Wednesday, May 12, 2021

A reminder about comments

Unlike some blogs, Global Military Justice Reform requires all commenters to indicate their name. Please comment, but let everyone know who you are. Thanks.  

Tuesday, May 11, 2021

Déjà vu all over again

Thomas W. Spoehr, a retired U.S. Army Lieutenant General and Director of the Center for National Defense, of the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, at The Heritage Foundation, has written an issue brief titled "Congress Should Avoid Changes That Would Erode the Military Justice System." He writes:

The Military Justice Improvement and Increasing Prevention Act, if passed, would strip the authority to decide whether to prosecute sexual assaults and other serious crimes such as murder and manslaughter from commanders and give it to military prosecutors. Depriving commanders of the ability to send serious criminal cases to a court-martial undermines their ability and responsibility to enforce good order and discipline, which in turn erodes their ability to fight and win wars. There is no evidence to suggest that this change would address the very real issue of sexual assault or other crime in the military. Instead, it would likely make matters worse.

Taking a leaf out of Yogi Berra's playbook, the essay is a rerun of one the same author penned over two years ago in The National Interest. His claims have not improved with time. Readers may wish to refresh their recollection by taking another look at the Editor's comments from 2019.

Military justice at a turning point: the changing role of command

ThinkTech Hawaii CEO (and quondam military judge) Jay M. Fidell  conducts an interview with the Editor on current issues in American military justice.

Another county heard from

This evening, Global Military Justice Reform has had a hit from our 189th jurisdiction: São Tomé & Principe. Welcome aboard. We are about five months from hitting the million-hit mark.

Sunday, May 9, 2021

Italian Air Force hazing case

Eight sergeants in the Italian Air Force are facing trial on hazing charges. The trial has been delayed due to COVID-19 concerns. Three astronauts are on the witness list. Details here. Excerpt (Google translation):

Among the parties called into question also the Ministry of Defense, cited as civilian responsible for failure to supervise the behavior of non-commissioned officers and their behavior that had to be part of the traditional baptism of flight but which instead would have "offended the prestige, honor and dignity of the pupil, using violence and causing multiple bruises." According to [former officer candidate Julia] Schiff's lawyers who filed a civil action, that rite was carried out in a consolidated manner and the superiors did nothing to prevent this from happening.

Saturday, May 8, 2021

Defense Minister defends military judicial independence in Tunisia

A military court in Tunisia has issued a warrant for the arrest of a member of parliament. Asked about the matter during a committee hearing, Defense Minister Brahim Bartagi said the military court is independent, according to this account. Excerpt:

"Being a department which is part of the executive power, the Ministry of National Defense cannot interfere in the legislative and the current affairs", indicated the minister. And to add, “military justice is governed by legal texts contained in the Constitution”. “Although military, this does not rule out its character of an independent justice,” he explained.

When the U.S. military monitors civilians

The CATO Institute filed a FOIA lawsuit on Wednesday seeking information from the Department of Defense on domestic intelligence gathering. The lawsuit alleges that the Department of Defense, along with the U.S. Air Force, Marines, and Navy, have not reasonably searched records related to such surveillance. The suit comes on the heels of recent revelations that some states improperly used the National Guard to watch protestors following George Floyd’s murder by a Minneapolis policeman.  

The CATO Institute write-up explains they are looking for records related to DoD Directive 5200.27, the directive that sets “general policy, limitations, procedures, and operational guidance pertaining to the collecting, processing, storing, and disseminating of information concerning persons and organizations not affiliated with the Department of Defense.” DoD Directive 5200.27 has previously been used to disrupt lawyers providing legal services to draftees hoping to avoid Vietnam, or to monitor those protesting the 2003 invasion of Iraq.  Certainly, it will be interesting to learn what records CATO can obtain, and to learn whether, and possibly to what extent, the military continues to gather intelligence on the civilian population. 

Friday, May 7, 2021

Racial disparities in U.S. military justice

“Why aren’t there any Black people?,” Pedro Bess asked his defense attorney.  Bess, who is Black, was on trial for allegations of sexual misconduct against white women.  The ten-member jury was all white. 

The trial judge denied Bess’s challenge, as did two appellate courts.  Although constitutional standards have evolved to provide for racial diversity of juries in criminal trials, Bess was shut out from those developments.  

That is because Bess was in the Navy and was tried by court-martial.  Bess’s military commander enjoyed broad discretion to handpick the individual panel members (jurors).

As troubling as Bess’s case is, a quick fix seems unlikely since the Pentagon has spent the better part of the past decade resisting proposals spearheaded by Senator Kirsten Gillibrand to reform the military justice powers of commanders.  Still, this year’s efforts enjoy broader bipartisan support and appear likely to pass in some form.

Bess’s case is just the latest news item in a growing recognition that U.S. military justice is plagued by racial disparities, and that, for good or ill, commanders bear the consequences of calling the shots. 

A 2019 study from the Government Accountability Office (GAO) analyzed military justice actions from 2013 to 2017 and found that Black servicemembers were about twice as likely to face general or special court-martial as white servicemembers.

The problem extends more broadly to racial retaliation.  As the U.S. reckoned with the problem of systemic racial injustice last year, a Reuters special report found that the military’s process for reporting discrimination to command-appointed representatives was perceived to be a dead end.  Few complaints were substantiated, and minority servicemembers who complained of racial discrimination were often viewed as being in defiance of their units.

Surveys of Black, Hispanic, and Asian servicemembers show that significant numbers have experienced racial discrimination.  Many thought that reporting an incident would not change anything, and a higher percentage thought that reporting would negatively impact them.  

Military leaders acknowledge that they are just beginning to understand the scope of the crisis of racial disparities in military justice.  “Overall, results reveal much work is needed to improve the reporting process for those who experience racial/ethnic harassment and discrimination,” the Pentagon acknowledged in a press release last year.

Lt. Gen. Charles Pede, the Judge Advocate General for the Army, testified that the GAO report “raises difficult questions – questions that demand answers.  Sitting here today, we do not have those answers.” 

Pede directed a comprehensive assessment “to get to the left of the allegation, left of the disposition decision, to examine why the justice system is more likely to investigate certain soldiers…”

“Getting to the left” is a military expression for acting early in the timeline of an incident to address problems before they worsen.  It is how other injustices in military justice have been counteracted in recent years.

For example, at the height of the Afghanistan and Iraq conflicts over a decade ago, thousands of military members returned from combat and faced courts-martial or involuntary separations with stigmatizing discharges.  By just focusing on the misconduct, military commanders were often not aware that some of the misconduct was symptomatic of post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI).  When this connection became more widely known, a change in the law required screening for combat-induced PTSD or TBI for many adverse actions.

In those cases, when commanders were required to find out about crucial factors that occurred before the misconduct, they were able to make more fully informed choices about wielding their military justice powers.  “Getting to the left” resulted in better decisions.  In this way, commanders could be required to investigate the presence of racial harassment or discrimination, especially before pursuing punishment of minority servicemembers for minor transgressions.  Even if commanders’ traditional military justice powers are soon curtailed, their recommendations will still carry weight and should be fully informed. 

Meanwhile, Pedro Bess is trying to “get to the left” of his own court-martial conviction: he recently filed a petition for a writ of certiorari at the U.S. Supreme Court.

Thursday, May 6, 2021

Nexus shmexus

In Asim Bashir v. Federation of Pakistan, the Supreme Court of Pakistan has upheld the conviction of an army officer for murdering his mother's niece while he was on leave. He had argued that the offense should have been tried in a civilian court, but the court accepted the government's argument that the prosecution was in accordance with the Pakistan Army Act, 1952The Nation has this report. The decision is not yet posted on the court's website.

The case was tried 10 years ago.

Another job opening @ CAAF

The U.S. Court of Appeals for the Armed Forces is looking to hire a GS-13 Personnel and Administrative Specialist. Here's the job announcement.  

Chief Gallagher speaks

New light has been shed on the incident that led to the prosecution of Chief Edward R. Gallagher of the Navy SEALs--by none other than Chief Gallagher himself. Jeff Schogol of Task & Purpose has the story here.

Will NCIS be investigating whether anyone committed perjury in connection with the investigation or trial?

Wednesday, May 5, 2021

Feres barred

Justice Clarence Thomas was the sole member of the Supreme Court to speak out Monday, criticizing the Court’s refusal to hear the case of a West Point cadet who said she was raped by a fellow cadet. Thomas’ dissent from the Court’s order was a rare moment where the conservative justice sided with the ACLU, but it was also a chance for Thomas to remind the Court that there are certain precedents he’d be fine with abandoning altogether.

Thomas argued that Doe should have been allowed to bring her case against the federal government, calling attention to the illogic of a rule that allows government contractors to sue for tort when government employees cannot. Although Congress had not specifically prohibited lawsuits like Doe’s in the FTCA, “70 years ago, this Court made the policy judgment that members of the military should not be able to sue for injuries incident to military service,” pointed out the justice.

Justice Thomas refers to the Feres Doctrine. In Feres v. United States, 340 U.S. 135 (1950), the U.S. Supreme Court held that the United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty and not on furlough and resulting from the negligence of others in the armed forces. Pp. 340 U. S. 136-146.

Efforts for many years within Congress to change the FTCA have proven unsuccessful. 

We posted last week about a case in Nigeria where a military person  a rape victim was awarded money damages and attorney fees against the government.

Tuesday, May 4, 2021

Over at CAAFlog . . .

 . . . you will find a link to a timely, short and to-the-point essay by U.S. Marine Corps judge advocate Captain Lambert Jackson, with the title The Mandatory Modernizing of Military Justice: Why Fact-Based Analyses Are Essential in Determining Felony Prosecutions, Marine Corps Gaz., May 2021, at 98-100. Anyone who has been following the recent reported (but unfortunately not formally released) recommendations of the Independent Review Commission on Sexual Assault in the Military or the current legislative proposals before the House and Senate Armed Services Committees concerning the disposition of offenses under the Uniform Code of Military Justice should take a look.

Comments are welcome. CAAFlog allows the faint of heart to comment from behind a pseudonym; Global Military Justice Reform requires real names. Your call, but don't be among the Missing in Action.

Job opportunity @ Lawfare

Lawfare is looking for a Managing Editor. Details here. A great opportunity for the right person.

Monday, May 3, 2021

By the numbers

Big news from the statistics department: this evening we had our first hits from St. Kitts & Nevis, which becomes the 188th jurisdiction to check in. While we are at it, here are the other numbers:

Hits . . . 944,579

Posts . . . 6,027

Comments . . . 907

Contributors . . . 27

Town Halls . . . 15

Thank you to everyone who has made this possible. Please keep checking in, posting, commenting (real names only), and telling your friends.

Breaking (possible) news from the Chairman of the Joint Chiefs of Staff

Axios reports here on General Mark A. Milley's views on reform of the disposition process (at least for sex offenses). Headline: "Top general no longer opposes change in sexual assault policy."

Stay tuned for more definitive information about the Independent Review Commission's recommendations and the Chairman's and service chiefs' comments.

Town Hall 15 -- Article 66, UCMJ and all that

The recording of today's Town Hall 15 with Zeke Kennen can be found here. Passcode: A8rB*F&h.

Sunday, May 2, 2021

A case to watch . . . from Iran

Readers will recall that Iran shot down a Ukraine International Airlines plane on January 8,  2020, with major loss of life. It now appears that 10 members of the Iranian armed forces are facing charges of dereliction based on the incident. According to this article, military judicial authorities have denied assertions that the case has been dismissed.

Bouterse case lurches to an end

The evidentiary phase of the court-martial of former Surinamese president Dési Bouterse ended this week when he invoked the right to remain silent. Counsel will present closing argument on May 31, after which Judge Cynthia Valstein-Montnor will announce the verdict. Details here.

Saturday, May 1, 2021

Sexual assault justice in Nigeria

The ECOWAS court has delivered judgment in a suit filed by an aircraftwoman who was raped by her superior officer, Flight Lieutenant B. S. Vibelko, and dismissed from the Nigerian Air Force after she lodged a complaint.

The court awarded $200,000 (N90 million) to the applicant (name withheld) on Friday and mandated the Air Force to investigate and prosecute Vibelko for the rape of the victim.

The applicant had accused one of her superiors, Vibelko, of drugging and raping her on May 17, 2011, sued him and the Air Force, Chief of Air Staff, and Attorney-General of the Federation for her unlawful dismissal.

The court seemed clear to want to send a message.

"An order of this Honourable Court compelling the defendant, its agents, organs, servants, privies or by whatever name called to pay over to the Applicant the sum of $20, 000,000.00 (about N9 billion) only as aggravated and punitive damages that will serve as a deterrent to the defendant.

"An order of this Honourable Court directing the defendant to pay over to the Applicant the sum of $500 000.00 (about N225 million) only being the solicitor's fees and other incidental costs.

"An order of this Honourable Court directing the Defendant, its agents, organs, servants, privies or by whatever name called to immediately reinstate the Applicant to the rank her contemporaries in the Nigeria Air force currently occupies," the document stated.

The opinion is not yet showing on the court's website.

From Sahara Reporters.

Law Day 2021

Check out the American Bar Association Division for Public Education's History of Law Day page. "The rule of law is the bedrock of American rights and liberties—in times of calm and unrest alike. The 2021 Law Day theme—Advancing the Rule of Law, Now—reminds all of us that we the people share the responsibility to promote the rule of law, defend liberty, and pursue justice."