Tuesday, October 20, 2020
Monday, October 19, 2020
Hypotheticals worth pondering include whether General [Mark A.] Milley could have been prosecuted had he refused to walk with President [Donald J.] Trump to the church door, or whether an order to paint over “Black Lives Matter” on a city street would have been legal, if the president asserted that these actions served the military purpose of force protection, including protection of the commander-in-chief at or near the White House. Recently, the Marine Band was required to play at what certainly seemed to be a campaign-related White House event. Would the piccolo player have had a defense if she refused to play John Philip Sousa’s immortal “Stars and Stripes Forever”?
Friday, October 16, 2020
Retired colonel Michel Drapeau, who is now a lawyer specializing in military cases, says this latest dispute over Canada’s military justice system underscores what he believes is a desperate need for Parliament to intervene and launch an overhaul. Drapeau has long argued that military judges are not impartial because they are, first and foremost, members of the Canadian Armed Forces. He says Vance’s order simply confirmed that fact in a way that could not be ignored. "Up until then, they probably looked at themselves as being independent," Drapeau said of the military judges. "They convinced themselves they were. But now it became loud and clear. … They’re full-scale members of the military." While he supports the need for courts martial to hold military members to account, Drapeau has been pushing for years for Canada to follow allies such as Britain in making judges truly independent of the military. His ideas range from using civilian judges or former military lawyers to preside over courts martial to making a military division within the Federal Court. However, he says whatever steps are taken will need the involvement of the government and Parliament, which have tended to leave all issues involving discipline within the Armed Forces to the military. "The parliamentarians, it's up to them," Drapeau said. "They need to take this in hand, and they haven't."
Thursday, October 15, 2020
Dans sa Revue annuelle de 2018-2019 (Volume 57) la Société internationale de Droit militaire et de Droit de la Guerre a publié un savant article intitulé: « Le droit pénal militaire camerounais: combat inégalitaire entre normalisation et spécialisation d’un droit exceptionnel » par le Dr. Tokwene A Ndjokou Eloubwe Ilate de l’Université de Yaoundé II.
Selon le Dr. Ilate, le rapprochement du droit pénal militaire et du droit pénal ordinaire est une constante du discours et des joutes politiques et législatives de son pays. Il nous rappelle qu’à son époque Napoléon Bonaparte “rêvait déjà d’une justice unique pour tous les citoyens.” Or, dit-il, la réalité conduit pour des raisons diverses, propres à chaque pays, à la survie du droit pénal militaire du côté du droit pénal de droit commun. Il rajoute cependant qu'il faut "se rendre à l’évidence que les réformes observées en droit pénal ordinaire pénètrent [que très peu] le droit pénal militaire . Le défi étant de son intensité.
L’auteur conclut d’autre part que le la justice militaire au Cameroun a toujours été regardé comme un droit d’exception même si aujourd’hui le législateur s’en défend en considérant que la juridiction qui1ui applique est une juridiction à compétence spéciale. Néammoins, selon lui « quelque soit le pays où l’on se trouve, les résultants des travaux éffectués sur la justice militaire tirent la sonnette d’alarme de non-observation des Principes Décaux (voir note ci-bas) à travers le monde. »
Il conclut que la nature exacte du droit pénal militaire actuel au Cameroun est encore loin de devenir un droit pénal commun et qu'il demeure un droit pénal d’exception.
Voir « Les Principes des Nations-Unies sur l’administration de la justice par les tribunaux militaires : pour une justice militaire conforme au droit international » par la Dre Claire Callejon publié dans Droits fondamentaux, no 6, janvier-décembre 2006
Tuesday, October 13, 2020
This article captures the other view of what The Orders Project entails.
Shane Harris, Volunteer lawyers will advise military personnel who question the legality of orders during protests, election disputes. Washington Post, 9 October 2020.
The Project is conceived as a non-partisan, not-for-profit rule of law initiative.
A group of lawyers is offering advice to military and National Guard members who worry they may be given unlawful orders if deployed during protests or disputes over next month’s elections.
The protests, which followed the death of George Floyd in police custody in Minneapolis, prompted confusion among law enforcement and National Guard leaders. Some officials said they had no warning that the U.S. Park Police, which commanded the operation, planned to move against protesters and that the crowd could have been moved out of the area without the use of force.
The legal group anticipates that military personnel might find themselves in the same position this fall, and they may question whether orders they receive are legal.
Sunday, October 11, 2020
This (Canadian) Thanksgiving weekend, our community received the sad news that our friend and colleague, Major (retired) Charles Edmund Thomas passed away suddenly and unexpectedly on October 10th due to a heart attack. Edmund was a long-serving member of the Canadian Forces, principally serving as a legal officer in the Office of the Judge Advocate General (JAG) of the Canadian Forces. Edmund was a a passionate advocate who served in a variety of functions in the Office of the JAG.
In particular, he served for a number of years with Defence Counsel Services and was a diligent and resolute advocate for CF personnel brought before courts martial. Even after he retired from the Canadian Forces in 2017, his passion for military justice led him to pursue a PhD in Law at the University of Western Ontario in order to further scholarship in this field. He was working toward this goal at the time of his death.
Edmund joined the Global Military Justice Reform blog as a contributor earlier this year in order to share his years-long passion for military justice with a broader community of scholars. Edmund, you will be missed. Our condolences go out to his family and friends.
Saturday, October 10, 2020
Friday, October 9, 2020
Tuesday, October 6, 2020
Saturday, October 3, 2020
Friday, October 2, 2020
17 September 2020 I noted that the Military Commissions had a new judge.
Well the ballet (or shuffle or name your form of dance) enters the next act. The New York Times tells us that,
The recusal of Col. Stephen Keane from hearing the case at Guantánamo Bay adds another roadblock to restarting pretrial hearings in the long-running case.
He cited a "series of potential conflicts of interest."
Pioneer Daniel Boone, said to possess the eye of an eagle and the height of a mountain, was made famous during his lifetime with books such as The Adventures of Col. Daniel Boon. That book recounted battles with Native Americans and the settlement of Kentucky. Unfortunately, the book appears to have missed a few things, like Lieutenant Colonel Boone’s correct military rank and his court-martial.
Supplementing the historical record, the court-martial is chronicled in a new novel. The historical novel serves as a reminder that people have dark chapters in their life and that military justice has a long history in the U.S. After all, the first Judge Advocate General in the United States Army, William Tudor, was appointed by the Second Continental Congress on July 29, 1775.
So if you have the time and inclination, it sounds like an entertaining book. It’s always interesting for me when people successfully take up their own defense. And when folk heroes have complicated life stories.
Thursday, October 1, 2020
While we are at the store, readers are strongly encouraged to do two things: (i) add your thoughts by using the comments feature (real names only), and (ii) visit CAAFlog.org, which gets better by the day. It's an excellent site for news and views about American military justice.
Tuesday, September 29, 2020
The resolution did not exonerate him, it only remanded the case to the Superior Court because during the trial the declaration of the victim was not received, in addition there was no face to face confrontation between the accuser and the defendant, and the Military Court was not correctly constituted.
The crime was committed on October 8, 2014, and the victim was part of the military system, as a soldier of the military police, but she deserted. On the day of the event the victim was in the women's dormitory and at 6 pm, a soldier transmitted the order from the Lt Colonel that she present herself in his room and that she would accompany her there. The charge indicated that the victim submitted herself to the order of her superiors. While they were in his room, they were the object of inappropriate conduct, such as off-color proposals, the offer of intoxicating beverages and the exhibition of photos of women whom he referred to as his girlfriends.
Since the victim deserted after these events, she could not be found to press charges and the Superior Military Court, which issued the conviction, was not constituted as required by the Code of Military Justice.
Just Security reports,
A core goal of international humanitarian law (IHL) is the minimization of civilian casualties beyond that required by military necessity. IHL is thus recognized as requiring armed forces to distinguish between civilian and lawful military objectives, prohibits attacks that are expected to result in excessive civilian loss of life or injuries in relation to the anticipated military advantage, and requires the taking of feasible precautions. Protection of civilians is recognized as both a moral and ethical imperative; and as an essential element for maintaining support for U.S. military operations from partner states, vulnerable populations, and our domestic public.
That said, recent and ongoing military actions in Syria, Iraq, Afghanistan, Yemen, and elsewhere highlight the urgent need for discourse about both the law and practice of preventing and responding to civilian casualties. Civilian deaths and injuries are alleged to go systemically under-reported, with evidence too readily left insufficiently collected, allegations insufficiently investigated, and information about incidents insufficiently disseminated. A February report by the Center for Civilians in Conflict (CIVIC) and the Columbia Law School Human Rights project found significant inconsistencies in how the U.S. military conducts investigations of civilian harm, too many instances of investigations based on incomplete or inadequate information, and insufficient receptivity to and mechanisms for considering information from public or other external sources.
Against this backdrop, an important symposium series, “Civilian Casualties: The Law of Prevention and Response,” is kicking off on Wednesday (September 30) at noon EDT. The series is intended to promote deeper discussion and greater understanding of the broad range of considerations that underlie these critical issues. Conceived originally (before the pandemic) as a one-day event in Washington — part of the Signature Topic Initiative on Atrocity Prevention, sponsored by the American Society of International Law (ASIL) — the revamped online symposium format will facilitate a far wider range of participants as the Symposium takes a hard, honest look at these issues.
The Capital City Police Officer (CCPO) Lahore, Muhammad Umar Sheikh, on Monday said that the Police Service of Pakistan (PSP) should have a system of court martial to punish those officers who were found guilty of abuse of power or negligence in their duties on the same pattern the court martial was practiced in the armed forces of Pakistan to maintain discipline and efficiency in the forces.
"In my opinion, the introduction of court martial in police is the key-to keep the house in order as far as this force is concerned," he told the Senate Functional Committee on Human Rights presided over by Mustafa Nawaz Khokhar. He said internal accountability was necessary to improve efficiency in the police department by taking on those cops who did not abide by their responsibilities dutifully as well as those who misused their powers. "When we talk about police, the very first word that comes to our mind is reforms. Reforms are essential to ensure an effective system of accountability within police," he said.
Monday, September 28, 2020
here. There's also a one-page summary here. The report's conclusion states:The JSS-PAS finds that implementation of the alternative military justice system defined by Section 540F is neither feasible nor advisable. Likewise, the JSS-PAS finds that conducting a pilot program for such a system would be infeasible and inadvisable. Commanders are central to the military justice system and the current commander-centric system works. Commanders are trained to make decisions and rely on their experience and the legal advice of their judge advocates to inform those decisions.
Careful study has shown that commanders are well-equipped and capable of decision-making in the field of discipline. Commanders have been proven to make reasonable disposition decisions in penetrative sexual assault cases, and the military justice system compares favorably in terms of reporting, investigation, and prosecution in sexual assault cases with civilian jurisdictions.
Comparing the U.S military justice systems to the systems of allied military justice systems is a false equivalency. Allied militaries, particularly the “Five Eyes” allies, are but a small fraction of the size of the active U.S. military, and the few cases tried in each of those allied militaries is proportionally even smaller (with convictions even proportionately smaller still). Despite having far fewer cases and smaller militaries, changing to prosecutor-centric military justice systems has shown no improvement in reporting, investigating, or prosecuting criminal offenses in the military justice systems of U.S. allies. And in the case of one of those allies, the reform led to an invalidation of the military justice system – something that would be enormously detrimental to the U.S. military, which remains engaged in ongoing combat operations. The U.S. should be wary of change for the sake of change; the data from allied military justice systems does not support any assertion that such a radical change will make our own system better.
Commanders need full authority under the UCMJ to enforce good order and discipline. Commanders must have the full range of tools available to rehabilitate service members capable of continued service, punish those whose conduct risks military readiness, and set the expectation amongst all service members that indiscipline will be handled swiftly by a commander with authority. Parceling out these tools amongst differing authorities with differing perspectives and purposes will only serve to weaken the effectiveness of all of the tools. Divesting commanders of the mechanism to enforce good order and discipline will result in a less effective military and will weaken the national security of the United States.
Sunday, September 27, 2020
Nathaniel Penn provides a fascinating piece of investigative journalism in his new article on Army 1st LT Clint Lorance (it's quite long, and I hope he turned his research into a book). This is the sordid saga of a LT whose actions wreaked havoc on those within his platoon, whom a panel (jury) of Army Soldiers convicted of murder, and whom President Trump later pardoned after Fox News transformed Lorance into a weapon in the polarizing culture wars it has helped fuel.
It's a troubling read, as the reporter details how zealous advocates with their own political agendas used false characterizations and lies to manipulate the Commander-In-Chief, as well as millions of Americans who didn't know better, into believing that the LT wasn't the murderer the facts proved him to be (he was convicted after all) -- instead wrongly portraying him as a scapegoat for supposedly bad policy decisions by the Obama Administration. One take-away from this piece: facts don't matter, propaganda does. Not reassuring for a democracy, nor for its military.
Saturday, September 26, 2020
It appears that the Chief of the Defence Staff (CDS) of the Canadian Forces has, in fact, suspended his order of 2 October 2019, entitled: Designation of Commanding Officers with respect to Officers and Non-Commissioned Members on the Strength of the Office of the Chief Military Judge Dept ID 3763 (the 'Designation Order').
It appears that he did so on 15 September 2020. However, unlike the notoriety of several recent courts martial judgments, which stayed prosecutions in light of the CDS' refusal to rescind the impugned Designation Order, the order suspending the Designation Order was not announced or promulgated notoriously and publicly.
The following Blog post, entitled "Military Judicial Independence: I have heard of orders, and rumours of orders ..." elaborates on the lack of publicity and notoriety of this significant development in the administration of military justice in the Canadian Forces.
It would appear that the principal cause for the recent stays of prosecution in courts martial has been addressed - for now. However, there remains potential for further applications of a similar nature, based upon the Canadian Forces Organization Order pertaining to the Office of the Chief Military Judge. Moreover, the broader issue regarding the general application of the Code of Service Discipline to military judges will still be the subject of an appeal (and cross appeal) before the Court Martial Appeal Court of Canada (R v Captain Crépeau, 2020 CM 3007).
Courthouse News Services reports that,
The Trump administration announced Wednesday it is placing sanctions on the International Criminal Court’s chief prosecutor, escalating its feud with the global judicial body investigating American military actions in Afghanistan.
Secretary of State Mike Pompeo told reporters that the White House will sanction Fatou Bensouda, the prosecutor of the world’s only permanent court for atrocity crimes, as well as another staff member for their involvement in an investigation into whether U.S. military personnel committed war crimes in Afghanistan.
“These coercive acts, directed at an international judicial institution and its civil servants, are unprecedented and constitute serious attacks against the Court, the Rome Statute system of international criminal justice, and the rule of law more generally,” the court said in a statement on the sanctions.
Thursday, September 24, 2020
Wednesday, September 23, 2020
Tuesday, September 22, 2020
The Queen has appointed Alan Macdonald Large (at left) to be the Judge Advocate General on the advice of the Lord Chancellor, the Right Honourable Robert Buckland QC MP, with effect from 1 October 2020. This follows the retirement of HHJ Jeff Blackett (below) who has served as Judge Advocate General since 2004 and was responsible for steering the Service Justice System through the 2006 reforms. In addition, The Queen has appointed Judge Large to be a Circuit Judge on the advice of the Lord Chief Justice of England and Wales, the Right Honourable The Lord Burnett of Maldon. Therefore he will be known as His Honour Judge Large.
Numerous media outlets (example here) in the UK have reported that 13 members of the Welsh Guards have been sentenced to 14 days in the Military Corrective Training Centre by their CO for breaking socialdistancing rules. The Guardsmen who were guarding Windsor Castle where HM The Queen and HRH The Duke of Edinburgh are shielding broke social distancing at a party by the River Thames. Four of those involved failed Compulsory Drugs Tests after the event and were discharged from HM Forces under a separate administrative procedure.
Although the exact charge is unknown, on the face of it this is a concerning sentence, passed by a CO with no legal training in a hearing where legal representation is banded, which is far in excess of the penalty a civilian would receive for the same offence. The sentence is double that which would be expected for the offence of breach of standing orders (even when factoring in the aggravating factors of the wilful nature of the breach and therisk it exposes other members of the unit to Covid-19). If the charge was disobedience of a lawful command, then the sentence is at the bottom of the entry point for intentional disobedience. Although it would be surprising if at this stage Covid-19 procedures had not become part of standing orders and were disseminated in an ad hoc manner. Potentially this suggests overcharging.
The key issue though, and one which has apparently caused significant anger amongst the junior ranks of the battalion, is the disparity between these sentences and how a civilian would be treated. A sentence of 14 days detention means the offender will spend 14 days without pay in an environment equivalent to a prison but with an enhanced basic training regimethrown in. A civilian could expect a small fixed financial penalty. The Armed Forces are held to a higher standard and those who serve accept that but even with that in mind it is hard to see what good service reason exists to justify treating these Guardsmen so differently to civilian employees serving HM The Queen at Windsor Castle.
The Guardsmen have an automatic right of appeal to the Summary Appeal Court. It will be interesting to see if any of them exercise their right.
Monday, September 21, 2020
VanLandingham took issue with other parts of the bill, including taking prosecutorial discretion away from commanders only in cases of sexual assault and harassment.“If the purported conflict of interest exists for sexual offenses, it exists for all other crimes as well,” she said. “The root of the issue is if commanders should have prosecutorial discretion at all.”A provision for damages would also create a “caste system,” she said, in which sexual assault survivors might be compensated but not other assault victims.
Thursday, September 17, 2020
A colonel in the Marine Corps was named Thursday to preside as the military judge in the long-running death penalty trial of Khalid Shaikh Mohammed and four other prisoners at Guantánamo Bay, Cuba, who are accused of plotting the Sept. 11, 2001, attacks.
The colonel, Stephen F. Keane, is currently serving as the circuit military judge at Camp Pendleton, Calif., the senior judge on the West Coast for the Marine Corps. Before that he was commanding officer of Security and Emergency Services at Camp Pendleton, responsible for the brig, firefighting and policing on the sprawling 125,000-acre installation with 38,000 residents and about 30,000 commuters.
Tuesday, September 15, 2020
Rien ne va plus!
Dans un rapport publié au printemps 2018, le Vérificateur général du Canada avait ouvertement critiqué la justice militaire comme étant inefficace, entachée de retards et en proie à des «faiblesses systémiques».
À son tour, en décembre 2018 le Comité permanent des comptes publics de la Chambre des communes a constaté que les Forces armées canadiennes n’avaient pas administré le système de justice militaire de manière efficace, comme en témoignent les retards excessifs tout au long du processus judiciaire.
L’indépendance de la justice militaire n’est pas aussi au rendez-vous
En août 2020, le juge militaire en chef adjoint, le lieutenant-colonel Louis-Vincent d’Auteuil, déclare que son tribunal militaire n’est ni indépendant ni impartial dans sa forme actuelle. [R c. Crépeau]. Plus tôt cette année, le juge militaire Pelletier dans R c. Pett; et la juge militaire Sukstorf avaient annoncé une pareille décision. [R. v. D’Amico]. C’est du jamais vu!
L’étincelle qui a mis le feu aux poudres est probablement une ordonnance émise en octobre 2019 par le chef de l’état-major de la Défense, le général Jonathan Vance, par laquelle tous les juges militaires seront dorénavant soumis à l’autorité disciplinaire du vice-chef d’état-major de la Défense. Tant qu’à moi, je ne vois rien d’étrange à cela. D’abord, selon l’article 60 (1)(a) de la Loi sur la défense nationale tous les militaires de la force régulière sont assujettis au Code de discipline militaire. Encore, selon l’article 4.091(2) des Ordonnanceset règlement royaux le juge militaire en chef ne peut « exercer ni les pouvoirs ni les compétences » d’un officier commandant une unité ou un commandement en ce qui a trait à toute question disciplinaire. Selon moi, le CEMD a donc agi correctement en adressant ce vide juridique. Mais ce qui est remarquable c’est qu’il a fallu tout ce temps avant qu’on se rende compte que les juges militaires sont de jure justiciables sous le Code de discipline militaire ce qui va à l’encontre de l’obligation constitutionnelle selon laquelle les juges, civils ou militaires, doivent être indépendants de l’exécutif.
En désaccord avec la décision du juge d’Auteuil, le Directeur des poursuites militaires a d’ores et déjà demandé à la Cour d’appel de la cour martiale du Canada de réviser cette décision. En temps opportun, cette cour d’appel pourra alors décider de soit renverser ou modifier la décision du juge militaire. Dans un cas comme dans l’autre il est fort possible qu’une des deux parties ne sera pas d’accord avec la décision de la cour d’appel. Il est donc aussi prévisible qu’une des deux parties pourra alors porter sa cause en appel devant la Cour suprême du Canada.
Il est difficile d’évaluer le temps d’un tel parcours de temps mais il faut bien se rendre compte que plusieurs mois vont s’écouler avant d’avoir une décision judiciaire finale. Pendant cette période qui sera plus ou moins longue, les cours martiales seront pour toutes fins utiles paralysées. Elles seront ainsi probablement incapables de rendre justice en temps utile et surtout à l’intérieur des délais imposés par la Cour suprême dans l’affaire R. c. Jordan 2016 CSC 27 entre le dépôt des accusations et la tenue d’une cour martiale.
Appel au nouveau Parlement
Face à cette paralysie du système de justice militaire, le prochain Parlement pourrait agir de son propre chef en envisageant une réforme structurelle de la justice militaire. A titre d’exemple, le Parlement pourrait modifier la loi exigeant comme critère de qualification que le candidat à la fonction de juge militaire se dessaisisse de son statut et de son grade militaire une fois nommé juge à la cour martiale. Alternativement, suivant l’exemple de plusieurs de nos alliés européens, le Parlement pourrait simultanément considérer l’abolition des cours martiales et la création d’une nouvelle division militaire ajoutée à la Cour fédérale. À mon avis, cette alternative serait la meilleure solution, d’autant plus que la Cour fédérale a des salles d’audience permanentes dans tout le pays, avec un compliment qualifié de juges bilingues. La création d’une «division militaire» de la Cour fédérale serait conforme aussi au mandat initial de la Cour, qui est d’assurer une meilleure administration des lois du Canada, comme la poursuite des infractions à la Loi sur la défense nationale.
L’indépendance des juges est une pierre angulaire du système judiciaire canadien. C’est pourquoi, selon la Constitution, le pouvoir judiciaire est distinct et indépendant des deux autres pouvoirs du gouvernement, soit l’exécutif et le législatif. L’indépendance judiciaire garantit que les juges doivent être mesure de rendre des décisions libres de toute influence et fondées exclusivement sur les faits et le droit. Tel que décidé dans Valente c. La Reine, 1995 2 RCS 673
Il importe que la fonction du juge soit «à l’abri de toute intervention discrétionnaire ou arbitraire de la part de l’exécutif». Pour ce faire les juges militaires ne devraient pas détenir un grade militaire ni être soumis aux ordres et aux directives de la chaîne de commandement militaire.
Sunday, September 13, 2020
There are no existing federal statutes that authorize the president to declare martial law. However, while Congress has passed a multitude of laws related to domestic military deployment, these laws do not only create restrictions. Congress has also given the president considerable authority to use troops domestically in ways short of martial law. The Insurrection Act, and potentially Title 32 as well, allow the president to deploy the military to assist civilian authorities with law enforcement activities virtually whenever and wherever the president chooses. In some scenarios, a deployment of troops under these statutes might appear similar to a declaration of martial law. These ambiguities and the breadth of the president’s statutory authority point to the need for Congress to pass legislation that better defines the scope and limits of presidential powers — both for martial law and for other domestic uses of the military.The Brennan Center's full report can be found here.
Thursday, September 10, 2020
According to her law firm website:
What you’ll discover from this book…
and much more.
- How To Avoid Temptation When Drafting Your Motion
- How To Identify Your Remedy
- When To Consider Multiple Prayers Of Relief
- Why Facts Are Important
- Research Methods
- Systemic Approach To Legal Analysis
- Procedural Motions Versus Non-Procedural Motions
Often, the most meaningful and effective defense motions are never litigated, but those motions leverage advantage from the government without litigation.
So how did we get here and so what?
Over the years since the 1983 changes to the UCMJ and MCM have been occasional and focused on one or two recurring issues. In the process there has not been a lot of public discussion to be had--the changes happened, generally for the good. When the appellate courts issued significant and consequential decisions the MCM at least was amended to conform to the appellate law. And there are always recommendations for change in the hopper, some of which make sense and some which require a "Whack-a-Mole" operative to act.
But now we come to the primary motivation for the significant changes arising from this NDAA--efforts to address the issue of sexual assault and how the military justice system holds people accountable.
A troubled Congress told the DoD to set up an investigation to identify problems within the military justice system that were a barrier to enforcing discipline as it related to sexual assaults. The Judicial Proceedings Panel was born.
The Secretary of Defense, as required by Section 576(a)(1) of the NDAA for Fiscal Year 2013 (Public Law 112-239) and in accordance with [other laws], established the Judicial Proceedings Panel.
The Judicial Proceedings Panel will conduct an independent review and assessment of judicial proceedings conducted under the Uniform Code of Military Justice involving adult sexual assault and related offenses since the amendments made to the Uniform Code of Military Justice by section 541 of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81; 125 Stat. 1404) for the purpose of developing recommendations for improvements to such proceedings.
Over many months the panel took "evidence," held hearings, and produced numerous reports about all aspects of a sexual assault allegation--the identifying of and the treatment of victims, changes to the law defining sexual assaults; and the training, skills, and resources for those prosecuting and defending allegations of sexual assault.We had also the Military Justice Review Group.
In August 2013, the Joint Chiefs of Staff recommended that the Secretary of Defense direct a "comprehensive and holistic review" of the Uniform Code of Military Justice (UCMJ) to ensure that the military justice system "most effectively and efficiently does justice consistent with due process and good order and discipline." In October 2013, the Secretary of Defense approved the recommendation and directed the General Counsel of the Department of Defense to conduct a comprehensive review of the UCMJ and the military justice system with support from experts provided by the military Services.
The recommendations from the MJRG eventually became DoD's proposed changes for the NDAA.
So how has that gone now we have been operating under the rules made applicable after December 2019. (Some changes took immediate effect; others were phased in and still others did not take effect until 1 January 2020). One of the issues that first arose for trials after the effective changes is what rule or law to follow. We had and continue to have what we call 'bridge cases.' For a case that began before 1 January but was tried after 1 January proceeded on some of the old rules and some of the new rules. These bridge cases are anticipated to go longer (Gene and I have discussed one bridge issue of apparent unlawful command influence concerns--a different rabbit hole beyond this post).
So how has everything gone? The simple answer is that we are still adjusting and learning, and it may be some time before we can reflect on the positive or negative effects of the changes. Congress itself has enacted changes that may provide more robust data for analysis. See, e.g., Military Sexual Assault: A Framework for Congressional Oversight, CRS (Updated) September 12, 2017.
So? Prof. Dave Schlueter (a longtime MJ practitioner and studier of MJ) quickly published a lengthy article about the 2016 changes--an article somewhat descriptive, somewhat analytic, and perhaps somewhat prescient. See David A. Schlueter, Reforming Military Justice: An Analysis of the Military Justice Act of 2016, 49 St. Mary’s L.J. 1 (2017).
Fine, but now we can do some initial compare and contrast in addition to our own anecdotal experiences.
On 28 August 2020, the Congressional Research Service issued a Report on Military Justice Reform. See Jennifer K. Elsea and Jonathan M. Gaffney, Military Courts-Martial Under the Military Justice Act of 2016 (28 August 2020).
Wednesday, September 9, 2020
Today the High Court unanimously dismissed an application which challenged the jurisdiction of a Defence Force magistrate to try a charge against a member of the Australian Defence Force ("ADF"). The application concerned the extent to which the defence power conferred on the Commonwealth Parliament by s 51(vi) of the Constitution supports the conferral of jurisdiction by the Defence Force Discipline Act 1982 (Cth) ("the Act") upon military service tribunals to hear and determine charges relating to conduct that also constitutes an offence under ordinary criminal law and that is committed in a time of peace when civil courts are reasonably available.
On 12 June 2019, the plaintiff was charged by the Director of Military Prosecutions ("DMP") with one count of assault occasioning actual bodily harm against a woman with whom he had previously been in an intimate relationship. The alleged offending occurred after a birthday party in Fortitude Valley, Brisbane. It was alleged that, throughout the night, the plaintiff had made unwanted advances towards the complainant. At the end of the evening in a hotel room, the plaintiff, who was intoxicated and angry, allegedly threw the complainant's phone across the room, grabbed her by the throat and pushed her against the wall, shaking her and yelling at her. After the complainant broke free, the plaintiff tackled her to the ground, placed his knees on her chest and choked her until two security guards entered the room. The plaintiff was and is a member of the ADF and the complainant, at the time of the alleged assault, was a member of the ADF. Neither was on duty or in uniform at the time of the alleged offending.
On 26 August 2019, the plaintiff appeared before a Defence Force magistrate on a charge under s 61(3) of the Act, which provides that a defence member is guilty of an offence if the person engages in conduct outside the Jervis Bay Territory and that conduct would be an offence if it took place in the Jervis Bay Territory. Assault occasioning actual bodily harm is an offence under s 61(3) by reason of s 24 of the Crimes Act 1900 (ACT). The plaintiff objected to the Defence Force magistrate's jurisdiction to hear the charge. The Defence Force magistrate dismissed the objection on the basis that it is sufficient to confer jurisdiction on a service tribunal that the accused was a member of the armed forces when the charged offence was allegedly committed.
The plaintiff commenced proceedings in the original jurisdiction of the High Court seeking prohibition to prevent the Defence Force magistrate hearing the charge against him. The Court unanimously held that the Defence Force magistrate had jurisdiction to hear the charge. Five Justices of the Court held that s 61(3) of the Act, in obliging defence members to obey the law of the land, is, in all its applications, a valid exercise of the defence power. Two Justices of the Court held that s 61(3) is valid only in its application to offences which, because of their nature or circumstances of commission, have a proven connection with defence force discipline, and that such a threshold was satisfied in the present case.
These judicial decisions were brought upon by a recent Order issued by the Chief of the Defence Staff (CDS), General Jonathan Vance, to the effect that the Deputy to the Vice Chief of the Defence Staff (VCDS) -- a Regular Forces officer in the rank of Major-General -- has now been given the powers of a Commanding Officer with respect to any disciplinary matter involving any member of the military judiciary.
Court martial is neither an independent or impartial tribunal
According to two separate defence counsel in two recent courts martial, the CDS order flies in the face of the requirement for an independent and impartial tribunal as laid out in section 11(d) of the Canadian Charter of Rights and Freedoms.
In two separate trials, defence counsel argued that the accused would not be tried before an independent and impartial tribunal. This led the presiding judge in each of these trials, Lieutenant-Colonel Louis-Vincent d'Auteuil, to a stay of proceedings; one in R v. Edwards 2020 CM 3006 and another in R v. Crépeau 2020 CM 3007. The Director of Military Prosecutions (DMP) caused the filing of a separate notice of appeal to the Court Martial Appeal Court in each instance in the result that for the foreseeable future the Canadian court martial system is in a standstill
This outcome is hardly surprising. Judges presiding over courts martial in Canada hold a military rank and as such, they are subject to the Code of Military Discipline, the Code of Values and Ethics and a host of regulations, orders and directives published by the chain of command and the Department of Defence. Therefore as commissioned officers, military judges also have multiple obligations and duties as set out in the Queen’s Regulations and Orders. Consequently, Canadian military judges are not independent since they are not immune to disciplinary constraints and are subject to a wide variety of military obligations and regulations. Contrast this with the UK, Australia and New Zealand, where court martial judges are civil magistrates.
The current situation which contrasts with other Canadian courts is stark, and problematic. Uniformed personnel are entitled to and deserve a modern, equitable system of justice that Canadians would be proud of. However, this is presently not the case. Much much-needed modernization and enhanced fairness of the military justice system is required and there is an urgency to get this done before paralysis sets in any further.
2018 AG Report: impetus to bring about systemic changes to the Court Martial System
While this matter is being reviewed by an appellate court, the Canadian military in general and the Office of the Judge Advocate in particularly should seriously consider the results of the Spring 2018 Report on the Administration of Justice in the Canadian Armed Forces tabled in Parliament by the Auditor General. The AG report concluded as follows:
3.87 We concluded that the Canadian Armed Forces did not administer 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.
3.88 We also concluded that the Office of the Judge Advocate General did not provide effective oversight of the military justice system and did not have the information needed to adequately oversee the military justice system.
In my opinion, this situation is unlikely to change until the CDS rescinds his order and the matter is eventually decided upon by the Supreme Court of Canada. In the interim, the Canadian military courts are inoperative.