Monday, September 28, 2020

Joint Service Committee on Military Justice § 540F Report

The Joint Service Committee on Military Justice has submitted its subcommittee's Prosecutorial Authority Study report in response to § 540F of the National Defense Authorization Act for Fiscal Year 2020. The report, which cost the taxpayers $109,000 (that's $1185 per page, if you don't count the appendices), can be found here. There's also a one-page summary here. The report's conclusion states:

The JSS-PAS finds that implementation of the alternative military justice system defined by Section 540F is neither feasible nor advisable. Likewise, the JSS-PAS finds that conducting a pilot program for such a system would be infeasible and inadvisable. Commanders are central to the military justice system and the current commander-centric system works. Commanders are trained to make decisions and rely on their experience and the legal advice of their judge advocates to inform those decisions.

Careful study has shown that commanders are well-equipped and capable of decision-making in the field of discipline. Commanders have been proven to make reasonable disposition decisions in penetrative sexual assault cases, and the military justice system compares favorably in terms of reporting, investigation, and prosecution in sexual assault cases with civilian jurisdictions.

Comparing the U.S military justice systems to the systems of allied military justice systems is a false equivalency. Allied militaries, particularly the “Five Eyes” allies, are but a small fraction of the size of the active U.S. military, and the few cases tried in each of those allied militaries is proportionally even smaller (with convictions even proportionately smaller still). Despite having far fewer cases and smaller militaries, changing to prosecutor-centric military justice systems has shown no improvement in reporting, investigating, or prosecuting criminal offenses in the military justice systems of U.S. allies. And in the case of one of those allies, the reform led to an invalidation of the military justice system – something that would be enormously detrimental to the U.S. military, which remains engaged in ongoing combat operations. The U.S. should be wary of change for the sake of change; the data from allied military justice systems does not support any assertion that such a radical change will make our own system better.

Commanders need full authority under the UCMJ to enforce good order and discipline. Commanders must have the full range of tools available to rehabilitate service members capable of continued service, punish those whose conduct risks military readiness, and set the expectation amongst all service members that indiscipline will be handled swiftly by a commander with authority. Parceling out these tools amongst differing authorities with differing perspectives and purposes will only serve to weaken the effectiveness of all of the tools. Divesting commanders of the mechanism to enforce good order and discipline will result in a less effective military and will weaken the national security of the United States.

Sunday, September 27, 2020

The Lorance case

Nathaniel Penn provides a fascinating piece of  investigative journalism in his new article on Army 1st LT Clint Lorance (it's quite long, and I hope he turned his research into a book). This is the sordid saga of a LT whose actions wreaked havoc on those within his platoon, whom a panel (jury) of Army Soldiers convicted of murder, and whom President Trump later pardoned after Fox News transformed Lorance into a weapon in the polarizing culture wars it has helped fuel.  

It's a troubling read, as the reporter details how zealous advocates with their own political agendas used false characterizations and lies to manipulate the Commander-In-Chief, as well as millions of Americans who didn't know better, into believing that the LT wasn't the murderer the facts proved him to be (he was convicted after all) -- instead wrongly portraying him as a scapegoat for supposedly bad policy decisions by the Obama Administration.  One take-away from this piece: facts don't matter, propaganda does.  Not reassuring for a democracy, nor for its military.

Saturday, September 26, 2020


It appears that the Chief of the Defence Staff (CDS) of the Canadian Forces has, in fact, suspended his order of 2 October 2019, entitled: Designation of Commanding Officers with respect to Officers and Non-Commissioned Members on the Strength of the Office of the Chief Military Judge Dept ID 3763 (the 'Designation Order').

It appears that he did so on 15 September 2020.  However, unlike the notoriety of several recent courts martial judgments, which stayed prosecutions in light of the CDS' refusal to rescind the impugned Designation Order, the order suspending the Designation Order was not announced or promulgated notoriously and publicly.

The following Blog post, entitled "Military Judicial Independence: I have heard of orders, and rumours of orders ..." elaborates on the lack of publicity and notoriety of this significant development in the administration of military justice in the Canadian Forces.

It would appear that the principal cause for the recent stays of prosecution in courts martial has been addressed - for now.  However, there remains potential for further applications of a similar nature, based upon the Canadian Forces Organization Order pertaining to the Office of the Chief Military Judge.  Moreover, the broader issue regarding the general application of the Code of Service Discipline to military judges will still be the subject of an appeal (and cross appeal) before the Court Martial Appeal Court of Canada (R v Captain Crépeau, 2020 CM 3007).

U.S. Sanctions on ICC Prosecutor


Courthouse News Services reports that,

The Trump administration announced Wednesday it is placing sanctions on the International Criminal Court’s chief prosecutor, escalating its feud with the global judicial body investigating American military actions in Afghanistan.

Secretary of State Mike Pompeo told reporters that the White House will sanction Fatou Bensouda, the prosecutor of the world’s only permanent court for atrocity crimes, as well as another staff member for their involvement in an investigation into whether U.S. military personnel committed war crimes in Afghanistan.

“These coercive acts, directed at an international judicial institution and its civil servants, are unprecedented and constitute serious attacks against the Court, the Rome Statute system of international criminal justice, and the rule of law more generally,” the court said in a statement on the sanctions.

Thursday, September 24, 2020

The time has come to appoint a new Chief Military Judge (Canada)

This past Monday, 21 September 2020, marks six months since the former Chief Military Judge, Colonel Mario Dutil, retired when he reached 60 years of age, the ‘compulsory retirement age’ (CRA) for members of the Canadian Forces – even military judges.  Since that time, the Deputy Chief Military Judge, Lieutenant-Colonel Louis-Vincent d’Auteuil, has been the de jure Acting Chief Military Judge by virtue of section 165.29 of the National Defence Act

That role was not ‘new’ to Lieutenant-Colonel d’Auteuil; he had filled it for the better part of two years while Director of Military Prosecutions (DMP) attempted, unsuccessfully, to prosecute the former Chief Military Judge, including an unsuccessful application for judicial review when the Deputy Chief Military Judge declined, for compelling reasons, to assign a military judge to preside over that problematic court martial. 

Members of the Canadian Forces have been waiting for six months for the Governor in Council to appoint a new Chief Military Judge. 

Four months after the Chief Military Judge retired, the Chief of the Defence Staff (CDS), General Jonathan Vance, announced his intention to retire, once the Governor in Council named his successor. There was speculation that the CDS’ successor might be announced before the Throne Speech of 23 September 2020; however, that did not happen. 

During the past six months, the Governor in Council has not been inactive. They have appointed several Superior Court and even Federal Court judges. They have enacted regulations. The government even found the time to prorogue Parliament in order to deliver a Speech from the Throne that, frankly, was a little lacklustre and vague about specifics, even when measured against past Speeches from the Throne. 

As I discuss in this linked Blog article: What does this ongoing delay in the appointment of a new Chief Military Judge say about the current government’s commitment to the Rule of Law in the administration of military justice? And, in light of the current 'crisis' in the Code of Service Discipline regarding judicial independence, what might the continued vacancy in this position signal regarding the dialogues between the military judiciary, the leadership of the Canadian Forces, and the political decision-makers who are responsible both for appointing military judges and for enacting any legislative amendments to the Code of Service Discipline?

Wednesday, September 23, 2020

Executive Order on Combating Race and Sex Stereotyping

President Donald J. Trump has issued an Orwellian Executive Order on Combating Race and Sex Stereotyping. It applies to the uniformed services. Quaere: will the implementing agency orders called for by § 6(c)(1) be punitive orders for UCMJ purposes?

Tuesday, September 22, 2020

Trans women in Colombia do not need to certify their military status

 

The Colombian Constitutional Court has decided that a trans-woman does not need to have a "libreta militar", which certifies military service.  The libreta is an official Colombian document which certifies an individual's military status.  The Constitutional Court held that trans women don't need this document because it is only destined for men.  It violates the right to equality to treat a transgender woman differently from a cisgender woman as regards the requirement to serve in the military, which applies only to men.

In addition, the Constitutional Court pointed out that the right to the free development of one's personality seeks to protect the person's right to self-determination.  That is to say, the possibility of adopting a model for one's life in accord with one's own interests, without pressure and in accordance with the respect for the rights of others.

Similarly, one's sexual identity and orientation are inherent aspects of one's internal being, but they must have the possibility of being fully expressed and externalized, and recognized and respected, including by generating or excluding certain legal consequences.

New Judge Advocate General appointed in the UK

The Queen has appointed Alan Macdonald Large (at left) to be the Judge Advocate General on the advice of the Lord Chancellor, the Right Honourable Robert Buckland QC MP, with effect from 1 October 2020. This follows the retirement of HHJ Jeff Blackett (below) who has served as Judge Advocate General since 2004 and was responsible for steering the Service Justice System through the 2006 reforms. In addition, The Queen has appointed Judge Large to be a Circuit Judge on the advice of the Lord Chief Justice of England and Wales, the Right Honourable The Lord Burnett of Maldon. Therefore he will be known as His Honour Judge Large. 

Alan Macdonald Large, aged 59, was called to the Bar by the Hon. Society of the Middle Temple in 1988. He was appointed as a Recorder in 2005, as a Deputy Judge Advocate (a part time judge advocate post now in abeyance) in 2008, and as an Assistant Judge Advocate since 2010. Since the retirement of His Honour Michael Hunter as Vice Judge Advocate General in December 2019, he has served as the deputy to the Judge Advocate General. Judge Large has been responsible for leading the introduction of the Better Case Management (Court Martial) which has significantly reduced delays in the Service Justice System and was also instrumental in re-opening the Service Courts in a Covid-19 secure manner and pioneering remote and hybrid hearings in the Court Martial and Summary Appeal Court.

His Honour Judge Blackett is currently serving as President of the Rugby Football Union for the 2020-2021 season. He remains a Deputy High Court Judge. 




Regina v HM Foot Guards

Numerous media outlets (example here) in the UK have reported that 13 members of the Welsh Guards have been sentenced to 14 days in the Military Corrective Training Centre by their CO for breaking socialdistancing rules. The Guardsmen who were guarding Windsor Castle where HM The Queen and HRH The Duke of Edinburgh are shielding broke social distancing at a party by the River Thames. Four of those involved failed Compulsory Drugs Tests after the event and were discharged from HM Forces under a separate administrative procedure. 

Although the exact charge is unknown, on the face of it this is a concerning sentence, passed by a CO with no legal training in a hearing where legal representation is banded, which is far in excess of the penalty a civilian would receive for the same offence. The sentence is double that which would be expected for the offence of breach of standing orders (even when factoring in the aggravating factors of the wilful nature of the breach and therisk it exposes other members of the unit to Covid-19). If the charge was disobedience of a lawful command, then the sentence is at the bottom of the entry point for intentional disobedience. Although it would be surprising if at this stage Covid-19 procedures had not become part of standing orders and were disseminated in an ad hoc manner. Potentially this suggests overcharging. 

The key issue though, and one which has apparently caused significant anger amongst the junior ranks of the battalion, is the disparity between these sentences and how a civilian would be treated. A sentence of 14 days detention means the offender will spend 14 days without pay in an environment equivalent to a prison but with an enhanced basic training regimethrown in. A civilian could expect a small fixed financial penalty. The Armed Forces are held to a higher standard and those who serve accept that but even with that in mind it is hard to see what good service reason exists to justify treating these Guardsmen so differently to civilian employees serving HM The Queen at Windsor Castle.  

The Guardsmen have an automatic right of appeal to the Summary Appeal Court. It will be interesting to see if any of them exercise their right.

Monday, September 21, 2020

Military justice, other

Hard to know what to file this under (hazing? stupidity?), but the operative words here are: "Major David Landon said he had to either sing the squadron’s song or tackle a burning fire pit." We won't spoil the fun; go read the story.

More misuse of courts-martial in [drum roll] Uganda

Uganda is apparently the world's record-holder when it comes to using courts-martial to try civilians. Consider this jaw-dropper: "Since the start of the second phase of disarmament in November 2004, the UPDF 3rd Division Court Martial has concluded over 500 cases of unlawful possession of firearms by civilians in Karamoja." Details on the latest cases can be found here.

Kulbhushan Jadhav's case -- the sparring continues

Okay, we're going to dispense with links on this. You remember Mr. Jadhav. He's the Indian national sentenced to death for espionage by a secret Pakistani military court. India was denied consular access and the International Court of Justice told Pakistan it had to offer him meaningful judicial review. Pakistani authorities then promulgated an ordinance to achieve that, although it seems to have been done in a way that thwarted review by the legislature. That kerfuffle presumably over, the tussling has gone on for weeks as to who will represent Mr. Jadhav in proceedings in the High Court. Pakistan will not allow an Indian attorney -- even one who is qualified as a QC in the UK -- to appear. From here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza, it also seems that Pakistani lawyers are not exactly lining up to represent him. This is not a surprise given how radioactive the case is and the danger that whoever represents him may be sailing in harm's way. Stay tuned.

What's doing in Congress?

Rep. Jackie Speier and others have introduced the "I am Vanessa Guillén Act of 2020." If you were in Congress, would you create a separate disposition regime only for sex offenses? For doubts about this, see this Washington Post article, quoting Global Military Justice Reform contributor Prof. Rachel E. VanLandingham:

VanLandingham took issue with other parts of the bill, including taking prosecutorial discretion away from commanders only in cases of sexual assault and harassment.

“If the purported conflict of interest exists for sexual offenses, it exists for all other crimes as well,” she said. “The root of the issue is if commanders should have prosecutorial discretion at all.”

A provision for damages would also create a “caste system,” she said, in which sexual assault survivors might be compensated but not other assault victims.

Thursday, September 17, 2020

New judge at Gitmo

From The New York Times.

A colonel in the Marine Corps was named Thursday to preside as the military judge in the long-running death penalty trial of Khalid Shaikh Mohammed and four other prisoners at Guantánamo Bay, Cuba, who are accused of plotting the Sept. 11, 2001, attacks.

The colonel, Stephen F. Keane, is currently serving as the circuit military judge at Camp Pendleton, Calif., the senior judge on the West Coast for the Marine Corps. Before that he was commanding officer of Security and Emergency Services at Camp Pendleton, responsible for the brig, firefighting and policing on the sprawling 125,000-acre installation with 38,000 residents and about 30,000 commuters.

Tuesday, September 15, 2020

Un système de justice militaire jonchée de difficultés d’ordre structurel et organisationnel

Rien ne va plus! 

Dans un rapport publié au printemps 2018, le Vérificateur général du Canada avait ouvertement critiqué la justice militaire comme étant inefficace, entachée de retards et en proie à des «faiblesses systémiques». 

À son tour, en décembre 2018 le Comité permanent des comptes publics de la Chambre des communes a constaté que les Forces armées canadiennes n’avaient pas administré le système de justice militaire de manière efficace, comme en témoignent les retards excessifs tout au long du processus judiciaire.

L’indépendance de la justice militaire n’est pas aussi au rendez-vous

En août 2020, le juge militaire en chef adjoint, le lieutenant-colonel Louis-Vincent d’Auteuil, déclare que son tribunal militaire n’est ni indépendant ni impartial dans sa forme actuelle. [R c. Crépeau]. Plus tôt cette année, le juge militaire Pelletier dans R c. Pett; et la juge militaire Sukstorf avaient annoncé une pareille décision. [R. v. D’Amico]. C’est du jamais vu!

L’étincelle qui a mis le feu aux poudres est probablement une ordonnance émise en octobre 2019 par le chef de l’état-major de la Défense, le général Jonathan Vance, par laquelle tous les juges militaires seront dorénavant soumis à l’autorité disciplinaire du vice-chef d’état-major de la Défense. Tant qu’à moi, je ne vois rien d’étrange à cela. D’abord, selon l’article 60 (1)(a) de la Loi sur la défense nationale tous les militaires de la force régulière sont assujettis au Code de discipline militaire. Encore, selon l’article 4.091(2) des Ordonnanceset règlement royaux le juge militaire en chef ne peut « exercer ni les pouvoirs ni les compétences » d’un officier commandant une unité ou un commandement en ce qui a trait à toute question disciplinaire. Selon moi, le CEMD a donc agi correctement en adressant ce vide juridique. Mais ce qui est remarquable c’est qu’il a fallu tout ce temps avant qu’on se rende compte que les juges militaires sont de jure justiciables sous le Code de discipline militaire ce qui va à l’encontre de l’obligation constitutionnelle selon laquelle les juges, civils ou militaires, doivent être indépendants de l’exécutif.

En désaccord avec la décision du juge d’Auteuil, le Directeur des poursuites militaires a d’ores et déjà demandé à la Cour d’appel de la cour martiale du Canada de réviser cette décision. En temps opportun, cette cour d’appel pourra alors décider de soit renverser ou modifier la décision du juge militaire. Dans un cas comme dans l’autre il est fort possible qu’une des deux parties ne sera pas d’accord avec la décision de la cour d’appel. Il est donc aussi prévisible qu’une des deux parties pourra alors porter sa cause en appel devant la Cour suprême du Canada.

Il est difficile d’évaluer le temps d’un tel parcours de temps mais il faut bien se rendre compte que plusieurs mois vont s’écouler avant d’avoir une décision judiciaire finale. Pendant cette période qui sera plus ou moins longue, les cours martiales seront pour toutes fins utiles paralysées. Elles seront ainsi probablement incapables de rendre justice en temps utile et surtout à l’intérieur des délais imposés par la Cour suprême dans l’affaire R. c. Jordan 2016 CSC 27 entre le dépôt des accusations et la tenue d’une cour martiale.

Appel au nouveau Parlement

Face à cette paralysie du système de justice militaire, le prochain Parlement pourrait agir de son propre chef en envisageant une réforme structurelle de la justice militaire. A titre d’exemple, le Parlement pourrait modifier la loi exigeant comme critère de qualification que le candidat à la fonction de juge militaire se dessaisisse de son statut et de son grade militaire une fois nommé juge à la cour martiale. Alternativement, suivant l’exemple de plusieurs de nos alliés européens, le Parlement pourrait simultanément considérer l’abolition des cours martiales et la création d’une nouvelle division militaire ajoutée à la Cour fédérale. À mon avis, cette alternative serait la meilleure solution, d’autant plus que la Cour fédérale a des salles d’audience permanentes dans tout le pays, avec un compliment qualifié de juges bilingues. La création d’une «division militaire» de la Cour fédérale serait conforme aussi au mandat initial de la Cour, qui est d’assurer une meilleure administration des lois du Canada, comme la poursuite des infractions à la Loi sur la défense nationale.

L’indépendance des juges est une pierre angulaire du système judiciaire canadien. C’est pourquoi, selon la Constitution, le pouvoir judiciaire est distinct et indépendant des deux autres pouvoirs du gouvernement, soit l’exécutif et le législatif. L’indépendance judiciaire garantit que les juges doivent être mesure de rendre des décisions libres de toute influence et fondées exclusivement sur les faits et le droit. Tel que décidé dans Valente c. La Reine, 1995 2 RCS 673

Il importe que la fonction du juge soit «à l’abri de toute intervention discrétionnaire ou arbitraire de la part de l’exécutif». Pour ce faire les juges militaires ne devraient pas détenir un grade militaire ni être soumis aux ordres et aux directives de la chaîne de commandement militaire.

Groundhog Day

Some things don't change, especially if no one is really trying to change them. Since 1972, according to this disturbing and well-worth-your-time piece, the same old systemic racism identified then has remained part and parcel of the military justice system.  According to a GAO report, commanders choose to discipline persons of color at higher rates than whites, and have, consistently, for decades. This has been known since at least 1972, yet it persists.  It is also ironic that the military pounds the table and insists that military justice is and must remain commander owned and operated -- don't give it to some lawyers -- but when it comes to answering tough questions about the unjustified racial disparities in said system, it's only the military lawyers in front of Congress earlier this year stumbling for answers. Not a commander in sight. The commander-owned and operated (and structurally racist,  per the numbers) military justice system apparently only belongs to commanders when they don't have to dodge the difficult questions on Capitol Hill about why they consistently, over decades and still today, punish persons of color more than they do the white service members who look more like them (there's also a huge racial disparity amongst the general and flag officer ranks). Read on for more incredibly disheartening trends regarding equality in the military and its criminal "justice" system. We must and can do better.

Sunday, September 13, 2020

Martial law? Here?

Joseph Nunn of NYU's Brennan Center for Justice has prepared this martial law explainer. Excerpt:
There are no existing federal statutes that authorize the president to declare martial law. However, while Congress has passed a multitude of laws related to domestic military deployment, these laws do not only create restrictions. Congress has also given the president considerable authority to use troops domestically in ways short of martial law. The Insurrection Act, and potentially Title 32 as well, allow the president to deploy the military to assist civilian authorities with law enforcement activities virtually whenever and wherever the president chooses. In some scenarios, a deployment of troops under these statutes might appear similar to a declaration of martial law. These ambiguities and the breadth of the president’s statutory authority point to the need for Congress to pass legislation that better defines the scope and limits of presidential powers — both for martial law and for other domestic uses of the military.
The Brennan Center's full report can be found here.

Thursday, September 10, 2020

For your military justice bookshelf

Jocelyn C. Stewart has a new book that practitioners will want to have handy. It's Shaping the Battlefield: How to Draft Motions in Military Practice. The book "dares you to step away from the 'shared drive' and instead to take a fresh approach with each motion for every case. Jocelyn has dissected her own process and is providing the insight that she derived for your benefit in the form of this book."

According to her law firm website:
What you’ll discover from this book…
  • How To Avoid Temptation When Drafting Your Motion
  • How To Identify Your Remedy
  • When To Consider Multiple Prayers Of Relief
  • Why Facts Are Important
  • Research Methods
  • Systemic Approach To Legal Analysis
  • Procedural Motions Versus Non-Procedural Motions
and much more. 
Often, the most meaningful and effective defense motions are never litigated, but those motions leverage advantage from the government without litigation.

Reforming U.S. military justice

In the U.S. National Defense Authorization Act of 2016 (NDAA), the Congress made significant changes to the Uniform Code of Military Justice (UCMJ) and the President's follow-on Executive Order directed conforming changes and implementation in the Manual for Courts-Martial (MCM). All of the materials are available at the DoD Joint Service Committee on Military Justice website. Should you want to delve more deeply into UCMJ history, the Library of Congress, Military Legal Resources is a good place to start.

    So how did we get here and so what?

    Over the years since the 1983 changes to the UCMJ and MCM have been occasional and focused on one or two recurring issues. In the process there has not been a lot of public discussion to be had--the changes happened, generally for the good. When the appellate courts issued significant and consequential decisions the MCM at least was amended to conform to the appellate law. And there are always recommendations for change in the hopper, some of which make sense and some which require a "Whack-a-Mole" operative to act.

    But now we come to the primary motivation for the significant changes arising from this NDAA--efforts to address the issue of sexual assault and how the military justice system holds people accountable.

    A troubled Congress told the DoD to set up an investigation to identify problems within the military justice system that were a barrier to enforcing discipline as it related to sexual assaults. The Judicial Proceedings Panel was born.
The Secretary of Defense, as required by Section 576(a)(1) of the NDAA for Fiscal Year 2013 (Public Law 112-239) and in accordance with [other laws], established the Judicial Proceedings Panel.

The Judicial Proceedings Panel will conduct an independent review and assessment of judicial proceedings conducted under the Uniform Code of Military Justice involving adult sexual assault and related offenses since the amendments made to the Uniform Code of Military Justice by section 541 of the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81; 125 Stat. 1404) for the purpose of developing recommendations for improvements to such proceedings.

    Over many months the panel took "evidence," held hearings, and produced numerous reports about all aspects of a sexual assault allegation--the identifying of and the treatment of victims, changes to the law defining sexual assaults; and the training, skills, and resources for those prosecuting and defending allegations of sexual assault.

    We had also the Military Justice Review Group.
In August 2013, the Joint Chiefs of Staff recommended that the Secretary of Defense direct a "comprehensive and holistic review" of the Uniform Code of Military Justice (UCMJ) to ensure that the military justice system "most effectively and efficiently does justice consistent with due process and good order and discipline." In October 2013, the Secretary of Defense approved the recommendation and directed the General Counsel of the Department of Defense to conduct a comprehensive review of the UCMJ and the military justice system with support from experts provided by the military Services.

    The recommendations from the MJRG eventually became DoD's proposed changes for the NDAA.

    So how has that gone now we have been operating under the rules made applicable after December 2019. (Some changes took immediate effect; others were phased in and still others did not take effect until 1 January 2020). One of the issues that first arose for trials after the effective changes is what rule or law to follow. We had and continue to have what we call 'bridge cases.' For a case that began before 1 January but was tried after 1 January proceeded on some of the old rules and some of the new rules. These bridge cases are anticipated to go longer (Gene and I have discussed one bridge issue of apparent unlawful command influence concerns--a different rabbit hole beyond this post). 

    So how has everything gone? The simple answer is that we are still adjusting and learning, and it may be some time before we can reflect on the positive or negative effects of the changes. Congress itself has enacted changes that may provide more robust data for analysis. See, e.g., Military Sexual Assault: A Framework for Congressional Oversight, CRS (Updated) September 12, 2017.

    So? Prof. Dave Schlueter (a longtime MJ practitioner and studier of MJ) quickly published a lengthy article about the 2016 changes--an article somewhat descriptive, somewhat analytic, and perhaps somewhat prescient. See David A. Schlueter, Reforming Military Justice: An Analysis of the Military Justice Act of 2016, 49 St. Mary’s L.J. 1 (2017).

    Fine, but now we can do some initial compare and contrast in addition to our own anecdotal experiences.

    On 28 August 2020, the Congressional Research Service issued a Report on Military Justice Reform. See Jennifer K. Elsea and Jonathan M. Gaffney, Military Courts-Martial Under the Military Justice Act of 2016 (28 August 2020).

Wednesday, September 9, 2020

An important decision in Australia

The High Court of Australia today handed down an important military justice judgment. Here is the court's news release on the decision in Private R. v. Brigadier Michael Cowen & Anor., [2020] HCA 31:
Today the High Court unanimously dismissed an application which challenged the jurisdiction of a Defence Force magistrate to try a charge against a member of the Australian Defence Force ("ADF"). The application concerned the extent to which the defence power conferred on the Commonwealth Parliament by s 51(vi) of the Constitution supports the conferral of jurisdiction by the Defence Force Discipline Act 1982 (Cth) ("the Act") upon military service tribunals to hear and determine charges relating to conduct that also constitutes an offence under ordinary criminal law and that is committed in a time of peace when civil courts are reasonably available. 
On 12 June 2019, the plaintiff was charged by the Director of Military Prosecutions ("DMP") with one count of assault occasioning actual bodily harm against a woman with whom he had previously been in an intimate relationship. The alleged offending occurred after a birthday party in Fortitude Valley, Brisbane. It was alleged that, throughout the night, the plaintiff had made unwanted advances towards the complainant. At the end of the evening in a hotel room, the plaintiff, who was intoxicated and angry, allegedly threw the complainant's phone across the room, grabbed her by the throat and pushed her against the wall, shaking her and yelling at her. After the complainant broke free, the plaintiff tackled her to the ground, placed his knees on her chest and choked her until two security guards entered the room. The plaintiff was and is a member of the ADF and the complainant, at the time of the alleged assault, was a member of the ADF. Neither was on duty or in uniform at the time of the alleged offending. 
On 26 August 2019, the plaintiff appeared before a Defence Force magistrate on a charge under s 61(3) of the Act, which provides that a defence member is guilty of an offence if the person engages in conduct outside the Jervis Bay Territory and that conduct would be an offence if it took place in the Jervis Bay Territory. Assault occasioning actual bodily harm is an offence under s 61(3) by reason of s 24 of the Crimes Act 1900 (ACT). The plaintiff objected to the Defence Force magistrate's jurisdiction to hear the charge. The Defence Force magistrate dismissed the objection on the basis that it is sufficient to confer jurisdiction on a service tribunal that the accused was a member of the armed forces when the charged offence was allegedly committed. 
The plaintiff commenced proceedings in the original jurisdiction of the High Court seeking prohibition to prevent the Defence Force magistrate hearing the charge against him. The Court unanimously held that the Defence Force magistrate had jurisdiction to hear the charge. Five Justices of the Court held that s 61(3) of the Act, in obliging defence members to obey the law of the land, is, in all its applications, a valid exercise of the defence power. Two Justices of the Court held that s 61(3) is valid only in its application to offences which, because of their nature or circumstances of commission, have a proven connection with defence force discipline, and that such a threshold was satisfied in the present case.

Canada's court-martial system grinds to a halt!

Ottawa, Canada.  "The Lawyer's Daily" reports that Canada's court martial system has essentially grounded to a halt after a series of decisions taken by military judges which said that the current court martial system violates accused members' rights to be tried by an independent and impartial court. 

These judicial decisions were brought upon by a recent Order issued by the Chief of the Defence Staff (CDS), General Jonathan Vance, to the effect that the Deputy to the Vice Chief of the Defence Staff (VCDS) -- a Regular Forces officer in the rank of Major-General -- has now been given the powers of a Commanding Officer with respect to any disciplinary matter involving any member of the military judiciary. 

Court martial is neither an independent or impartial tribunal

According to two separate defence counsel in two recent courts martial, the CDS order flies in the face of the requirement for an independent and impartial tribunal as laid out in section 11(d) of the Canadian Charter of Rights and Freedoms

In two separate trials, defence counsel argued that the accused would not be tried before an independent and impartial tribunal. This led the presiding judge in each of these trials, Lieutenant-Colonel Louis-Vincent d'Auteuil, to a stay of proceedings; one in R v. Edwards 2020 CM 3006 and another in R v. Crépeau 2020 CM 3007. The Director of Military Prosecutions (DMP) caused the filing of a separate notice of appeal to the Court Martial Appeal Court in each instance in the result that for the foreseeable future the Canadian court martial system is in a standstill 

This outcome is hardly surprising. Judges presiding over courts martial in Canada hold a military rank and as such, they are subject to the Code of Military Discipline, the Code of Values ​​and Ethics and a host of regulations, orders and directives published by the chain of command and the Department of Defence.  Therefore as commissioned officers, military judges also have multiple obligations and duties as set out in the Queen’s Regulations and Orders. Consequently, Canadian military judges are not independent since they are not immune to disciplinary constraints and are subject to a wide variety of military obligations and regulations. Contrast this with the UK, Australia and New Zealand, where court martial judges are civil magistrates.

The current situation which contrasts with other Canadian courts is stark, and problematic. Uniformed personnel are entitled to and deserve a modern, equitable system of justice that Canadians would be proud of.  However, this is presently not the case. Much much-needed modernization and enhanced fairness of the military justice system is required and there is an urgency to get this done before paralysis sets in any further.

2018 AG Report:  impetus to bring about systemic changes to the Court Martial System 

While this matter is being reviewed by  an appellate court, the Canadian military in general and the Office of the Judge Advocate in particularly should seriously consider the results of the Spring 2018 Report on the Administration of Justice in the Canadian Armed Forces tabled in Parliament by the Auditor General. The AG report concluded as follows:

3.87 We concluded that the Canadian Armed Forces did not administer the military justice system efficiently. There were delays throughout the various processes for both summary trials and court martial cases. In addition, systemic weaknesses, including the lack of time standards and poor communication, compromised the timely and efficient resolution of military justice cases.

3.88 We also concluded that the Office of the Judge Advocate General did not provide effective oversight of the military justice system and did not have the information needed to adequately oversee the military justice system.

In my opinion, this situation is unlikely to change until the CDS rescinds his order and the matter is eventually decided upon by the Supreme Court of Canada. In the interim, the Canadian military courts are inoperative.

POW honor

The ICRC has posted Jemma Arman's informative commentary on protecting the honor of POWs. You can find it here. Excerpt:
The Third Convention places honour at the centre of protections for prisoners of war. This begs the question: what does ‘honour’ mean in the 21st century? There are at least three challenges to overcome in discerning a modern protective understanding of the term honour and how it is to be respected while detaining prisoners of war.

First is the reality that the term ‘honour’ is not as commonly used as a concept as it was previously (see for example, the usage trends on Google’s Ngram Viewer).[1] It can conjure up a rather old-fashioned picture of the world, of knights, chivalry, and damsels in distress. Imagine Jules Verne’s Phileas Fogg on his 80-day adventure around the world, facing off against the ‘Yankee’, Colonel Stamp Proctor, to avenge the insult to his honour. Or Shakespeare’s Henry V riling up his men on Saint Crispin’s day, declaring ‘if it be a sin to covert honour, I am the most offending soul alive’. For musical lovers, it might be the dramatic dual scenes of the acclaimed Broadway hit Hamilton. These sensationalized notions of honour could tempt one into thinking that the respect for honour is antiquated and divorced from the realities of modern warfare.

The concept of honour, as utilized by the Third Geneva Convention, provides the basis of core protections for all prisoners of war, and the meaning ascribed to it cannot be narrowly limited to any one historic notion of honour. Interpreting the concept of honour requires us to move beyond mere caricatures and seek the true essence of the term as it applies to all people. The Third Convention reflects and strengthens the universality of the notion of honour: all prisoners of war, regardless of rank, race, nationality, religion, political opinion, gender, age, or disability, are entitled to this respect.

Tuesday, September 8, 2020

Military Crimes - Rohingya - Myanmar


CBC News brings a report that,

Two men believed to be deserters from Myanmar's army are in the custody of the International Criminal Court at The Hague after reporting their participation, under military orders, in the 2017 campaign of killing and rape of countless Rohingya Muslim civilians.

Their recent arrival at The Hague in the Netherlands, confirmed by sources to CBC News, is a turning point in the effort to seek justice for Myanmar's Rohingya Muslims.

The information they bring will also "significantly advance" the court's investigation, one source told CBC.

In statements initially made on videos filmed inside Myanmar this summer, the two former privates, 33 and 30 years old, provide often disturbing particulars to previously documented reports — including names of battalions involved in the campaign, the villages they destroyed, as well as the locations of mass graves they say they helped dig and fill with bodies of people they killed.

Sunday, September 6, 2020

Court packing as a good thing

A bumper crop of new judges have been appointed to India's Armed Forces Tribunal. The Chandigarh Tribune has the story here. Excerpt:
The Central Government has appointed seven new members to the Armed Forces Tribunal (AFT), giving a partial fillip to the large number of posts of members lying vacant in the Tribunal, owing to which some benches had become non-functional.

The move comes when new rules notified by the Central Government for the appointment of AFT members were under challenge before the Punjab and Haryana High Court as they violated certain provisions contained in the AFT Act and also prejudiced the independence of the tribunals.

Law of War

The Reporter, a USAF legal publication has W. Hays Parks and the Law of War.

Perhaps more than in any other area of law, scholars of international humanitarian law (IHL) hold persuasive power over practitioners.[2] This may be partially explained by the inherent ambiguity of international law, and partly because the International Court of Justice (ICJ) statute expressly accepts “teachings of the most highly qualified publicists” as an authoritative source.[3]

Among those highly qualified publicists, perhaps no one has had more influence on the United States’ understanding of IHL than W. Hays Parks, who is often described as “the preeminent authority in the United States on the Law of War.”[4]

Saturday, September 5, 2020

COVID-19 and military justice (police blotter)

What we've got here is
failure to communicate.
What happens if a soldier violates general orders relating to COVID-19 precautions? Here's a recent report from Ft. Benning compliments of Military.com:
  • On May 1, a private first class received a Field-Grade Article 15 for wrongfully failing to obey curfew hours of 10 p.m. to 5 a.m. and was punished with reduction to E2, forfeiture of $971 in pay, 45 days extra duty and 45 days restriction. The reduction and forfeiture were suspended.
  • On June 6, another second lieutenant received a general officer memo of reprimand for traveling to Auburn, Alabama to drink at a bar.
  • On June 13, staff sergeant received a field-grade Article 15 administrative punishment for wrongfully traveling to a prohibited place, and was received reduction in rank to E5, 45 days extra duty and an oral reprimand.
  • On June 28, a sergeant received a company-grade Article 15 for traveling off post for nonessential activities, and was punished with forfeiture of $674 pay.
  • On Aug. 3, a staff sergeant received a company-grade Article 15 for traveling outside of the mileage radius and was punished with forfeiture of $879 in pay and seven days’ extra duty.

Wednesday, September 2, 2020

An appeal worth following: R v Crépeau

The court martial judgement in R v Crépeau, 2020 CM 3007 [Crépeau]. has been published.  This is a companion judgment to R v Edwards, 2020 CM 3006 [Edwards] - both were delivered by the Deputy Chief Military Judge, Lieutenant-Colonel L-V. d'Auteuil on 14 August 2020 and both relate to judicial independence.  However, unlike the application in Edwards (which was essentially the same as the applications in R v Pett, 2020 CM 4002 [Pett], R v D'Amico, 2020 CM 2002 [D'Amico], and R v Bourque, 2020 CM 2008), in Crépeau, defence counsel challenged not only the order of the Chief of the Defence Staff (CDS) that purported to place military judges under the disciplinary jurisdiction of the Deputy Vice Chief of the Defence Staff, he also served a Notice of Constitutional Question regarding the statutory provisions that place military judges under the jurisdiction of the Code of Service Discipline generally.

Director of Military Prosecutions (DMP) has served notices of appeal in both cases.  There is a distinct possibility that these appeals will be heard separately.  The court martial in Edwards was conducted in English; Crépeau was conducted in French.  And the accused can request that their appeals be conducted in their 'First Official Language'.  If they are conducted separately, I suggest that Crépeau is the appeal to follow.

I have suggested previously, in this blog as well as my own, that the immediate impact of Edwards and Crépeau includes the likely willingness of military judges to impose stays of prosecution for most or all courts martial until the CDS rescinds his order.  I have likened this to a 'juridical game of chicken'.  There is no indication thus far that the CDS is willing to back down.  One need only peruse the court martial calendar for the months of September and October to note that most of the matters scheduled are applications.  It does not take a genius to figure out that these applications will be similar to the application in Edwards.  As I have mentioned previously, there is a very real risk that the CDS's stubborn refusal to rescind his order could cause courts martial to grind to a halt.  But this may only be relevant in the immediate future.