Sequential military and civilian prosecutions

The Marshall Project has released this report on sequential military and civilian prosecutions. Excerpt:

“My own view is that if this looks like and smells like double jeopardy, this violates the Constitution,” said Kent Eiler, project director of the Veterans Assistance Project, which provides free legal services to veterans in New York City.

What is the nature of soldiers’ self-defence (sic) in your country

The title comes from a new piece in OpinioJuris:

Soldier Self-Defense Symposium: Norwegian Soldiers’ Self-Defense, by Camilla G. Cooper (Ph.D.) an Associate Professor of Operational Law at the Norwegian Defence University College and Sigrid Redse Johansen a Judge Advocate General of the Norwegian Armed Forces. Here are some excerpts.

What is the nature of soldiers’ self-defence in your country (a criminal defence, an individual right)? Is it similar to the right or criminal defence of self-defence available to any other citizen?

Self-defence in Norwegian law is considered a criminal defence. Self-defence is set out in Section 18 of the Norwegian Penal Code of 2005[.]

The same rule applies to both soldiers and other citizens. The Military Penal Code of 1902 states in Section 1 that the basic conditions for criminal liability in the (Public) Penal Code applies also in military criminal cases. This includes the basic rules governing self-defence and necessity.

In military operations, it is common to develop « Soldier’s Cards », based on the mission-specific rules of engagement, which also refer to the basic right to self-defence as set out above.

Does the State have a known view on whether soldier’s self-defence is (also) a legal basis for the State to use force under international law? If so, what would the source of this legal basis be (Jus ad bellum? Human rights law? Another legal regime?)?

Brig attire

What will the well-dressed brig inmate be wearing this season? Richard Sisk has the story here.

Conscientious objection and non-believers

South Korea continues to wrestle with the question of how to treat non-religious individuals who object to military service on grounds of conscience, according to this report. Excerpt:

The alternative military service system that has been finalized is a punitive one that extends the service period to 36 months, or double the active-duty period – considerably higher than the 1.5 times recommended by international organizations – and requires individuals to board together in a detention center. The idea is that the starting point for the review should be the individuals’ commitment to risking social and economic disadvantage to uphold their convictions. In that sense, some observers argued it was inappropriate for the prosecution to question Oh [Gyeong-taek] about hypothetical “scenarios” – a move likened to the Japanese shogunate forcing people to trample on images of the cross in order to identify members of the Catholic faith. 

“The Constitutional Court and Supreme Court determined that conscientious objection is a matter of exercising basic rights, but the prosecutors still seem to be treating [objectors] as criminals,” said attorney Im Jae-seong of the law firm Haemaru on Apr. 21.

BD military trials challenged

A petition has been filed in the High Court of Bangladesh challenging 88 military trials that were conducted under martial law imposed by a former regime. Details here.

GITMO commander fired

Carol Rosenberg

Carol Rosenberg, dean of the Guantánamo Bay press corps, has the story here in The New York Times.

Stay tuned.

Who is being tried in Barbados?

Barbados is court-martialing three members of its Defence Force, but won't say who they are, judging by this report. Excerpt:

In the first case scheduled to take place between May 7 and 10, the individual is charged with committing a civil offence contrary to section 71 (1) of the Defence Act by wrongful[ly] communicating information contrary to section 2 (1) (a) of the official Secrets Act, 1911, as amended by the official Secrets Act, 1920, Lieutenant [Commander Ryan R.] Alleyne said.

The second case, which will be heard between May 27 and 30, the individual will face four charges. The first two relate to communicating with the enemy* contrary to section 36 (2) of the Defence Act. The second is for conduct “to the prejudice of good order and military discipline” contrary to section 75 of the Defence Act while the fourth charge alleges neglect to the prejudice of good order and military discipline contrary to section 75 of the Defence Act.

The third case is scheduled to be heard between June 3 and 6. That individual has being charged with committing a civil offence contrary to section 76 (1) of the Defence Act Cap. “That is to say the individual indecently assaulted another individual contrary to section 11 (1) of the Sexual Offences Act Cap 154,” the Lieutenant [sic] said.

* Who is the enemy? [Footnote added.] 

The end of the line for commissions?

Congratulations to Professors Lawrence Friedman and Victor Hansen of New England Law for this fine Just Security essay about the military commissions. Their bottom line:

Among the many purposes of the criminal process is closure. The September 11 attacks have escaped closure. Every day that passes without resolution of the central criminal justice issues at the core of the attacks represents a needless extension of that tragedy. It did not have to be this way: the federal courts were up to the task of administering appropriate justice almost two decades ago, no less than today.

Editor's query: what explanation can possibly be given to those who lost loved ones on 9/11 for why justice has not yet been done? 

Journalism watch

Can you tell from this news story what the unfairness was that led the Nigerian Court of Appeal to overturn a general officer's court-martial conviction?

Butch Bracknell on mirror-image UCI and the Gallagher case

Butch Bracknell

Butch Bracknell has written this no-holds-barred piece about presidential and congressional interference in the course of justice in the case of SEALs Chief Petty Officer Edward Gallagher. Excerpt:

Which brings us back to the crazed conduct of Representative Duncan Hunter, Jr. Hunter has embarked on a Congressional quest to shape the case against Chief Gallagher to the government’s disadvantage. In so doing, he is committing the mirror image of the UCI usually seen in military cases, in that he is disadvantaging the government’s ability to present its case without passion or prejudice. Hunter has embarked on an information campaign, and has made disingenuous statements, recasting the alleged murder of an injured fighter with a knife as he lay helpless on the ground with “compassionate combat” when in fact, such conduct, if proven would constitute a breach of the law of war and murder. Hunter recently asked “for this whole case to be dropped. It’s time we stop persecuting our warriors who go overseas and do what we ask them to do. Maybe if we persecuted them less, we wouldn’t be in Afghanistan 18 years later, still with no end in sight.” (Yes, Congressman, it’s the persecution of alleged war criminals that’s at fault, not the absence of coherent strategy, the unreliability of Afghan military and political partners, own-goals like the Kunduz CIVCAS strike, and the diversion of resources from Afghanistan to Iraq to fight a needless war in 2003.) And Hunter isn’t alone in his crusade to interfere with the legal process; 39 other Congressmen have weighed in on the issue as well.

Hunter and his cohort are clearly pandering to the retired military and veteran crowd unwilling to look closely at the issue at to see that Chief Gallagher’s actions, if proven by competent evidence and if the government doesn’t self-immolate, constitute a drastic departure from the standard of professional, ethical conduct America has traditionally demanded of its warrior caste. Hunter et al should stop prejudicing the government’s case, as it’s apparent the government may be doing an OK job of that all by itself. A mature, responsible Congressman would stay out of this issue and allow the process to run its course. If we believe in due process, we have to believe in process, and if Hunter believes there are reforms necessary in the Uniform Code of military justice, he has, for now, a fine position to propose legislation, even though he has been stripped of his assignment to the House Armed Services Committee as a result of his indictment.

For a Pulitzer-winning reporter's account of the challenges of uncovering the case see this piece by Timesman Dave Philipps. 

Pardon watch

It is a bold ask for someone who stripped a prisoner naked, interrogated him without authorization, shot him twice and then claimed at his court-martial that he was protecting himself. But [Michael] Behenna, now a 35-year-old ranch hand, is pitching his case at an opportune moment for U.S. military members accused of war crimes.

From this Washington Post article by Ian Shapira

Battle of footnotes on E Street, or "what's mine is mine, what's yours is waivable"

United States Court of Appeals
for the Armed Forces

Yesterday, the United States Court of Appeals for the Armed Forces decided United States v. Perkins, No. 18-365/MC, a 4-1 decision. The case, which concerns the application of the good faith exception to the exclusionary rule, is a rare example of a pro-defense certification to the Court of Appeals by a Judge Advocate General (see p. 2). Of particular interest (and concern) is the majority's invocation of waiver against the defense while permitting the government to defend the decision below on a ground it had not pressed. The disparity--leniency for one party but severity for the other--is jarring. If anything, Judge Ohlson's treatment of that disparity in a footnote is understated.

The majority’s disparate treatment of the prosecution and the defense is noteworthy. As is permissible, for the first time on appeal to the CCA the Government argued that the good faith exception applies to this case. Brief for Appellee at 10, United States v. Perkins, 78 M.J. 550 (N-M. Ct. Crim. App. 2018) (No. 201700077). The majority now endorses and adopts this approach. Similarly, for the first time on appeal to the CCA, Appellant argued that the good faith exception does not apply to this case because the commanding officer rubber-stamped the search authorization request. Brief for Appellant at 16, Perkins, 78 M.J. 550 (N-M. Ct. Crim. App. 2018) (No. 201700077). Not only does the majority reject this argument, however, it actually prevents Appellant from even making this argument, asserting that it was waived because Appellant did not raise it at trial. Thus, even though the Government can raise the good faith exception for the first time on appeal, under the majority’s approach Appellant is foreclosed from raising for the first time on appeal one of the four explicit limitations to the good faith exception that the Supreme Court specifically listed in [United States v. Leon, 468 U.S. 897 (1984)]. In my mind, this is a curious result.

Here is what the majority opinion, per Maggs, J., said in response in this duel of footnotes:

The dissent asserts that Appellant did not waive the “rubber-stamping” argument in this case because he “was not required to invoke an ‘exception to this exception’ at trial” given that “the good faith exception was not raised by the Government or the military judge at the trial court level.” United States v. Perkins, __ M.J. __, __ (2) (Ohlson, J, dissenting). This assertion assumes that rubber-stamping is merely an exception to the good faith exception. This assumption is incorrect. A fundamental principle of the Fourth Amendment is that “[a] magistrate failing to ‘manifest that neutrality and detachment demanded of a judicial officer when presented with a warrant application’ and who acts instead as ‘an adjunct law enforcement officer’ cannot provide valid authorization for an otherwise unconstitutional search.” Leon, 468 U.S. at 914 (quoting Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326–27 (1979)). Accordingly, the accused can argue in the first instance that a search authorization was invalid because the commander rubber-stamped the government’s application; the accused need not first show that the search authorization was invalid for some other reason and then wait for the government to argue that its agents acted in good faith before raising a rubber-stamping objection. See, e.g., United States v. Clayton, 68 M.J. 419, 425−26 (C.A.A.F. 2010) (upholding the military judge’s determination that a warrant was valid because, among other reasons, the magistrate did not abandon his judicial role and act as a rubber stamp for the government).

Read the whole case and see who you think has the better of the argument in this respect. Can logic mask unfairness?

Eye-catching NYT headline

"Navy SEALs Were Warned Against Reporting Their Chief for War Crimes." This disturbing article by The Times's Dave Phillips, concerns United States v. Chief Petty Officer Edward Gallagher of the SEALs. Excerpt:

Tired of being brushed off, seven members of the platoon called a private meeting with their troop commander in March 2018 at Naval Base Coronado near San Diego. According to a confidential Navy criminal investigation report obtained by The New York Times, they gave him the bloody details and asked for a formal investigation.

But instead of launching an investigation that day, the troop commander and his senior enlisted aide — both longtime comrades of the accused platoon leader, Special Operations Chief Edward Gallagher — warned the seven platoon members that speaking out could cost them and others their careers, according to the report.

The clear message, one of the seven told investigators, was “Stop talking about it.”

Military law in China

A big H/T to Global Military Justice Reform contributor Don Rehkopf for calling attention to Jian Zhou, Fundamentals of Military Law (Springer 2019). Chapter 7 deals with military justice, and includes a section on personal jurisdiction. The author is affiliated with The Political Academy, National Military Academy, Shanghai.

YouTube channel for CAVC

The U.S. Court of Appeals for Veterans Claims is today creating a YouTube channel for all of its hearings. Details here. The YouTube channel can be found here. If CAVC can do this, why not the U.S. Court of Appeals for the Armed Forces and the service Courts of Criminal Appeals?

Retirees and free speech

A retired Pakistani general who had the temerity to co-author a book with an Indian counterpart has challenged his court-martial in the Islamabad High Court, according to this report. Nations that extend military jurisdiction to retirees officers at time use it to repress free speech. The Inter-American Court of Human Rights has condemned the practice.

Acting SECDEF memo creating new task force for Sen. McSally

Acting Secretary of Defense Patrick M. Shanahan on March 27, 2019 created a new task force -- composed solely of government personnel -- to study sexual assault and ways to improve its handling under the Uniform Code of Military Justice. The task force's report is due on April 30, 2019. The obvious purpose of this quick-turnaround safe internal task force is to secure the continued opposition of junior SASC member (and assault victim) Sen. Martha E. McSally to Sen. Kirsten E. Gillibrand's Military Justice Improvement Act. Excerpt from the Acting Secretary's memorandum:

I expect the SAAITF to identify, evaluate, and recommend immediate and significant actions to improve the accountability process, specific to the investigation and disposition of cases in which members of the Armed Forces are either victims or alleged offenders of sexual assault, while ensuring due process for both. Recommendations shall consider findings of similar previous reviews by experts internal and external to the Department, but must explore new opportunities to enhance the military justice system. 

The SAAITF will provide me an interim progress report and, not later than April 30, 2019, will provide a final report that captures key recommendations addressing the investigation and disposition of sexual assault, including potential changes to policy and/or law. The Department will submit a report to Senator McSally and other members of the Armed Services Committees, identifying the initiatives the Department will undertake based on the recommendations provided by the SAAITF.

Is AI coming to the UCMJ?

The Navy is testing technology that may produce transcripts the panel can review during deliberations. Using artificial intelligence to make instantaneous transcripts will, ideally, increase the accuracy of testimony reviewed by the fact-finder while avoiding time-consuming replay of audio recordings. After a few mock courts-martial, the testing revealed the AI had trouble comprehending military jargon. Perhaps the new technology will succeed where humans have failed, but it is hard to imagine even the most powerful supercomputers making sense of the military’s pervasive use of acronyms. Good luck!

HRW faults DRC military trial

Human Rights Watch has issued a statement faulting the proceedings of a military court in the Democratic Republic of Congo. Excerpt:

A Congolese military court’s conviction of a warlord for the war crimes of rape and use of child soldiers in eastern Democratic Republic of Congo showed serious shortcomings in the country’s military justice system. The 15-year prison sentence for Marcel Habarugira provides a measure of justice for his victims and may serve as a check on other abusive commanders. However, the trial proceedings raised questions about witness protection, the defendant’s right to an appeal, and the government’s failure to pay reparations to victims.

Gag order in Chief Gallagher's case

The Navy military judge presiding over the murder trial of SEALs chief petty officer Edward Gallagher has issued a gag order, according to this San Diego Union-Tribune story.

[Capt. Aaron] Rugh also ruled that future court proceedings and his rulings would be subject to a protective order, to prevent leaks in the case.

On Saturday, the Union-Tribune published a story detailing contents of one of Rugh’s rulings from January 10, including findings of fact regarding witness accounts of Gallagher’s alleged actions on deployment. Those findings included detailed witness accounts of the alleged stabbing of the ISIS fighter and two alleged shootings of civilians.

Rugh said such rulings are written in a “legal vacuum” and, if released to the press, they could taint potential jurors.

[Civilian defense counsel Tim] Parlatore told the judge he has received calls from reporters asking about other investigations into Gallagher, and he suspects members of the Naval Criminal Investigative Service have leaked information about other investigations into Gallagher’s alleged conduct.

Rugh created an exception to his gag order: he said defense attorneys could share evidence in the case with members of Congress, as long as those members and their staff comply with the protective order. Rep. Duncan Hunter, R-Alpine, and other Republican congressmen have advocated for Gallagher, including lobbying [President Donald J.] Trump.

It is not clear what Judge Rugh meant when he said his January 10, 2019 ruling had been written in a "legal vacuum." One assumes that the news media will object to his gag ruling. In a case that has generated so much public interest, the Navy-Marine Corps Trial Judiciary should establish a website where all unclassified and unsealed case documents, including motions and court orders, will be available to all. In fact, there's no reason the armed forces as a whole cannot establish a system for making such documents available as a matter of routine, just as in the federal district courts and courts of appeals. 

One law for all

La Voix du Nord, un journal électronique de Lille en France rapporte qu'une fois chaque trimestre le Palais de justice de Lille tient une audience pour les infractions commises par des militaires dans l'exercice du service en temps de paix. La plupart des prévenus font face à des accusations visant leur absence sans permission.

In France, military tribunals no longer exist in peacetime. Civilians and soldiers are judged by the civilian tribunals.  Why: the soldier is considered to be first and foremost a citizen. He is therefore subject to the jurisdiction of common law tribunals whether accused under the Code of Service Discipline (for military offences such as desertion) or common law offences.

Billy Budd, 100 years on

The New York Times's David Belcher writes here on the occasion of the centenary of the discovery of Herman Melville's Billy Budd. Excerpt:

Is “Billy Budd” the ultimate modern gay antihero who almost didn’t speak his name?

This year marks the centennial of the random discovery of Herman Melville’s novella by a scholar who was researching a biography of the author, and for a century “Billy Budd” has been analyzed and theorized as the ultimate battle of innocence, envy, voyeurism and latent homosexuality. Or is it just a tragic tale of a ship full of lonely and smelly men who secretly lust after the doomed and unobtainable pretty boy?

What a great idea -- a task force

The Defense Department has formed another body to study how to get a handle on sex offenses in the armed forces. Stars and Stripes' Corey Dickstein writes here:

The panel, the Sexual Assault Accountability and Investigation Task Force, or SAAITF, will focus largely on reforms and improvements that can be made to the military judicial process to ensure servicemembers’ confidence in the system, acting Defense Secretary Pat Shanahan wrote in a March 27 memorandum establishing the panel. The group is charged with providing Shanahan an interim report on its findings by April 30 and is to provide a full report later to the secretary and members of the Senate Armed Services Committee, according to the memo.

* * *

SAAITF is led by Elizabeth P. Van Winkle, the executive director of the Office of Force Resiliency, and the top military lawyers for each of the Pentagon’s military services, according to the memo. It will also include the director of the Pentagon’s Sexual Assault Prevention and Response Office, high level representatives from the military’s criminal investigative organizations, and an official from the Defense Department’s general counsel office.

Might this be a way to avert, yet again, legislation transferring commanders' disposition power over major offenses to lawyers outside the chain of command?

Conflicts of interest in multi-accused cases

Carl Prine, in Navy Times, reports: SEALs lawyered up during war crimes case, then prosecutors went after their lawyer, 4 April 2019.

On the eve of twin war crimes court-martial trials targeting a SEAL and his platoon leader, prosecutors moved Tuesday to rip a trio of holdout witnesses away from a Texas attorney who has been jockeying to win them immunity from future charges.

In a motion filed Tuesday in San Diego, chief prosecutor Cmdr. (sic) Christopher W. Czaplak asked a military judge to investigate “conflict of interest” problems involving Brian Ferguson, an Air Force Reserve attorney, and the three SEAL petty officers he represents.

Ferguson also is the attorney of record for five other SEALs and two explosive ordnance disposal technicians tied to the probe, court filings indicate.

The prosecution is arguing that Mr. Ferguson has a conflict of interest with his clients that the military judge should pierce and decline to accept any waivers of conflict from the client.

“This is an issue that our rules of professional conduct indicate must be brought to the attention of the court by prosecutors,” said O’Rourke. "This protects both the rights of the witnesses and the accused, Lt. Portier.

“Lt. Portier is due the loyalty of any attorney who has advocated for him.”
But Czaplak’s motion hints at deeper issues that must be addressed by the court.

If Portier is sentenced to a dismissal from the service, for example, there’s the possibility that he would point to conflicted counsel in his appeal.

A first question is whether the issue is ripe as to the Ferguson clients who have yet to be referred to trial.  Should the client be referred to trial, as was Portier, then Mr. Ferguson might also withdraw from those cases--issue probably resolved.

A cynic might accuse the prosecution here of attacking the lawyer because they are upset with the inability to get access to the clients he represents, and for no other reason.  I take a more sanguine view.

It's not unreasonable for a prosecutor to be concerned about how an attorney's actual conflicts of interest at trial may affect a later appeal.  Having all that concern put on the record in front of the judge then helps assure later that any conflict is knowingly and intelligently waived--thus waiving the issue on appeal.  Should the lawyer be disqualified and new lawyers hired then the prosecution may well be in the same position they're in now; although that may create a new appellate issue of a client being deprived of his counsel of choice by having a judge force the lawyer off of the case.

Another result of disqualification could be negotiated joint-defense agreements among the new lawyers so the lawyers can share information and strategy in a privileged context.  On the other hand, a new lawyer for each client may lead to one or another of the co-accused striking a deal and making them accessible to the prosecution.  Or, the prosecution could go ahead and arrange for testimonial immunity as requested.  Or, the prosecution might go ahead and charge the co-accused thus forcing and ripening the issue.

A death in Mali

The Washington Post's Dan Lamothe and Brad Wolverton have this extraordinary story about the death of a Green Beret in Mali. Make time to read it.

Decision in Al-Nashiri case

The U.S. Court of Appeals for the District of Columbia Circuit just handed down the judgment in In re Al-Nashiri, granting mandamus, vacating all of military commission Judge Vance Spath's orders on or after November 19, 2015, and vacating the decisions of the Court of Military Commission Review that reviewed those orders. The companion petition for a writ of mandamus in In re Spears & Eliades was dismissed as moot. The court's opinion was written by Judge David S. Tatel. It is available here.

Shocking news: Uganda to try civilians in military court

OK, it's not shocking. But here's the story. Excerpt:

The Uganda Peoples’ Defense Force (UPDF) has on Friday, April 12, charged five civilians of impersonation and possession of forged Military Identity Cards and Army uniforms which are a monopoly of UPDF.

The accused, Akora Brian, Bwiire Robert, Namu Gerald, Wasswa Juuko and Ssewanyana Yahaya appeared before the Chieftaincy of Military Intelligence (CMI) Unit Disciplinary Committee for their actions in violation of the Penal Code Act Chapter 120.

The disciplinary committee referred the case to a division court-martial.

Human rights jurisprudence strongly disfavors the trial of civilians by military courts. The 1981 African Charter on Human and Peoples' Rights entirely forbids it. Uganda is a persistent violator of the rule. 

Where should this torture case be tried?

Three human rights organizations have objected to the referral of a Lebanese torture case to a military court. Details here. Excerpt:

The transfer of [Ziad] Itani’s torture complaint to the military courts violates article 15 of the Lebanese Code of Criminal Procedure, which states that offenses committed by judicial police officers during the performance of their duties fall under the jurisdiction of ordinary civilian courts. Lebanon’s 2017 anti-torture law specifies that the public prosecutor should refer torture cases to ordinary courts within 48 hours.

The jurisdiction of the ordinary criminal courts over torture complaints is vital for guaranteeing victims the right to a fair trial. Human Rights Watch has previously found that Lebanon’s military courts do not respect due process rights and that their structure undermines the right to a fair trial, including the right to be tried before a competent, independent, and impartial court and the right to a public hearing. Many military court judges are military officers, appointed by the defense minister, who are not required to have a law degree or legal training. Human rights organizations and journalists cannot monitor trials without the presiding judge’s prior approval.

Further, Lebanese lawyers have said victims cannot be a party in military trials and are considered witnesses, denying them the right to participate in the trial of the accused. Lebanese legal experts also state that there is only a limited right to appeal within the military court system.

The state prosecutor and the military prosecutor should immediately transfer Itani’s complaint to the competent regular judicial authorities to guarantee Itani’s right to a fair hearing of the torture complaint and to comply with Lebanese law, the groups said.

Fitz case dénouement

USS Fitzgerald

ProPublica has this account of the dénouement of a high-profile Navy case.

eMCM - but caveat lector

Here's a useful tool for military justice practitioners: an electronic version of the Manual for Courts-Martial: eMCM. The problem is that it's the 2016 edition. The 2019 edition supersedes it. Maybe the authorities will issue an updated e-version.

"The Code"

The LA Times review of CBS's procedural "The Code" is available here. Excerpt:

If it almost always feels like a television show, an artificial world in which things happen for dramatic impact rather than verisimilitude, if it is a hair too emphatic both in its celebration and critique of the military — or at least of certain persons within it — it is consistently diverting and sometimes educational. And its characters, and the actors who play them, even when you can make out the clockwork animating their actions, are easy to like, and even care about, as something approximating people.

Sounds like it'll be fun to watch.

HRW statement on Rio killing

Human Rights Watch has issued the following statement:

The incident in which army soldiers opened fire against a car in Rio de Janeiro on April 7, killing Evaldo Rosa dos Santos and injuring two other people, requires an impartial and rigorous investigation. Civil Police chief investigator Leonardo Salgado told Brazilian press that an unarmed “normal family” was travelling in the car. But unfortunately, under current law neither Leonardo Salgado nor any authority in the civil justice system who is independent from the Armed Forces will have the power to investigate or try the case. A 2017 law made the armed forces themselves responsible for investigations of homicides committed by their own personnel, if the killings occur when they are deployed in public security operations or to ensure the security of military facilities. Any trial would be held before a court panel made up of four military officers and one civilian judge. According to international standards, extrajudicial executions and other serious human rights violations committed by military personnel must be investigated by civil authorities and tried in civilian courts. This case shows, once again, the need to repeal the 2017 law.

R.I.P. Google+

Google+ was discontinued on April 2, 2019. Contributors who used it for the blog should revise their data to show a different email.

Thanks!

Add Thailand back to the list

That's the list of countries* that use military courts to prosecute civilians. Consider this article. Excerpt:

The junta abolished the use of military courts against civilians in 2016, but did not make the order retroactive. The trial of Thanathorn [Juangroongruangkit] in a military court could revive the use of military courts against civilians who committed alleged crimes prior to 2016, warned the law-reform advocacy group iLaw on Sunday.

According to iLaw, at least 1,886 people have been tried in military courts since the May 2014 coup. At least 92 people have been charged with sedition while at least 1,138 have been summoned to report themselves to the National Council for Peace and Order. The four-year period since the coup has seen at least 162 people charged with lese-majeste.

* E.g., Egypt, Pakistan, Uganda, Cameroon, Lebanon, Tunisia.

The first ever orientation course for JAG officers of the Indian Military in a Civil Judicial Academy concludes

The first ever course for officers of the Judge Advocate General’s branch of the Indian Defence Services concluded last week at the Chandigarh Judicial Academy.

The three week long capsule was aimed at exposing JAG officers to Constitutional as well as trial courts on the civil side and to make them more aware about concepts of judicial independence, separation of powers and principles of natural justice.

The course was initiated by the Government after a Committee of Experts constituted by the Central Government made the following observations and recommendations on the subject:

“5.1.3 Short Training capsules for JAG Officers outside the ‘system’:

Various Courts have adversely commented upon lack of proper training of JAG officers as well as legal training of Members of Courts Martial.

The latest decision of the Kolkata Bench of the Armed Forces Tribunal in Commander Harneet Singh Vs Union of India, OA 30/2013 decided on 21-08-2015, has also called for proper training to JAG officers in interpretative, Constitutional and Administrative Law.

Though training programmes are available in Service institutions, we feel that exposure to JAG officers needs to be configured with the actual judicial and legal functioning of civil and criminal courts so as to gain proper well-rounded knowledge rather than remain inward looking within the organization. This is not to say that JAG officers are not trained well but such an exposure to judicial practices would definitely lead to better all-round development of the JAG cadre.

To ensure the above, the committee strongly recommends that the Ministry or the Defence Services immediately coordinate with the National Judicial Academy, Bhopal, or with any State Judicial Academy, to tie-up for capsule courses for JAG officers within the first four years of commissioning (after their infantry attachment and the JAG Young Officers’ Course or equivalent in the other two services, if any) on the lines of courses being run for Members of the State Judicial Services. The capsule course should be at least of 8 weeks length. Court visits to District & Sessions Courts to understand the nuances of a trial as well as the High Court must also be arranged for young JAG officers to give them exposure to judicial practices and also ingrain in them the concept of independence of judicial functioning in a democracy”.

The recommendations were accepted in 2016 by the then Defence Minister of India, Late Mr Manohar Parrikar.

The course was well received and would now become a regular feature. The Director (Academics) of the Chandigarh Judicial Academy, Dr Balram Gupta and the current JAG of the Indian Army, Maj Gen Praveen Kumar, played a stellar role in making it a success.

To provide an international perspective of the latest developments in the field of Military Justice, the editor of this forum, Eugene R Fidell, held an important interactive session during the course through video conferencing.  A valedictory lecture was rendered by the current Chairperson of the Armed Forces Tribunal, Justice Virender Singh, who is the former Chief Justice of the Jharkhand High Court.

Command-centric justice defended

LTG Thomas W. Spoehr,
U.S. Army (Ret)

Retired Lieutenant General Thomas W. Spoehr of the U.S. Army (now at the Heritage Foundation) has written a column for The National Interest seeking to explain why commanders need to keep the power to dispose of charges, a power American military justice inherited from the system that existed under George III. He claims that giving that power to lawyers outside the chain of command would backfire. 

The Editor urges visitors to Global Military Justice Reform to take a few moments to study the column. Come back when you've done that.

[Pause]

Okay, now that you've read LTG Spoehr's column, let's consider his claims. He makes three. The Editor's comments appear in italics.

1. It would weaken the military overall by stripping commanding officers of the ability to enforce good order and discipline for personnel under their command. 

A commanding officer in the military has a wide range of tools available to enforce good order and discipline. These tools include mild administrative remedies, such as informal counseling, formal counseling, executive officer inquiry, and non-judicial punishment under Article 15 of the Uniform Code of Military Justice. This does not show the need to keep in the commander's hands the power to dispose of serious criminal charges.

These administrative tools allow for flexible, quick, and effective discipline to address misbehavior or lack of attention to detail by those who violate rules. They help the commander show the troops that there are consequences, immediate and swift, for poor decisions or performance and minor misdeeds. Other than for non-judicial punishment (which is confined to minor offenses), the military justice system is not swift. Ask anyone. The proposal to shift the disposition power would keep minor offenses in the commander's hands, where they belong. In addition, sending a case to an independent prosecutor for criminal proceedings also sends a message. Beyond this, if the case is doubtful, and results in an acquittal or insubstantial penalty, the commander looks silly if she has the disposition power, whereas the commander does not look silly if the referral is done by someone else. Which is better?

The ultimate administrative remedy is the ability to “fire” a service member for misconduct. The power to send a soldier, sailor, airman, or Marine to an Administrative Discharge Board (referred to as an “Admin Board” in the military) sends a clear message to all those who serve under the commanding officer: There will be consequences for misconduct or neglect of duty. This sounds like it concerns minor disciplinary issues, not serious criminal conduct.

The ultimate remedy for any commanding officer is the power to refer a suspected criminal in their unit to a court-martial. Taking that power away from commanding officers eliminates an indispensable authority that cannot be delegated or transferred to another—at least not if we are to demand accountability from commanders for prosecuting and preventing sexual assaults and other serious crimes. Of course something is wrong if a unit is rife with serious crime, and higher echelons would be right to be concerned, but it does not follow that a commander must have the disposition power for serious criminal offenses (or, for that matter, the power to pick the court-martial members, as our system currently provides). If a commander acts promptly and decisively to refer serious criminal charges to an independent prosecutor, and that prosecutor promptly and successfully tries those cases that merit prosecution, the commander cannot be faulted -- provided she has done all of the many things that are open to a commander to establish and maintain a law-abiding and productive command environment.

The first black-letter assertion in LTG Spoehr's column is a conclusion. His explanation doesn't support it. 

2. Removing this power from commanding officers would weaken the military’s unique criminal justice system. 

Unlike the civilian criminal justice system, where prosecutors or police file charges against an accused in a standing court, the military justice system has no standing courts and must create one for each individual case. Courts-martial are “created” by the power vested in a convening authority. The convening authority creates a court-martial by issuing a convening order. This assumes nothing can be done about the ad hoc nature of American courts-martial. Congress could change that, as other countries have done. In any event, the ad hoc nature of our current system (another legacy of George III) is irrelevant to who should have disposition authority over major crimes.

The convening authority has a role that cannot be reduced to either a prosecutor nor judge. This authority assigns military personnel to be members of a court-martial, decides on the charges to be filed, decides whether to use non-judicial punishment or an administrative proceeding in lieu of a trial, approves or rejects requests for expert witnesses, and accepts plea agreements. The commander's power to pick the members of a court-martial has been cited repeatedly as a serious weakness of the system, not a strength. Commanders also have no business making decisions on such matters as requests for experts. Trained prosecutors obviously would be better suited to negotiating plea agreements. This paragraph of LTG Spoehr's column does not support his thesis.

In contrast, civilian prosecutors decide only whom to investigate, whom to charge, and what to charge. The reason for the difference is that civilian prosecutors are not responsible for the defendant’s training, good order, and discipline in the way that a military commander is. Strip commanders of the ability to refer cases to a court-martial, and you send a loud and clear message to troops under her command that she does not really command them, in the full sense of the word.  This is a conclusion, not an empirical claim. The commander's responsibility for training and good order has nothing to do with who should decide whether a Soldier who rapes someone or murders a cab driver downtown should be prosecuted.

LTG Spoehr's second black-letter assertion is conclusory and the few specifics he relies on do not prove his overall claim that retention of the current system for the disposition of serious criminal charges is better than the independent-prosecution model the UK, Canada, Ireland, Australia, New Zealand, South Africa, Israel, Brazil and other countries have embraced -- without detriment to their military effectiveness. 

3. If commanders are stripped of convening authority, fewer cases would go to a court-martial, including sexual assault cases. 

As a non-lawyer and convening authority, I was not bound by the ethics rules that all lawyers are required to follow. When I believed that there was probable cause that one of my subordinates committed a crime under the Uniform Code of Military Justice, I could refer that soldier to a court-martial. And I did several times in my career. Why? To hold them accountable for their suspected criminal misconduct. This paragraph is an "own goal." For prosecution decisions to be made by an official who is unconstrained by the professional responsibility rules is not something to write home about. It's a flaw to which thoughtful legal scholars with military chops have pointed, not a strength.

Whether the prosecutor proved the case beyond a reasonable doubt was beside the point. I had a duty to enforce good order and discipline. Sending a soldier to a court-martial when he was suspected of a crime sent a loud and clear message to my troops that I was in command, and that I would not tolerate misconduct in my ranks. "Beside the point"? This is like the thirteenth stroke of a clock -- questionable in itself and casting doubt on all that has gone before. One would have thought a commander would have the profoundest interest in knowing the outcome of a case she referred for trial. This paragraph suggests that, as a convening authority, LTG Spoehr was more focused on sending messages than on doing justice (or conserving resources). Being able to put a case in the hands of an appropriately zealous military prosecutor would equally well send a message that the commander will not tolerate misconduct in her ranks.

LTG Spoehr's third black-letter claim is unsupported by his explanation. Worse yet, it presumes that the purpose of the proposed reform, widely adopted around the world, is simply to drive up the number of cases. It's not. The purpose is to have a system for the disposition of major charges that fosters public confidence by relying on professionals with serious legal training who are outside the chain of command and hence less susceptible to conflicting pulls on the exercise of their discretion. Commanders would still have a voice, even in major cases, since a reformed system could (and should) afford them the right to communicate their views as to the proper disposition of any particular case -- views that should be made available to the accused and victim(s) for response.

Has LTG Spoehr persuaded you?

Paralegals and military justice

Typically Global Military Justice Reform talks about judges, lawyers, commanders, legislators and, drum roll, the accused. There are other players. Here's a worthwhile Lawdragon interview with a U.S. Navy paralegal who has been working at Guantanamo. Definitely worth your time.

The Code gets panned

"If you are an avid legal show audience, The Code is for you. Else, wait for something else to come by."

Click here for the full Pooja Salvi review of CBS's new military justice series, The Code.

About that HASC hearing

Patricia Kime reports here on the recent military justice hearing before the military personnel subcommittee of the House Armed Services Committee. Three comments come to mind. First, in response to the GOP ranking member's plea that the changes that went into effect on January 1, 2019 should be given a chance to work before making further changes in the Uniform Code of Military Justice, those changes do nothing to remedy the excessive "own and operate" role played by commanders. Second, data about whether sex-offense cases are up or down are neither the beginning nor the end of the conversation: while sex offenses are what has driven much of the current concern about our antiquated George III command-centric system, the vice in that system is structural and applies to the disposition of all offenses other than minor disciplinary matters. (And did we mention jury selection?) Third, one of the Judge Advocates General cited the June 2014 report of the Response Systems to Adult Sexual Assault Crimes Panel, but paid insufficient attention to the powerful dissent filed with that report by Air Force veteran and legal scholar Elizabeth L. Hillman and former civilian prosecutor Harvey Bryant. It's at pp. 173-75 and repays reading. Their conclusion:

Requiring commanders to exercise prosecutorial discretion and perform judicial functions hinders their ability to respond vigorously and fairly to sexual assault. It also exacerbates the negative impact of inevitable failures of commanders to fairly and objectively act as prosecutors and judges. It rejects the independent prosecutors on whom every other criminal justice system—U.S. state and federal criminal courts, our allies’ military courts, and international criminal courts—relies. As a result, the U.S. military justice system will continue to operate outside the constraints of 21st-century norms for fairness and transparency in criminal justice. We dissent.

Editorial board to Trump: hands off military justice

Pres. Donald J. Trump

The editorial board of the San Diego Union-Tribune has published this powerful editorial in response to President Donald J. Trump's intervention in the pretrial treatment of accused SEAL Chief Edward Gallagher. Excerpt:

That process [military justice] should play out on its own. The San Diego Union-Tribune Editorial Board greatly respects and admires members of the U.S. military. We acknowledge the terrible stress of war. We also agree with the Pentagon: These circumstances don’t excuse a SEAL deciding to execute someone in custody. Instead of intervening, Trump should read the Navy’s “core values of honor, courage and commitment,” which commit every member to “an uncompromising code of integrity, taking full responsibility for my actions and keeping my word.”

Al-Bahlul sentence affirmed

The U.S. Court of Military Commission Review has affirmed the life sentence handed down in the al-Bahlul military commission case. The en banc decision can be found here.

The accused can now appeal to the U.S. Court of Appeals for the District of Columbia Circuit and, eventually, the Supreme Court. Lawfare has this summary by Patrick McDonnell.

Six generals removed for covering up crimes against humanity

Jorge Menendez

On Monday, April 1, 2019, President Tabare Vasquez of Uruguay, removed the Minister of Defense, Jorge Menendez, the deputy Minister of Defense, and three generals, one of whom, Jose Gonzalez, had just been named head of the Army. The next day three more generals were removed from the Military Appeals Court  (Tribunal de Honor de Alzada), which ratified the Honor Tribunal's decision.  The minutes of a Military Tribunal of Honor, covered by journalist, Leonardo Haberkorn, revealed that Colonel Jorge Silveira, confessed to the disappearance of Maria Claudia Garcia Gelman, the daughter-in-law of the Argentine poet, Juan Gelman, who had been detained in Argentina and then taken to Uruguay in 1976, while she was pregnant with her daughter Macarena, who was then given up for adoption in Uruguay.  This was a famous case that was presented to the OAS's Inter-American Commission and Court of Human Rights.  Also, Lt. Col. Jose Nino Gavazzo, confessed that in 1973 he threw Roberto Gomensoro into the waters of the Rio Negro and that he lied to the civilian courts.

Despite these confessions, the Military Tribunal of Honor, held last year, comprised of seven generals, did not find that these confessions constituted an affront to the honor of the accused members of the military.  The accused were sanctioned, however, for having permitted another member of the military, Colonel Juan Carlos Gomez, to spend three years in jail for the killing of Gomensoro when they knew he was innocent.  In 2013, Gomez was finally declared innocent.

The authorities of the Defense Ministry did not include the confessions of Silveira and Gavazzo in the minutes of the Tribunal, which ended up costing them the anger of the President and their jobs.

The confessions of Gavazzo and Silveira are exceptional in Uruguay, where a military pact of silence has made it impossible to solve the majority of the cases involving killings and disappearances during the military dictatorship.  In some cases, members of the military went to jail, even when they were innocent, because nothing could break through this pact of silence.

Congolese military justice now up to the task

In addressing ICC complementarity with African national courts, scholar Phil Clark states "...the [Congolese military] courts have gone through a thorough reform process in the last 15 years to the extent that they can now tackle really difficult cases..." This in a recent interview with Open Societies, discussing Clark's book "Distant Justice: The Impact of the International Criminal Court on African Politics" (Cambridge Univ. Press, 2018). The interview is linked here. Note that in a mixed post-/ongoing conflict environment spanning a vast territory encompassing myriad ethnicities, such as the Democratic Republic of the Congo, well-functioning military courts are essential to finding justice for mass atrocity crimes, and to abating climates of impunity.

Is the JAG's pretrial advice confidential?

That important issue is now before the Delhi High Court. Details here. The plaintiff had been convicted by a summary general court-martial. His request for the JAG's advice has been pending since December 2015.

HASC hearing on the commander's role

The House Armed Services Committee's Subcommittee on Military Personnel will hold a hearing at 2:00 p.m. today under the title "Examining the Role of the Commander in Sexual Assault Prosecutions." The announcement can be found here. If you are in Washington, you can attend -- 2118 Rayburn House Office Building. In any event, the hearing will be carried live, with a link on the committee's website.

The structural problem with retaining convening authority disposition power over offenses other than minor disciplinary matters [thanks, George III] is not confined to sex offenses. It is to be hoped that someone will point this out. This is the first time since the Democrats regained control of the House of Representatives that the Committee on Armed Services has conducted a hearing on this important topic.

Chief Gallagher's case expands

Navy Times reports here on important developments in and around the case of Navy SEAL Chief Petty Officer Edward Gallagher, who is charged with murder. Among the moving parts: withdrawal of one of his civilian attorneys, government release of new evidence to his counsel, leaked information about search warrants that seem to be looking into the possibility of obstruction of justice involving personnel in another SEAL Team, and the separate coverup prosecution of one of his superiors (a junior officer).

The end of Pakistan's military courts' jurisdiction over civilians -- will it stick?

The Express Tribune reports:

Military courts, which were set up under the National Action Plan (NAP) in 2015 to try civilians on terrorism charges, ceased to function on Sunday following the expiry of their second two-year constitutional term.

The government has already made the decision to give another extension of two years to the military courts. However, it lacks the support of opposition parties over the issue as it does not have the required two-thirds majority in any of the two houses of the Parliament to carry out the constitutional amendment for the purpose.

Might these courts rise from the grave? It can't be ruled out. After all, they were revived once after expiry, with several months' retroactive effect. Still their end -- if it sticks -- can only be greeted with relief. The article points out that official data on the courts is unavailable. Why is that? There should be a detailed accounting of all of the cases that passed through the system. Who was tried for what, with what outcome? And what of the cases that are pending within the military court trial and appellate system, as well as those pending review in the High Courts and Supreme Court?

Dawn has a good summary of the history and legal context here.