Prosecution and Defense of Sexual Assault in the (US) Armed Forces, 2017

Report on Investigative Case File Reviews for Military Adult Penetrative Cases Closed in Fiscal Year 2017. Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces, October 2020.

Military Court Rules of the United States (LexisNexis 6th ed. 2020)

Available now from LexisNexis.

A hole in the SOFA

What happens when U.S. contractors are excluded from the protection afforded by a Status of Forces Agreement (SOFA). It's not pretty . . . in Kuwait. Doug Bock Clark reports here in Sunday's New York Times Magazine.

Should this mid's federal case be dismissed?

A midshipman at the U.S. Naval Academy is suing to block his dismissal. Ultimately, the Secretary of the Navy must approve such a dismissal. The case raises the usual issues of exhaustion, immunity, and compliance with legal procedures, but with a novel twist based on President Donald J. Trump's Sept. 22, 2020 executive order on combating race and sex stereotyping. The Capital Gazette's Heather Mongilio has the story here. Federal District Judge Ellen Hollander will hear the case today.

Australian Special Forces under fire

Dr. Christopher Elliott writes here about longrunning issues involving Australia's Special Forces. Excerpt:

Disbanding the special forces Naturally, the fate of Australia’s special forces should ultimately be a captain’s call from Australia’s civilian leadership — perhaps the prime minister himself. And here, there is a compelling argument to be made that the command be disbanded. To some, this might appear a radical suggestion — a sweeping change without precedent. But military units have been moved, shuffled, re-branded, disbanded and reactivated frequently throughout Australia’s history. Surely, a pattern of war crimes allegations is as good a reason as any to make some major institutional changes. The Australian Defence Force will, of course, still require a special operations capability for complex operations abroad. Special forces do provide an advanced infantry skill set that is sometimes useful for policymakers — be it for a counter-terrorism raid or light-footprint reconnaissance tasks. But these needs can be met without continuing to feed billions of dollars to an elite force that is isolated from the rest of the military.

Town Hall 9 (Kunduz)

Please join us at 9:00 a.m., Monday, Nov. 2, for a conversation with Prof. Brian Lee Cox. His topic will be Military Accountability and the Attack on the MSF Trauma Center in Kunduz. Click here for the meeting link.

How the Canadian military's justice system responds to sexual assault? Does it?

A brilliant and exhaustive exposé titled "An Examination of How the Canadian Military's Legal System Responds to Sexual assault" written by Dr. Elaine Craig, Associate Professor, Schulich School of Law at Dalhousie University and Research Director, Canadian Center for Legal Innovation in Sexual Assault Response has recently been published in the Dalhousie Law Journal [2020 43.1 Dal L.J.]. 

This preliminary study is the first of its kind review of the Canadian military's sexual assault cases.  It yields several important - if not troubling - findings such as:

• First, the conviction rate for the offence of sexual assault by Canadian courts martial is dramatically lower that the rate in Canada's civilian criminal courts. 
• Second, the difference between acquittal rates in sexual assault cases in these two systems appears to be even larger.
• Third, since Operation HONOUR [The military mission to prevent and address sexual misconduct within its ranks] was launched in 2015,  only ONE soldier has been convicted of  sexually assaulting a female member of the military by the military justice system. One other conviction was overturned by the Court Martial Appeal Court of Canada (CMAC).
• Fourth, plea bargains by which an accused could avoid Criminal Code convictions by pleading guilty to a Code of Service Discipline like Conduct to the Prejudice of Good Order and Discipline  have been used in some cases involving aggressive sexual attacks.
  
• Fifth, sanctions for even these serious sexual attacks resulted in fines and reprimands.
• Sixth, the decisions of  military judges in some cases suggest a 'critical failure' on their part to recognize the Canadian military's culture of hostility to women documented in the May 2015 External Review into Sexual Misconduct and Sexual Harassment in the Canadian Forces by the Honorable (retired Supreme Court Justice) Marie Deschamps.

We trust and hope that both the judiciary and parliamentary authorities will become cognizant with the results of this impressive study.

Meanwhile, the author promises to pursue her study of this matter to address, inter alia, whether the Canadian's military legal system should continue to maintain jurisdiction over sexual assault cases.  

Professor Craig is to be congratulated for the quality and thoroughness of her research and writing

Australia's Abu Ghraib -- or worse

The Age's Nick McKenzie and Chris Masters report here on an investigation into grave misconduct by Australia military personnel in Afghanistan.

Australian special forces soldiers were fuelled by "blood lust" when they tortured and executed prisoners in Afghanistan and then covered up their actions, according to a briefing handed to military chiefs which likened the conduct of some troops to that of American soldiers in Abu Ghraib. The confidential report was commissioned in 2016 by then chief of army Angus Campbell and is the most detailed and significant internal military dossier to be aired about the special forces' war crimes scandal that took place during the war in Afghanistan between 2001 and 2015. It was the catalyst for the soon-to-be-completed four-year Inspector-General inquiry into war crimes by senior judge Paul Brereton [left].

Watch for high seas when Justice Brereton's report is finally made public.

R v MacPherson et al. - military judicial independence in Canada redux

On Friday, 23 October 2020, military judge Commander S. Sukstorf handed down her written reasons for judgment in R v MacPherson and Chauhan and J.L., 2020 CM 2012.

This is the most recent judgment in what has now been an 8-month examination of military judicial independence under the Code of Service Discipline for the Canadian Forces.

Global Military Justice Reform contributor Rory Fowler offers some observations here. 

The judgment in MacPherson et al. will not be the last word on the matter.  At present, the court martial judgments in R v Edwards, 2020 CM 3006, R c Crépeau, 2020 CM 3007, R c Fontaine, 2020 CM 3008, and R v Iredale, 2020 CM 4011, have been appealed by Director of Military Prosecutions (DMP), on behalf of the Minister of National Defence, and the appeal for R c Crépeau is also the subject of a cross-appeal.  By order of the Chief Justice of the Court Martial Appeal Court of Canada (CMAC), dated 19 October 2020, these appeals will be heard together before a bilingual judicial panel.

It is entirely possible, if not likely, that MacPherson et al. will be added to that docket.  Those appeals likely will not be heard before January 2021.

Contrary to prior dire predictions that the court martial process would grind to a halt in the wake of Edwards, Crépeau, Fontaine, and Iredale, the judgment in MacPherson et. al., in the wake of the decision by Chief of the Defence Staff (CDS) on 15 September 2020 to suspend his impugned Designation Order of 2 October 2019, has set the stage for courts-martial to proceed, at least in the near future.

What the CMAC will make of the issues being raised in the appeals is an entirely different matter. 

Why was this case tried in a military court?

A military court in Gaza has tried three civilians for participating in a Zoom conference with Israelis. According to this account:

Hamas authorities convicted the three activists under military law, rather than the civilian penal code. The conviction — weakening revolutionary spirit — harkens back to statutes encoded in 1979 by the Palestine Liberation Organization, well before the establishment of Palestinian civilian legal institutions in Gaza and the West Bank. “Bringing civilians before the military courts is a clear violation of the Palestinian Basic Law,” the detainees’ defense said in a statement on Monday. Human Rights Watch director for Israel and Palestine Omar Shakir hailed the activists’ release in a tweet, but called the court’s decision to convict them “outrageous.”

Quote of the Day

"Every single thing I did was for the good of this country and to try and do my job to the best of my ability." Clint Lorance as quoted in this article from Military.com. He hopes to become an attorney and reform military justice. Query whether his pardon from Pres. Donald J. Trump moots his collateral attack on his conviction. Are you persuaded by the district court's decision?

Hazing (Italian Air Force)

The Italian Council of State has ordered the reinstatement of Giulia Schiff, an Air Force cadet who was subjected to hazing. Now the eight hazers are facing trial. Details here thanks to the Daily Mail.

Col. Spletstoser can sue

The U.S. District Court for the Central District of California has ruled that a retired Army colonel's lawsuit against the government arising out of claimed misconduct by an Air Force general officer who is now the Vice Chairman of the Joint Chiefs of Staff can proceed. Here is the decision and here is the Reuters report.

PACER, military justice, and politics

The military justice system's absence from the PACER system is figuring in a contested election for county prosecutor in Lisbon, Ohio. One candidate is questioning his opponent's claimed experience; the other says his cases as an Army judge advocate were in the military justice system. The newspaper checked on PACER and came up empty, which is not a surprise. FWIW, a search just now of Westlaw's military cases reveals no reference to the former JAG. That's of course possible if none of his cases went up on appeal. As more ex-JAGs seek public office, this could be a recurring problem. One thing that all lawyers -- especially those who may have long-term political ambitions -- might want to do is keep a running list of every case they have handled.

Another odd case from Pakistan

Pakistan has made it a practice to try civilians by court-martial. The validity of many such cases is currently on appeal. The latest issue concerns a civilian employee of the Navy wnho claims he was given an honorary naval appointment so he could be prosecuted. He also claims the offense for which he received a 7-year sentence was not included on the schedule under the Navy Ordinance 1961. A panel of the Supreme Court has instructed him to apply to the High Court. Details here.

Fakers

Rachel Monroe has a riveting piece in the October 26, 2020 issue of The New Yorker about the people who fake military service -- and the people who unmask them. It's not about military justice, but people who visit Global Military Justice Reform will find it well worth reading. Predictably for The New Yorker, the writing is splendid.

Orders, lawful and unlawful

Just Security has this post by the Editor on lawful and unlawful orders. Excerpt:

Hypotheticals worth pondering include whether General [Mark A.] Milley could have been prosecuted had he refused to walk with President [Donald J.] Trump to the church door, or whether an order to paint over “Black Lives Matter” on a city street would have been legal, if the president asserted that these actions served the military purpose of force protection, including protection of the commander-in-chief at or near the White House. Recently, the Marine Band was required to play at what certainly seemed to be a campaign-related White House event. Would the piccolo player have had a defense if she refused to play John Philip Sousa’s immortal “Stars and Stripes Forever”?

Is it time for Canada's Parliament to step in?

The current logjam in Canada's military justice system is vividly described in this article by Lee Berthiaume for the Canadian Press. Excerpt:

Retired colonel Michel Drapeau, who is now a lawyer specializing in military cases, says this latest dispute over Canada’s military justice system underscores what he believes is a desperate need for Parliament to intervene and launch an overhaul. Drapeau has long argued that military judges are not impartial because they are, first and foremost, members of the Canadian Armed Forces. He says Vance’s order simply confirmed that fact in a way that could not be ignored. "Up until then, they probably looked at themselves as being independent," Drapeau said of the military judges. "They convinced themselves they were. But now it became loud and clear. … They’re full-scale members of the military." While he supports the need for courts martial to hold military members to account, Drapeau has been pushing for years for Canada to follow allies such as Britain in making judges truly independent of the military. His ideas range from using civilian judges or former military lawyers to preside over courts martial to making a military division within the Federal Court. However, he says whatever steps are taken will need the involvement of the government and Parliament, which have tended to leave all issues involving discipline within the Armed Forces to the military. "The parliamentarians, it's up to them," Drapeau said. "They need to take this in hand, and they haven't."

La normalisation du droit militaire pénal camerounais – un défi de taille

Dans sa Revue annuelle de 2018-2019 (Volume 57) la Société internationale de Droit militaire et de Droit de la Guerre a publié un savant article intitulé:  « Le droit pénal militaire camerounais: combat inégalitaire entre normalisation et spécialisation d’un droit exceptionnel » par le Dr. Tokwene A Ndjokou Eloubwe Ilate de l’Université de Yaoundé II.

Selon le Dr. Ilate, le rapprochement du droit pénal militaire et du droit pénal ordinaire est une constante du discours et des joutes politiques et législatives de son pays. Il nous rappelle qu’à son époque Napoléon Bonaparte “rêvait déjà d’une justice unique pour tous les citoyens.” Or, dit-il, la réalité conduit pour des raisons diverses, propres à chaque pays, à la survie du droit pénal militaire du côté du droit pénal de droit commun. Il rajoute cependant qu'il faut "se rendre à l’évidence que les réformes observées en droit pénal ordinaire pénètrent [que très peu] le droit pénal militaire . Le défi étant de son intensité.

L’auteur conclut d’autre part que le la justice militaire au Cameroun a toujours été regardé comme un droit d’exception même si aujourd’hui le législateur s’en défend en considérant que la juridiction qui1ui applique est une juridiction à compétence spéciale. Néammoins, selon lui « quelque soit le pays où l’on se trouve, les résultants des travaux éffectués sur la justice militaire tirent la sonnette d’alarme de non-observation des Principes Décaux (voir note ci-bas) à travers le monde. » 

Il conclut que la nature exacte du droit pénal militaire actuel au Cameroun est encore loin de devenir un droit pénal commun et qu'il demeure un droit pénal d’exception.

Voir « Les Principes des Nations-Unies sur l’administration de la justice par les tribunaux militaires : pour une justice militaire conforme au droit international » par la Dre Claire Callejon publié dans Droits fondamentaux, no 6, janvier-décembre 2006

New home for an important journal

The Military Law and the Law of War Review, long published by the International Society for Military Law and the Law of War, will now appear junder the imprint of Edward Elgar Publishing. Watch this space.

The Briggs argument

SCOTUSblog's Evan Lee has written this informative summary of the Supreme Court's hearing in United States v. Briggs. The respondet was represented by Global Military Justice Reform contributor Stephen I. Vladeck of the University of Texas Law School. The court heard the case by ttelephone.

More on The Orders Project

This article captures the other view of what The Orders Project entails.

Shane Harris, Volunteer lawyers will advise military personnel who question the legality of orders during protests, election disputes. Washington Post, 9 October 2020.

The Project is conceived as a non-partisan, not-for-profit rule of law initiative.

A group of lawyers is offering advice to military and National Guard members who worry they may be given unlawful orders if deployed during protests or disputes over next month’s elections.

The Orders Project was formed in response to the use of force against protesters this summer in Lafayette Square, two of the founders said in an interview Friday.

The protests, which followed the death of George Floyd in police custody in Minneapolis, prompted confusion among law enforcement and National Guard leaders. Some officials said they had no warning that the U.S. Park Police, which commanded the operation, planned to move against protesters and that the crowd could have been moved out of the area without the use of force.

The legal group anticipates that military personnel might find themselves in the same position this fall, and they may question whether orders they receive are legal.

Town Hall 9, Nov. 2, 2020, 0900

Global Military Justice Reform's Town Hall 9 will be held on Monday, Nov. 2, 2020, starting at 9:00 a.m. (US East Coast time). Our presenter will be Brian Lee Cox, a retired U.S. Army judge advocate who now teaches at Cornell Law School. Brian's topic will be "Military Accountability and the Attack on the MSF Trauma Center in Kunduz." For background reading, you may want to review his Oct. 3, 2020 guest post on Lawfire, available here. MajGen Charlie Dunlap's introduction is also worth reviewing. See you at the Town Hall. Invitations will be by separate email. Bring a friend.

Sad news in the Global Military Justice Reform community

This (Canadian) Thanksgiving weekend, our community received the sad news that our friend and colleague, Major (retired) Charles Edmund Thomas passed away suddenly and unexpectedly on October 10th due to a heart attack.  Edmund was a long-serving member of the Canadian Forces, principally serving as a legal officer in the Office of the Judge Advocate General (JAG) of the Canadian Forces.  Edmund was a a passionate advocate who served in a variety of functions in the Office of the JAG.  

In particular, he served for a number of years with Defence Counsel Services and was a diligent and resolute advocate for CF personnel brought before courts martial.  Even after he retired from the Canadian Forces in 2017, his passion for military justice led him to pursue a PhD in Law at the University of Western Ontario in order to further scholarship in this field.  He was working toward this goal at the time of his death.  

Edmund joined the Global Military Justice Reform blog as a contributor earlier this year in order to share his years-long passion for military justice with a broader community of scholars.  Edmund, you will be missed.  Our condolences go out to his family and friends. 

The Orders Project

The Washington Post's Shane Harris has this article on The Orders Project.

Ex-GITMO commander sentenced in federal district court

The Associated Press reports here that a U.S. Navy captain who previously commanded the U.S. Naval Station at Guantanamo Bay, Cuba, has been sentenced by a federal district court to two years in jail for obstructing justice and other offenses. "Defense attorneys argued that Nettleton couldn't be found guilty of any of the charges merely for violating provisions of the Uniform Code of Military Justice or for violating any Navy regulations." Why was this case tried in civilian court?

Judicial independence: an issue that refuses to die

There's been another important development in Canadian military justice. In the latest in a string of decisions, a military judge has stayed the sexual assault case of R. v. Iredale, 2020 CM 4011. In the wake of R. v. Edwards, 2020 CM 3006 and R. c. Crépeau, 2020 CM 3007 – which were followed in turn by R. c. Fontaine, 2020 CM 3008 - Military Judge Commander (Cdr) Pelletier determined that Capt. Iredale's right to an independent and impartial tribunal, as enshrined in ¶11(d) of the Canadian Charter, was infringed by an October 2, 2019 order of the Chief of the Defence Staff. That order appointed the Deputy Vice Chief of the Defence Staff to exercise the powers and jurisdiction of a commanding officer with respect to any disciplinary matter involving a military judge. Capt. Iredale, an officer serving part time in the Cadet Organizations Administration and Training Service, faced three charges of sexual assault and three of conduct to the prejudice of good order and discipline for using inappropriate language to another (adult) officer. In Iredale, Cdr Pelletier revisits his earlier ruling in R v. Pett, 2020 CM 4002, that, although the CDS's order infringed ¶11(d), sections of the National Defence Act (NDA) at the source of that order and jurisdiction over military judges are still constitutional. The issue now is the appropriate remedy. Pett declared the CDS order unlawful and of no force or effect, apparently in the expectation that the order would be rescinded. But the order remained in force, notwithstanding the strong of subsequent decisions by other military judges who made similar declarations. The defense argued in Iredale that the Pett remedy did not go far enough. Not only was the order problematic, but the legislative framework which allowed or required it to be issued also infringed the accused’s right to an independent tribunal. Consequently, according to the defense, NDA §§ 12, 18 and 60 must “be declared unconstitutional as they render every military judge incapable of being, or appearing to be, independent and/or impartial when presiding a court martial.” In response, military prosecutors insist that the CDS's order poses no threat to judicial independence and does not violate ¶11(d) -- it merely clarifies who can lay charges against a military judge and try him or her before a court-martial. The prosecution also argued that, should the court conclude that there a Charter violation, other remedies are more suitable. For example, the court could repeat its Pett declaration, and if that is insufficient, terminate the proceedings. That would not preclude prosecution, at least as it pertains to sexual assault charges, before a civilian court. In essence, Cdr Pelletier drew the same conclusion he did in Pett concerning the CDS's order. It “generates legitimate concerns of judicial independence and violates the rights of any accused before a court-martial under paragraph 11(d) of the Charter …” (para. 27). Regarding the legal framework that is the source of such an order, he did not change his mind: absent the CDS order, the current legal framework “offers sufficient guarantees of judicial independence to allow military judges to be perceived as independent and impartial, in conformity with paragraph 11(d) of the Charter.” (para. 30). Therefore, NDA §§ 12, 18 and 60 are not unconstitutional (para. 39). Regarding the remedy, however, he came to a different conclusion from the one in Pett. Applying the three-pronged test of R. v. Babos, [2014] 1 SCR 309, Cdr Pelletier determined that the restraint in Pett was no longer appropriate. As no action had been taken by the CDS in relation to the order since Pett, circumstances had changed. As a result, concluded that a stay of proceedings, pursuant to subsection 24(1) of the Charter, was "the only appropriate and just solution in the circumstances.” CBC has reported that shortly after Cdr Pelletier’s decision in Iredale, the CDS suspended (but did not rescind) his order. As an indication of how these proceedings might unfold, Cdr Pelletier wrote that the judgments in Edwards and Crépeau are on prosecution appeal to the Court Martial Appeal Court of Canada. He was also informed that Fontaine would be appealed and that the defense had cross-appealed Edwards and Crépeau. The cross-appeal calls into question the decision not to issue a declaration of unconstitutionality with respect to of the legislation that governs the liability of military judges under the disciplinary scheme applicable to officers. Gilibert and Sullivan's "Here's a pretty kettle of fish" from Iolanthe would seem to apply.

Town Hall 8

Global Military Justice Reform's eighth Town Hall will be held at 0800 (US East Coast time) on Monday, Oct. 5. See you there. If you have not received an invitation, please let the Editor know. The topic will be the High Court of Australia's recent decision in Private R v. Brigadier Cowen. Guess who won.

Free speech, service academies, and social media

A lawsuit has been filed in U.S. District Court in Maryland challenging adverse action threagtened against a midshipman at the U.S. Naval Academy in Annapolis. Details can be found here. The article has a link to the complaint.

COVID-19 and military justice (South Africa)

The South African National Defence Force has completed its COVID-19 lockdown operation but the legal fallout continues. E.g., a soldier who shot a civilian is pending proceedings in civilian court. Details here.

The Commissions Ballet

17 September 2020 I noted that the Military Commissions had a new judge.

Well the ballet (or shuffle or name your form of dance) enters the next act. The New York Times tells us that, 

The recusal of Col. Stephen Keane from hearing the case at Guantánamo Bay adds another roadblock to restarting pretrial hearings in the long-running case.

He cited a "series of potential conflicts of interest."

The Court-Martial of Lieutenant Colonel Daniel Boone

Pioneer Daniel Boone, said to possess the eye of an eagle and the height of a mountain, was made famous during his lifetime with books such as The Adventures of Col. Daniel Boon. That book recounted battles with Native Americans and the settlement of Kentucky. Unfortunately, the book appears to have missed a few things, like Lieutenant Colonel Boone’s correct military rank and his court-martial.

Supplementing the historical record, the court-martial is chronicled in a new novel. The historical novel serves as a reminder that people have dark chapters in their life and that military justice has a long history in the U.S. After all, the first Judge Advocate General in the United States Army, William Tudor, was appointed by the Second Continental Congress on July 29, 1775.

So if you have the time and inclination, it sounds like an entertaining book. It’s always interesting for me when people successfully take up their own defense. And when folk heroes have complicated life stories.  

Comments on Joint Service Committee § 540F Study

The Editor has prepared comments on the study submitted by the Joint Service Committee in response to § 540F of the National Defense Authorization Act for Fiscal Year 2020. The comments can be found here. Your thoughts are welcome (real names only, please).

Today in history

On October 1, 1946, 12 high-ranking Nazis are sentenced to death by the International War Crimes Tribunal in Nuremberg. Among those condemned to death by hanging were Joachim von Ribbentrop, Nazi minister of foreign affairs; Hermann Goering, founder of the Gestapo and chief of the Luftwaffe; and Wilhelm Frick, minister of the interior. Seven others, including Rudolf Hess, Adolf Hitler’s former deputy, were given prison sentences ranging from 10 years to life. Three others were acquitted.

So reminds us the History channel.

Debategate

The Editor suspects that one or two readers of Global Military Justice Reform watched the presidential debate the other night. If so, they may have wondered about President Donald J. Trump's reference to the military separation of former Vice President Joe Biden's son, Hunter Biden. Consider this explainer by Alexander Trimis on KBIA.

Thank you!

A new month has begun. What better time to thank the Global Military Justice Reform roster of expert contributors from around the world. It's important that the blog have multiple voices on topic selection for posts (okay, pet peeves) and points of view.

While we are at the store, readers are strongly encouraged to do two things: (i) add your thoughts by using the comments feature (real names only), and (ii) visit CAAFlog.org, which gets better by the day. It's an excellent site for news and views about American military justice.