Thursday, May 28, 2020

Town Meeting 4, June 1, 2020

Readers are invited to a Zoom Town Hall to discuss The Lyons Report. Our guest speaker will be Brig. (ret) Anthony S. Paphiti, former Director of Service Prosecutions and (still) editor of Aspals Legal Pages.

The Lyons Report can be found here. Please try to have a look before Monday. There will be time for questions and answers and general discussion following Brig. Paphiti's remarks.

Please also give some thought to subjects you would like to put on the agenda for future Town Halls.

Topic: Global Military Justice Reform Town Hall 4 (The Lyons Report)
Time: Jun 1, 2020 09:00 AM Eastern Time (US and Canada)

Join Zoom Meeting

Meeting ID: 886 7520 4135
Password: 170145
One tap mobile
+16468769923,,88675204135#,,1#,170145# US (New York)
+13017158592,,88675204135#,,1#,170145# US (Germantown)

Dial by your location
        +1 646 876 9923 US (New York)
        +1 301 715 8592 US (Germantown)
        +1 312 626 6799 US (Chicago)
        +1 346 248 7799 US (Houston)
        +1 408 638 0968 US (San Jose)
        +1 669 900 6833 US (San Jose)
        +1 253 215 8782 US (Tacoma)
Meeting ID: 886 7520 4135
Password: 170145
Find your local number:

See you on Monday!

A stay in Jamacia

Hon. Marva
A single judge of the Court of Appeal of Jamaica has stayed the civilian trial of three Jamaica Defence Force soldiers who claim the benefit of belatedly-issued "good faith certificates" in connection with a controversial shooting death ten years ago. The May 5, 2020 decision in chambers by Judge Marva McDonald-Bishop came in Tinglin v. Clarke, [2020] JMCA App 24. She found that the soldiers stood a better than fanciful chance of success on the merits. Presumably the full Court of Appeal will now address the merits of the soldiers' claim that they are entitled to the benefit of the certificates, which would in all probability mean they would be acquitted.

Surely it seems problematic to permit the authorities to issue good faith certificates six years after the fact, but Judge McDonald-Bishop was skeptical that doing so violated some specific provision of the Constitution.

News coverage in The Gleaner can be found here.

Wednesday, May 27, 2020

Prof. Brenner Fissell is newest contributor

Prof. Brenner M. Fissell
Hofstra Law School
Global Military Justice Reform welcomes new contributor Associate Professor Brenner M. Fissell of Hofstra Law School. He previously worked at the Military Commissions Defense Organizations and clerked for Chief Judge Scott W. Stucky of the U.S. Court of Appeals for the Armed Forces.

Racial disparities in military justice: a FOIA saga

Protect Our Defenders has worked for years to obtain data about racial disparities in the administration of military justice. The latest report on its efforts --  Federal Lawsuit Reveals Air Force Cover Up: Racial Disparities in Military Justice, Part II, May 2020 -- has just been made public. Excerpt:
POD’s initial FOIA request seeking racial disparity data almost immediately resulted in the Air Force creating its racial disparity working group in an apparent effort to mitigate its dismal record. Even though the working group found “consistent” and “persistent” racial disparities, the Air Force does not appear to have acted in any way on the recommendations of the working group. Despite the fact that the working group consisted of members who worked for the Chief of Staff, Air Force leadership apparently
showed little interest in its results. If they did, they chose not to implement any reforms. Instead, the service engaged in a multi-year effort to keep the findings and recommendations from the working group hidden. It remains to be asked why the Air Force fought so hard to keep the information from the public, and at what level were those efforts being directed.
The report includes links to two decisions of the U.S. District Court in POD's FOIA litigation. 

Two important ICJ reports: Lebanon's military courts and trials of civilians

Global Military Justice Reform at times learns about pertinent developments only well after the fact. A current example is this excellent May 2018 briefing paper by the International Commission of Jurists on Lebanon's military courts, which violate human rights standards in a host of ways.

The report was "produced in the frame of the Action entitled 'The independence of the judiciary in Lebanon: a social priority' funded by the European Union and implemented by The Legal Agenda in partnership with the International Commission of Jurists, and the Siracusa International Institute for Criminal Justice and Human Rights."

In order to significantly reinforce judicial independence in Lebanon in conformity with international standards, the ICJ calls on the Lebanese authorities to ensure that the jurisdiction of its military courts be restricted to cover only military-related offences committed by members of the military. In addition, in order to comply with Lebanon’s obligations under the ICCPR and the Arab Charter on Human Rights, the Code of Military Justice must be amended so as to ensure that the proceedings before military tribunals respect fair trial guarantees. These include the protection of the rights to defence and equality of arms, the right to a public hearing and to a fully reasoned judgment, and the right to appeal of any conviction and sentence to a higher independent and impartial tribunal. Implementation of these recommendations for reform are key steps to bringing the Lebanese military justice system more in line with Lebanon’s obligations under the ICCPR and will enhance respect for the rule of law in the country.
A second example, also from 2018, is the ICJ's Spanish-language study of the trial of civilians by military courts. From the press release:
The report presents jurisprudence and doctrine on the trial of civilians by military tribunals, developed by treaty bodies and special human rights procedures of the United Nations, the European Court of Human Rights, the African Commission of Human Rights and the Peoples and the Court and the Inter-American Commission on Human Rights.

The report also presents the main trends in the field of competence of military tribunals, in light of national developments. In addition, the report analyzes the current situation of military tribunals in Brazil, Guinea, Mexico, Portugal, Tunisia and Venezuela.

Finally, the report reproduces the main international law and standards related to the right to be judged by an independent, impartial and competent tribunal, as well as to the trial of civilians by military tribunals, adopted by intergovernmental systems, associations of judges and international conferences of experts.

Factual sufficiency on the congressional chopping block

Congress is considering getting rid of the longstanding but rarely-exercised power of the service Courts of Criminal Appeals to overturn convictions for factual insufficiency. John M. Donnelly has the story here in Roll Call.

Article 66(d)(1), UCMJ, currently provides:
. . . The Court may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as the Court finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, the Court may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses.

Tuesday, May 26, 2020

COVID-19 and military justice (South Africa)

In response to the North Gauteng High Court's Khosa decision, the South African National Defence Force has issued rules to govern the conduct of its personnel in COVID-19-related law enforcement operations. The respected defenceWeb site writes:
African Defence Review (ADR) director Darren Olivier points out the Notlela code does not mean the national defence force did not previously have a code of conduct.

“The High Court determined a ‘deployment-specific’ code be drawn up in addition to existing rules,” he said.

According to retired SA Army colonel David Peddle, the landward force of the SANDF has “a comprehensive booklet on rules for opening fire and the legal aspects of urban deployments in South Africa”.
*  *  * 
Olivier maintains the guidelines in the Notlela code are not good enough “to meet the intent of the ruling (by Judge [Hans] Fabricius)”.

“They contain errors, still don’t provide sufficient guidance to soldiers in difficult situations and have the appearance of being rushed,” he told defenceWeb adding “further revision is needed”.
It is unclear whether the government will appeal the High Court's decision. It may also ask Judge Fabricius to reconsider or modify the judgment in light of this latest issuance.

Monday, May 25, 2020

Three thoughts for Memorial Day

Ball's Bluff National Cemetery
Leesburg, Virginia
No, it's not military justice, but three thoughts come to mind this Memorial Day. 

First, of course, is the dreadful toll that COVID-19 has taken on older people, notably (today) including those who were living in state veterans homes in Massachusetts and New Jersey.

The second and third thoughts are related and prompted by items in The New York Times. Yesterday's editorial page was (unusually) given over to a single editorial titled Why Does the U.S. Military Celebrate White Supremacy? The piece question the naming of so many major U.S. military installations in honor of Confederate generals (Fts. Bragg, Hood, Gordon, Benning, Jackson, Pickett). The subtitle: "It is time to rename bases for American heroes — not racist traitors."

Today, the paper has an equally thought-provoking article about the paucity of persons of color in the highest military ranks.

Zoom discussion of global military justice reform and military litigation in India

Mark your calendars for a zoom session at 9:00 a.m. US East Coast time on May 31, 2020. The session is sponsored by Beyond Law CLC and Panjab University Chandigarh's Institute of Legal Studies. Tune in and be ready with questions.

Please share the poster with friends.

Sunday, May 24, 2020

COVID-19 and military justice (Guantánamo)

National Public Radio reports on the impact of the COVID-19 pandemic on military commission proceedings at Guantánamo Bay, Cuba:
Guantánamo has had at least two cases of COVID-19: one in a sailor at the U.S. naval base on the island and a second in the guard force that oversees its prisoners, which include Khalid Sheikh Mohammed, alleged mastermind of the Sept. 11, 2001, terrorism attacks.

The U.S. Department of Defense said that for security reasons it will not say whether there have been additional positive diagnoses at Guantánamo, but because of the pandemic all court hearings have been canceled since mid-March and are not scheduled to restart until late July.

In addition, the facility is subject to health safety measures such as social distancing and the mandatory wearing of masks and gloves when near prisoners. There is also a 14-day quarantine for anyone arriving on the island, which has basically halted court travel because Guantánamo lawyers must also quarantine for 14 days upon returning to the U.S., turning even a short trip into a monthlong commitment.
Will this delay be the proverbial straw that breaks the camel's back? Not likely, barring a change in U.S. policy.

COVID-19 and military justice (South Africa)

In the aftermath of the High Court's ruling in the Collins Khosa lockdown brutality case in South Africa, one noted analyst has this comment on the need for a special code of conduct when defence force personnel aid the police in law enforcement:
“I think the additional problem that can creep in here is soldiers are not taught and trained about how to proceed with an arrest in a legally correct manner. No quick course will change that while lengthy training is a pointless exercise for troops not intended to be police officers.

“The solution is to have a police officer with every section and make him responsible for handling infractions, with soldiers there for protection and muscle when required, acting on the request, directive and instruction (not command) of the police officer.”
How practical is this solution?

Prof. Cathleen Powell (Cape Town) has this insightful essay on The Conversation. Excerpt:
The rule of law sets requirements both for the content of law and for the process of its application. It has eight specific aspects, on which most legal theorists agree. 
A society complies with the rule of law if
(1) there are generally applicable rules, and
(2) the rules are publicised,
(3) understandable, and
(4) not retroactive.
(5) The rules do not contradict each other,
(6) they are relatively consistent over time,
(7) compliance with them is not physically impossible, and
(8) the administration of law reflects the rules as announced. This means that the government is bound to give effect to the rules that have been publicised. 
The problem with the lockdown is not just that it violates the eighth requirement, although this particular violation is the most obvious in cases of government brutality. As the Khosa case shows, the soldiers acted beyond the powers conferred on them by law, and committed the crimes of assault and homicide. (This evidence, put before the court by eye witnesses, was not contradicted by the police or the military in the case.) 
But most of the other requirements of the rule of law are not being met, either. Many new lockdown regulations and directives have been promulgated since April, from several different government departments, and are published online in government gazettes. They have been appearing at such a rapid rate that even lawyers with expertise in this area are battling to keep track of the details.

COVID-19 and military justice (Suriname)

Desi Bouterse
President of Suriname
Remember Desi Bouterse, president of Suriname, whose 2019 20-year military court sentence is on appeal? Because of COVID-19, the appeal is on hold until June.

The country is holding legislative elections on Monday that will determine whether he gets another term as president.

Details here.

UN statement on death sentences by Libyan military courts

Xinhua News reports:
The United Nations Support Mission in Libya (UNSMIL) on Friday expressed concern over a number of death sentences issued by military courts in eastern Libya.

"We have been informed of at least 13 death sentences issued by the Benghazi High Court and four by an al-Bayda Court, in potential violation of Libya's international human rights law obligations," the UNSMIL said in a statement.

There have been reports that defendants have not been permitted to present their cases, or have evidence against them examined, and that following trials, sentences have been handed down secretly, with no written, reasoned judgements provided to defendants or lawyers, which is of deep concern to the UNSMIL, said the statement.

Another civilian to be tried by Uganda court-martial

According to this report, another civilian is to be tried by court-martial in Uganda. This time, it's for posing as an officer of the People's Defence Force. The charge is illegal possession of military stores. Shades of The Captain from Köpernick.

In other proceedings, a lower military court sent a genuine member of the People's Defence Force to prison for taking money under false pretenses from two priests. He promised, among other things, to provide them with UPDF water for the mission hospital they run. Larceny of water? Indeed: the Editor once prosecuted the petty officer in charge of a New England lighthouse for stealing 400 gallons of fresh water, "military property of the United States, of some value." Long story. I'll tell you over a drink. (Incidentally, the accused's name was, appropriately, Glass.)

Saturday, May 23, 2020

Memorial Day 2020

Global Military Justice Reform sends warm greetings for a healthy, safe and meaningful Memorial Day Weekend.

Admiral Thad Allen's stirring remarks at the May 20, 2020 U.S. Coast Guard Academy's Commencement are worth viewing at this time. Admiral Allen was the 23rd Commandant of the Coast Guard.

'Posse comitatus' in South Africa

Things are getting dicey in South Africa.  Population centers are on general lock-down as part of the Covid-19 response.  And the South African National Defense Forces (SANDF) have been tasked to assist the police with enforcing it: Operation NOTLELA (“lock” in Sesotho).  

Expectedly, incidents of heavy-handedness have occurred.  At least one has made it to the North Gauteng High Court in Pretoria: a township resident allegedly was tortured and killed by soldiers and police when caught drinking in the garden of his home. 

The judge criticized the Defense Minister and National Police Commissioner, saying the “government had not clearly condemned acts of abuse,” and ordered the issuance of a code of conduct to guide the lock-down operations:  “No proper guidelines have as yet been issued in my view to inform even SANDF members, let alone civilians how security forces may enforce the lockdown, including when and to which extent they may use force.”  See defenceWeb of 18 May 2020. 

The National Police Commissioner has since issued a directive, stating “there can simply be no justification for torture, ever.”  The defense establishment, however, apparently does not see the need for any special directives or training.  At least not according to a “respected defence analyst” who declares “there’s no need for any ‘code of conduct and operational procedures regulating conduct’ of components of the security forces during the State of National Disaster.”  In his view, this is because “in the military it is a function of non-commissioned officers to continuously monitor soldiers’ actions. Any properly trained group of soldiers must be instructed by their officers on how to behave in executing this role and be monitored and corrected as required by their NCOs.”  See defenceWeb of 22 May 2020. 

The “analyst” does concede that “the actual execution of an arrest [is] a problem area – ‘especially when the person does not want to be arrested’”, and suggests that “the solution is to have a police officer with every section and make him responsible for handling infractions, with soldiers there for protection and muscle when required, acting on the request, directive and instruction (not command) of the police officer.”  Id. 

Let’s hope that the South African Ministry of Defence and the SANDF leadership quickly turn their attention, and seriously, to drafting and implementing a meaningful directive for soldiers deployed on Operation NOTLELA – and to ensuring that such considerations be part of SANDF operational orders going forward.

Cognizant that the facts and circumstances of their situation are particular to South Africa, the SANDF nevertheless could do well to consult the American experience.  This led to the prohibition of blanket and un-tempered use of armed forces for law enforcement purposes, which was enshrined in the Posse Comitatus Act of 1878, 18 U.S. Code § 1385.  Throughout the years since, Congress has from time to time reaffirmed the continued importance of the Act, most recently in 2018.  See 6 U.S. Code § 466.  The Armed Forces, in turn, issue proper guidelines to their components.  See United States Joint Chiefs of Staff, Joint Publication 3-28 of 29 October 2018, Defense Support of Civil Authorities, particularly its Chapter III, “Supporting Civilian Law Enforcement Agencies.”

COVID-19 and military justice

Has the military justice system in your country had to make allowances for the coronavirus pandemic? If so, please post a comment here, with details and links to any pertinent documents. (Real names only, please.)


Friday, May 22, 2020

CDS-imposed limitations on convening courts-martial

The COVID-19 pandemic has been forcing many institutions, public and private, to revisit how they function.  Courts are no exception, and across Canada, courts, and the Chief Justices and senior judges who manage them, have had to struggle with ensuring that the courts continue to serve the needs of, and deliver justice to, the Canadian people.

Courts martial and the military judges who preside at them are in a similar circumstance.  Putting aside the fact that, two months after the retirement of the Chief Military Judge of the Canadian Forces, we are still waiting for the Governor in Council to appoint a new Chief Military Judge, restrictions arising from precautions relating to COVID-19 are presenting a particular challenge to courts martial. 

Specifically, convening courts martial is not solely dependent upon the same considerations with which civilian Chief Justices (and Regional Administrative Judges) must contend; when issuing guidance for court martial processes, the Acting Chief Military Judge is at the mercy of direction issued by the Chief of the Defence Staff (CDS).  Thus, the manner in which the military judiciary fulfills its roles and obligations is subject to direction by a member of the executive who may have priorities that are distinct from ensuring that the rule of law is respected.  This brings into question whether the military judiciary is truly independent.

Some practitioners and scholars who concern themselves with military justice in Canada may have been of the view that the independence of the military judiciary is a settled matter.  However, recent judgments at court martial, and a recently filed Notice of Constitutional Question regarding judicial independence, combined with some tangible impacts of COVID-19 on the Code of Service Discipline, might suggest otherwise.

Global Military Justice Reform contributor Rory Fowler poses some of these questions, and some relevant factors, in a recent blog article, here.

Wednesday, May 20, 2020

Colombian decree extending military service for 3 months challenged as unconstitutional

Constitutional Court of ColombiaIn Colombia, obligatory military service has been extended for three months because of the emergency caused by the novel corona virus.  Under Colombian law, all emergency measures pass automatically to the Constitutional Court  for review.  DeJusticia and the Association for Civil Rights (Asociacion por los Derechos Civiles), two non-governmental organizations (NGOs), have studied decree 541 of April 15, 2020 and are arguing that the decree  is unconstitutional because it bears no relation to the health emergency.  According to the Defense Ministry between 1993 and 2015, 1,402.209 young people have served in the Armed Forces, which is obligatory in Colombia.

The NGOs presented a brief to the Court affirming that not only is the extension unconstitutional but it is also arbitrary.  The extension of time of military service does not bear a direct and specific relationship with the state of emergency, which concerns the propagation of the corona virus in the Colombian health system and measures of mitigation.  In addition, they charge that the measure "implies a limitation to the rights of free development of one's personality" (Art. 16 Constitution) and the freedom to choose a profession or occupation (Art. 26).  It also constitutes an extension of the continuing risk to the right to life.

The State, for its part, is defending the measure, arguing that the decree directly confronts the challenge of maintaining the effective functioning of the Armed Forces, in favor of guaranteeing public security throughout the national territory, maintaining the conditions necessary for the exercise of rights and liberties, realizing campaigns of humanitarian aid and supervising strict compliance with sanitary measures.

For your bookshelf

Lexington Books has published a new volume by Professor Pauline Collins (Southern Queensland): The Military as a Separate Society: Consequences for Discipline in the United States and Australia. "Pauline Collins argues that a different system of military criminal investigation and discipline outside the civilian justice system enables the military to operate like a coterie and can lead to a failure in the requisite moral standard of behavior required of military personnel and maintaining civilian institutional control. Collins contends that the justifications for separate treatment weaken both the military's reputation and the practice of civilian control of the military as well as lead to an overall decline in morality and values in a democratic society."

Monday, May 18, 2020

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:

CONDUCT OF THE JUNE                                      NOTICE

     On May 5, 2020, the Court provided notice of its readiness to conduct hearings in a social distancing-compliant manner, and likewise provided notice of its consideration of holding the June hearings by teleconference.

     Upon consideration of the matter and in view of the continuing public health considerations, the Court has determined that the June hearings will be conducted by teleconference. The Clerk will coordinate with counsel sitting first chair in these cases to pass along the necessary communications access information and procedural matters to conduct the hearings by teleconference.

     The Court again thanks the bar and the parties in the impacted cases for their continued flexibility in the scheduling and conduct of these hearings.

                                                                                  For the Court,

                                                                             /s/ Joseph R. Perlak
                                                                                  Clerk of the Court

     May 18, 2020

Sunday, May 17, 2020

First waiver to Trumpian DOD transgender prohibition granted

The Acting Secretary of the Navy recently granted a surface warfare officer the first waiver within the Department of Defense (DOD) to DOD's remarkable (remarkable, that is, in its depth of treachery to transgender personnel honorably serving the military, never mind its sheer stupidity) 2018 policy prohibiting service of transgender personnel "if they have been diagnosed with gender dysphoria or have yet to transition to an identified gender." The 2018 prohibition does, at least, grandfather in those whose diagnosis or transition occurred prior to the policy going into effect, and allows for case-by-case waivers -- and this is the first such waiver granted since the policy went into effect in spring 2019.

But before you totally blame Trump for the 2018 about-face to President Obama's 2016 policy that rightly allowed transgender personnel to openly serve our nation, there are others to share the blame
 -- like Secretary "I not-so-secretly wish all those in uniform were heterosexual men" Jim Mattis, who chartered this lovely gem of a report that falls back on the old tropes of "risks" to national security if transgender personnel are allowed to openly serve.

Yeah, we've heard fear-mongering of "risks" to the armed forces before,  like the risks of allowing African Americans to serve, of allowing women to serve, of allowing homosexuals to serve.... The real risk to U.S. national security is the continued ignorance of those like Mattis and Trump who fail to capitalize on the amazing contributions all such Americans can make in uniform.

Good on acting Navy Secretary James McPherson for rising above such ignorance and recognizing the incredible contributions this naval surface warfare officer will continue to make to U.S. national security  -- and good on the officer for have the fortitude to sue DOD in the interim.

Friday, May 15, 2020

COVID-19 and military justice (South Africa)

Judge Hans Fabricius of the Gauteng Division of the High Court of South Africa in Pretoria today handed down his ruling in Khosa and Others v Minister of Defence and Military Veterans and Others (21512/2020) [2020] ZAGPPHC 147 (15 May 2020). This was the litigation that arose out of the death of Collins Khosa in the course of police and Defence Force COVID-19 lockdown operations. The decision orders, among other things, that the personnel who were present during the incident should be suspended while the case is investigated. It also requires personnel to be trained in their duties under the Constitution. The ruling is subject to appellate review.

Retiree prosecution -- Canada

The National News (Canada) tells us that,
Today, the Canadian Forces National Investigation Service (CFNIS) announced that sexual assault charges have been laid against a retired military member.
The member, Sgt. Robert Kohlsmith, was charged with sexual assault contrary to National Defence Act, pursuant to the Criminal Code of Canada on May 11.
There are have been several of these type prosecutions in the U.S. over the last few years--almost exclusively sexual assault related.

Thursday, May 14, 2020

Task and Purpose article takes on Marine Corps senior officer misconduct

Paul Szoldra is an enormously talented young writer and former Marine infantryman, now Editor in Chief of the national security news page Task and Purpose (you may recognize Paul's name as the founder of the military's version of The Onion -- "Duffelblog").  He has written a provocative piece on senior officer misconduct in the Marine Corps which has prompted substantial discussion in the officer community.  

Szoldra capably chronicles the case of the relief for cause of Colonel Larry Miller, former commander of the Marine Corps Wounded Warrior Regiment, organized to "[provide] leadership and [ensure] compliance with laws and Department of Defense (DoD) regulations related to the support, recovery, and non-medical care of combat and non-combat wounded, ill, and injured (WII) Marines, Sailors attached to Marine units, and their family members in order to maximize their recovery as they return to duty or transition to civilian life."

Wounded Warrior Regiment has had a bad run of luck with commanders lately -- in 2016, former commander Col Shane "Rhino" Tomko was sentenced at a general court-martial for various personal behavior offenses to 60 days' confinement and a $10,000 fine.  (Blogger's note:  Colonel Tomko was a classmate at Basic Officer Course 5-92 and I counted him as a friend, at least until this happened.)  

WWR is one of a handful of commands for which commanders are personally placed by the Commandant of the Marine Corps.  Tomko was installed by the 35th Commandant, General Amos, and Miller was given command of WWR by the 38th Commandant, General Neller.  The non-consecutive string of failures of commanders suggests these units ought to be placed by command screening boards, like the vast majority of other O-6 commands in the Marine Corps.  The sanctity of the duty to wounded and recovering Marines, sailors, and their families demands an organization commanded by officers who have been screened through an exacting process, rather than placed through connections and force of personality (Tomko, in particular, was a gregarious force of nature.)

The larger issue is one of toxic commanders and leaders generally.  The scuttlebutt around the Corps is that behavioral issues with Miller and Tomko were ENTIRELY predictable by their reputations among peers and known indiscretions, begging the question of why no one ever intervened to moderate their behavior in the 25+ years prior to their assuming O-6 command?  And how were their reporting seniors completely oblivious to their character issues for all that time, or if they knew of the character issues, why did they keep writing performance evaluations that not only kept these officers in the game for promotion, but also for O-5 and O-6 level command?  Szoldra focuses on a single data point -- the relief of Larry Miller -- and one must resist the temptation to make too much of an anecdote, but Miller's relief is not an outlier:  it has become a regular occurrence.

Since I have the power of the bully pulpit, I want to surface an important issue with regard to command reliefs:  the absolute opacity with which the services treat command reliefs.  The services almost always hide behind the old saw of "loss of trust and confidence in ability to command" which can be code for incompetence, crimes of moral turpitude, modest misconduct, or even one-off occurrences which may sometimes be beyond a commander's control.  The service position has always been that the reasons behind relief are protected from disclosure by the Privacy Act.  I'm not sure that's a faithful reading of the Privacy Act, and I'm pretty confident the services could be more transparent without violating the Act.  Moreover, if, in the eyes of DOD OGC, the Act really does constrain the services from telling the public the reasons that commanders, entrusted with hundreds or thousands of young American lives, and millions to billions of dollars in gear, equipment, and program costs, are relieved, then they should seek an exception in the annual NDAA modifying the Privacy Act, creating an exception to provide transparency in reliefs for cause and administrative punishment of commanders and OICs.  Commanders who don't accept that level of transparency don't have to accept command, and there will be a raft of equally capable alternates willing to roll those die.  When commanders are fired, in my view, DOD owes the public financing their operations insight as to the reasons, and the Department owes other commanders information on where exactly the lines are that will allow you to keep your job or get you fired.  And they owe subordinates the reasons so that the young servicemembers know there is real accountability.

Here's hoping the new CO can get the WWR command culture under control, just as the Commandant has a responsibility to study the trend in reliefs and figure out a way to screen prospective commanders more effectively.  A good place to start, after a scientific and peer-reviewed study of Marine commander reliefs for the past 10 years, might be to take a page out of the book of the new Army screening program.

Colombian Army Chief under investigation for embezzlement

Eduardo ZapateiroIn December 2019, President Ivan Duque of Colombia named Eduardo Zapateiro (R) the new Commander in Chief of the National Army, replacing Nicacio Martinez (L).

Alejandro Ramirez, the former head of  Military Criminal Justice, announced that his surprising departure probably had something to do with the complaints and investigations that he had been conducting that were "not appreciated by certain people."

One of these is an investigation into a  case of embezzlement being conducted against the Commander of the Army, Eduardo Zapateiro.

Ramirez issued a press communique last Wednesday, the day of his departure, in which he emphasized that he always acted correctly, pursuant to law, in his post.

Ramirez stated that he could not provide details about the investigation because that would violate the secrecy of the proceedings, but, he said, I am a lawyer and I respect the independence and autonomy of our judges.

Poaching and human rights

Talk about mission creep: Uganda's general court-martial is now trying poachers. Details can be found in this report from SoftPower News.

Human rights norms, including the African Charter, strongly disfavor the trial of civilians by military courts. Uganda is one of the world's leading violators of this principle.

Tuesday, May 12, 2020

COVID-19 and military justice (Luxembourg)

HRH Henri
Grand Duke of Luxembourg
Yes, Luxembourg. Military court proceedings are covered by the current COVID-19-related suspension of judicial proceedings under the governing Grand-Ducal Regulation. A summary can be found here.

Crunch time in Pakistan

Proceedings are currently underway in both the Supreme Court of Pakistan and the Peshawar High Court on review of courts-martial of hundreds of civilians. Today the government failed to submit the records of trial of 290 petitioners in the High Court, prompting the threat of an order releasing them on bail. The government has sought a stay from the Supreme Court. More to come, but it appears that a judicial moment of truth is nearing in one or both of these courts. There are details in this piece in the Tribune Express.

COVID-19 and military justice (Lebanon)

Protesters in Lebanon are objecting to the government's reliance on COVID-19 as a reason to keep the courts closed (and their fellow-protesters in military detention). Details here. "One of the spokespersons for the protesters present called on the magistrates not to "justify the detentions by closing the courts and to set up procedures by electronic means to allow the release of these detainees, while justice is almost at shutdown in the country due to the coronavirus pandemic."