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A query for non-US readers

Last December, President Donald J. Trump signed into law a bill that, among many other things, directs the Secretary of Defense to prepare a report on a proposal for an alternative system for serious offenses by military personnel. Under that alternative system, a senior uniformed lawyer (colonel/naval captain or above) outside the accused's chain of command, rather than a nonlawyer commander, would decide whether to prosecute offenses for which the maximum punishment is more than one year's confinement. The study must include comparative information regarding the military justice systems of "relevant foreign allies" of the United States.

For foreign readers: who in your country decides whether to prosecute offenses by military personnel that are punishable by more than a year in prison? Please respond directly to the Editor or by comment on this post, preferably with citations or links to pertinent statutes or regulations. Many thanks.

Hennis capital case is affirmed

U.S. Court of Appeals
for the Armed Forces

The U.S. Court of Appeals for the Armed Forces today unanimously affirmed the decision of the U.S. Army Court of Criminal Appeals in the capital case of United States v. Hennis, in an opinion by Chief Judge Scott W. Stucky.

§ 540F

The National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, 133 Stat. 1198, ___ (Dec. 20, 2019), includes the provision reproduced below.

The Conference Report indicates (at 1217) only that it came from the Senate bill and that the House receded. Unless the Defense Department obtains an enlargement, the § 540F report (which will require "a study[] conducted for purposes of the report" rather than one that already exists) can be expected in October. Global Military Justice Reform welcomes comments on § 540F. Real names only, please.

SEC. 540F. REPORT ON MILITARY JUSTICE SYSTEM INVOLVING ALTERNATIVE AUTHORITY FOR DETERMINING WHETHER TO PREFER OR REFER CHANGES FOR FELONY OFFENSES UNDER THE UNIFORM CODE OF MILITARY JUSTICE.

(a) REPORT REQUIRED.—
     (1) IN GENERAL.—Not later than 300 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report setting forth the results of a study, conducted for purposes of the report, on the feasibility and advisability of an alternative military justice system in which determinations as to whether to prefer or refer charges for trial by court-martial for any offense specified in paragraph (2) is made by a judge advocate in grade O-6 or higher who has significant experience in criminal litigation and is outside of the chain of command of the member subject to the charges rather than by a commanding officer of the member who is in the chain of command of the member.
     (2) SPECIFIED OFFENSE.—An offense specified in this paragraph is any offense under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), for which the maximum punishment authorized includes confinement for more than one year.

(b) ELEMENTS.—The study required for purposes of the report under subsection (a) shall address the following:
     (1) Relevant procedural, legal, and policy implications and considerations of the alternative military justice system described in subsection (a).
     (2) An analysis of the following in connection with the implementation and maintenance of the alternative military justice system:
        (A) Legal personnel requirements.
        (B) Changes in force structure.
        (C) Amendments to law.
        (D) Impacts on the timeliness and efficiency of legal processes and court-martial adjudications.
        (E) Potential legal challenges to the system.
        (F) Potential changes in prosecution and conviction rates.
        (G) Potential impacts on the preservation of good order and discipline, including the ability of a commander to carry out nonjudicial punishment and other administrative actions.
        (H) Such other considerations as the Secretary considers appropriate.
     (3) A comparative analysis of the military justice systems of relevant foreign allies with the current military justice system of the United States and the alternative military justice system, including whether or not approaches of the military justice systems of such allies to determinations described in subsection (a) are appropriate for the military justice system of the United States.
     (4) An assessment of the feasibility and advisability of conducting a pilot program to assess the feasibility and advisability of the alternative military justice system, and, if the pilot program is determined to be feasible and advisable—
        (A) an analysis of potential legal issues in connection with the pilot program, including potential issues for appeals; and
        (B) recommendations on the following:
              (i) The populations to be subject to the pilot program.
              (ii) The duration of the pilot program.
              (iii) Metrics to measure the effectiveness of the pilot program.
              (iv) The resources to be used to conduct the pilot program. 

Movie nite

USS Grady (DE-445)

Now available on YouTube, an early-1950s U.S. Navy training film on military justice. (In case you kept watching long enough and were wondering, there actually was a USS Grady, but that tin can was a destroyer escort (DE-445), not, as the film has it, a destroyer (DD-1101).)

No impunity in Jamaica, at least on these facts

The 2-1 decision of the Supreme Court of Jamaica's Constitutional Division (referred to here) in Clarke v. Tinglin [2020] JMFC Full 01 is now available. The majority held--

(1) In the circumstances of this case, the issuing of the Good Faith Certificates was manifestly unfair and unreasonable and therefore the Good Faith Certificates are null, void and invalid;

(2) The defendants may not rely upon the Good Faith Certificates at the trial of this matter.

The certificates, which would have created a rebuttable presumption favorable to the accused members of the Jamaica Defence Force, had not been issued until six years after the events at issue and four years after indictments had been handed down.

That Liberty Law hearing

The Military Religious Freedom Foundation (MRFF) has objected to the recent hearing conducted by the U.S. Air Force Court of Criminal Appeals at Liberty University School of Law. Excerpt from this Lynchburg News & Advance report:

“Our secular military and its secular military justice system have no business conducting secular military justice at an exclusive sectarian institution with an extreme sectarian reputation,” MRFF board member and retired Army Brig. Gen. John Compere said in a statement. “It implies an endorsement of the sectarian institution & its sectarian education which clearly violates the United States Constitution and US Armed Forces regulations.”

Useful DAC-IPAD website

The Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces has an excellent, user-friendly reading room. Lots of important background materials and links can be found there. BZ to the responsible parties.*

* Recommend linking to the 2019 edition of the Manual for Courts-Martial vice the 2016 edition. Whoever curates the site might also add links to this and any other military justice-related blogs.

Hanan v. Germany (duty to investigate; extraterritorial application of the European Convention; effective control)

Video of today's Grand Chamber hearing by the European Court of Human Rights in Hanan v. Germany (application no. 4871/16) can be found here. From the court's press release:

The applicant, Abdul Hanan, is an Afghan national who was born and lives in Omar Khel, Afghanistan.

In December 2001 the German Parliament authorised the deployment of German armed forces as part of a United Nations International Security Assistance Force (ISAF) in Afghanistan which NATO subsequently assumed command of. 

Parallel to the command structure of ISAF, disciplinary and administrative command and control remained with the troop contributing nations. German troops were deployed as part of ISAF’s Regional Command (RC) North and primarily took over Provincial Reconstruction Team (PRT) Kunduz. PRT Kunduz was commanded at the time by a German, Colonel K. 

In September 2009 insurgents hijacked two fuel tankers which became immobilised on a sandbank in the Kunduz River, around seven kilometres from PRT Kunduz’s base. At 1.49 am on 4 September 2009 Colonel K. ordered two United States Air Force airplanes to bomb the immobilised vehicles. The airstrike destroyed the tankers and killed Mr Hanan’s two sons, Abdul Bayan and Nesarullah, aged approximately 12 and 8 respectively. The total number of victims has never been established. Various reports indicate that between 14 and 142 people died, mostly civilians. 

After initiating a preliminary investigation in the days after the airstrike, the German Federal Public Prosecutor General opened a criminal investigation in March 2010, examining the actions of Colonel K. and a Staff Sergeant who had assisted him on the night of the airstrike. 

The criminal investigation was discontinued in April 2010 owing to a lack of sufficient grounds for suspicion that the accused had incurred criminal liability. 

The Federal Public Prosecutor General concluded that Colonel K. had had no intent to kill or harm civilians or damage civilian objects to a degree that was disproportionate to the military benefit of the airstrike. Criminal liability for offences pursuant to the German Code of Crimes against International Law could therefore be eliminated. The Federal Prosecutor General also held that all possible offences pursuant to the German Criminal Code, such as murder, were justified by the lawfulness of the attack under international law. In October 2010 a redacted version of the discontinuation decision was served on the applicant’s representative. In February 2011 the Düsseldorf Court of Appeal dismissed a motion by Mr Hanan to compel the bringing of public charges as inadmissible.

Egypt hangs 8 civilians after military trial

Egypt continues to try civilians in military courts, and recently hanged eight men following such a trial. Amnesty International posted this statement.

Human rights norms strongly disfavor the trial of civilians by military courts. Egypt is a frequent violator of this norm.

Busy signal in Peshawar

Dawn has this report on the slow pace of proceedings in the Peshawar High Court and the Supreme Court of Pakistan in cases seeking review of military court judgments. Excerpt:

Around 250 petitions challenging the conviction of suspected militants by military courts before the Peshawar High Court have entered a decisive stage as after repeated orders the ministry of defence finally submitted the relevant records in these cases.

Because of delay in submission of the said records, a bench of the high court, headed by Chief Justice Waqar Ahmad Seth, had on Feb 11 directed the lawyers representing the convicts and the federal and Khyber Pakhtunkhwa governments to submit written arguments and on the basis of those arguments the court would announce judgment in these cases on Feb 20.

However, a bench of PHC Chief Justice Waqar Seth and Justice Mohammad Naeem Anwar on Feb 20 adjourned hearing of these cases to March 10 as the records in these cases were produced before it. Proceedings in all these cases are conducted in-camera.

Indian military justice: waiting for Godot, or for Modi?

Trouble at the Armed Forces Tribunal, but who will fix it? This op-ed by Deepak Sinha, an Indian veteran who has lost patience observes:

The military justice system is in jeopardy and is only surviving due to the efforts of the [Supreme Court] and serving members in the Armed Forces Tribunal

It is no secret that what differentiates us from countries like Pakistan is our commitment to the rule of law. However bruised or battered our justice system may be, it still continues to be trusted and it delivers, albeit rather slowly. This, however, does not hold true for the health of the military justice system, which has been in serious jeopardy for the last three years or so. That it continues to survive on the respirator and provide justice is only because of the extraordinary efforts of the Supreme Court and serving members in the Armed Forces Tribunal (AFT). This state of affairs can directly be attributed to the shenanigans of senior bureaucrats in the Defence Ministry and the Prime Minister’s Office, who were caught out when they first attempted to subvert the independence and functioning of the AFT by way of enacting new rules through a Gazette Notification issued under the Finance Act, 2017. In this, they changed the selection criteria and procedures for the appointment of the chairperson and members, especially with regard to that of the administrative members. Whether this was done with the tacit approval of their political bosses, is moot.

Welcome aboard

Global Military Justice Reform welcomes a new contributor, Rory G. Fowler, a Kingston, Ontario practitioner and military justice scholar. Rory is a retired Lieutenant-Colonel with service as both an infantry officer and legal officer. Welcome to the platoon.

Military justice by POWs

German POWs arrive on June 20, 1943 for physical examination
and initial POW processing at Naval Operating Base Norfolk
Hospital in Norfolk, Virginia. Photo courtesy of the U.S. Navy. 

Can Prisoners of War (POWs) administer their own military justice? Historian and attorney Dr. Mark Hull shares interesting stories and a legal paradox in the Jan-Feb 2020 edition of Military Review.

Dr. Hull begins with stories he unearthed of two groups of German POWs in World War II. Each group suspected that a collaborator or informant was in its midst. In each case a suspected informant was identified, investigated, tried, and killed by other POWs in ad hoc drumhead justice.

Would we do the same? The U.S. Code of Conduct, promulgated in 1955 by President Eisenhower, calls for the formation of a POW hierarchy. "If I am senior, I will take command. If not I will obey the lawful orders of those appointed over me."  The Code of Conduct calls the offense of "informing" on the group "despicable" and "expressly forbidden." And, "the responsibility of subordinates to obey the lawful orders of ranking American personnel remains unchanged in captivity." Thus, without explicitly saying so, the Code of Conduct would seem to condone the same kind of rough justice that the German POWs administered to their own.

The Code of Conduct, however, is at odds with the Geneva Conventions. In a commentary to the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, the drafters stated, "During the Second World War, some camp commanders permitted disciplinary powers to be exercised [in cases of offenses committed by one prisoner of war against his fellow prisoners of war] by the prisoners' representatives or even by a tribunal composed of prisoners of war. This practice is now forbidden."

Dr. Hull highlights this important but previously unappreciated contrast in two leading authorities relied upon by the U.S. military. He concludes:

Is there a balancing point between the calming rules of the Geneva Convention, the imperative that soldiers in captivity are answerable for crimes they commit while prisoners, and the simple need for self-preservation? At the very least, the Code of Conduct should be rewritten in accord with the controlling language of the Geneva Convention, and other language in the code should be changed to reflect the ideal that prisoners do not have disciplinary power over other prisoners, regardless of circumstances. Whether that is sufficient to deter and regulate future prisoner misconduct or criminal behavior in captivity remains to be seen. At the very least, we should make it clear up and down the force that the Code of Conduct is not what it at first glance appears to be.

Congratulations to Dr. Hull for this important and interesting article.  

FY 2020 appropriation

The Consolidated Appropriations Act, 2020, Pub. L. No. 116-93, 133 Stat. ___ (Dec. 20, 2019), appropriated $14,771,000 for salaries and expenses for the U.S. Court of Appeals for the Armed Forces. No more than $5,000 of that sum can be spent for official representation purposes. The appropriation comports with the President's March 2019 Budget Request for the court, which can be found here.

Comment period extended in South Africa

The period for public comments on the pending Military Discipline Bill in South Africa has been extended to March 6. Details here.

Myanmar, the Rohingya, and military justice

"Seven soldiers jailed for 10 years for killing 10 Rohingya men and boys in the village of Inn Din were granted early release last November, after serving less than a year in prison."

From this Reuters report on the Myanmar government's announcement that more Rohingya-related courts-martial were in the works

Doubts in Beirut

Lebanon's Justice Minister has suggested that the country's use of military courts to try civilians should be reviewed. This has been proposed before, to no avail. Perhaps something will change this time around that will bring the country into compliance with human rights principles.

9 more civilians held for Uganda court-martial

Uganda has put nine civilians ("notorious suspected robbers") in military custody pending trial by court-martial. The basis for jurisdiction is the charge that they illegally possessed firearms. Details here. The men are being defended by an Army officer. Will they seek habeas from the High Court?

Uganda is one of the world's leading violators of the human rights norm against trying civilians in military courts.

Air Force Court goes to Liberty Law

The U.S. Air Force Court of Criminal Appeals has convened at Liberty University School of Law in Lynchburg, Virginia, to hear an appeal in a military drug case. Liberty University's report on the court's visit, which included oral argument by law students, can be found here.

You can't make this up (one in a series)

A civilian woman protester kicks in the groin a soldier who was guarding a government minister. Guess which Lebanese court system will be trying the case. Details here. "Malak Alaywe was charged with insulting and defaming security forces and the 'military institution.'”

Oh.

Not competent for court-martial

An interesting situation for the Marines, where a recruit assaulted a staff sergeant in boot camp, and the Marines don’t know how to dispose the case. The recruit was found not competent to stand trial. The government has confined him for two years without charges for misconduct that, if he were convicted after trial, wouldn’t likely result in jail for that amount of time.

It appears the recruit was mentally unwell before entering the service yet managed to enlist. Under Rule for Court-Martial (R.C.M.) 909, no person may be brought to court-martial if they are suffering a mental disease or defect that renders them unable to understand the proceedings against them or to cooperate intelligently in their defense.

According to R.C.M. 909, servicemembers not found competent to stand trial are to be hospitalized pursuant to 18 U.S.C. § 4241. The recruit is currently held in a federal prison hospital in Missouri, and the Marines are unsure whether to attempt an administrative separation, as it appears the recruit will not be competent to stand trial anytime soon.

An important ruling in Jamaica

Two years ago we reported on a strange situation in Jamaica, where members of the Defence Force were given immunity from civilian murder prosecution under questionable circumstances. Yesterday, the island state's Constitutional Court released a 2-1 decision setting aside certificates of good faith that had been suspiciously issued years after the events at issue. According to this article in The Observer:

Supreme Court Judge Justice Leighton Pusey, in handing down the ruling on behalf of a panel of three judges yesterday, declared that the “criminal proceeding should be restored to the trial list”.

The matter had screeched to a halt in April 2018 after the court was provided “with good faith certificates purporting to grant immunity from prosecution to each of the defendants”. Each certificate was, on its face, signed by then Minister of National Security Peter Bunting on February 22, 2016, pursuant to regulation 45 (3) of the Emergency Powers Regulations, 2010. The regulations were, in turn, made under section 3 of the Emergency Powers Act.

Each good faith certificate stated that the actions of the JDF personnel on May 27, 2010, between the hours of 12:00 am and 12:00 pm, at 18 Kirkland Close, Red Hills, St Andrew, which may have contributed to or cause the death of Keith Clarke, were done in good faith in the exercise of functions as a members of the security forces for public safety, the restoration of order, the preservation of the peace, and in the public interest.

According to the certificates, the said actions were undertaken by the named member of the security forces during the existence of the emergency period declared by the governor general on May 23, 2010.

When the issue of the validity of the good faith certificates was raised in 2018 the court made an order staying the criminal proceedings for three months to enable the parties to apply to the Full Court for a determination of the question of the validity of the good faith certificates.

Yesterday, Justice Pusey, in the 55-page judgement, expressed discomfort with those very certificates.

 We will provide a link to the opinions in the case when they become available.

Call for the abolition of "military justice" in Spain

The Catalan separatist party, Esquerra Republicana de Cataluña (ERC) last week presented a proposal to the House of Deputies in Congress that has generated debate within the Spanish Army.  The ERC is seeking the reform of two laws concerning the military: the scope and organization of military jurisdiction and the military penal code.

A female corporal who was interviewed said that military justice should be abolished because it only sentences a superior officer to two years, so that they won't be expelled from the Army, whereas the subordinates get a direct expulsion.  The ERC says the priority should be to end "impunity for harassment, abuses and sexual aggression against women in the Armed Forces" as well as "restricting and eliminating military justice."  They point out that Germany eliminated military justice in 1949, France in 1982, and then Holland, Belgium and Norway followed suit.  The female corporal added that "we are a hundred years behind Europe."

Edmundo Bal, a Deputy and spokesman for Citizens in the Congress, expressed his opinion that the law should be amended but not abolished.  Military jurisdiction carries out "magnificent work" and takes decisions like any other court, and despite its very "particular" composition it deals with "complex" legislation in a "very specific" way.

"Catfishing" -- who knew?

The New York Times's David Halbfinger reports here on yet another aspect of personal tech and military service. IDF soldiers "are barred from taking their phones with them into combat or wherever classified information is discussed, and are prohibited from posting photos of themselves in uniform. But the rules are difficult to enforce."

Women in the Indian armed forces: no more temping?

The Supreme Court of India has ruled that women officers should be allowed permanent commission in the Army. The court ruled on 17 February 2020 in Secretary, Ministry of Defence v. Babita Puniya & Ors. that Short Service Commissioned (SSC) women officers in the Indian Army are entitled to permanent commission (PC) and they have to be considered irrespective of their service length. The policy of the Centre in this regard to restrict PC to SSC women officers with less than 14 years of service was held to violate the right to equality. A bench of justices DY Chandrachud and Ajay Rastogi also held that there cannot be an absolute bar on women being considered for command appointments.

The judgement was delivered on a petition by the Ministry of Defence challenging a 2010 judgement of the Delhi High Court (Babita Puniya v. Secretary, Ministry of Defence and another nine cases decided on 12 March 2010), which had ruled that SSC women officers (SSCWO) in Army and Air Force should be granted PC at par with male short service commissioned officers.

The Central Government had issued notification in this regard in February 2019 granting permanent commission to short service commissioned women officers of the Army. However, under this proposal, only SSC women with up to 14 years of service were to be considered for PC. Women with more than 14 years of service would be permitted to serve up to 20 years without consideration for PC and then released subject to pension benefits and women above 20 years of service would be released with pension benefits immediately upon the completion of the case in Supreme Court.

The court observed that Centre’s policy of 2019 in allowing SSC women officers’ PC in 10 streams was in furtherance of the mandate of Constitution. The Court also noted that despite its own policy of 2019, the Centre had submitted a note to the court which perpetuates gender stereotypes on the grounds of national security, discrimination against males, non-trainable, exigencies of service, battle scenario, physical capabilities, composition of rank and file, environmental and psychological realities, capture by enemies, employment of Women Officers, infrastructure, different physical standards, exposures, retrospective implementation. In Courts opinion (para 56), “Such a line of submission is disturbing as it ignores the solemn constitutional values which every institution in the nation is bound to uphold and facilitate. Women officers of the Indian Army have brought laurels to the force.” Listing out some achievements of women in Army, the Supreme Court held that casting aspersions on ability of women and their role and achievements in Army is an insult not only to women but also to Indian Army.

The Court issued the following directions: (i) The policy decision which has been taken by the Union Government allowing for the grant of PCs to SSC women officers in all the ten streams where women have been granted SSC in the Indian Army is accepted subject to the following: (a) All serving women officers on SSC shall be considered for the grant of PCs irrespective of any of them having crossed fourteen years or, as the case may be, twenty years of service; (b) The option shall be granted to all women presently in service as SSC officers; (c) Women officers on SSC with more than fourteen years of service who do not opt for being considered for the grant of the PCs will be entitled to continue in service until they attain twenty years of pensionable service; (d) As a one-time measure, the benefit of continuing in service until the attainment of pensionable service shall also apply to all the existing SSC officers with more than fourteen years of service who are not appointed on PC; (e) The expression “in various staff appointments only” and “on staff appointments only” shall not be enforced; (f) SSC women officers with over twenty years of service who are not granted PC shall retire on pension in terms of the policy decision; and (g) At the stage of opting for the grant of PC, all the choices for specialization shall be available to women officers on the same terms as for the male SSC officers. Further, Women SSC officers shall be entitled to exercise their options for being considered for the grant of PCs on the same terms as their male counterparts. SSC women officers who are granted PC in pursuance of the above directions will be entitled to all consequential benefits including promotion and financial benefits.

Not Military Justice but . . . (howsoever high you might be, the law is above you: Supreme Court of India)

The Supreme Court of India has once again ruled that howsoever high one might be, all actions in a democracy are amenable to judicial review.

In a case wherein a Brigadier, despite making it through the promotion process for the rank of Major General, was not finally promoted based upon a decision of a board consisting of top generals, the government had contended that due deference must be shown to the high ranking officers who were a part of the panel. Ruling that rank carries no weight as far as the law is concerned, the Supreme Court has ruled as under:

“19. Another submission of Mr. Balasubramanian is that the Selection Board consists of senior officers of the Army and deference has to be shown to the discretion exercised by them in the matter of promotion. We disagree. Lord Acton said: - "I cannot accept your canon that we are to judge Pope and King unlike other men, with a favourable presumption that they did no wrong. If there is any presumption it is the other way against holders of power, increasing as the power increases”.

20. There is no presumption that a decision taken by persons occupying high posts is valid. All power vested in the authorities has to be discharged in accordance with the principles laid down by the Constitution and the other Statutes or Rules/Regulations governing the field. The judicial scrutiny of a decision does not depend on the rank or position held by the decision maker. The Court is concerned with the legality and validity of the decision and the rank of the decision maker does not make any difference.

21. Judgments of this Court have been cited to contend that officers in the Army are different from the civil servants. The submission made on behalf of the Respondent is that the law laid down in case of Government servants occupying civil posts cannot be applied to the Armed Forces personnel. We are not relying upon any judgment in favour of public servants in Government service for adjudicating the dispute in this case. The only point that is considered by us is regarding the non-empanelment of the Appellant being in accordance with the promotion policy of the Respondent. The non-empanelment of the Appellant for promotion as Major General is contrary to the promotion policy. He is entitled for reconsideration for empanelment by a Review Selection Board strictly in accordance with the promotion policy by keeping in mind the observations in this judgment. The Respondents are directed to complete this exercise within a period of six months from today.”

The full judgement and a report on the same at Live Law, can be accessed here.

A noteworthy ruling in Washington

The U.S. Court of Appeals for the District of Columbia Circuit has handed down Jackson v. Modly, ___ F.3d __, No. 18-5180 (D.C. Cir. Feb. 14, 2020). In a unanimous decision, the panel (per Karen LeCraft Henderson, J.), made several important rulings. First, military personnel are not entitled to sue in federal court under Title VII of the 1964 Civil Rights Act. (The appellant here had served in the Marine Corps from 1977 to 1991.) This has been the unanimous view of other circuits, but the D.C. Circuit had never squarely addressed the point. The panel's analysis is meticulous and different in some respects from those of other courts, but the bottom line is the same: no dice. Second, the panel held, in accordance with United States v. Kwai Fun Wong, 575 U.S. 402 (2015), and contrary to the D.C. Circuit's precedents, that the doctrine of equitable tolling applies to civil actions against the government that would otherwise be time-barred under the six-year statute of limitations (28 U.S.C. § 2401(a)). Thus, to the extent that the appellant's claim seemed to come within the Administrative Procedure Act, it was not jurisdictionally barred. Nonetheless, the panel found that he had failed to make out a sufficient case to warrant equitable tolling. Third, the panel held that it lacked jurisdiction over his Military Pay Act claim, since appeals in such cases are subject to the exclusive appellate jurisdiction of its sister court, the U.S. Court of Appeals for the Federal Circuit. All of this seems entirely predictable, and helps to resolve any lingering doubts on these issues.

Gender perspective in computing female social service during the Franco era

On Friday, February 14, 2020, the Spanish Supreme Court applied a gender perspective to interpret the General Law on Social Security.  The law contemplates that to reach a minimum period of payment to reach early retirement one could compute obligatory military service or a substitute social service, with a maximum limit of one year.  The judges of the Social Chamber in a literal interpretation of this article felt that it did not include the feminine Social Service and consequently found that it was "discriminatory treatment" against women.

The case involved a woman who sought early retirement and was denied by the National Institute of Social Security (INSS) because she lacked eight days in order to comply with the minimum time required by the law.  A social security court in Barcelona found on her behalf and recognized her right to early retirement, but the Superior Court of Cataluña overturned the lower court's judgment.  The Supreme Court overturned that decision in a judgment in which it emphasized that a gender perspective bound all the powers of the State: legislative, executive and judicial.

The feminine Social Service was obligatory for all single women between the ages of 17 and 35 during the Franco era, if they wished to have a paying job or an academic or official title, or to join an association, or obtain a passport or a driver's license.

Factual sufficiency

Should the power of the service Courts of Criminal Appeals to review courts-martial for factual sufficiency be dialed back or repealed? Judging by this Stars and Stripes article by Matthew M. Burke, that change may be in our future. If the thought is that the CCAs' power should replicate the power of the U.S. Courts of Appeals to review criminal convictions adjudged in the federal district courts, wouldn't Congress need to take commanders out of the member-selection process so the analogy to civilian federal practice was at least plausible?

The 2020 candidates' pledge

Just Security was kind enough to publish this op-ed by the Editor today. See what you think. Comments are welcome (real names only, please). Excerpt:

An Idea: A Court-Martial Command

Nothing in the UCMJ prevents the creation of a military command whose sole function would be to make charging decisions. The next president could direct one of the service secretaries to create a Court-Martial Command and designate it as a general court-martial convening authority under Article 22(a)(8) of the UCMJ (10 U.S.C. § 828(a)(8)). That new command could be created with a sunset date so the effort could be a pilot project for what [Sen. Kirsten] Gillibrand’s bill would do on a permanent basis.

The commander of this new command would be a senior judge advocate (i.e., a uniformed lawyer) outside the normal chain of command, and with a nonrenewable fixed term of office to ensure decisional independence. That officer would report directly to the service secretary.

The president also could prescribe categories of charges that can be referred for trial only by the Court-Martial Command. These could include the type of offense, the maximum permissible punishment, and the accused’s officer/enlisted status and pay grade. This can be done under current law. Rule 401(a) of the presidentially prescribed Rules for Courts-Martial provides that “[a] superior competent authority may withhold the authority of a subordinate to dispose of charges in individual cases, types of cases, or generally.”

Actual prosecutions would continue to be conducted by JAG officers in the field, so the commander of the new command would never become an “accuser.” In addition to putting charging decisions, which are quintessentially lawyers’ work, in the hands of a lawyer, this arrangement would reduce the risk of unlawful command influence, to which the current system has long been susceptible. A suspect’s regular command could weigh in with a recommendation reflecting any special disciplinary considerations that might affect the disposition decision. The accused and any complainant could also comment and respond to the regular command’s recommendation.

Nearly 50 years ago, a respected member of the Senate, Birch Bayh of Indiana, proposed legislation that would have created a Court-Martial Command. His Military Justice Act of 1971 (and 1973) sank without a trace, other than long-forgotten references in the Congressional Record and law reviews. A similar measure offered by Representative. Charles Bennett of Florida met a similar fate.

After a half-century, it’s time to bite this bullet. If Congress won’t do it, the next president should at least give it a try. Public confidence in the administration of military justice is not a given. It’s been tested sorely in recent times. Decisive change cannot happen without decisive leadership.

High noon in Peshawar

The Peshawar High Court seems to have reached the boiling point after a year-long attempt to pry out of the government the records of some 230 courts-martial, according to this Dawn account. What will the two-judge bench do now? Rule without hearing from the government? And by the way, why has the court been dealing with this controversy in camera?

The case will resume on February 20.

White supremacists in the armed forces

The Southern Poverty Law Center's Lecia Brooks has testified before the military personnel subcommittee of the House Armed Services Committee concerning white supremacists in the U.S. military. From her prepared statement:

The participation of active-duty personnel and veterans in white supremacist activity has long posed a serious threat to the public and other military personnel. Indeed, the Southern Poverty Law Center first began actively lobbying the Department of Defense to prohibit all military personnel from being members of, or participating in, the activities of white supremacist groups in 1986. While steps have since been taken to prevent racist extremists from entering the U.S. Armed Forces, numerous recent examples of violent white supremacists with current or former involvement in the military shows those responses have been inadequate.

Over the last two years, we have identified dozens of former and active-duty military personnel among the membership of some of the country’s most dangerous white supremacist groups. Those groups include the Atomwaffen Division, a neo-Nazi group whose members have allegedly been responsible for five murders since mid-2017. One of the people killed was a gay, Jewish college student named Blaze Bernstein who was stabbed more than 20 times.

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Rightwing extremists poisoning the ranks of the military, or extremists using their military training to further their racist and often-violent ambitions, is not a new problem. Historically, many of the white power movement’s most infamous leaders have served in the military.

Why was this Russian case tried in a military court?

Russia tried left-wing activists in a military court, as reported here in The New York Times. The defendants claim they were tortured. But why was the case tried in a military court?

Human rights jurisprudence strongly disfavors the trial of civilians in military courts. Among the countries that routinely violate this rule: Uganda, Cameroon, Lebanon, Egypt, and Pakistan (until recently). Russia needs to kick this nasty habit.

The African Commission's military justice jurisprudence

Prof. Ronald Naluwairo

Prof. Ronald Naluwairo of Makerere University in Kampala, Uganda, has written Improving the administration of justice by military courts in Africa: An appraisal of the jurisprudence of the African Commission on Human and Peoples’ Rights, 19 African Hum. Rgts. L.J. 43 (2019). He concludes:

This article has summarised and appraised the jurisprudence of the African Commission concerning the administration of justice through military courts. Most of the Commission’s jurisprudence in this area is concentrated on the jurisdiction of military courts, acts and omissions of military courts that amount to violations of the African Charter, and what can be done to ensure that the administration of justice through military courts complies with international standards of administration of justice. From the above analysis it is fair to conclude that the African Commission has done relatively well, especially with respect to articulating principles, rules and making recommendations aimed at improving the administration of justice by military courts in Africa.

What is contestable is whether these principles, rules and recommendations have translated into actual legal, policy and practice reforms in the way in which military courts in the different African countries administer justice. For instance, as highlighted earlier, in its 2009 Concluding Observations and Recommendations on Uganda’s third periodic report the African Commission expressed concern that the government had not introduced measures to prohibit the trial of civilians in military courts as it had recommended in 2006. To date (13 years since the African Commission first made this recommendation) Uganda’s military courts retain jurisdiction over many categories of civilians beyond what is acceptable in international human rights law. Consequently, in order to fully appreciate the contribution by the African Commission in improving the administration of justice by military courts in Africa, the impact of its jurisprudence on national military court systems and practices needs to be studied in detail.

Also, given its mandate with respect to the promotion and protection of human rights on the African continent several things remain that the African Commission can do to improve the way in which military courts administer justice in the different African countries. First, there is a need for the Commission to undertake or commission studies on different thematic issues concerning military courts and the administration of justice. Second, the Commission should consider organising a high-level multi-stakeholder symposium or conference on the issue of administration of justice through military courts in Africa. Third, although it is appreciated that decisions of the African Commission are not binding, it should at least inquire into and attempt to find out from the respective states why its decisions and recommendations aimed at improving the administration of military justice by military tribunals are not enforced or implemented.

Jurisdictional issue to be heard in federal court in Washington, D.C.

On February 25, Judge Richard J. Leon of the U.S. District Court for the District of Columbia will hear argument on a government motion to dismiss and the plaintiff's motion for judgment on the pleadings in Larrabee v. Spencer, Civil No. 19-654. At issue is whether a member of the Fleet Marine Reserve is constitutionally subject to court-martial for offenses committed after he left active duty. On direct review, the U.S. Court of Appeals for the Armed Forces summarily affirmed and the Supreme Court denied certiorari. The Questions Presented portion of the petition for a writ of certiorari stated:

In United States ex rel. Toth v. Quarles, this Court held that the armed forces could not constitutionally court-martial “civilian ex-soldiers who had severed all relationship with the military and its institutions,” 350 U.S. 11, 14 (1955), even for offenses committed while on active duty. Petitioner is a retired Marine who was tried and convicted by court-martial for offenses committed after he had been discharged from active duty, and with no relationship to his military status. The lower courts nevertheless rejected his constitutional challenge to the exercise of military jurisdiction, concluding that “those in a retired status remain ‘members’ of the land and Naval forces who may face court-martial” for any and all crimes they commit while retired. United States v. Dinger, 76 M.J. 552, 557 (N-M. Ct. Crim. App. 2017). 

The Questions Presented are: 

1. Whether the Constitution permits the court-martial of a retired military service-member.

2. Whether, if so, the Constitution limits the jurisdiction of courts-martial in such cases to offenses that are related to the retiree’s military status.

The district court complaint seeks collateral review under 28 U.S.C. § 1331 and asserts under "Cause of Action"--

48. Plaintiff’s conviction violated the Constitution because the court-martial lacked jurisdiction over both him and his offenses: as a retiree, he was not part of the “land and naval forces” at the time of either the offenses or the trial, and the case did not “aris[e] in the land or naval forces” because the offenses had no connection to the armed forces. 

49. Congress’s extension of court-martial jurisdiction to military retirees exceeded its Article I authority and its power to authorize adjudication by a non-Article III military court, and deprived plaintiff of rights to which he was entitled under other provisions of the Constitution. 

50. A criminal conviction adjudged by a court that lacks jurisdiction is null and void.

Disclosure: the Editor is co-counsel for the plaintiff. Global Military Justice Reform contributor Prof. Stephen I. Vladeck of the University of Texas Law School is lead counsel.

Getting ready at GITMO

Carol Rosenberg reports here for The New York Times on preparations for the upcoming trial of five men charged with plotting the 9/11 attacks. How's this for a fine lede:

After a 7.7-magnitude earthquake struck in the Caribbean, the Navy captain in charge of this remote Pentagon outpost declared a tsunami warning. Word reached the base school and boats on the bay but never got to the war court, where pretrial hearings were underway in the case of the five men accused of plotting the Sept. 11, 2001, attacks.

“It was a significant logistical problem that nobody in the court knew,” James G. Connell III, a defense lawyer who had ducked under his courtroom table when the first temblor rolled through, protested to the judge the next day.

Col. W. Shane Cohen, the military judge, has scheduled jury selection for the death-penalty trial to begin early next year. It will be by far the most prominent and complex legal proceeding in the nearly two decades since the first prisoners arrived at the base. And Guantánamo is not yet ready.

Call me cranky

Prof. Rachel VanLandingham

Call me cranky, but I have little tolerance for the idiotic arguments mounted to deny equal protection of the laws when it comes to women serving in the military. Any military. The Indian Army claims that men won't take orders from women in command.  Hence women shouldn't be in command.

Here's a wake-up call:  the military is an orders-driven society. Court-martial one man for insubordination to his female commander and voilà, any claimed issue of men not being prepared to take orders from women will (not so magically) disappear. And how about actually engage in training and help your military prepare for such gender integration?

Weeding out bias and hate amongst the ranks is hard. Militaries reflect the civilian society they are drawn from, and no society is free from humanity's darker tendencies. But militaries are uniquely poised to bring out the best in those in uniform if they wisely choose to do so. Militaries necessarily strive to achieve maximum effectiveness on the battlefield, which in today's world is a 360-degree environment ranging from outer-space, to cyberspace, to the depths of the Atlantic, to the wind-swept deserts, to street-fighting in urban terrain.

Successful militaries build cohesive teams that utilize the unique talents of all its members in synergistic ways. Allowing tired claims that have long been used to deny various groups advancement in the world's militaries (the same argument above was used against African Americans in the US military until President Harry S Truman forced integration by executive fiat in 1948) to deny women advancement in the Indian Army signals that body's commitment to remaining a 19th Century military, instead of joining the ranks of the globe's most effective modern armed forces.

And the Indian Army's equally stale argument for categorical exclusion of women from permanent commission status because of different physical abilities?  Excuse me while I go run a 10k and do 15 pull-ups in a row. While the Indian Army stagnates, the US Army (incredibly late, but better late than never) just graduated its first enlisted female guard members from its elite Ranger course.  Progress long in coming, but progress. A bit late for some of us, but a celebratory moment all the same. Militaries around the world, take heed.

More fallout from Chief Gallagher's case; this time it's political

Will the fallout of retired Chief Petty Officer Edward R. Gallagher's case never end? Consider this report by Helene Cooper in The New York Times. Former Secretary of the Navy Richard V. Spencer has thrown his support to former Gotham Mayor Michael R. Bloomberg in the race for the 2020 Democratic presidential nomination.

NZDF white-nationalist case

Global Military Justice Reform contributor Chris Griggs, a New Zealand barrister and major-league military justice maven, is quoted at length in this Stuff story about a high-profile white-nationalism case involving an as-yet unnamed member of the New Zealand Defence Force. Watch this space; there'll be more to come.

Run that by me again

Maybe this article is all wrong, but it says a K-pop star being called up for duty as a conscript might be subject to trial by court-martial for offenses committed before he has entered the South Korean armed forces. Excerpt:

Last week, prosecutors indicted former Big Bang member Seungri, whose real name is Lee Seung-hyun, on charges of violating laws on prostitution, illegal gambling and foreign currency trading. 

The state-run Military Manpower Administration announced on Tuesday that it had sent Seungri documents asking him to report for 21 months of mandatory military service, a requirement for all able-bodied men in South Korea, because prosecutors had ended their investigation. 

It said in a statement that it was concerned a protracted trial in civilian courts would hamper its efforts to equally apply the military obligation on Seungri, 29. The administration said Seungri’s case would be handed over to a military court if he joined the military.

Lebanon's military-courts addiction

Human Rights Watch has issued the following report by its researcher Aya Majzoub:

At least two civilians have appeared before military courts in Lebanon in recent days, prompting fresh concerns over authorities’ attempts to stamp out dissent in the country. Both men face charges related to their involvement in the protest movement currently sweeping Lebanon.

Activist Hassan Yassine, who the Internal Security Forces (ISF) arrested during a protest in Beirut on January 22, 2020, has been charged by the military prosecutor with “forcefully resisting security forces.” He appeared before the Military Tribunal on February 3. The Lawyers’ Committee for the Defense of Protesters said that a forensic doctor who examined Yassine while in detention found his body bore marks of abuse, which the committee say resulted from the ISF beating him during his arrest and before his interrogation at the El Helou police station.

Another man from Tripoli, Nour Chahine, has been charged with attempting to kill a member of the army and with “resisting the security forces” in front of Beirut’s parliament. Chahine turned himself in to the military intelligence branch in Tripoli on December 25, 2019 and has been detained at the Defense Ministry and Military Police branch in Rayhaniyya ever since. According to the Lawyers’ Committee for the Defense of Protesters, Chahine was not allowed to contact his family or meet with a lawyer before his interrogation. He first appeared before the Military Tribunal on January 31, and before a military investigative judge on February 4. During his first hearing, Chahine alleged that he was tortured while being interrogated at the Defense Ministry.

A 2017 Human Rights Watch investigation revealed the many due process and international law violations inherent in trying civilians before military courts in Lebanon. Many of the judges are military officers appointed by and subordinate to the defense minister, undermining the independence of the court. Those who have stood trial at military courts describe incommunicado detention, interrogations without a lawyer, ill-treatment and torture, the use of confessions extracted under torture, decisions issued without an explanation, seemingly arbitrary sentences, and a limited ability to appeal. Defendants, lawyers, and human rights groups all say state authorities use the military court’s jurisdiction over civilians to intimidate or retaliate for political reasons and to stamp out dissent.

Military courts have no business trying civilians. Lebanon’s parliament should end this troubling practice by passing a law to remove civilians from the military court’s jurisdiction entirely.

Courts-martial and bail

Why not? A group of civilian defendants before a Ugandan court-martial have sought bail, according to this report.

Comparative law note: there is no provision for bail under the Uniform Code of Military Justice.

Guantánamo "Guide for the Perplexed"?

Carol Rosenberg has written this guide to the Guantánamo military commission 9/11 trial for The New York Times. Along with a host of other issues, the defense has challenged the rulings of a previous presiding military judge "because, before his service at Guantánamo, he worked at the National Security Division of the Justice Department, which provides prosecutors to the case."