Armed Forces Bill committee hearing on amendments

The Select Committee on the Armed Forces Bill held a zoom hearing on March 25, 2021. This is the first time a committee's line-by-line review of proposed amendments to a bill has been televised.The video can be found here.

The committee members' attention to detail is impressive. If only markup sessions by the armed services committees of the U.S. Congress were televised (or even open to the public).

Military justice reform in Wisconsin -- a case of the slows

The Madison, Wisconsin, Cap Times reports here on the lack of action to update the state's Code of Military Justice. Excerpt:

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

A milestone passed yesterday: a half-century since First Lieutenant William L. Calley Jr. of the U.S. Army was convicted at Fort Benning, Georgia, of murdering Vietnamese civilians. The Los Angeles Times marked the date with a column by Nicholas Goldberg about the case and the civilian prosecution of Charles Manson and his co-defendants that coincidentally ended the same day in Los Angeles.

Human Rights Watch comments on misuse of military courts, among other things, in Lebanon

A detailed Human Rights Watch report on current abuses of the legal system (including torture and disappearances) in Lebanon recommends:

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.

Landmark decision by the Supreme Court on women officers in the Indian Army (not military justice, but . . . )

The Supreme Court of India has rendered yet another landmark decision on the subject of grant of Permanent Commission to women officers in the Indian Army, which is linked to another such decision rendered last year.

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

OpinioJuris has an introduction to a new monograph. Justice in Extreme Cases: Criminal Law Theory Meets International Criminal Law, by Prof. Darryl Robinson of Queens University, Ontario, Canada.

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.

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

Canada 33

France 12

United Kingdom 11

Indonesia 9

Germany 6

Portugal 6

Pakistan 4

Turkey 4

India 3

Cambodia 3

Netherlands 3

Russia 3

Austria 2

Belgium 2

Colombia 2

New Zealand 2

Thailand 2

Vietnam 2

Other 9

Hits range from ~200 to ~800 a day.

Where are they now?

Carol Rosenberg of The New York Times reports 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.

Major-General Welch sentenced to prison, dismissal, restitution

A UK court-martial panel has sentenced retired British Army Major-General Nick Welch to 21 months' confinement, retroactive dismissal, and £48,000 in restitution, following his conviction for fraud in connection with an education allowance. Details here.

The German Polizei and American civilians

The U.S. Army published an article for Americans living in Wiesbaden, Germany. The article explains how the Polizei operate in the area, joint training they conduct with the Military Police, and how Americans can engage their services. 

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!

Home entertainment

Does anybody watch SEAL Team? We learn the following from this summary on TV Line:

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

Okay, folks, today's silly issue is whether Vice President Kamala Harris broke with tradition by failing to return hand salutes. Answer: nope, but we'll still hear some nattering about this. The Editor has written on presidential hand-salutes in the past (see also this) and will only add that there is even less to this issue than there is with respect to the President, who (unlike the Veep) is, according to the Constitution, a commander. My advice to the Vice: it's always appropriate to nod or utter a word of greeting, or, if militarily inclined, quite simply, "carry on" or "as you were." But that's about it.

An amicus brief to the Constitutional Court of Colombia

Click here for an amicus brief to the Constitutional Court of Colombia. At issue is whether the military courts or the civilian courts should have jurisdiction over a case that involves a human rights violation. Excerpt (Google translation, footnotes omitted):

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

The Commonwealth Lawyers Association will be conducting a webinar on March 31 on Military Justice for Our Soldiers -- A Look at Different Military Justice Systems. It's open to everyone, and anyone who follows Global Military Justice Reform should tune in. According to the official announcement:

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

TIME :

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

Register here

The event will also be broadcast live on YouTube, you can subscribe to our channel here:

https://www.youtube.com/channel/UC4w8VAgIibHZjiVXpshOr2g

Chair :

• Brian Speers , CLA President

Speakers:

• 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

Biographies :

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

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.

Ottawa Watch

Murray Brewster takes the story through another news cycle 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.

Uh-oh. 

C-SPAN link for today's hearing

Those interested in viewing the SASC hearing regarding sexual assault in the military can watch here:

https://www.c-span.org/video/?510071-1/senate-armed-services-subcommittee-hearing-sexual-assault-military

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 21^st 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

     Perhaps the most important and urgent recommendation given the current state of the Canadian Armed Forces, the authors recommend having a civilian Inspector General reporting to Parliament who investigate complaints and provide oversight of the military justice system.

Military justice challenges in North America

Murray Brewster, senior defense writer for CBC News, writes 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

The Deputy Assistant Editor for Serendipity and Humour respectfully invites readers' attention to the Wikipedia article on Dining in.

Revised SASC hearing notice

The hearing notice for the Senate Armed Services Subcommittee on Personnel's March 24, 2021 hearing on the proposed Military Justice Improvement Act has been updated. The current version can be found here.

Witnesses

Panel 1

Natalie Khawam, President and Founder, Whistleblower Law Firm

Amy Braley Franck, Founder, Never Alone

Amy Marsh

Quinton McNair

Panel 2

Brenda S. Farrell, Director, Defense Capabilities and Management, Government Accountability Office

Panel 3

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

Sad news from Pennsylvania

One of America's finest military lawyers ever has passed away. The Gettysburg Times reports:

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

20 March 2021, marked the 1-year anniversary that the Canadian Forces have been without a Chief Military Judge. For the past year the Deputy Chief Military Judge has been the Acting Chief Military Judge. This is the only federally-appointed Chief Justice or Chief Judge position that has been left vacant throughout the pandemic.

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. 

This, in turn, may raise interest in my comments regarding what the Minister of National Defence could have done, 3 years ago, when the DND/CF Ombudsman purportedly attempted to bring to his attention concerns regarding the (then) Chief of the Defence Staff. 

There may also be interest in some earlier comments that I offered on 3 March 2021 concerning recent developments in the Canadian Forces.

We can, undoubtedly, anticipate more revelations, discussions, and assertions by a variety of stakeholders.

Don't miss this symposium issue

The latest issue of the Hofstra Law Review contains a symposium on "Legal Ethics and Modern Military Justice." The contents are impressive, broad-ranging, and worthwhile:

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

Musings about the current deepening crisis in morale and leadership in the Canadian military over issues of sexual misconduct

SITUATION

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.

DÉROUTE

To quote a Monte Carlo Casino’s call to order, at present “Rien ne vas plus!” in the  Canadian military.

In my estimation, the morale of the rank and file is near or below the water line.  Already, some senior serving officers, at the major and lieutenant-colonel rank levels no less, have already publicly expressed their clear and strong frustration.  

However, so far, their political masters have remained aloof from all of this, leaving it to play out.

On the other hand, opposition parties, in what is currently a minority Parliament ,are taking the lead by throwing a strong spotlight on the issues. As a result, negative media reports abound. All of it, amounting to a sorry spectacle in search of a political solution. 

Truth be told, all this is bound to have a lasting impact on the recruiting and retention goals of the military and its reputation. Action is required.

REQUIRED URGENT CHANGES

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.

 

1. 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. 
2. Appoint an Inspector General of the Armed Forces. A civilian personality, accountable to Parliament with the power to investigate any and all complaints.  Appoint one of his subordinates i.e. The current Ombudsman charging  him with the management of the grievance process which is currently totally broken.
3. Civilianize the military judiciary As per the United Kingdom, court-martial judges will now truly be fully independent from the military chain of command
4. Remove criminal jurisdiction for crimes of sexual assault from the military Until 1998, the Canadian military did not have jurisdictions over crimes such as murder and sexual assault. This change in 1998 when the military were given jurisdiction over sexual assault. (Section 70 of the National Defence Act.

CONCLUSION

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?"

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The Golsteyn case at the ABCMR

The "Presidential pardon is a sign of forgiveness and 'does not indicate innocence,'” the Army board wrote...when it denied former Army MAJ Mathew Golsteyn his Special Forces tab as well as medals for valor. Golsteyn, once accused by the Army of murdering a detainee in Afghanistan whom he was ordered to release, was pardoned by the last president prior to court-martial -- so any type of justice, such as an acquittal and clearing of Golsteyn's name, or conviction and appropriate punishment for intentionally killing in the name of the U.S. without legal justification, will never be had. 

SASC personnel subcommittee hearing on sexual assault in the military

March 24, 2021, 2:30 p.m., Dirksen Senate Office Building, Room 106. The hearing notice can be found here.

Witnesses

Panel 1

Survivors of sexual assault in the military and survivor advocates

Panel 2

Brenda S. Farrell, Director, Defense Capabilities and Management, Government Accountability Office

Panel 3

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 . . .

Professors Rachel E. VanLandingham and Geoffrey S. Corn have written a far-reaching blog post for the American Constitution Society's Expert Forum under the headline What Happens when Service-Members, Past or Present, Breach their Sacred Oath? Excerpt:

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.

Evacuation Day, 2021

Once again it's Evacuation Day, the day Lord Howe & Co. departed The Hub in 1776. Regards to friends in the Land of the Bean and the Cod.

By the numbers

From here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza, it's time to run the numbers again. 

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.

CAAF's FY21 budget request

The FY21 budget estimate for the U.S. Court of Appeals for the Armed Forces (Feb. 2020) can be found here. The bottom line was $15,211,000, up from $14,771,000. Price and program changes account for the increase. The performance criteria and evaluation summary observes: "The Court continually meets its goal of deciding each case accepted by reviewing authorities, thereby serving its function as defined in the UCMJ (Title 10 USC 941)." The court's work force stands at 59 persons, with an average salary of $160,700. The amount budgeted for travel was $83,000.

Spanish military justice system annuls punishment for criticism of an appointment

Spain's Under-Secretary of Defense imposed a three-day punishment on a Colonel for a minor infraction of Organic Law 8/2014, part of the Disciplinary Regime of the Armed Forces, for making comments that were mildly disrespectful of the Armed Forces.  The punishment was confirmed by the Minister of Defense, Margarita Robles, therefore, the Colonel appealed to the Central Military Tribunal.  In December 2019, the Colonel in question was already in the reserves and found himself in Valencia, not having received a new posting.

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.