Tuesday, June 30, 2020

Transparency deficit in Myanmar military justice

After initially denying the allegations, the military started court-martial proceedings in September, admitting there had been "weakness in following instructions" in the village.

The commander-in-chief's office announced Tuesday the court-martial had "confirmed the guilty verdict" and sentenced three officers.

No details were provided on the perpetrators, their crimes, or sentences.

From this article about a Myanmar court-martial
arising out of the attacks on the Rohingya minority

COVID-19 and military justice (Spain)

The pandemic continues to make military justice news. In Spain, three members of the Guardia Civil -- a constabulary in the Interior Ministry but subject to military justice -- are facing disciplinary action for WhatsApp comments faulting their superiors for taking inadequate safety measures.

This article provides a useful summary of recent Civil Guard disciplinary controversies. The professional association believes Guardia personnel should not be subject to the Military Criminal Code. Excerpt (modified Google Translate translation):
There are precedents for convictions affirmed by the Military Chamber of the Supreme Court in this regard. Thus, last March the court upheld a nine-month sentence awarded to a civil guard of the Valencia Command for the crime of "insulting a superior," to whom he referred in a "high tone of voice" and in a "little respectful" way. The events date back to May 28, 2016 when the civil guard reprimanded a chief patrol corporal for leaving an area with sewage where a possible ecological crime could have occurred.

This agent used a "high tone of voice" and a "disrespectful manner," says the decision. He told the corporal he was a "damn inept" or "useless shit."

In 2015, another civil guard entered the Madrid prison of Alcalá Meco to serve four months for the same crime. The Supreme Court had affirmed the sentence imposed for shouting at his boss: "[homophobic term omitted], you have no eggs [slang for balls], what you have to say you say to my face."

The Supreme Court considered that the phrase was "significantly offensive as injurious, insulting and unworthy" and "therefore constituted a crime." The decision also emphasized that "the crime of insulting a superior, in addition to protecting the personal dignity of the offended, protects, especially, military discipline, which governs members of the Civil Guard as military personnel."

Monday, June 29, 2020

Town Hall 5, Monday, July 6, 2020

Global Military Justice Reform's fifth Town Hall will take place at 9:00 a.m. EDT next Monday, July 6, 2020. Guest speaker Chris Griggs, will describe The Challenges of Designing a Compliant Military Justice System.

If you wish to participate, please contact the Editor. 

Any comments will be understood to reflect only the personal views of the speakers and should not be imputed to any governmental, international, or other entity.

Lawyer Eva Leal, the George Floyd of Venezuela

Eva Leal, a Venezuelan attorney who was stopped at a checkpoint by the Bolivarian National Guard on June 23, 2020 at 3:20 p.m., was accused of violating the nationwide curfew in place to prevent the spread of the coronavirus.  Officers demanded that she pay a "fine" for violating the curfew.  She reported admitted that she was out past curfew but, as a lawyer, demanded to know when the government had imposed a fine for being out past curfew.

The situation grew tense when Leal took out her mobile phone and began filming the exchange.  She suspected that there was no fine and that the officers were looking for a bribe.  She was  pulled out of her car and beaten in the street attracting an outraged crowd.  In the video the female officer can be seen pressing Leal into the ground and bashing her head.  She also seems to be putting pressure on her neck triggering comparisons with George Floyd at the hands of the police.  Members of the crowd in the video can be heard shouting "They cracked her head," "you are killing her."

The Bar Association of the State of Lara where the actions occurred issued a statement saying that the  Bolivarian National Guard had acted disproportionately in this case.  Leal was detained and will be presented to a Military Tribunal.  She denounced that at least six members of the National Guard participated in the aggression that was videotaped by other witnesses.  Maria de los Angeles Palmera, the female lieutenant of the Bolivarian National Guard seen in the video, has been detained for the crime of using force in attacking a woman on the street.

Commanders, military justice, and Congress

Today's Just Security has a post by Army JAG Corps veterans Geoff Corn, Chris Jenks and Tim McDonnell titled A Solution in Search of a Problem: The Dangerous Invalidity of Divesting Military Commanders of Disposition Authority for Military Criminal Offenses. There's a companion piece by the same authors titled Who Should Decide: Prosecutorial Discretion and Military Justice and an open letter signed by retired officers. An appendix to the open letter can be found here.

Sunday, June 28, 2020

Rebooting tribunals and recalibrating delivery of justice in India -- a joint op-ed

Live Law has today carried this detailed opinion piece authored by Justice Virender Singh, former Chief Justice of the High Court of the State of Jharkhand & Former Chairperson of the Armed Forces Tribunal, and Major Navdeep Singh, Advocate, Punjab & Haryana High Court.

Rebooting Tribunals and recalibrating delivery of justice

Justice Virender Singh


Major Navdeep Singh

One of the lesser realised aftershocks of the Emergency was tribunalisation as it exists today. A blow so hard that despite multiple efforts by our High Courts and the Supreme Court, including Constitution Benches, to wipe out the deleterious consequences, the ruinous scars remain.

Tribunals in the present form were introduced through the 42nd Constitutional Amendment when the concept was employed as a tool by the executive of the day to blunt-out judicial functioning and it was probably thought that by creating such bodies some of the subjects of litigation could be taken out of the purview of the independent judiciary with the said bodies functioning under and manned by the executive. Though the Supreme Court put its judicial weight against such blatant attempts through various landmark decisions such as RK Jain Vs Union of India 1993 AIR 1769, L Chandra Kumar Vs Union of India (1997) 3 SCC 26, Union of India Vs R Gandhi (2010) 11 SCC 1, Madras Bar Association Vs Union of India (2014) 10 SCC 1 and Rojer Mathew Vs South Indian Bank Limited 2019 SCC Online SC 1456, yet, despite such heavy dicta favouring independence of tribunals and streamlining of their functioning, the practical situation remains almost the same as it did without these judicial milestones.

In the latest Constitution Bench decision in Rojer Mathew (supra), the Supreme Court set aside the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017 promulgated by the Government which gave the Government unbridled power in the functioning and control of tribunals. The Court directed the Government to institute fresh rules in line with its decisions pertaining to independence of tribunals. New rules were then framed earlier this year by the Central Government but these carry out only superficial changes to the earlier rules and directly contravene law laid down by the Supreme Court.

Let us scan a few examples.

The new rules do not correct the current dispensation of tribunals functioning under parent administrative ministries against which they have to pass orders. This contravenes the Seven Judge Bench decision in L Chandra Kumar as well as the Five Judge Bench in R Gandhi wherein it was held that tribunals must not function under the ministries against which they have to pass orders and neither should the Members be granted facilities by such ministries. Hence, for example, the Armed Forces Tribunal today functions under the Ministry of Defence which is the first party in all litigation before it and against which it has to pass all orders. But reflecting a complete conflict of interest, the Ministry also happens to control its infrastructure, finances and staffing. Ditto is the case with the National Green Tribunal and other tribunals which have to pass orders against the Government and its instrumentalities. To top it all, complaints against Members of tribunals are also to be routed through the same Ministries. Even if it is taken only as a perception, the visible and invisible strings in such a scenario and the impact on the psyche of litigants can hardly be ignored.

The new rules also provide for the Secretary of the Ministry/Department to sit in the Selection Committee for Members of tribunals. Therefore, the person against whom orders are to be passed, also selects his/her adjudicators. This arrangement was deprecated and called “mockery of the Constitution” in Madras Bar Association. In fact, the Selection Committee has been incorporated in such a manner that it can function even in the absence of judicial representation whereas the Supreme Court has repeatedly called for primacy to judicial representatives in such selections.

In R Gandhi, the Constitution Bench had called for a minimum tenure of 5 to 7 years for Members of tribunals, however under the new rules, the tenure prescribed is 4 years with an upper age of 65 years, which also is theoretical. In case a retired High Court Judge is to be appointed, he or she gets a maximum of 3 years in chair since the retirement from the High Court is at 62 years. Practically, the tenure would be even lesser since only in rare circumstances is a Judge appointed soon after retirement. In such a situation, the non-judicial members get a longer tenure in comparison since they join tribunals at an earlier age. Interestingly, under these rules, the prohibition imposed on Members for further employment with the State and Central Governments has been removed.

Again in R Gandhi, vague qualification criterion for Members such as experience in economics, business, commerce, finance, management etc was eschewed and struck down. Still, in the new rules, the said criterion has strangely again been introduced for tribunals such as the Armed Forces Tribunal and the TDSAT, the logic and legality both of which is suspect.

For efficient delivery of justice, tribunals cannot function as stand-alone entities in vacuum without being configured with an efficient countrywide justice delivery system and our Constitutional Courts. Time and again the Supreme Court has emphasized on reducing the burden on the highest Court of the land but there seems to be no end to routine, innocuous and sometimes frivolous litigation reaching its gates. A Constitution Bench in Bihar Legal Service Society Vs Chief Justice of India 1987 AIR 38 had observed that the Supreme Court was only meant for exceptional cases and in most matters the High Court must remain the final arbiter. It was repeated thereafter in many decisions that the highest Court of the land must only interfere in Constitutional matters of general public importance or ones with pan India implication, however the Court is on the contrary burdened by mundane appeals and issues such as consumer and matrimonial disputes and direct appeals from tribunals which should not otherwise find themselves at the entrance invoking the majesty of the highest Court of the largest democracy. Today, the term “Special” in “Special Leave Petition” itself has become almost otiose and redundant. Even otherwise, access to the Supreme Court remains difficult and unaffordable for most litigants as also observed in RK Jain, L Chandra Kumar and recently again in Rojer Mathew. 

There could be a few suggested practical solutions to the conundrum:

Saturday, June 27, 2020

Did an ADF Defence Force Magistrate consider ex parte information, prejudge a case, and impose an excessive sentence?

There's been an interesting preliminary decision in Australia's Federal Court. At issue in Igoe v. Ryan, [2020] FCA 789 (June 5, 2020) (Collier J), was whether an order of a Defence Force Magistrate sentencing the accused to 35 days' confinement should be stayed pending plenary review. The opinion, which followed ex parte proceedings (there's an irony there, given one of the issues noted below), recites (paragraph numbering omitted, highlighting added):
These offences related to the alleged capturing of visual data by the applicant on a mobile phone using the application Snapchat, while the applicant was at the Australian Defence Force Academy (ADFA). In particular, the offences concerned the conveyance of moving images depicting a 10 second continuous loop of sexual intercourse and intimacy between three people (one of whom was the applicant). 
The applicant pleaded guilty to the relevant charges before the DFM, who heard submissions from both the prosecution and the defence. 
Because of COVID-19 restrictions, sentencing proceedings in this matter were conducted through video link. During those proceedings the applicant and his defending officer were at RAAF Base Amberley in Queensland, and the DFM and the prosecutor were in the Court Martial Facility at Fyshwick in the Australian Capital Territory. 
During the course of the hearing, an issue arose whether the proceedings were comparable with those originally described in R v McDonald and DeBlaquiere [2013] ACTSC 122. In that case two ADFA cadets were prosecuted in respect of illicit filming and broadcasting, via a Skype connection, to the computer of one of the defendants, of moving images referable to sexual intercourse. The cadets in that case were charged with offences relating to acts of indecency (contrary to s 60 of the Crimes Act 1900 (ACT)) and using a carriage service in a manner which was offensive (contrary to s 474.17(1) of the Criminal Code 1995 (Cth)). The cadets were dismissed from the ADF. Relevantly to the present application, the Supreme Court of the Australian Capital Territory imposed a sentence that saw no conviction recorded and 12 month good behaviour bonds imposed on each defendant: R v DeBlaquiere and McDonald SCC 346 of 2011; SCC 405 of 2011 (23 October 2013)
The applicant submitted during the disciplinary proceedings before the DFM that the offending in the McDonald and DeBlaquiere case was of greater seriousness than those involving him, in that the McDonald and DeBlaquiere case involved the premeditated concealment of a video camera. 
The learned DFM obtained a copy of the transcript of the McDonald and DeBlaquiere case, but did not make the transcript available to the applicant or his defending officer.
The proceedings before the DFM were adjourned at one point, and resumed one and a half hours later, during which period of time the DFM had caused to be placed on the defending officer’s table an envelope containing a Finding Sheet, and a Warrant requiring the applicant to be delivered into the custody of the warrant officer and identifying his imprisonment for a period of 35 days following his termination from the Australian Defence Force (ADF). An inference could therefore be drawn that the imposition of custodial punishment and the termination of the applicant from the ADF were determined prior to the completion of submissions. 
The DFM said that he viewed the applicant’s offending as more serious than that described in the McDonald and DeBlaquiere case, because the earlier case involved Skype (and thus was not recorded), whereas the applicant’s conduct involved use of Snapchat (and thus an “indelible record” of the event was created). The applicant contended that the DFM erred in finding that an indelible record of the relevant conduct was kept by Snapchat, and that the DFM acknowledged this error but declined to amend his reasoning notwithstanding this acknowledgment. 
The DFM concluded that the applicant should be dismissed from the ADF and sentenced to a “relatively short period of imprisonment”, namely 35 days for each charge, to be served concurrently. 

Friday, June 26, 2020

Criticizing the management

A Nigerian soldier has been taken into custody on the orders of the Chief of Army Staff. According to this news report:
The soldier made a video condemning the security chiefs of the country, especially [Lt. Gen. Tukur] Buratai and the Chief of Defence Staff, General Abayomi Gabriel Olonisakin, for the incessant killings of Nigerians by Boko Haram and another armed group.

He was arrested in Sokoto a few hours after releasing the video and moved to the Federal Capital Territory where he is currently being detained.

Following his arrest, Nigerians have asked the military leadership to immediately release the soldier while they address the issues he raised in the video.

They also condemned the security chiefs for not making strong moves to stop the incessant killings of Nigerians by the Boko Haram and other terrorist groups in the country.
Might there be a command influence issue when the arrest is ordered by the victim who happens to head the Army?

Bereft of honour

[H]e becomes a persona non grata as he would have no atom of respect within military circles. He would be bereft of any honour (sic).

The Daily Trust (Nigeria) reports on a GO's court-martial.
Last week Wednesday, the General Court Martial of the Nigerian Army found Major General Hakeem Oladapo Otiki guilty on five counts of disobedience to service orders, theft of public property, diversion of operational money and engaging in private businesses.
In July 2019, he sent five soldiers in his detail to haul some cash from Sokoto to Abuja via Kaduna. The soldiers played a fast one on him and fled with the money.
Based on the overwhelming evidence against General Otiki, his lead counsel, Barrister Israel Olorundare (SAN), in his submission, pleaded for clemency and urged the Nigerian Army to temper justice with mercy. The Senior Advocate of Nigeria told the court that the accused senior officer had returned the sum of N100million,  which was stolen by the soldiers detailed to escort the money to Kaduna and that some of the projects for which the sum of N150million was released to General Otiki were either completed or about to be completed.

Thursday, June 25, 2020

Why is the military prosecuting this case?

The Rapid City Journal (US) reports on the Article 32, UCMJ, preliminary hearing of an airman accused of murdering his child.
Cunningham was arrested and charged March 3 by the Rapid City Police Department with aggravated child abuse for punching the baby in the head. The Pennington County State’s Attorney Office upgraded the charge to second-degree murder when the infant died nine days later after being airlifted for treatment at a hospital in Sioux Falls.
Cunningham had already made several appearances at the Pennington County Court when the Air Force requested to take over the case in early May, said Lara Roetzel, chief deputy at the state’s attorney office.
The Air Force can take jurisdiction over cases involving airmen even if the crime occurred off base, Roetzel said. The office consented to the transfer because it's already crunched for time due to coronavirus-related furloughs.
The Air Force works “towards maximizing jurisdiction over our airmen,” Lt. Joshua Sinclair, an Ellsworth spokesman, said when asked why the Air Force wanted the case.
Interestingly, the US military is also affected by COVID-19. Only now are courts started to work after an approximate three month hiatus.

Wednesday, June 24, 2020

Egypt's military courts: a growth industry

Mahmoud Khalid has written this piece for the Carnegie Endowment for International Peace, concerning the expanding role of military courts in Egypt. Excerpt:
The new amendments [to Emergency Law 162 of 1958], passed by the pro-regime parliamentary majority in a live vote, specify that military and judicial officers do not require permission from the special prosecutor’s office before arresting, detaining, or confiscating money and private property from citizens. The amendments also allow military prosecutors to investigate incidents and crimes committed by civilians without giving them the right to stand before a judge. Additionally, the amendments empower the president to task the military prosecutor’s office with investigating crimes related to the emergency law. Lastly, they stipulate the formation of an Emergency High Court for State Security, which will include permanent military judges. Such amendments further a systemic policy that aims to expand the military’s jurisdiction into civilian courts while simultaneously undermining the civil and constitutional rights granted by the Egyptian constitution. For instance, Article 204 of the Egyptian constitution states that a civilian may not be tried in a military court, the only exception being acts of aggression directed against military installations and bases.
Egyptian military courts have prosecuted thousands of civilians, making it far and away the world's worst current offender against the human rights principle that such courts should have jurisdiction only over military personnel and only for matters directly and substantially related to the performance of military duty.

Tuesday, June 23, 2020

Service connection down under

A case is pending in the High Court of Australia that could have major implications for that country's military justice system -- or at least for the allocation of jurisdiction in cases of potential concurrent jurisdiction as between civilian and military courts. In Private R v. Cowen & Anor., No. S272/2019, the court's website provides this summary:
Where member of defence forces charged with assault occasioning bodily harm pursuant to s 24 of Crimes Act 1900 (ACT) as purportedly applied to defence members and defence civilians by s 61(3) of Defence Force Discipline Act 1982 (Cth) – Where person charged objected to jurisdiction of Defence Force Magistrate to hear and determine charge on basis that prosecution could not reasonably be regarded as substantially serving purpose of maintaining or enforcing service discipline – Where objection to jurisdiction dismissed – Whether writ of prohibition should issue to prohibit Defence Force Magistrate from hearing and determining charge – Whether certain provisions of Defence Force Discipline Act 1982 (Cth), insofar as they purport to confer jurisdiction on “service tribunal” to hear and determine charge against “defence member” for offence against Crimes Act 1900 (ACT) solely on basis of person’s status as “defence member”, are beyond Commonwealth legislative power in circumstances where alleged offence committed in Australia but not on “service land” or “service property”, where persons involved were off duty, in time of peace and civil order, and where civil courts said to be reasonably available.
Australia's military justice system has been under scrutiny for years, and Parliament tried without success to institute reforms, only to have those set aside by the High Court. It is anybody's guess whether Private R's case will usher in a new era with a less voracious understanding of the proper scope of subject matter jurisdiction. Will the country go the way of Canada (in Stillman) and the United States (in Solorio)?

The parties' written submissions are on the court's website. The plaintiff's reply concludes by observing that
the mere fact that a defence member is alleged to have committed an offence of violence in peacetime in Australia does not automatically lead to the conclusion that there is the requisite service connection justifying a military trial. It is only where there is conduct involving circumstances sufficiently connected with military service (and where civil courts are not reasonably available) that a military trial can "reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline" and thus a valid exercise of the defence power. . . . [T]hose circumstances are absent in the present case.
The Australian has this coverage. 

Uniform Code of Police Justice?

DePaul Law School Professor (and former Navy JAG) Monu Bedi and attorney (and Tennessee Army National Guard officer) Greg Everett, writing in National Review, propose a Uniform Code of Police Justice:
. . . Congress should adopt a Uniform Code of Police Justice (UCPJ) modeled after the Uniform Code of Military Justice (UCMJ), which currently applies to U.S. military personnel. Such a code would recognize the unique role that police officers play in our society by holding them criminally accountable for misconduct in the same way that military personnel can be held criminally accountable. Broadly speaking, a UCPJ would achieve this in two ways: (1) by adopting laws from the UCMJ, such as those covering conduct unbecoming an officer and dereliction of duty, that would place heightened legal obligations on officers in the performance of their duties; and (2) by more clearly defining what constitutes a justifiable use of force in the same way that the military’s rules of engagement are clearly defined. Indeed, violations of the military’s rules of engagement are criminally actionable under the UCMJ.
* * *
While full implementation of a UCPJ would require states to act on an individual basis, Congress can act now by passing a UCPJ to govern the conduct of federal law-enforcement agencies, such as the FBI, ATF, and DEA. This code would serve as a model for states and constitute a necessary first step toward applying the principles of the UCMJ to the policing context. In fact, this is what states have already done by promulgating their own military codes patterned after the UCMJ that apply to soldiers in their National Guard units.
A tall order, certainly, but don't scoff. Read the whole article before you reach a conclusion. Comments (real names only, please) are particularly welcome. 

Monday, June 22, 2020

So you want to be an Army lawyer?

The Law Society Gazette has a worthwhile article by Catherine Baksi titled Military Mettle. It's a description of life and work in today's Army Legal Services, particularly in light of COVID-19 activities. Excerpt:
Army Legal Services (ALS) is part of the Adjutant General’s Corps and has its roots in the 17th century. Its responsibilities are extensive, from prosecuting in courts martial and giving legal advice on international, civil and military law, to advising on operational law, the law of armed conflict and rules of engagement, and all aspects of service discipline.

It encompasses three broad elements – prosecutions, general advisory and operational law – but its lawyers will work in all areas during their army career, from advising the chain of command on the finer points of international law in the middle of a war zone to deciding whether to prosecute a soldier by a court martial.

Each year, ALS looks to recruit eight to 10 fully qualified solicitors, barristers or Scottish advocates who are physically fit and aged between 23 and 32.

In recognition of their professional qualifications, the ALS is an officer-only branch of the army. After two weeks of initial training, recruits attend a nine-week commissioning course at the Royal Military Academy Sandhurst. There they are put through their paces learning basic military skills, including weapons training and drill, as well as the relevant areas of law and developing their ability to lead and command.

They are then sent out on attachments to combat units where they operate as non-lawyers for three months to give them first-hand experience of army life.

Saturday, June 20, 2020

Pending change on factual sufficiency: legislative foul ball?

The Editor has been posting on the factual-sufficiency issue over at CAAFlog. Readers here may find it of interest. This may seem like inside baseball for U.S. military justice, but it's important inside baseball, with real institutional implications. How much will the U.S. system have changed when (not if) the service courts of criminal appeals lose their affirmative duty to review for factual sufficiency?

Comments here are welcome as well. Real names only. (What's the worst thing that could happen to you? Orders to Guam?)

Friday, June 19, 2020

Racial disparities in the military justice system, continued

On June 16, 2020, Brenda Farrell, Director, Defense Capabilities and Management, testified to the House Subcommittee on Military Personnel. Her testimony appears prompted, in part, by the recent high-profile killings of unarmed black Americans and resulting nationwide protests. Ms. Farrell's testimony was a follow-up to a 2019 GAO report that had found racial disparities in the military justice system.

Ms. Farrell testified that the military services still do not collect, maintain, or report consistent information about race and ethnicity, limiting the ability to identify racial disparities within military justice, despite GAO’s recommendations in its 2019 report. The data deficiencies appear caused by inconsistent classification issues. So, like the UCMJ, there needs to be a uniform adaptation of standards across the services for data collection and reporting. Troubling, though, unlike the other services, the Coast Guard failed to collect any information about race and gender in its military justice database.

Despite the issues in data collection, there is sufficient evidence military justice has disparities in investigations, disciplinary actions, and punishments, to the disadvantage of racial minorities. Other research supports this GAO finding. Ms. Farrell’s testimony also highlighted DOD’s failure to study the causes of racial inequality in military justice, despite the 2019 GAO report’s recommendation. For more nuance to the report’s findings and recommendations, please check it out. But the report is another reminder that the military services are subject to similar biases and prejudices as U.S. society as a whole. And like U.S. society, racial disparities in administering justice continue year-after-year, as policy makers fail to adopt the recommendations of those studying the problem.

Honoring the day

Thursday, June 18, 2020

Swiss military justice system explained

Dr.iur. Stefan Flachsmann
Dr.iur. Stefan Flachsmann, Armed Forces Attorney General of Switzerland, has created this brief but informative PowerPoint presentation on the Swiss Military Justice System.

New rules for Australia

The Judge Advocate General of the Australian Defence Force has issued the Court Martial and Defence Force Magistrate Rules 2020. According to the accompanying Explanatory Statement:
The purpose of the Court Martial and Defence Force Magistrate Rules 2020 (the Rules) is to prescribe the rules and processes that are to be undertaken by a court martial and Defence Force Magistrate proceeding under the Act. The Rules consist of 10 Parts that address preliminary matters, charging and summoning an accused person, general trial provisions for superior disciplinary tribunal proceedings, evidence before superior disciplinary tribunal proceedings, and procedure for recording of proceedings and dealing with exhibits. New Rules have been introduced to deal with tendency/coincidence evidence and procedure, as well as pre-trial hearings on the application of a party or on the direction of the Judge Advocate or Defence Force Magistrate. The new Rules change the requirement to swear or affirm a recorder as most proceedings are electronically recorded. The new Rules will also repeal the Court Martial and Defence Force Magistrate Rules 2013 before they sunset on 1 April 2020.

The Rules replace this sunsetting instrument in substantially the same format with some procedural and evidential changes, having regard to superior tribunal discipline reform which is intended to simplify and streamline proceedings. They also update the previous Rules with modernised language and drafting compliance.
Readers in Australia -- what should we look for in the news rules?

Guardia Civil regional union reports on its successes

The Alicante branch of the Unified Association of Civil Guards has had a good year, according to this summary, including favorable rulings for three of its members.
AUGC is the dean of professional associations and the majority in the Council of the Civil Guard. It has representation throughout Spanish territory, in each of the units and specialties of the Corps and has been leading the associative movement since the arrival of democracy, when it was born as a clandestine union. Its fight for the democratization of the institution earned it the 2010 National Human Rights Award granted by the Association for Human Rights.

Gaol delivery in Pakistan

The Peshawar High Court has freed 200 people convicted by military courts. The Express Tribune reports:
The court, in its short order, stated that the accused were sentenced on their confessional statements and not given a fair trial.

PHC also adjourned the hearing of 100 other convicted petitioners due to non-availability of records. The court directed for their records to be produced.

Wednesday, June 17, 2020

Not military justice, but . . .

The White House
Washington, DC
Kudos to Richard Altieri and Margaret Taylor for their timely Lawfare essay, How Presidents Talk About Deploying the Military in the United States. They conclude:
Trump, by contrast [to Eisenhower, Kennedy, Johnson, and George H.W. Bush], has adopted the language of battle. And he has not seemed at all concerned with fundamental constitutional notions of federalism and the rights reserved to states under the U.S. Constitution. Of course, Trump has not taken the final step of deploying the military to the states. But by deploying them cavalierly and in huge numbers in Washington, D.C.—without articulating what authorities he was using and over the objection of local officials—he showed that he is not particularly reticent about taking such a step. Trump’s approach, of course, is consistent with two central themes of his presidency. In moments of division, he peddles conspiracy theories and lashes out against his political opponents. And when it suits him, he pushes aggressively on the outer margins of his presidential authority with little regard for the precedent it sets.

To feed or what to feed--that is the question

U.S. military lawyers serving overseas are familiar with Status of Forces Agreements (SOFA), as are those of a host (or member) country. Most agreements are publicly available, some are not (e.g., by experience, Spain and Portugal have classified Annexes).
"A SOFA is an agreement that establishes the framework under which armed forces operate within a foreign country. The agreement provides for rights and privileges of covered individuals while in the foreign jurisdiction, addressing how the domestic laws of the foreign jurisdiction shall be applied to U.S. personnel. SOFAs are peacetime documents and therefore do not address the rules of war, the Law of Armed Conflict, or the Law of the Sea. In the event of armed conflict between parties to a SOFA, and because the agreement is a contract between the parties and may be canceled at the will of either, the terms of the agreement would no longer be applicable. With the exception of the multilateral SOFA among the United States and North Atlantic Treaty Organization (NATO) countries, a SOFA is specific to an individual country and is in the form of an executive agreement."
See R. Chuck Mason, U.S.-Iraq Withdrawal/Status of Forces Agreement: Issues for Congressional Oversight. Congressional Research Service, 13 July 2009. See, also, R. Chuck Mason, Status of Forces Agreement (SOFA): What Is It, and How Has It Been Utilized? Congressional Research Service, 15 March 2012.

Which brings us to Japan. The Ministry of Foreign Affairs (Japan) posts the US/Japan agreement here (their Embassy in the U.S. here).

The Mainichi Times (Japan) compares some agreements here.

The Mainichi Times reports on one aspect of the SOFA causing some continuing consternation.
U.S. military-affiliated inmates at a prison branch in this city south of Tokyo have been receiving special treatment in their meals among other privileges compared to their Japanese counterparts and other foreign inmates.
According to the Ministry of Justice, there were seven U.S. military-related prisoners and 156 Japanese and other inmates serving time at the Yokosuka prison branch as of June 3 [2020].
[On 9 June 2020] [T]he menu for the Japanese and other detainees was miso soup containing onions and seaweed, natto or fermented soybeans, pickled plums, and a mixed bowl of rice and barley with a 7:3 ratio.
Differences could be seen in lunches as well, with U.S. military-related prisoners receiving steak, potato, asparagus, fruits cocktails, and peanut butter cookies while other inmates were provided with fried horse mackerel, broiled eggs and vegetables, pickled cucumbers, and a mixed bowl of rice and barley.
For some other reading,

The Asahi Shimbun reports on an Increasing mood seen for revising long-standing Japan-U.S. SOFA.

For an issue facing some of our clients there in earlier years, see The Rape Controversy: Is a Revision of the Status of Forces Agreement with Japan Necessary? 6(3) IND. INT'L & COMP. L. REV. 717 (1996).

C. Douglas Lummis, The US-Japan Status of Forces Agreement and Okinawan Anger. A Debate. Asia-Pacific Journal, 3 Oct. 2008.

New feature

Here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza, we try not to have an itchy trigger finger when it comes to design of the site, which has remained pretty stable since it slid down the ways in January 2014. We made a change this morning, adding a page for international military justice links. You'll find it just below the image of George III. The page includes hyperlinks to military justice courts, blogs, and NGOs. We're still building it out, so if you know of any other useful links, please post a comment with the URL. Thanks a million.

Tuesday, June 16, 2020

Do we still/really need factual sufficiency review?

Over at CAAFlog 2.0, you'll see the beginnings of a conversation on pending legislation that would scuttle the longstanding power of the service Courts of Criminal Appeals to review courts-martial for factual sufficiency. (Readers of Global Military Justice Reform ought to follow CAAFlog 2.0 -- and vice versa.) Here's what the Editor just posted:
The factual sufficiency power has been in the UCMJ from the beginning--i.e., long before there were military judges. A useful but time-consuming piece of research would be to see whether the percentage of total jurisdictional cases that were set aside by the Boards of Review/CMRs/CCAs for factual insufficiency declined after the Military Justice Act of 1968 or the Military Rules of Evidence took effect. The raw number of cases in which that has happened in the post-'68-Act or post-MRE eras would also be worth knowing. That said, this power is obviously an artifact (one of several with which the Code is festooned) from the era before every case had lawyers on both sides at trial and before there was a proper trial judiciary. I'm not unhappy to see it go, but I do think we need to buttress the trial bench by affording the judges markedly longer terms of office as well as law clerks. They also ought to have the power to set aside a verdict as against the weight of the evidence. That's a proper function for the judges who actually saw and heard the witnesses and, importantly, it comports with Art. III practice. See Fed. R. Crim. P. 33; Art. 36, UCMJ.
What do you think? (If you comment here, you'll need to give your real name; at CAAFlog 2.0, not so much.)

Guantanamo trial court ruling on torture evidence

U.S. Army Colonel Douglas K. Watkins, a trial judge with the Military Commissions Trial Judiciary in Guantánamo Bay, recently issued an important ruling on how torture evidence will be considered.

Torture is indisputably at the extreme end of the range of conduct that could constitute unlawful pretrial punishment. Article 13 of the UCMJ permits military judges to grant administrative credit for unlawful pretrial punishment. However, an equivalent provision to Article 13 is not present in the Military Commissions Act (MCA). Do trial judges have the inherent authority to grant such credit anyway? In a deeply researched 43-page ruling in United States v. Majid Khan, Judge Watkins answers "yes":
The Commission concludes the Defense has met their burden in this Commission to show, by a preponderance of the evidence, that this Military Judge has the inherent authority to grant a remedy in the form of administrative sentencing credit for abusive treatment amounting to illegal pretrial punishment, especially when no other remedy is available. This Military Judge has an obligation to ensure this accused receives a fundamentally fair trial. The absence of Article 13 from the MCAs is not dispositive, as Article 13 codified the longstanding military practice of judicial remedies for violations of the presumption of innocence, a foundational principle of a fair trial. Despite the lack of an Article 13-like provision in the 2009 MCA, this Military Judge has broad discretion to fashion a remedy for illegal pretrial punishment a violation of the universal right to be free of torture—by virtue of the sua sponte duty to ensure the fundamental fairness, as well as the appearance of fairness, of the tribunal. 
How to present this evidence? Courts-martial traditionally consider Article 13 issues in pretrial motions or stipulations. Judge Watkins ruled that he would consider such evidence after conviction in the sentencing phase.
The Commission DEFERS ruling on the mixed questions of law and fact underlying the merits of the subject motion and will concurrently consider the Defense’s case in extenuation and mitigation at sentencing for the purpose of ruling on the merits of the subject motion. If the Defense desires to present certain evidence on this motion outside of the presence of the members, it will be afforded an opportunity to do so during deliberations, excusal of the members, or at some other opportune time during trial and before adjournment. 
In one sense, this is an efficient approach that avoids duplicative efforts since the defense sentencing case for Mr. Khan will also certainly focus on torture.  However, this approach forecloses the defense from attempting to prove before trial that the torture was so egregious that no fair trial can be had. On whole though, this is a win for the defense because the real question for sentencing has always been the extent to which Mr. Khan can investigate and present torture evidence. Judge Watkins' ruling gives him a firm mandate.  

Racial disparities hearing

Today you can sit in on a webcast of a hearing before the military personnel subcommittee of the House Armed Services Committee on racial disparities in the administration of U.S. military justice. According to this Defense Visual Information Distribution Service announcement:
A panel of representatives from each military service testifies before a hearing of the House Armed Services Committee’s military personnel subcommittee on racial disparity in the military justice system and how to fix the culture, June 16, 2020. Testifying are: Lt. Gen. Charles N. Pede, Army judge advocate general; Vice Adm. John G. Hannink, Navy judge advocate general; Lt. Gen. Jeffrey A. Rockwell, Air Force judge advocate general; Maj. Gen. Daniel J. Lecce, staff judge advocate to the Marine Corps commandant; Brenda Farrell, director of the defense capabilities and management team for the U.S. Government Accountability Office; and retired Air Force Col. Don Christensen, president of the national organization Protect our Defenders.

Sunday, June 14, 2020

Flag Day

There are things that bind Americans together. Here's one.

Time for Canada to improve military tribunals, not abolish them

It's time for Canada to improve its military tribunals, not abolish them.  And 'civilianization' is not necessarily the only, or the best, way to do so.  In the Hill Times article linked below, I describe the two emerging and different streams of military justice reform: what can be characterized as the Euro-Continental model and the Anglo Common Law model.  As Canada's legal framework - including much of the framework in Quebec, notwithstanding its civil system of legislation - follows the Anglo Common Law model, it is unsurprising that her system of military justice has followed suit.

In R v Stillman, 2019 SCC 40, the Supreme Court of Canada again rejected the argument that a separate system of military justice was unconstitutional or improper.  However, this does not mean that Canada's military justice system cannot be improved or is invulnerable to further constitutional challenge.  Indeed, a 'Notice of Constitutional Question' was recently filed in a court martial proceeding (the hearing of which will undoubtedly be affected by COVID-19 protocols) challenging the independence of the military bench due to military judges being subject to the Code of Service Discipline.

This issue had been raised in two prior courts martial - R v MCpl Pett, 2020 CM 4002 and R v Cpl D'Amico, 2020 CM 2002 - however, a Notice of Constitutional Question had not been raised in either of those cases.  As a result, the judgments in those cases were focused principally on a directive from the Chief of the Defence Staff (CDS) that appeared to place military judges under the disciplinary decision-making of the Deputy Vice Chief of the Defence Staff.  Not surprisingly, in both Pett and D'Amico, the military judges held that the CDS directive had no force or effect.  The judgments also suggested that military judges, whose conduct can be subject to review by the Military Judges Inquiry Committee (MJIC), are therefore not subject to the Code of Service Discipline.

However, as there had not been a Notice of Constitutional Question filed in either Pett or D'Amico, the extent to which the judgments comment on the applicability of the Code of Service Discipline is properly viewed as obiter dicta.  Additionally, there remains a compelling argument that the MJIC process is not a proper substitute for either the Code of Service Discipline or the Criminal Code in terms of misconduct by persons who happen to be military judges.  There is a hint of such a view in the judgment of  Justice Martineau in Canada (Director of Military Prosecutions) v Canada (Office of the Chief Military Judge), 2020 FC 330, at para 42.  I expand upon this issue herehere and here.

Ultimately, a significant reform that would correct many procedural challenges and inefficiencies is the establishment of courts martial as standing courts, rather than ad hoc courts convened on an individual basis.  This is not a novel recommendation and is one that, arguably, has been a repeated recommendation that has been perennially ignored for many years.

The goal should be meaningful reform of the military justice system in order to ensure independence of the judiciary, expertise, portability, uniformity of application within the armed forces, and efficiency.  The military justice system in Canada need not be 'civilianized' to accomplish these goals.  But any reform should be pursued based upon a principled approach, where satisfaction of these principles, rather than a pre-ordained structure, is the end-state.


Ragging and accountability

Everyone knows what hazing means. It's common usage in armed forces and fraternities. But what about "ragging"? Consider this definition:
Ragging is the term used for the so-called "initiation ritual" practiced in higher education institutions in South Asian countries, including India, Bangladesh and Sri Lanka. The practice is similar to hazing in North America, bizutage in France, praxe in Portugal and other similar practices in educational institutions across the world. Ragging involves abuse, humiliation or harassment of new entrants or junior students by the senior students. It often takes a malignant form wherein the newcomers may be subjected to psychological or physical torture. In 2009 the University Grants Commission of India imposed regulations upon Indian universities to help curb ragging, and launched a toll-free 'anti-ragging helpline'.

Ragging is a subset of bullying. Unlike various complex forms of bullying, ragging is easily recognisable.
With that by way of background, we read of a current case of fatal ragging in the Singapore Civil Defence Force, an emergency service in the Ministry of Home Affairs. It is staffed by Regular officers, full-time National Servicemen and Operationally Ready National Service (ORNS) Men. Excerpt from the Straits Times:
Kenneth Chong Chee Boon, 37, and Nazhan Mohamed Nazi, 40, are each contesting one charge of intentionally aiding a group of SCDF servicemen to cause grievous hurt to full-time national serviceman (NSF) Kok Yuen Chin, 22, via a rash act endangering human life on the night of May 13, 2018.

They are accused of doing so by failing to prevent the group from pressuring Corporal Kok to enter the 12m-deep pump well at Tuas View Fire Station that night - an activity known as kolam - to mark the impending completion of his national service.

Chong was commander and Nazhan, deputy commander, of the station then.

Cpl Kok eventually drowned after he was pushed into the well by another serviceman, Muhammad Nur Fatwa Mahmood.
The two officers face possible sentences of up to four years' imprisonment and fines of up to HK$10,000. Three subordinates have already been sentenced. The victim was a Malaysian national with permanent residency in Singapore. The case was tried in civilian court.

Saturday, June 13, 2020

Justice for senior officers

Four years have passed since Nigeria involuntarily retired 38 senior officers for allegedly serious disciplinary offenses. A number of them have sued for reinstatement and prevailed, but court orders have been disregarded. None of the officers were afforded an opportunity to defend themselves in a court-martial. Efforts to obtain relief administratively have gone nowhere. Details here.from This Day.

Friday, June 12, 2020

COVID-19 and military justice (U.S. Air Force)

So why is this case of alleged off-base crime by a member of the U.S. Air Force headed for a court-martial rather than the civilian criminal justice system it began in? Here's what the Rapid City, SD newspaper says:
James Cunningham, 26, was charged March 3 with aggravated child abuse for allegedly admitting to punching his baby in the head at their Rapid City home.

His charge was upgraded to second-degree murder after the five-month-old died nine days later after being airlifted for treatment at a hospital in Sioux Falls.

Cunningham had already made several appearances at the Pennington County Court when the Air Force requested to take over the case in early May, said Lara Roetzel, chief deputy at the state’s attorney office.

The Air Force has the power to take jurisdiction over cases involving airmen even if the crime occurred off base, Roetzel said.

Roetzel said her office consented to the transfer because her office is already crunched for time due to coronavirus-related furloughs. She also said military court is comparable to civilian court, while military prisons are tougher than South Dakota ones.

The Air Force works “towards maximizing jurisdiction over our airmen,” Lt. Joshua Sinclair, an Ellsworth spokesman, said when asked why the Air Force wanted to handle the case. “The military justice system is designed to promote justice and to maintain good order and discipline in our service.”

Cunningham is charged with murder under the Uniform Code of Military Justice for engaging in an act that is “inherently dangerous to another” and shows a “wanton disregard of human life,” Sinclair said.

He said the maximum punishment is life in prison without parole, a dishonorable discharge, reduction to the lowest enlisted grade and forfeiture of all pay. Cunningham would have faced a mandatory punishment of life without parole under South Dakota law.
Sorry, folks, but this is wrong.

Racial disparities to be investigated

The U.S. Air Force has issued the following news release:
Department of the Air Force Secretary Barbara Barrett and service chiefs, Gen. David Goldfein and Gen. Jay Raymond, have directed the Department of the Air Force Inspector General to independently review the service’s record on military discipline and developmental opportunities for African American Airmen and Space Professionals. The review will assess and capture existing racial disparities, assess Air Force-specific causal factors, like culture and policies, assimilate the analysis and conclusions of previous racial disparity studies by external organizations and make concrete recommendations resulting in impactful and lasting change.

By law, IGs operate as independent entities. The full results of both reviews, good or bad, will be shared with Airmen, Department of Defense senior leaders, Congress and the public.

The request formalizes a step Goldfein publicly raised for the first time on June 1 in an official note to commanders and other senior leaders. That official message was Goldfein’s response to the death of George Floyd in Minneapolis and the public protests about racial injustice.

“We are not immune to the spectrum of racial prejudice, systemic discrimination and unconscious bias,” Goldfein wrote in his message to commanders. “We see this in the apparent inequity in our application of military justice. We will not shy away from this; as leaders and as Airmen, we will own our part, and confront it head on.”

In an open letter signed by Barrett and the two service chiefs, the leadership team wrote, “We are listening, and we are taking action. We have directed the Department of the Air Force Inspector General to conduct an independent review”.

As part of the review, the IG will widely reach out to Airmen and Space Professionals via interviews, group discussions, targeted and anonymous surveys. In addition, to better scope this review, the IG has formed a Senior Leader Advisory Group composed of ten African American general officers, ten African American chiefs and four African American senior executive service Airmen. In addition, a number of Airmen from all major commands will be selected to join the IG review team. While other disparities also need to be reviewed, this phase will focus on African American racial disparities.

“We want to make sure our Air and Space Professionals are able to share their experiences and concerns, and we want to empower them to be a part of the solution. Their voices will be heard and captured for the record. We have a tremendous opportunity here, and we will not waste it,” said Lt. Gen. Sami Said, the Air Force Inspector General.

Anonymous surveys will be made available on www.af.mil by mid-June so anyone who wants to provide feedback will be able to do so. Directions for how to submit the feedback will be included on the survey form. The surveys will include specific questions but also accommodate any desired comments. Finally, the surveys will also include an email address for Airmen and Space Professionals to personally communicate with the IG team conducting the review.

Free speech for retired senior officers?

On June 9, 2020, Global Military Justice Reform ran this post referring to a National Review Online essay by Victor Hanson Davis. The essay has sparked this riposte from Jim Swift at The Bulwark. He asks:
When retired Army general Michael Flynn—before he twice pleaded guilty to making false statements to the FBI—was one of President [Donald J.] Trump’s most ardent defenders, where was Victor Davis Hanson?

When Gen. Flynn spoke at the 2016 Republican National Convention in Cleveland, and led a chant of “LOCK HER UP!”—where was Victor Davis Hanson?

What did he have to say about this retired general getting deeply, crassly, and ultimately ignominiously involved in politics? Where was Hanson’s policing of the borders of politics and the military then?

A military justice ruling from . . . the Supreme Court of Arkansas

It is not every day that a state appellate court has occasion to review a court-martial. As a result, the June 11, 2020 decision of the Supreme Court of Arkansas in Childers v. State, 2020 Ark. 241, makes interesting reading.

At issue on the merits was whether a National Guard chief warrant officer was subject to state court-martial jurisdiction for offenses committed outside periods of inactive-duty training (IDT). Held, citing United States v. Wolpert, 75 M.J. 777 (Army Ct. Crim. App. 2016),  and two earlier federal military cases, there was no personal jurisdiction where the offenses occurred when the accused was not in a duty status.

The majority also held that the State Supreme Court had appellate jurisdiction despite CW4 Adam S. Childers' conditional guilty plea.

State military justice is one of the least studied areas of military law, perhaps because there are so few reported decisions.

Thursday, June 11, 2020

ICC Executive Order

I, DONALD J. TRUMP, President of the United States of America, find that the situation with respect to the International Criminal Court (ICC) and its illegitimate assertions of jurisdiction over personnel of the United States and certain of its allies, including the ICC Prosecutor’s investigation into actions allegedly committed by United States military, intelligence, and other personnel in or relating to Afghanistan, threatens to subject current and former United States Government and allied officials to harassment, abuse, and possible arrest. These actions on the part of the ICC, in turn, threaten to infringe upon the sovereignty of the United States and impede the critical national security and foreign policy work of United States Government and allied officials, and thereby threaten the national security and foreign policy of the United States. The United States is not a party to the Rome Statute, has never accepted ICC jurisdiction over its personnel, and has consistently rejected ICC assertions of jurisdiction over United States personnel. Furthermore, in 2002, the United States Congress enacted the American Service Members' Protection Act (22 U.S.C. 7421 et seq.) which rejected the ICC’s overbroad, nonconsensual assertions of jurisdiction. The United States remains committed to accountability and to the peaceful cultivation of international order, but the ICC and parties to the Rome Statute must respect the decisions of the United States and other countries not to subject their personnel to the ICC’s jurisdiction, consistent with their respective sovereign prerogatives. The United States seeks to impose tangible and significant consequences on those responsible for the ICC’s transgressions, which may include the suspension of entry into the United States of ICC officials, employees, and agents, as well as their immediate family members. The entry of such aliens into the United States would be detrimental to the interests of the United States and denying them entry will further demonstrate the resolve of the United States in opposing the ICC’s overreach by seeking to exercise jurisdiction over personnel of the United States and our allies, as well as personnel of countries that are not parties to the Rome Statute or have not otherwise consented to ICC jurisdiction.

I therefore determine that any attempt by the ICC to investigate, arrest, detain, or prosecute any United States personnel without the consent of the United States, or of personnel of countries that are United States allies and who are not parties to the Rome Statute or have not otherwise consented to ICC jurisdiction, constitutes an unusual and extraordinary threat to the national security and foreign policy of the United States, and I hereby declare a national emergency to deal with that threat. . . .

From the June 11, 2020 Executive Order on Blocking Property of 
Certain Persons Associated with the International Criminal Court