Military justice and the election

“I will order the Defense Department to take urgent and aggressive action to make sure survivors are in fact supported and abusers are held accountable for their crimes,” [Joseph R.] Biden continued, proposing a commission made up of former military leaders and sexual assault survivors, experts and advocates to deliberate on such matters.

From this Forbes account by Andrew Solender

Mr. Biden answered "yes, yes, yes" when asked by Nancy Parrish of Protect Our Defenders whether "he would support 'moving the military justice system into the 21st century,' by allowing military prosecutors 'to make prosecution decisions for non-military crimes — serious felonies like rape, murder, and child abuse.'”

Considering the fact that these issues have been before Congress for years, something more definitive than yet another commission study seems to be called for, no? Will there be a plank in the Democratic platform on this subject? Will a potential Biden transition team focus on this?

Department of Serendipitous Research

Amid the e-piles of reading matter unearthed during Spring cleaning at the glass-enclosed newsroom high above Global Military Justice Reform Plaza we found an article by Major Tennille Marsh of the Australian Defence Force, Civilian Sentencing Principles in Summary Military Discipline Proceedings, 20 J. Int'l Peacekeeping 230 (2016). Regrettably, it's behind a paywall or available through university institutional accounts. It is worth reading for those concerned with summary proceedings. From Major Marsh's conclusion (footnotes omitted; reference added):

Should the military discipline system continue its trend towards civilianisation, and become a civilian criminal justice system or should it remain a tool of commanders? Sadly, there have been instances where the military discipline system has failed. In an attempt to address those (arguably isolated) failures, the legislature has increased the regulation of the entire military discipline system and has logically sought guidance from the civil justice system when doing so. But such an approach overlooks the fundamental point that the military discipline system is precisely that, a discipline system, not a justice system. A change of approach is required which focuses on enabling commanders to enforce military discipline in an efficient, fair and equitable manner. If an individual officer fails to do that, they should be held to account. The answer to individual failures is not more regulation or imposition of civilian principles, but better selection and training of commanders to impose punishments. The majority of summary authorities are not legally trained, and do not have detailed knowledge of civilian sentencing principles. As [Major James K.] Lovejoy points out [in Abolition of Court Member Sentencing in the Military, 142 Mil. L. Rev. 1 (1994)], “[t]he problem with member sentencing lies not with the integrity of the members, but with asking them to perform a duty they know little if anything about”. “[M]ilitary commanders are not professionally competent to administer criminal justice.” But military commanders do know about military discipline and how to enforce it. The state entrusts military commanders with the responsibility to order troops into battle and to make life and death decisions, literally. It should also trust them to discipline their troops.

What follows from her conclusion? 

Predicting peacekeeper misconduct?

Horne, Robinson & Lloyd, The Relationship between Contributors’ Domestic Abuses and Peacekeeper Misconduct in United Nations Peacekeeping Operations. 64 INT. STUDIES Q. 235 (August 2019).

Recent research has begun to examine patterns of sexual exploitation and abuse (SEA) perpetrated by peacekeepers deployed in United Nations (UN) peacekeeping operations (PKOs). Yet, SEA makes up only a fraction of credible allegations of misconduct by peacekeepers. In this article we explore the contours of misconduct in UN PKOs beyond SEA allegations. We argue that the behavior of military forces in their own countries should easily predict their behavior when deployed as part of UN PKOs, which are typically set in fragile, postconflict countries where civilians have minimal protections or legal recourse. Using an original dataset of misconduct in PKOs from 2009 to 2016, we find the behavior of PKO contributor states toward their own populations strongly and consistently predicts the behavior of these states’ military forces in UN PKOs. These findings have implications for the vetting, supervision, and composition of PKOs.

Lieber Code

Prof. Francis Lieber
(Library of Congress
Prints & Photos Div.)

Apologies for a late entry that on 24 April 1863 General Orders #100 was issued, an order often referred to as the Lieber Code.

Here is a link to the Code.

I recommend to you John Fabian Witt, Lincoln's Code (Free Press 2010). (It's cheap on Amazon.)

In the closing days of 1862, just three weeks before Emancipation, the administration of Abraham Lincoln commissioned a code setting forth the laws of war for US armies. It announced standards of conduct in wartime—concerning torture, prisoners of war, civilians, spies, and slaves—that shaped the course of the Civil War. By the twentieth century, Lincoln’s code would be incorporated into the Geneva Conventions and form the basis of a new international law of war. 

In this deeply original book, John Fabian Witt tells the fascinating history of the laws of war and its eminent cast of characters—Washington, Jefferson, Franklin, Madison, and Lincoln—as they crafted the articles that would change the course of world history. Witt’s engrossing exploration of the dilemmas at the heart of the laws of war is a prehistory of our own era. Lincoln’s Code reveals that the heated controversies of twenty-first-century warfare have roots going back to the beginnings of American history. It is a compelling story of ideals under pressure and a landmark contribution to our understanding of the American experience.

The Encyclopedia Britannica entry states,

Francis Lieber, original name Franz Lieber, (born March 18, 1798, Berlin—died Oct. 2, 1872, New York City), German-born U.S. political philosopher and jurist, best known for formulating the “laws of war.” His Code for the Government of Armies in the Field (1863) subsequently served as a basis for international conventions on the conduct of warfare. Lieber was educated at the university at Jena. A liberal political activist, he was twice imprisoned under the Prussian government. He fled to England and, in 1827, immigrated to the United States. There he began to compile and edit the first edition of the Encyclopedia Americana (1829–33). He was appointed professor of history and political economics at South Carolina College (Columbia) in 1835 and joined the faculty of Columbia College, New York City, in 1857. During this period he produced two of his most important works, Manual of Political Ethics, 2 vol. (1838–39) and On Civil Liberty and Self-Government, 2 vol. (1853). In his Code for the Government of Armies, drafted for the Union Army during the U.S. Civil War, Lieber recognized the need for a systematic, institutionalized code of behaviour to mitigate the devastation of war, protect civilians, and regulate the treatment of prisoners of war.

Interestingly, the MG Albert C. Lieber U.S. Army Reserve Center is just down the road from me and all but one of the assigned units are judge advocate units.

Why is this case in military court?

A Cambodian military court has tried two former soldiers, ages 47 and 64, in a fake Army recruiting scam, according to this Phnom Penh Post account. Pork Porn was the presiding judge.

Human rights norms strongly disfavor the trial of civilians in military courts.

COVID-19 and military justice (U.S. Forces Japan)

The commander of U.S. Forces Japan has issued a punitive (i.e., criminally enforceable) general order requiring personnel to maintain a log of their personal contacts and interactions. Stars and Stripes has the story here.

The contract-tracing order requires USFJ personnel to log:

• Date, time and duration of contact

• Location and names of individuals who come within 6 feet of the service member for longer than 10 minutes

• Those with whom the service member shares physical contact while caring for, living with or visiting

• Individuals who expose the service member to secretions, like coughing or sneezing

• Date, arrival and departure times and locations for all visits to health care facilities, as well as the details of health care waiting rooms

Military cases challenged in Peshawar

The Peshawar High Court is losing patience with the government in cases involving 300 civilians who have been convicted by military courts. The government has been dragging its feet waiting for the Supreme Court to decide another such case. The High Court has indicated it will decide the cases with or without submissions by the government. Details here.

Town hall

Global Military Justice Reform's third Zoom town hall will be held at 9:00 a.m., New York time, on Monday, May 4. This is part of our continuing effort to make participation feasible for contributors and friends in as many time zones as possible. If there is anything specific you would like to have discussed at the meeting, please post a comment here.

Postscript: Pascal Lévesque has kindly offered to make some remarks about summary courts-martial in India in light of a recent op-ed by two scholars in that country. In no particular order, here are some other topics that may come up at this or, more likely, future town halls:

• What will be the "New Normal" for Military Justice after COVID-19?
• Politicization of military justice
• The Lyons Report on possible changes in the UK military justice system
• Status of US proposals to transfer disposition power to independent prosecutors, including the submission by the § 540F Shadow Advisory Report Group of Experts (SARGE)
• Jury/panel/board unanimity after Ramos v. Louisiana

If you have a suggestion for a town hall agenda item, please comment here or email the Editor. If you would like to kick off the discussion, please so indicate.

COVID-19 and military justice (U.S. Court of Appeals for the Armed Forces)

United States Court of Appeals

for the Armed Forces

Washington, D.C.

In Re:

END OF TERM RECEPTION                      NOTICE
CANCELLED

     In cooperation with the Federal Bar Association, the Court ordinarily hosts an end of term reception around the completion of oral arguments for the term in May. In view of the ongoing health crisis, its impact on public gatherings and the rescheduling of several arguments into June, at the direction of the Chief Judge, the Court will not be hosting an end of term reception in 2020.

                                                                         For the Court,

                                                                         /s/ Joseph R. Perlak
                                                                         Clerk of the Court
April 27, 2020

Politicization

Prof. Risa Brooks (Marquette) has written a thought-provoking essay for War on the Rocks on steps that can be taken to address the danger of politicization of the armed forces. Among her suggestions:

It might also be appropriate for Congress and civilian defense officials to consider changing laws or Defense Department regulations to make it harder for politicians to use military resources or uniformed personnel in particular partisan settings or contexts, such as during political campaigns. Other measures might involve further limiting how non-active service members, such as those in the reserves and National Guard, can use photographs in uniform and their ranks and titles in campaign advertisements.

COVID-19 and military justice (South Africa)

A lawsuit has now been filed in the High Court in Pretoria seeking guidance on the rules of engagement for defence force personnel on lockdown duty. According to this account:

The Socio-Economic Rights Institute of South Africa (Seri) has also asked to join the case as a friend of the court, saying it wants to argue that there needs to be widely publicised and clearly set out standards in place for the use of force by the security services.

“What is striking about the abuses referred to in the applicants’ founding papers is the apparent absence of any detailed public standards known and internalised by security service officers, governing the exercise of reasonable force,” Seri’s Nomzamo Zondo said in an affidavit.

This case is likely to move very quickly considering the urgency of the issues. 

Two landmarks

Bingo! Global Military Justice Reform has just had its 800,000th hit.

Yesterday we ran our first full-scale Zoom call with contributors and friends from the glass-enclosed newsroom high above Global Military Justice Reform Plaza. We'll do more of these, hopefully on a schedule that will make it possible for participants around the world to join in, time zones notwithstanding.

Please post a comment if there's a topic you think we ought to put on the agenda. (Real names only, please.)

Whither the Crozier case?

"Score at the end of three innings of play, no runs, no hits, two errors, no men left on."

The CNO (ADM Michael M. Gilday) and SECNAV (RADM (ret) James E. McPherson) have received a report, not yet made public, and have recommended CAPT Brett E. Crozier's reinstatement as commanding officer of USS Theodore Roosevelt (CVN 71). The Chairman of the Joint Chiefs (GEN Mark A. Milley) wants a full investigation. The Secretary of Defense (Dr. Mark T. Esper) wants to think things over. The President (Donald J. Trump)  . . . who can tell?

What will the coming week bring?

• Will the Navy release the report submitted by the VCNO (ADM Robert P. Burke)?
• Will there be the formal investigation the CJCS is reportedly seeking?
• Will the President preempt further consideration by his subordinates? (Remember Chief Edward R. Gallagher's case and former SECNAV Richard V. Spencer?)
• If so, which side will he come down on? Answer is subject to change without notice. (Ask Gov. Brian P. Kemp of Georgia.) Which is the problem.
• If CAPT Crozier is not reinstated, will the CNO or SECNAV or both resign?

POTUS tweets as lawful orders

I haven't posted in a while -- life keeps getting in the, particularly now that I'm in a part time grad program, plus work, husbanding, parenting, etc.  But in order to get back on track, and energized by Gene's zoom call yesterday, I wanted to republish a piece here from Task and Purpose.

The discussion from a couple other fora have suggested I'm a Trump apologist.  Nothing could be further from the truth.  What I'm setting out is the proposition that 45, as POTUS, has certain constitutional authorities, that when he gives a public direction, no matter the forum, the military has a duty to understand that direction from the CINC as an order and, barring manifest illegality, to execute it, or at least to clarify it.  I keep hearing "that's not how orders work" -- and that's true, usually.  But it doesn't HAVE to work that way, as a matter of the President's Article II CINC power.  The order is complete the moment issued.

I left unspoken the obvious conclusion that this interpretation *should* serve as a warning to the President to be circumspect with his Tweets, because there are a million men and women under arms duty bound to carry out his orders.  This is why Presidents in the past have been very deliberate and disciplined with their communications -- to ensure the messages they desire to be communicated are communicated, with less potential for miscommunication or misinterpretation.

Here's the piece:  https://taskandpurpose.com/opinion/trump-tweets-military-orders

COVID-19 and military justice (Somalia)

A Somali soldier is under arrest for having killed two civilians in Mogadishu during the country's COVID-19 curfew. Details here. It is not entirely clear whether the case will be handled within the armed forces or by the civilian courts.

Bail in a military case

Two members of the South African National Defence Force have been released on bail by the Court of the Senior Military Judge while they stand trial for larceny of rifles. Details here.

Does your country's military justice system permit release on bail, either before or during trial or on appeal?

COVID-19 and military justice (South Africa)

The South African Constitutional Court has dismissed a petition arising from defence force and police violence during the COVID-19 lockdown. The petitioners will now have to seek relief from the North Gauteng High Court in Pretoria.

Zoom

This afternoon Global Military Justice Reform conducted its first Zoom conference of contributors. This was a dry run on ridiculously short notice (sincere apologies to those who were unable to participate as a result), but we will have more of these, and will try to schedule them so that as many of our far-flung contributors as possible will be able to join in. If you are a contributor and have something in particular you'd like to discuss, please email the Editor at the glass-enclosed newsroom high above Global Military Justice Reform Plaza.

New Coast Guard TJAG

RADM Melissa Bert, USCG
Judge Advocate General
of the U.S. Coast Guard

Congratulations to Rear Admiral Melissa Bert, new Judge Advocate General of the U.S. Coast Guard, and to Rear Admiral Steven Andersen on his retirement after 35 years of active duty -- both accomplished yesterday. Video is available on the CGJAG group Facebook page.

Admiral Andersen served in the position for nearly four years, one of the longest tenures on record. Admiral Bert is the first woman Coast Guard TJAG.

Which system should have charge of this case?

Dilan Mauricio Cruz Medina

The Colombian Supreme Court on April 14, 2020 ordered revision of the decision from a military court, involving the death of Dilan Cruz, an 18 year old activist, for violation of the fundamental right to due process.   Dilan Cruz was killed by a stun grenade launched by an agent of the Mobile Anti-Disturbances Squad,  (ESMAD), during a national strike on 23 November 2019 in Bogota against President Ivan Duque.

In December, the Disciplinary Chamber of the Superior Council of the Judiciary (CSJ) resolved the conflict of jurisdictions deciding in favor of military jurisdiction in the Cruz case because it involved an act of service of an ESMAD agent accused of the death, Police Captain Manuel Cubillos.  The Chamber held that the members of the security forces were attacked by some demonstrators, compelling them to have recourse to the use of force, as a consequence of which Dilan Mauricio Cruz Medina was injured and subsequently died in the San Ignacio hospital.

His mother, Yenny Alejandra Medina, brought an action for "tutela" (protection of one's fundamental rights) to the CSJ, to overturn its decision, arguing that the Court only listened to testimony from police officials and failed to take into consideration the testimony of other demonstrators and activists, according to which the attack in which Dilan was killed was produced without any prior aggressive action against ESMAD.

The Colombian Supreme Court heard Medina's petition and ordered the CSJ to revise its decision "in the light of the totality of the evidence" to determine whether Cruz's death should be heard by a military or an ordinary court.  Cruz was a symbol of the protests against Duque by becoming the first victim. He was protesting for public education of quality.

Judge Patricia Salazar Cuellar, in her concurring opinion, stated that the CSJ had to assess all the evidence available and to make sure that the decision complied with the Colombian Constitution and the international human rights treaties applicable to Colombia.

Another new contributor

Global Military Justice Reform is delighted to welcome another new contributor from Canada, Pascal Lévesque. He is the author of The Evolution and Reform of Summary Trials in Canadian Military Justice.

Welcome, Pascal! We look forward to see you post "early and often."

Sorry, wrong courthouse

A defense lawyer who objected to having been summarily thrown out of a court-martial should have taken his complaint to the military appellate court, not to a civilian court, a High Court judge has ruled in Uganda. Details here.

Unanimity and hung juries

In the wake of Ramos v. Louisiana, students of American military justice are once again pondering such basic questions as the proper or required size and voting requirements for court-martial panels. A frequently expressed concern in conversations about unanimity is the prospect of hung juries, necessitating retrials that may be costly and a diversion of personnel from regular duties. These conversations would be more productive (and potentially helpful to Congress and the courts) if some empirical data were available. What data would you want to have?

American military justice currently has a unanimity requirement for findings and sentence before a capital sentence may be adjudged in a case that has been referred capital. In what percentage of capitally-referred cases is unanimity not achieved at findings or sentence?

Unanimity is required in federal trials. In what percentage of federal criminal cases do juries hang? Some data can be found here. Between 1980 and 1997 the rate averaged 2.5%. Hang rates vary considerably from jurisdiction to jurisdiction, but they remain low. It would be interesting to know if the hang rate is affected by jury size in those states that use juries of fewer than 12. Intuitively, one would think the larger the jury, the greater the chance of a holdout, and hence, the higher the risk of a hung jury. By this analysis noncapital courts-martial, with 4 or 8 members, would presumably be less likely to hang than a civilian jury of 12. (Capital cases probably have a different dynamic.)

What percentage of federal criminal cases in which there has been a hung jury are retried? The Editor has not yet been able to find data on this question. Of those that are retried, some number are resolved by guilty pleas in accordance with pretrial agreements. Again, no data have been found thus far on this question.

New contributor from Canada

Please welcome Edmund Thomas, the newest contributor to Global Military Justice Reform. He spent 35 years in the Canadian Armed Forces, five as a reserve officer and thirty in the Regular Force as a legal officer. He served in Germany for three years and was deployed to Bosnia, Haiti and Afghanistan.

Edmund retired from the Army in March 2017 and is currently enrolled in the Ph.D. program at the University of Western Ontario. Much of his time in the Legal Branch was in Defence Counsel Services. Welcome aboard!

(Interested in becoming a contributor? Please get in touch with the Editor.)

Charging the wrong person – a ‘rookie’ mistake in the Canadian military justice system

In August 2019, a very senior (but now retired) non-commissioned member (NCM) of the Canadian Forces was charged by the Canadian Forces National Investigation Service (CFNIS) for an alleged ‘historical’ sexual assault that purportedly occurred in 1996 in Kingston, Ontario.

The problem is that it appears that the CFNIS charged the wrong person.  The person they charged bore the same middle name and surname as their suspect, but had a different first name.

Although the CFNIS announced the charges with a degree of notoriety, their withdrawal of the charges approximately 3 weeks later was done in a low-key fashion and did not indicate the reason – they had charged the wrong person.

On Monday, 20 April 2020, various media outlets, including a  CBC online article, reported that the falsely charged person had brought an action for malicious prosecution against the federal Crown in the Manitoba Court of Queen’s Bench.  

The CBC online article that reported this matter did not state the plaintiff's name.  This is understandable; his reputation has suffered enough due to apparent negligence.  While the facts alleged in the action for malicious prosecution have not yet been proven in court, it is possible to gather information that was published at the time of his arrest, and the subsequent withdrawal of the charge, much of it provided by CFNIS media releases.  The assertions in those media articles present factors that are worthy of discussion for anyone interested in military justice in Canada, particularly with respect to how the Canadian Forces has responded to allegations of sexual misconduct under Op HONOUR.

Global Military Justice Reform contributor Rory Fowler expands upon some of these issues in his blog here.

Dissent and principled resignation

We may all be reasonably familiar with CAPT Brett E. Crozier, relieved of command because his communications about the COVID-19 effects on his ship became public and a hot mashed potato. Steven Katz leverages this incident to discuss situations where military persons should consider resigning on principle.

A few weeks ago, the acting Secretary of the Navy (A-SecNav) fired the commander of the USS Theodore Roosevelt, Captain Brett Crozier, for circumventing his chain-of-command in sounding the alarm to senior civilian leadership on serious COVID-19 health and safety concerns on his ship. Ignoring the A-SecNav’s subsequent statements and eventual resignation, this relief incident has led to intense discussion on the propriety of the Captain’s actions.

Which brings me to Steven Katz, Frameworks for Dissent and Principled Resignation in the US Military: A Primer. Georgetown Univ. J. of Int. Affairs, 17 April 2020.

The Crozier affair should prompt senior military officers to contemplate situations in which ethics may demand a leader to express dissent, to resign, or even to disobey orders. This primer seeks to prompt that dialogue by outlining three ethical frameworks, which analyze such unconventional conduct.

The United States has a long-standing tradition of military obedience to civilian leadership decisions and control over military affairs. In fact, the civil–military norm is clear on obedience: barring evidence to the contrary, orders and policies are presumed to be legal and are executed upon receipt. If legality is in doubt, the officer should consult her legal staff and seek clarification from the order issuing authority. If the order is found to be illegal, the officer must refuse to follow it. The intentional targeting of civilians is a clear example of an illegal order that must be disobeyed.

Conversely, there is no American custom of senior military officers (e.g., Combatant Commanders, Service Chiefs, and other three and four-star officer advisors) disobeying or resigning in protest over morally objectionable, yet lawful, civilian-directed orders. Recent polling data suggests, however, that a new norm might be emerging in the officer corps. In 1999, only 26 percent of veterans agreed that a senior officer should resign in protest in the face on an immoral order; by 2014, support for this proposition had increased to 63 percent. While these figures suggest a new norm, further and more comprehensive study of senior military officers is needed to understand these shifting perspectives. The matter of what constitutes morally objectionable orders—and whether officers increasingly consider themselves duty-bound to resist them—could have profound implications for the future of civil-military relations.

COVID-19 and military justice (Canada)

On April 7, 2020, Chief Justice B. Richard Bell of the Court Martial Appeal Court of Canada issued a notice to the profession in connection with the COVID-19 pandemic. It provides in part:

The Court is strongly encouraging the electronic filing of court documents via email. The Court is extending until May 15, 2020, the period of time during which parties are urged to file court documents in PDF format by sending those documents to cmac-information-cacm@cassatj.gc.ca. Court documents can also be filed by fax at (613) 952-7226.

Those unable to file electronically or by fax may file paper copies by placing their documents at locations designated for document drop-off at all registry counters. Registry staff will no longer be available to accept in-person filing of paper documents but remain available to assist parties and the public via email or telephone. For contact information for registry counters across the country, please see https://www.cas-satj.gc.ca/en/operations/locations.shtml. 

The Court continues to be available to deal with urgent matters in writing or by teleconference.

Tested by a test case

The Court Martial Appeal Court of Canada today handed down its ruling on a motion for costs in The Queen v. Banting, 2020 CMAC 2. The military judge had dismissed the single charge of conduct prejudicial to good order and discipline and the prosecution appealed. In a training setting, "Lieutenant [J.C.] Banting [had] used double entendre nuances, with some degree of sexual innuendo, as mnemonic devices." The prosecution appealed the dismissal, considering the matter a test case.  As today's decision noted, "At the close of the Appellant’s oral argument, this Court advised Lieutenant Banting’s counsel it did not need to hear from him. We dismissed the Crown appeal." Today it unanimously granted $10,000 in costs to Lieutenant Banting. After a survey of the governing principles, the court wrote:

[27] We now turn to whether the prosecution of Lieutenant Banting, and the subsequent appeal brought by the Crown, amount to frivolous or vexatious conduct. In considering this issue, the Court is mindful of its decisions in R. v. Golzari, 2017 CMAC 3 and Canada v. Bannister, 2019 CMAC 2. Those decisions spawned discussion among members of the military bar and military judges regarding the parameters of the offence of conduct prejudicial to good order and discipline and disgraceful conduct. Prosecution authorities found themselves attempting to assess and define the parameters of Golzari and Bannister against the backdrop of Operation Honour, at the expense of Lieutenant Banting. That does not lead us to conclude the proceeding was frivolous or vexatious.

[28] That said, we do wish to state categorically that while the prosecution of Lieutenant Banting may not have risen to frivolous or vexatious conduct, we do consider the prosecution and the subsequent appeal, to have been questionable. It is apparent that military commanders and the prosecution intended to use Lieutenant Banting’s circumstances to test the limits of this Court’s reasoning in Golzari and Bannister. Those same commanders and the prosecution chose to use Lieutenant Banting’s circumstances to test the reach of Operation Honour within the military justice context. They chose to pursue the case against Lieutenant Banting in circumstances where a court would eventually conclude there existed no prima facie case and where the Canadian Armed Forces training manual authorized the acronym F.U.C.K. (Fight the fight; Uncontrolled bleeding; Communicate; Keep moving) as a mnemonic device. Based upon the subjective sensibilities of at least one of the perceived “complainants” in this case, that acronym would seem more offensive than any of the double entendres employed by Lieutenant Banting. The test case failed miserably. Only one question arises: should Lieutenant Banting’s costs be borne exclusively by him? We conclude they should not. The successful accused in this case should not bear the costs of a test case with major implications across the whole of the military justice system.

[29] The remaining question is whether to award costs on a party-and-party basis or on a solicitor-client basis. Party-and-party costs are intended to produce a partial indemnity, whereas costs on a solicitor-client scale are intended to result in full indemnity to the beneficiary of the award. Solicitor-client costs are generally awarded on those very rare occasions where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties (Young v. Young, [1993] 4 S.C.R. 3, 108 D.L.R. (4th) 193, at p. 134; Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 26; Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, 2002 SCC 13, [2002] 1 S.C.R. 405, at para. 86; Caron, at paras. 112-113).

[30] Although the Appellant’s conduct was negligent at best, we are satisfied it does not reach levels of reprehensibility, scandal or outrageousness to justify an award of solicitor-client costs. We are of the view that a significant award of party-and-party costs, which will partially compensate Lieutenant Banting, is appropriate in this test case. We are satisfied that an award of $10,000 of costs on appeal, all inclusive of disbursements, is reasonable in the circumstances.

Congratulations to prevailing counsel Joshua M. Juneau of the Michael Drapeau Law Office, Ottawa, on an important victory.

Moral: test cases have an honored place in Western legal tradition, but they must be chosen with care and litigated with prudence. Given today's decision, it will presumably be some time before another prosecution test case comes before the Court Martial Appeal Court of Canada.

Speaking of military commissions

Today's quiz: who are they, what do they have in common, and can you put them in the proper order?

 

New convening authority for military commissions

Secretary of Defense Mark T. Esper has issued a memorandum rescinding the appointment of Rear Admiral (LH) Christian L. Reismeier, USN (Ret) as convening authority for military commissions, and appointing Colonel Jeffrey D. Wood in his place. The order provides no explanation.

COVID-19 and military justice (South Africa)

The Constitutional Court of South Africa has been asked to issue "an order that would set up a system for receiving and investigating complaints of state brutality for the duration of the state of disaster — including a special investigation, led by a retired judge." Details here from the Mail & Guardian. The family of a person killed by defense and police personnel in the course of the country's lockdown "want the highest court to declare that the state of national disaster does not detract from the right to life, dignity and to be free from state violence. They have asked the court to order that a code of conduct be developed for the SANDF for the duration of the state of disaster."

Sullivan on Ramos

Dwight H. Sullivan

Dwight Sullivan posted a personal comment on CAAFlog that is must reading for anyone interested in the potential impact vel non of Ramos v. Louisiana on courts-martial:

[Familiar disclaimer: I offer this comment solely in my personal capacity; it shouldn’t be imputed to anyone or anything else.] I might be wrong – I often am – but I don’t see Ramos as a game-changer for the military justice system. In fact, I don’t even view it as particularly significant.

Ramos is based entirely on an interpretation of the Sixth Amendment’s petit jury right. As discussed further below, the Supreme Court has long concluded that the Sixth Amendment’s petit jury right doesn’t apply to the military justice system. If it did, that system would have ALREADY been noncompliant before Ramos.

For more than a century before Ramos, the Supreme Court applied a unanimity requirement to criminal trials under the authority of the federal government. As Justice Thomas’s separate concurrence notes, the Supreme Court first announced that rule in 1898 – long before even I was born. Thomas, slip op. at 1 (citing Thompson v. Utah, 170 U.S. 343 (1898)). And as Justice Gorsuch noted in a portion of his opinion speaking for a majority of the Court, “this Court has commented on the Sixth Amendment’s unanimity requirement no fewer than 13 times over more than 120 years.” Gorsuch, slip op. at 7. Yet since the country’s founding – and for 120 years after Thompson – courts-martial proceeded without a requirement for unanimous verdicts (except in one arcane scenario from 1920-2019 discussed further below).

But that’s not all. If the Sixth Amendment petit jury right applied to it, the military justice system would have been non-compliant with pre-Ramos Supreme Court case law on jury size and voting requirements as well. See Burch v. Louisiana, 441 U.S. 130 (1979); Ballew v. Georgia, 435 U.S. 223 (1978).

Another county heard from

After holding steady for quite a while at 186 jurisdictions, Global Military Justice Reform has just had its first hit from a reader in Samoa. Welcome, whoever you are!

While we are at it, let's run the other numbers.

Total hits since January 14, 2014, 796,000
Posts, 5373
Comments, 767
Contributors, 22

Thank you to everyone who has made this possible. On to No. 188!

Was it something we said?

"Houston, we have a problem."

If anyone has any influence with U.S. Cyber Command, perhaps you can prevail upon those responsible to allow access to Global Military Justice Reform.

Oh good, more to e-read . . .

News from the Social Science Research Network (SSRN):

We are pleased to announce a new Legal Scholarship Network (LSN) Subject Matter eJournal - Veterans & Military Law & Policy eJournal. 

VETERANS & MILITARY LAW & POLICY 

View Papers: https://www.ssrn.com/link/Veterans-Military-Law-Policy.html
Subscribe: http://hq.ssrn.com/jourInvite.cfm?link=Veterans-Military-Law-Policy

Editor: Jessica L. Wherry, Associate Professor of Law, Legal Practice, Georgetown Law 

Description: This area includes content on veterans and military law and policy, welcoming all submissions from disciplines reasonably related to the topic. Content included may be exclusively military-related, exclusively veteran-related, and related to both military and veterans. The eJournal invites articles from diverse perspectives and disciplines, including from scholars of law, public health, psychology, and gender studies, while excluding content related to foreign relations, national and global security, humanitarian law, human rights, and the law of armed conflict, unless there is a specific connection to military service members' or veterans' lives or livelihoods. 

HOW TO SUBSCRIBE 

You can subscribe to this area at no cost, by clicking on the "subscribe" link listed above.

H/T to David Addlestone for passing the word.

Establishing operational control in a foreign country

PROVIDE COMFORT started as a fast-moving train. No one knew in advance that they were getting on, how far they were going, or when they would get off. Only a few tasks were well defined, and many were supported with difficulty. None of the units that deployed to Turkey had doctrine, plans, or procedures designed specifically for relief operations. But throughout the world the nature of the crisis had captured everyone’s attention. Refugees were suffering and dying, and the situation would worsen if quick action were not taken. The train was accelerating, but no one hesitated to get on.

So begins MAJ C. J. Cox, Building A Home Away From Home: Establishing Operational Control in a Foreign Country, 228 MIL. L. REV. (1-2020).

In early 1991, Turkish and international relief agencies found themselves confronted with a large-scale refugee relief effort, one larger than anyone had anticipated, leaving the world unprepared to respond. Nearly one million Kurdish refugees huddled in the mountains on the Iraqi side of its border with Turkey, sustaining themselves on only what they could carry when they fled their homes. The Gulf War had just ended, and a majority of Americans wanted their troops home as soon as possible. However, as they witnessed the human suffering broadcast over the airways, they wanted to help these refugees, even if it meant the troops had to stay to assist.

What followed in response was Operation Provide Comfort, a humanitarian relief operation initiated by the United States that relied heavily on support from the military forces of thirteen countries.6 The timing of the operation, its complexity, its use of military forces, and its proximity to the end of the first Gulf War led to many legal issues, including how to define operational control for purposes of military construction.

Is military jury unanimity now in the cards?

The Supreme Court of the United States held today in Ramos v. Louisiana that the Sixth Amendment, as applied to the states via the Fourteenth Amendment, requires jury unanimity. Several questions emerge:

1. Given the extent to which court-martial panels now function for all practical purposes like civilian court juries -- certainly more than they did when the Bill of Rights was ratified -- is it clear that the decision will not be extended to courts-martial?

2. Is the extension of court-martial jurisdiction over time to offenses that are not only not core military offenses but also to those that lack any service-connection pertinent to this conversation?

3. Is there a principled reason to distinguish between military capital cases, which require unanimity, and other courts-martial which may entail lengthy periods of confinement, up to life without parole?

4. Whether or not the non-unanimous court-martial panel survives constitutional challenge in the wake of Ramos, should Congress impose unanimity legislatively? After all, what the Constitution requires is a floor, not a ceiling.

Comments are invited. (Real names only, please.)

Shadow advisory report submitted to SASC, HASC, DoD

An international group of military justice experts (including several contributors to Global Military Justice Reform) has submitted this shadow advisory report to the Senate and House Committees on Armed Forces and the Department of Defense in response to § 540F of the FY20 National Defense Authorization Act. The Department's report is due in October.

Military or civilian jurisdiction

The Sun reports that,

Ten Gambian soldiers are set to be court-martialled by military authorities there for robbing and extorting money from Nigerians living in Banjul, the capital city.

The 10 had been in custody at the Fajara barracks over an act of violent armed robbery against some Nigerians living in the Kololi-Bijilo area of Banjul.

They had also allegedly tried to extort money from other Nigerians in the tiny West African country.

The troops included five from the navy and the others were from the army band.

COVID-19 and military justice (U.S. Navy & U.S. Marine Corps)

Code 20 of the Office of the Judge Advocate General of the Navy has issued a COVID-19 pandemic "Sidebar" on Restriction of Movement (ROM) Orders and Their Enforceability. It addresses, among other things, the pertinent punitive articles of the Uniform Code of Military Justice, notably including Art. 84, UCMJ (breach of medical quarantine).

COVID-19 and military justice (U.S. Army)

The Commanding General at Fort Rucker, Alabama, has issued General Order No. 1, to deal with the coronavirus. The order is punitive, meaning that violations may be prosecuted under the Uniform Code of Military Justice. Because it is a general order, the government need not prove that an accused actually knew of its terms.

Another such general order has been issued by the Superintendent of the U.S. Military Academy at West Point. That one specifically bans travel to New York City, New Rochelle, and the Village of Kiryas Joel, all of which are COVID-19 hotspots.

A punitive Force Public Health Order has also been issued for U.S. Forces, Japan.

Why was this case tried in a military court?

It's Russia's turn. The Baltic Fleet Military Court in Kaliningrad Oblast has convicted three civilians whose offense was that they would like the Baltic enclave to be able to cooperate with the European Union. MediaPart has the story. Excerpt:

Initially, the activists were accused of intending to take power in the Kaliningrad region to join the European Union. They were charged with extremism, but then the case was reclassified to a much more serious charge: organizing and participating in a terrorist organization. They were involved in the distribution of leaflets containing "indications of incitement to violent actions against [Russian President Vladimir] Putin".

Watch for a complaint to be lodged with the European Court of Human Rights following the exhaustion of national remedies. Human rights jurisprudence strongly disfavors the exercise of military jurisdiction over civilians.

"Who remembers that famous day and year"

Here in the temporary (and not glass-enclosed) newsroom in Berkshire County, where the Editor is self-isolating, there's still two hours left to the 18th of April. What better time to add a log to the fire and re-read Henry Wadsworth Longfellow's Paul Revere's Ride? (No offense to friends in the Mother Country; it was a long time ago.)