Wednesday, July 31, 2019

Who knew?

Mass Moments reports:

On this day in 1876, Congress established at New Bedford the first School of Instruction to train officers for the Revenue Service. The Service traced its history back to 1790 when Congress decided it needed to ensure that vessels entering United States ports paid tariffs on their cargo. In other words, they wanted to prevent widespread smuggling. Over the years, the Revenue Service took on additional responsibilities — protecting American ships from pirates, intercepting slavers after the Atlantic slave trade was banned, and assisting vessels in distress. In 1915 it merged with the Life-Saving Service and was renamed the United States Coast Guard. At that point the School of Instruction became the Coast Guard Academy, which has been located in New London, Connecticut, since 1910.

H/T John L. Talvacchia of the Massachusetts Bar.

Will military executions resume?

This Army Times article by Kyle Rempfer explores the potential implications of the Trump administration's push to resume federal executions. The last military execution occurred in 1961. Four men are on death row for offenses under the Uniform Code of Military Justice.

Tuesday, July 30, 2019

The Jadhav case: round 2

Khwaja Ahmad Hosain
Pakistani barrister Khwaja Ahmad Hosain has written this Wire analysis of what happens next following the decision of the International Court of Justice in India v. Pakistan (Jadhav):
The ICJ notes in its decision that “it is not clear whether judicial review of a military court is available on the ground that there has been a violation of the rights set forth in ….the Vienna Convention”. In reaching this conclusion, the ICJ proceeds on the mistaken assumption that constitutional amendments in Pakistan prevent persons convicted by military courts from relying on breaches of fundamental rights.

The relevant constitutional amendment prevented the law extending the jurisdiction of military courts from being struck down as unconstitutional. It did not restrict the right available to a person convicted by such court from challenging the conviction through a judicial review process. In light of the ICJ’s observations, it seems clear that the civilian courts must consider the impact of denial of consular access on Jadhav’s trial for Pakistan to fulfil its obligations to provide for effective review.

The government will need to proceed with caution in this case to ensure compliance with the ICJ decision. If Jadhav retracts his confession on the basis that it was given under duress and in absence of consular/legal advice, is there any other evidence linking him to the crimes he confessed to having committed? Convictions solely on the basis of confessions in custody are often troubling and unsound. In any case, the government and authorities should be focused on getting the right and fair result in any review and reconsideration, and the aim should not be to uphold the conviction at any cost.

Transparency watch (MONUSCO)

"MONUSCO informed Human Rights Watch that it was unable to comment on whether disciplinary action was taken against any of the UN peacekeepers involved."

A September 2017 massacre of Burundian asylum seekers occurred in Kamanyola but UN peacekeepers stationed a few hundred meters away did not intervene. Nor has the UN released its report of investigation. The whole story can be found here, thanks to Human Rights Watch.

Monday, July 29, 2019

Vector analysis and interpretation of Stillman

Lawyers' Daily publishes a careful analysis of the recent decision [Stillman v. Her Majesty the Queen, 2019 SCC 40] by the Supreme Court of Canada which concluded that the Canadian Parliament has validly enacted section 130 (1) of the National Defence Act by which a serious civil criminal offence is tried as as service office and, as a result, it qualified as "an offence under military law", thereby engaging the military exception in section 11(f) of the Charter of Rights and Freedoms.

Being a soldier is not easy. You are asked to do things not asked of other people.

Soldier's values and standards..
Fit, aggressive, courageous, disciplined, selfless,-loyal.
A tradition of service to the country.
The latest SCC decision in R v. Stillman champions the status quo.  This is a major disappointment for those, like me, who had hoped for a modernization and democratization of the Canadian military justice system.

In a 5-2 decision, the court does not introduce any changes to the military court martial system. Instead, the majority finds that there are no constitutional issues with the military’s use of a five-military member panel to decide Criminal Code matters (vice a 12-person civilian jury that is constitutionally protected for civilian trials). The court also upheld their previous finding in Moriarity which determined that there is no need for a military connection, or nexus, for a military court martial to assume jurisdiction over a Criminal Code offence. Failure to allow the military justice system to operate as-is, the majority find, could have the result of undermining confidence in the military justice system, and affect morale within the military.

A strong dissent

The dissenting opinion of Justices Karakatsanis and Rowe is diametrically opposed.

In a powerful dissent, these justices find that, to be heard before a 5-member panel, Criminal Code offences which could attract a term of imprisonment of 5 years or more actually should require a military nexus. Otherwise, the matter should be remanded to civilian court. The dissenting voice finds that the current military justice framework has clear unconstitutional elements, and would have dramatically altered the rights of a military accused facing criminal charges.  I agree with that dissent.

The net result

The result is that the majority decision endorses a two-tiered system of justice in Canada. Soldiers, sailors and aviators will continue to be the only persons in Canada who are denied the constitutional right to a jury trial.  A military accused charged with aggravated assault, for example, may be heard before a 5-person, all military panel. A conviction requires unanimity within this panel. A civilian charged with the exact same offence will have the right to a 12-person jury trial. It may be more difficult, optically, to achieve unanimity from a 12-person jury, than from a 5-person panel particularly when those five persons are drawn from the same pool (military officers) who share the same values, and ethos and reports -- before and after the trial -- to the same employer, the military chain of command.

To top if off, the judge is also a military officer.

Looking ahead

For the foreseeable future, the military justice system will continue to operate separate and apart from civil society. Ne’er the two shall meet.  In some ways, this runs counter to the growing trend of NATO countries which are eliminating military trials all together in peacetime.

Be that at it may it is now up to Parliament to decide whether the National Defence Act (NDA) should be amended, particularly in light of the 2018 report titled Administration of Justice in the Canadian Armed Forces submitted by the Auditor General.  That report which concluded that:

"The Canadian Forces did not administrer the military justice system efficiently. There were delays throughout the various processes for both summary trials and court martial cases.  In addition, systemic weaknesses, including the lack of time standards and poor communication, compromised the timely and efficient resolution of military justice cases."

Sunday, July 28, 2019

Stillman: an easy case?

A non-lawyer writing in the National Post has this to say about Friday's Stillman decision of the Supreme Court of Canada:
No other group in society willingly signs up to a job that involves, if necessary, employing massively destructive weapons to blow stuff up and kill people in a purely offensive mission. No other group in society signs up for a job where they can be ordered to stay behind and die in a helpless fight if the overall tactical situation requires said sacrifice. No other group in society agrees to serve under a regimented chain-of-command that they can be imprisoned for violating. No other group in society agrees to tolerate the same level of dislocation to their personal lives as military members take on as a matter of routine. (Imagine how you’d react if your boss told you you were spending the next eight months in a primitive camp in the middle of a hostile foreign country getting shot at).
Might one not ask, as the dissenting justices in effect did, what this has to do with offenses that have no connection to military service and that, if tried in civilian court, would entail the Charter right to trial by jury?

Spoofing @ DEVGRU?

A member of the Navy's SEAL Team 6 is facing charges of "spoofing." Details here, thanks to Navy Times.

The specific language of the charges seems not to have been made public, but, judging by this story from the Virginian-Pilot, they include a novel "unlisted" offense under Article 134, UCMJ (à la United States v. Sadinsky):
[Defense counsel Michael] Waddington said the case should be dismissed, in part, because he believes the Navy effectively made up charges that aren't specified in the Uniform Code of Military Justice, such as "impersonating a person" and "requesting nude photographs under false pretenses." Each of the specifications Howard has been charged with are under General Article 134, which covers "all conduct of a nature to bring discredit upon the armed forces."

Friday, July 26, 2019

SCC decides Stillman, Beaudry cases

By a 5-2 vote, the Supreme Court of Canada today decided Stillman v. H.M. The Queen, No. 37701, and related cases under the Code of Service Discipline. From the summary by the court's communications staff:
The majority at the Supreme Court said military members could be tried for civilian crimes without juries. The Constitution gives Parliament power over the military. This includes the power to pass a law saying that civilian crimes committed by military members are service offences. This makes them offences under military law. The majority noted that when a military member commits a civilian crime (even in a non-military setting), that has an impact on discipline, efficiency, and morale. Because of all this, the majority concluded that when a military member is charged with a civilian crime, the military exception under section 11(f) of the Charter applies. That means there is no right to be tried by a jury.
Justices Moldaver and Brown jointly wrote for the majority; Justices Karakatsanis and Rowe had a joint dissent.

A special ops crisis?

"Congress needs to hold immediate hearings with special operations commanders to uncover whether there is a pervasive problem of rule-flouting and lack of accountability; to examine the rules of engagement; and to explore remedial measures. Congress should also appoint an independent commission to study the legal, ethical, moral and criminal problems possibly plaguing the special operations forces communities, and to recommend reforms."

From this USA Today column by Prof. Geoffrey Corn and Global Military Justice Reform contributors Butch Bracknell and Prof. Rachel VanLandingham.

Watch this space.

Thursday, July 25, 2019

Finis for "The Code"

The CBS television military justice series will not go on. As Task & Purpose observes, there were vexing accuracy issues:
But based on the critical response of military and veterans observers, The Code focused more on how to inaccurately portray service members than the intricacies of the military justice system. Indeed, the series' pilot episode focused on the court-martial of a Navy O-5 who, inexplicably, appeared in the uniform of an O-3.

Among the other problems:
  • Non-regulation haircuts
  • Erroneous uniforms
  • Excessive rank observation
  • Protocol violations
  • Calling Marines soldiers.
  • NOBODY EVER WEARS THEIR F*CKING COVER
Sir, yessir

Wednesday, July 24, 2019

Why is this case going to a military court? (one in a long series from Lebanon)

Lebanon is at it again, this time referring a case involving the murder of two aides to a cabinet member to the country's military court. Details (confusing one) can be found here. There is no suggestion in the report that the perpetrators were members of the armed forces.

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

Tuesday, July 23, 2019

Nepotism alleged, denied in Cambodia's military court

Is there nepotism in the Military Court of Cambodia? According to this report, the place is populated by relatives of the chief judge, a lieutenant general. They include his wife, three sons, and two cousins. "The Law on Organisation and Activities of Courts says the military court only has jurisdiction over military crimes committed by military personnel. If a member of the army commits a 'civilian' crime like robbery or assault, they are to be tried by civilian court."

The slows continue in India

India's Armed Forces Tribunal has a backlog of 16,000 cases. Three of the court's benches are functioning. Details here. Excerpt:
In September 2016, the Armed Forces Tribunal Bar Association had filed a complaint with the then Chief Justice of India demanding immediate appointment of judicial members for swift disposal of cases. 
The Supreme Court had took cognizance of the case and admitted it as a Public Interest Litigation. 
However, the apex court is yet to deliver a final verdict in the case. The last time hearing was ever conducted in the matter was more than a year ago on February 23, 2018.

Saturday, July 20, 2019

What's doing (or not) in Canada

Jesse Ferreras and Abigail Bimman have written this review of current Canadian military justice developments. It may quite a while before recent reforms take effect because implementing regulations are required.

Friday, July 19, 2019

Mark your calendar

The Supreme Court of Canada will hand down the decisions in the Stillman and Beaudry cases on July 26, 2019.

Comme ci comme ca! [Like this like that"]

July 18, 2019.l Toronto's CITY NEWS reports  that  The Director Military Prosecutions (DMP) at National Defence Headquarters (NDHQ) has filed a Notice of Application for a Certiori Order to quash the June 18, 2019 decision of LCol Louis-Vincent D’Auteuil, Deputy Chief Military Judge, to recuse himself from presiding over the Court Martial of Colonel Mario Dutil, the Chief Military Judge, over conflict-of-interest concerns and to also refuse to appoint any of the remaining three military judges. 
"Public confidence in the court-martial system and the function of a military judge could be undermined if I appoint a replacement military judge from among those who are currently eligible," d'Auteuil concluded.  In its Application, the DMP is also asking for a Writ of Mandamus so that the Deputy Chief Military Judge properly fulfill his official duties by appointing a military judge to preside over the court martial of Colonel Dutil.

If you are in or near Colorado . . .

You can see a performance of Benjamin Britten's "Billy Budd" at the Central City Opera. Details here. The opera is based on the novella by Herman Melville.

Thursday, July 18, 2019

ICJ decision in India v. Pakistan (Jadhav Case)

The decision and separate opinions of the International Court of Justice in India v. Pakistan (Jadhav Case) can be found here. Part of the judgment addresses what happens next as a result of Pakistan's violation of the Vienna Convention on Consular Relations:
144. In light of these circumstances, the Court considers it imperative to re-emphasize that the review and reconsideration of the conviction and sentence of Mr. Jadhav must be effective.

145. In this regard, the Court takes full cognizance of the representations made by Pakistan. During the oral proceedings, the Agent of Pakistan declared that the Constitution of Pakistan guarantees, as a fundamental right, the right to a fair trial; that the right to a fair trial is “absolute” and “cannot be taken away”; and that all trials are conducted accordingly and, if not, “the process of judicial review is always available”. Counsel for Pakistan assured the Court that the High Courts of Pakistan exercise “effective review jurisdiction”, giving as an example the decision of the Peshawar High Court in 2018 (see paragraph 142 above). The Court points out that respect for the principles of a fair trial is of cardinal importance in any review and reconsideration, and that, in the circumstances of the present case, it is essential for the review and reconsideration of the conviction and sentence of Mr. Jadhav to be effective. The Court considers that the violation of the rights set forth in Article 36, paragraph 1, of the Vienna Convention, and its implications for the principles of a fair trial, should be fully examined and properly addressed during the review and reconsideration process. In particular, any potential prejudice and the implications for the evidence and the right of defence of the accused should receive close scrutiny during the review and reconsideration.
146. The Court notes that the obligation to provide effective review and reconsideration can be carried out in various ways. The choice of means is left to Pakistan (cf. LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports 2001, p. 514, para. 125). Nevertheless, freedom in the choice of means is not without qualification (Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I), p. 62, para. 131). The obligation to provide effective review and reconsideration is “an obligation of result” which “must be performed unconditionally” (Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Judgment, I.C.J. Reports 2009, p. 17, para. 44). Consequently, Pakistan shall take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation.
147. To conclude, the Court finds that Pakistan is under an obligation to provide, by means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Vienna Convention, taking account of paragraphs 139, 145 and 146 of this Judgment.

Wednesday, July 17, 2019

Brava Christina!

Christina Cerna
Hearty congratulations to Global Military Justice Reform's longtime contributor Christina Cerna on her election to the Amnesty International USA Board of Directors.

Some reforms in Uruguay

The Uruguayan Senate is to vote on a measure that will abolish the defense of obedience to orders where the order entails a human rights violation. Additionally, the country's Courts of Honor will be abolished, to be replaced by an Ethics and Military Conduct Tribunal. More information here.

Tuesday, July 16, 2019

UK MOD Report on Inappropriate Behaviours

The UK Ministry of Defence has issued a Report of Inappropriate Behaviours. It is available here. The Executive Summary states:

On 10 April 2019 in response to repeated instances of inappropriate and allegedly unlawful behaviour by serving members of the UK Armed Forces, the Secretary of State for Defence commissioned an urgent report into inappropriate behaviours in the Armed Forces. The report, due in mid-May 2019, was expected to: understand the current evidence regarding inappropriate behaviour across the Services; make recommendations on what can be done to ensure and reassure the Armed Forces are an inclusive and modern employer; and identify areas for further action, including potential improvements to controls, processes or policy.

There are nearly 250,000 people in Defence, military and civil service, and the overwhelming majority serve with great pride collectively protecting the UK 24/7. The UK Armed Forces are a formidable fighting force and the commitment of all military and the civilians that support them is rightly celebrated. In bleak contrast, however, inappropriate behaviour persists which harms people, the teams they serve in and, ultimately, operational output. There is no single comprehensive picture of inappropriate behaviours in Defence, however the data that does exist points to an unacceptable level of inappropriate behaviour and a sub-optimal system for dealing with it when it does occur. Such behaviour – and its consequences for the people affected by it – damages the UK Armed Forces’ hard-won reputation for courage, determination and professionalism, and almost certainly has an impact on attracting, recruiting and retaining the talent that our Armed Forces and Civil Service need. Culture and performance is not a trade-off; tackling inappropriate behaviour is performance-enhancing for Defence, as well as the right thing to do.

Sunday, July 14, 2019

Supreme Court of India reiterates that Summary Court Martial can only be held in emergent and exceptional cases

The Supreme Court of India has once again held that a Summary Court Martial (SCM) can only be pressed into service in exceptional circumstances and emergent situations.

The case involved a soldier, Randhir Singh, who was dismissed from service by way of a verdict by a SCM and his appeal against the same was also dismissed by the Armed Forces Tribunal.

While challenging the order of the Court Martial, it was contended by the soldier that there was no urgent need of holding an SCM when the event was of the month of August 2007 while the SCM ultimately convened in May 2008.

The Supreme Court, finding weight in the argument, has converted the dismissal of the soldier into discharge with pensionary benefits. The entire decision of the Court can be accessed here

The Court has relied upon its earlier verdict wherein it was held that an SCM is an exceptional tool and cannot be used in routine cases where a proper trial is feasible.

Friday, July 12, 2019

One of these days,

the Supreme Court of Canada will hand down its decision in a landmark case concerning the validity of a provision of the Code of Service Discipline that turns every violation of the civilian Criminal Code into a military offense, notwithstanding the resulting deprivation of the right to trial by jury. But what's happening on the ground with respect to offenses committed by military personnel? This report from the Globe and Mail tells the tale. Short version: some cases are being shunted into the civilian courts, and a few of those are not being pursued as a matter of civilian prosecutorial discretion. A few other cases have been downgraded so they can be handled in military summary trials. Bottom line: the sky hasn't fallen.

Thursday, July 11, 2019

Mark your calendar

The South African hijab case goes to trial on August 7. This news report indicates that the defense is hoping the matter will go away with ministerial intervention.

Sex and service in Korea

Today's New York Times has this report about military justice policies in South Korea with respect to gay sex. Gay personnel may now serve openly, but sex? Not so much.
South Korea’s military says it does not discriminate against sexual minorities. But [Lieut.] Kim is one of an increasing number of gay or transgender soldiers who have been persecuted under Article 92-6 of the Army Criminal Act, which has been used to out them and punish them for consensual sex, Amnesty International said in a report released on Thursday.

Under Article 92-6, “anal sex and other indecent acts” between military personnel can be punished by up to two years in prison, even if they take place off base, while the soldiers are off duty and by mutual consent. Repeated attempts by advocates for L.G.B.T. and intersex people to abolish the law have been unsuccessful.

“South Korea’s military must stop treating L.G.B.T.I. people as the enemy,” said Roseann Rife, East Asia research director at Amnesty International. The group’s report, “Serving in Silence,” also details sexual and other abuses inflicted on gay soldiers, or soldiers perceived as gay, by their superiors and their fellow soldiers.

“It is long overdue for the military to acknowledge that a person’s sexual orientation is totally irrelevant to their ability to serve,” Ms. Rife said.

The South Korean government says Article 92-6 is not meant to punish sexual orientation. Rather, it says, it is needed to deter sexual abuse in the army, which is almost entirely male. The country’s Constitutional Court has repeatedly ruled that the article is justified by the military’s need to preserve discipline and “combat power.”
Amnesty International's report can be found here

A new military lawyers' organization is founded in Italy

We learn from the Paola Casoli blog that a new organization of military lawyers has been created in Italy: the Military Criminal Chamber (Camara Militare Penale). The blog reports (Google translation):
This new body, which is based in the premises of the Military Tribunal of Rome, aims to protect the figure of the defender and the independence of military criminal lawyers in accordance with constitutional, community, international norms and the Universal Declaration of Human Rights, without exception to gender conditions; to strengthen the links between military criminal lawyers, encouraging their training; to promote policies aimed at military criminal justice reform, with a look at the introduction of conflict mediation and the construction of an organizational model of the Armed Forces as a penal exemption; to monitor, finally, so that military criminal law in peace and war, in its interpretation and application, is inspired by the protection of the rights and dignity of citizens and those who are under military jurisdiction, protecting the gender.

The association represents an absolute novelty in the legal profession. Signatories of the initiative are lawyers Saveria Mobrici, Eduardo Boursier Niutta, Alberto Polini, Fabio Federico, Alessandro Diotallevi, Giorgio Carta, Gianfranco Ceoletta, Elvira Ciancio, Antonio Ferdinando De Simone, Anita Mangialetto, Claudio Maria Polidori, Pierpaolo Rivello, and Angelo Fiore Tartaglia.
Congratulations to the founders of this new entity.

Wednesday, July 10, 2019

Thai cases transferred to civilian courts

The Thai junta has revoked the rule authorizing military trials of certain offenses by civilians. According to this report in the Bangkok Post:
For one thing, the order repeals announcements and orders by the [National Council for Peace and Order] and its chief putting some types of offences under the military court’s jurisdiction.

“All offences under the NCPO orders, whether committed before or after this order takes effect, will be in the jurisdiction of the courts of justice. The cases being tried by the military court will also be transferred to the courts of justice,” it reads.
Human rights jurisprudence strongly disfavors the trial of civilians in military courts. 

Saturday, July 6, 2019

Mark your calendar

The International Court of Justice is to hand down its decision in India v. Pakistan (Jadhav) on July 17. The case on one level involves an apparent violation of the Vienna Convention on Consular Relations, but it includes an attack on Pakistan's military courts.

Wednesday, July 3, 2019

A thought for Independence Day

George III
The King’s Speech on the Opening Session, October 31, 1776.

The King came to the House of Peers and opened the Session with the following Speech to both Houses:
“My Lords, and Gentlemen,

“Nothing could have afforded me so much satisfaction; as to have been able to inform you, at the opening of this session, that the troubles which have so long distracted my colonies in North America were at an end; and that my unhappy people, recovered from their delusion; had delivered themselves from the oppression of their leaders, and returned to their duty. But so daring and desperate is the spirit of those leaders, whose object has always been dominion and power, that they have now openly renounced all allegiance to the crown, and all political connection with this country: they have rejected, with circumstances of indignity and insult, the means of conciliation held out to them under the authority of our commission; and have presumed to set up their rebellious confederacies for independent states. If their treason be suffered to take root, much mischief must grow from it, to the safety of my loyal colonies, to the commerce of my kingdoms, and indeed to the present system of all Europe. One great advantage, however, will be derived from the object of the rebels being openly avowed, and clearly understood; we shall have unanimity at home, founded in the general conviction of the justice and necessity of our measures.

“I am happy to inform you, that, by the blessing of Divine Providence, on the good conduct and valour of my officers and force by sea and land, and on the zeal and bravery of the auxiliary troops in my service, Canada is recovered; and although, from unavoidable delays, the operations at New York could not begin before the month of August, the success in that province has been so important as to give the strongest hopes of the most decisive good consequences: but, notwithstanding this fair prospect, we must, at all events, prepare for another campaign.

“I continue to receive assurances of amity from the several courts of Europe; and am using my utmost endeavors to conciliate unhappy differences between two neighboring powers; and I still hope, that all misunderstandings may be removed, and Europe continue to enjoy the inestimable blessings of peace: I think nevertheless that, in the present situation of affairs, it is expedient that we should be in a respectable state of defense at home.

“Gentlemen of the House of Commons,

“I will order the Estimates for the ensuing year to be laid before you. It is matter of real concern to me, that the important considerations which I have stated to you, must necessarily be followed by great expense: I doubt not; however, but that my faithful Commons will readily and cheerfully grant me such supplies as the maintenance of the honor of my crown, the vindication of the just rights of parliament, and the public welfare, should be found to require.

“My Lords, and Gentlemen,

“In this arduous contest I can have no other object but to promote the true interests of all my subjects. No people ever enjoyed more happiness, or lived under a milder government, than those now revolted provinces: the improvements in every art, of which they boast, declare it: their numbers, their wealth, their strength, by sea and land, which they think sufficient to enable them to make head against the whole power of the mother country, are irrefragable proofs of it. My desire is to restore to them the blessings of law and liberty, equally enjoyed by every British subject, which they have fatally and desperately exchanged for the calamities of war, and the arbitrary tyranny of chiefs.

Tuesday, July 2, 2019

Prosecutorial misconduct and favorite sons

Hello, Military Justice community. New blogger here. Butch Bracknell, retired Marine officer, current international security attorney, general gadfly. Follow me @ButchBracknell and blogging at www.outsidethebeltway.com

Gene Fidell's post yesterday on prosecutorial misconduct observed . . . condemned . . . no, actually explicitly called out in CAAF's Voorhees opinion launched me into an apoplectic reply directly to him -- which he then invited me to blog. The typical service reaction to an opinion like this is (a) if you're in the Air Force, probably a fairly significant emotional event for the senior leaders; (b) if you're not in the Air Force, you thank your lucky stars you're not in the Air Force, because CAAF just turned up the heat over there. Then after a couple weeks of impassioned blog posts and commentary, everything goes back to normal, like it never happened. In fact, CAAF has been ringing the bell as loudly as they can over the past 10 years on UCI, and not much changes in the services' UCI practices. And not much will until there are some real consequences -- like a senior leader or SJA being criminally charged for deliberate UCI, or a senior leader being retired at a lower grade, or a practitioner/senior leader being referred for a real, meaningful professional responsibility investigation and sanctions.

Because I am a Marine, I naturally gravitate toward the naval services in my analysis. In that vein, three egregious cases of prosecutorial/government misconduct stand out in my mind, notwithstanding the Gallagher case, which seems to be falling apart before the government's very eyes. In these cases, a clear pattern emerges of ignoring misconduct and failing to hold it accountable to protect favorite sons.

United States v. Santiago

The first case involved rank incompetence in handling a 2008 maiming in Iraq from a Marine playing quick draw and shooting a Navy Corpsman, Michael John Carpeso, in the face. No less than at least half a dozen Marine officers fumbled the case until it was barred for prosecution by Santiago's end of service. Only then did DOD go hat in hand to USDOJ to ask them to bring the charges they could bring to get some sort of punishment against the shooter, Corporal Santiago. The federal trial judge issued a memorandum opinion that excoriated the Marines for mishandling the case so badly that the only relief available was through the civilian courts. Judge Colleen McMahon laid waste to the Marine lawyers who fumbled this case:
"The court is, frankly, offended by the Government's suggestion that delay at the stage where the prejudice was effectively worked-when the case was with Marine JAG-was inadvertent because the JAG officers assigned to this matter were too busy with other matters to attend to the Santiago case. Overwork, bureaucratic bungling and non-investigatory administrative problems would not provide the sort of compelling justification needed to overcome a showing of actual prejudice by a defendant...but I see no evidence that any of these officer attorneys was overwhelmed with work. I am unimpressed with the claim that the press of twelve hour days got in the way of completing the simple assignment of preparing recall papers for Santiago; in my world, twelve hour days are hardly uncommon and afford no excuse for failing to get a job done."
This quote is one of several in the opinion that cuts the Marines involved in this miscarriage of justice off at the knees. She could not possibly have rung the bell of professional misconduct more loudly.

As a covered attorney under the Navy's professional responsibility rules, I submitted a professional responsibility complaint against all the lawyers involved because I knew no one else would and under the rules it was my duty under Rule 8.3. The result: no action by the Rules Counsel against any of the senior or supervisory attorneys. In fact, one of the officers who committed egregious professional responsibility offenses was later promoted, selected for very desirable assignments, and ultimately assigned as an appellate judge on the Navy-Marine Corps Court of Criminal Appeals.

It appears that being called out by name for incompetence by a Senate-confirmed federal trial judge in a memorandum opinion strengthens your career, rather than weakening it. It is a sad commentary on the practice of law in the Marine Corps and the duty owed those being led by senior Marine officers when a federal trial judge ends her opinion with this epilogue:
"I come away from this exercise with the firm conviction that HM3 Carpeso did not really matter much to the people who should have been fighting for justice for him. I have spent a lot of time with the record in this unusual case. One of the little things I noticed when reviewing the evidence was that Marines sign their internal correspondence with some variant of their familiar motto, "Semper Fidelis"--Always Faithful--either written out in full, or abbreviated as "Semper Fi," or even just "SF." After a while, it started to annoy me to see those proud words at the end of all those emails, because in those emails, and in their actions, the Marines displayed precious little eternal fidelity toward Michael John Carpeso. "
That commentary should be breathtaking to Marines, but it didn't even trigger a professional responsibility investigation for the senior officers involved, nor did it result in report to any state bars. These officers humiliated the Marine Corps, but the Corps took no action, lest it damage the career of a favorite son.

Welcome new contributor Butch Bracknell

Butch Bracknell
Global Military Justice Reform is delighted to welcome Butch Bracknell as our newest contributor. Butch is a retired Marine lawyer working for an international security organization. Twitter: @ButchBracknell. He also blogs at www.OutsideTheBeltway.com.

Welcome aboard!

Monday, July 1, 2019

Prosecutorial misconduct: what is to be done?

U.S. Court of Appeals
for the Armed Forces
The decision of the U.S. Court of Appeals for the Armed Forces in United States v. Voorhees includes a section headed "A Note on Prosecutorial Misconduct." Consider the following comment posted on the CAAFlog website. The commenter neglected to state his or her real name.

bromider says:  
Slip op. at 12-13:
 
Trial counsel, however, was not the sole attorney at fault during Appellant’s court-martial.
 
Surely, by that blip, CAAF didn’t mean to imply that the TJAG who certified, assigned, and controlled the very livelihoods of the TC, the military DC, the trial judge, the appellate judges, and the SJA who reviewed this case, is to blame?

Right?  That would be crazy talk.  Wouldn’t it?

I mean… if someone were to suggest that TJAG should be held responsible for permitting such a unflinching pattern of willful dereliction of duty by every subordinate that touched this case, then that might be a good reason for that TJAG to be fired. 

After all, an infantry general who permitted such incompetence and institutional cowardice to fester and grow so thoroughly in the ranks probably wouldn’t be retained in command?  Would they?  I’m guessing not.

But, that’s how we treat real military officers.  We can’t have that sort of accountability in the JAG Corps.  No, we can’t act like these are real military officers.  They’ve got to be treated like they’re babies – middle-aged babies entrusted to carry the full weight of the government’s power.  But, to be coddled and protected nonetheless.  Like some super special snowflake.

But, just maybe, if we’re not going to treat JAGs like real officers, perhaps we ought to at least treat them like lawyers.  You know, treat them like they are actually professionals who have a license they ought to be worried about.

That might be nice, for a change.
Or, maybe, instead, CAAF can just continue to whine about prosecutorial misconduct while doing absolutely nothing about it.

That’s a good look, ain’t it?

I don’t know which institution comes out looking more impotent by this opinion: CAAF, or the Air Force JAG Corps.  This doesn’t project strength.  It projects amateur hour in a system of kangaroo courts.  From the trial level all the way up to the highest court in the system.

Sen. Gillibrand on the Military Justice Improvement Act

Sen. Kirsten Gillibrand (D.-NY)
From Sen. Kirsten Gillibrand, in Military Times:
The Military Justice Improvement Act would take the prosecution of sexual assault and other serious crimes, such as murder, out of the chain of command. It would keep those crimes in the military justice system, but put the decision to prosecute them into the hands of actual military prosecutors who are trained to deal with complex legal issues.

This change would ensure that survivors of sexual assault — and the alleged perpetrators of those crimes — are both afforded the due process that they are entitled to under our Constitution. And it would in no way impede a commander’s ability to use their non-judicial authorities when appropriate or take action for military-specific crimes, like a soldier going AWOL. In fact, many experts believe that these changes would free commanders of conflicting responsibilities, improve their ability to maintain good order and discipline, and help them keep the climate under their command free of sexual harassment.

The Military Justice Improvement Act is supported by progressive Democrats, conservative Republicans, and plenty in between. The most recent cosponsor to join is Sen. Tammy Duckworth from Illinois — a retired lieutenant colonel who was wounded flying combat missions over Iraq. It is supported by high-ranking former military officials, some of our nation’s leading veterans’ organizations, and expert legal organizations. So let’s do the right thing and pass this bipartisan bill.

Sword of Damocles

Lt. Gen. Andrew Gutti, chairman of the Uganda People's Defence Force general court-martial, has been reappointed to a fourth term. This article doesn't say so, but Gen. Gutti's past appointments have been for only a year each.

A one-year term of office is insufficient to ensure independence.