More on pardoning of war criminals

At CAAFlog, * our Scholarship Editor has posted about pardoning war criminals.

The most recent version (Volume 35, Issue 4) of The American University International Law Review includes an article by Stuart Ford, a law professor at the University of Illinois Chicago, entitled: “Has President Trump Committed a War Crime by Pardoning War Criminals?”

This [CAAFlog] column has discussed the pardoning of war criminals in the past: Scholarship Saturday: Presidential pardons for convicted wartime murderers. That article focused on the extent to which a President ought to hold tight to a set of time-tested principles when exercising the pardon prerogative. Specifically, we focused on the principles that have traditionally driven clemency decisions: the need to remedy erroneous convictions, to show appropriate deference to those with more knowledge of the accused and the offense, to relieve unintended collateral consequences, to relieve excessive adjudged punishment, and to reduce punishment if the prisoner is reformed.

* At CAAFlog we focus on what is happening, primarily at the appellate level, in U.S. military justice.

Peruvian Military Justice system will only deal with offenses committed during the normal course of duty during the quarantine

 

The Court (FMP) that deals with military/police matters has suspended its jurisdictional, fiscal and administrative activities from February 1-14, 2021 in the areas of Peru that have been declared under extreme alert and under quarantine because of the Covid-19 pandemic.  The Administrative Resolution declaring the suspension, further announced that the measure would be in effect in Lima,  Callao, Ancash, Pasco, Huánuco, Junín, Huancavelica, Ica and Apurimac.

Excepted from the suspension are the jurisdictional and fiscal activities related to preliminary and preparatory investigations that have been initiated against members of the military and the police during the state of emergency.

The FMP also decided that other courts will continue exercising their jurisdictional and fiscal functions for cases involving offenses committed during the normal course of duty, which are presented against members of the military and police on active duty, during the obligatory social isolation.

The different chambers of the Supreme Court for Military and Police matters will continue to carry out their functions.

In the areas of the country under high alert, as pointed out in Supreme Decree No. 008-2021-PCM, which establishes new restrictions to confront the pandemic, 33% of the employees of the FMP, who have no symptoms of Covid-19, nor have been confirmed as infected with the virus, will carry out their necessary functions in person.

Alonso Leonardo Esquivel Cornejo, the President of the FMP, emphasized that during the quarantine the military justice system will suspend the procedural time limits and statutes of limitations on trials that do not involve the state of emergency.  However, he said, "all  offenses committed during the normal course of duty, which are derived from the participation of the armed forces against Covid-19 are within the exclusive competence of the military police justice system."   "During a pandemic, the armed institutions carry out operations with their laws, regulations and the Military/Police Criminal Code, and together with them the fiscal and judicial organs remain operative at all levels" he stressed.

Exam question

(20 minutes) Read this article from The Columbus Dispatch. What offenses, if any, has this officer committed? Is he punishable under the UCMJ, the Ohio Code of Military Justice, both, or neither? What action, if any, should be taken against him? Should his ecclesiastical endorsing organization be involved?

Extremist activities

Here is how ¶ 4-12 of Army Regulation 600-20 (Army Command Policy), 24 July 2020, defines participation in extremist activities:

Prohibitions. Soldiers are prohibited from the following actions in support of extremist organizations or activities. Penalties for violations of these prohibitions include the full range of statutory and regulatory sanctions, both criminal (UCMJ), and administrative.

(1) Participating in public demonstrations or rallies.

(2) Attending a meeting or activity with the knowledge that the meeting or activity involves an extremist cause when—

(a) Whether on or off duty.

(b) Whether in or out of uniform.

(c) In a foreign country (whether on or off-duty or in or out of uniform).

(d) It constitutes a breach of law and order.

(e) It is likely to result in violence.

(f) In violation of off-limits sanctions.

(g) In violation of a commander’s order.

(3) Fundraising activities.

(4) Recruiting or training members (including encouraging other Soldiers to join).

(5) Creating, organizing, or taking a visible leadership role in such an organization or activity.

(6) Distributing literature on or off a military installation, the primary purpose and content of which concerns advocacy or support of extremist causes, organizations, or activities; and it appears that the literature presents a clear danger to the loyalty, discipline, or morale of military personnel or the distribution would materially interfere with the accomplishment of a military mission.

(7) Receiving financial assistance from a person or organization who advocates terrorism, the unlawful use of force or violence to undermine or disrupt U.S. military operations, subversion, or sedition.

Paris calling

On November 18-19, 2021, an International Military Justice Forum will be convened at the Cour de Cassation in Paris. The forum is sponsored by the Research Centre of the French Military Academy Saint-Cyr Coëtquidan in collaboration with the Parquet Général of the Cour de Cassation. The working languages will be French and English. Presentation proposals must be submitted by April 15. The program announcement and call for papers can be found here.

SANDF allows wearing of Islamic headscarf

Last year, we noted the South African government withdrew charges against an officer serving in the South African National Defence Force (SANDF). Major Fatima Isaacs had refused to remove her headscarf under her military cap, but escaped a trial even though she had willfully violated existing policy. The SANDF has now amended those regulations, making it official that Muslim women serving in uniform can lawfully wear a headscarf.

The SANDF's decision marks a positive trend in the last few years. The U.S. Army in 2017 amended its regulations to allow Soldiers with "sincerely held religious beliefs" to wear hijabs, turbans and beards based on approval by their brigade commanders. And in 2018, the U.S. Air Force permitted a JAG officer to wear the hijab.

A pivotal hearing today in Canada

Judicial independence is the topic du jour (literally) at the Court Martial Appeal Court of Canada. Watch this space--and read this article.

Special operations and war crimes

Perhaps war crimes that have been swept under the rug in the U.S. special operations arena (see here for an example of Army courage and integrity contrasted with Navy SEAL cowardice, cover-up and alleged criminality) will actually get some attention (and perhaps some legally-required accountability will be forthcoming) due to this just-reported DOD IG review of how law of armed conflict violations are handled by both U.S. Central Command and U.S. Special Operations Command.  It's hard to predict if any good will come of this, as the folks doing the "review" are likely folks who spent time in those commands or their subordinate units, and cannot do what a truly independent review actually needs to do given their own cognitive biases (outside experts from the Department of Justice and NGOs should be included within a real review if folks truly want the best results).

Plus it's unclear whether this assessment will actually dig into the heart of the cover-ups, such as the one highlighted above, that seem to pepper the U.S. operations in the CENTCOM AOR during the almost 20-year war in Afghanistan in particular (particularly by units with ADCON to SOCOM), as many years have past, folks have left the service, and memories & evidence have faded. 

To be fair, the Navy did, although in a bungling, inept fashion, prosecute Navy SEAL Edward R. Gallagher for his alleged war crimes in Iraq; and before the dereliction of duty by the then-Commander in Chief to end the Army prosecution of Major Mathew L. Golsteyn for his alleged war crime murder, the Army was doing the right thing to bring Golsteyn's alleged battlefield criminality to trial. So perhaps this review will lead to better processes, and in the future, less impunity for serious violations of the law of armed conflict.

The Gillibrand bill in a new political environment

Jennifer Steinhauer writes in The New York Times:

After years of failure to curb the scourge of sexual assault in the military, Lloyd J. Austin III, the new secretary of defense, is open to considering significant revisions to how those crimes are prosecuted, a potential sea change that generations of commanders have resisted.

Overhauling the way the military handles sexual assault cases — by taking them outside the military chain of command and assigning them to military prosecutors with no connection to the accused — would need approval by Congress, where some legislators have long pushed for such a system.

President [Joseph R.] Biden has been a vocal proponent of these changes, even as general after general has gone to Capitol Hill to argue against them over the past decade. “I had a real run-in with one of the members of the Joint Chiefs in the cabinet room on the issue,” Mr. Biden said last year at a fund-raiser.

Town Hall 12: Is pardoning a war crime a war crime?

Global Military Justice Town Hall 12: Is Pardoning a War Crime a War Crime? When: Mon Feb 1, 2021 9am – 10:30am Eastern Time - New York Where:

https://us02web.zoom.us/j/83245106870?

pwd=TWtBYWZUVXg0VG1QYzRXamFhMEJwUT09

Our guest speaker will be Prof. Stewart Ford (UIC John Marshall Law School). His American Univ. Int'l L. Rev. article can be found here: https://digitalcommons.wcl.american.edu/auilr/vol35/iss4/3/. Bring a friend!

Meeting ID: 832 4510 6870 Passcode: 251326

One tap mobile +13126266799,,83245106870#,,,,*251326# US (Chicago) +16468769923,,83245106870#,,,,*251326# US (New York) Dial by your location +1 312 626 6799 US (Chicago) +1 646 876 9923 US (New York) +1 301 715 8592 US (Washington DC) +1 408 638 0968 US (San Jose) +1 669 900 6833 US (San Jose) +1 253 215 8782 US (Tacoma) +1 346 248 7799 US (Houston)

Learn how the Army is leading change in criminal justice

Military Justice—Learning and Leading Change in American Criminal Justice (Webinar) Sponsored by the ABA Criminal Justice Section Friday, February 19, 2021 3:00-4:30 pm Eastern

The military justice system has undergone tremendous change over the past twenty years—in many ways attempting to emulate or keep pace with civilian criminal justice. Now, as the American criminal justice system grapples with the complexities of sexual assault prosecutions and the mainstream call for criminal justice reform, particularly in the area of sexual assault prosecutions, appellate review, and protecting the rights of the accused, many of the military justice system’s policies are being recognized and hailed as truly progressive. Join an esteemed panel of military justice experts from the Army Judge Advocate General’s Corps as they delve into the progressive nature of the military justice system and discuss how we are leading change in criminal justice and where we go from here.

Moderator: MAJ Scott Goble, Chief, Strategic Communications, Strategic Initiatives Office, Office of the Judge Advocate General

Speakers:

Ms. Karen Carlisle, Director, Soldier and Family Legal Services, Office of The Judge Advocate General

LTC Adam Kazin, Deputy Chief, Criminal Law Division, Office of The Judge Advocate General

LTC Rebecca Farrell, Chair, Criminal Law Department, The Judge Advocate Generals Legal Center and School

LTC Phil Staten, Chief, Trial Counsel Assistance Program

LTC Angela Swilley, Deputy Chief, Defense Appellate Division

New developments in Chinese military law and discipline at the unit level -- reform or redux?

"Our principle is that the [Communist] Party commands the gun, and the gun must never be allowed to command the Party."        Mao Zedong

The purpose of this post is to highlight the significant changes to the internal discipline system of the Chinese People's Liberation Army (PLA) at the unit level made by revisions to the Discipline Regulation that came into force May 1, 2018.

In a previous post in November, 2017 I surveyed PLA internal discipline at the unit level under the Regulations on Discipline of the Chinese PLA of 2010. Much of "who can do what to whom" remains the same under the revised Regulation - the possible punishments for officers, civilian cadres and soldiers, the punishment authority of units from the company level up to the Central Military Commission, the financial and career consequences of punishments, disciplinary probation for non-commissioned members, administrative custody, and the discipline process, including appeals, are all for the most part unchanged from the 2010 Regulation. Nevertheless, the revisions in 2018 that are highlighted below demonstrate a marked shift in Chinese thinking about the relative roles of military and Party discipline in the fostering and maintaining of military efficiency and combat capability.

First, a few of the more cosmetic changes. 

The extensive reorganization of the PLA during the period 2015-17 required revisions to the 2010 Discipline Regulation. As a result of the reorganization the seven geographic Military Area Commands across China became five Theatre Commands, and the four Headquarters Departments of the PLA (the General Staff Headquarters, and the General Political, General Logistics, and General Armaments Departments) were rolled into a substantially larger Central Military Commission. The subordinate status of the naval service, the air force and the rocket force, was raised in relation to the ground forces. These changes alone account for many of the revisions to the 2010 Discipline Regulation simply to rename the reformed organs and agencies. As well, the revisions get rid of the reference to the Chinese administrative punishment of "re-education through labour" that was abolished, at least on paper, in December of 2013. Finally, "Xi Jinping's thinking on strengthening the army" is elevated into the pantheon of previous Chinese leaders, from Mao to Hu Jintao, whose guiding principles are to inform the administration of military discipline (Art.4, formerly Art.6).

The most significant changes to Chinese military discipline effected in 2018 introduce new disciplinary offences that are derived from the internal discipline of the Communist Party of China (CPC), and further diminish the already limited role of operational commanders in the day-to-day administration of military discipline that I remarked on in the earlier post - with a concomitant rise in the role and influence of political organs and political officers.

Under Art.11 of the 2010 Regulations overall responsibility for disciplinary punishment was shared between the political organs in respect of officers and civilian cadres on the one hand and military headquarters (siling bu) in respect of the junior ranks and non-commissioned members on the other. But with the amendments in 2018 overall responsibility for the punishment of both officers and other ranks now rests with the Discipline Inspection and Supervision Department (Art.10). The DISD is a political organ established in units at the regiment level and above, all the way up to the Discipline Inspection Commission of the Central Military Commission. Each DISD reports both to a Party committee at the same level in the military hierarchy and to its immediately superior DISD.

The Discipline Regulation treats non-commissioned members (everyone except officers and conscripts) in a special way. If they refuse to perform their duty despite efforts to reform them NCM's can be put on probation for up to six months instead of proceeding immediately with charges. Then if their behaviour is not corrected discipline is instituted. Under the Discipline Regulation as it stood in 2010 the relevant leading cadres decided whether to impose probation on a non-commissioned member, and the administration of probation was the responsibility of the office of the Commanding Officer (siling jiguan). But by Art.235 the Political Work Department in each unit now takes on the responsibilities that were formerly discharged by the Commanding Officer.

In the earlier post I also described "administrative custody" (xingzheng kanguan), a measure involving short-term custody that is designed to deal with a breakdown of discipline by individuals or groups and restore order. Under the new Art.224 the approval authority for administrative custody is pushed down to the battalion level in respect of conscripts and both junior and intermediate NCM's, and military commanders at each level retain the authority they share with political commissars to order administrative custody. But by Art.227 the management of administrative custody is taken away from military commanders and given to the Political Work Department in each unit.

These changes disclose an apparent policy decision to reduce the influence of operational commanders in the administration of military discipline in units of the Chinese PLA, and to augment the already predominant role of the Party. But the clearest indication of increasing Party control of military discipline appears from several of the new disciplinary offences introduced in 2018. In the earlier post I described the various PLA discipline offences under the 2010 regulations, and stated:

"Art.82 creates the only specifically political offences to be found in the Regulation on Discipline. It is an offence to publish or otherwise disseminate writings with erroneous political opinions, or to participate in prohibited political organizations or activities."

The 2018 revisions to the Discipline Regulation go much further by introducing several distinctly political offences that are inspired by, or even copied from, Chinese Communist Party discipline. The following new military offences (as translated by the author) are derived directly from the Communist Party Discipline Regulation of 2015 (revised, 2018):

    Art.114: Those who disseminate the political line, guiding principles and policies of the Opposition, oppose the socialist system, the absolute leadership of the Party over the army, the centralized leadership or the chairman responsibility system of the Central Military Commission, and other erroneous opinions, or who publicly issue articles, speeches, manifestos, statements, etc. with erroneous political views such as "de-politicize the army" and "nationalize the army", or provide conditions to facilitate the conduct described above...shall be punished...

(derived from Art.45, 46 and 47 of the CPC Discipline Regulation, 2015)

    Art.115: Those who vilify the image of the Party, the State, or the army, disparage or slander leaders of the Party, the State or the army, or heroes and model workers, or distort or deny the history of the Party, military history, or the glorious traditions and fine work style of the army...shall be punished...

(see Art.46(3) of the CPC Discipline Regulation, 2015)

    Art.116: Those who organize or join organizations that oppose the leadership of the Party, oppose the socialist system, or are hostile to the government, as well as political organizations prohibited by the State or the army such as superstitious and evil cults, or make contact with illegal organizations or illegal publications in society or someone with political problems...shall be punished...

(from Art.49 and 50 of the CPC Discipline Regulation, 2015)

The 2018 revisions to military discipline regulations also expand the range of disciplinary offences to include some kinds of immoral acts that originated in Party discipline proscriptions. Thus, the new offence in

    Art.151: Those who engage in power for sex transactions or give property or money for sex transactions...shall be punished...

is taken verbatim from the CPC Discipline Regulation, 2015, Art.103.

An earlier CPC Discipline Regulation in 2004 proscribed some other immoral acts such as bigamy, adultery (especially involving a spouse of a PLA member in active service), abuse of authority in order to have a sexual relationship, prostitution and drug use. These were "Serious Violations of Socialist Morality" or "Harmful to Social Management Order" under Art.150, 151, 156 and 160. By Art.176 the 2004 CPC Discipline Regulation gave the Central Military Commission the authority to formulate supplementary regulations for the PLA "on the basis of these [Party] regulations", and the CMC took up the invitation the following year with the making of "Supplementary Provisions on the Army's Implementation of the Regulation of the Communist Party of China on Disciplinary Actions" of 2005. Under this instrument the CMC created several offences that could be punished by Party discipline such as warnings, loss of Party position, Party probation, or expulsion from the Party. Most of the offences under the Supplementary Provisions mirror military disciplinary offences found in the military Discipline Regulation, but a small number have a political nature. Art.7 of the Supplementary Provisions is very similar to another new political offence found in Art.117 of the revised military Discipline Regulation:

    Art.117: Those who organize or participate in parades, demonstrations or sit-ins, as well as collective petitions, superstitions and other activities prohibited by the army...shall be punished...

Bigamy and adultery are likely punishable as "improper sexual behaviour" contrary to Art.99 of the 2010 Discipline Regulation (that became Art.165 in 2018), but other Party proscriptions from 2004 intended to address various kinds of immorality did not find their way into either the CMC Supplementary Provisions of 2005 or the 2010 Discipline Regulation. Nevertheless, with the revisions of 2018 there are now several new military disciplinary offences that are inspired by the Party Discipline Regulation from 2004 - sexual harassment (Art.165), frequenting prostitutes or engaging in prostitution (Art.166), and taking drugs (Art.166).

Transplanting Party discipline offences into the revised military Discipline Regulation is significant. Party membership is widespread in the PLA, and almost universal among the officer corps - and those who violate Party discipline are liable to a range of punishments up to and including expulsion from the Party. But Party membership is voluntary. Under the 2018 revisions to military discipline the liability for several offences against Party discipline that used to be limited to those PLA members who were also Party members now extends to every member of the Chinese PLA, including conscripts, whether they are members of the Party or not. And military sanctions, including a disciplinary discharge from military service, can be imposed for a much wider range of purely political activities.

Art.251 of the revised PLA Discipline Regulation adds the following new language to what was Art.170 in the 2010 version:

"The chief officers in charge at all levels are the persons primarily responsible for maintaining discipline and discipline inspection, and bear the corresponding leadership responsibilities."

The "chief officers in charge" (zhengzhi shouzhang) of units of the PLA consists of the operational and political co-commanders of the unit and their deputies together with the heads of the unit logistics and armaments departments. Yet it is difficult to see how anyone but political officers can discharge the obligations imposed by Art.251 without the necessary tools. Only political officers have decision-making authority with respect to opening an investigation of a disciplinary offence, making a finding of responsibility, and deciding appropriate punishment. Only political officers have a role in the administration of probation for NCM's and the management of administrative custody. Significantly, "punishment responsibility" as a whole, including enforcement of the new political offences, rests squarely with political officers of the Discipline Inspection and Supervision Departments with no role for operational commanders apart from ensuring (under Art.189, formerly Art.135) that punishment decisions made by the political organs are implemented.

The "Red vs. Expert" debate has kept Chinese scholars and some Western commentators busy since Mao first referred to this "contradiction" in the late 1950's. In the military context the issue refers to the tension between expert military operators in the General Staff, General Logistics and General Armaments career streams and their counterparts, the political officers, who are distinctively badged as such and typically follow a different career track. Control and influence in the PLA has swung back and forth between the two groups ever since the Gutian conference when Mao's faction succeeded in having political officers installed in units of the fledgling Workers' and Peasants' Red Army down to the company level. During periods of threatened or actual hostilities the operators seem to regain more influence at the expense of the Party apparatus. But for the present, with the revisions to the PLA Discipline Regulation in 2018, the Party commands the gun, arguably to a greater extent that at any other time in its history.

Lawful Orders, the Joint Chiefs Memo, and the Peaceful Transition of Political Power

As the nation comes to terms with one of the most turbulent and tumultuous elections in American history, from a military justice perspective it is worthwhile to reflect on how the existing obligation to obey lawful orders helps to maintain military effectiveness while ensuring the conditions for a peaceful transfer of political authority. Despite the widespread turmoil caused by then-President Trump’s systematic election denialism, the transfer of political power from one administration to the next occurred as scheduled – without serious concern that the outgoing president would be able to utilize the military to retain political power.

The expectation that the armed forces will remain politically neutral is a matter that Americans can take for granted. However, this certitude can potentially be undermined if the chief commander of the military demonstrates, as Donald Trump routinely did, a willingness to retain political authority at all costs. This is especially true given that from the campaign trail to Inauguration Day and into his presidency, President Trump repeatedly described military leadership as “my generals” and the armed forces as “my military.”

This, of course, was never true. President Trump led the military as commander-in-chief, but both the president and the military owe allegiance to the Constitution of the United States and, by extension, to the American people.

That then-President Trump could not call on the military to support his systemic campaign of election denialism is attributable to one simple yet significant fact: military members are obliged to carry out only lawful orders – even if the orders come directly from the commander-in-chief. This fact stands in sharp contrast to then-candidate Trump’s assertion that, even if the president orders troops to violate the law by, in this example, torturing detainees, “They [military members] won’t refuse. They’re not gonna refuse me. Believe me.”

President Trump’s Election Denialism Crusade Not Backed By “His” Military

The (now) former president’s orchestrated campaign of election denialism notoriously came to a head with the appalling siege on the U.S. Capitol. In the wake of that attack, a memorandum posted by the Joint Chiefs of Staff addressed to “the joint force” confirmed for the military and the American people what the commander-in-chief never seemed to fully comprehend.

In the words of the Joint Chiefs, “the U.S. military will obey lawful orders from civilian leadership, support civil authorities to protect lives and property, ensure public safety in accordance with the law, and remain fully committed to protecting and defending the Constitution of the United States against all enemies, foreign and domestic.” Any action to “disrupt the Constitutional process is not only against our traditions, values, and oath; it is against the law.” This would include any order that would have been given for the military to disrupt the transfer of political authority from one president to the next: even if that order came from the sitting commander-in-chief.

Perhaps the most sinister aspect of the systemic misinformation campaign now former President Trump fabricated to cast doubt on the legitimacy of the electoral process is that he put his own personal interests above the nation’s. This should come as no surprise: for someone who reportedly loathes “losers” so much, it must be personally devastating to lose at the polls and become the first one-term president in nearly three decades.

While former President Trump’s dangerous personal crusade to overturn the results of the presidential election culminated in the horrific Capitol siege, the longstanding conviction that the armed forces are “his” military that is led by “his” generals was exposed for what it has always been: a narcissistic delusion.

The presidential oath obligates the president to “preserve, protect and defend the Constitution of the United States.” Both the oath of commissioning and of enlistment sworn by military members obliges them to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” For both leader and led, president and military member, defending the Constitution is an obligation to the American people.

When President Trump deliberately attempted to subvert the results of the election in support of his own personal crusade, he became a domestic enemy of the Constitution of the United States and, by extension, of the American people. As dangerous as this crusade was, his election denialism remained confined to unhinged political messaging and a futile spate of court cases.

Through all this, what was one powerful tool that was never even a legitimate option to use? “His” military.

In 2018, then-Secretary of Defense Jim Mattis ordered the Department of Defense to "do more" regarding the plague of sexual assaults that was then, and remains, a huge problem within the U.S. armed forces. The following year, the rate of military sexual assaults and harassment increased, so apparently "doing more" didn't mean taking effective steps to actually make the military a safer place for our young women and men to work.

It's de ja vu all over again, with newly-minted Secretary of Defense Lloyd Austin releasing a memo on Saturday to his military commanders saying "we must do more" in the area of military sexual assaults and harassment.    But what does "more" mean, when we've heard this line before?

Today President Biden rightly reversed the Trump-era ban on transgender service members, moving the armed forces toward a culture of equal protection of the law and true equality amongst service members.  Hopefully such a egalitarian and just move is a sign that this Administration will also make real change in holding failed leaders accountable for their derelictions of duty regarding sexual assault  and harassment (see Fort Hood report for examples of such command misconduct).

In his memo, Secretary Austin concluded regarding sexual assault and harassment in the military that "“This is a leadership issue,” Austin concluded. “We will lead.”  Unless this is accompanied by real change, such as establishing a professional prosecutorial force of independent military lawyers who handle sexual assault and harassment cases instead of continuing to allow leadership failures in this arena (failures without consequence, as military leaders are never held accountable for disciplinary decisions they make, and there's little hope a career general like Austin will break that mold), then the U.S. armed forces will remain an organization that in some respects, remains unsafe for too many in its ranks.

For your military justice library

There's a new book out that is must reading for anyone concerned with military justice and its evolving place around the world. Professors Brett J. Kyle (University of Nebraska at Omaha) and Andrew G. Reiter (Mt. Holyoke), Military Courts, Civil-Military Relations, and the Legal Battle for Democracy: The Politics of Military Justice (Routledge 2021) presents a combination of detailed studies of trends in a few countries as well as a wealth of information about specific events in many. Perhaps most valuable is the authors' effort to assign every national military justice system to one of three overarching categories. Excerpt:

To examine the political role of military courts, we develop and employ a framework of “legal subordination,” defined as the degree to which military courts are subordinated to democratic, civilian control. The concept centers around who can be prosecuted in military courts (personal jurisdiction, or in personam) and for what crimes (subject matter jurisdiction, or rationae materiae). In this framework, we characterize military legal subordination as a range from full subordination to jurisdictional contestation to military overreach. In systems of full subordination, military courts either have been abolished completely or operate only for a narrow set of offenses necessary to maintain good order and discipline. There are no serious disputes between civilian and military courts regarding the jurisdiction of cases. Military overreach is characterized by a military justice system that is largely unchecked by civilian actors. In such systems, military courts try civilians for specific crimes against the state and typically retain jurisdiction over members of the armed forces for most crimes. Finally, in cases of jurisdictional contestation, military courts have jurisdiction over some civilian crimes committed by members of the military, including human rights violations, and there are often public disputes over who has the right to hear cases. Military courts, however, do not try civilians. . . .

Implicit in this scale is our view that full subordination is the goal to which democratic states should strive. Only under those systems is there a reasonable expectation that the military will remain subordinated to civilian leaders and that sufficient rule of law and respect for human rights will exist. Legal subordination of the military is an essential component of well-functioning, democratic societies. States can move along this continuum over time in two ways—rapidly and gradually—and in two directions—toward or away from full subordination.

A useful table allots each military justice system to one of the authors' categories. A national system may, and many do, shift from one category to another over time. The book highlights some of the traditional pressure points, such as personal jurisdiction (does it try civilians?) and subject-matter jurisdiction (which offenses are tried where?). Obviously, given the sweep of this ambitious project, not every contemporary flashpoint--the role of the convening authority in the remaining non-compliant national systems springs to mind--can be included. Still, the authors are to be commended for an important contribution to the military justice literature. Those responsible for the day-to-day administration of military justice, as well as practitioners, judges, and legislators, will find it worthwhile and thought-provoking. Among the authors' conclusions:

Changes—positive and negative—in military systems after their initial establishment are the result of a dynamic interaction between three principal domestic actors—the government, the military, and high courts—in a decision-making nexus, and a variety of international and domestic influences that shape the political environment. Our model shows that international human rights courts, non-governmental organizations, international organizations, and external states have the ability to pressure the principal actors in a variety of ways, from giving domestic courts international rulings to use in their judgments to publishing reports that expose the abuses of military justice systems. Likewise, public sentiment and domestic civil society organizations can pressure government officials to take a stand on military justice. We find, however, that these efforts only matter at the margins and to be successful need to be sustained, sometimes for decades. We see the greatest successes when actors take a combined approach, pressuring government through multiple avenues to shape public sentiment in favor of reform and shift politicians’ incentives to establish clear control over military legal prerogatives.

Is Donald Trump Unfit to Be Commander-in-Chief? A Military Justice Perspective

Brian L. Cox

Because the U.S. House of Representatives initially drew on the 25^th Amendment as a bargaining chip to defuse the possibility of initiating a second impeachment proceeding against President Trump, much of the pre-impeachment discussion was focused on whether Donald Trump is now “unable to discharge the powers and duties of his office.” Whether it would have been a proper use of the 25^th Amendment – to remove a president who seems “unhinged” but not necessarily incapacitated – is an open question.

With the article of impeachment set to be transmitted to the Senate on Monday and oral arguments scheduled to begin in just over two weeks, the determinative factor with the conviction vote will likely be whether it is worth it politically to “remove” a president from office after the presidential term has expired. While I agree with the analysis offered on Just Security by Michael Gerhardt (who, incidentally, was my constitutional law professor during law school) indicating that the Constitution does not prohibit a post-term removal, the proceeding certainly is not without political risk. The biggest potential upside for Democrats (and even Republicans who are disenchanted with President Trump) is the constitutional penalty that can be imposed: “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”

Assuming Senate Democrats will vote in favor of removal, the political case for Republican senators doing the same will essentially come down to a combination of considerations reflected in the 25^th Amendment and Article I, Section 3 of the Constitution. Each vote in favor of “removal” would essentially be a political determination that President Trump, by his conduct prior to the Capitol siege, has demonstrated he is unfit to be hold an office of public trust and, therefore, he should be disqualified from seeking public office again in the future.

With Senator Mitch McConnell reportedly observing that the conviction decision will be a “vote of consciousness” – and even the Joint Chiefs officially, though tactfully, distancing the military from the commander-in-chief’s election denialism – there may be political space for Senate Republicans to cast an affirmative vote to convict the president. One significant factor for Republican senators to consider – on behalf of the constituents they represent – is whether President Trump has demonstrated he is unfit to serve as the commander-in-chief of the armed forces. This is, after all, one of the central constitutional responsibilities of the president of the United States.

Assessing Potential Violations of the UCMJ

While the president is not directly subject to the Uniform Code of Military Justice (pursuant to Article 2 of the UCMJ and by operation of Art. I, Sec. 8 and Art. II, Sec. 2  of the Constitution), an assessment of whether President Trump violated any of the punitive articles of the military code can inform the political discussion of whether he should be disqualified from seeking another term as commander-in-chief in the future. In that discussion, it is appropriate to consider what the outcome would be if President Trump were subject to the UCMJ.

As federal law describes, “All commanding officers and others in authority” must “show in themselves a good example of virtue, honor, patriotism, and subordination.” If it is determined that President Trump committed serious violations of the UCMJ during the course of the Capitol siege, voting to disqualify him from serving as the commander-in-chief of the armed forces in the future should be politically tenable – even for Republicans.

As a former military prosecutor, there are a number of serious UCMJ violations I would suggest if Donald Trump were a member of the military and I were advising a military commander with the authority to initiate court-martial proceedings against him. The most serious potential charge, sedition, carries the possibility of the death penalty.

With the stage set for the theoretical application of the UCMJ for the purpose of informing the political decision involving convicting the president in the pending impeachment proceeding, the remainder of this post outlines the factors I would consider relevant if advising the hypothetical military commander in making a charging decision. Before describing the application of the relevant UCMJ violations, I turn first to briefly address the factual predicate that supports the potential violations.

Why is this case being tried in a court-martial?

As I read this article, the offense was committed off-base, albeit in the immediate vicinity. "Because of the nature of the offense, the Bernalillo County District Attorney’s Office ceded jurisdiction to the Air Force to conduct a further investigation and prosecute the case, according to the base press release." Why did the DA not prosecute? There seems to have been nothing peculiarly military about the charges.

A day at the races, with Military Law

Who knew there's a racehorse--a bay gelding--named Military Law? Details here and here. Video here.

Extremists in uniform

The New York Times's "At War" team has posted this story -- including an invitation for people to come forward with information about extremism in uniform. Excerpt:

For friends and relatives of veterans, and for most people with a Facebook account, the radicalization of a sizable fraction of veterans, and the embrace by veterans of conspiracy theories, is hardly news. It has been plainly visible in social media feeds for years. Similarly, extremists and bigots in uniform have long been outing themselves on social media with supportive references to conspiracy theories and the posting of neo-Nazi symbols and coded and not-so-coded references to hate.

What’s been harder to see, and to document, is what happens in military units on land and at sea. For this reason, The New York Times invites you to share your stories or tips about extremism in the armed forces. Please see the form below. We will not use your submissions without your explicit consent.

Guantanamo activity

Military.com reports,

After an unexplained delay, the Pentagon announced plans Thursday to move ahead with a military trial for three men held at the U.S. base at Guantanamo Bay, Cuba, who are suspected of involvement in deadly bombings in Indonesia in 2002 and 2003.

A senior military legal official approved non-capital charges that include conspiracy, murder and terrorism for the three men, who have been in U.S. custody for 17 years for their alleged roles in the deadly bombing of Bali nightclubs in 2002 and a year later of a J.W. Marriott Hotel in Jakarta.

46

Extra-Territorial Application of the Canadian Charter of Rights and Freedoms

Amidst the turmoil and headline-grabbing events of the past three weeks, a significant judgment from the Court Martial Appeal Court of Canada (CMAC) may have gone un-noticed.  On the last day of 2020, the CMAC handed down its judgment in R v McGregor, 2020 CMAC 8.

This appeal dealt with the extra-territorial application of the Canadian Charter of Rights and Freedoms [Charter] in the context of a Code of Service Discipline investigation and prosecution of a member of the Canadian Forces (CF) who was posted to the United States.  In other words, it dealt with the extra-territorial application of the Charter where a Canadian was: (a) outside Canada because of duty, and not voluntarily; and, (b) subject to the extra-territorial application of the Code of Service Discipline.

The unanimous judgment of the Court held:

Section 8 of the Charter ("Everyone has the right to be secure against unreasonable search or seizure.") does not apply extra-territorially.  By virtue of principles of sovereign equality, non-intervention, and comity, the law of the sovereign state in which the search is conducted is the relevant law (in this case, the state of Virginia, in the United States).  This remains the state of Canadian law even where non-Canadian law enforcement actors clearly obtain judicial authorization for the search, and conduct the search, where the search is conducted to advance an investigation by Canadian law enforcement.  The extra-territorial application of the Code of Service Discipline does not alter this principle.  See also: R v Hape, 2007 SCC 26.

However, the authorization and conduct of the search remains relevant to trial fairness where the trial is conducted under Canadian law (in this case, a court martial under the Code of Service Discipline).  Thus, the Canadian court must apply section 7 ("Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.") and para 11(d) ("Any person charged with an offence has the right ...  to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal ...") of the Charter.  The extent to which the laws of the sovereign state mirror those of Canada (in this matter, in terms of search and seizure) will be relevant to the evaluation of the impact on trial fairness.  The requirements under the laws of the Virginia regarding search and seizure (specifically, prior judicial authorization based upon evidence that demonstrated reasonable and probable grounds) were markedly similar to the requirements of the laws of Canada.  The search and seizure were fair and did not adversely affect trial fairness.

There was an additional complexity in this matter, as the offender benefitted from diplomatic immunity afforded to him based upon his status as a “diplomatic agent” pursuant to article 31(1) of the Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95 (entered into force June 24, 1964).  However, Canada waived his immunity, in a manner limited in scope, to permit US law enforcement personnel to obtain a search warrant and to conduct a search of the offender's residence on American soil and his personal belongings therein. 

Questions for General Austin

Just Security has posted comments and questions for General Lloyd Austin's SECDEF confirmation hearing from 15 commentators. Here is Global Military Justice Reform contributor Prof. Rachel E. VanLandingham's entry:

Some of the most pressing internal issues facing the next secretary of defense deal with the mental and physical health of the women and men in uniform, as well as the climate within military units that either protect those serving or help destroy them. From the continuing scourge of sexual assault within the ranks; the presence of extremists in uniform; the underreported yet stark recent increase of military suicides; and the racial disparities that continue to plague armed forces, the next secretary of defense faces numerous personnel challenges.

What will Secretary Austin do to right the military ship on these fronts? How will he ensure an inclusive military that values all its people equally in deed and not just word? How will he ensure mental health provision is better resourced and promoted? How will he ensure the military justice system is equally utilized, instead of disproportionately rendering “justice” against Black service-members more than White? How will he ensure that appropriate action is taken regarding allegations of sexual assault, when a shockingly high number of women don’t trust their leadership enough to even report they’ve been assaulted or harassed by fellow service members? How will he hold commanders accountable for their failures on the leadership front, given that commanders’ leadership is key to helping improve all these pressing issues and yet they are rarely held to account for their abuses of leadership, particularly within the military justice system?

The core strength of the U.S. military isn’t its multi-billion-dollar aircraft carriers and fancy fighter aircraft. The U.S. military’s number one resource is its people, performing at the top of their game in an inclusive environment that values each individual and their contribution to the team – within an organization that provides just, equal, fair, and speedy accountability for those who refuse to meet fair standards. How will Secretary Austin ensure the just military that our men and women in uniform were promised and deserve?

And here is the Editor's:

1. The Joint Service Committee on Military Justice issued a report last year in response to § 540F of the FY20 National Defense Authorization Act. The report stated that “ensuring the U.S. system complies with human rights obligations is undoubtedly not a U.S. concern.” Do you agree?

2. What is your view on whether the power to decide who is prosecuted for what under the Uniform Code of Military Justice should be transferred from nonlawyer commanders to uniformed lawyers independent of the chain of command?

3. Should commanders continue to have the power to pick members of military juries?

4. At present, the overwhelming majority of armed forces personnel who are convicted by courts-martial do not have a right to seek direct appellate review by the Supreme Court. If you are confirmed, will you support legislation to fix this injustice?

5. If you are confirmed, what specific steps will you take to prevent unlawful command influence in courts-martial?

Bail in a court-martial

A Nigerian Army court-martial has granted bail to a soldier who criticized the Chief of Army Staff. Details here.

Congressional UCI, anyone?

Consider this letter from Reps. Ruben Gallego and Sara Jacobs to the acting Secretary of Defense. Unlawful congressional influence? Excerpt: "Any such individuals should have the book thrown at them for violating their oaths and duty to the nation."

A PCDA (putsch consolidated disposition authority)?

Global Military Justice Reform contributors Rachel E. VanLandingham and Philip D. Cave have written this op-ed for the Daily Beast on the case for a consolidated disposition authority for military personnel who committed offenses in connection with the January 6 Capitol putsch. Excerpt:

The Department of Justice and U.S. prosecutors should be allowed to take the lead in any prosecutions of military personnel involved even though there is shared jurisdiction. We believe prosecution for serious federal crimes such as seditious conspiracy and insurrection, regardless of the offender’s military affiliation, should be tried in civilian federal court. With civilian institutions the direct victim of last week’s insurrection, now is the time to emphasize that federal criminal processes work—such action would constitute both actual and poetic justice.

But given the strong possibility that military leaders will desire to handle actions against military members, it is critical that the secretary of defense move now to establish a CDA with one general or admiral, supported by a senior military lawyer, tasked with deciding what disciplinary or criminal action, if any, is to be taken against active-duty and regular component retirees. (Aside: there are serious constitutional issues raised by court-martialing retirees, as a federal judge recently concluded.)

White supremacy globally

The Speaker of the U.S. House of Representatives announced today that LTG Honoré will be tasked to review security at the Capitol.

Lawfare has a piece today by Steven Stransky, The 2021 NDAA, White Supremecy and Domestic Extremism .

In early January, Congress overcame a presidential veto and enacted the National Defense Authorization Act for fiscal 2021 (NDAA). The NDAA includes important requirements for how federal agencies address white supremacy and domestic terrorism, which has been brought to the forefront again in light of the recent siege on Capitol Hill. For instance, the NDAA includes provisions mandating certain departments and agencies develop new strategies and implement new programs to better evaluate, analyze and counter white supremacy abroad, especially with respect to how Moscow supports these and other racially and ethnically motivated terrorists (REMT).

However, the NDAA omits two proposals related to domestic terrorism that were included in earlier versions of the bill. One would have created a national commission on U.S. counterterrorism policy, and the other would have developed a comprehensive report on domestic terrorist risks and threats.

He discusses a 2020 effort by the U.S. State Department to address white supremacist activity outside the United States as a global issue.

He recommends while recognizing constitutional and legal limitations that,

The Biden administration should consider using its existing authorities to implement (with some amendment) both proposals as part of its broader framework to combat white supremacy and domestic extremism.

Must Ukraine try this general in a military court?

The Kyiv Post has this faacinating article about a case in which a Ukrainian general claims that he should have been tried in a military court rather than a civilian one. Excerpt:

The case has split the society into those who believe that a military person can’t be convicted for his actions by a civil court, and those who support the conviction.

On Jan. 11, sixteen U.S. experts, including several retired generals, former diplomats, and active American scholars, signed a letter “of concern regarding civilian criminalization of combatant commander decisions and its impact on Ukraine.”

The letter asks Ukrainian leadership to ensure that the trial of military officers in matters related to combat is conducted in a military court before a military judge.

The signatories, among whom are NATO’s former Supreme Allied Commanders in Europe General Phillip Breedlove and General Wesley Clark, NATO’s former Deputy Secretary-General Alexander Vershbow and four former U.S. Ambassadors to Ukraine, William Taylor, Roman Popadiuk, Stephen Pifer and John Herbst, have asked for [Viktor] Nazarov’s retrial in front of a military court.

Court closure after Inauguration Day

United States Court of Appeals for the Armed Forces

Washington, D.C.

In re Court Closure

O R D E R

By order of the Chief Judge, in addition to the previous closure and holiday notice, the United States Court of Appeals for the Armed Forces will be closed all day on Thursday, January 21, and Friday, January 22, 2021. For purposes of computation of time and motions to enlarge time under the Court’s Rules of Practice and Procedure, January 21 and 22, 2021, will be considered days when the Court is closed.

For the Court,

/s/ Joseph R. Perlak

Clerk of the Court

January 14, 2021

A call for military justice reform in Mexico

From this article by Ricardo Guzmán Wolffer in La Jornada:

This situation is not minor. The [Code of Military Justice] was designed for a military dedicated to the unique tasks of its condition. Not so today. Not only do they replicate the powers and actions of civil police, they have also fully entered public administration for tasks other than war: they administer customs, review the execution of criminal sanctions, build the new airport and many more. This implies inevitable contractual and labor conflicts. In many cases, these problems can have criminal consequences and will end up in military courts, despite the fact that military crimes focus on a condition of war, or campaign (arts. 57, 325, 332, 337 and others, CJM). Given the lack of training for these tasks unrelated to their original military status, the necessary learning time will lead to legal conflicts of all kinds.

Military personnel involved in storming the Capitol

As you can imagine, with reports of military members involved in last week's storming of the Capitol building--Congress is interested in what disciplinary actions will taken. Rather, some appear to the demanding courts-martial.

Prof. Rachel VanLandingham has published this piece, read here, The best way to handle veterans, active-duty military that participated in the Capitol Riot. The Hill, January 14, 2021.

While I'm at it, I have started a discussion over at CAAFlog.

Senator Gillibrand: a racial justice crisis

While we may feel  bombarded with national security and military justice related news on a constant basis lately, be sure not to miss this piece on a 2017 DOD survey that the Trump Administration sat on for over three years, and just released yesterday.  The survey reveals what one Senator is decrying as a "racial justice crisis in the military" that DOD "deliberately concealed."  Such characterization, at least the former, sounds about right.  This report seems to support -- as soon as the Biden Administration takes the reins -- removing prosecutorial discretion from commanders, who have apparently been using it in racially discriminatory ways, and giving it to military lawyers specially vetted and cognitive of such biases instead.  

Military and adultery: Government moves the Supreme Court of India with an intriguing prayer

As reported by the media, the military has moved the Supreme Court of India with a plea that “adultery” should continue to remain an offence for the defence services though it has been decriminalized by the Supreme Court.

The said application filed in the Court for clarification, in the opinion of this contributor, is misplaced and ill-advised. I say so because once a section in the penal code stands decriminalized, it cannot be recriminalized only for the military, and notwithstanding the decriminalization, if any such liaison has an implication on service discipline or any other aspect of service life, it still remains an offence under the provisions dealing with ‘conduct unbecoming’ and ‘violation of good order and discipline’. If that does not suffice, the Parliament can legislate a separate offence in the military codes rather than the Government approaching the Court with a plea to make the Supreme Court ruling ineffective for the military.

A full-fledged opinion piece on the subject of the interplay of adultery with the military in view of its decriminalization, written for The Quint, can be accessed here.   

We're 7

This week Global Military Justice Reform turned seven! Many thanks to everyone who has made this possible through your 5849 posts, 862 comments, 11 Town Halls, and 902836 just-plain visits from 187 jurisdictions.

The case of the vanishing court-martial

Col. (Ret) Don Christensen has this number-crunching post over at CAAFlog. Have American courts-martial fallen into desuetude? What are the causes and implications? Check CAAFlog for what, with luck, should be a robust exchange of views.

An anniversary

A Canadian friend reminds us that on this day in 1898, Émile Zola's J'Accuse essay appeared. It sparked one of the greatest military justice controversies of all time: The Dreyfus Affair.

The putsch: time for a purple CDA?

Only a little while ago, the Editor posted (see below) an essay that Prof. (and LtCol (Ret)) Rachel VanLandingham and he wrote concerning fallout of the failed putsch for military personnel. As more information emerges about who was involved, it appears that an unknown number of active, reserve, and retired members of the armed forces may have participated. Personnel matters, including military justice and rules on extremist activities, are administered by the separate services, and it would be concerning if there were disparate outcomes across service lines. In the past, where numerous members of the armed forces have been suspected of misconduct (think: Tailhook) a consolidated disposition authority (CDA) has been designated so that a single yardstick will be used when making decisions about how any charges should be disposed of. The armed forces may therefore want to consider designating a single CDA for all putsch-related cases. That officer should, in the Editor's opinion, be at least a Lieutenant General or Vice Admiral, with a senior uniformed lawyer serving as staff judge advocate. At the very least, the services should make every effort to fashion a consistent approach to disciplinary and other adverse actions in these cases. Given the gravity of the putsch, the services should also coordinate public affairs program responses to the putsch, both for consistency's sake and in the interest of maximizing transparency and thereby fostering public confidence in the process.

Putsch

Global Military Justice Reform contributor Prof. Rachel VanLandingham and the Editor have written Military Personnel and the Putsch at the U.S. Capitol for Just Security.

Taxes, disabilities, and military service

In an interesting decision, the European Court of Human Rights held, in Ryser v. Switzerland, that it was a violation of the European Convention on Human Rights to require individuals who are found unfit for military service because of a minor disability to pay an annual military tax while exempting those who are unfit because of a major disability and those who perform alternative service as conscientious objectors. From the court's summary:

In today’s Chamber judgment in the case of Ryser v. Switzerland (application no. 23040/13) the European Court of Human Rights held, by a majority, that there had been: a violation of Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights. The case concerned Mr Ryser’s liability to the military service exemption tax even though he had been declared unfit for service. The applicant complained of discrimination on the grounds of his state of health. The Court found that Mr Ryser had indeed suffered discriminatory treatment on the grounds of his state of health. It noted in that regard that the distinction between persons who were unfit for military service and were exempted from the tax in issue and persons who were unfit for service and were nonetheless required to pay the tax was unreasonable. It also noted that Mr Ryser had been placed at a considerable disadvantage as compared with conscientious objectors who were fit for service but could conduct alternative civilian service and thereby avoid paying the tax in question. The Court also pointed out that the relatively low amount of the tax was not decisive per se. It further observed that Mr Ryser had been a student at the relevant time. The Court took note of the legislative amendments which had been made following the judgment in the case of Glor v. Switzerland. Those amendments had, however, postdated Mr Ryser’s case and were inapplicable to it.