Sunday, January 20, 2019

Pakistan's every-two-years kabuki

The political shadow-boxing continues in Pakistan over whether the country will give military courts another two-year lease. The armed forces public relations unit claims that giving their courts power to try civilians isn't their idea; it's all up to the civilian government. [Ahem.] The Pakistan People's Party seems to be opposing renewal, but another opposition party may be leaning the other way. What logrolling concession would seal the deal for that party? The government has a thin majority in Parliament but needs a two-thirds vote to amend the Constitution again.

The drama continues.

Thursday, January 17, 2019

Chicane de clochers -- parochial squabbles

Earlier today the National Post posted an article titled “Canadian military claimed a report didn’t exist -even though it ‘clearly’did.”  The report was critical of the actions taken in 2017 by the Judge Advocate General, Commodore Geneviève Bernatchez and her senior staff.


FREEDOM OF INFORMATION
As an author of a legal text on federal FOI matters, I normally keep abreast of such matters. To that end, in 2017 , I personally generated several FOI requests to National Defence Headquarters (NDHQ) to illuminate this situation. A review of the several FOI-disclosed records confirmed my original instincts; what we have here is an overblown ‘chicane de clochers” or parochial squabbles gauchely disguised as an affront to the FOI.

            Bizarrely, this issue surfaced in 2017 when the newly appointed JAG was on a short summer vacation leave, only days after assuming the duties of her new office. Most oddly, the complaint was filed with the Chief of the Defence Staff (CDS) who has absolutely no corporate responsibility for FOI matters. The complaint should have been directed either to the Information Commissioner  of Canada or the Director of Access to Information and Privacy (DIAP) at NDHQ who each have legal responsibility for the operation of the FOI.

              Better yet, a well-meaning person would have waited a week or so for the return of the JAG to inquire. 

             Instead, deliberately or not, a most uncommon procedure causing maximum embarrassment and damage to the senior management team at NDHQ at initiated. Incredibly, that immediately generated a police investigation which was conducted by a RCMP Investigator attached to the National Investigation Services (NIS)Really?

The document requested was the draft of an internal audit of the Canadian court martial system that had been conducted by JAG officers  in the first place.  A reasonable person would think, that the JAG was perfectly entitled to review that draft prepared by her staff before it was published. Particularly so since the JAG was already on the public record noting that the draft audit report was going to be published. However, in accordance with the rules,  she first had to have it translated into the French language.  

           My own review of the FOI - disclosed documents made it quite clear that in its communication with the DIAP, the Office of the JAG noted that the said audit report could not be provided at that very instant because it was “still in production”.  Fair enough.

Not surprisingly, there were likely miscommunication between the Office of the JAG, the DIAP, and ultimately, the FOI requestors in July 2017 There may also have been differences of opinions in interpreting the Access to Information Act.  It is not unusual for such things to happen at the height of the summer leave season. But this situation is a far cry from constituting an offence under the Access to Information Act let alone against the Criminal Code of Canada.   It is not even close. Instead, this matter is more about very malcontent individuals who were not pleased with a lady being appointed as the new JAG.   

           Clearly, the action taken was a clear abuse of process in total disrespect for the establsihed complaint regime contained in the FOI.


That is most disturbing and is inappropriate in any sector of the public service, particularly so from members of the officer corps in whom the State has reposed special trust and confidence in their loyalty, courage and good conduct,

            As Cicero said: "Cui bono!"

ICJ Briefing Paper: Military Injustice in Pakistan

The International Commission of Jurists has issued a January 2019 version of its briefing paper, Military Injustice in Pakistan. It's available here. The paper calls on Pakistani authorities to "[e]nsure the jurisdiction of military courts to try civilians is not extended beyond 30 March 2019."

Wednesday, January 16, 2019

Sierra Leone military judge: no photography in the courtroom

The military judge presiding over a long-running Sierra Leone court-martial has cautioned the media not to take photos of the proceedings. Details here. “When you look at the photo in the newspaper, it seems as if the accused are in a cave and seem to be under massive pressure and it is sending a bad signal.” “As you can see, the accused are not under pressure at all. They are well seated and presumed to be innocent unless the Court proves them otherwise based on what the prosecution have as evidence.”

Which system should try these cases?

Two GIs suspected of conspiring to murder a third, while on leave. Details here.

Off-base arson of an apartment building. Details here. Excerpt:
On Feb. 10, 2016, civilian authorities arrested and charged [YN2 Charmaine K.] March with arson.

But on June 19, 2018, state officials dropped the charge against her, according to Virginia court records.

The Navy picked up the case and charged March on Aug. 8 with violating Article 126 of the the Uniform Code of Military Justice.

Tuesday, January 15, 2019

A plea to reform Pakistan's regular justice system

Mosharraf Zaidi has written an eloquent op-ed arguing against another extension of Pakistan's military courts' power to try civilians. Excerpt:
The cost of military courts is continued and unending rot and decay in the country’s courts system. The benefit of military courts is a speedy trial and conviction and hanging of less than five dozen terrorists.

In what universe is this a bargain that makes any sense? Military courts are not an effective killing machine – our police and armed forces have done and continue to do a remarkable job of finding and killing terrorists. The availability of military courts offers no compelling basis for their continuance.

Now imagine a Pakistan without military courts. I would fully expect that in the absence of these courts, a parade of security and law-enforcement officials would express anxiety about the potential freedom of the terrorists that they capture and put in jail, in anticipation of trials that take too long to happen, in courts whose judges lack the stomach to announce death penalties for jet black terrorists.

The solution to this legitimate anxiety would be to reform the courts. Maybe wholesale reform would be too difficult. But reforming and reframing the anti terrorism courts system is a much more fathomable domain. Even narrower would be the provision of court premises that blind convicts to the identities of judges. Narrower still, the enactment of legal provisions for high security and higher pay for judges and court staff who have to take higher risk.

All of these solutions would strengthen Pakistan, whilst contributing to the efforts of our soldiers and spies in our continuing war with terrorists. It is time for the military courts to end.

We're 5!

Yesterday Global Military Justice Reform turned five years of age. The blog has had 4687 posts, 632 comments, and 632,096 hits from readers in 185 jurisdictions. Happy Birthday to Us here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza.

Stay denied in Beaudry case

The Supreme Court of Canada has dismissed the government's motion for a stay pending appeal in R. v. Beaudry, No. 38308. The Globe & Mail has a report on the ruling here. "A five-judge panel rejected military prosecutors’ request for a stay on Monday after the prosecution tangled with defence lawyers over whether discipline within the Canadian Forces would suffer if September ruling were allowed to stand."

Full disclosure: the editor has applied for leave to intervene in Beaudry and the companion case of Stillman v. R

Sunday, January 13, 2019

Human Rights Commission of Pakistan speaks out on military courts extension proposal

The following press statement has been released by the Human Rights Commission of Pakistan:

The Human Rights Commission of Pakistan (HRCP) has expressed grave concern at the government’s decision to table a bill in favour of extending the tenure of military courts, which were otherwise due to end their term in January this year. In a statement issued today, HRCP has categorically stated that ‘the institution of military courts is an anomaly in any democratic order that claims to uphold the fundamental rights and freedoms of its citizens.

‘It is the state’s duty to uphold the rule of law in a manner that ensures that every citizen is entitled to due process and a fair trial. Equally, it is the state’s duty to uphold the rule of law to ensure the security of its citizens. These are not mutually exclusive obligations. Moreover, there is little evidence to show that military courts have succeeded in increasing respect for the rule of law. The perception of ‘speedy justice’ is no substitute for rooting out the militant extremism that led to the institution of these courts in the first instance or indeed for taking the time to train and equip domestic judicial and police mechanisms that are, and ought to remain, responsible for maintaining civilian law and order under a civilian mandate.

‘To argue against military courts is not to undermine the horrific circumstances under which they were set up, but the incidence of terrorism cases has decreased since the Army Public School massacre in 2014 – this implies there is no justification for allowing military courts to continue. HRCP also remains troubled by the secrecy surrounding military court proceedings, the extremely high conviction rate of these courts and the possible means used to achieve such rates. All these are against the norms of justice. The recent Peshawar High Court judgment, which set aside the convictions of over 70 persons tried in military courts, underscores these concerns.

‘Should the government succeed in extending the life of military courts, it will run the serious risk of undermining attempts to reform the criminal justice system – measures that are sorely needed, especially among the lower courts. Extending the life of military courts also contravenes Article 14 of the International Covenant on Civil and Political Rights, to which Pakistan is signatory. In the long term, outsourcing justice is not the answer.’

Dr Mehdi Hasan, Chairperson

Saturday, January 12, 2019

Decriminalization of homosexuality and adultery: the impact on the military in India

In a press conference, India’s Army Chief recently made a statement on the military being conservative in the context of the decisions of the Supreme Court of India decriminalizing homosexuality and adultery.

I have addressed the controversy in my opinion piece for The Quint, that can be accessed here in full.

Friday, January 11, 2019

High burden of proof in Sierra Leone court-martial

The judge presiding over a high-profile court-martial in Sierra Leone has said that the prosecution must prove the accuseds' guilt beyond the 99.99% mark. Details here.

No room for adultery or homosexuality in Indian Army

“The Army is conservative. We have not modernised, neither westernised. We can still take action against people, but we will not allow this to perpetrate in the Army. This cannot be allowed to happen. It is a very serious matter.”

General Bipin Rawat, Chief of Army Staff, Indian Army, speaking about homosexuality and adultery 

Chief Gallagher's case and commander-centric military justice

Former New York police commissioner Bernard B. Kerik and Manhattan private practitioner Timothy C. Parlatore have written this critique of commander-centric charging under the Uniform Code of Military Justice in the context of the case of SEALs Chief Petty Officer Edward Gallagher. Making common cause with Sen. Kirsten E. Giilibrand (D-NY), they write:
. . . A feature, unique to U.S. military courts alone, whereby the commander exercises almost unfettered control over the criminal prosecution of his or her subordinates. 
Imagine in any other context, a person’s employer being the sole decision maker of whether they will be charged with one or more criminal offenses. Imagine further, that this employer is not a lawyer and has no experience as a criminal investigator. While they are advised by lawyers and investigators, ultimately, they can choose to reject that advice and either drop charges against someone who appears to be guilty, or worse, pursue charges against an employee, even though investigators have determined that there was no evidence of guilt. Imagine even further that the prosecutor and all the members of the jury also work for this same employer. Sound far-fetched? It is not; it has been happening for hundreds of years in the United States military.
Under the Uniform Code of Military Justice, decisions to prosecute felony cases are not made by professional prosecutors, but rather by Admirals and Generals, whose primary concern is in the best interest of the unit, and quite often, in the best interest of their own careers. Oftentimes, the accused, the witnesses, or even the victim, all work for that same General or Admiral. In their role of overseeing criminal prosecutions, these Generals or Admirals are called the “convening authority.”
The authors' claim that commander-centric charging is unique to the UCMJ is incorrect. That it should be abandoned--as numerous other democratic countries have done--is not. Query: will conservative federal legislators add their support to Sen. Gillibrand's proposed Military Justice Improvement Act? Rep. Duncan D. Hunter (R-CA) has written to President Donald J. Trump concerning Chief Gallagher's conditions of pretrial confinement. Rep. Hunter himself is facing federal criminal charges. (He was re-elected in 2018.)

Wednesday, January 9, 2019

Independent investigations are needed (Liberty)

“If the committee is serious about wanting to protect British soldiers, it will recommend that in future conflicts the most serious allegations must be properly investigated at the outset by a police force wholly independent of the forces.”

Emma Norton, of Liberty, concerning a recent House of Commons defense select committee hearing, as quoted here by The Guardian

Tuesday, January 8, 2019

Possible obstacle to another extension in Pakistan

This report in Dawn suggests that two opposition parties may withhold their (necessary) support for a further extension of Pakistan's military courts' power to try civilians. By one view, the power expired yesterday.

Monday, January 7, 2019

185

Today we had our first known reader in Kosovo. That makes hits from 185 jurisdictions.

Not military justice, but . . .

Woman army officer in India takes Ministry of Defence to Supreme Court; Demands Her “Fundamental Right to Tend to Her Child”

A serving lady officer of the Indian Army has moved the Supreme Court against the Ministry of Defence and her superiors for being deprived of her fundamental right to tend to her infant child. The mother of a two-year-old, the lady officer is currently posted at the Jodhpur Base of the Indian army along with her husband who is also a serving army officer. She is a part of the Judge Advocate General's department of the army performing the duties of officer in-charge of the legal cell. Her husband is posted as the deputy judge advocate general at the same headquarters.

The lady officer was detailed as “Judge Advocate” in November 2018, in a court martial at the Regimental Centre at Kamptee, Nagpur, over 1000 km away from her of place of duty. She performed her duties from December 5 to December 18 during which her husband had to take leave from work to take care of their young child. On her return, she was asked to report back to Kamptee once again.

After receiving the second order, the officer made a verbal request to the superior officer to reconsider the same as she would have had to take her child with her to Nagpur, without any direct connectivity by air. According to officer when her repeated requests were rejected, she was forced to knock on the doors of the top court. She goes on to allege that there has been an “abuse of power” by her superior officers due to which they have been “highly inconsiderate” with her requests.

In her petition, the officer alleges that being deployed for a court martial is accompanied with an “uncertainty of conclusions”, by which she means that it can’t be predicted whether the court martial will last “two days, a week or six months”. Further, “most of these places do not provide the basic facility of a crèche for women officers.”

In her petition, the lady officer relies on the National Policy for Children issued by the Ministry of Women and Child Development in 2013. According to officer, the National Policy, safeguards the interest and fundamental rights of the children along with their mothers irrespective of the fact that they may be a member of the armed forces. She has urged the Supreme Court to issue directions to the Ministry of Defence asking them to implement the National Policy for Children and provide necessary security and protection for children of lady officers, like her.

The case may come up for hearing in the Supreme Court very soon.

Yet more on bread and water

The New York Times Magazine adds some interesting history to the use of bread and water (recently abolished as a punishment) in this article. 

Saturday, January 5, 2019

The Whelan case

You may have noticed that the ex-Marine with multiple nationalities who is currently being held on spying charges in Russia was convicted 10 years ago in a U.S. special court-martial. Here is the text of the decision of the U.S. Navy-Marine Corps Court of Criminal Appeals in United States v. Paul N. Whelan, No. 200800152, 2008 CCA LEXIS 688 (N-M. Ct. Crim. App. 2008) (per curiam):
A military judge sitting as a special court martial convicted the appellant, consistent with his pleas, of attempted larceny, three specifications of dereliction of duty, making a false official statement, wrongfully using another's social security number,[1] and ten specifications of making and uttering checks without having sufficient funds in his account for payment, in violation of Articles 80, 92, 107, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 892, 907, and 934. He was sentenced to 60 days restriction, reduction to pay grade E-4, and, a bad-conduct discharge. The convening authority approved the sentence as adjudged.[2]

We have carefully considered the record of trial, the appellant's assignment of error alleging that the approved sentence is inappropriately severe, and the Government's response. We conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantive rights of the appellant was committed. Arts. 59(a) and 66(c), UCMJ. We specifically find that the sentence is appropriate for the offender and his offenses. United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005); United States v. Healy, 26 M.J. 394, 395-96 (C.M.A. 1988); United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982).

Conclusion

Accordingly, we affirm the findings and the sentence as approved by the convening authority.
_____
1 The appellant was charged under Article 134, UCMJ, for a violation of Title 42 U.S.C. § 408(a)(7)(B). 
2 The military judge recommended that the convening authority suspend the bad-conduct discharge.
The opinion is unpublished and nonprecedential. Staff Sergeant Whelan appears not to have sought discretionary review by the U.S. Court of Appeals for the Armed Forces. 

Reema Omer on Pakistan's military courts

Reema Omer of the International Commission of Jurists has written this excellent column for Dawn about the proposal to extend, yet again, the power of Pakistan's military courts to try civilians (contrary to international human rights requirements). One disturbing aspect on which observers may not have focused is the government's position that the current extension expires two years from passage rather than two years from its effective date (which was retroactive by three months). In other words, the authorities have, through some fancy footwork by the lawyers, simply helped themselves to an extra three months:
Despite earlier promises that military courts were only temporary and ‘exceptional’, after the expiration of the 21st Amendment, on March 31, 2017, parliament enacted the 23rd Amendment and amendments to the Army Act to renew military courts’ jurisdiction over civilians. The amendments were given retrospective effect from Jan 7, 2017, and were due to lapse two years after their date of ‘commencement’. According to the law ministry, the expanded jurisdiction of military courts will expire on March 30, 2019 (even though earlier reports suggested the amendments will expire on Jan 6, 2019) — two years after the date of ‘operation’ of the 23rd Amendment).
Ms. Omer also writes:
Military courts have targeted the Constitution’s fundamental principles: separation of powers, independence of the judiciary, and protection of fundamental rights. In every case where information is available, accused persons were denied the right to counsel of choice; they were denied a public hearing; they were denied the right to appeal before a civilian court; and nearly 98 percent of convictions were based on ‘confessions’ obtained without adequate safeguards against torture or other ill treatment. The security apparatus also failed to disclose the exact charges against the accused or provide convicts copies of a judgement with evidence and reasons for the verdict.

Friday, January 4, 2019

2019 continuing legal education program

U.S. Court of Appeals
for the Armed Forces
Mark your calendar: the U.S. Court of Appeals for the Armed Forces continuing legal education and training program will be held on March 6-7, 2019 at the American University Washington College of Law. The schedule of events is not yet posted on the court's website.

Massachusetts has a new military justice code

Gov. Charlie Baker of Massachusetts has signed into law a bill that includes the Massachusetts Code of Military Justice. Mass. Acts of 2018 ch. 369. Article 2(b) prescribes the subject matter jurisdiction of the Commonwealth's title 32 courts-martial:
Subject matter jurisdiction shall be established if a nexus exists between an offense, either military or non-military, and the state military force. Courts-martial have primary jurisdiction of military offenses as defined in article 1. A civilian court has primary jurisdiction of a non-military offense when an act or omission violates both this code and local criminal law, foreign or domestic. In such a case, a court-martial may be initiated only after the civilian authority has declined to prosecute or dismissed the charge, provided jeopardy has not attached. Jurisdiction over attempted crimes, conspiracy crimes, solicitation and accessory crimes must be determined by the underlying offense.
The first sentence means that O'Callahan v. Parker is the law for Massachusetts courts-martial, not Solorio v. United States. The new statute does not provide fixed terms of office for military judges. Under Art. 67A, court-martial appeals lie to the civilian Massachusetts Appeals Court.

Pretty proud

"We're pretty proud that our commanders are really at the center of this," she said, "and it just gives them some more tools for good order and discipline."

Col. Sara Root, chief of the Army's Military Justice Legislation Training Team, commenting on the latest changes to the Uniform Code of Military Justice and the Manual for Courts-Martial

Click here for an Army News Service summary of the changes. George III would be "pretty proud" to see that, centuries after his 1774 Articles of War, American commanders continue to exercise such powers as deciding who should be charged for what and at what level of severity, picking panel members, and negotiating pretrial agreements. Or would he?

Thursday, January 3, 2019

Reporters Committee guide

The Reporters Committee for Freedom of the Press "guides archive" includes an 8-page Reporter's Guide to Military Justice. That's the good news. The bad news is that it's from the summer of 2006. Time for an update to reflect the last decade's developments, including enactment of the Military Justice Act of 2016 and issuance of the Manual for Courts-Martial, United States (2019 ed.)?

Implications of the Golsteyn case

U.S. Army JAG Corps Major (P) Dan Maurer writes (in his personal capacity) here for Lawfare on military justice and policy issues surrounding President Donald J. Trump and the case of Major Mathew Golsteyn.

Wednesday, January 2, 2019

CAAFlog's Top 10

Like the ball dropping at Times Square, a familiar ritual this time of year is CAAFlog's announcement of the top 10 military justice stories of the preceding year. They're coming out now and worth a look for a sense of major current developments in U.S. military justice. To paraphrase a certain credit card issuer's incessant ads, what's on your list?

Human Rights Committee disapproves trial of civilians in Belarusan military court

On March 26, 2018, the UN Human Rights Committee issued its "Views" under the Optional Protocol to the International Covenant on Civil and Political Rights in Tyvanchuk v. Belarus, CCPR/C/122/D/2201/2012. The case addresses, among other issues, the permissibility of trying civilians accused in a military court of evading customs duties. Excerpt:
7.2 The Committee notes the authors’ allegation that, on 26 October 2004 and 5 August 2005, they were tried and found guilty under the Criminal Code by Minsk Military Court, following the decision by the President of the Supreme Court to transmit their case to a military court, even though none of them were military personnel. While the Covenant does not explicitly prohibit the trial of civilians in military courts, it does not provide for it either. The Committee notes that the trial of civilians in military courts raises serious problems as far as the equitable, impartial and independent administration of justice is concerned. Therefore, in order to guarantee the right to a fair trial, State parties have in general an obligation to take all measures necessary to prohibit the trial of civilians in military courts. In the present case, the State party has not contested the fact that the authors were civilian personnel. The Committee concludes that the trial and sentencing of the authors by a military court violated article 14 (1) of the Covenant. (Footnotes omitted; emphasis added.)
9. In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide individuals whose Covenant rights have been violated with an effective remedy in the form of full reparation. Accordingly, the State party is obligated to, inter alia, provide the authors with adequate compensation. In the present case, the State party is under an obligation to, inter alia, quash the decisions of Minsk Military Court dated 26 October 2004 and 5 August 2005, and subsequent court decisions based on them, and provide the authors with a new trial, offering all the guarantees set out in article 14 of the Covenant. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future.
10. Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official languages of the State party.
 The case took the Committee over six years to adjudicate.

Tuesday, January 1, 2019

Summary executions in Somalia

There has been a summary execution of six people in Somalia. The details can be found in this disturbing Voice of America article.
While executions in Somalia are nothing new, the nature of these latest executions, of taking militant prisoners out of jail and executing them in public without a military court trial, has drawn the attention of human rights activists in Somalia. Al-Shabab has been known not to allow defendants due process before carrying out executions.

"We are criticizing such executions carried out by the military, which are trying cases beyond their jurisdiction and failing to give defendants a fair legal process," said an activist in Bardhere, who asked for anonymity, fearing reprisals.

A new year begins with reform in Nepal

Setopati, an online news outlet, reports that change is afoot in Nepal's military justice system. According to a January 1 article:
The government has decided to cut powers of the military court of Nepal Army. The government has included the provision of trying cases of torture and disappearance in civil courts as per the amendments brought in some acts to bring them in line to the new constitution
Cases of torture and disappearance will now be heard in civil courts instead of the military courts. 
The Nepal Army Act 2006 already includes a provision of trying incidents of murder and rape in civil courts. But cases of corruption, theft, torture and disappearance had to be heard by a team including deputy attorney general of the government, chief of the legal department of Defense Ministry, and Judge Advocate General of the rank of at least major as per the act. 
The government has removed the terms torture and disappearance from the provision of the act in the amendment.