O'Connor Law School student wins Jenkins Award

Rear Admiral
John S. Jenkins
U.S. Navy

According to the law school at ASU:

James Cromley, a third-year student at the Sandra Day O’Connor College of Law at Arizona State University, has won the John S. Jenkins Award for Excellence in Military Legal Studies.

Given by the National Institute of Military Justice, the Jenkins Award is presented for the best nominated paper written by a law student on a military legal topic. Cromley’s article, titled “In the Field or in the Courtroom: Redefining the APA’s Military Authority Exception in the Age of Modern Warfare,” examines the Administrative Procedure Act, and, specifically, the definition of “in the field in time of war.”

Congratulations to Mr. Cromley. Admiral Jenkins would have approved!

CNO cuts punishment in Gallagher case

Dave Philipps of The New York Times has the story here. Excerpt:

Military lawyers say that clemency is nearly always requested after a court-martial conviction, but it is rarely granted, and that having the top admiral in the Navy take over authority for a case is nearly unheard-of.

“In my 15 years of military law, I’ve never seen it,” said Patrick Korody, a former Navy prosecutor who has followed the Gallagher case. “But there is a feeling among military lawyers that the defense has just steamrolled everyone below, so giving it to the C.N.O. is the right decision. He has authority to do the proper thing.”

Despite the grim details of the case, Mr. Korody said, clemency for the SEAL, who led a platoon in combat in Iraq, was not unreasonable.

NPR: Navy legal review

NPR has run this story about current military justice issues in the Department of the Navy. Interviewees include Prof. David Schlueter (St. Mary's) and Prof. (and Global Military Justice Reform contributor) Rachel VanLandingham (Southwestern).

Photo sharing and secrecy

Singapore has charged several service members for circulating photos of a fatal vehicle accident, deeming the matter a violation of the Official Secrets Act. Details here.

Should Article 66(c) be amended?

Newsweek reports here on efforts to engage Congress on the unusual review powers of the service Courts of Criminal Appeals. Additional coverage by Military.com's Hope Hedge Seck can be found here.

Tomorrow is St. Crispin's Day

Consider this link, starring Mark Rylance. Not military justice, but nourishment for those who labor against heavy odds in the courtroom.

CAAF @ BYU

On October 16, the U.S. Court of Appeals for the Armed Forces heard argument at BYU's J. Reuben Clark Law School. Details here.

Pardon, Mademoiselle!

October 18, 2019.  News from Metz, France where  Mr. Maumont, a retired senior military officer, is on trial in civil court for sexually harassing his former secretary during 2011-2012. The incidents took place in the workplace; a recruiting office where she was the only woman present. He was 48. She was 33 years of age.

Maumont nicknamed her “his little cat” or “little kitty”.  He  send her SMS messages asking for a “kiss.” He told salacious jokes.  At trial, he recognized his attitude might not have been appropriate but he evoked the need to ensure “a relaxed working atmosphere.”

Judgment is expected on November 15th, 2019. The victim is identified as being the first woman to file such a complaint of harassment against a  military superior.

See article by France-bleu Lorraine-Nord. 

Is this man in the military or not?

You be the judge. It's a tangled tail from South Africa. From a distance, it looks like a serious runaround, and not surprising that Pikkie Greeff of the South African National Defence Union is speaking out.

Today in History

History brings us this reminder.

Air Force Sergeant Leonard Matlovich, a decorated veteran of the Vietnam War, is given a “general” discharge by the air force after publicly declaring his homosexuality. Matlovich, who appeared in his air force uniform on the cover of Time magazine above the headline “I AM A HOMOSEXUAL,” was challenging the ban against homosexuals in the U.S. military.

In 1979, after winning a much-publicized case against the air force, his discharge was upgraded to “honorable.” In 1988, Matlovich died at the age of 44 of complications from AIDS. He was buried with full military honors at the Congressional Cemetery in Washington, D.C. His tombstone reads, “A gay Vietnam Veteran. When I was in the military they gave me a medal for killing two men and a discharge for loving one.”

"Leavenworth"

U.S. Disciplinary Barracks
Ft. Leavenworth, Kansas

Mike Hale of The New York Times reviews "Leavenworth," about the Lorance case here. Excerpt:

The filmmakers — the series is directed by Paul Pawlowski, a veteran of sports broadcasts and documentaries, and Steven Soderbergh is an executive producer — present all of this with brisk competence. They frame the obvious paradoxes, such as how conservative support of [1LT Clint] Lorance entails casting the troops who testified against him as liars or pawns. They don’t establish a real point of view, though, or weave the divergent threads in a way that’s particularly surprising or moving.

A non-comedy of errors: the Kunishige case

On October 17, 2019, the U.S. Navy-Marine Corps Court of Criminal Appeals decided United States v. Kunishige, No. 201800110. The case raises a plethora of issues, chiefly, but not only, just how far off the rails member selection can be under Art. 25(d)(2), UCMJ. Strongly recommended for close study. Comments are particularly invited.

What lessons should be learned?
Why aren't any names named?
Should anyone be disciplined?
Is training deficient for commanders, staff judge advocates, trial counsel, military judges?
Should United States v. Bartee be revisited, as the concurring judge recommends?
Since when can personnel lawfully volunteer for duty as panel members?
Should Art. 25, UCMJ, be amended?

Guardia Civil association protest

The Unified Association of the Civil Guard has protested the imprisonment of a Guardia Civil officer following a court-martial. The organization has protested outside the office of Spain's Ombudsman, as reported in this article.

"The situation was already taken by the association to the Ministry of Defense, which was asked last year to pardon the agent, suspending execution of the sentence until that request was resolved or a year elapsed. From the department headed by Margarita Robles, the AUGC denounces, 'they have never responded to this request, so the process was reactivated until recently when this worker was informed of his imminent imprisonment.'" [modified Google translation]

On to Strasbourg?

Score, Jehovah's Witnesses 1, Azerbaijan 0

The European Court of Human Rights has announced its decision in Mammadov v. Azerbaijan concerning conscientious objection. The court's press release and summary can be found here.

In today’s Chamber judgment in the case of Mushfig Mammadov and Others v. Azerbaijan (application no. 14604/08) the European Court of Human Rights held, unanimously, that there had been: a violation of Article 9 (right to freedom of conscience, thought and religion) of the European Convention on Human Rights. 

The case concerned the applicants’ refusal on religious grounds to serve in the army. 

The Court observed that the criminal prosecutions and convictions of the applicants on account of their refusal to perform military service had stemmed from the fact that there was no alternative service system under which individuals could benefit from conscientious objector status. That amounted to an interference which had not been necessary in a democratic society. The case highlighted an issue relating to the lack of legislation on civilian service as an alternative to military service in Azerbaijan. The enactment of such a law corresponded to a commitment entered into by Azerbaijan on its accession to the Council of Europe and was also a requirement under the country’s own Constitution.

The decision is available only in French.

Media excluded from Sudanese court-martial

A Sudanese court-martial has barred the media from covering several cases. Details here from Dabanga.

Who knew?

Bunker Hill Monument
Charlestown, Mass.

Turns out the Massachusetts militiaman who fired before seeing "the whites of their eyes" at Bunker Hill was court-martialed. The musket in question is up for sale. Details here.

The Gallagher Case

Pres. Donald J. Trump

Dave Philipps of The New York Times reports here on the case of Navy SEAL Chief Petty Officer Edward Gallagher. Excerpt:

[O]ne of Chief Gallagher’s most vocal supporters happens to be the commander in chief. President [Donald J.] Trump has repeatedly intervened, and has posted so many expressions of support for the SEAL on Twitter that the Navy now sees Chief Gallagher as untouchable, according to three Navy officials familiar with the case. Any talk of punishment has been shelved, not only for the chief, but for two other SEALs who had been facing possible discipline in the case, these officials said. 

Mr. Trump helped Chief Gallagher get released from confinement before his trial, and personally congratulated him on Twitter when he was acquitted.

“People want to hold these guys accountable,” said one Navy officer who was involved in the punishment deliberations. “But they are afraid that if you do anything, minutes later there will be a tweet from the White House, and the officer in charge will get axed.”

Closed trial

In the U.S. an accused has the right to a public trial. Any closure has to be justified for very significant reasons.

A military court in Khartoum has ruled to ban media coverage of the trials of defendants accused of involvement in the foiled coup attempt in July, as well as the Court Martial of former Janjaweed leader Musa Hilal. The court said the ruling was in “order not to harm justice”.

Sudan Armed Forces (SAF) spokesman Brig Gen Amer El Hasan said “Musa Hilal belongs to the army and is therefore subject to the Sudan Armed Forces Act.”

Reported by Dabanger (Sudan).

Where should this case be tried?

A Rwandan military court has rejected a claim by militia members that they are not subject to military trial because they are civilians. Details here. The 25 defendants had been arrested by Congolese authorities in the DRC and were then turned over to Rwanda. "Lawyers had argued that the 25 were not members of the military at the time of their arrest and that Major (Rtd) Habib Mudathiru also retired from the army, making the entire group ‘civilians’ by status, who should be tried in a civilian court."

The Guardia Civil and military justice

This article from El País about the incarceration of an officer of the Guardia Civil offers the following information about the changing reach of Spanish military justice:

In 2007, the Government led by José Luis Rodríguez Zapatero reformed the Military Criminal Code, so that it only applies to members of the Civil Guard in case of war, state of siege, when they carry out military missions or are integrated into Army units. 

However, in 2015 the PP Government approved a counter-reform that extended the jurisdiction of military justice over members of "the armed institution" to all crimes against discipline, including that of insult to superior, for which [Luis Miguel Pouso Rodríguez] has been convicted.

White House is reviewing Golsteyn case

Pres. Donald J. Trump

President Donald J. Trump has tweeted that the pending court-martial case of Army Reserve Major Mathew L. Golsteyn is under review at the White House. Details here. The tweet read:

The case of Major Mathew Golsteyn is now under review at the White House. Mathew is a highly decorated Green Beret who is being tried for killing a Taliban bombmaker. We train our boys to be killing machines, then prosecute them when they kill!

Australia's military justice system and mental health issues

Brig Jennifer Woodward,
Director of Military
Prosecutions (Austl.)

After considerable delay, a bill is being prepared to update how Australia's Defence Force Discipline Act 1982 deals with mental health issues. The impetus for change has come from the Director of Military Prosecutions, Brig Jennifer Woodward. Details here. 

Will ISIS detainees be sent to Guantanamo?

It can't be ruled out, given current events in Syria. Charlie Savage's article in The New York Times raises the question. Whether ISIS fighters come within an AUMF would likely be an issue. Watch this space.

Adultery in the Indian armed forces

The Indian Army hopes to preserve the offense of adultery, but quaere, does the statute cover forms of adultery other than where the other party is married to a fellow officer?

Lebanon's military courts

L'Orient | Le Jour explains the background of Lebanon's use of military courts to try civilians. Excerpt:

After the incidents in 1958 between supporters of the UAS and those of Lebanese power represented by President Camille Chamoun, Parliament passed an anti-terrorism law, long before the subject became fashionable in the Western world. It was therefore a question of finding a legal framework for espionage, terrorism and everything related to the Lebanese army. This structure is criticized by human rights organizations, which reject, as a matter of principle, exceptional courts. But in the opinion of one party, military justice has proved itself and proved its usefulness in terrorism cases in particular, because the military court has a fast procedure, which indispensable in cases that affect the security of the country, the State and the country in general. It is sometimes accused of being expeditious. In fact, it is accelerated in the interest of stability. Indeed, most Western democracies today are introducing specialized courts for terrorism cases, because ordinary courts are not empowered to rule on those cases. In France, there are, for example, anti-terrorist judges. For [military prosecutor] Peter Germanos, the great judicial change took place in Lebanon with the amendment of the law in 2001 that allowed the military prosecutor to be placed under the authority of the Prosecutor General at the Court of Cassation, which is in principle totally independent. Administratively, however, the military prosecutor reports to the Ministry of Defense.

Notwithstanding these comments, human rights continues to strongly disfavor the use of military courts to try civilians. Lebanon's system, like those of Uganda, Pakistan, Cameroon, and a few other countries, disregards that principle.

Judicial review of courts-martial in Peshawar

There have been divergent outcomes in the Peshawar High Court in cases challenging the proceedings of military courts. As a result, the government has asked the court to convene an expanded bench to resolve the intra-court conflict. Details here, thanks to Dawn.

Jury of peers

A U.S. court-martial has military personnel on the "jury" almost always from the person's own Service. So what of elsewhere?

Nikolai P. Kovalev, Trial by Jury in Russian Military Courts, J. Power Insts. in Post-Soviet Societies, Issue 8, 2008.

One of peculiar features of the military criminal justice system in Russia is that in some cases military defendants may apply for trial by jury. Unlike the existing U.S. court-martial jury and the Russian military jury of the early 1900s (World War I period) which were comprised of the members of the armed forces, in modern Russia jurors trying military defendants are civilians. This article aims to provide a brief history of military jury in Russia and identify issues of independence and impartiality in Russian military courts with participation of lay decision-makers. In particular, the article will analyze two high-profile cases which resulted in acquittals of Russian officers accused of killing several Chechen civilians during counter-terrorist operations in Chechnya.