Friday, April 30, 2021

Rien de va plus!

The Chief of the General Staff of the French Armed Forces. General Francois Lecointre, recently advised the media (le Parisien) that no less than 1,000 serving non-commissioned members, approx. 100 officers of senior ranks and approx. 20 officers of general rank, could be facing disciplinary procedures for signing an open letter published on April 21, 2021 in the magazine "Valeurs Actuelles" urging President Emmanuel Macron to save the nation from Islam and the suburban hordes of immigrants, declaring that the country is heading towards a "civil war."
 "L’heure est grave, la France est en péril, plusieurs dangers mortels la menacent. Nous qui, même à la retraite, restons des soldats de France, ne pouvons, dans les circonstances actuelles, demeurer indifférents au sort de notre beau pays. . . On le voit, il n'est plus temps de tergiverser, sinon la guerre civile mettre un terme à ce chaos croissant, et les morts, dont vous porterez la responsibilité se compteront par milliers." 

One of those who signed the letter was the former commander of the French Foreign Legion, General Christian Piquemal. The general had already sparked controversy by participating in a protest against migrants in the French port city of Calais, which once hosted the infamous “Jungle” migrant camp -- a source of great tension with locals. 

The  French Defense Minister, Ms. Florence Parly had already threatened to impose "sanctions" against those high-ranking officers who signed the open letter. Also, General Piquemal received a severe reprimand from General Lecointre, who vowed to send him a letter telling the general that "He is unworthy, defiles the army and weakens it by making it a subject of national controversy.

Moreover, General Lecointre went further: "I deny them all ... the right to make political statements emphasizing their rank" adding that these generals will each appear before a higher military tribunal. "At the end of this procedure, it will be the President of the Republic" he said " who will sign a decree for their early retirement."

Breaking ranks

“I’m at a point now where I am ready to support removal, which is a huge step for me because I recognize how serious that issue is,” [retired Adm. Mike] Mullen told POLITICO. “We just can’t keep doing what we’re doing because it hasn’t worked.”

Adm. Mike Mullen, former Chairman of the Joint Chiefs of Staff and Chief of Naval Operations, referring here to Sen. Kirsten E. Gillibrand's proposed Military Justice Improvement Act 

Guantanamo prospects for closure


The National Institute of Military Justice (​NIMJ) will host an event entitled GUANTANAMO: Prospects for Closure, on May 6, 2021, at 12:00PM EST. Confirmed guests include Carol Rosenberg of the New York Times and Benjamin Farley, formerly of the State Department, and Butch Bracknell. Karen Greenberg, Director of the Center on National Security at Fordham, will moderate.

You can find the Zoom log-information at NIMJ here.

Thursday, April 29, 2021

Military justice since 1950: a Pyrrhic victory?

Readers of Global Military Justice Reform may be interested in this essay, just published in the Journal of National Security Law & Policy's online supplement. At left, Chief Judge Robinson O. Everett.

Town Hall 15: factual sufficiency review -- a controversial counterbalance in a controversial system of justice

This Monday, May 3, at 0900 (GMJR time), Global Military Justice Reform will convene its 15th Town Hall. The subject will be the latest amendments to Article 66, UCMJ, concerning appellate review for factual sufficiency. Our presenter (speaking in his personal capacity) will be Major Isaac C (Zeke) Kennen, who is well known to readers over at CAAFlog

Town Hall 15 is co-sponsored by CAAFlog, so we expect a capacity crowd. While the subject is of particular interest to American practitioners, military justice mavens from other countries are most welcome to join in and comment on how, if at all, their national appellate systems address factual sufficiency issues.

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Passcode: 298665

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Myanmar's military courts

Myanmar's military junta has put in place some shocking rules for areas of unrest in Yangon and Mandalay. According to this account:

Twenty-three criminal offenses will be tried before military tribunals. These include "high treason," sedition, violating media laws and spreading news the military deems "false."

Convictions cannot be appealed and can result in the death penalty or "unlimited years" of imprisonment with hard labor. Senior Gen. Min Aung Hlaing -- who leads the junta, formally known as State Administration Council -- gives the final go-ahead for death sentences. He and the Yangon commander have the power to reverse decisions and reduce sentences.

Can you count the ways this system violates the International Covenant on Civil and Political Rights? This is just a thought exercise since Myanmar isn't a signatory, and even if it were, it would presumably derogate from Art. 14 under Art. 4.

Pwint Htun writes here in Just Security about the rule of law situation in Myanmar.

Wednesday, April 28, 2021

Leiber day


On April 24, 1863, President Lincoln issued “General Orders No. 100: Instructions for the Government of the Armies of the United States in the Field.” Commonly referred to as the “Lieber Code” after its primary author Francis (Franz) Lieber, it dictated how soldiers should conduct themselves in wartime. The main sections concerned martial law, military jurisdiction, and the treatment of spies, deserters, and prisoners of war.

Also, John Fabian Witt, Lincoln's Code. For a discussion, (advance forward to 0:7 for the actual discussion) https://youtu.be/GwjQK5LZM_Q

Breaking news: a mutiny on HMS Bounty

Well, okay, it's not exactly news, but National Geographic has an article on the Bounty mutiny. (Too bad no one told the editorial staff that the plural of court-martial is not court-martials.)

Tuesday, April 27, 2021

Watch for changes in the Gillibrand bill

The New York Times's Jennifer Steinhauer reports here on the growing prospects for change in the court-martial charging system. "At a news conference scheduled for Thursday, Ms. Gillibrand [left] is expected to announce her new compromise with Ms. Ernst, who has pushed for several additional components aimed at preventing assault, such as cameras in common areas and better training from the earliest entry points to the military."

Sham military trials of civilians, and torture, in eastern Libya

Amnesty International has issued the following report on military trials being held in eastern Libya:

Military courts have convicted hundreds of civilians in eastern Libya in secret and grossly unfair military trials, aimed at punishing real or perceived opponents and critics of the Libyan Arab Armed Forces (LAAF) and affiliated armed groups, Amnesty International said today. At least 22 were sentenced to death and hundreds of others to imprisonment between 2018 and 2021. Many defendants were subjected to torture and other ill-treatment in pre-trial detention. 

Civilians tried by military courts in the LAAF stronghold of eastern Libya include two individuals targeted solely for their journalistic work, a group who took part in peaceful protests, and tens of people who defended human rights or shared criticism of the LAAF or affiliated armed groups on social media. 

Former detainees who spoke to Amnesty International detailed a catalogue of abuses, including being abducted and detained for up to three years before even being referred to the military prosecution, held incommunicado for up to 20 months in circumstances akin to enforced disappearance, being beaten, threatened and waterboarded. Some said they were forced to sign “confessions” to crimes they did not commit.

“Military trials of civilians flout international and regional standards and are inherently unjust. In eastern Libya, such trials take place in secret and sometimes in the absence of lawyers and defendants, undermining any semblance of justice. The use of military trials for civilians is a blatant smokescreen by which the LAAF and affiliated armed groups are exerting their power to punish those who oppose them and instill a climate of fear,” said Amnesty International’s Deputy Director for the Middle East and North Africa, Diana Eltahawy.

"The Government of National Unity must immediately put an end to the military trial of civilians, and order investigations into torture and other crimes under international law committed by armed groups.”

The use of military trials for civilians is a blatant smokescreen by which the LAAF and affiliated armed groups are exerting their power to punish those who oppose them and instill a climate of fear.

Under international law, the use of military courts must be restricted to trying military personnel for breaches of military discipline. Military trials of civilians are problematic because the prosecutors and judges are serving members of the military and subject to its hierarchy and therefore lack independence and impartiality.

Biot case -- jurisdictional and evidentiary issues

The spying case of Italian Navy captain Walter Biot continues apace. This report from Corriere della Sera gives a sense of the current jurisdictional issue--military v. civilian trial--that is pending before the Supreme Court of Cassation and some of the evidentiary issues the case raises.

Monday, April 26, 2021

Professionalism watch

Over at CAAFlog, there's going to be a zoom session on relations between civilian and military defense counsel on April 27 at noon. Details can be found here.

"Given the great deal of interest in the discussion regarding relations between civilian and military defense counsel, CAAFlog will host a one hour Zoom panel and Q&A relating to that subject. Panelists TBA. This will occur one week from today, at noon EST. Those wishing to attend or participate anonymously should join as guests (not through their personal Zoom account) and should anonymize their names."

See you there. 

IRC

The Department of Defense's Independent Review Commission on Sexual Assault in the Military (a/k/a IRC) has a web page here. Presumably the IRC's recommendations and the services' comments will be posted at some point. The page includes helpful information on the IRC's members.

Saturday, April 24, 2021

Ft. Jackson commanding general's statement on an explosive case

Brig. Gen. Milford H. Beagle Jr., commanding general at Ft. Jackson, has issued an important statement concerning a recent disturbing off-base racial incident. The statement, which follows, is reproduced from this news report by ABC's Josh Berry.

“First, I want to reiterate that the command in no way condones the behaviors and actions depicted in not just one, but two recent videos posted to social media. Those behaviors are absolutely counter to the Army Values and professionalism expected of Soldiers, both on and off duty. For clarity, the Sumter, SC incident are the actions of a former Soldier, discharged from the Army in 2020, but the association to the Army and Fort Jackson obliges me to address each.

I remain in constant dialogue with the elected leaders serving our region at both local and national levels, sharing updates directly, and through my staff, in response to these recent incidents. Your Army is committed to confronting racism, extremism, and corrosive behaviors, but I must remain mindful of protecting due process in both the civil and military jurisdictions as this proceeds.

SFC [Jonathan] Pentland has been charged by Richland County for his actions on April 12th. While I have the authority to take action under the Uniform Code of Military Justice or take other administrative actions, I have the utmost confidence in our civilian criminal system and trust that it will reach a fair and just resolution of this case. I do not want to take any actions now that could interfere with the fair resolution of civilian criminal charges.

For the incident in Sumter, SC, I have no jurisdiction, yet remain equally confident that our civilian system will apply due process as the case is reviewed and handled by officials in Sumter County. 

Your Army team at Fort Jackson are grateful for the professionalism and care afforded members of the Army family by our local law enforcement agencies. 

SFC Pentland was transferred to Fort Jackson’s law enforcement team last week and returned to his unit leaders. In accordance with our standards, he has been suspended from his primary duties and continues to serve his command in an administrative capacity, pending the next step in the civil process.

After speaking with Richland County Sheriff Leon Lott, Columbia Mayor Steven Benjamin, and State Senator Mia McLeod in conference this week, we acknowledged that there is a desire for a community-level engagement as we work jointly to find the appropriate path to community healing. The reputation and esteem of your Army at Fort Jackson  has taken a terrible blow these past two weeks. I intend to work closely with them to reestablish the mutual trust and kinship engendered by years of determined cooperation.

I am aware that calls for patience and to wait for judicial processes foster additional angst in the now. Locally and nationally, we have-each and all-suffered with the COVID-19 pandemic, physical, emotional, and spiritual separations from family, friends, and people in general. I am not blind to national events that have stirred emotions for everyone.

In our isolation, some people have found greater access to more outlets and quickly give opinions publicly, often less worried about how those opinions impact others. We see your comments and inbox messages and you should know that your expressions are not going unheard. 

Your Army leaders will not allow the actions of a few to tarnish the reputation and selfless service of your Army’s most precious resource-men and women who’ve volunteered to serve honorably-nor to remove the spotlight from the members of our squad who are living the Army values.  

The Army Values are what we will live by. Please continue to hold us to those standards.”

The Sumter County incident is described here and involved a former drill sergeant. 

Can military courts try civilians?

A Tunisian news outlet, BN Check, has this superficial item about a timely question in that country. The article refers to current provisions of domestic law but makes no reference to applicable human rights jurisprudence, which strongly disfavors the trial of civilians by military courts, or the African Charter on Human and Peoples' Rights, which bans it.

Friday, April 23, 2021

Canadian Deputy PM: "There are some deep problems in the Armed Forces with sexual harassment, and with treatment of women."

 A CAROUSEL OF AGONY

    The Canadian Armed Forces [CAF] are in a crisis. Disappointingly, it has been a longstanding crisis, which extends back more than 20 years. For instance, in four cover stories published in 1998, MacLean’s magazine alerted the Canadian public of a deep-seated crisis of rampant sexual misconduct in the Canadian military. 

Since that time, sadly, little has changed. 

 There have been other signs of this crisis for decades that should not have gone unnoticed. This includes, the case of Colonel Russel Williams who in 2010 confessed to the sexual assault of at least four women, the murders of two women (one civilian and one Master Corporal serving under his authority), and to having illegally invaded the homes and bedrooms of over 80 of his neighbours. 

     Fast forward, in 2015, retired madam Justice Marie Deschamps, formerly of the Supreme Court,  conducted an external review of sexual misconduct and sexual harassment in the CAF. She concluded that there were an underlying sexualized culture in the CAF that is hostile to women conducive to serious incidents of sexual harassment and assault.  In response, the then Chief of the Defence Staff (CDS), General Jonathan Vance, introduced Operation Honour whose purpose was to rid the CAF of this scourge.

    In 2016 and 2017 seven former CAF members initiated a class action suit before the Federal Court of Canada alleging sexual discrimination based on sex or gender, sexual harassment and sexual assault.  The class action was certified and on November 25, 2019 the Court approved a multi-million dollar settlement that provides compensation to victims.  Then a government agency known as Statistics Canada conducted two separate surveys. First, in 2017, it concluded that approx. 900 CAF members had been victims of sexual assault. The, in 2018, it reported that one in seven female students at the Royal Military College (RMC) had been sexually assaulted the previous year.

    Also in 2018, at a private meeting with former military Ombudsman, Gary Walbourne, Defence Minister Harjit Sajjan was advised of the existence of a confidential complaint of sexual misconduct against Gen Vance. At the meeting, the Minister allegedly refused to become cognizant with the substance of the complaint because he claimed that by doing so would "taint the evidence".  After the meeting, Minister Sajjan notified the Privy Council Office (PCO) which reports directly to Prime Minister Justin Trudeau. PCO advised the Secretary to the  Cabinet as well as the Chief of Staff to the Prime Minister, however, no action was taken. General Vance continued to serve as CDS until January 21, 2021 when he handed his duties to Admiral Art MacDonald and proceeded on retirement leave.

    Two short weeks later, on February 2, 2021, two separate allegations of inappropriate behaviour were made against General Vance. On February 25, 2021, Admiral MacDonald was suddenly suspended following allegations of sexual misconduct which were levelled against against him. On March 9, 2021 the Commander of Personnel Command (Vice Admiral Hayden Edmundson) faced serious allegations of sexual assault. He was also suspended from the performance of his duties. At the time of writing, these two senior officers remain suspended from duty.

     In response to these unprecedented flurry of allegations, no less than three separate Parliamentary committees are currently focused on a study into sexual misconduct in the CAF. Their study also include the Liberal’s government mishandling of the 2018 allegations against General Vance.  

    Then, last week, on April 23, 2021, an Army major who has been at the centre of sexual allegations against General Vance now told a Parliamentary Committee that he "fathered two children with me" and that tod her that he was "untouchable" as he "owned" the military police.

 CANADIAN MILITARY IS AT A CRITICAL EDGE

     The Canadian military’s sexual misconduct crisis is fast becoming an "existential issue” as public confidence into the armed forces as a quintessential national institution is rapidly dissipating.    Not surprisingly, the essential trust in the chain of command by the rank and file is also at a level never experienced before.  On April 22, 2021, the Deputy Prime Minister, Chrystia Freeland, felt compelled to address the issue:

“I would also like to say that the testimony that we’ve heard at committee has been deeply, deeply troubling. It’s clear to me, as we heard from numerous reports in the past, that there are some deep problems in the Canadian Armed Forces with sexual harassment, and with treatment of women. And that has to end.”                                                                                                                                              My underline.   

 Meanwhile sexual assault survivors, military law experts and several parliamentarians are asking the government to establish proper parliamentary oversight, i.e., an Inspector General/ Yet, for all intents and purposes, government has been both absent and silent, leaving the matter in the hands of the Minister of National Defence to manage a crisis which is increasingly scarring the image and reputation of the institutions and its members, serving and retired and frustrating the victims (past and present) of sexual misconduct the armed forces.

CAF RESPONSE: "Will be doing it our way!"

    On November 21, 2021.  Canadian Broadcasting Corporation (CBC) disclosed the  pièce de resistance; simply put the military intends to create  a new top-level position at National Defence Headquarters at the Lieutenant-General Level to address a multitude of issues including discrimination, racism, harassment and sexual misconduct. This new position to be known as Chief of Professional Conduct and Culture would report to the CDS and the Deputy Minister. That proposal which can only be seen as an robust institutional rebuke to the much sought-after independent oversight of the military. It patently ignores the clamouring for parliamentary oversight of the armed forces.  

GOVERNMENT RESPONSE: "Running the Clock"

On Monday, April 19 2021, the Federal Budget tabled in Parliament announced that government is committing  to creating “a new external oversight mechanism for people to report sexual assault in the military." It also proposes to spend over $236 million (Cdn) over the next five years to address the ongoing crisis! Ugh!

     Strangely, during her interview with Global News on April 22, 2021, Minister Freeland reiterated her confidence in Defence Minister Sajjan who has been accused of inaction after being warned by the the then Ombudsman of the allegations against General Vance back in 2018. In an Opinion Piece published in Canada's national newspaper The Globe and Mailon April 26, 2021, notes that Defence Minister Sajjan has so far taken no responsibility for the current state of affairs. "In fact, at every turn, he denied that he's responsible for, well, anything." It goes on:

"You have to wonder how all that could go on. That is, unless you read the report on sexual harassment in the military written by former Supreme Court Justice Marie Deschamps in 2015. She found the problem was widespread, and military members didn’t trust the system for reporting it. She recommended the creation of an independent body, outside the chain of command, to handle complaints. Mr. Sajjan didn’t do that over his six years as Defence Minister.  Maybe Mr. Sajjan hasn’t been held responsible for that because there’s blame to go around. . . . Mr. Trudeau’s whole government bears responsibility for failing to do more about sexual harassment in the military. 
Still, in our system, we’re supposed to know who will be accountable: the minister. And when they are not held responsible, there's only one person left: the Prime Minister.                                             My underline.

CONCLUSION

            In a democracy, one of the primary duties of government and in particular its chief executive officer (in the case of Canada, the Prime Minister), is the security of the nation and its people. In Canada, one would expect the Prime Minister to have and be seen as having full and final control and authority over the governance of the armed forces and be accountable to Parliament. 

        For reasons that I cannot explain, in the current circumstances, our Prime Minister appears to have taken a distant, if not detached position, during the course of this crisis, by delegating his powers and responsibilities to the Minister of National Defence, who in turn has been shown to be both taciturn and uncommunicative letting the crisis festers. 

    This might explain why, at present, the wounded Canadian military ship of state is afloat aimlessly.

IRC recommends changes for sex offenses

Lolita C. Baldor of the Associated Press reports here on the Independent Review Commission's recommendations to Secretary of Defense Lloyd J. Austin III. They were submitted yesterday and await his review. Excerpt from Ms. Baldor's article:

"The review panel said that for certain special victims crimes, designated independent judge advocates reporting to a civilian-led office of the Chief Special Victim Prosecutor should decide two key legal questions: whether to charge someone and, ultimately, if that charge should go to a court martial, the officials said. The crimes would include sexual assault, sexual harassment and, potentially, certain hate crimes.

"According to the officials, that recommendation would affect a small fraction of the wide range of military discipline cases that commanders regularly handle.

"The panel also is recommending that sexual harassment claims be investigated outside the chain of command, and that if a charge is substantiated, the military should immediately begin the process of discharging that person from the force while other legal proceedings continue."

The IRC's charter does not indicate whether the Department will seek comments from the public before Secretary Austin decides on the recommendations.

Thursday, April 22, 2021

Not military justice, but . . .

While not about military justice (except once in a while), Bryan Mark Riggs's Hitler's Jewish Soldiers: The Untold Story of Nazi Racial Laws and Men of Jewish Descent in the German Military (University Press of Kansas 2002) will likely be of interest to readers of Global Military Justice Reform. While plodding at times, the book is the product of impressive research and chronicles an especially ugly aspect of the Third Reich: what to do with (or to) military personnel who had Jewish ancestry? It is a deeply disturbing tale of antisemitism, official madness, inhumanity, caprice, inefficiency, favoritism, racism, and utterly counterproductive decision making. 

Who shall be excluded from the German armed forces was a constant issue and the answer was both varied at any particular moment and changed repeatedly over time. The country's dictator spent valuable time personally ruling on requests for exemptions and certificates of German blood, even as the war effort was going increasingly badly. Those affected ranged from the lowest enlisted ranks to the flag and general officer corps. Many gifted and courageous members of the armed forces were discharged, sometimes permanently and sometimes only to be recalled. These included some who were dedicated to the Nazi Party. Compliance with the rules issued in Berlin varied considerably among the Wehrmacht, the Luftwaffe, and the Kriegsmarine

It is difficult to imagine what those who were caught in this insane trap made of the fact that they had to fight to defend a regime that was deporting their loved ones--and might do the same thing to them at any moment.

Wednesday, April 21, 2021

The Canadian Forces & #MeToo

On 21 April 2021, Professor Lesley Wexler posted a Blog entitled "Military #MeToo, Part II: In Bad Company— Canada’s Armed Forces #MeToo Crisis", which offered an American's perspective of the current trials and tribulations experienced by the Canadian Forces in light of a series of claims that the Canadian Forces and Canadian government is not doing enough to curb sexual misconduct in Canada's armed forces.  Professor Wexler offered this view as a means of comparing the American experience with that of their Canadian cousins.

As a Canadian, I see a couple of obvious benefits arising from Professor Wexler's observations.  First, it is valuable to have an 'outsider's' perspective.  Often, views of the Canadian experience are offered by the 'usual suspects' (the author of this post included), which can result in a bit of an echo chamber.  Second, there is value in comparing experiences of close allies, where even marked contrasts can offer lessons.

However, I must admit that I do not agree with everything that Professor Wexler asserts in her blog, and where we differ in our perspectives might be informative for other observers.

My views differ from those of Professor Wexler in two general ways: (1) I contend that some of her assertions are either factually incorrect or offer an incomplete explanation of the underlying facts; and, (2) I contend that some of of the conclusions are open to dispute.

Breaking news

A major general in the U.S. Air Force will be tried by a general court-martial for three specifications of sexual assault. Details here.

Tuesday, April 20, 2021

Certificates for review

Under the UCMJ, the Judge Advocates General have power to certify cases for review by the U.S. Court of Appeals for the Armed Forces. They typically exercise this power for the benefit of the prosecution. A check of the court's annual reports reveals that over the last 10 years, an average of 7.3 certificates have been filed, ranging from a low of two in 2018 to a high of 12 in 2014. In the three most recent years, the average number of certificates was a mere 4.3. 

When Congress revisits the appellate stages of the military justice system (which it should), it might want to abolish this power, which made more sense when the Code was new and guidance was needed on many points of law. The obvious downside was that the power was and is exercised asymmetrically. What is more, empowering the TJAGs to control a part of the court's docket (unless the issue certified was moot, unripe, academic or would otherwise result in an advisory opinion) detracts from the court's actual or apparent independence.

The certification provision could wisely be replaced by an arrangement by which either side could appeal as of right from final decisions.

Clerkship opportunity at CAAF

Judge Kevin A. Ohlson of the U.S. Court of Appeals for the Armed Forces will soon be accepting applications for a clerkship in his chambers. Details can be found here.

Spread the word

One of the pieces of information Blogger's analytics program provides is where our readers are, and in what numbers. Global Military Justice Reform has dedicated readers in many jurisdictions, and we're anxious to have more, both to share worldwide developments that come to the attention of the glass-enclosed newsroom high above Global Military Justice Reform Plaza and to increase the chances of learning about developments that might not otherwise come to our attention. All of which is a roundabout way of asking that readers tell their friends and acquaintances about the blog. The more the merrier.

While we are at it, let me mention that in six months or so we will reach our 1,000,000th hit. Thank you for helping get us to this amazing point.

Walter Biot case(s) proceed in parallel

Walter Biot, the Italian naval officer facing military and civilian charges (including espionage) will remain in jail, according to this report. So far, the two court systems are proceeding in parallel, but eventually the Supreme Court of Cassation will have to decide which system should try the case.

Extremism docket

Task & Purpose regularly carries stories of considerable interest to students of military justice. The latest is this report on extremists in the U.S. armed forces. It names names. Think of a subset of extremist, ugly viewpoints and you'll find it here. 

Punishing (and deterring) conduct that violates one of the punitive articles of the Uniform Code of Military Justice is the easy part (although thought might be given to jacking up maximum permissible sentences where an offense had a hatred dimension). The harder challenge is how to get these people out (if they are in) and keep them from entering the service in the first place, while respecting mere-membership jurisprudence developed when the concern was communism. Watch for a rewrite of the governing DoD and service directives.

Saturday, April 17, 2021

Closing Guantanamo?

Twenty-four Senators have written this letter to President Joseph R. Biden recommending closure of Guantanamo and resolution of pending cases in the Article III courts. NPR discusses the letter here.

Thursday, April 15, 2021

Multum in parvo

Let those with a bar license on the line make the legal decisions.

From this opening comment by "AF JAG" over at CAAFlog

Why is this case in the military justice system?

Sam Mednick of the Associated Press writes here that a former president of Burkina Faso has been charged before a military court with complicity in the murder of his predecessor. Why a military court?

Human rights jurisprudence strongly disfavors the trial of civilians in military courts and the African Charter of Human and Peoples' Rights forbids it entirely.

Add Burkina Faso to the list of states that violate this principle, such as Uganda, Egypt, Lebanon, and Pakistan.

Trouble in Madrid

A chamber of the Supreme Court of Spain has invalidated the appointment of two judges to the court's Military Chamber. According to this report, the process by which they were chosen by the General Council of the Judicial Power had omitted a critical step. Excerpt:

The ruling refers to the proposal of two candidates for each of the positions that preceded the appointment, and highlights that the agreement of the Permanent Commission of November 21, 2019 justified the proposal of two names, despite the fact that it considered "suitable" for the square to four candidates; "With very similar potentialities." The ruling concludes that “what they could not do was simply dispense with the legal requirements and make an amicable compromise with both positions, two candidates for each of them, a decision that opens the door to all kinds of possible speculations about the selection of each of the pairs , just the opposite of the will of the legislator to objectify the criteria that should guide these appointments , outside of the nucleus of broad discretion that they entail regarding the decision of the Plenary on the candidate to ultimately promote for the position".

An unsuccessful candidate for a seat on the Military Chamber had objected, leading to the court's decision.

Peacetime military jurisdiction -- pushback from the Military Criminal Chamber

Not so fast, says the president of Italy's Military Criminal Chamber (the specialized bar organization), Saveria Mobrici, in response to suggestions to end peacetime military courts:

Military jurisdiction in peacetime corresponds entirely to the general interest of the proper functioning of the jurisdiction, for the needs of specialized skills to be applied, for the needs of temporal economy of the proceedings, for the needs of the defense of the rights of the personnel of the Armed forces.

The Military Criminal Chamber, therefore, expresses the hope that military justice of peace, made even more "consistent" with the dissolution of some interpretative knots by the law, will be confirmed in its institutional functionality.

For its part - concludes President Saveria Mobrici - the Military Criminal Chamber, simultaneously expresses the hope of being able to play an active role in the proper functioning of military justice.

The Chamber's full statement (in Italian) can be found here.

Wednesday, April 14, 2021

Will combating extremism politicize the miltiary?

My Army reserve unit conducted its extremism training this weekend. It’s a legal unit. As lawyers like to probe and argue the finer points, I found the training interesting and can see how it could prove effective. The effectiveness of the DOD-wide stand down almost certainly depends, in part, on the unit level leaders. As press stories indicate, troops in different locations report mixed reviews. 

During our training, we discussed the oath officers and noncommissioned officers take to defend the Constitution from all enemies, foreign and domestic. That oath, and the defense of the Constitution, reminded us all of our role to defend our democratic form of government.

The impetus for the training was the events of January 6, where U.S. citizens stormed the Capitol, attacked law enforcement, and disrupted the peaceful transfer of power. The participants of that riot were disproportionately current and former military members, which was naturally a cause of concern.

As the training moved to the margins of the political issues from combating extremism, I, as I assume many other members, became uncomfortable. While I am entitled to personal political beliefs, it is awkward and against good practice to discuss them while in uniform. Especially where such beliefs directly confront the former president. Making my comments risked the non-partisan demeanor I strive for in uniform on a personal level, the same apolitical nature the organization also attempts to maintain.

So what went undiscussed during the training, the elephant in the room, was the role played by the leader of the Republican Party, the former president of the United States and the ex-commander-in-chief of the armed forces in the riot that led to the stand down. President Trump spoke to the rioters before they stormed the Capitol and attempted to thwart the lawful counting of electoral college votes. Those rioters used violence and intimidation, and the president’s speech was a call to action against the lawful counting of legal votes. 

For any of those who doubt that assertion, the transcript to President Trump’s speech demonstrates his encouragement to the rioters. He told them, among other things, that their “election victory [was] stolen by emboldened radical-left Democrats…. We won this election and we won it by a landslide…. We will not let them silence your voices. We’re not going to let it happen, I’m not going to let it happen.” He also implored Mike Pence to “come through for us”, in reference to preventing the certification of the election President Trump had just lost.

As the training progressed, it became clear that for DOD to successfully combat extremism, it needs to have conversations that I was unwilling to have. These conversations would inevitably confront a large subsection of the Republican party that feels President Biden stole the election. And the decision to have these discussions would undoubtedly risk the apolitical military, and potentially put all of us in the partisan fray. But I don't see a way to successfully confront extremist groups, and those that believe their aims to be just, while avoiding a discussion that accurately reflects the role played by prominent civilian leaders.

Take for example the Proud Boys, an organization that participated in the January 6 riot, and which has recently been labelled a terrorist entity by the Canadian government. The Proud Boys took comments President Trump made during one of the 2020 debates as marching orders. Tucker Carlson has posed for pictures with members of the Proud Boys, and the group has maintained extensive ties with Roger Stone. The Southern Poverty Law Center finds the Proud Boys have engaged in violence and espouse white nationalist beliefs. Given the SPLC and the Canadian government’s views, and the Proud Boys history, will DOD label this group as one that military members must not participate in?  And what about other orgs with white nationalist ties? And if DOD fails to list prohibited groups that are in good standing in some political corners out of fear of a backlash, isn't it avoiding the problem?

Thus, to the extent DOD is serious about combating extremism in its ranks, and to the extent service members are faithful about their oath to the Constitution, we must confront all enemies to democracy. We should strive to maintain the apolitical nature of our organization and stay above partisan battles. But when those battles involve the people’s right to choose their leaders, without the threat of or actual violence, the military must engage without fear of the consequences to our public standing.

A disturbing National Guard case

Tom Vanden Brook writes here in USA Today about a disturbing case from the Maryland National Guard. A Black officer candidate made to wear a heavy chain?

"[Sgt. Bruce] Weaver's case represents a wider problem for the National Guard whose units in each of the states, territories and District of Columbia operate with a great deal of autonomy and with little oversight of how various units respond to complaints of inappropriate conduct, such as allegations of racism, sexual harassment and assault. The National Guard Bureau in Washington, which referees appeals between state Guard units and troops, serves largely in an advisory role."

Tuesday, April 13, 2021

Prof. Wexler on the Military Justice Improvement Act and command-centric military justice

Professor Lesley Wexler of the University of Illinois College of Law has written a column titled Military #MeToo Justice: Is a Change Going to Come? She concludes:

So in contemplating this change in military justice [the proposed Military Justice Improvement Act], it is important to look at both sides of the ledger. The adherents of the status quo seem unwilling to acknowledge just how significantly the status quo is eroding trust in commanders. Yet some proponents of change seem unwilling to acknowledge just how significant a shift it would be to move decisions out of the chain of command for sexual assaults or for felonies more broadly. Even though trust in commanders relating to sexual harassment and sexual assault is low, it is possible things could get worse on that front if the move to attorneys not just failed to do better but actually did worse. I personally haven’t seen much in the literature either empirically from countries that don’t have a commander-centric model or theoretically that suggests that would be the case, but care must be taken to make sure that the reforms proposed both address the existing problems and don’t exacerbate them unintentionally or create new ones altogether. While the executive and legislative branches continue to hash this out, perhaps the Army Forces command experiment can provide some initial evidence on these questions.

White supremacists in the Navy and Marine Corps

Will Carless has written this USA Today account of how the Navy and Marine Corps have dealt with white supremacists in their ranks. He begins:

For decades, the U.S. Navy and Marine Corps have quietly kicked out some of the worst white supremacists in their ranks, offering them administrative discharges that leave no public record of their hateful activity, a USA TODAY review of Navy documents found.

The documents, obtained via a public-records request by the open-government advocacy group American Oversight, detail 13 major investigations into white supremacist activity in the Navy and Marine Corps over more than 20 years. They show a pattern in which military leaders chose to deal with personnel involved in extremism by dismissing them in ways that would not attract public attention.

The article includes a link to the hundreds of pages of investigative records obtained under the Freedom of Information Act. 

Clarifying the role of ICC complementarity in the context of the UK Overseas Operations Bill

The following Essay has been contributed by Brian L. Cox, Adjunct Professor of Law, Cornell Law School, Visiting scholar at Queen’s Law, and retired Judge advocate, U.S. Army.

As the contentious UK Overseas Operations (Service Personnel and Veterans) Bill approaches the 3rd reading in the House of Lords, one particular issue that has plagued the Bill and sown confusion in the debate from the very beginning is what effect the so-called prosecution ‘triple lock’ might have in terms of UK international law obligations pursuant to the Rome Statute. At the heart of the matter is the provision that would implement a ‘presumption against prosecution’ following the ‘period of 5 years beginning with the day on which the alleged conduct took place has expired.’

For proponents, this is a necessary step that would protect service personnel from being subjected “to what can often seem an unending cycle of investigation and re-investigation” that “risks undermining morale within the Armed Forces and trust in the rule of law.” For critics of the Bill, the presumption against prosecution “undermines the absolute and non-derogable nature of the prohibition of torture and violates human rights law, as well as international criminal and humanitarian law.”

It is certainly reasonable for informed perspectives to disagree on the merits of the Bill and the attendant presumption against prosecution that would begin 5 years from the date of the alleged offense. While I have my own (generally supportive) views of the Bill, the goal of this post is not to express an opinion in favor of or against the pending legislation. My intent here is rather more modest in scope – but the matter at hand may well help the Lords make an informed decision in the weeks ahead and, if adopted, help inform the implementation of the OO Bill.

Giving Shape to the Complementarity Concerns Associated with the Overseas Operations Bill

A central aspect of the concern that has been expressed to date in relation to the presumption against prosecution (after 5 years) is the potential that the “triple lock” may subject British service members to prosecution before the International Criminal Court. This concern could be realized, for example, if the tribunal determines in a particular case that the UK is not fulfilling its domestic obligation to investigate or prosecute allegations of offenses established in Article 5 of the Rome Statute. 

The confusion that exists in relation complementarity was demonstrated, by way of illustration, fairly early on during debate in the Commons when MP Emma Lewell-Buck, who is generally critical of the Bill, asked solicitor Hilary Meredith whether she expects “more prosecutions of UK armed forces personnel and veterans in the International Criminal Court.” And the response from the expert witness? “I do not actually know.”

Based on the nature of the debate that has occurred to date, it seems fair to conclude that no one involved really knows what impact the Bill might have in terms of ICC complementarity. Though the issue of complementarity featured prominently right across the debate that accompanied the second reading of the OO Bill in the HoL, Lord Houghton of Richmond summarized the concern well when he cautioned against “the unquantifiable risk that our people will be brought before the International Criminal Court rather than our own national ones.” (col 1209)

Part of the reason the apparent risk that UK service members are ostensibly “more likely to be hauled before the International Criminal Court” (col 1198) appears so unquantifiable to date is that prevailing perspectives are founded upon only a partial grasp of the relevant text of the Rome Statute. Sticking with the Lords debate that accompanied the second reading of the bill, several MPs articulated the basic complementarity formulation reflected in the Rome Statute: that is, that the ICC may assume jurisdiction if the relevant state party is found to be unwilling or unable to investigate or prosecute an alleged offense. (for example, see cols. 1208, 1223, and 1255)

While this understanding of the complementarity arrangement reflected in the Rome Statute is not incorrect, it does reflect a fairly limited interpretation that excludes a significant degree of important detail that could lend an appreciable degree of clarity to what appears at the moment to be an “unquantifiable risk.” To bring improved clarity to the debate, there is no substitute for the plain text of the Rome Statute.

Did you know . . .

. . . that now in Mexico offenses by military personnel against civilians must be tried in the regular courts? This Washington Post article describes a current case involving 30 Mexican Marines who have been turned over to civilian authorities.

Peacetime military jurisdiction in Italy: expand or abolish?

There's an interesting debate going on in Italy over the military justice system in connection with the pending espionage case of a naval captain. For contrasting views, consider these articles from Formiche: one that suggests ending peacetime military justice and another (by the president of the National Association of Military Magistrates) that argues for updating the statute and expanding the jurisdiction.

Monday, April 12, 2021

Why should this case be tried in military court?

A civilian trespasses on a military site. Should the person be tried by court-martial? Spain thinks so, as witness this story.

See you in Strasbourg.

Nevitt on mandatory vaccination

Prof. Mark Nevitt, writing for Just Security, has this analysis of the questions surrounding mandatory COVID-19 vaccination for military personnel. He concludes as follows:

Where do we go from here?

While the military has aggressively engaged in an information campaign about the efficacy and safety of the COVID vaccines, misinformation continues to spread online. Far-right extremists, as well as Russian Twitter trolls, have helped fuel anti-vaccination information on social media. The U.S. government should double-down on efforts to counter this.

The DoD recently announced that it will be ready to offer COVID-19 vaccinations to everyone by May 1— so more information about the overall military vaccination rate should be available shortly. While Defense Secretary Lloyd Austin has not indicated that he will request a waiver of the informed consent provision, this remains a valid option. He has also squarely addressed vaccine hesitancy. As the above three questions highlight, mandatory vaccination may not ultimately be pursued for a variety of reasons, and hopefully it won’t be needed. But a mandatory vaccination program would likely be upheld in military and federal courts if President [Joseph R.] Biden determines that it is in the interests of national security.

The very model of a modern sentence? The sentence of Maj Gen Welch (Rtd)


This article was initially published on the Cornwall Street Chambers website. It is primarily intended to address a civilian/non-specialist audience but it may be of some interest to the readers of GMJR. 

On 25th March 2021 the Court Martial sitting at Bulford Military Court Centre convicted Major General Nick Welch OBE (Rtd), late Assistant Chief of the General Staff, of fraudulently claiming £49 212.00 in Continuity of Education Allowance (“CEA”). He was the most senior British officer to be tried by Court Martial since 1815 when Lt Gen Sir John Murray was convicted of abandoning his guns without due cause, during the failed Siege ofTarragona in 1813. Fortunately, for the reputation of the British Army that reverse was soon eclipsed by the then Marquess of Wellington’s stunning victory at Vittoria two days later. Sadly, no such laurels attached to the British Army in late March 2021.

THE FRAUD

Maj Gen Welch was charged in relation to his claim for CEA, a scheme whereby service personnel required to serve away from home can educate their children at independent Boarding Schools. The purpose is to aid retention by ensuring that children’s schooling is not constantly disrupted by the requirements of the service. The full conditions of the scheme can be found in JSP752. However, in a nutshell, whilst serving in London Maj Gen Welch was required to make his Service Family Accommodation (a family house in Putney) his main home i.e. where he and his wife lived and where his children returned in the school holidays. His wife was not permitted to be absent for more than 90 days per year. In return, 90% of the school fees for his two children would be funded by the MoD.

The effect of the scheme is that if the soldier’s partner does not want to “follow the drum” because it might mean giving up a career, or simply because they do not wish to live where the Army sends their partner, then their child may be forced to change schools. It is a somewhat archaic rule that has led to the end of more than one marriage and the career of more than one officer as they try to protect their child and placate their partner by hiding the truth from the Army. As was said during the trial, there is a certain amount of flexibility built into the system but only if you inform the chain of command and make a case for funding to continue. However, there is the ever-present risk that funding may be withdrawn if your partner is away for more than 90 days.

Unfortunately for Maj Gen Welch, the Board found his wife had been absent for more than 90 days. Furthermore, it found he had known full well that he was in breach of the regulations but had dishonestly still claimed the allowance.

THE SENTENCE

On 26th March 2021 the Judge Advocate General, HHJ Alan Large (“JAG”), sitting with the Board who had convicted him, sentenced Maj General Welch to 21 months imprisonment and to be dismissed from the Army. He was ordered to pay back the full sum of £49 212.00 within three months. Mr Welch was conveyed to the Military Corrective Training Centre at Colchester that day and then, a few days later, to Her Majesty’s Prison Colchester to begin his sentence. He will serve half the sentence in custody (less up to 135 days which can be spent on Home Detention Curfew) and twelve months on licence.

The full sentencing remarks are available on request from the Military Court Service and deserve reading in full.

COMMENTARY

To those unfamiliar with the Service Justice System (“SJS”) the sentence will appear a harsh one. A man of positive good character, with steady employment who was sentenced (even after trial) following a delay of four years for a non-violent offence would ordinarily receive a suspended sentence if the sentence was capable of suspension. During the Pandemic, when imprisonment is much harder, a suspended sentence is more likely. The Court Martial is required to have regard to the Definitive Guideline on the Imposition of Community andCustodial Sentences which invites them to consider the following:


The sentencing remarks confirm the Board concluded that appropriate punishment could only be achieved by immediate imprisonment. However, they made no reference to the other features beyond strong personal mitigation. That of itself is surprising because

even if a board takes the view that appropriate punishment would only be achievable by immediate custody, they still have a discretion to suspend if there are sufficient factors against such a course; it is a balancing exercise. Unfortunately it is not clear if that balancing exercise was conducted. Certainly, no consideration appears to have been given to the inevitable loss of employment caused by imprisonment.

It appears that there was no Pre-Sentence Report which would have provided independent advice on how to assess those criteria. That is another surprising feature of this sentencing exercise. Before imposing a sentence of imprisonment or dismissal the Court is required by s.256 of the Armed ForcesAct 2006 (“AFA06”), to obtain a pre-sentence report (“PSR”) unless it is of the opinion that it is unnecessary. That sensible caveat to the rule means there is no need to obtain a report where the only possible outcome is imprisonment. In the Crown Court that sensible caveat is often stretched by experienced and pragmatic judges who, having heard a trial have already concluded that they will have to send the defendant to prison. JAG is certainly an experienced and pragmatic judge, and a humane sentencer, so it is readily understandable that he may have concluded that he did not need a PSR, particularly when assisted by Her Majesty’s counsel. However, the Board was made up of lay members with an equal voice to JAG. Whatever, their professional skills they were not experienced sentencers and should really have been assisted by a PSR, as Parliament intended. By not ordering a report Maj Gen Welch was perhaps deprived of an opportunity.

Why then did the Board take such an uncompromising attitude? Unlike the Criminal Justice System in the SJS a purpose of sentencing is the maintenance of discipline, the foundation of Operational Effectiveness. Dishonesty is particularly corrosive to discipline as, when committed against the Crown or a comrade, it erodes trust. Therefore, military justice has long taken a particularly dim view of such offending.[1] Good discipline requires commanders to be examples. Maj Gen Welch was the most senior officer convicted in modern times, and as JAG made clear the higher the rank, the greater the aggravation. These two features may justify the imposition of a harsher sentence than the Crown Court would impose. Although arguably a suspended sentence with a lengthy curfew, unpaid work and financial penalty would have met the occasion.

One reason such a sentence might have met the occasion is that Maj Gen Welch was also dismissed from Her Majesty’s Service. That additional penalty was inevitable in a case such as this, as The JAG’s Guidance on Sentencing in the Court Martial and the Court Martial Appeal Court makes clear. However, it is a separate penalty requiring separate consideration and if it must be imposed, consideration must be given to totality. Unfortunately, the Sentencing Remarks do not reveal any consideration of the impact of the sentence. Normally dismissal means the loss of employment, accommodation and the delay in pension rights. Having retired Maj Gen Welch would not suffer any of those consequences and that may be why little consideration was given to the impact of the sentence. However, that is a superficial analysis, the reality is that the rank of major general, even on the retired list, is a valuable commercial asset commercial. That is perhaps unpalatable, but it is the reality. This sentence has deprived Maj Gen Welch of that asset and the Court was required to consider if a reduction in the custodial term was required to address totality. The impact of dismissal has been held to sufficient to reduce a sentence of imprisonment to one of detention.

Another reason a suspended sentence might have met the occasion was the level of delay before trial; four years. Unfortunately, in the SJS delay before charge is endemic, despite strenuous efforts of the judiciary as part of the Better Case Management (Court Martial)policy, the Service Police insist on repeatedly interviewing suspects and obtaining every continuity statement before referring the case. However, four years is exceptional even within the SJS. Delay impacts on the defendant who has the matter hanging over them, sometimes even after they leave the service and impacts on Operational Effectiveness. The Board reduced the sentence by 9 months or 30% to reflect that. However, the Court of Appeal has previously reduced a sentence by 25% to mark 11 months delay, not withstanding the appellant pleaded not guilty. Whilst the Board could not follow the arithmetic exactly, for obvious reasons, a reduction of 50% or a suspension is arguably called for, if only pour encourager les gendarmes.

Maj Gen Welch’s sentence was unquestionably a harsh sentence, especially during the pandemic, although the Board effectively reduced the length of the sentence to reflect that it would be harder to serve than it would have been if imposed before the pandemic. However, the requirements of the service, particularly the need to maintain discipline, required a harsh sentence. As the sentencing remarks implicitly acknowledge, Maj Gen Welch knew that full well. The question is though, as a result of the issues raised above, was it an excessive sentence? Certainly, it can be argued that the Board could have taken a different course. We may yet find out, Mr Welch has until 23rd April 2021 to lodge an appeal against sentence with the Court Martial Appeal Court.


[1] The Articles of War specified a sentence called the Gauntlet. The prisoner would be marched slowly past his comrades who (as victims of the theft) would lash him with lengths of rope.