Tuesday, March 30, 2021
Armed Forces Bill committee hearing on amendments
Military justice reform in Wisconsin -- a case of the slows
Following a year of historic National Guard activity in Wisconsin, and despite a 2019 federal investigation calling for reforms, state legislators have done nothing to change the law on how the force handles sexual assault and addresses discrimination.
The Guard, along with Gov. Tony Evers, say they support reforms to the state’s military law, called the Wisconsin Code of Military Justice, to align it with national standards for addressing sexual assault, victims rights and discrimination and other crimes within the force.
“Gov. Evers continues to urge the Legislature to improve the Wisconsin Code of Military Justice as the National Guard Bureau recommended to protect our servicemembers and survivors and prevent sexual harassment and assault in the Guard,” said Evers spokesman Britt Cudaback in an email.
The Calley case, 50 years on
Human Rights Watch comments on misuse of military courts, among other things, in Lebanon
Lebanon should urgently reform the military court system by removing civilians and children from their jurisdiction and ensuring that judges deem inadmissible all confessions and evidence obtained under torture. The Defense Ministry should refer all torture allegations to the public prosecutor and put in place a policy of zero tolerance for all forms of torture and inhuman or degrading treatment. It should ensure that all serving judges are fully independent and impartial, including ensuring that no judge is within the military chain of command.
Monday, March 29, 2021
Landmark decision by the Supreme Court on women officers in the Indian Army (not military justice, but . . . )
In February 2020, the Supreme Court had upheld the decision of the Delhi High Court which (in 2011) had termed the non-availability of consideration for Permanent Commission to women in the Indian Defence Services as discriminatory and unconstitutional. While women were allowed to serve as Short Service Commissioned Officers with terms ranging from 5 to 14 years, they were not eligible to be considered for Permanent Commission which was available to male Short Service Commissioned Officers.
However, while implementing the ibid judgement, certain more anomalies had crept in whereby the official establishment at the time of consideration for Permanent Commission, deployed a criterion of selection which, the women officers argued, was again discriminatory and an attempt to avoid giving full effect to the judgement. The bone of contention was the criteria for Annual Confidential Reports (ACRs) and Medical Standards wherein the women, now in their 40s, were being adjudged on standards applicable for much younger officers.
Agreeing with the Petitioners, the Supreme Court of India has rendered another landmark judgement wherein besides dealing with the issue at hand it has gone into nuts and bolts of gender discrimination and has directed the government to take corrective measures. The Court has pointed out that all these anomalies and grey areas in cadre management have emerged because of delayed implementation of the High Court judgement which was rendered a decade back. When the government had challenged the High Court decision in the Supreme Court, its implementation was not stayed by the latter, yet the establishment did not implement it.
More on the judgement, and the judgement itself, can be found at this link (Live Law).
Justice in Extreme Cases
Justice in Extreme Cases is about the criminal law theory of international criminal law (ICL). The project grows out of my PhD studies at Leiden University, and was given helpful impetus from the Antonio Cassese Prize for International Criminal Law Studies, and the Social Sciences and Humanities Research Council of Canada. It took me much longer to write than I expected, but the years of being lost in some thorny foundational problems helped me to learn a lot.
Sunday, March 28, 2021
Car 54, where are you?
Ever wonder where your fellow Global Military Justice Reform visitors are from? Here are the figures for the last 24 hours:
United States 171
United Kingdom 11
New Zealand 2
Hits range from ~200 to ~800 a day.
Where are they now?
here on what became of the first 20 people taken to Guantanamo Bay, Cuba. Their fates vary. Only two of the 20 remain in U.S. detention.
Saturday, March 27, 2021
Major-General Welch sentenced to prison, dismissal, restitution
Friday, March 26, 2021
The German Polizei and American civilians
The article also briefly mentions jurisdictional issues involved in prosecuting American civilians, and understandably reminds civilians that they may be prosecuted by the German government. (Customarily, the Germans waive primary jurisdiction for military members to allow for trial by court-martial). The article fails to mention, though, that American civilians often escape criminal sanction for misdemeanor level conduct because the Germans aren't too interested in prosecuting relatively minor crimes, especially when there is no nexus to German citizens or their property.
This issue has been of interest to me since I was an active duty JAG prosecuting Soldiers stationed in Germany. In 2010-2013, it seemed like the U.S. government had no method to criminally convict minor criminal conduct, such as domestic abuse or larceny, because civilians were not subject to the UCMJ. The only censure was to revoke permission to for the civilian to enter base or to remain in Germany on a Status of Forces Agreement-based visa. A tough problem that appears difficult to correct. Anyway, don't take this as permission to commit minor crimes. That's never a good idea!
As soon as Jason was initially hauled in, Bravo Team ahead of their individual depositions was given “no contact” orders to not discuss the op/case with Jason or among themselves. Clay admittedly overshared a bit with Stella the World’s Best Girlfriend — namely, that Raqqa Jacques, the man who tortured Ray, had been their target — which Ray later blasted him for. Ray himself lawyered up before delivering his deposition as Chief Warrant Officer, a move that raised a flag for Jason’s JAG. If Ray was possibly throwing Jason under the bus, should Jason return the favor in a bid to share blame and hope for a lighter sentence? Or should Jason go ahead and take a plea deal (to Article 114/Reckless Endangerment, resulting in a “less-than-honorable discharge”)?
Make you want to watch?
Veeps and salutes
Thursday, March 25, 2021
An amicus brief to the Constitutional Court of Colombia
4. International standards on the scope of military criminal justice
In accordance with the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights (ACHR), Colombia must guarantee that victims of human rights violations have access to an effective remedy so that these violations are duly investigated and, if applicable, processed and sanctioned.
The independence necessary to investigate and prosecute serious human rights violations committed by the military is not usually guaranteed when the military authorities themselves are in charge of investigating their members and trying them in military courts. For this reason, regional and international human rights organizations have criticized the use of prosecutors and military courts in cases of human rights violations against civilians, and have indicated that the jurisdiction of the military courts should be limited to crimes of a strictly military nature.
The Inter-American Court of Human Rights, the highest interpreter of the ACHR, has determined that “[f] re in situations that violate the human rights of civilians, under no circumstances can the military jurisdiction operate”. Similarly, in 2012, the Court held that "the criteria for investigating and judging human rights violations before the ordinary jurisdiction reside not in the seriousness of the violations but in their very nature and in that of the protected legal right". Likewise, as established in the judgment issued in May 2007 by the Inter-American Court in the Case of the La Rochela Massacre v. Colombia, this exclusion from the military jurisdiction applies to all stages of a procedure: "the military criminal jurisdiction is not the competent jurisdiction to investigate and, where appropriate, try and punish the perpetrators of human rights violations".
The Inter-American Commission on Human Rights (IACHR), an authorized interpreter of the American Convention, has ruled in the same direction. Specifically, the Commission has indicated that Colombia must refrain from using military criminal justice in cases of alleged human rights violations committed by police officers in the context of demonstrations. For example, in its admissibility report on the death of Jhonny Silva Aranguren, a student who died in a demonstration in 2005, allegedly at the hands of ESMAD, the Commission recalled that “special jurisdictions, such as the military, do not constitute an appropriate forum and therefore they do not provide an adequate remedy to investigate, judge, and punish possible violations of the human rights enshrined in the American Convention, such as the right to life.
Similarly, the United Nations Human Rights Committee, which ensures that governments comply with their obligations under the ICCPR, has urged States Parties for several decades to ensure that military personnel are subject to criminal jurisdiction. ordinary for crimes that are not "exclusively military in nature". According to the Committee, the “broad jurisdiction of the military courts to hear all cases related to the prosecution of military personnel ... contributes [e] to the impunity that such personnel enjoy and prevents their punishment for serious violations of the human rights”. In the same vein, in its most recent concluding observations on Colombia, the Committee held that the State must ensure that investigations into arbitrary deprivation of life “begin, develop, and end in the ordinary jurisdiction”.
Canadian Parliament needs to think outside the proverbial box to select CDS and Service Commanders
- March 25, 2021. I disagree with the acting Chief of the Defence Staff (CDS), Lieutenant General Wayne Eyre’s intervention as reported by the Canadian Press under the title: “Military playbook lacks plan for dealing with cases against defence chiefs. The playbook, being developed is intended to ‘help Canada’s top military commander deal with allegations of misconduct involving senior officers.”
Given the current state of affairs in the Canadian military, the last thing Canada should do is to allow the military to fix the problem, so to speak, by themselves and FOR themselves.
To be fair, the Canadian military leadership has already been given more than sufficient warning that the issue of sexual misconduct need to be addressed and corrected. Such public dire warnings go back to the early 90’s. Over the past decade alone, starting with the murderous conviction of then Colonel Russell Williams followed in 2015 by the damming report on Sexual Misconduct in the Military by retired Madam Justice Marie Deschamps, the military had more than ample opportunity and sole authority to bring about the required change of course. We now find out in 2021 that the vaunted Operation Honour has not only presented a distorted façade but that the anticipated progress in coming to grips with sexual misconduct under this moniker amounts to naught. The last thing we need at this stage is another playbook conceived and designed by the military brass. We are well past this point.
CHANGE OF LEADERSHIP IS REQUIRED
"If what you've done over the past 5years hasn't worked for you,
then change what you're doing or the next 5 years will be the same!"
John Carlton. 2019
PARLIAMENTARY PROCEDURE ALSO REQUIRED TO APPOINT TOP MILITARY LEADERS
As also noted in one of my earlier posts, the time has come to effect a real change of leadership in the top echelons of the Canadian Armed Forces command hierarchy.
First of all, it is now time to not only change the Maestro but, as importantly, to devise a new selection process to pick the new Chief of the Defence Staff (CDS).
Given the supremacy of Parliament in our system of governance, parliamentarians should play a leading role in that procedure.
Second, in order to achieve positive result and inspire confidence and trust in each of the military and civil societies, in searching for the next CDS, there is a need to go "outside the box", that is to NOT restrict the pool of candidates to the current roster of lieutenant-generals and vice-admirals.
By moving down the rank pyramid, one hopes that younger 'up and comer ' CAF members of the family of potentials leaders – both females and males - can be found to lead the armed forces towards a better future.
Once that selection is made, the same procedure should be used for the selection of future leaders of the three Services.
Commonwealth Lawyers Association webinar, March 31
With the revelations in the recent report on Australian Special Forces, military justice is in the news again. This webinar compares the military justice systems of Australia, India, the UK and Zambia and examines the benefits and shortcomings of each system.
DATE : Wednesday 31st March
10.00 a.m BST, United Kingdom
11.00 a.m CAT, Zambia
8.00 p.m AEST, Australia
2.30 p.m IST, India
The event will also be broadcast live on YouTube, you can subscribe to our channel here:
- Brian Speers , CLA President
- His Honour Judge Alan Large, Judge Advocate General, UK
- Brig. General Moses Phiri Rtd. Zambia
- Col R. Balasubramanian, Rtd. Sr. Advocate of the Supreme Court of India
- Alex Ward, Barrister, Navy Legal Officer, Administrative Appeals Tribunal Member, Australia and CLA Council Member
There will be an opportunity for a Q&A with the panel at the end of the webinar via the chat function
His Honour Judge Alan Large
Alan Large joined the Royal Navy in 1979 as a University Cadet. He read law at Manchester University and was subsequently selected by the Navy for further legal training as a Barrister. He was called to the Bar in 1988 and served in legal and logistics roles on shore and at sea. He was the Supply Officer in HMS BRAZEN during the first Gulf War. He left the Royal Navy as a Lieutenant Commander in 1993 and pursued a career as a civilian Barrister on the Western Circuit. He was Head of Chambers from 1999 and was appointed a Recorder in 2005 and Deputy (part-time) Judge Advocate in 2008.
In 2010 he was appointed an Assistant Judge Advocate General (full-time). He served as Resident Judge with the Army in Germany from 2010 to 2013 and then as Resident Judge in Bulford from 2013 –2020. He was appointed Deputy Judge Advocate General in January 2020 and Judge Advocate General later the same year.
Judge Large is an active member of the Commonwealth Magistrates’ and Judges’ Association and enjoys working with colleagues from other jurisdictions, particularly in relation to legal issues affecting the armed forces.
Judge Large lives in Wiltshire with his family.
Brig. General Moses Phiri Rtd
Brig Gen Moses Phiri (RTD) retired from the Zambia Regular Air Force in 2019 having served for 40 years in the Regular Airforce. During that time, he was Director of Legal Services from 2001-2011 and Air Force Secretary at the Ministry of Defence from 2011-2019. During the same period (2001- 2019) he worked as a Senior State Advocate at the Ministry of Justice and carried out numerous litigation cases on behalf of the Attorney General. Hewas a member of the Southern Africa Development Community (SADC) Military Legal Adhoc Working Group and represented Zambia on many United Nations C34 meetings. He was one of the presenters on the Seminar on Legal Procedures Leading to Asset Recovery (2008) in Lausanne. He also served as CEO on Defence Industry. Brig. General Moses holds a Bachelors degree in law (LLB) from the University of Zambia and a Masters degree in Aerospace ( MBA Aerospace) from Toulouse Business School in France. He is advocate in the High Court of Zambia. He is married with four children.
Col R. Balasubramanian, Rtd
Col R Balasubramanian (Retired) holds a Masters Degree in Law. He is a Senior Advocate designated by the Supreme Court of India, where he is currently practicing. He has more than 35 years of legal and judicial experience in dealing with legal cases including but not limited to Constitutional law, Administrative law and Military Law. He was commissioned in the Judge Advocate General’s Department of the Indian Army in 1985, and has held important legal positions in Indian Army He has written a number of articles/books on rule of law, peace keeping operations etc, and has participated in National and International Seminars on rule of law issues. He was awarded the Vishist Seva Medal for Distinguished Service rendered in the Judge Advocate General’s Department of the Indian Army by Hon’ble President of India on 26 Jan 06, besides number of Commendations including Special Commendations by the Special Representative of the UN Secretary General and Force Commander United Nations (2002) for exceptional devotion to peace keeping duties in UNMEE. He is married and has a son who is also a practicing lawyer and is settled at New Delhi, India
Alex Ward was the president of the Law Society of South Australia in 2004–2005, president of the Law Council of Australia in 2011 and president of the Commonwealth Lawyers Association 2015 to 2017.
He is a commander in the Royal Australian Navy and and the chair of the Military Legal Service Ethics Advisory Committee.
Alex is a part-time member of the Australian Administrative Appeals Tribunal and in that handles compensation cases for military personnel.
here. This is smart coverage of the Canadian Armed Forces' unfolding train wreck. Excerpt:
Time to retire Operation Honour?
Military law experts in Canada and U.S. have noted that it might be very difficult for the Canadian military to court-martial senior military leaders because the process requires a jury or panel made up of officers with rank equal to or higher than that of the accused.
As for Operation Honour, [Acting Chief of Defence Staff Lt.-Gen. Wayne] Eyre said he's heard from many that "maybe this operation has culminated and we need to harvest what has worked from there and learn from what hasn't and go forward with a deliberate change plan."
Eyre's testimony is important because it gives the first public indication of how the military plans to chart its way out of the crisis — and suggests there could be more sordid revelations to come.
Wednesday, March 24, 2021
C-SPAN link for today's hearing
Those interested in viewing the SASC hearing regarding sexual assault in the military can watch here:
GMJR's own Eugene Fidell will be a witness.
Canada's Military Justice System is in a Meltdown: Will Goverment Act?
Retired Colonel and lawyer Michel W. Drapeau, and the Honourable retired Justice Gilles Létourneau, in collaboration with lawyers Joshua Juneau and Stéfanie Bédard, are publishing a new book which may assist the Canadian Parliament in resolving the overwhelming and deepening issues with and within the Canadian military justice system.
- An electronic copy of the book in the English and French format is available at www.mdlo.ca.
The purpose of this book is to outline a way ahead as the Canadian military faces a major leadership and morale crisis and as more and more victims of sexual assault in the military come forward to speak against their assailants and the military “culture”, seeking justice.
PARLIAMENT MUST ‘HOLD THE PEN” NOT THE MILITARY
The book proposes a plan to reform Canada’s military justice system to – at last! – bring it in line with Canadian values and legal standards of the 21st century. Such reform must be conceived and actuated by Parliament not the Armed Forces.
This is a must. Parliament must 'hold the pen" on this.
WALL TO WALL REVIEW IS URGENTLY REQUIRED
The book namely discusses the urgent need for the independence of certain military professionals – such as judges and lawyers – and the necessity to restructure the existing Office of the Judge Advocate General to prevent, inter alia, the military prosecution services and military defence counsel services from having the same immediate boss.
Moreover, the lack of competence and independence of the National Investigation Services (NIS) and the military police is addressed, and their jurisdiction over Criminal Code offences – especially sexual assaults – is worrisome, to say the least. The book recommends that jurisdiction over sexual assaults be returned to civilian courts.
It also recommends, inter alia, that Parliament be involved to control both the extraordinary growth of the general officer corps and oversees the selection and appointment of generals to senior leadership positions. For all intents and purposes, the Chief of the Defence Staff (CDS) has sole control over the entire process.
INSPECTOR GENERAL OF THE ARMED FORCES
Tuesday, March 23, 2021
Military justice challenges in North America
here about the challenges currently facing the Canadian and U.S. military justice systems. Excerpt:
The decision to court-martial a high-ranking American officer "would be purely political and up to the civilian administration."
That doesn't mean the American armed forces are immune to the reckoning taking place over sexual misconduct in the military. But there's an added wrinkle in the American context: the remarkable power commanding officers there can wield over the court martial process itself.
Commanding officers in the U.S. can, in some cases, overturn court martial verdicts. The ability is a little-used prerogative of command — one that many say is outdated.
There was an uproar in 2013 when a U.S. Air Force lieutenant-general used the power to upend the sexual assault prosecution of a subordinate.
The U.S. Congress is seriously contemplating removing, or severely limiting, the authority of commanders under the uniform justice code — and instead leaving such cases entirely in the hands of military lawyers.
Many here in Canada have called for a reform of the military justice system that would take it out from under military authority.
Both U.S. lawmakers and the American military as an institution will be watching what happens in Canada very carefully, [National Institute of Military Justice President Philip D.] Cave said.
Department of miscellany
Revised SASC hearing notice
Natalie Khawam, President and Founder, Whistleblower Law Firm
Amy Braley Franck, Founder, Never Alone
Brenda S. Farrell, Director, Defense Capabilities and Management, Government Accountability Office
Eugene R. Fidell, Senior Research Scholar, Yale Law School, and Adjunct Professor of Law, New York University Law School
Colonel Don M. Christensen, USAF (Ret.), President, Protect Our Defenders
Colonel Lawrence J. Morris, USA (Ret.), Chief of Staff / Counselor to the President, Catholic University of America
Sunday, March 21, 2021
Sad news from Pennsylvania
Lawrence W. Muschamp, 72, of Fairfield, PA died Thursday morning, March 18, 2021 at his home.
Born January 28, 1949 in Wiesbaden, Germany, he was the son of the late Peter L. and Margaret (Heiman) Muschamp. He was the husband of Laura L. Scudder, of Fairfield, PA whom he was married to for 32 years.
Mr. Muschamp was a 1967 graduate of Waynesboro High School, a 1971 graduate with a BA from Mt. St. Mary’s University, and a 1974 graduate with a J.D. from Catholic University. He was a retired Navy Lt. Commander serving during Vietnam.
In addition to his wife, Lawrence is survived by his twin brother, Peter A. Muschamp, of Blue Ridge Summit, PA, his sister, Marie Louise Hollabaugh, of New Oxford, PA, two nephews, James Hollabaugh, David Hollabaugh, and his half-brother, Robert Muschamp, of Falls Church, VA. He was preceded in death by his brother, Percy Muschamp, his half-brother, George Muschamp, and his half-sister, Joan Bossman.
Funeral services, being handled by the Monahan Funeral Home, will be private. Online condolences may be made at monahanfuneralhome.com.
Larry Muschamp was utterly brilliant, a gifted writer, and one of the best oral advocates at the bar of the then U.S. Court of Military Appeals. Sincere condolences to Laura (his successful appellate government co-counsel in United States v. Stombaugh, 40 M.J. 208 (C.M.A. 1994)), and to Larry's extended family.
One year without a Chief Military Judge
I expand on this issue in this recent Blog post.
And, since that raises the issue of judicial independence, my recent commentary regarding the DND/CF Ombudsman may also be of interest.
We can, undoubtedly, anticipate more revelations, discussions, and assertions by a variety of stakeholders.
Saturday, March 20, 2021
Don't miss this symposium issue
Symposium Introduction: Is Demilitarizing Military Justice an Ethical Imperative for Congress, the Courts, and the Commander-in-Chief, by Dan Maurer
Fears of Tyranny: The Fine Line Between Presidential Authority over Military Discipline and Unlawful Command Influence Through the Lens of Military Legal History in the Era of Bergdahl, by Joshua Kastenberg
Court-Martial Sentences: Time for More Transparency, by Christopher E. Martin and Timothy P. Hayes, Jr.
A House Divided: The Unique Ethical Dynamic of Civil and Military Co-Counsel Relations in Court-Martial Defense, by Robert E. Murdough
Judicial Disclosure and the Judicial Mystique, by Michel Paradis
At the Elbow and Under Pressure: Legal, Military, and Intelligence Professionals, by Dakota S. Rudesill
Probable Cause and the Provable Cause: Bridging the Ethical Gap that Exists in the Military Justice System, by Mitchell M. Suliman
Ordering Injustice: Congress, Command Corruption of Courts-Martial, and the Constitution, by Rachel E. VanLandingham
Friday, March 19, 2021
Musings about the current deepening crisis in morale and leadership in the Canadian military over issues of sexual misconduct
Both the former and current Chiefs of Defence Staff (CDS) are facing continuing media attention in relation to allegations of sexual misconduct. The recently retired CDS, General Jonathan Vance, is currently under investigation concerning allegations of inappropriate behaviour during his military service made by two females subordinates. His replacement, Admiral Art McDonald, who prior to his appointment as acted as the Commander of the Royal Canadian Navy was also recently suspended from his duties amid an investigation into allegations of sexual misconduct. Latterly, reports surfaced that the Commander of Military Personnel Command, Vice-Admiral Haydn Edmundson, was subject of allegations of inappropriate behaviour with females subordinates in the late 1990s.
Then earlier March, in an unrelated matter, the Minister of National Defence suddenly announced the appointment of a new Vice Chief of the Defence Staff. The new appointee would be the eighth general officer to serve in that important and prestigious position since 2016.
Obviously, such turbulence in the executive-level leadership can only lead to potential instability in the Canadian Armed Forces (CAF) organisation and have a corresponding impact upon the rank and file.
DÉROUTETo quote a Monte Carlo Casino’s call to order, at present “Rien ne vas plus!” in the Canadian military.
What is required in order to provide the rank and file respect, pride and confidence in the higher echelons of the military hierarchy as well as the assurances that sexual misconduct will be successfully tackled once and for all?
In my opinion, Canada needs to put in place on a priority basis the means to exercise the following: a) political leadership; b) true civilian control; and c) robust institutional oversight over the military. At present, all of this is seriously lacking.
How do we get from here to there? From my perspective, four decisive actions need be done on an urgent basis.
- Make a real change of leadership.
- Appoint a new Minister of National Defence.
- Complete a generational change in the senior echelons of the military command hierarchy. In order to achieve this result, move down the rank pyramid a step or two to pick a younger 'up and comer 'leader. Appoint him or her as the next Chief of the Defence Staff.
- Exercise the same method to appoint a new slate of senior commanders to head the three Services.
In reaction to this crisis, Justice (retired) Gilles Létourneau and I are currently in the final stages of publishing a new book outlining the reforms which must urgently be done to return the Canadian military to its former lustre and grandeur. It is will be published in the weeks ahead under the title; "Canada's Military Justice System is in a Meltdown: Will Government Act?"
The Golsteyn case at the ABCMR
Thursday, March 18, 2021
SASC personnel subcommittee hearing on sexual assault in the military
Survivors of sexual assault in the military and survivor advocates
Brenda S. Farrell, Director, Defense Capabilities and Management, Government Accountability Office
Eugene R. Fidell, Senior Research Scholar, Yale Law School, and Adjunct Professor of Law, New York University Law School
Colonel Don M. Christensen, USAF (Ret.), President, Protect Our Defenders
About that oath . . .
Going back to the January 6 insurrection – while a disproportionately high number of military veterans were involved, it is doubtful that more than a handful are actually subject to military jurisdiction. Even for those who are, the military should continue to defer to the Department of Justice to take the lead to prosecute them for the same crimes as their civilian criminal colleagues (as explained here). For any current reservist or guardsman/women involved in the insurrection, their fitness for continued duty should be evaluated, with civilian convictions providing a basis for discharge. Finally, for any active-duty member of the U.S. military who participated in the January 6th insurrection, their crimes against our civilian government should be prosecuted by that civilian government, thus reinforcing its legitimacy, and any military-unique crimes, such as conduct unbecoming an officer and gentlewoman, can be subsequently tried by court-martial.
Even if the military foregoes any such prosecution, these individuals will almost certainly be subject to administrative action to separate them from the active rolls based on their civilian convictions. Accountability for their criminal misconduct may be properly reserved for federal civilian prosecutors, but their blatant breach of allegiance to the Constitution they swore to defend is reason enough for the military institution to sever their connection to national service -- and to double-down on efforts to educate the ranks on the meaning of that special oath that binds together those in uniform.
Wednesday, March 17, 2021
Evacuation Day, 2021
Evacuation Day, the day Lord Howe & Co. departed The Hub in 1776. Regards to friends in the Land of the Bean and the Cod.
Tuesday, March 16, 2021
By the numbers
As of this morning, the blog, founded in January 2014, has had 926,871 hits from readers in 187 jurisdictions, 5941 posts, 895 comments, 26 contributors, and one editor. We have held 13 Town Halls (No. 14 will be on April 6). Our @globalmjreform Twitter account has sent 3990 tweets and 660 followers. (Note to self: need to work on that.)
As always, many thanks for your interest and support for Global Military Justice Reform. Keep the posts, comments (real names only, please), and Twitter likes and retweets coming; join us at the Town Hall; tell your friends.
And it's free.
Sunday, March 14, 2021
CAAF's FY21 budget request
Spanish military justice system annuls punishment for criticism of an appointment
The Under-Secretary, Alejo de la Torre, who was in the post from June 2018 until June 2020, called the Colonel, so the latter traveled to Madrid and at approximately 6:00 p.m. on December 20, 2019, the Colonel went to the Under-Secretary's office. The Under-Secretary presented him with a document informing him of the proceedings that had resulted in his punishment for a minor infraction. The Colonel read it and signed it.
The document revealed that the comments had been made by the Colonel during a farewell speech on December 3, 2019 at the military residence "El Alcazar," in Madrid. The Under-Secretary questioned the Colonel, but the content of the questioning was not written down in any document. Similarly, he questioned three generals and the following day a fourth, but none of these testimonies was written down. The Colonel requested to be present at the taking of the testimony of the generals, but the request was denied.
Allegedly, the Colonel was punished because at the farewell dinner he said that the appointment of an official different from a lieutenant colonel in his department seemed to him an arbitrary decision that had caused him great pain. The Colonel alleged that his rights had been violated: his right to the presumption of innocence, his right to a defense, his fundamental right to freedom of expression as well as the principle of legality and the duty to issue an explicit resolution in disciplinary matters.
The Colonel explained to the Under-Secretary that he had used the term "arbitrary" in the vulgar, not technical sense. What he meant was the absence of norms regarding the appointment created space for arbitrariness, given the absence of certainty, but that he was not referring to any case in concrete. He defended himself saying that he requested permission from his superior, a general, to change his speech and to make reference to the specific appointment. The general agreed and congratulated him on his speech.
The Central Military Tribunal criticized the fact that the persons present at the speech were not identified and they did not know the identity of the official who presided over the event, who should have reacted if the Colonel's words were inappropriate or out of bounds. In addition, since the Under-Secretary was not present, he had to rely on the testimony of the military official who made the denunciation and that person was not identified to the Court. The fact that the person was anonymous also affected the Colonel's possibility of defending himself, since he did not know what he was defending himself against. The Military Tribunal criticized the surprise nature of the telephone summons and found for the Colonel because his right to defend himself had been breached. The Military Court noted that the Under-Secretary, having summoned him to his office, should have informed him that a disciplinary proceeding had been opened, the grounds therefor and his right to be assisted by a lawyer or a member of the military. He had not been able to question the accuser or any of the witnesses.
Others criticized the decision of the Military Tribunal and consider the offense a serious one, not a minor offense, considering that the comments were disrespectful of the Armed Forces. They point out that the decision is not final and that the State has appealed to the Spanish Supreme Court. They are certain the Central Military Tribunal's judgment will be overturned and the punishment imposed by the Under-Secretary will be affirmed.
Canada’s military justice system is falling into the dustbin of history
“Canada’s military justice system is teetering on the verge of collapse,” Halifax-based military affairs analyst Commander (retired) Ken Hanson told this writer. And the circumstances appear to be dire.
At issue are allegations of improper conduct by both the outgoing Chief of the Defence Staff, General Jonathan Vance and his incoming replacement, Admiral Art McDonald. Admiral McDonald voluntarily stepped down on February 24 from the job he had since January 14, 2021.
Both are under investigation by the Canadian Forces National Investigation Service (CFNIS), the investigatory arm of the Canadian Military Police (MP).
Retired Sergeant Jesse Zillman, a former specially-trained sexual assault investigator, told accomplished investigative journalist Rachel Ward, that his work as a MP gave him a distrust of the military’s internal justice system. It “seems ill-equipped to deal with these types of intimate crimes, sexual assaults, sexual exploitation . . . . It doesn’t feel like that system was designed to deal with those types of offences.”
Zillman pointed a finger at commanding officers of accused service members, reproaching them for interfering with sexual assault investigations. However, like their civilian counterparts, Military Police could lay a charge of obstruction of justice when anyone impedes a MP in the execution of his/her responsibilities.
One of the responsibilities of the Military Police bosses is to ensure that Military Police personnel can do the job without hindrance, and there are tools that enable that. Among them is a charge of obstruction of justice for those who impede police work.
It is apparent that one of Zillman’s obstacles included the intransigence of his own superiors.
While the Military Police have their share of challenges, so does the Canadian military’s Judge Advocate General branch.
But in the military context, sexual misconduct can also include other forms of indecorum which can evade the more enthusiastic efforts of the Judge Advocate General branch to treat equitably.
In July 2011, Brigadier-General Daniel Menard, commander of the Canadian military force in Kandahar, Afghanistan, was found guilty in a court martial for an inappropriate personal relationship. He was reduced in rank to colonel and fined $7,000.Jump ahead seven years to January 25, 2018, when the then newly-appointed Judge Advocate General, Navy Captain Geneviève Bernatchez (now promoted to Rear-Admiral ) announced that the CFNIS laid a series of charges against Chief Military Judge, Colonel Mario Dutil.
The Canadian Press reported that among the eight charges was an inappropriate relationship with a subordinate. This is an offence only in the Canadian military, mandating that the matter must be adjudicated by a court martial.
As Col. Dutil was the Chief Military Judge, all other judges on the military bench were within his chain of command, including Lieutenant-Colonel Louis-Vincent d’Auteuil, who presided over Dutil’s abortive court martial. He abruptly recused himself citing conflict of interest concerns.
Lt-Col. d’Auteuil added that neither of the remaining three judges could replace him as they each had similar circumstances or did not have the necessary language skills to preside over a court martial.
Col. Bruce MacGregor, Director of Military Prosecutions, brought the matter to the Federal Court in an effort to direct that one of the remaining military judges preside over Dutil’s tribunal. Federal Court Justice Luc Martineau denied the request citing potential damage to Dutil's constitutional right to a fair trial.
The case against Col. Dutil collapsed on March 11, 2020. Col. MacGregor stated that all Canadian military personnel “regardless of rank or appointment, are held to the same, highest standard of conduct. In this specific case, alleged wrongdoing was reported and investigated by proper authorities, charges were laid and moved forward in accordance with the law.”
But, the fact remains that the results of the proceedings against Brigadier-General Menard and Col. Dutil were polar opposites.
A year later, we have the two highest ranking officers of the Canadian Armed Forces facing investigations for impropriety.
Given Jesse Zillman’s distrust of the military’s internal justice system, how confident should the serving military women and men be as Military Police investigate the two highest ranking officers of the Canadian military?
Perhaps we are witnessing the collapse of Canada’s military justice system under its own weight.
Our military disciplinary system is a derivative of British military law. Military justice grew from the need to quickly deal with infractions and crimes committed by these early troops. Courts martial were created at a time when it took weeks to months to return a sailor or soldier to England to face justice for his misdeeds. But today we can return a miscreant to Canada from almost anywhere in the world within 24 hours and place him or her into the hands of the appropriate police agency for disposal by the appropriate court.
In truth, we no longer need courts martial, therefore we no longer need the military prosecution directorate, the defence counsel service and military judges. Non-criminal misconduct can be handled administratively, and the criminal courts can deal with criminal behaviour, allowing the Canadian military justice system to simply tumble into the dustbin of history.