D.C. Circuit reminds military administrative boards: we're watching

E. Barrett Prettyman Courthouse,
Washington D.C.

For lawyers assisting U.S. servicemembers and veterans, some of the most challenging cases involve efforts to correct errors by military law enforcement agencies. These agencies have powers to list a person as a suspect (titling) and entered into law enforcement databases (indexing). These decisions can be fraught with error yet difficult to undo, and can bring a host of lifelong consequences to the wrongfully titled.

The law enforcement agencies have their own procedures for expungement and correction of records based on service regulations, but these reviews are done in-house and the agencies enjoy relative independence from oversight bodies of the services they support such as Inspectors General. As a result, and not surprisingly, such law enforcement reviews rarely grant relief.

Applicants can also petition the service boards for correction of military records ("Boards"). These Boards are comprised of civilians vested with authority to correct errors or injustices -- a broad mandate that includes review of law enforcement titling errors. Critics contend that these boards are too overworked to give proper consideration to individual applications, make it hard for in-person hearings, and enjoy too-cozy relationships with the services from which they are ostensibly independent.

Those denied relief from a Board can sue in federal district court, and decisions there can be reviewed by the United States Courts of Appeals. Last week, the Court of Appeals for the D.C. Circuit decided such a case, Code v. McCarthy, No. 18-5122 (D.C. Cir. 2020).

This issue in Code was whether the Board erred in declining to expunge Army law enforcement's titling decision for false official statement and larceny when the member presented to the Board a clear factual record that the titling decision was erroneous.

The Court concluded that the Board's decision was arbitrary and capricious and violated the Administrative Procedure Act's requirement that rulings be based on "reasoned decisionmaking."

The decision is a reminder that federal courts expect administrative regularity from military adjudicative bodies whose decisions affect procedural and substantive due process rights.

Two topics that were not in the opinion:

First, no mention of judicial deference to military decision-making. The Court here reviewed an administrative process in the Pentagon, not an action in a combat zone. This case also involves due process rights outside the well-established scheme of judicial review of criminal trials brought under the Uniform Code of Military Justice. Military administrative boards should be on notice: Article III courts may have the final say for their cases.

Second, the D.C. Circuit's opinion did not even need to unsheathe here its powerful line of authorities regarding expungement as an equitable remedy for government error. See Abdelfattah v. U.S. Dep't of Homeland Sec., 787 F.3d 524, 537 (D.C. Cir. 2015) ("expungement of government records is an equitable remedy that may be available under certain circumstances to vindicate constitutional and statutory rights."). Instead the Court reviewed the issues as the Board saw them using the Board's own standards.

The case was decided by Judges Tatel, Pillard, and Wilkins. Opinion by Judge Pillard. 

CAAFlog redux

U.S. Court of Appeals
for the Armed Forces
Washington, D.C.

For those who have followed CAAFlog for news and discussion of U.S. military case law you will know it has been "down" for several weeks.

You can now find quality information about U.S. military justice at

www.caaflog.ORG

CLC webinar on global military justice reform and military litigation in India

Beyond Law-CLC has posted this video of a May 31, 2020 two-hour panel discussion of global military justice reform and military litigation in India. It was co-sponsored by Beyond Law and Panjab University Chandigarh's Institute of Legal Studies. The moderator was Vikas Chjatrath. Panelists were advocates Aishwarya Bhati and Maj. Navdeep Singh and the editor of this blog.

CAAFlog 2.0

Here is some really good news for military justice mavens in the United States: Prof. Brenner M. Fissell (Hofstra) has launched CAAFlog 2.0. The web address is caaflog.org. The site is still being built out with useful links.

A Dear Readers note says:

Many of you may have noticed that over at CAAFlog.com, there have been no new posts in quite a while, and recently the site itself went totally blank. The reason for this is that CAAFlog.com has now moved (temporarily) to CAAFlog.org for technical reasons, and because CAAFlog’s founders asked me to take over as editor-in-chief of the website. I am a law professor at Hofstra University in Long Island, but in a former life I was a law clerk to Chief Judge [Scott] Stucky and an appellate defense counsel at the GTMO commissions. My academic research focuses on substantive criminal law, especially the assessment of non-traditional criminalization institutions, such as local governments and administrative agencies.

But who I am is not really that important. CAAFlog is not a single person—it is a large community of lawyers, all interested in the rational and just development of military law. To that end, CAAFlog will now be a far more open forum for all interested voices. There is a link above for the submission of guest posts, and I invite anyone with something to say to submit the form (brevity is encouraged, meaning < 1,000 words). I am also working on installing a true Reddit-style “Forum” feature.

Beyond openness of voices, there will also be more openness of content. While we will have interns and research fellows keeping up with reporting on new developments and crunching cases as they come in, we will aim to have more higher-level analysis, and also opinion pieces.

Thanks for reading, and please click “Masthead” to see who else will be a part of the team.

Best, 

Brenner Fissell 

The About page adds:

CAAFlog is an online forum dedicated to the topic of military law–especially military criminal law. Founded in 2004 by Marcus Fulton (who came up with the name), Mike Navarre, Jason Grover, and Dwight Sullivan, CAAFlog has grown to become the primary space in which military justice issues are discussed online.

BZ to Brenner, who is also a new contributor to Global Military Justice Reform.

Ohlin & Farley on Military Commission "Hostilities"

Prof. Brenner M. Fissell
Hofstra Law School

An online conversation has sprung up around a recent ruling by the former 9/11 trial judge; the judge reaffirmed a prior ruling that the existence of “hostilities” for military commission jurisdictional purposes was a nonjusticiable political question. Benjamin Farley, defense counsel for one of the 9/11 defendants (Ammar al-Baluchi), criticized this decision as erroneous, citing past cases in which courts (mostly international) have addressed this question. Prof. Jens David Ohlin just yesterday put out a response, again criticizing the illogic of the jurisdictional ruling, but also arguing that pre-9/11 acts would be punishable by military commission if the acts were linked by inchoate liability to 9/11 itself.

Prof. Ohlin’s post brought out a point of precision in the issue that triggered, in my mind, an additional criticism of the jurisdictional ruling. As Prof. Ohlin points out, the existence of hostilities is both a jurisdictional fact as well as an offense-element. Consider the text of one offense Mr. Farley’s client is charged with, Attacking Civilians, 10 U.S.C. §950t(2): “Any person subject to this chapter who intentionally engages in an attack upon a civilian population as such, or individual civilians not taking active part in hostilities, shall be punished….” Persons subject to the chapter, of course, are those who, among other things, “engaged in hostilities against the United States….” 10 U.S.C. §948a(7)(A). Prof. Ohlin points out the problems of treating jurisdiction as a political question, but one might think of even greater problems when reaching the offense-element inquiry. Offense-elements, after all, have constitutional status, in that the Due Process Clause (assuming it applied) requires that the prosecution prove them beyond a reasonable doubt. In re Winship, 397 U.S. 358, 361 (1970).

But if the existence of hostilities is a nonjusticiable political question for jurisdictional purposes, how can it be something else for offense-element purposes, and how can something nonjusticiable be “proven?” I suppose that depends on the reasons for the nonjusticiability. The Supreme Court listed five categories of political questions in Baker v. Carr, 369 U.S. 186, 217 (1962), but the Commission’s prior ruling appears to select only one basis: “[A] textually demonstrable constitutional commitment of the issue to a coordinate political department….” Id.; AE502FFFF at 4 n.17 (citing textual commitment of “foreign policy and the conduct of war” to political branches). If this textual commitment prevents judges from answering the question during the jurisdictional inquiry, then why should it not similarly prevent court members from answering it at the liability phase?

Speaking of racism in America . . .

Helene Cooper of The New York Times published a disturbing and timely piece today on the extreme paucity of minorities (and women) in the upper echelon of the U.S. military, as well as a seeming sharp recent rise in racism within the U.S. armed forces. Reading this with images of George Floyd's apparent murder at the hands of white police officers in Minneapolis this week flashing on the TV screen in the background ... sure seems to reveal to this contributor a nation sick on many levels, with its executive leadership feeding off such depravity and fueling its flames.

COVID-19 and military justice (Guantánamo)

Carol Rosenberg, dean-for-life of the military commissions press corps, has this report in The New York Times about the COVID-19 situation at Guantánamo. Excerpt:

A group of senators has written the defense secretary expressing concern about the potential for a “significant outbreak” of the coronavirus at the Pentagon prison at Guantánamo Bay, Cuba, seeking answers to how the military is safeguarding the 40 prisoners there and the American forces responsible for them.

In the letter, circulated by Senator Elizabeth Warren and signed by 13 other Democrats and Senator Bernie Sanders, an independent, the lawmakers cited “the lack of a comprehensive medical infrastructure” at the base, which sends all residents except the detainees to health care facilities in the United States for complex or protracted medical care.

"The military," she writes, "has said it has declined to test any of the detainees for the virus because none of them meet the criteria from the Centers for Disease Control and Prevention."

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
HEARINGS BY
TELECONFERENCE
(SECOND UPDATE)

          By Notice on May 18, 2020, the Court committed to holding the June hearings via teleconference. Other alternatives were either impracticable or unsafe in light of both COVID-19 and local and federal guidance in response to it. By separate correspondence, specific instructions were communicated to the impacted counsel to enable their appearance by teleconference. This format brings advantages from a public health perspective but comes with technical limitations.

          The Court is committed to transparency in the military justice system. To that end, and consistent with past practice, the Court will post the day’s oral argument audio on its website as soon as is practicable, targeting an hour after the completion of hearings.

          At the present time, the Court is unable to offer a live feed of the arguments due to limitations on licenses, bandwidth and the systemwide blockage of common outlet websites by our service provider.

          The Court thanks the bar and the parties in the impacted cases, as well as the general public, for their flexibility in the conduct of these hearings.

                                                                            For the Court,

                                                                     /s/ Joseph R. Perlak
                                                                           Clerk of the Court
          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
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Meeting ID: 886 7520 4135
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A stay in Jamacia

Hon. Marva
McDonald-Bishop

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.

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."

Excerpt:

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.

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.

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.

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.)

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.)

Thanks!

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.

Colombian decree extending military service for 3 months challenged as unconstitutional

In 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.