courts with participation of lay decision-makers. In particular, the article will analyze two high-profile cases which resulted in acquittals of Russian officers accused of killing several Chechen civilians during counter-terrorist operations in Chechnya.

Saturday, September 28, 2019

Military justice update from Singapore

This revealing insight on military justice in Singapore was just published by the Military Justice Project, an initiative by the National University of Singapore (NUS) law faculty's criminal justice club.

The Singapore Armed Forces Act arose from exigency as the young nation resisted foreign intervention, and reflects a strong skepticism of outside meddling. On the other hand, the world tends to look towards Singapore as a model example in areas from diplomacy to economics, so trends in Singapore are worth watching. 

Congratulations to NUS Law's Military Justice Project for keeping us informed. Congratulations too to NUS Law's first-place winning team in the 2019 Nuremberg Moot Court Competition in international criminal law (ICL). The growing field of ICL is closely connected to military justice.  

Friday, September 27, 2019

A word of thanks

The editor would like to thank the Global Military Justice Reform contributors for helping make the blog the go-to site for information and commentary on this critical topic. The newsworthy developments keep coming, often very unpredictably, and at times in languages that neither the editor nor "Google translate" can manage.

So, from the glass-enclosed newsroom high above Global Military Justice Reform Plaza, thank you, thank you, thank you.

Thursday, September 26, 2019

Is the Khadr logjam breaking?

Under pressure from the U.S. Court of Appeals for the District of Columbia Circuit, the Court of Military Commission Review is apparently moving forward with adjudication of Omar Khadr's appeal of his 2010 military commission conviction. He's in Canada pursuant to a deal. Does that mean he's a fugitive whose appeal can be put on hold indefinitely? Stay tuned?

The Globe and Mail has the story here.

AFT decision overturned by Supreme Court of India

The Supreme Court of India on Wednesday overturned a decision of the Armed Forces Tribunal. At issue in Union of India v. Yadav, Civ. App. No. 7603 of 2019 (India Sept. 25, 2019), was whether the AFT erred in reducing the gravity of a censure issued to an Army lieutenant colonel as a result of contact with a foreign national. The officer had been punished by proceedings before a Staff Court of Inquiry, rather than a court-martial, and awarded a "Severe Displeasure (Recordable)." He contended, among other things, that the punishment was excessive and not commensurate with the facts. The AFT set aside the action and remanded for reconsideration of the sanction -- provided that "Severe Displeasure (Recordable)" was off the table. That would have permitted two sanctions: Severe Displeasure (Non-Recordable) or simple Displeasure. The government appealed.

From the Supreme Court's judgment:
22. It is no more res integra that the Tribunal is competent and empowered to interfere with the punishment awarded by the appropriate authority in any departmental action, on the ground that the same is excessive or disproportionate to the misconduct proved against the delinquent officer. However, exercise of that power is circumscribed. It can be invoked only in exceptional and rare cases, when the punishment awarded by the disciplinary authority shocks the conscience of the Tribunal or is so unreasonable that no reasonable person would have taken such an action. The Tribunal, ordinarily, is not expected to examine the quantum and nature of punishment awarded by the disciplinary authority as a court of appeal and substitute its own view and findings by replacing the subjective satisfaction arrived at by the competent authority in the backdrop of the evidence on record.

23. Indeed, it is open to the Tribunal to direct the disciplinary authority to reconsider the penalty imposed by it; and in exceptional and rare cases, may itself impose appropriate punishment to shorten the litigation by recording cogent reasons therefor. The reported decisions pressed into service by the appellants have consistently taken this view. In the present case, the Tribunal has adopted the former option, of relegating the respondent before the competent authority for reconsideration of the punishment but, at the same time, hedged by an observation that awarding of censure in the facts of the present case was inevitable.
The court examined and rejected the reasons the AFT gave for overturning the disciplinary authority's action. "[J]ust because the competent authority chose to dispense with the disciplinary action of [a] Court Martial qua the respondent, does not make the misconduct and misdemeanour of the respondent any less serious much less to be of a minor nature as assumed by the Tribunal." ¶ 26, at p. 25.`

The case took a long time:

Misconduct, 2009-11
Staff Court of Inquiry, 2013
Competent Authority decision on Staff Court of Inquiry, May 10, 2013
Reprimand, Oct. 5, 2013
Competent Authority decision on officer's statutory complaint, Feb. 26, 2014
Application to AFT, 2014
AFT decsion, July 12, 2016
Civil Appeal filed, 2017
Supreme Court decision, Sept. 25, 2019