Accountability: some UK proposals

Nadia O'Mara, writing for Just Security, points to three proposals that have been out for discussion in the UK:

The consultation puts forward three substantive proposals, targeting both criminal and non-criminal cases related to alleged violations outside the U.K. — in other words, the proposed legislation would not provide the same protections in cases related to the Troubles in Northern Ireland:

• To introduce a statutory presumption against prosecution of current or former Armed Forces personnel for alleged offences committed in the course of duty outside the U.K. more than 10 years ago. The presumption would not apply, though, to offences alleged to have been committed by members of the Armed Forces against fellow personnel, or against other Crown Servants, essentially establishing a two-tier system in which the death of or injury to British personnel is of greater legal consequence than non-British personnel or civilians. 
• To create a new partial defense to murder, which would be available to current and former Armed Forces personnel who caused death in the course of duty outside the U.K. through the use of greater force than strictly necessary for the purposes of self-defense in the “heat of the moment,” providing the initial decision to use force was justified.
• To restrict the discretion of the courts to extend the normal time limit for bringing compensation claims for personal injury and/or death in relation to historical events outside the U.K. 

Each of the three proposals is not only unprecedented as a matter of domestic law, but also has serious implications for the U.K.’s international obligations. This author’s civil liberties and human rights organization, Liberty, set out its full concerns in a response to the MoD consultation. The focus of the remainder of this piece is the proposal to introduce a statutory presumption against prosecution of current or former Armed Forces personnel. If introduced, the measure might well pique the interest of the ICC in its investigation into the U.K.

Ms. O'Mara writes:

If taken forward, these proposals risk fostering a culture of impunity among U.K. forces that inevitably would reverberate on partners in military coalitions, as the absence of avenues to gain justice for abuses creates blowback in the form of threats and attacks on troops in the field.

What’s more, the proposals must now be set against the backdrop of evidence reported by BBC Panorama and The Sunday Times in November of a potential cover-up by the U.K. government and MoD of war crimes committed in Iraq and Afghanistan. The stories prompted the International Criminal Court (ICC) to say it would independently assess the reports and consider launching a full investigation.

"I will cut your son's throat" -- torture?

Carol Rosenberg has this riveting New York Times story on the torture hearing currently underway at Guantánamo Bay military commission. Who were the lawyers back at the CIA who opined that it wasn't torture if the threat was conditional? Seriously: who were they? Is there a memo in the file?

Commanders and justice -- what are the Democratic candidates saying?

All but two of the remaining Democratic presidential candidates favor removing commanders' disposition power for sex offenses, according to this report. If a Democrat takes the White House in November's general election, look for an Executive Branch initiative or a study commission or both. Excerpt:

Only former Vice President Joe Biden and former New York Mayor Mike B[l]oomberg have not signed the pledge, but say they would address the issue.

The Biden campaign said in a statement to CNN that he is committed to changing "the culture of abuse" within the Armed Forces.

"He will immediately appoint a commission comprised of current and former military leaders, military sexual assault survivors and their advocates, and prominent sexual assault experts, to make concrete recommendations to him within 90 days," the statement said. "All options should be considered to end this scourge."

Bloomberg's campaign said it is considering the issue.

"We're considering this pledge as we continue to release our policy proposals, including plans around the military and the best ways to prevent sexual assault," a spokesperson for the Bloomberg campaign wrote in an email.

Query: why limit this overdue reform to sex offenses? What about selection of members?

What better day for this story to have run than George III's yahrzeit?

George III in the news

George III's collection of military maps is now available online here. Tricorn hats off to the Royal Collection Trust for making this collection available to the public. Hip-hip . . .

The king -- America's (well, not Canada's) last -- died two hundred years ago tomorrow.

The Guardian has this report.

Religious headgear in the SANDF

A major serving in the South African National Defence Force (SANDF) recently had the criminal case against her abruptly withdrawn by the government. Major Fatima Isaacs had refused to remove her headscarf under her military beret, leading to the initiation of her court-martial for "willful defiance and disobeying a lawful command," given that current South African army regulations do not provide for headgear accommodations.  Despite those regulations, apparently the cessation of the major's court-martial for insubordination was accompanied by some type of pronouncement -- by whom, it's unclear -- allowing her and "other Muslims members of SANDF to wear the headscarf under their berets." However, this nascent step toward reasonable religious accommodation is just that, only a short-term success, and per "the Legal Resource Centre, the victory in Major Isaacs' case was partial and the next step is to tackle SANDF's dress code policy in court."

Meanwhile, the U.S. Army in 2017 issued a new religious accommodation policy explicitly allowing Soldiers to wear hijabs, turbans and beards based on approval by brigade commanders of individual requests based on "sincerely held religious beliefs." Hopefully someday soon the guarantee of religious freedom for U.S. service members, reasonably balanced with legitimate military needs, will not need to depend on service policy but rather be enshrined in law by a certain body exercising its Article I, Section 8, Clause 14 responsibilities.

Some developments are best not dignified by mention

Pres. Donald J. Trump

. . . but given the temper of the times, the recurring, unfounded calls on the right for the prosecution of Lieutenant Colonel Alexander S. Vindman, a decorated active duty Army officer assigned to the National Security Council who testified before a House committee about President Donald J. Trump's "perfect" 2019 telephone call with President Volodymyr Zelensky of Ukraine, is worth keeping on the radar. What's the alleged offense? Might there be some complete defense?

Military justice in Myanmar: is it credible?

Ye Mon has this article in Frontier Myanmar under the title "Myanmar's Military 'Justice' System." Excerpt"

Military courts operate under the provisions of the 1959 Defence Services Act and the accompanying courts martial procedures. The law exempts servicemen from civilian courts in most cases, even when the alleged victims are civilians. Because very few of the procedures are publicised or open to public observation, it is hard to know how closely the rules are followed in courts martial.

The 1959 act provides for four kinds of courts martial: general, district, summary general and summary courts martial.

A general court martial can be ordered by the president and the Tatmadaw commander-in-chief and any officers empowered by them.

The act stipulates that a general court martial should be heard by at least five officers, each of whom has been commissioned for at least three years and of whom at least four are not below the rank of an army captain or equivalent rank in the other services. The act also says that the prosecutors must be from the Tatmadaw and civilian lawyers cannot act for the complainant, even if the complainant is a civilian.

Redress/CRIN report on peacekeepers and child sexual abuse

NGOs Redress and the Child Rights International Network have issued a lengthy report on Litigating Peacekeeper Child Sexual Abuse. Among the recommendations are these for troop contributing countries:

As necessary amend domestic laws and policies to:

• Ensure jurisdiction is asserted over crimes of child sexual abuse committed overseas;
• Amend military and civilian criminal procedures to make them suitable for prosecuting crimes taken place overseas, such as through admitting video evidence from witnesses, instituting onsite court martials, and allowing the use of a commission rogatoire;
• Make prosecution processes, particularly military prosecution processes, sufficiently transparent to enable victims and/or their lawyers to determine the outcome of prosecutions and to participate in the process. Guidance on victims’ rights to information and participation in criminal prosecutions can be drawn from the EU Victims’ Rights Directive and related guidance.
• Publish military codes of conduct, procedures for investigating crimes committed during deployment and details of training provided to troops to ensure that detailed scrutiny is possible and that due recognition can be given when improvements are made.
• Ratify and implement international treaties requiring accountability for peacekeeper child sexual abuse, and sign up for the adjudicative processes under those treaties to ensure such standards are met. Relevant treaties include the CRC, CEDAW, ICCPR and UNCAT.
• Take all necessary measures to ensure access to reparations for all victims of sexual abuse.
• Demonstrate strong political will for holding perpetrators of child sexual abuse to account.

There are also strong recommendations for cognizant UN organs at pp. 82-83. 

2019 Yale Draft Principles for Military Summary Proceedings

The 2019 Yale Draft Principles for Military Summary Proceedings are now available in French and Spanish. Please share them with colleagues who may find them useful. Comments are welcome, of course (real names only, please).

New military justice legislation under consideration in South Africa

The South African National Assembly is considering the Military Discipline Bill. The bill has a number of interesting provisions. For example, § 7 provides:

Limitation of jurisdiction of military courts

7. No military court is competent to pronounce on the validity of any—
(a) act of the President; or
(b) law, including the common law, regulation or rule.

According to this news report, public comments can be submitted through February 7.

[E]nquiries and written submissions must be directed to Bryan Mantyi at the Portfolio Committee on Defence and Military Veterans, 3rd Floor, 90 Plein Street, Cape Town, 8000.

Submissions can also be emailed to bmantyi@parliament.gov.za. A copy of the Bill can also be obtained from Mantyi via email, by contacting him on 021 403 3796 or from Parliament’s website.

Will there be more courts-martial in Myanmar?

A commission appointed by the government of Myanmar to investigate allegations regarding violence against the country's Rohingya minority has submitted its report. The government's summary suggests there will be courts-martial if warranted. According to this account by Radio Free Asia:

The President’s Office announced that Win Myint sent the full report to military commander-in-chief Min Aung Hlaing to investigate and take action against servicemen and other security forces responsible for atrocities cited in the report.

In an executive summary of the report issued Tuesday, the President’s office concurred with the [Independent Commission of Enquiry]'s suggestion that investigations against those deemed responsible for human rights abuses should be conducted and that military courts should proceed with prosecutions if there is sufficient evidence.

“According to the evidence offered by the ICOE , war crimes and serious human rights violations may have occurred in the form of disproportionate use of force by some members of Myanmar’s Defense Services and Police Force in the course of internal armed conflict against [the Arakan Rohingya Salvation Army],” the summary said.

“This must be further investigated, verified, and thereafter prosecuted by Myanmar’s natural legal processes, in particular its military justice system,” it said.

The true test will be whether any more courts-martial occur, on what charges, with what rigor and transparency, and with what results.

Psychologist testifies on torture issue

Carol Rosenberg's report on today's proceedings at Guantánamo is online here. The lede:

The architect of the C.I.A.’s Bush-era interrogation program, who personally waterboarded the man accused of masterminding the Sept. 11 attacks, testified for the first time to the war court at Guantánamo Bay on Tuesday, defiantly facing defendants who had been subject to his methods.

How odd

The Los Angeles Times has this curtain-raiser by Terry McDermott on tomorrow's session of the KSM military commission at Guantánamo Bay Naval Station. It lists the following odd events from the case:

• The FBI several years ago placed an informant on one of the defense teams.
• It was determined that someone, probably within the CIA, monitors the proceedings in real time and once shut down a hearing because of a presumed danger of classified information being revealed.
• Listening devices were found in a room where defense attorneys meet with their clients. One of those meeting rooms, it was discovered last year, was part of a former black site.
• The Marine general who heads the defense teams was placed under house arrest last year.
• A black site the court had ordered to be preserved as potential evidence was destroyed.
• Several people the prosecution intended to call as witnesses have died.
• The entire court travels together in a charter aircraft for the hearings; in 2017 their flight nearly crashed landing in a heavy wind.
• Because the crimes carry a potential death penalty sentence, each of the lead attorneys for the defendants has to have experience trying capital cases. An entire slate of hearings had to be canceled because one of those attorneys broke her arm and couldn’t travel.
• Defense lawyers are unable to talk with their clients about anything the government decides is classified. For years, this included all issues having to do with the prisoners’ treatment past or present. Anything that happened to the defendants while in American custody was considered presumptively classified.

A stiffer sentence on appeal?

Not in South Africa under current law. See Mdekazi v. Minister of Defence, No. 55893/19,  [2019] ZAGPPHC 453 (S. Afr. High Ct. Aug. 22, 2019) (granting bail), ¶ 17. The Court of Military Appeals had found a colonel's dismissal too lenient, and substituted four years' confinement. We have been unable to learn the outcome of any further proceedings.

Appellate review for factual sufficiency: how rara an avis?

Should the U.S.'s service courts of criminal appeals continue to have the power under art. 66(d)(1), UCMJ, to determine factual sufficiency? That power may be less extraordinary than one might think, even if it's rare among American court systems. Consider this language from a court-martial appeal decided by the High Court of Kenya in Katitu v. Republic, Court-Martial App. No. 8 of 2017 (Kenya High Ct. 2017):

As the first appellate court, this court is required to re-consider and to re-evaluate the evidence adduced before the court martial so as to arrive at its own independent determination whether or not to uphold the decision of the court martial. In doing so, this court is required to always bear in mind the fact that it neither saw nor heard the witnesses as they testified and therefore give due regard in that respect. (See Okeno v. Republic [1972] EA 32.)

On re-evaluation of the evidence adduced before the court martial, and on consideration of the submission made by the counsels for the parties to this appeal, it was clear to this court that the charge that was brought against the Appellant that he deserted from his place of employment was not established to the required standard of proof beyond any reasonable doubt. The Appellant in this appeal, from the evidence that was adduced before the court martial served with distinction on three tours of duty in the war zone in Somalia. This was between March 2011 and December 2014. This was under the auspices of AMISOM and Operation Linda Nchi. During this period, it was apparent from the evidence that the Appellant’s family life was affected. He was granted leave upon his return to the country. Upon resuming work from leave, he was sent to Garissa to man a roadblock under Operation Maliza Ugaidi.

It was during this period that his family problems came to head. It was also during this period that the post-traumatic stress disorder that the Appellant suffered while he was in Somalia became a mental illness. The Appellant’s superiors should have noticed that the Appellant was not in a position to be sent in an operation zone in his mental condition. The record that was produced before the court martial indicated that the Appellant gave exemplary service to the nation when he was on duty in Somalia. Unfortunately when he returned home, his mental health condition was not accorded the treatment that it deserved. The Appellant’s failure to return to work should have been considered by the Kenya Defence Forces in the context of his mental health. Again, tragically, instead of the Appellant’s medical problem being resolved by medical intervention, a decision was made to look at his absence from work as a criminal matter.

That the Appellant saw it fit and appropriate to seek medical intervention from a traditional doctor from an illness that he got while serving this country is a bad reflection on how he was treated by his employer. When PW6 testified before court, it appeared that the prosecution wanted him to testify on the Appellant’s then mental health status and not previously when he had sought medical intervention from a traditional medical doctor. PW6 was prevented by the prosecutor’s intervention from giving a detailed mental health status of the Appellant. It is therefore the finding of this court that the Appellant established that he was not in a healthy state of mind to return to work when it is alleged that he absented himself without leave.

In the premises therefore, this court holds that the prosecution failed to establish to the required standard of proof beyond any reasonable doubt that the Appellant absented himself without leave in accordance with Section 74(1)(a) as read with Section 74(2)(e) and Section 74(3)(b) of the Kenya Defence Forces Act. The Appellant’s appeal is allowed. His conviction is quashed. All the orders issued pursuant to the said conviction are set aside. The Kenya Defence Forces is ordered to consider the Appellant’s case with a view to giving an appropriate and satisfactory remedy to the Appellant. It is so ordered.

Did you notice that the appellant had been released on bail pending appeal? 

Carol Rosenberg looks ahead to a busy year

Carol Rosenberg has this worthwhile piece in today's New York Times, setting the stage for her coverage of the busy 2020 docket at the Guantanamo military commissions. It previously appeared in the At War online newsletter.

Subject-matter jurisdiction decision in Uganda

The Court of Appeal of Uganda has overturned a court-martial murder conviction on the ground that the court-martial lacked jurisdiction. The accused was a lieutenant colonel; the victim apparently a civilian; the offense occurred off base. Details here from the Daily Monitor. The decision will appear in due course on the Uganda Legal Information Institute website. Excerpt from the news account:

"Court made a finding that murder was not a service offence, so it could not be tried by the General Court Martial. Accordingly, the proceedings in the appeal at the Court Martial Appeal Court was declared unconstitutional," the justices held.

The justices explained that as it was illegal for the military courts to try a murder case having been exercised outside their area of jurisdictions, and that it would be a waste of Court's time to proceed to examine the other grounds of Appeal since the appeal stems from the issue of jurisdiction.

"This Appeal is therefore allowed and the conviction of the Appellant by the Court Martial Appeals Court is hereby set aside and the sentence quashed. The appellant (Lt Col [John] Kaye) must be set free," Court ruled.

Sexual assault cases on the rise in Australian Defence Force

Olivia Caisley reports here on the increasing number of sexual assault complaints and prosecutions in the Australian Defence Force. "Figures obtained by The Australian reveal the number of ­people brought before military courts for sexual assault and related offences rose from 14 to 23 in the past year. The number of complaints reporting unacceptable behaviour jumped to 1016 in the past financial year."

A shondeh* in Israel

[I]t wasn’t a victory for common sense; it was a victory for the warped message that suspected terrorists have no right to a legal defense. The expectation is apparently that lawyers should refuse to represent them, and anyone who does represent them isn’t a worthy candidate for any public position. Even though [Asher] Axelrod admitted that there was nothing new about [Lea] Tsemel’s appointment to the post, which she has held for the past eight and a half years, in the end he capitulated to pressure from right-wing organizations and members of bereaved families and froze it.

The pain of the bereaved families’ is understandable. But acquiescing to the demand born of this pain by undermining the right to a fair trial, a foundational principle of the justice system, is unacceptable. Axelrod must reverse himself and confirm Tsemel’s appointment.

From this Haaretz editorial about the scuttled reappointment of Lea Tsemel to head the military law committee of the Israel Bar's Jerusalem chapter.

* Disgrace; embarrassment. (Accent on the first syllable: SHON'-deh.)

Tom Friedman on Pres. Trump, Gen. Suleimani, and Chief Gallagher

Tom Friedman's hard-hitting column in this morning's New York Times can be found here. Last graf:

"Why does it all matter, you ask? Ask the family of the next American soldier captured by terrorists after his captors declare, 'We’re going to do to your soldier just what [Donald J.] Trump excused [Chief Edward R.] Gallagher for doing to one of ours.'”

Lawyers and their clients: a story from Israel

Lea Tsemel, a prominent Israeli lawyer who has represented many unpopular clients, had been named to a further term as chair of the Israel Bar Jerusalem District's Committee on Military Courts. According to this story, the appointment, which prompted noisy opposition, was put on hold within a day. Why is it so hard to distinguish the lawyer from the client? Think: John Adams and the Boston Massacre redcoats trial.

Netael Bendel writes in Haaretz:

The bar association's Jerusalem district chairman, Asher Axelrod, ordered to freeze her appointment after it received requests from the Choosing Life Forum (which represents Israeli bereaved parents), that had been backed by the radical, right-wing Im Tirtzu movement, the right-wing Israel Sheli movement and Btsalmo, a right-wing human rights organization.

Supreme Court of India restores the jurisdiction of High Courts over orders passed by the Armed Forces Tribunal

In a major development, the Supreme Court of India (SC) has practically restored the jurisdiction of the High Court (HC) over orders passed by the Armed Forces Tribunal (AFT).

Though orders of the AFT were being challenged in the jurisdictional HCs till the year 2015, on 11^th March that year a Division Bench of the SC had rendered a decision ruling that since an appeal from the AFT was provided directly to the SC as per the AFT Act, the HCs should restrain themselves from exercising judicial review over the AFT under the writ jurisdiction.

The 2015 judgement had practically rendered litigants remediless since as per Section 31 of the AFT Act, a litigant can file an appeal directly to the SC only if the matter involves a “point of law of general public importance”. The judgement was also in conflict with a Seven Judge Bench decision of the year 1997 which provided that HCs shall exercise writ jurisdiction over statutory tribunals located within their jurisdiction.

In November 2019, a Five Judge Constitution Bench of the SC while dealing with multiple matters regarding the functioning of tribunals in India, wherein a set of rules promulgated by the Government undermining the judicial independence of such quasi judicial bodies were under challenge, had observed that even the Parliament did not have the powers to take away the writ jurisdiction of HCs and that in view of the earlier Seven Judge Bench decision, the HCs’ authority of judicial review over AFT could not be undermined.

The law the last week has now been specifically reiterated by the SC wherein it has been observed that the 2015 decision could not overrule the law already laid down by the SC earlier, especially in view of Constitutional provisions.

Many myths have surrounded the issue, with certain military veterans (now thankfully in minority) claiming that this could prolong litigation by adding another judicial layer. However, such thoughts stem from lack of knowledge. Firstly, nowhere in the world do we have an instance wherein an appeal is provided from the court of first instance to the highest court of the land. Military litigants cannot be denied access to justice on any ground. Secondly, the 2015 decision had converted the AFT into the first and the last court for military litigants since an appeal to the SC was also not possible unless the case involved a “point of law of general public importance”. Thirdly, the (faux) pretext of a quick-fix formula of approaching the highest court directly made AFT litigants lesser citizens by denying them the affordable and accessible access to justice within their States in the HCs. A case in point being that similarly placed civil employees have the right to approach HCs. Fourthly, it is a misnomer that HCs prolong the proceedings since statistics show that division benches of HCs are much quicker in dispensing justice than the SC. To take an example, about 111 writ petitions were filed in the Punjab & Haryana High Court alone against AFT orders in the year 2014, and the rate of disposal was 101 cases. Fifthly, it is also well known that the SC is very slow in interfering in matters brought before it once those have been filtered through a division bench of the HC, which is also a Constitutional Court like the SC, than appeals brought directly to the SC from a tribunal. Hence most litigation is likely to terminate at the HC. Sixthly, the jurisdiction of the SC is anyway meant to be invoked rarely and it cannot be converted into the first appellate Court for matters that are personal to litigants.

A detailed news-report in The Tribune can be accessed here.

An oped by this author published in the year 2015 in The Indian Express just after the said decision had been rendered can be accessed here.

A report by the Business Standard on this subject, reflecting the helplessness of the father of an Air Force officer who died in a fighter jet crash in an operational area, can be accessed here.

Six years

Today is the sixth anniversary of Global Military Justice Reform. The blog -- astoundingly -- has had over three-quarters of a million hits from readers in an equally astounding 186 jurisdictions.

Many thanks to our loyal and far-flung readers, contributors, and commenters. Please encourage your friends and colleagues to visit and comment (real names only, please). There's a tool on the site for signing up so posts will reach you automatically. Please use it.

4th Circuit decision on discharge of HIV+ personnel

A panel of the U.S. Court of Appeals for the Fourth Circuit has upheld a preliminary injunction maintaining the status quo while HIV+ members of the Air Force challenge their discharges. The unanimous decision in Roe v. U.S. Department of Defense, No. 19-1410 (4th Cir. Jan. 10, 2020) (opinion of the court per Wynn, J.), can be found here.

Col. Wilkerson says US killed an Iranian government official, breaching international law

Retired Colonel Lawrence Wilkerson, chief of staff to Secretary of State Colin Powell from 2002 to 2005, this morning on "Democracy Now," discussed the U.S. assassination of Iranian military commander Qassem Soleimani, and commented on why Presidents George W. Bush and Barack Obama, both of whom had the opportunity to assassinate Soleimani, chose not to:

LAWRENCE WILKERSON: Here you have one of the most egregious things of what we did and one of the biggest reasons that neither the two previous presidents decided to do what Donald Trump did. We have just, as we did with torture from 2002 to 2007, 2008, as we substantiated for the world that torture was OK, we have now OK’d the killing of recognized members of other states’ government. That’s what Soleimani was, no matter how heinous we may paint him. He was a member of an established state’s government, and we assassinated him. That is a very dangerous precedent to have set. You may have heard the members of the Russian Duma, Vladimir Putin himself and others in Russia talking about this dangerous precedent. Had it been the Israelis who do this, Amy, they would have done it and sent flowers to Tehran. It would have been completely covert. There would have been no boasting, no public thumping of the chest and so forth. That’s the narcissist in the White House that caused that to happen. But even if you were doing it that way, you would have to think about this consideration that eventually it would become public that you had done it. And you, by doing it, had sanctioned the killing of other state actors.

Now, what we’re looking at here, for example, let’s just put the shoe on the other foot. We’re looking at someone coming in to Washington and assassinating one of our leaders, whether it be a congressman or a member of the executive branch or someone else. We have just sanctioned that. We have become the law of the jungle, rather than, as we have been since 1945, the greatest supporter of international law and the rule of law in general across the face of the globe. With torture and with killing other state recognized individuals of their government, we have become the tiger, the lion, the bear, the alligator in that jungle. It’s not a very, very good precedent to have set, as the Russians indicated. The Chinese have said similar things. It’s a terrible precedent to have set.

A secret military trial in Uzbekistan

The Diplomat reports here on the closed-door military trial of Kadyr Yusupov, a retired Uzbek diplomat. He was apparently convicted of spying for a Western country. One can understand why at least parts of an espionage case might be conducted behind closed doors, but why a trial in a military court if the defendant is a civilian? Was there concern that evidence of torture might have become public? And if the defendant was guilty of espionage, wouldn't the sentence have been longer. Or was that a reflection of his mental illness? Lots of questions on this one.

Navy Department Comprehensive Review

The final report of the Comprehensive Review of the Department of the Navy's Uniformed Legal Communities is available here. Warning: it's 274 pages long. CHINFO's press release is available here.

Comments are welcome, but please use your real name.

Full disclosure: the Editor was a member of the Executive Review Panel.

Military justice symposium at Columbus School of Law, CUA

Mark your calendars: the Catholic University Law Review will host a military justice symposium on February 24, 2020. Details can be found here. The symposium is titled "Against All Enemies, Foreign and Domestic: The State of Military Justice in 2020." Chief Judge Scott Stucky of the U.S. Court of Appeals for the Armed Forces will be the keynote speaker.

2020 curtain-raiser from Carol Rosenberg

Carol Rosenberg

The New York Times's online "At War" feature has this curtain-raiser column by Carol Rosenberg, who has covered the Guantánamo Bay military commissions for (drum roll) 20 years. She writes that "2020 is shaping up to be, more than ever, my nearly nonstop year as the Guantánamo war-court reporter. The judges have scheduled a record 215 days of military-commission hearings in the war-crimes cases at the Expeditionary Legal Complex, the national-security court that is built on an abandoned airfield with a moldy trailer park for the troops and a crude tent city for the reporters and other observers."

Stormy weather

The U.S. Court of Appeals for the Armed Forces has posted the following stormy weather notice:

Court Closure Guidance

The U.S. Court of Appeals for the Armed Forces will be closed for weather conditions when the Office of Personnel Management (https://www.opm.gov) announces that federal offices in the Washington, DC, area are closed.

If this should occur on a scheduled hearing day, counsel should anticipate their case being called the very next day the Court is open or shortly thereafter.

In the event OPM authorizes a two-hour delay in reporting on a scheduled hearing day, the hearings will not be impacted by the two hour delay and will be called as scheduled.

When forecasted weather conditions are in play for a scheduled hearing day, counsel are requested to contact the office of the Clerk a day or two prior and provide a contact number and email address for use in the event rescheduling is required and workplace contact cannot be made due to closures on bases and at this Court.

In the event of an OPM-ordered closure, pleadings due on the closure day will be considered timely filed if filed on the next day the Court is open.

We've seen this movie, but will it end the same way?

The New York Times's Dave Philipps and The Washington Post's Dan Lamothe have the story here and here, respectively. Lt. Gen. Francis M. Beaudette, commander of the U.S. Army's Special Operations Command, has refused to restore Army reserve Major Mathew L. Golsteyn's status in the Green Berets, following Maj. Golsteyn's pretrial pardon by President Donald J. Trump. According to The Post, "Beaudette’s decision is not final, and the service said in a statement that it will next have an administrative panel consider whether it should reinstate the Special Forces tab and a Distinguished Service Cross — the U.S. military’s ­second-highest valor award — and expunge a letter of reprimand Golsteyn received in connection with his case."

Readers will see a resemblance to the Navy's abortive initiation of the process for removing SEAL chief petty officer Edward R. Gallagher's trident. That led to the dismissal of Secretary of the Navy Richard V. Spencer. Will President Trump wait for the further proceedings or will he intervene again now? If he does intervene, will General Beaudette retire in protest? Will Secretary of the Army Ryan McCarthy back him or will he too be fired?

Film at 11:00.

Leave to appeal denied

The Supreme Court of Canada has denied the appeal of an acquittal at general court-martial for sexual assault.

38838 Her Majesty the Queen v. Sergeant K.J. M.

The respondent was charged with sexual assault contrary to s. 271 of the Criminal Code, R.S.C., 1985, c. C‑46 , pursuant to s. 130 of the National Defence Act, R.S.C.,1985, c. N‑5 . He chose to be tried by a General Court Martial. The charge resulted from events that occurred in Scotland, where he and the complainant were deployed. The events took place late in the evening of the day of their arrival and overnight, when the two had sexual relations, which the complainant testified she did not consent to. The accused testified in a manner that supported a defence of consent. The military judge decided that the defence of mistaken belief in consent would not be put to the panel. At the conclusion of the trial, he instructed the panel that to find the accused guilty of sexual assault, the prosecution was required to have proven beyond a reasonable doubt both that the complainant did not consent and that the accused knew that the complainant did not consent. The panel returned a verdict of not guilty. The prosecution appealed the legality of the finding of not guilty to the Court Martial Appeal Court, which dismissed the appeal.

Of note to us familiar with the UCMJ is the prosecution's opportunity to appeal an acquittal.

USNI's 2019 legal roundup

Sam LaGrone, editor of USNI (U.S. Naval Institute) News, has this wrap-up of some of the major legal and policy issues the U.S. Navy confronted in 2019, including the Gallagher, McCain, Fitzgerald, and "Fat Leonard" cases.

Jurisdiction following discharge

A former Canadian Forces officer has been convicted by a court-martial, according to this report from CTV News. Excerpt:

Todd Bannister entered the plea Tuesday following opening statements in his second court martial on the charges.

Bannister was originally acquitted in February 2018, but in May 2019 the Court Martial Appeal Court of Canada overturned the verdicts and ordered a new court martial.

Bannister was accused of making inappropriate sexual comments to a female cadet when she was 18 years old and again when she was 19.

According to court documents, the statements made would not constitute a criminal offence under the Criminal Code, but the question was how they would be viewed under the National Defence Act.

The comments suggested the young woman have sex with Bannister.

Should the armed forces have jurisdiction following separation from the service? 

Supreme Court of Nepal dismisses ex-captain’s plea

The Supreme Court of Nepal has upheld the decision of a Military Special Court dismissing from service a captain of the Army who was found guilty of misusing his official position. The captain was convicted for having sexual relations with a junior female staffer.

The main plank of the captain’s case was that the act was not related to the military and was a part of his conduct out of service and hence the military should not have interfered when there was no contravention of the military code of conduct.

The division bench of the Supreme Court has however ruled that the officer had misused his social and economic position to commit the offence and the court has upheld the conviction handed out by the Special Military Court.

The officer had been arrested when he was taking the woman member of his staff out of Nepal to India for an abortion.

More details of the case are available here.

Why was this freelancer tried in military court?

Fortune has a report on 10 journalists in urgent need of justice. Among them:

Freelance journalist serving 2.5 years in Russian prison. 

In October 2019, a military court in Russia’s southern city of Rostov-on-Don sentenced Nariman Memedeminov to two years and six months in prison, convicted of making public calls for terrorism online. That followed the 2018 raid of the freelance journalist’s home and his arrest. His coverage included livestreamed trials of Muslim minority Crimean Tatar activists and interviews with their family members and lawyers, since Russia annexed Crimea in 2014.

Why was he tried in a military court? 

Uganda caves

Uganda has released a number of seven Rwandan civilians it had held for up to three years pending trial in the general court-martial, according to this account in The New Times. Excerpt:

. . . Eron Kiiza, one of the advocates representing the Rwandans said he would be moving to seek damages against the Ugandan government on behalf of his clients.

He said that he will sue for damages due to the illegal detention of his clients, adding that prosecution had produced no single witness or any shred of evidence to justify their prolonged stay in jail.

Are too few racial cases being pursued in the UK armed forces?

This Guardian report by Ben Quinn says:

Just over 17% of racially aggravated crimes investigated by military police over the past five years resulted in guilty verdicts at court martial, it has emerged, as the armed forces faces new pressure over claims it is failing black and Asian service personnel.

Out of 35 investigations launched by military police over the past five years, only six people have been found guilty, data from a Guardian investigation shows. The Ministry of Defence (MoD) admitted the number of cases investigated by military police services for the army, navy and RAF was already low.

Why the President cannot order attacks that include Law of War violations

Pres. Donald J. Trump

Recent Twitter emissions by President Donald J. Trump suggest that he is contemplating significant retaliatory strikes against Iran if Iran responds to his decision to attack and kill Iranian General Qassim Soleimani with similar attacks. He has threatened not only to attack cultural sites but also a potentially "disproportionate" response. Trump has reportedly dismissed criticism of his plans. Numerous reports indicate that he also said to reporters on Air Force One:

“They’re allowed to kill our people? They’re allowed to torture and maim our people? They’re allowed to use roadside bombs and blow up our people? And we’re not allowed to touch their cultural sites? It doesn’t work that way."

Of course, those of us familiar with international humanitarian law---a.k.a. the law of war---know that, legally, it does work that way.

Gene was kind enough to highlight this article of mine when it was published. It explains why the president does not have constitutional power to authorize or order the military to violate the laws of war. It is a somewhat technical piece, tracing the history of military tribunal jurisdiction to explain how some jurisdiction-conferring text in Article 18 of the Uniform Code of Military Justice (UCMJ) requires the armed forces to comply with the laws of war.

I would welcome the thoughts of anyone with time to download and read the article. For those who do not have the opportunity to do so, the general line of discussion and argument follows.

1. Courts, commentators, and executive branch publications (including the DoD Law of War Manual) are ambiguous about the full extent to which the military is absolutely required to comply with the law of war as a matter of law. Some statements explicitly or implicitly suggest that an executive branch official may override DoD "policy" requiring compliance with the applicable law of war in all military operations.

2. Carefully retracing the development of courts-martial and other military tribunal jurisdiction demonstrates that there has long been an understanding that members of the U.S. military are required to comply with the common law, including the common law of crimes and the common law of war (now customary international law), and were subject to criminal punishment for violations wherever they occurred. (Prior to 1916, court-martial jurisdiction was often temporarily expanded to encompass some common law crimes, particularly capital offenses, during war.)

3. Beginning in 1916, the Articles of War, and now the UCMJ, amended general court-martial jurisdiction to include prescribed common law (and some other) crimes as well as law of war violations. (The article explains the types of law of war violations included in what is now Article 18 of the UCMJ.)

4. This jurisdictional grant was a legislative execution of the law of war---which is a term of art incorporating both customary and treaty law---in domestic military law, thereby requiring the armed forces to comply with it. The armed forces are prohibited from committing not only war crimes but also other law of war violations that result in or entail a crime prescribed in the UCMJ. Put differently, law of war compliance is required to claim a justification defense for acts of war that would otherwise be UCMJ crimes. (For those familiar, this is why there is a policy to try law of war violations as crimes prescribed by the UCMJ.)

5. The article also explains that the order must be a clear or manifest violation of the law of war, like targeting cultural property that is not a military objective. Proportionality (of a specific attack or of a responsive operation) is a different issue, one that involves some individual judgment based upon known facts. It would be much harder for members of the military asked to execute a disproportionate attack or response to "know" that they are manifestly disproportionate. Members of the Joint Chiefs would likely be in a better position to do so, however, if an attack or responsive operation were clearly disproportionate.

6. Finally, Congress has express constitutional authority to "make rules for the government and regulation" of the armed forces, which the Supreme Court has labeled a "plenary" authority. That power, coupled with the Take Care Clause, means that a president cannot override the UCMJ. In fact, the Supreme Court has never held that the president or other member of the executive branch may ignore the law of war when Congress has clearly required compliance with it. (See Hamdan, for an example.) Therefore, a president possesses no constitutional authority to authorize or order the military to violate applicable laws of war.

Although I did not address it in the article, there has long been a vague notion that a president can violate any law, international or domestic, to thwart an existential threat to the nation. I discussed this power and the frequent rhetorical appeals to it in this article. Needless to say, that is not the type of situation to which Trump is referring.

The time may soon come for the leadership of the armed forces to rely upon their oath to the Constitution and uniformly refuse to follow any unlawful order. Our Constitution and rule of law depend upon it. As a plaque on Constitution Corner at the United States Military Academy (West Point) says:

"The United States boldly broke with the ancient military custom of swearing loyalty to a leader. Article VI required that American Officers thereafter swear loyalty to our basic law, the Constitution. While many other nations have suffered military coups, the United States never has. Our American Code of Military obedience requires that, should orders and the law ever conflict, our officers must obey the law. Many other nations have adopted our principle of loyalty to the basic law. This nation must have military leaders of principle and integrity so strong that their oaths to support and defend the Constitution will unfailingly govern their actions. The purpose of the United States Military Academy is to provide such leaders of character." 

May it be so.

Retired judge advocate arrested in Pakistan

A retired judge advocate who has repeatedly represented clients challenging military courts has been arrested on suspicion of violating the Official Secrets Act. There'll be another Lahore High Court hearing on January 9, according to this report in Dawn.

Not military justice, but . . .

Pres. Donald J. Trump

Readers who take an interest in military justice are likely also taking an interest in the Soleimani case. Worthwhile essays can be found here and here. There'll be many more as events unfold and the facts emerge.

Victory lap

Retired Navy SEAL Edward R. Gallagher is back in the news. Dave Philipps of The New York Times reports here that "[n]ow he is modeling his own lifestyle clothing brand, endorsing nutrition supplements and positioning himself as a conservative influencer with close ties to the man who helped clear him — President [Donald J.] Trump."

Will President Trump introduce Chief Gallagher (in the gallery) at the 2020 State of the Union address?