Saturday, November 30, 2019

Trident Review Boards

Controversy continues over whether Chief Petty Officer Edward R. Gallagher and other Navy SEALs should have been permitted to retain their Trident pins. Students of military justice may find it helpful to have a summary of the governing regulations and procedures.

Commander, Naval Special Warfare Command is required by OPNAVINST 1414.9B ¶ 5b to "establish and maintain an instruction that delineates strict prerequisites and formal procedures for qualification, re-qualification, disqualification, and failure to qualify within" the Sea, Air, and Land (SEAL) program. This has been accomplished by issuance of COMNAVSPECWARCOMINST 1221.1A.

According to Navy Military Personnel Manual 1220-085 ¶ 4a, "[m]embers whose Navy Enlisted Classification(s) (NEC(s)) is/are removed for disciplinary and/or administrative action per MILPERSMAN 1220-300 are no longer authorized to wear the insignia."  "An enlisted member previously qualified shall be disqualified by an appropriate qualifying officer if that member fails to continue to meet the requirements set forth in MILPERSMAN 1220-300" (¶ 5).

Thursday, November 28, 2019

A Note on presidential power over military justice

The President of the United States has many powers with respect to military justice. Some are generic, others are case-specific. It may be worthwhile to catalog them. If this Note omits anything, please add a comment. (Use your full name; anonymous and pseudonymous posts are not permitted on this blog.)

Generic powers:
  • Sign or veto Acts of Congress that amend the Uniform Code of Military Justice or other federal laws that may affect courts-martial. U.S. Const. art. I, § 7
  • Prescribe and amend maximum punishments. Arts. 18(a), 19(a), 20(a), 56, UCMJ
  • Prescribe and amend rules for impaneling courts-martial, waiving preliminary hearings, prescribing what disposition-related information submitted after a preliminary hearing must be analyzed; and pretrial, trial, and post-trial rules of procedure and evidence. Arts. 29(b)(1), 32(a)(1)(B), 32(c)(3), 36(a), UCMJ
  • Prescribe regulations for non-judicial punishment. Art. 15(a), UCMJ
  • Direct the Secretary of Defense to issue non-binding guidance for the disposition of charges. Art. 33, UCMJ; see MCM App. 2.1
  • Withhold the authority of a subordinate to dispose of charges in types of cases or generally. R.C.M. 401(a)
  • Empower commanding officers not otherwise authorized to convene courts-martial to be convening authorities. Art. 22(a)(9), UCMJ
  • Appoint and remove judges of the U.S. Court of Appeals for the Armed Forces. Art. 142(b)-(c), UCMJ
  • Appoint the Judge Advocates General. E.g., 10 U.S.C. § 7037(a) (Army TJAG)
Case-specific powers:
  • Grant pardons, before or after conviction, and lesser forms of clemency. U.S. Const. art. II, § 2; see also art. 57(a)(3), UCMJ
  • Approve death sentences adjudged by general courts-martial. Art. 57(a)(3), UCMJ; R.C.M. 1207
  • Convene courts-martial. Arts. 22(a)(1), 23(a)(1), 24(a)(1), UCMJ; R.C.M. 504(b)
  • Dismiss commissioned officers. Art. 4, UCMJ; R.C.M. 107
  • Grant immunity. R.C.M. 704(c)
  • Withhold the authority of a subordinate to dispose of charges in individual cases. R.C.M. 401(a)

More on Tridentgate

Rachel VanLandingham (along with Geoff Corn) follows her CNN interview with a piece in LawFare.

This chaos in military discipline and personnel actions is the direct result of Trump’s reckless dismissal of the judgments of his military commanders and his misunderstanding of the profession of arms. The president has legal authority to intervene in these matters, but his misguided actions risk not only undermining the authority of his commanders but also eroding the honor and integrity of the U.S. armed forces. The Spencer/Esper soap opera may be at the forefront of the news cycle, but the real story is the corruption of military good order and discipline.

Happy Thanksgiving

Tuesday, November 26, 2019


Prof. Rachel E. VanLandingham
Southwestern School of Law
Global Military Justice Reform contributor Professor and Lt. Col. (Ret) Rachel E. VanLandingham sheds light on the Trident controversy in this CNN interview.

Sunday, November 24, 2019

From the newsroom

The subject of American military justice is front and center right now. Global Military Justice Reform's area of interest is broader, of course, and although our coverage of developments is necessarily uneven due to language constraints, we have arguably spent less time and space on developments in the United States than we might have. We would like to contribute more to public understanding of these domestic matters (after all, our glass-enclosed newsroom high above Global Military Justice Reform Plaza is located in the U.S., even though the Editor happens to be writing this post a knife-throw from the Royal Courts of Justice and the Inns of Court in London). Posts and comments concerning domestic U.S. matters are emphatically welcomed. If you would like to become a contributor, please contact the Editor. If you simply want to comment on others' posts, have at it -- but use your real name. (Otherwise, your comment will not be posted to the site.)

The rule against anonymous and pseudonymous posts is central to this blog's editorial policy. We will maintain it, since such a rule and a related commitment to the meaningful curation of comments are essential to the responsible exchange of professional views.

Saturday, November 23, 2019

Limits of presidential powers

Pres. Donald J. Trump
The New York Times has this piece about the limits of presidential powers over the armed forces. "He could, hypothetically, also order all the Air Force’s jets painted pink, appoint his chauffeur to an elite commando force or require all officers to wear long, red ties on Fridays."

Thursday, November 21, 2019

About that trident . . .

Is the Gallagher case over yet? Here's the latest. Excerpt:
A SEAL stationed at Naval Base Coronado, who asked not to be named because he was not authorized to speak publicly, said that both Mr. Trump and Admiral Green had strong support at the base, and that the SEALs there were dismayed to see the two leaders at odds.

He said that most of the SEALs he had spoken with about the matter were discouraged that war fighters who aspired to be silent professionals had been drawn into a political dispute. He noted that part of the SEAL ethos is the statement, “I do not advertise the nature of my work, nor seek recognition for my actions.”

Wednesday, November 20, 2019

Results of trial in Singapore

A tragic accident took the life of Singapore Armed Forces soldier Aloysius Pang. Useful details can be found here in a report from Straits Times.

Has the White House Counsel prepared a memo on this UCMJ provision?

10 U.S.C § 804. Art. 4. Dismissed officer’s right to trial by court-martial
(a) If any commissioned officer, dismissed by order of the President, makes a written application for trial by court-martial, setting forth, under oath, that he has been wrongfully dismissed, the President, as soon as practicable, shall convene a general court-martial to try that officer on the charges on which he was dismissed. A court-martial so convened has jurisdiction to try the dismissed officer on those charges, and he shall be considered to have waived the right to plead any statute of limitations applicable to any offense with which he is charged. The court-martial may, as part of its sentence, adjudge the affirmance of the dismissal, but if the court-martial acquits the accused or if the sentence adjudged, as finally approved or affirmed, does not include dismissal or death, the Secretary concerned shall substitute for the dismissal ordered by the President a form of discharge authorized for administrative issue. 
(b) If the President fails to convene a general court-martial within six months from the presentation of an application for trial under this article, the Secretary concerned shall substitute for the dismissal ordered by the President a form of discharge authorized for administrative issue. 
(c) If a discharge is substituted for a dismissal under this article, the President alone may reappoint the officer to such commissioned grade and with such rank as, in the opinion of the President, that former officer would have attained had he not been dismissed. The reappointment of such a former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only insofar as the President may direct. All time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances. 
(d) If an officer is discharged from any armed force by administrative action or is dropped from the rolls by order of the President, he has no right to trial under this article.

This time in history

History Channel reminds us that today marks the day when
Twenty-four high-ranking Nazis go on trial in Nuremberg, Germany, for atrocities committed during World War II.
The Nuremberg Trials were conducted by an international tribunal made up of representatives from the United States, the Soviet Union, France and Great Britain. It was the first trial of its kind in history, and the defendants faced charges ranging from crimes against peace, to crimes of war, to crimes against humanity. Lord Justice Geoffrey Lawrence, the British member, presided over the proceedings, which lasted 10 months and consisted of 216 court sessions.

Trump, clemency and human rights

The Office of the UN High Commissioner for Human Rights has issued the following statement:
We are very concerned by the recent US presidential pardons for three US service members accused of war crimes. These three cases involve serious violations of international humanitarian law (IHL), both proven and alleged, including the shooting of a group of civilians and execution of a captured member of an armed group.

International Humanitarian Law establishes the obligation to investigate violations and prosecute war crimes. By investigating these allegations, and initiating and completing criminal proceedings, the US military justice system has been complying with these obligations under international law.

The full pardons in two cases, and the order directing promotion in the third case, run against the letter and the spirit of international law which requires accountability for such violations. The pardon terminating pending criminal proceedings in the case of Major Mathew Golsteyn is particularly troubling, as it cuts short the regular judicial process.

Victims of gross human rights violations and serious violations of international humanitarian law have the right to a remedy. This right includes equal and effective access to justice, the right to the truth, and to see perpetrators serve punishments proportionate to the seriousness of their conduct, rather than see them absolved of responsibility.

While pardons exist in international law, and can properly address issues of injustice or unfairness, in the present cases no circumstances have been advanced to suggest anything other than simply voiding the otherwise proper process of law in the cases. These pardons send a disturbing signal to military forces all around the world.

Tuesday, November 19, 2019

LTC Vindman's Case

Army judge advocate Lieutenant Colonel Dan Maurer, a West Point faculty member writing in his personal capacity, has a fine essay on Lawfare concerning the civil-military relations and military justice aspects of LTC Alexander S. Vindman's compliance with a congressional subpoena in the impeachment investigation. Excerpt:
When the conduct of an officer is entangled with a long-standing quarrel between two political branches flexing their respective constitutional authorities, the question of what applied justice looks like is determined both by how Congress has defined a generally applicable criminal sanction and what factors the president has directed his military leaders to consider in any case. The “even-handed administration of the law,” as the president’s own court-martial prosecution guidance says, should consider the “nature, seriousness, and circumstances of the offense and the accused’s culpability.” The dynamics of the civil-military relationship, set against the backdrop of a true separation of powers crisis, characterize the nature and seriousness of the incident and provide the relevant circumstances to frame Vindman’s conduct—along with any legal response.
Honk if you would represent LTC Vindman pro bono if anyone got on his case. 

Monday, November 18, 2019

For your military law bookshelf

Wing Commander (Ret) Dr U C Jha has a new book out: The Evolution of Military Law in India, Including the Mutiny Acts and Articles of War. Details here.

Congratulations to Dr Jha!

Pardons and command responsibility

U.S. Disciplinary Barracks
Ft. Leavenworth, Kansas
Fred Kaplan writes on President Donald J. Trump's recent military justice actions here on Slate. Can a pardon, lawful under domestic law, nonetheless implicate command responsibility?

Mr. Trump's pardons in the spotlight

The New York Times's Dave Philipps writes here about recent actions by President Donald J. Trump in military justice cases. "[M]any in the military, especially in military legal circles, are not celebrating. Mr. Trump’s reprieves, issued against the advice of top defense officials, were seen as a sign of disregard not only for the decisions of military juries, but for the judicial process itself."

From this piece by Graeme Wood in The Atlantic:
"Deregulation is much stupider in war than it is in those other fields. If you deregulate polluters, you may end up poisoning the environment—but at least the environment is inanimate, and does not arm itself reciprocally, to match the violence you freed yourself to commit against it. Battlefield enemies are different. ISIS is already willing to commit atrocities against Americans, but now more scrupulous rivals of the United States can reasonably infer that if they fight us according to the laws of armed conflict, they are suckers. One reason more than 80 countries allied to fight ISIS is that they flagrantly ignored these laws. Now we do too."

BBC Reports: 'International Criminal Court may investigate UK war crimes cover-up'

Image result for British Army iraqThe BBC and the Sunday Times last week alleged that the British Government had covered up the killing of civillians in Iraq and Afghanistan after interviewing 11 detectives involved with the Iraq Historic Allegations Team (IHAT) and Operation Northmoor (a similar investigation into British conduct in Afghanistan). The detectives claimed to have found credible evidence of war crimes although the Service Prosecuting Authority decided not to prosecute. The 'failure to investigate' may now lead the International Criminal Court to open its own enquiry into the conduct of the British Army. Full details can be found here. 

The issue of war crimes investigations is particularly sensitive in the UK following the Al-Sweady inquiry and the striking off of controversial lawyer Phil Shiner who pursued a vast number of baseless claims agains the Ministry of Defence. Unquestionably this will be one to watch on both the domestic and international stage.

Service personnel must have the same safeguards as civilians

Image result for royal courts of justice
Royal Courts of Justice, London
The Court Martial Appeal Court (CMAC) has recently ruled on whether there was a power to dismiss charges in the Court Martial prior to arraignment. Unlike in the Crown Court, there is no explicit statutory power to dismiss charges in the Service Justice System. Two non-commissioned officers of the Royal Air Force had applied to dismiss the charges against them, arguing that the Armed Forces (Court Martial) Rules 2009 (“the Rules”) gave a judge advocate the requisite powers. The Crown contended that no such power existed, and the matter came before HHJ Jeff Blackett, the Judge Advocate General, for hearing.

The Defendants argued:
  • That s.163 of the Armed Forces Act 2006 (“AFA 2006”) empowered the Secretary of State for Defence to import the relevant provisions of the Crime and Disorder Act 1998 by the making of rules.
  • By making Rule 26 of the Rules, the Secretary of State had delegated the power to import the provisions of the Act to a judge advocate.
  • In the alternative, a judge advocate could use their powers under Rule 25 to stop proceedings which would in the Crown Court be dismissed under the provisions of the Act.
  • There should be a power to dismiss in the Court Martial because service personnel should be treated no differently to a defendant in the Crown Court unless there was a good service reason to do so, and there were no such service reasons.
The Judge Advocate General ruled that neither Rule 25 nor Rule 26 applied and there was no power to import a power to dismiss into the Court Martial. The Defendants were not permitted to apply to have the charges against them dismissed.

The Defendants appealed the ruling to CMAC where the appeal was heard by Simon LJ, William Davis and Jefford JJ. Unlike the Crown Court, defendants in the Court Martial may appeal preliminary rulings. Prior to the hearing the Crown conceded that s.163 AFA 2006 empowered the Secretary of State to import a power to dismiss by the making of rules.

The Defendants renewed their arguments regarding Rule 26 and the need to treat service personnel no differently to a defendant in the Crown Court unless there was a good service reason to do so. The Defendants also expanded on a submission made to the Judge Advocate General that prior to AFA 2006 there had been a power to dismiss charges held by the convening officer, and absent clear parliamentary language it was wrong to assume the protection had been extinguished. AFA 2006 was silent on that point.

Simon LJ gave the judgment allowing the appeal:
‘Differences in the processes between the Court Martial on the one hand and the magistrates’ court and the Crown Court on the other, notably that the former did not involve the summary sending of a case, were such that rule 26(a) did not apply, but, in the absence of any Service reason for depriving a defendant of his right to ask for dismissal of a case, the saving represented by rule 26(b) applied as the interests of justice required the judge advocate to apply a comparable process to that in the Crown Court. That right had existed prior to the coming into force of the Armed Forces Act 2006 and no reason could be discerned for concluding that the right had been removed by that Act.’

It is perhaps surprising that the AFA 2006 was in force for a decade before this issue was successfully challenged. What is more surprising is the parliamentary oversight that led to AFA 2006 not explicitly addressing this issue. Before the AFA 2006 the convening officer (a part of the chain of command within a defendant’s particular service) had the power to dismiss charges against a defendant. In exercising this power, the convening officer was not required to apply the test in Galbraith, rather it was a command decision.

Undoubtably the role of the convening officer needed to be abolished as its continued existence fatally compromised prosecutorial independence and the independence of the Service Justice System as a whole. However, AFA 2006 transferred many of the functions of the convening officer to the Director of Service Prosecutions and the Judge Advocate General where they could be exercised independently. Clearly the power to dismiss could have been transferred to the Judge Advocate General. Given the silence of the AFA 2006 the only conclusion to be drawn is that this was an error of drafting within the act, which had far reaching consequences.

The power to dismiss is a fundamental protection for a defendant. It prevents weak cases from entering the system and putting the defendant in peril of wrongful conviction. The power to dismiss also protects the Service Justice System and HM Forces as a whole. The Service Justice System is protected by having weak cases weeded out early before they occupy considerable periods of court time and associated resources. This prevents delay in other cases, delay which can reduce the quality of evidence. Delay in resolving cases has a wider impact on the Armed Forces as delay undermines the morale of individuals and units, distracts service personnel from their duties and impact on operation effectiveness. By allowing Defendants to apply to dismiss charges CMAC has ensured that defendants who have chosen to serve Queen and Country are not disadvantaged. Additionally, the efficiency of the Service Justice System has improved with knock on benefits to all of HM Forces.

The judgment was reported as R v H & J [2019] EWCA Crim 1863

This article was first posted at

Saturday, November 16, 2019

Give it a break?

"This may be controversial, as everything the President seems to do has been, however this needed to happen and hopefully a few more! These individuals are very good people and Clint [Lorance] has dealt with everything as well as he could I know that personally. Congrats to all 3 well done President [Donald J. Trump]. To those who are gonna argue the 'good order and discipline will be lost' argument give it a break."

From this comment by "MAGA" on another blog

By way of contrast, consider this letter sent by Capt. Aubrey M. Daniel III, trial counsel in the Calley case, to President Richard M. Nixon.

The U.S. Army Court of Criminal Appeals decision in United States v. Lorance can be found here.

Friday, November 15, 2019

A busy day for the commander in chief

Pres. Donald J. Trump
President Donald J. Trump today granted important relief in three military justice cases. The New York Times has the story here. Comments are invited.

The White House Press Office released this statement:
Today, President Donald J. Trump signed an Executive Grant of Clemency (Full Pardon) for Army First Lieutenant Clint Lorance, an Executive Grant of Clemency (Full Pardon) for Army Major Mathew Golsteyn, and an order directing the promotion of Special Warfare Operator First Class Edward R. Gallagher to the grade of E-7, the rank he held before he was tried and found not guilty of nearly all of the charges against him.

In early July 2012, only days after Lieutenant Lorance had taken command of his platoon in one of the most dangerous battle zones in Afghanistan, a motorcycle with three men approached him and his men with unusual speed. Under difficult circumstances and prioritizing the lives of American troops, Lorance ordered his men to engage, and two of the three men were killed. Following these events, Lorance was convicted of several charges. He has served more than six years of a 19-year sentence he received. Many Americans have sought executive clemency for Lorance, including 124,000 people who have signed a petition to the White House, as well as several members of Congress, including Senators Bill Cassidy and John Kennedy, and Representatives Steve Scalise, Garret Graves, Duncan Hunter, Paul Gosar, Adam Kinzinger, Scott Perry, Brian Babin, Neal Dunn, Michael Waltz, Louie Gohmert, Daniel Webster, Steve King, Ralph Norman, Mark Meadows, Clay Higgins, Ralph Abraham, Mike Johnson, and Jody Hice.

Major Mathew Golsteyn, an officer of the United States Army and graduate of West Point, is currently set to stand trial for an allegedly unlawful killing in connection with one of the largest battles of the Afghanistan War. As our forces cleared the Taliban from the city of Marjah, an Improvised Explosive Device detonated, killing two Marines. The terrorist bombmaker, as identified by an Afghan informant, who had killed our troops, was detained and questioned. Golsteyn was compelled to release him, however, due in part to deficiencies within the fledgling Afghan detention system. Golsteyn has said he later shot the terrorist because he was certain that the terrorist’s bombmaking activities would continue to threaten American troops and their Afghan partners, including Afghan civilians who had helped identify him. After nearly a decade-long inquiry and multiple investigations, a swift resolution to the case of Major Golsteyn is in the interests of justice. Clemency for Major Golsteyn has broad support, including from Representatives Louie Gohmert, Duncan Hunter, Mike Johnson, Ralph Abraham, and Clay Higgins, American author and Marine combat veteran Bing West, and Army combat veteran Pete Hegseth.

Before the prosecution of Special Warfare Operator First Class Edward Gallagher, he had been selected for promotion to Senior Chief, awarded a Bronze Star with a “V” for valor, and assigned to an important position in the Navy as an instructor. Though ultimately acquitted on all of the most serious charges, he was stripped of these honors as he awaited his trial and its outcome. Given his service to our Nation, a promotion back to the rank and pay grade of Chief Petty Officer is justified.

The United States military justice system helps ensure good order and discipline for our millions of uniformed military members and holds to account those who violate the Uniform Code of Military Justice. Due in part to this system, we have the most disciplined, most effective, most respected, and most feared fighting force in the world.

The President, as Commander-in-Chief, is ultimately responsible for ensuring that the law is enforced and when appropriate, that mercy is granted. For more than two hundred years, presidents have used their authority to offer second chances to deserving individuals, including those in uniform who have served our country. These actions are in keeping with this long history. As the President has stated, “when our soldiers have to fight for our country, I want to give them the confidence to fight.”

Thursday, November 14, 2019

Pakistan to provide Jadhav a right to civilian court review

Remember Kulbhushan Jadhav, an Indian citizen convicted by a Pakistani military court, and the subject of proceedings before the International Court of Justice? (Pakistan denied him reqjuired consular access.) In response to the ICJ's decision, Pakistan is preparing legislation that would afford him a right to seek review in a civilian court. Details here.

Tuesday, November 12, 2019

Incomplete reform in Spain

Santiago Casajus
On October 29, 2019, Carlos Lesmes Serrano, the Acting President of the Spanish Supreme Court and Acting President of the General Council of the Judiciary since December 4, 2018, presided over the opening of the judicial year for military jurisdiction in Spain.  In 2015, important legal reforms transformed military jurisdiction into an integral part of ordinary jurisdiction by means of the modification of the Organic Law of the Judiciary.  On October 15, 2015, the President of the Spanish Supreme Court, for the first time, presided over the opening of the judicial year for military jurisdiction.  The event on October 29, 2019, therefore, was the fifth such celebration and according to Lesmes, the custom had now become a consolidated tradition. 

In the opinion of Santiago Casajus, a Spanish military lawyer in the reserves, the reform of the military justice system in Spain is not yet complete.  He noted that the October 29th celebration demonstrated various things:

1. That military jurisdiction, expressly recognized in article 117 of the Spanish Constitution, is (still) distinct from ordinary jurisdiction, which already had its solemn opening of the judicial year in the presence of King Felipe VI.

2. That "jurisdictional unity", proclaimed as a constitutional precept, was done by a benchmark, -- the creation of a military chamber in the Spanish Supreme Court, without having an effect on the rest of the judicial bodies that comprise military jurisdiction.

3. The legislature failed to ensure real and effective jurisdictional unity by preserving military jurisdiction.

4. Under the rule of law, the function of judging and executing what has been judged is entrusted to a unique combination of independent and impartial judges and therefore, there is no room for other kinds of jurisdiction.

Casajus points out that the members of the military legal corps have not been integrated into the ordinary legal career pattern.  Their promotions, evaluations and classifications for promotion etc. are carried out by the Ministry of Defense.  

The members of military judicial bodies are part of a disciplined and hierarchical system whose independence is not guaranteed.  They live in the same quarters as their military commanders, whom they depend on for the normal development of their activities.  Someone who today is carrying out a jurisdictional function tomorrow can be called upon to be a legal adviser to a military commander, prosecutor in a military trial, or vice versa as is currently the case with members of the military legal corps.  Only when the military lawyer is completely separated from military administration and integrated into the ordinary legal system and judiciary will s/he have the requisite independence.

New military courts building inaugurated in Bogotá

There is a spanking new 7-storey courthouse in Bogotá to house the military justice system. El Universal has this report. The building is named for Navy Lieut. Laura Rocio, a military judge who was murdered in 2005. The system has 234 judges, with 19,000 [!] cases, most of them involving desertion charges, in process.

Friday, November 8, 2019

Cortright v. Resor

The New York Times "At War" blog (to get it, subscribe here) has a fascinating post by David Cortright (as in Cortright v. Resor, 447 F.2d 245 (2d Cir. 1971) (2-1 decision)).

Brookings reports on Tunisia's failure to implement reforms

The Brookings Institution has published this smart report by Hamza Mighri and Sharon Grewal on Tunisia's failure to end its use of military courts to try civilians. Excerpt:
In the last five years, Tunisia’s three military courts — in Tunis, Sfax, and Kef — have tried a number of civilians. In the most high profile case, Yassine Ayari, a blogger and current member of parliament, was sentenced in absentia in 2014 to three years in prison for publishing comments on Facebook that “defamed” the military command and “undermined the army’s morale.” At least ten other bloggers and social media activists have been investigated on similar defamation charges by both civilian and military courts.

Beyond defamation, military courts have also been used to target political opponents. In May 2017, Prime Minister Youssef Chahed asked a military court to try prominent Tunisian businessman Chafik Jarraya and seven other personalities, ostensibly for corruption and treason, but likely because they had been funding rivals within the party Chahed belonged to at the time, Nidaa Tounes. In November 2018, Slim Riahi, then-secretary-general of Nidaa Tounes, filed a case in a military court against Chahed accusing him of plotting a coup (the case was soon dismissed). Finally, the late President Beji Caid Essebsi in December 2018 asked the judiciary to investigate his primary political rival, the Ennahda party, on accusations of harboring a secret military apparatus.
Human rights norms strongly disfavor the trial of civilians by military courts.

Thursday, November 7, 2019

No expanded bench to decide Pakistani military court cases

The Peshawar High Court has denied a government request to convene an expanded bench to decide the more than 200 pending challenges to court-martial convictions. Dawn has this detailed report. The cases are set for hearing on November 26.

Golsteyn, Lorance, Gallagher & Trump

Pres. Donald J. Trump
Will the president intervene?'s Matthew Cox and Hope Hedge Seck have the story here.

Do you think President Abraham Lincoln's grants are clemency during the Civil War are a valid precedent?

There is a report of pushback from the Pentagon. Here. Excerpt:
"[Defense Secretary Mark] Esper on Wednesday would not say if he supports the exoneration of Gallagher, Golsteyn and Lorance, but that he had a 'robust discussion' with [President Donald J.] Trump the day before to offer 'the facts, the options [and] my advice' on the matter."
The Washington Post has this similar report. 

Transparency watch

Why should military charges be kept from the news media after a public preliminary hearing has been conducted? Jeff Schogol has an important Task & Purpose story here, raising this and other issues in the context of the U.S. Marine Corps.
The Navy's Judge Advocate General's Office denied Task & Purpose's appeal for both documents on Nov. 1, adding that [2d Lt. Felippe] Maher's charge sheet could not be released "until 2nd Lt. Maher is convicted at a court-martial."
Only after there's been a [public] court-martial? What if there's an acquittal? Will the charges still not be released?

Tuesday, November 5, 2019

President is said to be on the verge of action in two military justice cases

Pres. Donald J. Trump
Army Times reports:

“I was able to confirm yesterday — from the president of the United States himself, the commander in chief — that action is imminent, especially on the two case of Clint Lorance and Matt Golsteyn," Fox News host Pete Hegseth first said. “The president, as the command[er]-in-chief, has a lot of latitude under the Uniformed [sic] Code of Military Justice to dismiss a case or change a sentence, and from what I understand, that is what will happen shortly."

Monday, November 4, 2019

Recognition for LTC Vindman

Prof. Joshua Kastenberg
Lt. Col., USAF (Ret)
Lt. Col. (Ret) and Prof. Joshua E. Kastenberg (UNM School of Law) has written a powerful op-ed for the Santa Fe New Mexican on the case of Lt. Col. Alexander S. Vindman. Bottom line:
"Lt. Col. Vindman did not violate any precept of law or custom of military service. To the contrary, he fulfilled a difficult constitutional duty expected of him. To this end, he is a patriot who leads by example, and the Congress, as well as the nation, owes him a further debt of recognition."

Sunday, November 3, 2019

Military justice amendments in Taiwan

The Taipei Times reports here on two imminent changes to military law. Excerpts:
The Legislative Yuan has completed a preliminary review of draft amendments to the Criminal Code of the Armed Forces (陸海空軍刑法) aimed at addressing repeat drunk driving as well as the spreading of disinformation by military personnel.
* .  * .  *
As the dissemination of misinformation is often conducted through the Internet, the Cabinet has also proposed an addendum to the code stipulating that people who spread military disinformation through radio and TV broadcasts, electronic communications or over the Internet would face 1.5 times the original penalties.

Saturday, November 2, 2019

California Military and Veterans Summit

The 2019 Military and Veterans Summit will be held in San Francisco on December 9. Details here.

The CLE-qualifying event is sponsored by the California Lawyers Association. Here's the rundown:
8:30 a.m. – 3:30 p.m. | Registration Opens
9:30 a.m. – 9:45 a.m. | Opening Remarks
9:45 a.m. – 10:45 a.m. | Sexual Assault in the Military: Legal Problems & Remedies (1 Hour MCLE Credit)
11:00 a.m . – 12:00 p.m. | LGBT Service-Members and Veterans Rights (1.0 Hour Recognition and Elimination of Bias)
12:00 p.m. – 1:00 p.m. | Luncheon with Keynote Speaker
1:15 p.m. – 2:15 p.m. | Discharge Upgrades: How to Restore Veteran Status and Benefits (1 Hour MCLE Credit)
2:30 p.m. – 2:45 p.m. | Veterans Law Judiciary
2:45 p.m. – 3:45 p.m. | Federal Appellate and Class Action Litigation Panel (1 Hour MCLE Credit)

Friday, November 1, 2019

President's budget for U.S. Court of Appeals for the Armed Forces for FY20

The President’s budget for the United States Court of Appeals for the Armed Forces for FY20 (March 2019) can be found here. Bottom line: $14,771,000. This is up slightly from FY19's enacted budget of $14,662,000.  The court is located in the Department of Defense for administrative purposes only.

How safe is LTC Alexander Vindman from reprisal?

Very, especially if the Army is saying things like this:
“Lt. Col. [Alexander S.] Vindman, who has served this country honorably for 20-plus years, is fully supported by the Army like every soldier, having earned a Purple Heart after being wounded in Iraq in 2004,” Army spokesman Matt Leonard told Military Times on Thursday. “As his career assignments reflect, Lt. Col. Vindman has a long history of selfless service to his country, including combat. Lt. Col. Vindman is afforded all protections anyone would be provided in his circumstances.”
Suggestions that this officer might suffer career damage for testifying in connection with the current House of Representatives investigation into President Donald J. Trump's attempted political quid pro quo with Ukraine are farfetched. As between the two, who is more likely to be in federal service on January 21, 2020? Odds on whether LTC Vindman makes Colonel?

Indian Army wants to preserve ban on adultery, homosexual acts

The [Indian] army believes that allowing homosexuality and adultery will break the fabric that binds it together and effect its teamwork spirit, which will damage the outcome of its combat related tasks. Officials explained this is especially crucial for cases such as the wife of a soldier posted in a remote area, having an affair with his co-soldier. The army still can charge its soldiers for adultery and homosexuality under section 45 (unbecoming conduct) of the Army Act.

From this article in the Economic Times