Reps. Hunter, Gohmert: "Justice for Warriors Caucus"

Two Republican members of the House of Representatives, Duncan Hunter and Louie Gohmert, are launching a new congressional caucus, "Justice for Warriors." You can see them explain why on this One America interview. Rep. Gohmert addresses, among other things, the fact that convening authorities select court-martial members.

The involvement of legislators in the disposition of individual cases is highly problematic. It will be interesting to see who else, if anyone, joins Reps. Hunter and Gohmert in the new caucus.

Craig on Sexual Assault and Canada's Military

Elaine Craig (Dalhousie University - Schulich School of Law) has posted An Examination of How the Canadian Military’s Legal System Responds to Sexual Assault (Forthcoming Dalhousie Law Journal 43:1 Spring 2020) on SSRN. Here is the abstract:

Although the Canadian military has been conducting sexual assault trials for over twenty years, there has been no academic study of them and no external review of them. This review of the military’s sexual assault cases (the first of its kind) yields several important findings. First, the conviction rate for the offence of sexual assault by courts martial is dramatically lower than the rate in Canada’s civilian criminal courts. The difference between acquittal rates in sexual assault cases in these two systems appears to be even larger. Since Operation Honour was launched in 2015 only 1 soldier has been convicted of sexually assaulting a female member of the Canadian Armed Forces by Canada’s military legal system.

(One other conviction was overturned on appeal and is pending before the Supreme Court of Canada.) In addition, plea bargains in which accused individuals can avoid Criminal Code convictions by pleading guilty to military specific discipline offences like drunkenness and disgraceful conduct have been used in some cases involving aggressive sexual attacks. Sanctions for even these serious sexual attacks involved fines and reprimands. Last, the decisions of military judges in some cases suggest a critical failure to recognize the Canadian military’s culture of hostility to women documented in the Deschamps Report. Together these findings raise the following question: regardless of the outcome of the current constitutional challenge to courts martial proceedings in Canada (in R v Beaudry), should the military’s legal system continue to maintain jurisdiction over sexual assault cases?

Brought to our attention by the (US) CrimProfBlog.

No accomodation for Muslims in the SANDF?

Officers of the South African National Defense Force (SANDF) recently ordered two Muslim service members to remove religious headwear. A female major will face a disciplinary hearing for refusing to remove her headscarf. Another major, Simo Mbete, reported he was fined and spent three months in the military barracks for refusing to take off his skull cap last October. Both report long-standing service in the SANDF wearing religious garb with no issue before local commands ordered removal.  

In the United States, protections for service members wearing religious apparel stem from Congress, not the Free Exercise Clause of the First Amendment. After the Supreme Court in Goldman v. Weinberger found an orthodox Jew and ordained rabbi must obey orders to remove his yarmulke, Congress passed 10 U.S.C. § 774, which provides, generally, military members are permitted to wear religious apparel. This general rule is subject to service Secretary regulations ensuring the items are neat and conservative and do not interfere with the performance of military duties.

What these limitations mean in practice is still being ironed out. In 2017, in response to a lawsuit, the Army updated its regulations allowing Sikh and Muslim Soldiers to wear head coverings, and for Sikhs to maintain their beard. Soldiers must submit requests for religious accommodations to their Bridge Commander. If approval is denied, the request is routed to the Army Secretary for a final decision. The Air Force also recently allowed a Sikh airman to wear a turban and beard, and a Muslim judge advocate to wear the hijab.

While current protections may prove ephemeral depending on a service Secretary’s whims, Congressional action, to include 10 U.S.C. § 774 and the Religious Freedom Restoration Act, provide a baseline of protections on behalf of individuals. Here’s hoping the SANDF finds a way to adopt more consistent accommodations that prevent local commanders from selectively interfering with an individual’s religious practices. 

Thai military courts to be revamped

So says the Bangkok Post, but we'll have to wait for the specifics.

Why was this case tried in military court?

Tankloads of ink have been spilled on efforts to liberate Guantanamo detainees and to challenge the U.S. military commissions. In a twist, Cuba has used a military court to convict nine Cubans for attempting to enter the U.S. leasehold enclave.  Eight of them are on a hunger strike. Details here.

Human rights norms strongly disfavor the trial of civilians by military courts.

Fake news

You have to love the internet! Blogger's analytics program shows that in the last two hours Global Military Justice Reform has had 213 hits from Cambodia. Trust us: this is false (unless you count bots).

Spanish officer has no right to denounce the poor state of equipment

A Lieutenant in the Spanish Air Force charged that the Super Puma search and rescue (SAR) helicopters, manufactured by Airbus, have been subjected to a saline environment for 40 years and should not be permitted to fly.  "They are all a crucifix, no one wants to fly them.  I can't keep silent, even if it costs me my career, I too could die in one of these things within six months . . ." he said.

The Lieutenant made these statements first on-line on Facebook and then to the Spanish newspaper "El Mundo" in 2016 after  a Super Puma accident in Morocco, the third accident after two fatal accidents in March 2014 and October 2015, with four and three fatalities, respectively.

The General, chief of the Air Command, sentenced the Lieutenant to 30 days arrest at the air base Son San Joan (Palma de Mallorca) for the serious disciplinary offense of making public complaints against military discipline.   The punishment was reduced to 15 days arrest by the Military Chamber of the Supreme Court, despite the fact that it rejected the Lieutenant's main argument that he was exercising his freedom of speech.

The Supreme Court reproached him for making the denunciation public through the media rather than going through the regulatory complaint procedures of the Air Force.

Bill C-77 passes 3d reading in Senate of Canada

The Senate of Canada has passed Bill C-77, the text of which can be found here. The vote was 55-27, with 2 abstentions. The official summary describes the measure as follows:

This enactment amends provisions of the National Defence Act governing the military justice system. 

It adds a new Division, entitled “Declaration of Victims Rights”, to the Code of Service Discipline, that specifies that victims of service offences have a right to information, protection, participation and restitution in respect of service offences. It adds or amends several definitions, including “victim” and “military justice system participant”, and specifies who may act on a victim’s behalf for the purposes of that Division. 

It amends Part III of that Act to, among other things,
(a) specify the purpose of the Code of Service Discipline and the fundamental purpose of imposing sanctions at summary hearings;
(b) protect the privacy and security of victims and witnesses in proceedings involving certain sexual offences;
(c) specify factors that a military judge is to take into consideration when determining whether to make an exclusion order;
(d) make testimonial aids more accessible to vulnerable witnesses;
(e) allow witnesses to testify using a pseudonym in appropriate cases;
(f) on application, make publication bans for victims under the age of 18 mandatory;
(g) in certain circumstances, require a military judge to inquire of the prosecutor if reasonable steps have been taken to inform the victims of any plea agreement entered into by the accused and the prosecutor;
(h) provide that the acknowledgment of the harm done to the victims and to the community is a sentencing objective;
(i) provide for different ways of presenting victim impact statements;
(j) allow for military impact statements and community impact statements to be considered for all service offences;
(k) provide, as a principle of sentencing, that particular attention should be given to the circumstances of Aboriginal offenders;
(l) provide for the creation, in regulations, of service infractions that can be dealt with by summary hearing;
(m) provide for a scale of sanctions in respect of service infractions and for the principles applicable to those sanctions;
(n) provide for a six-month limitation period in respect of summary hearings; and
(o) provide superior commanders, commanding officers and delegated officers with jurisdiction to conduct a summary hearing in respect of a person charged with having committed a service infraction if the person is at least one rank below the officer conducting the summary hearing. 

Finally, the enactment makes related and consequential amendments to certain Acts. Most notably, it amends the Criminal Code to include military justice system participants in the class of persons against whom offences relating to intimidation of a justice system participant can be committed.

Opinion on the Canadian military justice system

Lawyers's Daily publishes an Opinion Piece titled "Dutil  trial highlights shortcomings of military Justice" calling for real reforms.  Some major structural and organizational changes must be made to ensure that it can conforms to 21st century norms. This is currently not the case.

Some key passages are reproduced below:

"Colonel Mario Dutil was charged with seven military offences and one Criminal Code offence — of which four charges were withdrawn by the prosecution on the first day of the court martial (the fraud charge in relation to an alleged improper expense claim was not withdrawn). 

Now, the court martial has collapsed after the presiding judge recused himself stating that none of the remaining three judges are able to preside over the trial. All of this does not bode well for the reputation of the administration of military justice. It is the kind of thing that would likely shake the public’s confidence in the ability of the military prosecution and judiciary to provide the accused a fair process. It begs the question: could any of this have been avoided or done with a better sense of detachment? The short answer is, absolutely because military tribunals are tribunals of exception in criminal matters.

The aborted court martial of Judge Dutil has already laid bare major structural and organizational defects of courts martial as well as major issues concerning the discernment of the military prosecution in deciding to prosecute Judge Dutil before a court martial as well as the independence of the military judiciary. This can only lead to a severe loss of confidence and trust in the fairness of the military justice system. What is certain; the military justice system is not established, controlled and managed in a way that conforms to expected 21st century norms. There is an urgent need for reform."

Court-martial of Chief Judge Mario Dutil comes to a sudden end

Earlier this morning, Canada's Lawyer's Daily reports that the court martial of the Chief Military Judge, Colonel Mario Dutil, has  collapsed after the presiding judge recused himself and stated that the three other military judges currently on the bench are also unable to preside over the case. The trial now stands adjourned and no plea has been made yet on the merits of the four charges. (Four other charges were withdrawn on the first day of the trial on June 10, 2019.)

"The three Code of Service Discipline charges and the single Criminal Code charge of fraud against the judge could arguably be referred to a civilian criminal superior court. But if the prosecution does so, it would amount to a legal about-face since the prosecution justified its initial decision to proceed via court martial - and still insists - that the charges are of a military nature, and that the fraud charge, while a Criminal Code offence, is inextricably intertwined with the Code of Service Discipline charges."

Will this Marine be punished twice?

Associate Justice
Neil Gorsuch

Yesterday the Supreme Court ruled (7-2) in Gamble v. United States that the longstanding dual sovereignty doctrine remains good law and that there can be both state and federal prosecutions for the same offense, notwithstanding the double jeopardy clause. (Read the opinions -- totally fascinating. Justice Neil Gorsuch's dissent is well done and shows common sense.)

And the Marine Corps announced it was pondering whether to institute military justice proceedings against one of its own who received a suspended jail sentence in state court in an assault case. Honk if you think it will do so.

Egypt loosens restrictions on military courts to prosecute civilians

Tahrir Square, Cairo.
Photo uploaded to commons by Jonathan Rashad - Flickr 

Egypt, with a troubled recent history of military governance and the use of military force against its own population, recently advanced legislative changes that will ease the ability of military courts to prosecute civilians.

The new legislation is in response to changes made to Egypt's constitution in April. The new laws also position the Egyptian president as the head of an overarching judicial council.

“The redraft states that civilians can be tried before military courts only in cases involving crimes against military installations, in military zones and along borders, involving military equipment, vehicles, weapons, ammunition, documents, secrets, funds and factories,” said Bahaaeddin Abu Shokka, head of the Constitutional and Legislative Affairs Committee of the Egyptian parliament.

While described as a careful limitation on the use of military trials of civilians, the criteria listed above could be employed by creative prosecutors against civil dissidents in a wide variety of circumstances.

Military jurisdiction over civilians is widely condemned as a violation of international human rights law.

Whisenhunt and public confidence

USA Today has this op-ed by a Naval Academy graduate who reports that her faith in the military justice system has been shattered by the U.S. Army Court of Criminal Appeals' June 3, 2019 decision in United States v. Whisenhunt. It's easy to be dismayed that an appellate court with only a cold record of trial acquitted after a panel convicted and adjudged a lengthy prison sentence after hearing from live witnesses. And the CCA's power is, if not unique in American criminal justice, at least unusual. But . . .

Before having a crisis of confidence in the system or even just in the part of it that gives the CCAs this power, it is incumbent on commentators to explain what they made of the specific reasons given by the Army Court's unanimous decision in Whisenhunt:

We have carefully reviewed the evidence and, taking into consideration that the panel saw and heard the witnesses and we did not, we nevertheless conclude that appellant’s convictions are factually insufficient. At a minimum, affirming these convictions would require us to reach a number of conclusions that are inadequately supported by the evidence.

The defense theory was that appellant and LM engaged in a consensual sexual encounter while taking active measures to avoid detection. In our view, the circumstantial evidence in support of this defense theory severely undercuts the government’s case. For example, to be convinced of appellant’s guilt, we would have to conclude beyond a reasonable doubt that the sexual acts could plausibly occur (and would not be discovered) without active cooperation from both parties. Given different circumstances, this might not be a stretch. But in the unique circumstances here – which include a bivy cover, a noise-producing space blanket, and numerous squad mates in very close proximity – it is hard to conclude beyond a reasonable doubt that appellant could complete the charged offenses without cooperation or detection.

It is even harder to conclude beyond a reasonable doubt that appellant would anticipate that LM would not make any reflexive noise or movements upon being awakened, which would have alerted multiple others to his criminal activity. This is particularly true when there is no evidence that appellant threatened LM or took any steps, such as covering her mouth, to prevent an outcry. Additionally, appellant would have needed to anticipate that LM would not report his crimes at a later date, when the record is devoid of any evidence that LM could not identify him, that she was incapacitated, or that he had threatened or coerced her. Furthermore, appellant left his semen on LM’s bivy cover, and there is no evidence that he tried to remove this evidence.
The scenario outlined by the defense and the record leaves us with a fair and rational hypothesis other than guilt. United States v. Billings, 58 M.J. 861, 869 (Army Ct. Crim. App. 2003); see also Dep’t of the Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook, para. 8-3-11 (10 Sep. 2014). Ultimately, we are not required to determine categorically whether appellant or LM’s testimony is true, or even whether their testimony is more likely true than not. We do not review convictions under a preponderance of the evidence standard. Instead, we may only affirm convictions that we are ourselves convinced have been proven beyond a reasonable doubt. We are not so convinced in this case.

The service courts do not exercise their appellate-acquittal power frequently or casually. When they do exercise it, they explain their reasons. The Army Court did so here. From the glass-enclosed newsroom high above Global Military Justice Reform Plaza, the reason the Army Court gave seems cogent. That is not to say that more doesn't need to be done to deter sexual assault at the service academies and throughout the armed forces; the Pentagon has said as much (for years). Structural reforms involving the role of the commander are required, not only to foster greater confidence in the administration of justice in sex cases but also across the board. There might be less need for factual sufficiency review if, for example, disposition decisions were made by prosecutors outside the chain of command and if jurors were not selected by commanders instead of an independent court-martial administrator. The discussion should continue, and broaden, but Whisenhunt doesn't mean we should declare the system rigged against complainants.

Ukrainian military justice legislation eyed

From behind its paywall (grrr), The Kyiv Post reports that the country's new president is looking into the need for new military justice legislation. Stay tuned.

Do old cases make bad law?

It is 2019. At a cocktail party back in 1994, a general officer puts his hands on the breasts of the wife of another officer, junior to him. The general retires with 4 stars. He is now 83 years old. The complainant comes forward in 2018.

The UCMJ statute of limitations has long since expired and it is too late to adjust the general's retired grade.

If you were Secretary of the Army or Chief of Staff, what would you do? What do you think happened, and do you think it was fair? Should the rank of the accused make a difference? Can a retiree be reprimanded? What procedural protections should be afforded to the parties? [Source: USA Today, June 14, 2019, p. 3A.]

Crime and punishment in the IDF

The Times of Israel has an interesting report on military justice in the IDF. Excerpt:

The types of low-level crimes that land most soldiers in prison do not require them to be tried before a military court, instead leaving the judgment and punishment up to the discretion of their commander.

According to Chief Military Defense Counsel Ran Cohen, whose unit represents soldiers on trial, this practice gives far too much power to these officers, who use prison “as a default choice, rather than a last resort.”

“We must increase our oversight and reduce [the commanders’] powers,” Cohen told Army Radio on Wednesday, following the station’s release of the military’s latest incarceration figures.

“These statistics indicate a serious problem,” he said.

Personnel of Ethiopian background are punished at materially higher rates than other IDF personnel. The IDF's manpower shop has a committee that will study whether commanders' powers to deal with minor disciplinary offenses should be restricted.

D-NY's MJIA redux

Sen. Kirsten Gillibrand (D-NY)

Sen. Kirsten Gillibrand of New York has reintroduced her Military Justice Improvement Act. According to this report,

Gillibrand’s bill has 29 co-sponsors, including fellow Democratic presidential candidates Sens. Elizabeth Warren (D-Mass.), Michael Bennet (D-Colo.), Amy Klobuchar (D-Minn.), Cory Booker (D-N.J.), Bernie Sanders (I-Vt.) and Kamala Harris (D-Calif.).

The bill also has a few Republican co-sponsors: Sens. Chuck Grassley (Iowa), Ted Cruz (Texas) and Rand Paul (Ky.).

Someday this measure will find its way into an authorization bill and perhaps even a real floor debate rather than puppet-show hearings (if that). So BZ to Senator Gillibrand for her persistence in a worthy cause over the long haul.

One big point to keep in mind: while dismay over the incidence of sexual assault in the armed forces is what has prompted the many sponsors and supporters of this measure to decide it's time to get commanders out of the driver's seat, the mischief goes beyond sexual assault: it is structural and involves the disposition of all serious offenses. Not that the sex offenses are to be overlooked: visit the Court of Appeals for the Armed Forces web page for cases decided in the current Term of Court and see how many involve sex offenses.

Flash -- this just in . . .

U.S. Court of Appeals
for the Armed Forces

United States v. MacGriff, __ M.J. __ (C.A.A.F. 2019) (per curiam):

On consideration of Appellant’s petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we deny the petition.1 However, we note that denial of a petition, although it allows the decision below to stand, does not suggest that we either agree or disagree with the merits of a lower court’s resolution of the case. Cf. Teague v. Lane, 489 U.S. 288, 296 (1989) (recognizing that denial of certiorari by the Supreme Court carries no precedential value as it is not an expression of the Supreme Court’s opinion upon the merits of the case). Thus, denial of this petition carries no support whatsoever for concluding that the lower court either correctly or incorrectly interpreted the scope and application of Farmer v. Brennan, 511 U.S. 825, 832−34 (1994), United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006), or United States v. Brennan, 58 M.J. 351, 355 (CA.A.F. 2003). Cf. Maryland v. Baltimore Radio Show, 338 U.S. 912, 919 (1950) (emphasizing that denial of certiorari reflects no judgment on the opinion below); United States v. Mahan, 1 M.J. 303, 307 n.9 (C.M.A. 1976) (reiterating that the denial of a petition is of no precedential value). 

1 The sole issue raised was: Whether the Court of Criminal Appeals improperly conducted a review of the prejudice resulting from Appellant being subjected to cruel and unusual punishment during his post-trial confinement.

Anyone with insight as to why the Court of Appeals felt impelled to issue this per curiam is invited to comment. (Real names only, as usual.) Why bother, other than perhaps to reduce the risk that, on collateral review, MacGriff's lights will be put out under the "full and fair consideration" rule of Burns v. Wilson? Is that a proper subject for CAAF to comment on, even indirectly? And why not grant and summarily affirm, permitting MacGriff to seek certiorari under the current perversely discriminatory statute?

Er, course correction

Here's a new one. Apparently Barbados permits courts-martial to proceed without a judge advocate calling the legal shots. In a case that is already underway, the prosecutor has belatedly suggested it would be a good idea to have a judge advocate presiding after all since the case involves -- shockingly -- legal issues.

Why can't Congress get this right?

It seems to be common ground that efforts to date to curb sexual assault in the U.S. armed forces have not been successful. What to do?

One good thing not to do is propose, as is currently happening in the House of Representatives, that disposition decisions in cases arising at the service academies be made by prosecutors outside the chain of command. Who could possibly object?

This actually is not a good idea because it would create a second system of military justice, just for the service academies and just for sex offenses. So much for the "U" in UCMJ. It also would leave George III's commander-centric system in place for the lion's share of military personnel and offenses.

Instead, Congress should take charging decisions for all non-minor offenses away from all commanders and give that critical power to lawyer prosecutors outside the chain of command. (And remove commanders' equally indefensible power to pick jurors.)

Here is an excerpt from the Military Times report by Leo Shane III:

[Rep. Jackie] Speier’s plan is a four-year pilot program establishing an independent chief prosecutor to review all sexual assault reports at military academies and determine which cases should be referred to court-martial.

Sexual assault victims’ advocates have pushed for the traditional military chain of command to be removed from those decisions in the past, arguing that senior military leaders are either ill-informed about how to proceed with such cases or inclined to dismiss them to conceal problems in the ranks.

Rep. Michael Turner, R-Ohio, unsuccessfully tried to offer an alternative plan, arguing the new pilot program set a problematic new legal precedent by handling sexual assault cases in the active-duty force differently from ones at the academies.

He and other Republican members also argued that the move would de-emphasize commanders’ role in ending sexual assault and harassment instead of holding them accountable for the offenses.

The provision requires the independent official would be a one-star general or admiral with “significant experience prosecuting sexual assault trials” who is independent from the academies.

Before the idea can become reality, the idea must survive negotiations with Republican-controlled Senate, where lawmakers have for years opposed similar proposed moves from Sen. Kirsten Gillibrand, D-N.Y.

Defense Department officials have also strongly objected to the idea, promising their own series of fixes to address the problem of criminal behavior among troops.

ABA, Clooney Foundation preliminary report on Equatorial Guinea mass military trial

Juan E. Mendez, former UN special rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and member of the Clooney Foundation for Justice’s TrialWatch Expert Panel, has issued a preliminary report on a mass trial on behalf of the American Bar Association’s Center for Human Rights and as part of CFJ’s TrialWatch Project. Concerning the degradation of judicial impartiality and independence, he writes:

Perhaps the most serious due process violation that occurred was the blatant lack of judicial impartiality and independence. In placing undue restrictions on the defense and adopting a permissive attitude towards prosecutorial misconduct, the judge demonstrated a strong bias against the defendants to the point of ignoring their presumption of innocence. Although acts of insurrection and attempted assassination are extremely serious, it is precisely because of their gravity that the trial should have been conducted with complete and visible impartiality at all stages before conviction as well as with absolute autonomy, absent any pressure or orders from other branches of government.

To the contrary, the President of Equatorial Guinea directly intervened in the trial. On April 1, 2019, with the proceedings already underway, it was announced on state television that the President had appointed two new magistrates from the military and two new prosecutors from the military via executive decree. Moreover, on April 8, a military official appeared in the audience to serve - according to local journalists - as an “observer.” Monitors noted that throughout the remainder of the proceedings, the official relayed messages to the prosecution and judges. The encroachment of Equatorial Guinea’s political masters was thus evident at trial.

TrialWatch is a terrific idea -- bravo to the Clooney Foundation for Justice for establishing it, and to both organizations for partnering on the report. Mr. Mendez is the gold standard among human rights experts.

Who judges a chief judge?

The court-martial of Canadian Armed Forces Chief Judge Mario Dutil began yesterday with a bang: must the presiding judge, who is Col. Dutil's deputy, recuse himself? The Times Colonist has the story here. Excerpt:

"I think a reasonable person who is well-informed will determine that there is a clear conflict of interest," said [defense counsel Philippe-Luc] Boutin, who added that he had flagged concerns early on about his client being tried in the military court system. 

Military prosecutor 2nd Lt. Cimon Senecal, who has yet to make his own arguments, defended the decision to try Dutil via court martial because several of the charges are not in the Criminal Code but fall exclusively under military law. 

"We still believe that this decision was correct and we're moving forward and there's nothing has changed that we think the situation should change," he said. 

"I'm confident a person who is subjected to (military law), for such a person, the military justice system will find a way to ensure that this person faces the appropriate measures."

Not military justice, but

How long can detention at Guantánamo last under the Authorization for the Use of Military Force? Justice Stephen Breyer says in connection with the denial of certiorari in Al-Alwi v. Trump, "I would, in an appropriate case, grant certiorari to address whether, in light of the duration and other aspects of the relevant conflict, Congress has authorized and the Constitution permits continued detention." No Justice joined him.

Charlie Savage and Carol Rosenberg report here on Justice Breyer's statement regarding the denial of certiorari. They write in The New York Times:

"Mr. Alwi is one of 40 remaining detainees. Nine are charged or convicted in the troubled military commissions system; 26 are recommended for continued detention; and five are recommended for transfers to stable countries, although the Trump administration has not sought to carry them out."

About that high acquittal rate in Canada

Gloria Galloway, writing in The Globe & Mail, reports here on the jaw-dropping acquittal rate in Canadian court-martial sexual assault cases. She refers to a forthcoming Dalhousie Law Journal article by Prof. Elaine Craig, an advance version of which can be found here. Her abstract:

Although the Canadian military has been conducting sexual assault trials for over twenty years, there has been no academic study of them and no external review of them. This review of the military’s sexual assault cases (the first of its kind) yields several important findings. First, the conviction rate for the offence of sexual assault by courts martial is dramatically lower than the rate in Canada’s civilian criminal courts. The difference between acquittal rates in sexual assault cases in these two systems appears to be even larger. Since Operation Honour was launched in 2015 only 1 soldier has been convicted of sexually assaulting a female member of the Canadian Armed Forces by Canada’s military legal system. (One other conviction was overturned on appeal and is pending before the Supreme Court of Canada.) In addition, plea bargains in which accused individuals can avoid Criminal Code convictions by pleading guilty to military specific discipline offences like drunkenness and disgraceful conduct have been used in some cases involving aggressive sexual attacks. Sanctions for even these serious sexual attacks involved fines and reprimands. Last, the decisions of military judges in some cases suggest a critical failure to recognize the Canadian military’s culture of hostility to women documented in the Deschamps Report. Together these findings raise the following question: regardless of the outcome of the current constitutional challenge to courts martial proceedings in Canada (in R v Beaudry), should the military’s legal system continue to maintain jurisdiction over sexual assault cases?

Will there be fallout from the Whisenhunt case?

Col. Don Christensen,
U.S. Air Force (Ret)

The U.S. Army Court of Criminal Appeals decision in United States v. Whisenhunt has sparked controversy. From this article in The New York Times:

Col. Don Christensen, president of Protect our Defenders, an organization dedicated to ending rape and sexual assault in the military, said military courts need to be revamped and the quality of the judges improved. 

“Congress needs to quit messing around when it comes to reforming the military justice process,” said Colonel Christensen, who is retired from the Air Force. “This is one example of many that they have allowed to go on for too long.” 

He said Congress should impose stricter requirements to become a military trial or appellate judge. “The appellate courts in the military are by far the least experienced courts in the entire country,” he said.

Interestingly, a case from the Naval Academy led to major changes in the Article 32 pretrial investigation (now known as the preliminary hearing) process under the UCMJ. Will the Whisenhunt case, from West Point, spark other changes?

The Gallagher Case

Global Military Justice Reform and the Editor have filed this supplemental memorandum on the sealing issue in United States v. Gallagher. The parties have until June 14, 2019 to submit their views, and the matter will be addressed on June 17, 2019.

The military judge's June 7, 2019 ruling disqualifying trial counsel and granting UCI relief can be found here.

This high-profile case merits a dedicated web page for pleadings and rulings.

South Africa: no automatic reinstatement after civilian conviction is overturned

The Supreme Court of Appeal of South Africa has decided an interesting case with a military angle. What happens if a member of the Defence Force has been discharged because of a civilian criminal conviction but the conviction is later overturned on appeal? Is the soldier automatically entitled to reinstatement? Held, no. See Minister of Defence and Veterans Affairs v. Maswanganyi, (739/18) [2019] ZASCA 86 (31 May 2019).

Conviction, dismissal in Barbados Defence Force

A Barbados Defence Force court-martial has sentenced a lieutenant to be dismissed the service, according to this report. He had been charged with communicating with the enemy (who would that have been?), but that allegation was dropped. Instead, he was

found guilty of neglect to the prejudice of good order and military discipline by not informing his superiors about a threat to a junior Coast Guard member; and engaging in conduct that prejudiced the good order and military discipline by carrying out unauthorized information-gathering operations at various locations between January 1, 2018 and September 30, 2018.

Interestingly, the six-member panel was drawn from several CARICOM member states. The defense says it will appeal once command review has been completed.

Global Military Justice Reform moves to unseal Gallagher order

David Schulz

Global Military Justice Reform and the Editor today moved to unseal the military judge's order removing the trial counsel in United States v. Gallagher.  Many thanks to David Schulz of the Media Freedom and Information Access Clinic [pronounced "MAFIA," of course] at Yale Law School's Abrams Institute, for undertaking this pro bono representation on very short notice.

The motion can be found here.

The declining number of veterans in the post-draft era

The 19.5 million veterans represent just 7.5% of the US adult population, down from 18% in 1980.  The Veterans Department projects that there will be 40% fewer veterans by 2045.  There are now more Gulf War-era veterans than Vietnam-era veterans as the latter are beginning to die off.  As of 2016 data, there were 6.8 million Vietnam War-era veterans and 7.1 million Gulf War-era veterans.

There were also approximately 700,000 WWII veterans and 1.6 million Korean conflict veterans. Over the past 50 years the number of people on active duty has dropped from 3.5 million in 1968, during the draft era, to 1.3 million (less than 1% of the US adults) in today's volunteer military.  The military draft ended in 1973.

Currently 91% of veterans are men while 9% are women.  By 2045, the Department of Veteran Affairs expects the share of female veterans to double to 18% (from 1.9 million to 2.2 million). Male veterans are projected to drop by almost half from 18.5 million in 2016 to 9.8 million in 2045.

Fewer members of Congress have prior military experience than in the past. As the share of Americans who are veterans has declined, so has the share of Congress members who have previously served in the military.  In the current Congress, the number of veterans elected to Congress in 2018 has dropped to under 100, the lowest level since before World War II.

Transparency watch

The Times reports here on yesterday's order removing trial counsel in the Gallagher case. Why is the military judge's order sealed?

Racial disparities in the military criminal justice system

A newly released Government Accountability Office report suggests black and Hispanic servicemembers are facing investigations and general courts-martial at a higher rate than their white counterparts across the Army, Navy, Marine Corps and Air Force. (The Coast Guard did not collect sufficient demographic data.) 

The military prides itself on its history of integrating the services ahead of the United States’ full integration of the Jim Crow South. This initial GAO assessment suggests the military has not solved the broader cultural problem of racial disparities in criminal justice before the rest of society. (Although the report found no significant differences regarding conviction rates and sentence inequality among racial groups.)   

The GAO report was generated by the 2018 National Defense Authorization Act. The report looked at the period from 2013-2017 to gather its data and found that the services had not adopted uniform standards for data collection. Future analysis should have more complete data, as the Department of Defense directed the services to collect uniform data on race and ethnicity related to the processing of military justice cases. Hopefully. with more complete data the military can take steps to correct any racial imbalances in how it investigates and prosecutes criminal cases.

You looking at me?

[IDF Military Advocate General Sharon] Afek, though a major general, is far removed from the world of the top brass and isn’t always viewed as real army. On the bus to Tze’elim, one young first lieutenant asked Afek: “Who are you?” The military advocate general replied: “The fact that you don’t know me is a good sign from your point of view.”

As quoted here in Ha-aretz

Coming soon, for your military justice bookshelf

Pascal Lévesque of the Université du Québec à Chicoutimi has a timely new book coming soon: Frontline Justice: The Evolution and Reform of Summary Trials in the Canadian Armed Forces. Ordering information is available here. Here is the publisher's description:

Compared with its civilian counterpart - which struggles with delays and uncertain results - summary military justice is efficient. From offence until outcome, 90 per cent of cases are dealt with in less than ninety days. The other side of the coin is that there is no right to representation by defence counsel, no transcript produced, and no appeal to a judge. Nine times out of ten, individuals are found guilty. For service members, consequences can include fines, reductions in rank, confinement, and sentences of up to thirty days in military jail, sometimes with a criminal conviction.

Addressing important gaps in legal literature, Frontline Justice sets out to examine summary justice in Canada's military and to advocate for reform. Pascal Lévesque describes the origins, purposes, and features of the summary trial system in the Canadian Armed Forces. He then analyzes the system's benefits and flaws and the challenges it faces in maintaining discipline while respecting the Canadian Charter of Rights and Freedoms. Lévesque determines that troubling aspects of the system, including the fact that lower and higher ranks are dealt with and punished differently, are clear indicators of a need for change. Criticizing current legislation, the book takes into account the latest developments in military law and jurisprudence to make concrete recommendations for an alternative model of military justice.

A thought-provoking and balanced analysis, Frontline Justice seeks to remedy some of the more unfair and arcane proceedings of the Canadian military's summary trial system.

Congratulations to the author!