Rwanda installs two new military judges

Rwanda has installed two new military  judges, according to this report in Taarifa. "Lt Col Bernard Rugamba Hategikimana had sworn-in as the Vice-President of the Military High Court while Lt Col Innocent Nkubana had sworn-in as the Judge in the Rwanda Defence Force (RDF) Military High Court."

White supremacists in uniform

The New York Times today has this story by Dave Philipps on the history of white supremacism in the U.S. armed forces, sparked by the recent arrest of a Coast Guard Headquarters lieutenant. The article notes: "Though critics say the military is not doing enough to root out extremism, it does much more now than it once did. Significant change came in the 1980s, when the military began to see right-wing extremists as a national security issue and began to impose new restrictions, usually in reaction to egregious episodes."

Dateline: Ottawa

Hon. Marie Deschamps

The CBC's Murray Brewster writes here on the slow progress the Canadian Armed Forces are making towards implementing recommendations by former Supreme Court Justice Marie Deschamps. Excerpt:

One of Deschamps' other recommendations — still considered a work in progress — is to make the sexual misconduct response centre fully independent and able to track and evaluate the military's efforts.

It's something defence department officials have resisted, but Emma Phillips, a Toronto lawyer who acted as counsel to the Deschamps commission, said Tuesday's report shows DND is backtracking and the centre will now be independent.

"It's unfortunate that it's taken four years for that model to be implemented, but at the same time I'm glad that it's finally happening," said Phillips.

Partial stay in Stillman case

Chief Justice B. Richard Bell of the Court Martial Appeal Court of Canada has issued a partial stay of the sentence in Stillman v. H.M. The Queen. His order and reasons can be found here. The case is to be argued next month before the Supreme Court of Canada.

Too sweet a pretrial?

In the past, questions have been raised in Israel about excessive leniency towards offenses by IDF senior officers, leading on at least two occasions to decisions by the Supreme Court asserting authority to review the exercise of prosecutorial discretion. Against that backdrop, consider the pretrial agreement described in this Jerusalem Post article.

Race to (or from) the courthouse?

Two big things are going on right now with respect to Pakistan's military courts. First, the constitutional amendment permitting them to try civilians will expire in a few weeks. Second, the International Court of Justice is weighing India v. Pakistan (Jadhav Case), in which India has sought to make the defects in Pakistan's military courts a major issue even though the case arises under the Vienna Convention on Consular Relations. The ICJ is a far cry from a "rocket docket," but if the judges are sufficiently dismayed by Pakistan's use of secret military courts, might they issue an interim ruling before the Pakistani Parliament votes on a further extension of those courts? If so, might that affect legislative action to again amend the Constitution, which requires a 2/3 vote of each chamber?

Men-only draft registration invalidated

A federal district judge in Texas has issued a declaratory judgment finding that the current men-only selective service registration requirement is unconstitutional as a denial of Fifth Amendment equal protection. The decision is National Coalition for Men v. Selective Service System (S.D. Tex. Feb. 22, 2019).

The plaintiffs did not seek an injunction. Query: does the decision mean that women will now have to register (as the plaintiffs' press release asserts) or will men no longer have to do so?

Light sentence in Swiss court-martial

A Swiss military court has sentenced a former sergeant who went to Syria to fight ISIS to a 3-month suspended sentence and a 500-franc fine. He's appealing the sentence. Details here. He might also want to argue that it was improper as a human rights matter to try him, as a civilian, in a court-martial.

Two lessons of the Briggs case

U.S. Court of Appeals
for the Armed Forces

Today's unanimous decision in United States v. Briggs, 78 M.J. __ (C.A.A.F. 2018), is noteworthy for a variety of reasons. Here are two:

1. Briggs is the "Mother of All Grostefons." Grostefon issues are those personally raised by the accused and not by appellate defense counsel. They are not uncommon per se, but it is fairly unusual for the United States Court of Appeals for the Armed Forces to grant review of Grostefon issues. It is exceedingly rare for such an issue to bear any actual fruit for the accused. That, however, is what happened in Briggs, where a conviction for rape was reversed and the charge and specification dismissed with prejudice. Even more unusually, the Court of Appeals, having granted Lt Col Michael J.D. Briggs leave to file his Grostefon statute of limitations issue late, it affirmatively denied review of that issue -- only to have the Supreme Court remand for reconsideration following its decision in Ortiz v. United States, 138 S. Ct. 2165 (2018). See Abdirahman v. United States, 139 S. Ct. 38 (2018). Offhand, no other case comes to mind in which the Supreme Court has involved itself with a Grostefon issue. If you know of one, please post a comment (real names only, please).

Moral: Clients should not be shy about raising Grostefon issues. You never know.

2. The Office of the Solicitor General has long and repeatedly taken the incorrect position that only issues as to which the Court of Appeals has granted review, rather than -- as the applicable certiorari provision states -- cases in which it has done so. See 28 U.S.C. § 1259(3). The Supreme Court has never squarely addressed this question, and it has not been possible to tease out of its many orders on petitions for writs of certiorari in court-martial cases whether it was denying certiorari (as it does nearly all the time) on the merits or because it believed it lacked jurisdiction over ungranted issues in granted cases. Briggs sheds useful light on this because the Court of Appeals, as noted above, explicitly denied review of the statute of limitations Grostefon issue but the Supreme Court granted, vacated and remanded for further consideration in light of United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018). If the Justices had agreed with the Solicitor General's cramped "granted issues" reading of § 1259(3), the Supreme Court would not -- indeed, could not -- have taken that action because it would have lacked jurisdiction. The statute is still grossly unfair to military personnel and should be fixed, but -- if this reading of the Court's action in Briggs is correct -- at least the added fillip of the Solicitor General's parsimonious interpretation of the current text seems not to have carried the day.

Moral: Appellate defense counsel should have no reluctance to seek certiorari with respect to any issue in a case decided by the Court of Appeals regardless of whether that court granted the issue, denied it, or disregarded it, so long as it granted some issue (even if -- as happens from time to time -- all it did was correct some formal or administrative error).

Sir Cloudesley's riposte on jurisdiction over retirees

Admiral of the Fleet
Sir Cloudesley Shovell, RN

Over at another blog, the late Sir Cloudesley Shovell has posted this spirited response to a blog post by alive-and-kicking retired Maj Gen Charlie Dunlap:

Cloudesley Shovell says:
February 21, 2019 at 10:03 PM 
I remain unpersuaded by Maj. Gen. Dunlap’s article.

One could argue until the cows come home about whether retirees were contemplated to be part of the “land and naval forces” in Art. 1, sec. 8 of the Constitution.  One could also, in the manner of angels dancing on the head of a pin, argue whether retiree jurisdiction is a necessary and proper exercise of the power to provide for the government and regulation of said land and naval forces.  I’d say that discussion is best had in a dimly lit bar, sitting in leather chairs, smoking cigars, and sipping some fine single malt scotch whisky, neat, with perhaps a few drops of water to really open it up.  Next time I’m in Raleigh-Durham, I’ll have to invite Gen. Dunlap (or does he now prefer Professor Dunlap?) to discuss the matter, or anything else that may arise.  But until then, a few comments.

The matter of retiree jurisdiction is a pure policy choice.  It has nothing to do with the actual good order and discipline of the armed forces, and is exercised only in the rarest of circumstances, either to get a second bite and the apple after the “wrong” result in another forum (hello, Hennis), or in response serious felonies that offend the puritan sensibilities of the senior military leadership.  Sex crimes, that is.  (Gen. Grazioplene; Adm. Hooper way back in the day, 1956 or so (sodomy); Larrabee; etc.)  Disclosing classified info to your mistress ain’t enough (Petreaus), nor is fraud and bribery (Adm. Gilbeau convicted in federal court in the Fat Leonard case, retired and collects retired pay, as do other officers convicted in that matter).  Lying to the FBI is insufficient as well (Gen. Flynn). 

So what arguments does Gen. Dunlap make in support of unfettered jurisdiction over retirees of a regular component of the armed forces entitled to pay?  Three things, apparently.  First, the voluntary nature of the continuing relationship between retiree and the armed forces.  Second, tied closely to the first, taking the money.  Third, a misty-eyed appeal to God Bless the USA patriotism, saying that regular component retirees would be insulted by a court ruling that they are no longer subject to the UCMJ.

UCMJ Art. 2(a)(4) authorizes the exercise of jurisdiction not only over those retired for years of service, but in fact over any retiree of a regular component, regardless of the basis for retirement.  A hypothetical–a draftee is inducted into a regular component of the armed forces, completes basic training, gets shipped off to a war zone, and is promptly severely injured and retired for medical reasons after less than six months of service.  Does the fact that he now “voluntarily” accepts retired pay due to his injuries sufficient for lifetime jurisdiction?  Really?  Let’s assume said draftee is injured alongside a young officer who was commissioned into a reserve component.  Said young officer also suffers a severe injury and is medically retired.  But hey, he’s in a reserve component, so no jurisdiction.  Why the distinction?  What is the policy reason?

Consider a regular component retiree who retires for years of service.  Consider a reserve component retiree who retires for years of service.  Both went through basic training at the same time (or were commissioned from the same source), served in the same units, the only difference being that regular guy went to 20, and reserve guy got out at 14 years, and finished his service in the reserves.  Both belong to the VFW, attend all the parades, cry when singing the National Anthem, and both would be insulted if a court considered retirees to no longer be part of the armed forces.  Heck, make them identical twins.  Why jurisdiction over regular guy, but not reserve guy?  Could it possibly be, at the time the UCMJ was drafted not long after WWII, that all those 90-day wonder reserve officers now serving in Congress or in important staff or government positions recoiled at the idea of lifetime UCMJ jurisdiction, as opposed to all those regular “ring-knocker” officers they encountered?  Who knows?  I sure don’t.  I’m just spit-balling (JFK, LBJ, Nixon, and Ford were all Navy reserve officers in WWII).

I found his appeal to patriotism particularly insulting to reserve retirees.  Does Gen. Dunlap still subscribe to the notion that the regular component and the reserve component are two different worlds?  I thought such notions had been put to rest after Sep 11 and the widespread recall of reservists.  Why would a regular retiree be insulted by the severing of UCMJ jurisdiction, but the many reserve component retirees are not?  Are not those in the reserves just as patriotic as their regular component brethren?

Once again, this is all policy.  There’s no inherent res ipsa basis for jurisdiction over retirees.  Voluntariness has nothing to do with it.  Patriotism has nothing to do with it.  The “subject to recall” thing is a total canard (how many regular component retirees were involuntarily recalled compared to reserve component involuntary recalls?)  It’s all a matter of “you’re taking our money, you play by our rules.”  If that’s all it is, why the regular/reserve distinction?

I’m asking questions because I don’t know the answer.  I do know that as a policy matter, I’d terminate jurisdiction over retirees.  It’s got nothing to do with good order and discipline, and its exercise is subject to the pure unfettered discretion of some commander somewhere, and not any rational policy.  It’s also incredibly rare.  Existing federal and state jurisdiction over crimes is plenty sufficient.  If Congress is so concerned about military retirees collecting pensions after convictions for crimes, they can make forfeiture or reduction of said pension a collateral consequence of conviction of a qualifying crime.  UCMJ jurisdiction is unnecessary.

For those vanishingly rare circumstances where a military retiree’s criminal acts do actually affect the good order and discipline of the armed forces, Congress can provide for limited UCMJ jurisdiction, and require actual proof of real and material prejudice to good order and discipline, established through admissible evidence at trial, as Allan suggests above.

Kind regards,
CS

Disclosure: the Editor was one of the petitioner's counsel in Larrabee.

Time for a coffee break

The Military Chamber of the Supreme Court of Spain has upheld a disciplinary sanction imposed on a member of the Guardia Civil who disobeyed a sergeant's order to drive a patrol car because he was "too tired." Details here (in Spanish). The decision came four years after the offense.

At the Hague

India has argued in the International Court of Justice's Jadhav consular-access case that Pakistan should be ordered either to release Kulbhushan Jadhav or try him in a civilian court. A summary of India's closing argument appears here.

Why is this case in military court?

A former Swiss Army sergeant is to be tried by a military court for having joined an anti-ISIS militia in Syria, according to this report. Excerpt:

[Johan] Cosar who is now 37 is facing allegations that he undermined the defensive capabilities of the country by engaging in a foreign army, which is prohibited under Article 94 of the Swiss Military Penal Code. 

* * *

Cosar faces up to three years in prison under the military penal code. In similar cases, the military court has typically imposed financial penalties.

Human rights jurisprudence strongly disfavors the trial of civilians by military courts.

Carol Rosenberg joins The Times

Carol Rosenberg

Carol Rosenberg, dean of the Guantanamo press corps, has joined The New York Times. Here's the Times's announcement.

Brava!

Big news on military related litigation from India (not exactly military justice, but . . .)

A report in The Hindustan Times is appended herewith, it is self explanatory. Also reported in The Times of India and The Tribune. 

Don't take your iPhone

Today's New York Times has this story about proposed legislation that would subject Russian military personnel to disciplinary action for using social media and personal tech in ways that compromise operational security. Excerpt:

Draft legislation proposes banning servicemen and reserve troops from posting anything online that would allow outsiders to glean their whereabouts or role in the military.

The bill, which was approved by lawmakers in its second of three readings in parliament on Tuesday, says the ban would cover photographs, video, geolocation data or other information.

It would also prohibit soldiers sharing information about other servicemen or the relatives of servicemen, while those who break the ban would be subject to disciplinary measures.

Good luck with that.

An objection in Cameroon

In this op-ed, Gérard Kameni explains that the current military trial of civilians violates the law of Cameroon and applicable international human rights norms.

Fiji to modernize military justice system

Efforts are afoot in Fiji to modernize the island country's outdated military justice legislation, as reported here. Global Military Justice Reform contributor Chris Griggs is heading a team of experts from New Zealand who will assist in the process. He comments:

"The military justice system in Fiji is like a car. At the moment you;ve got a very old car. Then you'll try to fix the car and eventually the car is beyond repair."

At present, the Republic of Fiji Military Forces are subject to the UK Army Act 1955 and the Queen's Regulations 1972. The new system will be "state of the art" and geared to Fiji's specific circumstances.

Certiorari denied in Larrabee

The Supreme Court of the United States today denied certiorari in Larrabee v. United States, a case that challenged the jurisdiction of courts-martial to try military retirees. (Full disclosure: the Editor was one of the attorneys for the petitioner.) This means the United States will remain out of step with human rights jurisprudence on the point as set forth in cases such as Cesti-Hurtado v. Peru and Palamara-Iribarne v. Chile.

What is to be done?

First, Congress should repeal Article 2(a)(4)-(6), Uniform Code of Military Justice, 10 U.S.C. § 802(a)(4)-(6). Failing that, as "[a] superior competent authority," the President should, as commander in chief and in accordance with R.C.M. 401(a), withhold from all subordinates the authority to dispose of charges for the "type of case" in which the accused is a retiree. And failing that, convening authorities should refuse to refer charges for trial when the accused is a retiree. Trial and appellate defense counsel for retirees who are tried by court-martial should continue to litigate the constitutional issue. (A denial of certiorari has no precedential value.) If the Supreme Court continues to deny certiorari in retiree cases (or if the United States Court of Appeals for the Armed Forces bars the door to the Supreme Court by itself denying discretionary review--a power it should not but does possess), collateral review should be sought by petition for a writ of habeas corpus under 28 U.S.C. § 2241 or by money claim under the Tucker Act.

Your thoughts?

Jadhav case hearing

India has stated its case before the International Court of Justice in India v. Pakistan (Jadhav Case). As this report notes, India contends that the military court that sentenced Kulbhushan Jadhav to death was not independent because its judges were military officers without legal training and lack security of tenure. Presumably Pakistan will return the compliment by pointing to deficiencies in India's own military justice system, including the nonlawyer retired senior officers who sit on the Armed Forces Tribunal and the country's failure to grant trial-level judge advocates fixed terms of office or the power to make binding rulings on questions of law. (Indian readers: please correct me if this is mistaken.) On the other hand, India does not prosecute civilians in courts-martial.

Canadian Observatory newsletter

This just in from Global Military Justice Contributor Major (Ret) Tim Dunne:

Introducing "The Observatory:" There is an information gap about the field of military justice, with only occasional articles in the news media when there is a high profile court martial or an announcement of a major event by the Minister of National Defence or the Judge Advocate General. This element of Canada's legal matrix has largely escaped pubic attention, a consequence of its obscurity and general relevance to the Canadian public.

It has also received scant attention by academics and, most importantly, by Parliamentarians, particularly in the last Parliamentary Session. And, with the exception of legal texts published by the Honourable Gilles Letourneau and Professor (Colonel) Michel Drapeau, there are no reference texts available to the judiciary, legal practitioners, or writers.

In some of the articles I have written on this subject I have described the Canadian military justice system as a medieval process which has not evolved as quickly as the Canadian legal environment which surrounds it. It most certainly has not kept pace with the abundant jurisprudence generated by the Charter of Rights and Freedoms. In fact, the Canadian military justice system increasingly stands separate and apart from the common law. Consider, for instance, that victims of crimes which are tried by military tribunals are presently exempted from the protections offered by the Canadian Bill of Rights for Victims of Crime. Any other person in Canada, citizens, residents, tourists, and visitors benefits from this legislation.

This is where "The Observatory" may be of some assistance in helping you understand our military's justice system which is mandated by the National Defence Act, Part III, which includes at its core the Code of Service Discipline (CSD).

Annual Report of the U.S. Court of Appeals for the Armed Forces

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

A really interesting document has been posted on the website of the U.S. Court of Appeals for the Armed Forces. It's the court's annual report for the year ending September 30, 2018. Unlike the earlier annual reports of the late unlamented Code Committee on Military Justice, this includes nothing from the Judge Advocates General. The charts are fascinating (at least to military justice junkies), showing a continuing decline in the court's docket but an increase in the time between filing of petitions for grant of review and oral argument. The time between boom and bang (filing of the petition and final decision) is the longest it's been since at least 2008. The petition caseload is less than half of what it was in 2008. The report unfortunately provides no data on the number of certiorari petitions or their fate.

Bot watch

The bots are back. In the latest two-hour period, Global Military Justice Reform had a whopping 87 hits from Malaysia, compared with seven from the US and two from Germany. So weird.

Where should this civilian accused in Uganda's "ghost pilot" case be tried?

The High Court in Kampala will decide whether a civilian Defence Ministry human resources employee charged with two others (a Uganda People's Defence Force officer and his wife) may be tried by the general court-martial. The case involves a scam in which -- allegedly -- a non-existent Russian helicopter pilot was carried on the UPDF's rolls as a contractor for 11 years, at considerable expense to the government. The court-martial trial has been stayed pending a High Court ruling on jurisdiction. Details here, courtesy of the Daily Monitor.

The trial of civilians by court-martial violates human rights norms. Uganda is a persistent leading violator.

Another case of the slows

Consider this case from the Supreme Court of Pakistan.

It has been alleged that a great deal of public money was improperly doled out by military officers in connection with the country's 1990 elections.

The allegations were brought to the Supreme Court in 1996.

In 2012, the court directed that the actions of two general officers be investigated. This was not a casual action; the judgment is 141 pages long in the official version. A reformatted version of the judgment, Khan v. Baig, Hum. Rgts. Case No. 19 of 1996 (Pak. 2012), can be found here. It includes this paragraph:

Late Ghulam Ishaq Khan, the then President of Pakistan, General (R) Aslam Beg and General (R) Asad Durrani acted in violation of the Constitution by facilitating a group of politicians and political parties, etc., to ensure their success against the rival candidates in the general election of 1990, for which they secured funds from Mr. Yunus Habib. Their acts have brought a bad name to Pakistan and its Armed Forces as well as secret agencies in the eyes of the nation, therefore, notwithstanding that they may have retired from service, the Federal Government shall take necessary steps under the Constitution and Law against them.

The case came on for hearing again this week. Excerpt from the news report:

On Monday, the Ministry of Defense submitted a report to the court, stating that an inquiry against the military officials, allegedly involved in the matter was under process.

The court then directed the Ministry of Defense to submit within four weeks, progress report on said proceedings and declared that the report submitted by the FIA [Federal Investigation Agency] will be reviewed along with the progress report of Ministry of Defense.

At the outset of hearing, Justice Gulzar Ahmed inquired the attorney general as to why the Ministry of Defense was not initiating action for the court-martial of military officials, involved in the instant matter instead of conducting an inquiry.

The attorney general replied that as per law an inquiry was mandatory before moving to the court-martial proceeding. Justice Ijaz ul Ahsen asked after retirement how much time court-martial process takes.

The attorney general replied that court-martial could be done anytime if it was a matter of fraud or case pertaining to loss to the national kitty. At this, Justice Ijaz ul Ahsen observed that 24 years back some Rs140 million had been spent on Asghar Khan’s case.

Transparency watch

The Government Accountability Office has issued this report on steps that could be taken to expand public access to and information about the Guantanamo military commission trials. Bottom line:

The Secretary of Defense should ensure that the Deputy Secretary of Defense assesses the tradeoffs of potential options for expanding public access to military commissions’ proceedings by identifying and analyzing associated risks, and, as appropriate, developing a strategy to implement any viable options. 

We provided a draft of this report to the DOD, Department of Justice, and relevant intelligence agencies for review and comment. In written comments provided by DOD (reproduced in appendix IV), DOD concurred with our recommendation, noting planned actions to address it. DOD and certain intelligence agencies also provided technical comments, which we incorporated in the report as appropriate.

Query: are there similar issues of access to and information surrounding the far more numerous courts-martial of U.S. military personnel? The Military Justice Act of 2016 included a new Art. 940a, UCMJ, that looks, among other things, to ways to improve access to court-martial case information.

Jurisdiction over retirees

Global Military Justice Reform contributor (and University of Texas law professor) Steve Vladeck has written this Lawfare post on court-martial jurisdiction over military retirees.  Excerpt:

Neither the lower courts, nor the solicitor general in his brief in opposition, have offered any rationale for why retirees should be subject to court-martial for nonmilitary offenses in their civilian lives when reservists are not. Nor is there any reason to believe that the Larrabee case is an outlier. The Department of the Navy alone has court-martialed eight retirees in the past five years, and there have been high-profile examples of comparable claims in the other branches, as well.

The constitutionality of the asserted jurisdiction is the subject of a pending certiorari petition. (Full disclosure: the Editor is one of Prof. Vladeck's co-counsel on the Larrabee cert petition.)

U.S. military trial v. civilian Belgian trial

An American naval officer held for a prolonged period by Belgium on suspicion of having murdered his wife has succeeded in persuading the United States military justice system to assume jurisdiction under the NATO Status of Forces Agreement. It's a tangled tale, including a federal district court petition for a writ of mandamus that seems to have had the desired effect. 

Military v. civilian trial

A party leader (and former Defence Minister) in Israel has argued that if a case can be brought in either a military or a civilian court, it ought to be brought in the military court so the death penalty can be sought. Details here. Excerpt:

“To ensure this option, the Cabinet must instruct the Attorney General and the Military Advocate General to refer the matter to a military court.”

“The Attorney General has so far opposed both the death penalty for terrorists law as well as imposing the death penalty. Accordingly, he instructed the representatives of the State Prosecutor's Office not to demand a death sentence even in the most serious cases of murder.”

“I call upon the Minister of Justice and the other ministers to demand the convening of the Cabinet and to establish a new policy there: A. In any case where the terrorists can be tried in the framework of a military court, this should be done. B. To instruct the Attorney General and the Military Prosecution to demand a death sentence in particularly cruel cases of murder,” concluded [Avigdor] Liberman.

Thus far his suggestion has fallen on deaf ears. 

Not military justice, but . . .

The Attorney General of Israel has ordered that the IDF not be used for propaganda purposes in the current political campaigns. This means that Prime Minister Benjamin Netanyahu cannot use soldiers in his campaign ads. The ruling puts him at a disadvantage because his opponent is a retired Chief of General Staff, Lt. Gen. Benny Gantz. Interestingly, the attorney general is a former Military Advocate General, Maj. Gen. (ret) Avichai Mandelblit. Details here.

The ruling aside, Netanyahu remains the favorite at this writing.

Mark your calendar

The International Court of Justice will hear India v. Pakistan (Jadhav) on February 18-21, according to this account. Kulbhushan Jadhav is an Indian citizen who was tried by a Pakistani field general court-martial for spying and sentenced to death, apparently without affording India consular access. The ICJ directed Pakistan not to execute him until it can decide the case. 

Egypt's military courts

Egypt has tried thousands of civilians in military courts. Now there is a proposal to amend the Constitution to expand the power of those courts. According to this account, "The current constitution stipulates that civilians will be tried before military courts when there is 'a direct assault' on military personnel. The new change will remove the word 'direct.' This slight change greatly expands the military’s constitutional rights against civilians."

Human rights norms strongly disfavor the trial of civilians by military courts. Egypt is a persistent violator of that principle.

There is another solution in Pakistan

"But if political parties decide not to extend the courts then they have to come up with a clear road map for reform of the criminal justice system and judiciary. And mere thunders of resolve and twitter statements will not be enough; this will now need a clear time table, defined leadership and budgetary allocations. The best way forward will be to extend the military courts for a year or 18 months and the process of reform of anti-terror courts – with judicial reform, security for judges, changes in Law of Evidence [what's that about?] and Witness Protection Program etc – kick-started to enable the system to take over from the military courts."

From this op-ed by Moeed Pirzada.

Editor's comment: the only way Pakistan is going to break out of the current cycle of periodic renewals of military courts' power to try civilians is by going cold turkey. Let it expire. If legislators got to work now, new legislation to fix the civilian courts (or make a good start in that direction) could be in place before the current extension expires at the end of March. The extensions are simply an opiate. The Parliament has to bite the bullet. There's your roadmap.

USS Fitzgerald

ProPublica has posted this remarkable report, "Fight the Ship," on the USS Fitzgerald disaster. It was written by T. Christian Miller, Robert Faturechi, and Megan Rose.

New report from Liberty

Liberty, the British human rights organization, has just published Military Justice: Second-Rate Justice. According to the organization:

Liberty has today published a comprehensive report on the military justice system, revealing that UK service men and women continue to be badly failed by the Armed Forces’ in-house policing and legal systems, especially where rape and other serious offences are concerned.

The new report has led Liberty to today launch the first-ever Armed Forces Human Rights Helpline, designed to offer free, independent legal advice to all current and former serving men and women and their families.

CRIMINAL JUSTICE

The report, “Second-Rate Justice”, details significant flaws in the way the Armed Forces deal with some of the most sensitive and serious criminal cases involving service personnel.

It damningly highlights the military’s deep-rooted preference for its own internal and inadequate Service Justice System (SJS) – which includes the Service Police, the military’s own police forces consisting of the Royal Military Police, Royal Naval Police and the RAF Police – and its hostility to outside scrutiny from more experienced civilian police and prosecutors.

Despite the fact that the civilian justice system should take priority over the military system, the report demonstrates that this is not happening and paints a picture of a ‘boys’ club’ approach to justice in the Armed Forces that prevents the impartial and effective investigation of some of the most serious cases.

It details how:

The Service Police are taking charge of investigations into alleged sexual offences including rapes, even though the legal presumption is that these should be dealt with by civilian police. In 2017 alone, 123 investigations were carried out by the Royal Military Police. Liberty believes that the majority of these should have been dealt with by the civilian police because they happened in the UK. Shockingly, a previous recommendation from Liberty that allegations of rape should always be investigated by civilian police has still not been acted upon. 

Some offences appear to be being downgraded to less serious offences, so that they can be dealt with internally and not go to court at all. For example, an allegation of sexual assault – which must be referred to the Service Police – may be reduced to battery which a Commanding Officer can deal with him/herself without referring it to the police at all. This practice must stop. 

The Ministry of Defence’s inadequate methods of recording sexual crimes, and the downgrading of serious crimes to lesser offences, mean that the real scale of sexual offending in the Armed Forces is likely to be significantly higher than MoD statistics indicate. For example, the government department continues to refuse to record or publish any data at all about such serious sexual offences as creating or possessing indecent images of children, possession of extreme pornographic images, revenge porn offences, sexual communications with a child or criminal harassment offences. For the sake of accuracy, transparency and public confidence, data on the prevalence of these offences ought to be recorded and published. 

Conviction rates for rape in the military are even lower than civilian rates – which are already far too low. In 2017, just two of the 48 rape cases that made it to Court Martial resulted in a conviction. 

The new report makes 21 important recommendations which would ensure service personnel enjoy the same rights and protections as civilians. They include:

Ensuring all serious criminal offences in the UK are investigated by civilian, not Service Police. 

Combining the three branches of the Service Police into a single force and embed them in civilian forces so that, when they must deploy abroad, they are sufficiently experienced, trained and supervised. 

Bringing the Service Police under the oversight of an independent expert supervisory body. 

Ensuring the independent Service Complaints Ombudsman is involved in serious cases of bullying, sexual harassment or racial or other discrimination at an early stage with her own fully-funded independent powers of investigation. 

EMMA NORTON, LIBERTY’S HEAD OF LEGAL CASEWORK AND SOLICITOR FOR A NUMBER OF SERVICE PEOPLE OR THEIR BEREAVED FAMILIES, SAID:

“The serving men and women that contact Liberty have all been on the sharp end of the Service Justice System. They may have been sexually harassed, sexually assaulted, beaten or abused – or they may have tried to raise a complaint but found that it has had a detrimental impact on them or their career.

“There are a number of serious and fundamental problems with the way in which the Service Justice System functions which mean service men and women are getting second-rate justice. Rather than peddling myths about the Human Rights Act, politicians would do better to roll up their sleeves and work out what meaningful changes are needed that could improve the lives and experiences of service people once and for all.

“It ought to be beyond discussion that the investigation of serious criminal offences such as rape or other serious assaults should be handled by the civilian police, not the Service Police who lack the resources, experience and expertise. If the MoD is serious about tackling unhealthy attitudes or patterns of behaviour in the forces, what better way to demonstrate that than by ensuring independent police always investigate and have oversight of those difficult cases?”

Why is this Ugandan case in a military court?

A Ugandan soldier is being tried by a general court-martial on charges of murdering his pregnant wife, brother and son. Why is the case not being tried in civilian court?

Can a lieutenant general be tried at court-martial

Ashok Kini, Lieutenant General (Rtd) Cannot Be Tried In A General Court Martial Consisting Of Members Below His Rank: SC. Live Law.In, 4 Feb. 2019.

The Supreme Court observed that an army officer holding the rank of Lieutenant General cannot be tried by the General Court Martial (GCM) consisting of members below his rank. The bench comprising Justice AK Sikri, Justice S. Abdul Nazeer and Justice MR Shah, was considering an appeal filed by Ex. Lt. Gen. Avadhesh Prakash who was dismissed from service by the GCM for his alleged involvement in 'Sukna Land Scam'.

The opinion of the Supreme Court of India is embedded in the article.

PACER and courts-martial

The federal courts' PACER system is under attack, judging by this article in The New York Times. Access to military justice cases lags far behind. Will the Military Justice Act's new access provision bring it up to the PACER level when it eventually goes into effect several years from now, or will the system continue to lag?

Spanish Constitutional Court to opine on fundamental rights of military personnel

The Spanish Constitutional Court will review the ruling of the Supreme Court, which rejected the admissibility of a request for annulment filed by the Military Association of Troops and Seamen (AMTM), blocking consideration of the appeal.  This is historic because it is the first time that the Constitutional Court will pronounce itself on an alleged violation of fundamental rights of members of the military.

On January 29, 2019, the Constitutional Court informed the magistrate in charge of this case that she must decide first whether the fundamental rights of members of the military, as regards their access to justice, protected by Article 24 of the Spanish Constitution, was violated, as argued by the AMTM.

If in the affirmative, the Supreme Court must revoke the decision issued by the Administrative Law chamber of the Supreme Court, which closed the possibility that non-military employees of the Army, linked to the Defense Department, in non-permanent status, could continue litigating their case.

The professional members of the military have spent years complaining that, because of the law in force, the Defense Department treats military personnel differently depending on the work modality that binds them.  This situation permits massive firings of workers, who, once they have reached the age of 45, maintain long-term commitments with the institution.

At the end of 2016, professionals from different armies decided to submit to the courts what they describe as the situation of long-term "inequality" and "discrimination", over time, among workers of the same rank and identical functions, but with different connections to service.  For that reason, the AMTM began these administrative proceedings, by which they hope to obtain judicial support for their claims.

This will be the first time that the Constitutional Court pronounces itself formally, although not on the merits, with respect to the contractual regime of temporary workers, which keeps a part of the Defense Department workers in an unprecedented legal battle.

The objective is to obtain a positive ruling from the Constitutional Tribunal, which permits them to continue with the appeal before the Supreme Court, in order to exhaust all the levels of the Spanish legal system.

If they do not receive a favorable judgment, the military will end their legal journey in the European Court of Human Rights in Strasbourg.  There, they aspire to obtain a judgment that will permit them to recover the compensation that they have not been able to receive to date, as well as demanding an urgent legislative change to the current rules.

Sentencing quiz

Allegation: sexual assault by one service academy cadet on another. The gist:

[Cadet Armis] Sunday was convicted of sexual assault on Friday for a 2017 incident in the academy dorms. A female cadet contended that Sunday groped her as she slept after an evening of drinking.

Prosecutors alleged that Sunday planned the encounter, bringing alcohol to the woman’s dorm room and lying about being locked out of his domicile by a roommate.

What sentence would you impose? Don't visit this report until you've made your guess. 

Sayonara, Pakistani democracy

Here is one of the saddest and most fatalistic conclusions the Editor has seen to date in commentary about Pakistan's temporary (read: permanent) military courts:

In an ideal world, four years would have been more than enough time to make the necessary legislative amendments (and judicial adjustments) that wipe the stain of military courts from the fabric of our democracy. We would have amended the Anti-Terrorism Act, updated the relevant provisions of Criminal Procedure Core and the Pakistan Penal Code, and also introduced measures for protection of witnesses as well as judges who participate in countering terrorism. However, Pakistan is not an ideal world. While our legislators, over the past some years, have had the political will to pass self-serving laws – including those that allow a disqualified person to be the leader of a political party, or those that wipe out the requirement for disclosure of assets by parliamentarians – there has been no time (or will) to enact laws relating to reform of the criminal justice system.

That the tenure of the military courts will be extended for (some) period, seems to be a foregone political reality.* However, it is hoped** (and prayed) that the PTI government and its Naya Pakistan will (at least attempt to***) succeed where its predecessors have failed. And in the process,**** through introduction of the necessary reforms, the people of Pakistan will once again be able to renew their faith in our (civilian) criminal justice system. [Skeptical footnotes supplied.]

* Why?
** On what basis?
*** What makes you think this?
**** In the next two years?

Honor Tribunals in Uruguay today

Gregorio Alvarez, a Uruguayan Army General, served as the last President of Uruguay (1981-1985) in the civilian-military dictatorship that lasted from 1973 to 1985.  In 2014, Uruguayan President Jose Mujica and the Minister of Defense, Eleutherio Fernandez Huidobro, both former guerrilleros of the Tupamaros, sought to reintroduce "Honor Tribunals" in the Armed Forces for members of the military who were sentenced to prison by civilian courts for human rights crimes.  These "Honor Tribunals" were reintroduced in 2014 specifically to try Gregorio Alvarez, who had been sentenced to 25 years in prison for the death of 37 "subversives" in 1977 and 1978.  Gregorio Alvarez, however, was in poor health and passed away in a military hospital before he could be brought before an "Honor Tribunal."

Some 20 military officers in 2009 were sentenced to prison terms of 20-25 years for the crimes of enforced disappearances of approximately 200 Uruguayans during the civilian-military dictatorship.  The majority of these disappearances occurred in Argentina as part of Operation Condor.  The surviving high level officials are detained in a special prison in Uruguay called "Domingo Arena."

The "Honor Tribunal" is designed to judge the moral and ethical conduct of the members of the military and are independent from the military justice system.  The three members of the Tribunal are of the same or higher level than the officer being judged and "honor" in the military is a virtue, par excellence.  Honor is a religion, the religion of duty, which signals, in imperative form, one's appropriate behavior in every circumstance.  If the Tribunal concludes that the officer's conduct does not reflect the honesty and professional ethics of the Armed Forces, it can sanction the officer to the loss of pension, the loss of the right to use a uniform and the loss of the right to be taken care of in a military hospital.

In January 2019, the "Honor Tribunal" of the Navy issued a decision on the case of a retired naval captain, Juan Carlos Larcebeau, who was convicted by a civilian criminal court for illegal detentions and forced disappearances of Uruguayans in Argentina and it decided not to sanction him.  The Tribunal didn't even make a verbal observation to Larcebeau, the weakest sanction that the Tribunal can apply.  Nevertheless, the Tribunal's decision must be approved by the Ministry of National Defense or by the President of Uruguay.  Since he has been sentenced by a civilian court, the Navy understands that the government is not going to approve the "Honor Tribunal's" decision and so it is looking for a way that the decision could be approved.  Military sources reportedly stated that the case has been appealed.

"Honor Tribunals" were common in Spain and started in the military context exclusively to judge officers, that is, they were not designed to judge lower ranking officials or troops.  In 1918, the law extended the application of "Honor Tribunals" to the public administration and later to professional associations.  They were comprised of equals to the person being judged, whether they were military, civil servants or members of professional associations.  The purpose was the judge the dignity of the person who belonged to the profession or body of which he was a member.  If he was found unworthy of dignity, the person was expelled from the profession or body, without being allowed any recourse against the decision of the Tribunal.  Today, "Honor Tribunals" for the military or professions are illegal in Spain.

The "Honor Tribunals" appear to exist today in other areas in Uruguay.  The Frente Amplio (Broad Front) political party, to which former Uruguayan President Mujica and current Uruguayan President Tabare Vasquez belong, recently expelled OAS Secretary General Luis Almagro because Almagro  did not reject the possibility of a military intervention in Venezuela to depose the regime of Nicolas Maduro.  In addition, President Vasquez announced that he would not support Luis Almagro for re-election to the post of OAS Secretary General when his term expires in 2020.

Why is this former legislator's case in military court?

Uganda's High Court will decide whether to grant bail to a civilian (former legislator) who is on trial with several soldiers in the country's General Court-Martial. Details here. Human rights norms strongly disfavor the trial of civilians in military courts. Uganda is a major offender in this regard.

Haircut watch

Equal protection and haircuts -- this just in from Germany: https://www.thelocal.de/20190201/german-court-rules-military-goth-must-cut-hair-and-beard. Excerpt:

The court held that equal rights rules did not require that all rules must be the same for men and for women. The court held however that the rule itself should be reconsidered as it interferes with the freedom of the individual.

Although the court ruled the man must cut his hair, authorities are now required to provide a justification for why the rule exists - or change it.

Germany’s basic law protects people from “having to comply with restrictions through official instructions on personal appearance without a legal basis, when they also affect one’s appearance outside the service."

The current rule will continue to apply until the legislators have decided upon a course of action.

Compare Goldman v. Weinberger, 475 U.S. 503 (1986).

For your bookshelf

There's a new book out about military justice in Senegal, written (in French) by prosecutor Birame Sène and a co-author. Details here.