Friday, July 31, 2020
Another case of the slows in India
Thursday, July 30, 2020
The moral legitimacy of Canada's military justice system is in question
My article “Despite
pending law, Canadian Forces still deprives members of liberty for summary
offences” in the Halifax Chronicle Herald (7 July) appears to have
catalyzed several articles in response. I appreciate the resulting discussion,
and I am aware that my fellow writers on this issue are lawyers, one of whom is
a military lawyer, the other a former military lawyer.
I am not a lawyer. I am a retired
military officer (major) who has become a human rights advocate for the members
of the Canadian Armed Forces. I do not write with an eye for alignment of
issues with the current military legal regime. I am expressing my concern for
the divergence of the treatment of our military personnel from the Charter of
Rights and Freedoms available to all other residents of Canada, whether they
are citizens, immigrants awaiting citizenship, refugees, and visitors. It is my
fundamental conviction that our military personnel should benefit equally from
Canadian rights, freedoms and values
when the principle of unlimited liability mandates that they promote, foster
and defend those principles, even at the cost of their own lives.
A commanding officer (CO) is not
a legal officer and lacks the depth of education and training, the time in law
school, articling with a law firm and in professional practice. Military summary trials are, effectively,
trial by commanding officer or the CO’s designated officer, whose legal
education to preside over an accused person is measured only in hours. Conversely,
the education and experience of a judge prior to joining the bench is measured
in years, and sometimes decades.
I am not opposed to summary
discipline. Many, if not all, professions have disciplinary procedures for its
members who do not conform to the strictures of the profession. I am opposed to
the arbitrary deprivation of personal liberty for up to 30 days for a minor
infraction when the Parliament of Canada has passed legislation obviating that
particular punishment and the possible imposition of a criminal record for a
non-criminal act.
Tug of war in the Philippines
Wednesday, July 29, 2020
Editor's note
First, we've had a string of contributions from Canada. These are most welcome. Some have been fairly long. This is good, but in order to make room for more than one or two posts on the screen, I've started to inserting breaks. The remainder of the post shows up on a continuation page, and is easy to reach. If one of your posts got broken up this way, that's the reason. In any event, contributors are encouraged to post, and readers are encouraged to comment. (Real names only, please.)
Speaking of comments: the Editor moderates comments. We get quite a few spam comments. They're fairly predictable, and trust me, you don't want to see them. Perhaps some slow news day I may post one or two samples, just so you see what you are missing.
Second, on Monday, August 3, at 9:00 a.m. East Coast time, we'll host Town Hall 6 via zoom, with Dr. Aifheli E. Tshivhase as the presenter. His topic will be "Lockdown and the armed forces in South Africa: the Khosa 'murder' case and preliminary lessons for military justice."
Please join us. If you have not received an invitation, here are the specifics:
https://us02web.zoom.us/j/6935283348
Meeting ID: 693 528 3348
And if you have the time between now and Monday, please take a look at Khosa v. Minister of Defence, [2020] ZAGPPHC 147; 2020 (7) BCLR 816 (GP); [2020] 3 All SA 190 (GP) (15 May 2020).
There will be time for questions and answers.
Please email the Editor if you would like to be added to the Town Hall distribution list (or if you are interested in becoming a Global Military Justice Reform contributor).
Third, congratulations to Brenner Fissell and his merry band over at the new-and-improved CAAFlog site. It gets better and better.
Finally, while we're chatting, let's do the numbers:
Hits, 843.920
Posts, 5614
Comments, 819
Jurisdictions, 187
Contributors, 27
Town Halls, about-to-be 6
- 30 -
Tuesday, July 28, 2020
COVID-19 and Military Law
Summary Hearings versus Summary Trials - Canadian Military Justice
Presiding officers at summary trials may be commanding officers (CO), but they might also be superior commanders (formation commanders and General Officers) or even officers commanding sub-units (typically majors and captains). What is certain is that they typically do not have formal legal training comparable to a civilian lawyer or judge. (NB: From time to time, a CO or other potential presiding officer in the Reserve Force might be a practicing lawyer, and some Regular Force officers who are not legal officers may have a law degree). Nor are they constitutionally (or even institutionally) independent in a manner remotely comparable with a judge.
However, an assertion that Summary Trials are 'illegitimate' because of these shortcomings ignores the fact that, for all but five specific offences, a CF member accused of a Code of Service Discipline offence has a right to elect trial by court martial, which does have robust procedural safeguards. At present, there is no presumptive right to elect trial by court martial for five specific offences under the National Defence Act (NDA): s 85 (Insubordinate Behaviour), s 86 (Quarrels and Disturbances), s 90 (Absence Without Leave), s 97 (Drunkenness), and s 129 (Conduct to the Prejudice of Good Order and Discipline, in certain limited circumstances). However, where the presiding officer concludes that detention, reduction in rank, or a fine in excess of 25% of net monthly income would be warranted if the accused were found guilty, an election must be given. Thus, where a presiding officer anticipates using a significant punishment - which would give rise to a criminal record if imposed - the accused will always be able to elect trial by court martial regardless of the offence charged. In other words: a CF member has a right to elect a mode of trial that does not suffer from the short-comings of the summary trial process.
No more confinement in ROK without a trial
Were you wondering what's going on at Guantánamo?
Watch for a new administration to figure out a way out of this unfair-to-everyone, prodigiously-expensive, legal box canyon.
Monday, July 27, 2020
Pakistan's leisurely compliance with the ICJ's Jadhav decision
Here's the latest on Pakistan's leisurely compliance with the ICJ's decision in the Jadhav case:Major opposition parties – the PML-N and the PPP – are likely to oppose an ordinance meant to allow convicted Indian spy Kulbhushan Jadhav to file a review appeal against his conviction [by a military court] despite a request by the PTI led federal government not to politicize the “national security issue”.Reema Omer of the International Commission of Jurists has this insightful report on the case and the ordinance at issue. She writes:
The government is expected to table the International Court of Justice (Review and Re-consideration) Ordinance, 2020 in the lower house of parliament on Monday [today].
There are legitimate concerns about the secret, non-consultative manner in which the Ordinance was passed; whether its provisions meet the requirements of the ICJ judgement; and whether person-specific remedies of the kind proposed by the Ordinance are permitted under Pakistani law. However, it is unfortunate that opposition parties are focusing their criticism on alleged “relief” to Jadhav and “appeasement” of India.
Similarly, instead of acknowledging that Pakistan made a mistake by denying Jadhav consular access promptly after his arrest in accordance with its international obligations and the need to rectify that error, the government too continues to blame past governments for accepting the ICJ’s jurisdiction.
This vi[]c[i]ous cycle of point-scoring must end. It comes at the cost of principles such as the right to a fair trial and creates an environment where even fulfilment of Pakistan’s basic international legal obligations appears as treason. Surely, our political parties are better than that.
The Guardia Civil and military justice
Summary trials are an anachronism first introduced in the Militia Act of 1868
 |
Military officers should not be
dispensing criminal justice!
|
I
open by noting my full support and endorsement of Tim Dunne's
article which appears to cause grief to my friend, Edmund Thomas.
I share his viewpoint. Let me explain why.
A
Summary Trial is not a competent and impartial tribunal
For
a number of reasons, summary trials as currently conducted by the Canadian
military are a relic of the Middle Ages. They are also an affront to the Rule
of Law.
Consider
its main characteristics: 1. Presiding officers of Summary Trials are normally
Commanding Officers who lack any pretense of "independence" and
"non-affiliation" with the accused or witnesses. 2. The accused has
no right to counsel which likely contravenes sub-para 2.(c)(Xii) of the Canadian
Bill of Rights. 3. The trial process is not governed by any rules of
evidence including the non-compellability of the accused to be a witness
against himself; adverse inferences from the accused silence; or, spousal
privilege. Trial provides full reliance on hearsay and opinion evidence. 4. The
accused cannot make any Charter arguments that may lead to a
stay of proceedings or the dismissal of the case. The level of disclosure is
not as thorough as the one provided by a court martial. 5. There is no
transcripts of summary trial proceedings. 6. There is no right of appeal
of a verdict or a sentence pronounced by a Summary Trial. 7. An accused
can be sentenced to detention and can be saddled with a criminal record. All
this is contrary to the conclusions reached by the UN Human Rights
Council on the integrity of the justice system which it sees it as a
"pre-condition of democracy and the Rule of Law":
88. Military tribunals, when they exists, must be an
integral part of the general justice system and operate in accordance with
human rights standards, including respecting the right to a fair trial and due
process guarantees set out, inter alia, in articles 9 and 14 of
the International Covenant on Civil and Political Rights.
Canada's military justice system has not yet lost its moral legitimacy, but it will -- a reply to Tim Dunne
Rather than post a comment to Mr. Dunne's post, I thought it important to write a separate reply since Mr. Dunne's article suffers from several serious factual omissions and presents an inaccurate picture of both the Canadian military summary trial system as it now exists, and of the regime that will replace it once Bill C-77 comes into force.
Mr. Dunne appears to believe that, on one hand, military trials are hell holes of injustice in which CO's trample on the rights of their subordinates, while on the other, Bill C-77 will usher in an era in which military justice will conform to "contemporary Canadian values". He is wrong on both counts. The military trial in its current form is in serious need of reform, but contains important safeguards and benefits for service personnel, none of which Mr. Dunne mentions. Bill C-77, however, merely pretends to be a non-penal statute. It will retain the CO's power to punish subordinates, while removing all the protections that service members currently enjoy.
Canadian Parliament has replaced the Summary Trial System with a non-penal and non-criminal procedure in 2019. The Canadian military has yet to adopt it.
Among advanced democracies, Canada's military still relies on the "summary trial' system. A system largely unchanged in 331 years and whose range of punishments includes the loss of liberty while denying members: a) right to be represented at trial by legal counsel;'and b) a right of appeal the verdict or sentence.
In 2015 the Canadian Parliament introduced Bill C-77 aimed at replacing the Summary Trial system by a non-penal and non-criminal summary hearing system.
This Bill was given Royal Assent on June 21, 2019. This is now the law.
A year later, SC 2019, C. 15 has yet to be put into force by the Canadian military whose leaders still rely on the 'summary trial' procedure to enforce discipline at the unit level.
Sunday, July 26, 2020
A comment on the latest white paper
The paper's unstated but central premise is that concern over sexual assault in the armed forces is properly the beginning and end of such congressional interest as there is in restructuring the Uniform Code of Military Justice to transfer the commander’s power over the disposition of charges in major cases to a judge advocate who is independent of the chain of command. While dismay over the persistence of sexual assault has certainly (and appropriately) contributed powerfully to continuing congressional interest in modernization, the need for this structural reform transcends such cases. As a result, the paper’s comparative assessment of military and civilian prosecution and conviction rates is basically misplaced. Having an independent legal professional make the disposition decision in all serious cases is the sensible, necessary step regardless of the impact of that overdue reform on the court-martial body count.
Saturday, July 25, 2020
All present and (nearly all) accounted for
General and special courts-martial:
Army, 628
Navy, 245
Marine Corps, 254
Air Force, 415
Coast Guard, 14
Total, 1,556
Non-judicial punishment:
Army, 24,852
Navy, 4,323
Marine Corps, 6,728
Air Force, 4,055
Coast Guard, unknown
Total, 39,958
These data exclude FY19's 322 summary courts-martial. If they were included, they should be added to the NJP numbers. See Middendorf v. Henry, 425 U.S. 25 (1976). That would drive the grand total of disciplinary cases up to 41,836, with a whopping 96.3% handled non-judicially. The missing Coast Guard masts would yield a slightly higher figure.
Remedial action for German soldiers
A runaway Carabinieri barracks
Very harsh words echoed by those of Defense Minister Lorenzo Guerini, pronounced before the carabinieri of a Roman barracks during an official visit: "The first victims of these very serious events are you - said Minister Lorenzo Guerini -- 110,000 men and women who dress this uniform with unparalleled dedication, generosity and sacrifice. The facts of Piacenza as they emerged are very serious and unheard of. And even more serious is that these events occurred during the health emergency, at a time when armed forces and law enforcement agencies were busy with every effort to give support to citizens. It is unacceptable that while the whole Army was fighting in such a delicate moment in the service of the citizens, others committed similar actions, unworthy for those who wear the uniform of the carabinieri."Globalist has a detailed account of the investigating magistrate's report here. This will not end well.
Thursday, July 23, 2020
Amazing but true: closed trial of a 4-star officer
The trial of the former Inspector General of Police, Gen Kale Kayihura, is being held in camera, the chairman of the military court, Lt Gen Andrew Gutti, has said.
However, Gen Gutti declined to divulge more details on when Gen Kayihura’s trial started and why it’s being conducted in camera.
“It took off but it will be open for public consumption at a later stage,” the chairman of the court said by telephone yesterday.
The four star army general is currently out on bail. . .
What?
Wednesday, July 22, 2020
Exam question
What, if anything, would you do if you were this sailor's commanding officer or department head?
Explain your answer. (No peeking at your neighbor's laptop.)
Tuesday, July 21, 2020
R v Bourque, 2020 CM 2008 - The Rule of Law and the Chief of the Defence Staff
From a practical perspective, the judgment was an ultimatum to the Chief of the Defence Staff (CDS) of the Canadian Forces to rescind an order that military judges have repeatedly determined was inconsistent with the Canadian Charter of Rights and Freedoms (the Charter).
The order in question (which is the most recent version of a similar order that had been issued on previous occasions) purports to establish disciplinary authority of the Deputy Vice Chief of the Defence Staff over military judges posted to the Office of the Chief Military Judge.
In R v Pett, 2020 CM 4002 and R v D'Amico, 2020 CM 2002, military judges Commanders Pelletier and Sukstorf, respectively, held that this order infringed the right of an accused, brought before a court martial, to be tried by an independent and impartial tribunal, as guaranteed by section 11(d) of the Charter. In both of those cases, the presiding military judge held that the order was of no force or effect. As a result of the declarations, both military judges held that the prosecutions could proceed: if the order was of no force or effect, the military tribunal could maintain its independence and impartiality.
Those judgments are now 5 months old. However, as courts martial are statutory courts, and not plenary courts of inherent jurisdiction established under section 96 of the Constitution Act, 1867, the declarations regarding the constitutionality of the order only applied to those specific proceedings. They did not, and could not, constitute a broad declaration under section 52 of the Charter, that would, in effect, quash the order. Thus, the CDS would have to rescind the order.
He did not.
Consequently, defence counsel before courts martial have repeatedly brought Charter applications in light of this continuing unlawful order. In Bourque, Commander Sukstorf expressly called upon the CDS to rescind what has clearly been determined, by more than one military judge, to be an unconstitutional interference by the executive in military judicial independence and impartiality.
Yet the order remains.
While this can be characterized as an ongoing 'dialogue' between the military judiciary and the senior leadership of the CF, it also points to a troubling concern regarding the respect for the rule of law (or lack thereof) exhibited by CF leadership.
A more detailed examination of the implication of this judgment, and the CDS' response, can be found in this blog article.
Racial disparities in U.S. military justice
The Christian Science Monitor published a feature "Why do Black troops face a harsher form of military justice?"
The article describes disturbing incidents of racial disparities, including an African-American Airman court-martialed and convicted for being six minutes late to a meeting, and post-WW2 statistics in Europe that African-American servicemembers comprised 10% of the force but 80% of courts-martial.
Then on the sunny side:
One encouraging conclusion of the GAO report is that in terms of convictions and punishment, there is no statistical difference between Black and white troops, “except for Black service members in the Navy were less likely to be dismissed or discharged after a conviction,” Brenda Farrell, director of the GAO’s Defense Capabilities and Management Team, told lawmakers.
In other words, she said, though Black service members were more likely to be prosecuted, they were no more likely – and in some cases, less likely – to be convicted. “That makes sense from what I saw,” Major Gray says. “Once you make it to the court-martial and have all eyes on it, it evens out. It shows that the system works – not always, but mostly.”
This would appear to show that military judicial mechanisms have more capably identified potential racial bias than military prosecutorial mechanisms.
x
Not so fast!
Monday, July 20, 2020
A lawful order?
This is something the GMJR Blog has not tried before...
A few weeks ago a discussion began on Twitter on what is the definition of a lawful order. The aim was to identify a definitive definition of what amounted to a lawful order. Brig. Anthony Paphiti (Rtd), esteemed member of this parish took part and...well I took notes.
I thought it might be a good idea to throw the discussion open to the esteemed readership of this blog to see if the definition can be expanded or refined to the point where it is a truly definitive definition of a lawful order within the jurisdictions which have grown out of the Georgian Articles of War.
The Twitter definition was:
A
direction to a subordinate to carry out an act or refrain from doing an act which
if followed will have a military purpose and which would not amount to a
criminal act, a service offence or civil wrong.
Hopefully, we can get some debate going and some left of field authorities in the comments and ultimately, the definitive definition. To get things going, here are some questions:
1) Must an order be nescessary? Can an unnescessary act have a military purpose?
2) Is a commander required to have a reasonable belief that the order is necessary?
3) Can that belief be a mistaken belief?
4) Is the military purpose judged by a subjective or an objective test?
Civil guards and military justice
For example:
What goes here?
Further to the conversation on disposition of criminal charges involving military personnel, FoxMedia28 reports , what I will class as a case of concurrent jurisdiction.
A Bryan County man pled guilty in federal court for attempting to persuade a minor to engage in sex.
Michael Wilson, 37, of Richmond Hill, Ga., pled guilty to attempted coercion of a minor to engage in sexual activity. The charge carries a possible sentence of up to life in prison, along with substantial financial penalties and a minimum of five years of supervised release after completion of the prison sentence.
At the end of the piece, the report observes that,
He is also facing military charges, including seven violations of the Uniform Code of Military Justice, Article 120(b), Rape and Sexual Assault of a Child. These charges are pending and relate to multiple minor victims, according to officials.
U. S. military law basically accepts the principle that a conviction in a federal court bars a military trial on the same charges and vice versa--a double jeopardy issue.
It can become more complex when the subsequent prosecution is for, what I will call, other charges that are not the same as those in the first conviction. The report here appears to present a case of mixed charging decisions. There can be many reasons for this not necessarily malign. For example, the conviction relates to a single victim while the pending military case refers to multiple victims with much more serious allegations. It would be interesting to know what motivated the split charging decision--perhaps we'll find out as the military prosecution proceeds.
One simple answer may be the involvement of the accused's wife in the whole sordid affair. See here. The Google seems to show a likely military person (and a possible reason for split prosecutions), but we will not be posting that until there is certainty we have the right individual.
Sunday, July 19, 2020
Kulbhushan Jadhav's case
Pakistan's Press Information Department has issued this statement:
The spokesperson of the Ministry of Law and Justice has denied the allegations that secretly an Ordinance with a view to give reprieve to the Indian Commander Kulbhushan Sudhir Jadhav was promulgated by the Federal Government, without taking the country or the Parliament into confidence with a malafide intent. The allegations are baseless and it is clarified that the Government of India had initiated proceedings against Pakistan in the International Court of Justice (ICJ), in the matter of the detention and trial of an Indian national, Commander Kulbhushan Sudhir Jadhav, who had been sentenced to death by a military court in Pakistan in April 2017. Kindly recall that Commander Kulbhushan Sudhir Jadhav was a RAW operative, who facilitated numerous acts of terrorism in Pakistan, which resulted in the killings of countless innocent citizens of Pakistan. The ICJ gave its Judgment on 17th July, 2019 wherein it observed that “Pakistan is under an obligation to provide, by means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Vienna Convention, taking account of paragraphs 139, 145 and 146 of this Judgment.” In order to comply with the directions of the ICJ, the International Court of Justice (Review and Reconsideration) Ordinance, 2020 was promulgated to provide an effective mechanism of review and reconsideration to Commander Jadhav, of Pakistan’s own choice. Under Article 89 of the Constitution of the Islamic Republic of Pakistan, it is the prerogative of the President of Pakistan to promulgate an Ordinance when Parliament is not in session. The Ordinance was promulgated when the Parliament was not in session. Please note that casting aspersions on the decision of the Federal Government to promulgate the Ordinance in question, reflects a poor understanding in respect of Pakistan’s delicate security issues and international obligations and is an attempt to confuse the public. During the past, many Ordinances were issued by the then Federal Governments. The procedure followed with regard to the present Ordinance is no different so there is no question that the Ordinance was illegally or unlawfully promulgated.
Friday, July 17, 2020
New Canadian Armed Forces policy on hateful conduct
To address racism,
discrimination and hateful conduct the Canadian Armed Forces (CAF) has released
Monday July 13th a new policy in the form of
amending DAOD 5019-0, Conduct and
Performance Deficiencies adding a broad
definition of what hateful conduct is.
According to the new
policy, “hateful conduct” is:
An
act or conduct, including the display or communication of words, symbols or
images, by a CAF member, that they knew or ought reasonably to have known would
constitute, encourage, justify or promote violence or hatred against a person
or persons of an identifiable group, based on their national or ethnic origin,
race, colour, religion, age, sex, sexual orientation, gender identity or
expression, marital status, family status, genetic characteristics or
disability.
This
article from Mrs. Karen Pauls, CBC, reports that military
leadership expects the new policy would help “to address the systemic racism
and discrimination that have permeated our ranks”.
A recent high-profile case
of extremism has brought attention. Last January, FBI arrested Patrick Mathews,
a former CAF reservist who allegedly was a recruiter in the US for a
white-supremacist group. Brigadier-General Sylvain Ménard explained that after
the arrest, it was necessary to work with military lawyers to legally coin the
expression “hateful conduct”.
Among the new measures,
there will be a system to monitor and track alleged incidents with an emphasis
on training and awareness campaigns. CAF members violating the policy are exposed to a
range of sanctions up and including criminal charges.
While the reaction is
generally positive as considered a step in the right direction, some have
raised concerns. For example Tony McAleer - former skinhead, former airborne infantryman and
now co-founder of the non-profit organization ‘Life After Hate’ - would have expected “more stringent screening processes for recruits and
reservists”.
Of note, it seems the enumeration
of discriminatory motives of the definition is exhaustive. In comparison with
section 15 of the Canadian Charter of Rights and
Freedoms, there is no “in particular” or
“notably” which would indicates that other discriminatory motive of the same
nature could be included. For example, there is no mention that violence and
hatred against a group can be based on language.
The Canadian Forces and Hateful Conduct
As I describe in this linked Blog article, we should be cautious about exaggerating what the CF has actually done. The so-called 'new policy' appears simply to be the insertion of a definition of 'hateful conduct' in a pre-existing policy directive, Defence Administrative order and Directive (DAOD) 5019-0. And the new definition covers terrain that is already captured by the Code of Service Discipline and DAOD 5012-0 Harassment Prevention and Resolution.
While this new definition might assist CF leadership in addressing membership of CF personnel in 'hate groups', it does not actually represent a meaningful policy development.
Frankly, the principal objective of this announcement appears to be an opportunity for CF leaders to assert: "Look at what we are doing about this!". It is a fair bit of sound and fury representing fairly little.
Wisconsin National Guard: a poor report card from the Bureau
The Team determined there were a number of gaps and deficiencies in the Wisconsin National Guard’s Sexual Assault Prevention and Response and Equal Opportunity Programs which made these programs less effective often leaving victims and others involved in the program with inadequate care and support. Aspects of these programs were not in compliance with DoD, Service, and NGB policy and as such were being implemented without the proper resourcing and oversight. The Team also found the Wisconsin National Guard’s policy of conducting internal, command-directed investigations of sexual assault allegations to be in direct violation of Department of Defense, Department of the Army, Department of the Air Force, and Chief, National Guard Bureau directives, regulations, and policies.
The team's review of Wisconsin sexual assault investigative files revealed numerous deficiencies that compromised the quality, accuracy, and legality of the investigations. This impacted the quality of the investigations in three ways. First, not all Wisconsin National Guard sexual assault investigators possessed the requisite skills, experience, and training to handle special victims’ crimes. Second, the lack of program oversight impacted the resourcing, timeliness, and thoroughness of the investigations. Third, the investigations did not include sufficient administrative oversight.Coverage by intrepid Capital Times journalist Katelyn Ferral:
https://www.jsonline.com/story/news/investigations/2019/12/05/investigator-rips-wisconsin-national-guard-response-sexual-assault/2614252001/
https://www.jsonline.com/story/news/investigations/2019/12/09/wisconsin-national-guard-boss-resigns-after-report-assault-response/2631914001/
https://madison.com/ct/news/local/govt-and-politics/the-four-horsemen-wisconsin-national-guard-s-own-investigation-describes-a-culture-of-sexual-misconduct/article_97140e8a-b360-5aad-8dc7-bcfec7e2c923.html
Thursday, July 16, 2020
On little cat feet
The FY19 reports of the Judge Advocates General under article 146a(b), UCMJ are now online at the Joint Service Committee on Military Justice site. (The Coast Guard's report is AWOL.) This 82-page document deserves close study because it provides a useful snapshot of the military justice system. As in the past, the data are not presented, well, uniformly. For example, the Army alone distinguishes between cases that have been arraigned and those that have been tried to completion.One thing that emerges, and is pertinent to the current blizzard of preserve-the-current-system-or-Western-Civilization-as-we-know-it-will-wither pronouncements, is the fact that only a small fraction of UCMJ violations wind up in courts-martial; the lion's share -- arguably the ones most closely tied to good order and discipline -- are disposed of through non-judicial punishment.
Here's how the services stack up:
General and special courts-martial:
Army, 628
Navy, 245
Marine Corps, 254
Air Force, 415
Total, 1,542
Non-judicial punishment:
Army, 24,852
Navy, 4,323
Marine Corps, 6,728
Air Force, 4,055
Total, 39,958
These data exclude FY19's 180 summary courts-martial. If they were included, they should be added to the NJP numbers. See Middendorf v. Henry, 425 U.S. 25 (1976). That would drive the grand total of disciplinary cases up to 41,680, with a whopping 96.3% handled non-judicially.
Regrettably, the data do not reveal (1) how many of the 1,542 general and special courts-martial were the result of a refusal to accept NJP, as article 15, UCMJ permits for anyone not attached to or embarked in a vessel; (2) how often personnel who were offered and declined NJP were sent to a summary court-martial; or (3) how often any member sent to a summary court-martial exercised the article 20, UCMJ right to refuse trial in that forum.
Wednesday, July 15, 2020
Life sentence, no provision for appeal
International human rights principles guarantee the right to appeal military court convictions and sentences. Article 14.5 of the International Covenant on Civil and Political Rights provides: "Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law." See also African Charter on Human and Peoples' Rights art. 7.1.1. ("The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force"); Principles Governing the Administration of Justice Through Military Tribunals, 2018 (The Yale Draft), Principle No. 17, ¶¶ 64-65.
Tuesday, July 14, 2020
Offered without comment
4 YO picks up book: “Daddy! This book looks so good. Can you read this to me?”
: “I really don’t think you’ll enjoy this.”
4: “No! I will. Read it.”
[Reads one-half of one sentence]
4: “Ummm never mind!”
7:05 PM · Jul 13, 2020Twitter for iPhone
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