Saturday, May 25, 2019

Presidential war crimes?

Gabor Rona
Cardozo Law School professor Gabor Rona has a predictably insightful piece at Just Security: Can a Pardon Be a War Crime? When Pardons Themselves Violate the Laws of War. It includes a link to this statement from the International Committee of the Red Cross. Excerpt from Gabor's column:
Normally, it would be highly suspect to charge a president with war crimes under a command responsibility theory. Certainly, President [Donald J.] Trump did not know, and probably couldn’t have known or prevented these acts. He wasn’t even president when they were committed. But presidents don’t normally pardon war criminals. The law of command responsibility doesn’t only address crimes a commander ordered his or her troops to commit, or even only those which he or she failed to prevent. It also requires a commander to impose consequences for violations committed by his or her subordinates. It is hard to imagine a clearer violation of this obligation than a pardon. [Emphasis added.]
The Editor shares these concerns but has one point of clarification. A commander need not personally have the power to make prosecutorial decisions; it is enough if he has (and exercises) the power to refer allegations to a military justice system that is not a sham. A senior official who, having done everything right to that point, refers investigated war crimes charges to a lawyer prosecutor (who has the power and resources to mount a prosecution in a military justice system that is otherwise functional) has no command responsibility if the case ends with an acquittal or an excessively lenient sentence. Command responsibility, in other words, does not require a commander-centric military justice system like the US's (and unlike many others, such as the UK, Canada, Australia, New Zealand, Ireland, and Israel). Those who follow the current threatened-pardon controversy should not throw out the independent-prosecutor baby with the war-crimes-pardon bathwater. I am concerned that defenders of the US system will attempt to use the pardon business as yet another unfounded theory for retaining George III's system. Reformers and federal legislators should be alert to this danger.

The granting of a pardon for a war criminal is different from a charging decision. The pardon power is personal to the official who possesses it. Its exercise cannot be delegated, at least in the US system. To pardon a convicted war criminal in the absence of some clear legal error in the proceedings is as indefensible as is sweeping charges under the carpet beforehand.

The Budgam helicopter crash in India: fog of war and culpability

I write for The Quint on the unfortunate helicopter crash in India which is being speculated to have been caused by friendly fire and wherein it was hinted in the media that the concerned officers may be tried for culpable homicide.

The Budgam Helicopter Crash: Fog of War and Culpability

Navdeep Singh

The Budgam helicopter crash incident of 27th February in which we lost precious lives of air force personnel, is again in the news.

There were reports in the media that the chopper came down on account of friendly fire and that the Air Force was contemplating trying the officers responsible for the incident for culpable homicide. I even saw reports and comments on social media that the pensionary and other benefits of the families of the fallen would be determined as per the conclusions reached in the investigation.

I personally find the above quite odd for a variety of reasons.

Firstly, while the hint of the friendly fire aspect might be true, I do not feel that a conclusion of all attendant circumstances qua the fixing of the blame can be reached until the statutory Court of Inquiry convened by the Air Force under the Air Force Rules renders its report.

Secondly, in case someone connected with the procedure has casually stated that the officers would be tried for culpable homicide, the statement seems irresponsible simply due to the fact that till now the Court of Inquiry has not reached a conclusion or ascribed blame and hence it would be absolutely reckless and immature for any person officially associated with the proceedings to make such a statement.

Thirdly, the decision to take action against the guilty, if any, is of the concerned competent authorities under law and not that of the Court of Inquiry, which is simply a fact finding body and recommendatory in nature.

Fourthly, even before the conclusion of the Court of Inquiry, and establishment of culpability, it would totally be inappropriate to prejudge the matter and far-fetched to comment upon the sections of law under which a person would be tried. In fact, this is one aspect that the defence services, de hors the instant case, need to be quite alive about, since statements such as “the concerned official(s) shall be given exemplary punishment” start flying left, right and centre even from senior officers on any unfortunate happening or alleged crime, which clearly gives rise to the fear of institutional bias and prejudgement.

Fifthly, the incident, though extremely unfortunate, can plainly be ascribed to fog of war and battle ambiguities, albeit highly undesirable in a limited conflict situation, and would at the most be a case of negligence leading to death (Section 304-A Indian Penal Code), and cannot, by any stretch of imagination, be termed as culpable homicide (Section 299 Indian Penal Code), which requires an element of “intention” or “knowledge”. In any case, there are specific provisions related to such incidents available under the Air Force Act, such as Section 62 (Offences in relation to aircraft and flying) which again grade the wrongdoing into higher and lower category based upon the fact whether the action was wilful or otherwise.

Sixthly, it would be inane to tag the issue with release of benefits to the families of those who unfortunately passed away in this incident. The grant of benefits to the families would have no connexion whatsoever with the culpability of the concerned employees. The families of the fallen are casualties in an operational area and are eligible to full and liberalized pensionary benefits and ex-gratia as is available to deaths in operations. The locale of the incident is a notified operational region.

While the incident was extremely unfortunate, it is hoped and expected that the Court of Inquiry reveals the nuts and bolts of the happenings of that fateful day, not only to establish the truth, but also to ensure that such mishap never happens in the future.

I am confident of the fact that not only would the Air Force go into the very minute details of the matter without prejudging any guilt of any personality involved, but would also display the moral courage expected of it in unravelling the truth.

Irrespective of the regrettable circumstances surrounding this incident, the nation and the defence services firmly stand behind the families of those whom we lost that day in February.

Friday, May 24, 2019

An important survey by IAVA, and views from 3 LOAC/military justice experts

Lindsay L. Rodman
Lindsay L. Rodman, a lawyer and Marine Corps veteran, has written an important and disturbing piece for Just Security. She provides the results of a survey Iraq and Afghanistan Veterans of America (for which she is director of communications and legal strategy) concerning the possibility that President Donald J. Trump may pardon or grant clemency in several war crimes cases, past and present. BLUF: a disturbing percentage of veterans and current military personnel are basically not on board when it comes to honoring the law of armed conflict. Excerpt:
Perhaps the most concerning results of IAVA’s poll, were the responses to the question: Do you believe the laws and rules that apply to use of force for service members in a combat zone are fair? While the majority of respondents believe that the rules and laws are fair (57 percent), 33 percent of IAVA’s veteran members expressed some doubt, saying that they are either “somewhat unfair” or “unfair.”
She writes, powerfully:
In my mind, these pardons, should they happen, represent a potential existential threat to the military justice system. Implicit in these pardons is an expression of lack of faith in the military justice system from the commander-in-chief. Mixed feelings from the broader military and veterans community indicate that while the president’s positions may not align with a majority, he has a strong constituency who favor his position on these pardons, and who also share his doubt about military justice and the laws of war.
Her final observation lays down a challenge that has not yet been met -- and needs to be:
Rather than merely panning these pardons as being unacceptable and an affront to military lawyers, we need to understand how and why we came to the point that an entire system of law is being questioned by a significant part of the population it is meant to serve.
BZ. With luck and leadership, the needed discussion will take place, regardless of whether and when President Trump acts.

Important postscript: Just Security also has a compelling essay by three respected military lawyers, our contributor Prof. Rachel VanLandingham and retired Rear Admirals John Hutson and Don Guter.

Changing cast in the Gallagher case

CNN has a fascinating article about the changing makeup of SEALs Chief Petty Officer Edward Gallagher's defense team. Lots of connections to President Donald J. Trump and his entourage. Not mentioned are Chief Gallagher's former lawyers, Colby Vokey and Phil Stackhouse, each of whom had deep military justice experience. This will be an interesting book.

Memorial Day 2019

Ball's Bluff National Cemetery, Loudon County, Virginia

Thursday, May 23, 2019

Want to know about pardons? Ask Margaret Love

Margaret Colgate Love
Former U.S. Pardon Attorney
Former U.S. Pardon Attorney Margaret Colgate Love has an important post on Lawfare: "War Crimes, Pardons and the Attorney General." In addition to reviewing the history, she points out some good news: at least the White House is involving the Justice Department in the high-profile cases said to be under consideration. Excerpt:
For anyone concerned about the orderly functioning of a constitutional power of the presidency, bringing the attorney general into the pardon decision-making loop should be good news. Over the past two years, [Donald J.] Trump has granted pardons and sentence commutations without so much as a nod to the long-established review process in the Justice Department, which has become ever more mired in case backlogs and official neglect. Now the president has an attorney general he trusts, and one who knows the ropes in pardon matters because he was personally responsible for them in his first tour at the Justice Department. It is therefore not too much to hope that the attorney general will once again step forward to guide and protect the president in his exercise of the unruly power.

This hope is a reasonable one, particularly given what is at stake in these war crimes cases. To date, this president’s quixotic approach to pardoning has surely raised eyebrows, but it has had no adverse consequences for U.S. military or diplomatic interests. The only harm done by grants of clemency like those to Joe Arpaio and Conrad Black is to a president’s reputation.
Her prediction:
If Attorney General [William] Barr’s advice to the president is to grant these pardons, or if he stands aside and lets the grants be made, it will compromise a long tradition of responsible advice-giving in pardon matters that has served the interests of the presidency since the Civil War. But I believe it is more likely that Barr will advise the president to forbear in these war crimes cases at least until the military justice system has run its course. . . .

Why the Air Force is investigating a cyber attack from the Navy

My headline comes from the headline of a Military Times piece.

The Air Force is investigating the Navy for a cyber intrusion into its network,
according to a memo obtained by Military Times.

For background, it's alleged that the military judge issued a gag order on the parties to the Gallagher case. (The Gallagher case has received other attention because of the pardon issue, as Rachel and others have noted here and elsewhere.) The Gallagher prosecutors and NCIS suspected that information, allegedly covered by the gag order, was being leaked to the press. To see if the leaks were from the defense counsel (but apparently not government personnel?) a "tracker" of some kind was sent to defense counsel and a member of the press who follows military justice cases. And then the defense discovered the intrusion. But wait. One of the defense counsel is an Air Force judge advocate. These are issues being presented to the military judge--we will abide his findings and rulings. In the meantime, CAPT Dave Wilson, the senior judge advocate in overall charge of Navy defense counsel has spoken out.
“In fact, I’ve learned that the Air Force is treating this malware as a cyber-intrusion on their network and have seized the Air Force Individual Military Counsel’s computer and phone for review,” he wrote. (Emphasis added.)
The report goes on:
Wilson worried that the hidden tracking software could undermine confidence and trust in the military’s electronic communication systems and their ability to protect attorney-client privilege for military defendants.
“An unintended consequence of the Government’s action and lack of transparency is a lack of confidence and trust in NMCI and other Government-provided networks used by defense counsel to provide Sixth Amendment right to counsel services to the Navy, Marine Corps and Coast Guardsmen,” Wilson wrote.
Navy Capt. Greg Hicks, the service’s top spokesman, last week declined to comment on the email device targeting Navy Times. But Hicks confirmed that NCIS is conducting “an ongoing investigation into the unauthorized disclosure of information covered by a judge’s protective order.”
We should all worry. Because of the extensive coverage in media outlets focused on military affairs, there's a reasonable chance that clients, future clients, and others involved in military justice will read of "Spywaregate." * See, e.g., Prosecutors in Navy war crimes case accused of spying on defense attorneys and Navy Times reporter.

What review is being done of defense counsel files by the Air Force? Have they engaged a 'taint' team to assist and hopefully protected privileged communications of not just Gallagher but other of the lawyer's clients.

Should all defense counsel now worry that what might be viewed as a one-time event becomes a habit?

When we tell clients about confidentiality, should we now have a disclaimer of some kind?

Even if the investigation is righteous, has the Navy gone about it the right way?

It has not been that long since the prosecutors at Camp Pendleton, CA, engaged in what has been viewed as a wholesale search of defense counsel offices looking for evidence against an accused represented by one of the lawyers. You can see more about that here.

---------
* I think this be Rachel's term.

Wednesday, May 22, 2019

Double killings?

Nicholas Casey of the NY Times reported today that Colombia's Army had ordered up "double killings" and then backpedaled following the front page NY Times article several days ago that we reported on earlier.  After the Times report, Gen. Nicacio Martinez Espinel refuted the story but told the Colombian newspaper El Tiempo that he would withdraw the pledge required of officers.  On Monday, Oct. 20, 2019, Guillermo Botero, Colombia's Defense Minister released results that indicated there had been a 33% surge in overall operations since mid-December, including a 124% increase in combat operations.  Between Dec. 11 and May 18, there were 67 deaths, up 6% from the same period last year, the number of those arrested increased 132% to 1, 713 arrests this year.

Reliable sources reported that a meeting of 15 members of the military was taking place right now at the headquarters of the Second Division of the Army, located in Bucaramanga, in order to get them to "confess" that they served as the sources for the Times report that was published earlier. Jose Miguel Vivanco, head of Americas Division, Human Rights Watch, sent a Twitter message to the Colombian Minister of Defense, in which in inquired whether this meeting was taking place.  "It would be very serious if reprisals were taken against officials for telling the truth" he stated.

Sexual misconduct in the Canadian Forces

Statistics Canada has produced the results of its survey titled: Sexual Misconduct in the Canadian Forces 2018 (A total of 36,000 CAF members participated in the survey.) A total of 1.6% of Regular Force members reported having been victims of sexual assault in the military work place or outside the workplace involving military members. A similar survey conducted in 2016 by Statistics Canada revealed that the prevalence of sexual assault in the Regular Force was 1.7%.  Obviously, sexual assault is an ongoing pervasive issue.

According to the survey, most victims of sexual assaults in the Regular Force (57%) said that these incidents did NOT come to the attention of anyone in authority.

Unlike sexual assault, the reporting of sexualized or discriminatory behaviours to someone in authority did increased in the Regular Force from 16% in 2016 to 28% in 2018.

 Aw noted in the report published last week by the Senate of Canada, titled "Sexual Harassment and Violence in the Canadian Armed Forces," immediate and decisive action must be taken to avoid further cases of military sexual trauma. One such action, is to return to civil authorities the power to  investigate and prosecute sexual assaults by amending section 70 of the National Defence Act.


Tuesday, May 21, 2019

The Editor weighs in on pardons

Fidell, Trump's Increasingly Questionable Pardons Should Make Congress Act, The Hill, May 21, 2019. Excerpt:
Presidents should be strongly discouraged from exercising the pardon power in ways that subvert American adherence to the law of armed conflict. The country has a duty to deter, investigate and prosecute war crimes. To permit open-ended use of the pardon power in these circumstances would blow a hole in our compliance with those requirements and subvert our own ability to demand compliance by opposing forces with the law of war.

Prof. VanLandingham on pardons

USA Today has just posted this powerful op-ed by this blog's contributor Rachel VanLandingham. She writes:
There will always be those in uniform who are incapable of living up to such a high code of honor. As long as the military maintains a fair military justice system through which to duly investigate and justly hold them accountable, our military and the nation it fights for are in a good place. But commander in chief [Donald J.] Trump threatens to continue to betray those who daily exhibit the requisite moral courage we associate with our uniform. Could this be Trump’s real goal — to weaken and divide the military, just as he is already doing to American society?

A community of war criminals

The New York Times reported that President Donald J. Trump took initial steps to issue pardons around Memorial Day for several servicemembers accused and convicted of war crimes. These pardons would be on top of the one President Trump issued less than two weeks ago for convicted murderer First Lieutenant Michael Behenna.

In reaction to this report, many former servicemembers and judge advocates have spoken out arguing such pardons would be immoral, undermine good order and discipline, put our own servicemembers at risk for retaliation, and undermine the commander-in-chief’s own authority in the ranks. If so many who served oppose these pardons, who is the constituency? And what purpose do these pardons serve for the military’s mission?

While campaigning, the president celebrated an apocryphal story of war crimes committed against Muslims, and also argued in favor of killing noncombatant family members (and even continued to do so even after assuming the job). It is currently unclear whether the president will follow through on his intention to reward more war criminals, but it is growing harder to dismiss what animates the most powerful person in the world: unnecessary cruelty.

As Adam Serwer observed, that cruelty also serves a political calculation to bind a community that celebrates its power to inflict pain over the less powerful. Time will tell whether that political calculation is successful in undermining the military's system of discipline.

Thank you, contributors

From the glass-enclosed newsroom high above Global Military Justice Reform Plaza, the Editor would like to thank all of the contributors who have posted during the current particularly active phase of military justice around the world.

While we are at the store, let's run the numbers:

Hits 665,039
Posts 4884
Comments 673
Readership jurisdictions 185
Contributors 17

Thanks, as always, to all concerned. Please continue to post, comment (real names only), tell your friends, and send suggestions.

Scott Shapiro and the pardons

Prof. Scott Shapiro
Scott Shapiro of Yale Law School, interviewed by Isaac Chotiner for The New Yorker. Excerpt:
[Chotiner] There are so many ways that this is both an insult to the military and bad for the military. And the ironies of that are plenty.
[Shapiro] Yeah, right. So there’s that. This is also really bad for morale. I’ve taught in R.O.T.C., I’ve taught these young officers in training, and they’re taught that these rules are super serious and that they really go to the essence of what it is to be an honorable officer. And then to have the President of the United States say, “Actually, the rules don’t really matter”—what does it do to their sense of what enterprise they’re participating in, No. 1? No. 2, how do they get their men to follow the rules if the Commander-in-Chief is saying it doesn’t matter? It’s just a recipe for disaster.

There are so many ironies here, but one of the cases that Trump is considering, based on the New York Times reports, is the case of the Blackwater military contractors. The Bush Administration tried so hard to get the Iraqis not to prosecute these people, because, they said, “Don’t worry, trust us. You can trust the American criminal-justice system. We’ll take care of it.” And they really held the Iraqi government at bay at a very difficult time with the idea that, We can take care of it.

Why would countries accept that going forward? They’d say, “Look what you’re doing.” So it’s not only bad from a military-mission perspective, but it’s also bad from the sovereigntist perspective. If what you’re really worried about is other countries exerting control over American service personnel, you’re giving them every reason to do it if you do this.

Monday, May 20, 2019

Sexual abuse in the armed forces: Ukraine edition

The Times has this report from Ukraine on its emerging problem of sexual abuse in the armed forces.

The importance of women within Ukraine's armed forces has steadily increased. Today, 57,000 women now serve in the Ukrainian armed forces, including 26,000 on active duty. In 2018 many combat arms positions were opened to women, including gunners on armored vehicles, snipers, and infantry soldiers. Many female soldiers have fought in eastern Ukraine's ongoing conflict against Russian rebels.

Consistent with the expanded role of women in the armed forces have been attempts to improve gender equality. However, despite growing evidence of sexual abuse in the armed forces, only five disciplinary or criminal cases were brought last year, each for sexual harassment. So far, no offenders have been held to account, while the women who made the complaints have faced intimidation and retaliation.

There are at least two common denominators with Ukraine's experience and other countries grappling with the problem of sexual abuse in the armed forces.

First, very few victims will come forward if they believe that authorities will be biased against them and unchecked from letting a conflict of interest factor into deciding what to do with a case.

Second, the prospect of raising allegations against perpetrators who are often powerful leaders within the ranks makes the threat of retaliation an ever-present reality and has a tendency to dissuade victims from reporting their abuse.

Rachel VanLandingham on PRI

Prof. Rachel VanLandingham
Global Military Justice Reform contributor professor Rachel VanLandingham is interviewed here on PRI about presidential pardons and the military justice system.

Chris Jenks on the rumored pardons

Prof. Chris Jenks
Chris Jenks has this timely post on Just Security: "Sticking It To Yourself: Preemptive Pardons for Battlefield Crimes Undercut Military Justice and Military Effectiveness."

Sunday, May 19, 2019

N.Y. Times reports Colombia orders army to step up combat killings

A front page article in today's New York Times charges that General Nicacio Martinez Espinel, head of Colombia's army, has ordered his troops to double the number of criminals and militants they kill, capture or force to surrender in battle --and possibly accept higher civilian casualties in the process.  It alleges that Colombian generals and colonels were assembled and told to sign a written pledge to step up attacks.  The military tried a similar strategy in the 2000s to defeat Colombia's rebel and paramilitary groups, but the tactics caused a national outrage when it emerged that soldiers, aiming to meet their quotas, engaged in widespread killings and disappearances of civilians (known as "falsos positivos" or false positives).

Nicholas Casey, who wrote the story, is the NY Times Bureau Chief for the Andean region.  The article generated a torrent of commentary both in favor and against.  On Saturday, Senator Maria Fernanda Cabal tweeted: "This is the 'journalist' Nicholas Casey, who toured in 2016 with the FARC in the jungle.  How much did they pay him for that report?  And for this one now, against the Colombian army? #Casey is fake news."

Casey left Colombia on Sunday because of the false accusations launched against him on Saturday by Senator Cabal, which has been repeated by several politicians.  According to the Committee to Protect Journalists, 51 journalists have been killed in Colombia since 1992.

Jurisdiction over retirees in practice

In the Fall of 2012, appellant was serving as a contractor on Camp Cole, Tarin Kwot, Afghanistan. Mr. Miller was also retired Sergeant First Class [SFC (R)] Miller. During that time, appellant possessed an encrypted, password-protected external thumb drive, containing thousands of images and videos of adult pornography, child pornography, and child erotica. Law enforcement discovered the thumb drive during a magistrate-authorized search of appellant’s room on Camp Cole.
Appellant was charged and tried as a retiree and not as a person serving with or accompanying the force.
Here is a, sorry, lengthy link to the opinion.

https://www.jagcnet.army.mil/Apps/ACCAOpinions/ACCAOpinions.nsf/ODD/6222E2A3E7847D51852583F9005FD96E/$FILE/oc-miller,%20md.pdf

Saturday, May 18, 2019

Trump may pardon multiple war criminals

The New York Times is reporting that President Donald J. Trump is considering pardons for several more individuals convicted of or facing trial for war crimes. The goal is apparently to grant the pardons some time before or during Memorial Day weekend.

There is no question that following through on these pardons will damage good order and discipline. Perhaps we should be concerned that this may be the actual goal, to weaken the authority of senior and mid-level commissioned officers.

Track-gate

Dave Philipps of The New York Times provides the latest chapter in the ongoing saga of the murder trial of SEALs Chief Petty Officer Edward Gallagher. "Tom," in a comment at CAAFlog, points to a string of bar ethics committee rulings about the impermissibility of using secret tracking software. Will a prosecutor be subject to bar discipline? Were there ex parte communications between the prosecution and the military judge? Why were reporters seeking comment referred to the United States Attorney's Office? So far, there are more questions than answers, but over them all looms this one: has a triable homicide case been botched beyond repair due to an investigation into leaks to the press? 

Friday, May 17, 2019

Herman Wouk dead at 103

Lt. Cdr. Phillip Francis Queeg, USN
(played by Humphrey Bogart)
Herman Wouk, who wrote perhaps the greatest military justice-related work of fiction ever -- The Caine Mutiny -- has died. He was 103 years of age. Here is the Washington Post obituary by Becky Krystal. William Grimes's obit in The New York Times is available here.

This might be a good time to see the film again.

Follow-up on the news

A federal district judge in Alexandria, Virginia, has sent Chelsea Manning back to jail for refusing to honor another grand jury subpoena. The New York Times has the story here.

In defense of commander control of military justice

From Unity of Command: Authority and Responsibility Over Military Justice, by U.S. Marine Corps Reserve judge advocate Major Lindsay L. Rodman, in the current issue of Joint Forces Quarterly (at p. 77; footnotes omitted):
It is worth noting, however, that justice is not compromised by retaining the commander’s authority over military justice. The commander is in the best position, from the perspective of all stakeholders in the criminal process, to oversee military justice. Commanders have no incentive to condone criminality or harbor those who commit misconduct. Lack of discipline is toxic to mission accomplishment. At the same time, commanders want justice for their troops and have an incentive to ensure that proceedings are fair. Commanders do not have an incentive to railroad innocent Servicemembers; they have a strong incentive to take care of their troops. For victims of crimes, this means providing additional resources to help with recovery, both mental and physical. 
Especially with respect to sexual assault cases, the military has developed in many areas, with the help of some legislation, pressure from leadership in the White House and Congress, and consultation with advocacy organizations. The military has vastly improved its ability to support victims in the past few years, including the advent of the victims’ legal counsel and efforts to incorporate new methods into the victim support processes, such as counseling and workplace support. There is a need for culture change within the military to address sexual assault. But removing the commander from disciplinary decisions is not the way to achieve culture change. As the RSP [Response Systems to Adult Sexual Assault Crimes Panel] stated, “Historically, commanders have proved essential in leading organizational responses during periods of military cultural transition, as the Services have relied on them to set and enforce standards and effect change among subordinates under their command.”
Especially in the area of victims’ needs and rights, it is imperative that commanders stay involved. Commanders will be, and should be, held accountable for ensuring, first, that the rate of sexual assault decreases (that is, fewer victims are created), and, second, that victims are well supported if a sexual assault should occur. A commander who is powerless over the justice process is also powerless to ensure that a victim’s needs and input are taken into consideration.
Rejecting the experience of other democracies, the author writes (at p. 76):
There are many reasons that other countries have modified the commander’s role regarding military justice. The primary reason is lack of capacity and professional capability in their court-martial systems. Smaller militaries cannot achieve a critical mass of experienced and professional litigators to competently try complex cases. Lawyers need years of trying a variety of cases to become well-prepared for higher stakes cases. In other countries, justice is better served by letting civilian authorities handle those cases. This is a problem that the U.S. military has addressed by working hard over the past decade to better professionalize and train its litigators, including a requirement that complex cases be tried by specially qualified prosecutors.
This is an odd argument for keeping the disposition power in commander's hands: other countries have too few cases to amass the necessary litigation expertise among their uniformed lawyers, so we are going to keep the charging power in the hands of officials who have no professional legal training. Seems like a non sequitur, no? Moving right along (also at p. 76):
There is also a pragmatic utility to ensuring that commanders have control over the discipline of their units and do not have to refer to other officers, other lawyers, or other units to make swift determinations that best meet the needs of the mission. Countries that do not find themselves fighting in similar environments consistently may not prioritize these mission effectiveness considerations to the same extent as the United States.
The article cites no case in which a commander's disposition of a major battlespace offense was afforded lower priority because of operational exigencies. Nor is it at all realistic to believe that a reformed system in which uniformed lawyers had charging power for serious offenses would put trials ahead of operational needs. The prioritization claim seems, therefore, to be a mere debater's point. Additionally, when it comes to major offenses, commanders are hardly at liberty, as the first quoted sentence implies, to dispense with legal advice requirements in a combat environment.

The author concludes (at p. 78):
Legislation that would further distance commanders from their command responsibility will degrade discipline, decrease effectiveness, and impair command response to victim needs and enforcement of victim rights. Future legislative, executive, and regulatory efforts should adopt a harmonized approach to the codification of principles consistent with both command responsibility and the fundamental principle of unity of command. The reforms made to the military justice system in this last round of litigation [sic; presumably should read "legislation"] are truly transformative. They promise to professionalize the military justice system, bringing it further in line with civilian practice without sacrificing the pivotal role of the commander.
What in the Military Justice Act of 2016 "promises to professionalize" the military justice system? What was unprofessional about it before 1 January 2019? Has the author made a persuasive case that non-lawyer commanders must have the final word on who gets charged for what when it comes to serious crimes that go beyond minor disciplinary matters, and get to pick the members of the court-martial jury? These powers transcend "oversight" (p. 72; see also p. 77 ("oversee")) of the system. The author writes (at p. 72): "If commanders are accountable for what happens in their units—that is, whether their troops are following orders and maintaining discipline—then they must have the concomitant authority and responsibility to address disciplinary infractions." Is murder or rape the kind of thing we think of as a "disciplinary infraction"? Should sex-offense and related culture-change concerns drive congressional decision making on structural issues that apply to all major crimes? Why is the acquittal rate in sex cases so high? Can't a system in which the serious-offense disposition power and jury selection are taken away from commanders properly address victims' needs? In the end, isn't it enough that commanders be encouraged to express their views about the disposition of major offenses to judges advocates with charging power who are outside the chain of command?

Thursday, May 16, 2019

Trump and war crimes

Mona Charen has this essay on The Bulwark, a project of the  conservative Defending Democracy Together Institute. Excerpt:
The Bulwark
It makes you wonder what President [Donald J.] Trump would say about My Lai. After all, the Vietcong committed worse atrocities. Would he have pardoned Lt. William Calley?

New twist in the Gallagher case

H/T to Hofstra Law School professor Eric M. Freedman for this link to the latest issue to emerge in the prosecution of SEALs Chief Petty Officer Eddie Gallagher. The facts still need to be salted down, but if they are what the story suggests, a big issue will be fashioning the appropriate remedy. What does it take to lead a military judge to dismiss a murder case for prosecutorial misconduct?

Wednesday, May 15, 2019

Statute of limitations for military prosecutions proposed

Newly appointed Secretary of State for Defence Penny Mordaunt aka Sub-lieutenant Mordaunt RNR has announced that she will legislate for a statute of limitations for alleged offences taking place outside the United Kingdom (except in exceptional circumstances). See here for details.

Ms Mordaunt said: "It is high time that we change the system and provide the right legal protections to make sure the decisions our service personnel take in the battlefield will not lead to repeated or unfair investigations down the line.

This announcement follows Conservative MP Johnny Mercer's decision to "go on strike" in protest over the prosecution of former service personnel. The prosecution of former service personnel remains a hot issue in the UK following the failed IHAT investigations and the following Al-Sweady Inquiry. However, Ms Mordaunt's announcement will not cover Northern Ireland, where a prosecution is underway for alleged offences during the 1970s. 

How this will work in practice is currently hard to see. How will 'exceptional circumstances' be decided without investigation? The devil will, as ever, be in the details.

Tuesday, May 14, 2019

Oklahoma military justice legislation

A new Oklahoma Uniform Code of Military Justice has passed the legislature and is awaiting the governor's approval. The enrolled bill can be found here. Article 2 deals with jurisdiction:
ARTICLE 2. Persons subject to the Oklahoma Uniform Code of Military Justice. 
A. The Oklahoma Uniform Code of Military Justice applies to all members of the state military forces at all times who are not in active federal service, as defined by Title 10 of the United States Code. 
B. Subject matter jurisdiction is established if more likely than not a nexus exists between an offense, either military or nonmilitary, and the state military forces. Courts-martial shall have primary jurisdiction over military offenses as defined in the Code. 
C. The civilian courts shall have primary jurisdiction over nonmilitary offenses when an act or omission violates both the Code and local criminal law. In such a case, a court-martial may be initiated only after the civilian authority has declined to prosecute or has dismissed the charge, provided jeopardy has not attached. When a member is not in a duty status under Title 32 of the United States Code or on state active duty orders, there shall be a rebuttable presumption that subject matter jurisdiction does not exist under the Code. The Governor or Adjutant General may promulgate additional regulations prescribing how a convening authority shall determine the existence of a nexus between a nonmilitary offense and state military forces.
D. Jurisdiction over attempted crimes, conspiracy crimes, solicitation and accessory crimes shall be determined by the underlying offense. 
E. If a commander or officer in charge determines that a nexus exists between a nonmilitary offense and the state military forces, for purposes of administrative action, the commander or officer in charge may impose nonjudicial punishment regardless of whether courts-martial jurisdiction is then possessed or later acquired by the state military forces.

Monday, May 13, 2019

Commander responsibility?

Country A's armed forces are reasonably well trained, led and supervised. Nonetheless, at times a few of its military personnel violate the law of armed conflict. Country A is led by an elected civilian chief of state who is responsible for taking care that the laws are enforced, is commander in chief of the armed forces, has the power to refer charges to courts-martial and to dismiss court-martial charges, as well as the power to grant pardons and clemency.

Is Country A's chief of state subject to war crimes prosecution under a commander responsibility theory of liability if, having had no personal role in the training or supervision of the offenders or personal involvement in the operations in which their offenses were committed, he:
a. grants a full pardon, in accordance with Country A's constitution, to a soldier who has been duly convicted of unlawfully killing a prisoner, and whose conviction has been upheld on appeal by Country A's courts? 
b. takes over from a military subordinate, in accordance with domestic law, the disposition of similar charges against a soldier, and dismisses them before trial? Assume the charges are well-founded in law and in fact.
c. as authorized by Country A's laws, materially reduces the sentence of a soldier convicted of unlawfully killing a prisoner?
Explain your answers.

Sunday, May 12, 2019

"I've failed, but let me keep trying"

Readers may wish to consider Dr. Elizabeth Van Winkle's recent op-ed in USAToday. She was the DoD civilian who served with The Judge Advocates General on the recent quickie Task Force the Pentagon created to make sure Sen. Martha E. McSally didn't jump ship. [Not to worry -- her vote is safe.] In a nutshell, Dr. Van Winkle's view is that even though commander-centric charging has failed for years when it comes to sex offenses it should nonetheless be retained because soldiers trust commanders. She says the latest data are "a call to action" and that "[a] commander standing in front of their force with the power to criminally charge them for not abiding by orders is an extremely powerful tool within the military."
Today, commanders cannot make these [charging] decisions without legal counsel, nor can they overrule legal counsel without review by a higher commander. These safeguards and others make one thing fundamentally clear: Removing commanders from the military justice process is an empty gesture. It will have no impact on decreasing perpetration of the crime because it is limited to what happens after the crime occurs.
How about an annotated version?
Today, nonlawyer commanders whose careers are on the line if the unit reports too many disciplinary issues cannot make these quintessentially legal decisions without legal counsel whose advice they need not take, nor in sex cases but not other serious cases such as murder can they overrule [wrong word: the SJA only gives advice, which the commander either accepts or rejects] legal counsel without review by a nonlawyer higher commander. These safeguards and others [such as?] make one thing fundamentally clear: Removing commanders from the military justice process is an empty gesture. How so? The Brits and others got rid of commanders' disposition power over serious offenses with no adverse effects. It will have no impact on decreasing perpetration of the crime [how do you know, and in any event is the issue one of body counts or of public confidence in the administration of justice?] because it is limited to what happens after the crime occurs. This implies that the disposition power is a commander's only or primary tool -- which it's obviously not. What is more, the services have had years and years to get a handle on sex offenses under the current commander-centric system and have still not gotten their hands around it. 

On war crimes and pardons

West Point alumnus Waltman Wade Beorn has this powerful piece in the Washington Post, concerning the pardoning of war criminals. He writes:
In at least three instances, then, our commander in chief appears to have preferred to overlook serious war crimes in favor of a warped notion of patriotism and heroism. [Donald J.] Trump subscribes to a “bad things happen in war” mentality — odd for a man who actively avoided military service.

This attitude is incredibly dangerous. It doesn’t just undermine the enforcement of military justice; it also sends a message to our armed forces about just what kind of conduct the United States takes seriously.
The article links to the Wehrmacht's 1941 Jurisdiction Order.

Friday, May 10, 2019

The Behenna Pardon Part 3: The Brady Violation

The White House
In the comments to my post on good order and discipline, two attorneys who filed amicus briefs in Behenna's appellate cases have emphasized the Brady violation. For that reason I will briefly provide my take on that violation and whether it required a new trial or justified a pardon.

First, it is important to note that not every Brady violation---a failure to provide information favorable to an accused's case that is known to the government---requires reversal of a conviction and a new trial. The ultimate issue in every case is whether the accused was prejudiced by a disclosure violation. On the basis of what I have read (including the comments to my earlier post and the amicus briefs related thereto), I agree with the CAAF majority that, in light of the overwhelming evidence of guilt, no prejudice resulted from this Brady violation.

The Brady violation. During the trial and near its conclusion, the forensic expert retained by the government told prosecutors that he agreed with defense forensic experts who testified that the available evidence supported the views: (a) that the victim was standing when shot the first time; (b) that the victim was shot in the chest before being shot in the head. These opinions were not conclusive on the issue of whether the victim reached for Behenna's weapon, as the defendant had claimed, but they supported that theory.  Defense experts had already testified as to these opinions and admitted on cross-examination that other theories were plausible. Prosecutors failed to disclose this expert's opinion to defense counsel until after the panel returned findings of guilt, and after receiving an email from their expert. A defense motion for mistrial was denied.

The trial judge and appellate courts found that the government expert's opinion would have been cumulative and, in any event, not at all dispositive of any actual legal issue related to Behenna's convictions for unpremeditated murder and assault. Even accepting the idea (offered in a comment to my earlier post) that the expert would offer a different basis for his views on these points, I do not see how this expert's opinion evidence would have changed the result in this case. For that reason, I think the CAAF majority's conclusion that no prejudice resulted from this Brady violation is supported by the record.

Although I will address the law of self-defense on the battlefield in a separate post, I largely agree with the CAAF majority on the application of self-defense principles to this case (though their discussion of the issues could have been clearer). My analysis here proceeds from that premise.

Let's entertain the idea for a moment that the defense could conclusively establish its theory on the position of the victim (standing) and shot sequence (chest then head). Would that prevent or call into question an unpremeditated murder conviction? I think not, for the following reasons.

(1) The victim's position and the shot sequence are not conclusive or even persuasive evidence that Ali was reaching for Behenna's weapon. This is particularly so in light of other testimony (the interpreter) and the fact that Behenna did not make a self-defense claim in the immediate aftermath of the incident. A sincere self-defense claim is also inconsistent with tossing a thermite grenade to distort the crime scene, which Behenna had inquired about well before these events.

(2) Let's assume Ali was standing and reaching for Behenna's weapon, and that this somehow explains the chest wound location.  Behenna said he fired a "pair" of shots in fairly rapid succession. Two other witnesses said that there was a noticeable delay of roughly two to three seconds between shots. The pathologist testified that the shot to the victim's temple was the cause of death.

If Behenna shot the victim in the chest first, why would he then need to shoot him in the head? In other words, even assuming the first shot was fired in self-defense (but see ¶ (3) below), and it was the chest shot, it was not the fatal shot. A later shot to the right temple would not be necessary for self-defense. Two or three seconds later, a slumped- (or slumping-) over detainee (according to the interpreter) who has just been shot is no longer a threat, if he ever was. This brings us to CAAF's reason for finding no prejudice.

(3) Alternatively, let's assume both shots were fired in response to the victim reaching for Behenna's weapon, exactly as the defendant claimed, and that the two shots were essentially one act of self-defense. There is no debate that Behenna, in full battle gear, was the first person to offer deadly force by pointing his loaded weapon at a naked, unarmed, unthreatening detainee.

Behenna had no lawful justification or excuse to offer deadly force under the circumstances. He therefore was an "aggressor" who had no right of self-defense unless he had withdrawn or the victim's responsive use of force was an escalation. Nothing in the facts suggest that Behenna had withdrawn or attempted to. At most, in response to Behenna's unlawful offer of deadly force, the victim may have thrown a piece of concrete at him and reached for his weapon. Neither of these acts would have been an escalation of the deadly force offered by Behenna.

In other words, even if the government expert's opinion evidence would have conclusively established the facts the defense proffered, it would not have changed the application of self-defense principles to the events. That was what the CAAF majority held, and it is perfectly reasonable result.

In sum, the issue is not only whether there was a Brady violation. The ultimate issue is whether a Brady violation resulted in prejudice to the accused. I am well aware of the general and valid concerns raised by the briefs filed by the attorneys who commented on my earlier post. In light of the facts in this case, however, I simply do not believe that prejudice resulted, or that a new trial or pardon was warranted. For other reasons that I will not address here, I am also quite doubtful that this Brady issue was the primary or even a significant basis for this pardon decision. 

U.S. Army court-martial results, December 2018

The following list includes all straight acquittals adjudged by U.S. Army courts-martial in December 2018. Source: U.S. Army Summary Report of Results of Trial. Five of the six straight acquittals involved sex offenses. Four of the five (and all of the sex offense straight acquittals) in which the accused was enlisted involved panels composed of both officers and enlisted members.
On 06 December 2018, at a general court-martial convened at Fort Bragg, North Carolina, a Specialist, was acquitted by a military panel composed of officers and enlisted members of two specifications of sexual assault, in violation of Article 120, UCMJ.
On 07 December 2018, at a general court-martial convened at Joint Base Lewis-McChord, Washington, a First Lieutenant, was acquitted by a military panel composed of officers of three specifications of abusive sexual contact, two specifications of assault consummated by a battery, one specification of communicating a threat, and one specification of indecent language, in violation of Articles 120, 128, and 134, UCMJ. 
On 12 December 2018, at a general court-martial convened at Fort Bragg, North Carolina, a Staff Sergeant, was acquitted by a military panel composed of officers and enlisted members of one specification of negligent homicide in violation of Article 134, UCMJ. 
On 13 December 2018, at a general court-martial convened at Fort Knox, Kentucky, a Sergeant First Class, was acquitted by a military panel composed of officers and enlisted members, of two specifications of sexual assault, one specification of assault consummated by a battery, and one specification of adultery, in violation of Articles 120, 128, and 134, UCMJ. 
On 19 December 2018, at a general court-martial convened at Vicenza, Italy, a Private First Class was acquitted by a military panel composed of officers and enlisted members, of two specifications of rape, two specifications of sexual assault, one specification of aggravated assault, one specification of assault consummated by a battery, one specification of obstruction of justice, one specification of indecent language, and one specification of animal abuse, in violation of Articles 120, 128 and 134, UCMJ. 
On 21 December 2018, at a general court-martial convened at Fort Sam Houston, Texas, a Specialist, was acquitted by a military judge of one specification of attempted sexual assault and three specifications of sexual assault, in violation of Article 120, UCMJ.
Nine other Soldiers were charged with sex offenses. Eight of them were convicted of sex offenses; the ninth -- tried by a mixed panel of officers and enlisted members -- was convicted only of other offenses (AWOL). The cases are as follows:

Thursday, May 9, 2019

The Behenna Pardon Part 2: A Threat to Good Order and Discipline

The White House
In an earlier post, I exposed the false narrative that the White House press office advanced to support the President's decision to pardon Michael Behenna. Since then, Gene has uncovered information that indicates the basis for the pardon might have been prosecutorial misconduct. I may publish another post responding to that claim. I have serious doubts about its accuracy (as the reason for the pardon) and sufficiency (as a justification for the pardon), as indicated in my comment to Gene's post.

In this post, I want to address the serious threat to good order and discipline that this pardon creates. Although I summarized the essential evidence necessary to understand the case against Behenna, this post will explore this evidence (as summarized in the appellate decisions) in greater detail.

To support the pardon decision, the White House claimed Behenna had been a model prisoner. Behenna's actions related to the death of Ali Mansur [A.M.] were not those of a model officer or soldier. Indeed, the amicus brief signed by former military leaders stated: "Lieutenant Behenna's unauthorized actions in a combat zone were a serious breach of military discipline and for that reason, he should be subject to appropriate disciplinary action under the UCMJ." Although Behenna served significant prison time, the stigma of his conviction (but not the conviction itself) has been removed by the pardon. It is important to consider whether that was an appropriate result given his conduct.

Prior to the death of A.M., on April 21, 2008, insurgents attacked Behenna's platoon with an explosive device. Several members of the platoon were wounded. Two platoon members, a translator, and Iraqi civilians were killed.

On May 8, 2008, a local Iraqi leader told Behenna that A.M. was a terrorist. Behenna went to A.M.'s house, ordered him to lie on his stomach, and struck A.M. in the back repeatedly with his helmet. Behenna's platoon sergeant (PSG) entered the room and saw Behenna strike A.M.

Behenna eventually turned A.M. over to interrogators. After reviewing the report from the first interrogation, Behenna was unhappy with the information obtained. Because he believed A.M. had information about the insurgents that attacked his platoon, Behenna insisted that A.M. be interrogated again. Behenna was permitted to observe but not participate in the second interrogation.

On May 16, 2008, Behenna was ordered to return A.M. to Abu Toma and release him. Before departure and through an interpreter, Behenna told A.M. that they would talk later and that Behenna wanted three pieces of information from him. Behenna concluded by saying "If I don't get that information today, you will die today." At trial, Behenna claimed he was only trying to scare A.M.

Behenna's platoon traveled through Abu Toma without releasing A.M. He ordered the platoon to take a desert route back to their base because he wanted "to talk to [A.M.] in a remote, secure location." When Behenna found what he thought a good location, he ordered his platoon to stop. With his interpreter, Behenna retrieved A.M. from his PSG's vehicle. He asked the PSG if he had a thermite grenade. The PSG did not at that time, but later returned with one.

Behenna took A.M. to a deep railroad culvert over 100 meters from where the platoon convoy was stopped. He then engaged in the actions described in my earlier post: first pointing his weapon at and then shooting A.M. twice.

The interpreter testified that he did not see exactly what happened, but that he believed A.M. was still seated when the first shot was fired. The PSG moved toward the culvert after the first gunshot and saw the muzzle flash of the second. When the PSG reached the culvert, he testified that Behenna ordered him to throw a thermite grenade, which the PSG did. Behenna then told the PSG to take care of the clothes.

The autopsy revealed that the gunshot wound to A.M.'s head entered the right temple and came out the left side of his head on a level trajectory. The chest wound was under the right arm and also exited near the spine on a level trajectory.

After returning to the base with his platoon, Behenna asked the PSG if he was "cool." The PSG indicated he was. Behenna also discussed the difference between the moral and legal right to kill.

The interpreter later asked Behenna why he shot A.M. Behenna said it was because A.M. was involved in planting explosives. When two soldiers in the mess hall asked Behenna if he shot A.M., Behenna said that he had because he felt his platoon was in danger that night. Behenna also stated he would do it again and did not feel bad about it because he had lost two men.

At trial, Behenna claimed he shot A.M. because he thought A.M. was reaching for his weapon. He insisted that despite his earlier words and actions, he never intended to kill A.M., only to scare him.

By convicting Behenna of murder, the court-martial panel must have concluded his testimony was unreliable. Given the testimony of the other witnesses, it is easy to understand why.

To summarize, the evidence admitted at trial established that without lawful authority, Behenna assaulted an Iraqi civilian and later threatened that detainee--who had been cleared for release--with death if he did not provide certain information. Later, with his platoon watching and waiting, Behenna violated an order to release the detainee and instead took him to a remote location out of the platoon's sight.

In the presence of an interpreter and his PSG, Behenna threatened the detainee again, forcibly removed the detainee's clothing (ordering the PSG to help), and, even though the detainee offered no physical resistance, threatened a naked, docile detainee with a loaded gun. Behenna himself was in full battle gear, including his helmet, M-4 rifle, and Glock pistol. Behenna then shot the detainee twice, once in the right temple.

Behenna later justified his actions to his PSG, the interpreter, and to two soldiers in the mess hall using language consistent with revenge rather than self-defense. To be clear, even if it mattered as a moral or legal matter, the record does not establish that Behenna's beliefs about A.M. were accurate. Although there was plenty of reason for suspicion, there was apparently no direct information or evidence that A.M. was a terrorist or insurgent, or otherwise actually possessed the information Behenna sought.

Behenna's behavior was totally unacceptable conduct for any military officer. Leaders cannot claim authority to violate orders and laws based on their understanding of situational morals or ethics. They cannot act as judge, jury, and summary executioners when the law and unit policy require a different process. Leaders must set an example of honorable conduct, especially in battle.

This is why the former military officials stated that his actions were a "serious breach" of military discipline and required appropriate punishment. Through his actions, Behenna taught his subordinates that ignoring orders and the law is permissible when, in their individual view, it is the morally or ethically right thing to do.

Behenna's pardon sends a similar dangerous message that threatens good order and discipline. This is not the first time this President has indicated that he will support troops who face criminal sanctions for improper battlefield behavior so long as he agrees that their actions were justified or appropriate. Coming from a president who repeatedly stated that he thinks torture works and that the family members of terrorists should be killed, this is a serious concern. A pardon for clear battlefield misconduct undermines the authority of commanders who are responsible for controlling the actions of their troops in battle.

Vice Admiral Mark Norman -- former Vice Chief of the Defence Staff -- cleared of charges

The Crown stayed  the Breach of Trust charge against Vice Admiral Mark Norman, former Vice Chief of the Defence Staff (VCDS), following an RCMP investigation into the leak of Cabinet Confidences related to the leasing of a supply vessel from the Canadian industry.

The Director of Public Prosecutions, Kathleen Roussel, noted that the Crown could not prove beyond a reasonable doubt that VAdm Norman's conduct in this case amounted to a "serious and marked departure from the standards expected of a person in his position of trust" and therefore there was no reasonable prospect of conviction. See article by CBC News.