ABSTRACT. Federal law currently provides for direct Supreme Court review of criminal convictions from almost all American jurisdictions, but not of most court-martial convictions. For them, an Article I court can veto access to the Supreme Court. This Essay argues for elimination of that veto.
Monday, May 31, 2021
Equal access to the Supreme Court
Sen. Inhofe speaks
Sen. James M. Inhofe, Ranking (Republican) Member of the Senate Armed Services Committee, quoted here by NPR on the pending bill to transfer disposition power over sex offenses and other serious crimes
Town Hall 16, Monday, June 7, 2021, "What's up in Canada?" with Rory G. Fowler
Meeting ID: 897 6270 0036
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Sen. Gillibrand explains
"[Sen. Jack Reed's] insistence on narrowing this bill to one crime -- the crime of sexual assault -- you're going to basically break apart the criminal justice system within the military. You're going to create one set of justice for one set of plaintiffs and defendants and the rest for everybody else. It's not fair," she told Tapper.
"Women will use this court. It will become a pink court and destabilize and make, unfortunately, a mockery of the entire criminal justice system," Gillibrand said, noting that while men also experience sexual assault within the military, they're less likely to come forward with claims.
More about the Dominican Republic legislative proposal
There are no shortcuts and, therefore, any attempt by the deputies to insert into the criminal code, even indirectly, the existence of military criminal courts, as it is intended to do, would be in direct contempt of the current precedent of the TC, which would open the doors to other public powers and citizens in general, to act contrary to the precedents set by the TC, which is institutionally very dangerous.
I hope that the deputies do not act like the military, standing up and responding "sir, yes sir", to the clear attempts to revive the military criminal courts, which, furthermore, are not necessary in our country.
70th anniversary of the UCMJ
Sunday, May 30, 2021
Canadian Military Justice Update #2
This week, there were three key topics that arose, and some foreshadowing for the coming week. This week's update will address:
1. The Notice of Motion brought by Defence Counsel Services regarding the independence of the Court Martial Appeal Court (CMAC) of Canada within the context of a series of appeals regarding the independence of military judges.
2. The charges laid against Officer Cadet (OCdt) Kenderesi for mutiny and scandalous conduct by an officer.
3. The ongoing media 'churn' regarding sexual misconduct in the Canadian Forces.
Finally, related to some of these matters, at least indirectly, is the anticipated public release of the Report of the Third Independent Inquiry into the National Defence Act (NDA), led by Justice Morris Fish.
Saturday, May 29, 2021
A return to military jurisdiction over "military crimes"?
It is argued that the Minister of Defense is seeking to restore a derogated provision of the Penal Code that permitted military jurisdiction to extend to crimes committed by members of the military, which due to the fact that the military was perceived as judging itself, did not result in serious penalties. The revised Constitution of 2010, however, in Article 254 limited military jurisdiction to disciplinary infractions and military crimes set forth in law.
"Article 254. Competence of military jurisdiction and disciplinary regime. Military jurisdiction only is competent to hear cases of military crimes set forth in laws on the subject. The Armed Forces will have a military disciplinary regime applicable to those infractions, which do not constitute crimes in the military penal code."
The Constitutional Tribunal in a judgment TC/0512/17 repealed all the crimes set forth in the military penal code, that had existed since 1953. In a subsequent judgment, TC/0350/19 the Constitutional Tribunal clarified that military tribunals only had the power to hear cases that involved administrative disciplinary offenses and that they were barred from dealing with cases involving crimes. From the foregoing, the Constitutional Tribunal averred, "military criminal tribunals are non-existent in our legal system."
Defenders of Minister Diaz Morfa's position argue that the Constitution itself recognizes military jurisdiction over crimes and they limit their support of military criminal jurisdiction to applicability to members of the military for the commission of crimes that due to their nature affect military interests, such as desertion, not crimes that involve civilians or human rights violations.
Article 74(3) of the Constitution provides that international human rights treaties, ratified by the Dominican Republic, have constitutional rank in the domestic legal hierarchy and are to be applied directly by courts and governmental organs. The jurisprudence of the Inter-American Court of Human Rights established that military courts are not competent to investigate, prosecute and punish civilians or perpetrators of human rights violations. The Court has recognized a limited scope of military jurisdiction for crimes that affect military interests:
". . .military criminal jurisdiction shall have a restrictive and exceptional scope and be directed toward the protection of special juridical interests, related to the tasks characteristic of the military forces. Therefore, the Court has previously stated that only active soldiers shall be prosecuted within the military jurisdiction for the perpetration of crimes or offenses that based on their own nature threaten the juridical rights of the military order itself." (Radilla Pacheco v. Mexico, (2009) at 272).
In this observer's opinion, both the Dominican Constitution and international human rights law permit a limited scope of military jurisdiction for crimes that affect military interests. But not having seen the scope of the proposal of Minister Diaz Morfa's letter and listening to some of the televised defenses of the position on the internet, it is not clear that the defenders of the Minister would be content with such a restricted return to military jurisdiction.
Memorial Day thoughts on reform from the CAAFlog newsroom
Recently there has been an eruption of blog posts from opponents of the military justice reforms championed by Sen. Kirsten Gillibrand, Rep. Jackie Speier, and other federal legislators. Many of these are simply rehashes of things the same or other authors have argued in the past. As the Administration and Congress move from the still-unpublished recommendation of the Independent Review Commission appointed by Defense Secretary Lloyd Austin to taking a definitive stand on the pending proposals, a few basic points need to be kept in focus:
First, the numbers of sexual assault in the armed forces have essentially not budged despite past legislative initiatives and assurances from the service chiefs.
Second, the acquittal rate in sex-offense courts-martial is sky-high. Sending unwinnable cases to trial is unfair to everyone and detracts from public confidence in the administration of justice.
Third, one ally after another has removed from commanders the power to decide who shall be prosecuted for serious crimes. They have not done so to drive down the number of sex offenses; rather, they did it out of regard for the need for independent and impartial decision making in the administration of justice in the armed forces. And, a number of these changes arose before the prevalence of sexual assaults became a public issue. Commanders are neither independent nor impartial.
Fourth, 21st century Americans in and out of uniform recognize that prosecution decisions for serious and oftentimes complex criminal matters (as opposed to minor disciplinary offenses) are best made by persons with legal training.
As we observe Memorial Day, all Americans should be grateful to our military personnel. It is not enough to mouth the words "Thank you for your service." We should show our appreciation by ensuring that they will have the benefit of a state-of-the-art legal system that reflects contemporary values and in which they and we all can have confidence.
Fair seas and following winds to all.
Friday, May 28, 2021
Investigative independence and war crimes
. . . The Court considers that the interaction between the Federal Ministry of Defence and the Dresden Public Prosecutor General in the context of the preliminary investigation carried out by the latter (see paragraph 30 above) was from the outset incapable of affecting the independence of the investigation, given that the Federal Prosecutor General, who had commenced a preliminary investigation on 8 September 2009 (see paragraph 30 above), had exclusive competence for the investigation and prosecution of offences under the Code of Crimes against International Law and that the Dresden Public Prosecutor General was obliged by law to transfer the investigation concerning Colonel K.’s liability for offences under that code to the Federal Prosecutor General without delay (see paragraph 101 above). There are no indications that the Federal Ministry of Defence tried to influence or interfere with the Federal Prosecutor General’s investigation. Moreover, a lack of independence cannot be deduced from the abstract possibility for the Federal Ministry of Justice to issue binding directives to the Federal Prosecutor General, it being undisputed that no such directives were issued in the present case (see Mustafa Tunç and Fecire Tunç, cited above, § 222).
The decision sets forth the institutional arrangements followed by Germany for the prosecution of war crimes. ¶¶ 30-33, 96-98. Civilian authorities wield the disposition power, subject to judicial review by the civilian courts. ¶¶ 99-100.
Memorial Day Weekend 2021
Thursday, May 27, 2021
Evidence obtained by torture
CMACC and judicial independence
The question of whether military judges are independent was subsequently sent to the Court Martial Appeal Court, where three civilian judges including Chief Justice Richard Bell heard arguments from both sides in the winter and was set to make a ruling.
But now lawyers for the accused in seven affected cases want permission to submit new evidence and argue Bell is not sufficiently independent. That evidence includes Bell’s own statements to a judicial commission this month about his lack of independence.
Bell specifically flagged the fact that all justices on the military Appeal Court are required to be sitting judges in other courts at the same time. In his case, Bell is a sitting Federal Court judge in New Brunswick.
“Membership as a judge or even chief justice of the CMACC is dependent upon membership as a judge of another source court,” reads a submission prepared for the commission on Bell’s behalf in March and referenced by defence lawyers in the seven cases.
“This potentially exposes the chief justice of the CMACC to the directives of other chief justices, thereby compromising his or her capacity to effectively carry out the independent functions of the CMACC.”
The defence lawyers also included in their submissions several statements by fellow Court Martial Appeal Court judge Edward Scanlan, who appeared alongside Bell before the judicial commission on May 11, questioning the independence of the chief justice.
Those include an email from a Federal Court administrator to Bell, which Scanlan read aloud, suggesting the administrator’s control over Bell’s schedule affected his ability to work on military appeals.
Scanlan described the situation as “the chief justice of a national court sitting and hearing cases where he is being told by a trial court how much time he is going to get because they fill the rest of his time up.”
“That is a direct, frontal attack by a source court. It has allocated to itself the exclusive authority to decide how much time CMACC justice has to do his work. It’s a frontal attack on his judicial independence and on the judicial independence of the court.”
The article does not make clear what the "judicial commission" referred to is or whether the pertinent materials are available to the public. CMACC's "cases under reserve" webpage indicates that the government has until tomorrow in which to respond to May 18, 2021 motions concerning fresh evidence in several cases, and these are presumably the cases referred to above. Readers who can shed light on the procedural setting are invited to do so.
Wednesday, May 26, 2021
Irish military lawyers at loggerheads - a "storm in a teacup"?
The Irish Times of 17 May 2021 contains a report of the rather unedifying spectacle of two of the most senior legal officers in the Irish Defence Forces, embroiled in a very public argument which seems to have at its root a dispute as to whether it was appropriate for the Director of Legal Services to cancel one or more of his officers' attendance at a course run by the U.S. Army Judge Advocate General's Legal Center and School and to withdraw them from availability for service with UNIFIL, a peacekeeping force in Lebanon.
If that is really the root cause of this spectacle, then it does seem to be rather a "storm in a teacup". It is perhaps no wonder that Mr Justice Meenan appeared somewhat bemused that the matter reached his Court. As a common law jurisdiction with close historical links to English law, one would have thought that the famous dictum of Lord Reid in Chandler v Director of Public Prosecutions  3 All ER 142 (HL) would make a challenge against decisions concerning courses and postings somewhat difficult to sustain in the Republic of Ireland:
It is in my opinion clear that the disposition and armament of the armed forces are, and for centuries have been, within the exclusive discretion of the Crown and that no one can seek a legal remedy on the ground that such discretion has been wrongly exercised. I need only refer to the numerous authorities gathered together in China Navigation Co Ltd v A-G. Anyone is entitled, in or out of of Parliament, to urge that policy regarding the armed forces should be changed; but until it is changed, on a change of government or otherwise, no one is entitled to challenge it in court.
One can only imagine what message this dispute sends to junior legal officers in the Irish Defence Forces. It does bring to mind some wise counsel I once heard. Not every legal course of action is a prudent one.
Tuesday, May 25, 2021
Can servicemembers who are anti-vaxxers be court-martialed for mutiny
A Canadian soldier is facing rare mutiny charges after allegedly urging fellow members of the armed forces not to help with the distribution of Covid-19 vaccines.
The Department of National Defence has announced charges against officer cadet Ladislas Kenderesi, a reservist in Ontario. Kenderesi has been charged with “endeavoring to persuade another person to join in a mutiny” and “behaving in a scandalous manner unbecoming of an officer”, according to officials.
The charge of mutiny is rare in Canada and has not been used in decades.
January 6 putsch
this informative Frontline piece on whether military courts have a role to play in connection with the January 6 putsch. Excerpt:
Following a DOD “stand down” order for all branches to hold a one-day training to address extremism, Defense Secretary Lloyd J. Austin announced in April that the DOD would commission a study on the scope of internal extremism and would establish a working group to implement recommendations. Austin also said the DOD will update its definition of extremism among military personnel.
But when FRONTLINE asked what a new definition was intended to do, the DOD did not address the question. Nor did the DOD address whether it was considering changes to the UCMJ. Currently there is no public timeline for when the definition will be updated.
Tension mounts over Gillibrand bill
Sen. Kirsten E. Gillibrand, quoted here in The Hill
Tom Porter, executive vice president of government affairs at the Iraq and Afghanistan Veterans of America, an advocacy group with more than 425,000 members, said addressing sexual assault is the primary driver behind a desire for legislation to change military justice. But, he added, Gillibrand’s single prosecutor’s office for all major crimes that are not uniquely military makes the most sense.
“We agree that you ought to have unbiased, professional decision-making for all serious crimes,” Porter said.
Sunday, May 23, 2021
Weekly recap - Canadian Forces military justice
The news cycle was dominated by reporting and speculation regarding Major-General (MGen) Dany Fortin who, until 14 May 2021, was functioning as the Vice President Logistics and Operations of the Public Health Agency of Canada (PHAC) leading the effort to deliver COVID-19 vaccines to Canada's provinces so that they could be administered to Canadians and residents of Canada. By all accounts, he was performing that role well.
It has surfaced that allegations were raised in March of this year relating to alleged misconduct that dates from 32 years ago, when MGen Fortin was an Officer Cadet (OCdt) attending Collège Militaire Royal at St-Jen, Québec. Initially, reports were that the allegations pre-dated 2015, when MGen Fortin was first promoted to General Officer and also when the now-cancelled Op HONOUR was launched by (then) Chief of the Defence Staff (CDS), General Jonathan Vance. As the days progressed, select details were 'leaked' to the news media that the allegations were much older. In light of the passage of time, several jurisdictional concerns have arisen, and your loyal servant has provided an analysis of those issues here.
CTV news broke the story on 14 May 2021: Sarah Turnbull, "Maj.-Gen. Dany Fortin no longer leading vaccine campaign pending military investigation", (14 May 2021), Online: CTV News.
Indeed, as CTV News later reported, although MGen Fortin was aware, generally, that he was the subject of an investigation, he was not aware of the specific allegations. He did not learn those details from the Acting Chief of the Defence Staff (A/CDS), Lieutenant-General (LGen) Wayne Eyre. According to Commander Marc Letourneau, a military lawyer from Defence Counsel Services assigned to represent him, MGen Fortin was not aware of the allegations until CTV News contacted him. MGen Fortin denies any wrong-doing.
Most news reports indicate that MGen Fortin 'stepped down' from his position with the PHAC, following a meeting with the A/CDS. Whether he voluntarily 'stepped down' or was directed to do so is open to speculation.
It appears that the Prime Minister, Minister of National Defence, and the Head of the PHAC were briefed on the allegations well before mid-May, and perhaps as early as March. No one from the Canadian Forces or the Department of National Defence have indicated why this information is only being made public now, or why it was not until mid-May that MGen Fortin 'stepped down' from his role. However, it does appear to coincide with the decision by the Canadian Forces National Investigation Service (CFNIS) to refer their investigation to Québec's Director of Criminal and Penal Prosecutions (DCPP) due to jurisdictional concerns.
Some people have started to question the timing of the announcement and why a decision to replace MGen Fortin was only made in mid-May rather than in March, when the allegations were first raised. Some have questioned why it was necessary to replace MGen Fortin, who, for all intents, was performing his role well, based upon as-yet-unproven allegations dating from 32 years ago.
Robyn Urback of the Globe and Mail wrote a thought-provoking opinion piece for this week-end's edition of that newspaper: Robyn Urback, "Canadians should know the specifics of why Maj.-Gen. Dany Fortin is off the job", (22 May 2021), online: Globe and Mail.
There will, undoubtedly, be more to come on this matter once the May 2-4 barbecues have cooled.
Saturday, May 22, 2021
The inglorious Sixth of January
here on aspects of how and where military personnel may face justice as a result of participating in the January 6 putsch. "Commanders are waiting for legal proceedings at the Justice Department before they make administrative decisions for charged troops, defense officials have said."
Pseudonymous criticism of U.S. Army investigations of commanders
At a time when the United States is facing worldwide threats and the first near-peer adversary in a generation, the Army is purging commanders without due process. For the Army to work, there must be trust among different levels of commands. But our current General Officers (GOs) no longer support commanders under their authority and are happy to throw away any semblance of due process to shield themselves from scrutiny. GOs hide behind investigations that remove fundamental elements of the rights of the accused and rely on “administrative actions” that are actually punitive in nature. Unsupported complaints are enough to launch full-scale investigations, lacking even basic due process.When unscrupulous GOs disguise their witch hunts behind the veil of “administrative actions,” the Army can turn a blind eye to the procedural due-process rights of the accused. Currently, any member of a unit can levy a complaint — more accurately, a laundry list of complaints — without providing any evidence besides the allegation alone. If the allegations are part of the sacred trinity of racism, sexism, or bullying, a higher-level commander will not even question the veracity of the claims and instead will immediately appoint an investigating officer under the authority of Army Regulation 15-6 (AR 15-6).While AR 15-6 investigations have been around a long time, their current use to circumvent due-process rights and avoid full Uniform Code of Military Justice (UCMJ) proceedings, where robust due process is afforded, is a recent trend. Trust between commanders allowed for many things to be handled commander-to-commander to tackle problems at multiple levels. But AR 15-6 does not ever require a commander to open an investigation. However, there is risk aversion among GO-level commanders, so by appointing an investigating officer (IO), they can absolve themselves of the responsibility of dealing with the complainant directly.
Tuesday, May 18, 2021
Job opening: Clerk of the Court, U.S. Court of Appeals for the Armed Forces
Monday, May 17, 2021
Why is this at court-martial?
United States v. Henderson? A Hill AFB airman has had “State criminal charges  dismissed because a military (sic) court-martial is in the works[.] A “Second District Judge signed an order April 30 dismissing charges against Hernandez, who allegedly fired five shots, hitting one man, at a March 14 party. Hernandez faced charges of first-degree felony attempted aggravated murder; five third-degree felony counts of discharge of a firearm; and a second-degree felony count of obstructing justice.”
Bombay High Court sets aside disciplinary proceedings against a Colonel of the Indian Army
During the fag end of the officer’s service, the process for taking administrative action for termination of his services had been initiated for allegations of certain malpractices. However, on the date of his superannuation, the Army midway jettisoned the process and invoked Section 123 of the Army Act against him for taking disciplinary action (Court Martial) instead of administrative action. Section 123 entitles the Army to invoke action under the Army Act against any person even after retirement in case the alleged offence had occurred while the person was in service, with an outer limitation of three years.
The officer had then approached the High Court seeking quashing of the proceedings against him. The government had taken an objection in the High Court that the proper forum for the officer to approach was the Armed Forces Tribunal (AFT) since it was a ‘service matter’, besides contesting the matter on merits.
The High Court however overruled the objection related to its jurisdiction and held that the relief claimed by the Petitioner was related to his fundamental rights and did not fall within the purview of the definition of ‘service matters’ as defined in the AFT Act. The High Court also held that as far as an appeal to the AFT from a Court Martial was concerned, it would only apply after a person is convicted by a Court martial. The Court also held that there were no fetters on the powers of the High Court and Supreme Court to hear such matters, being Constitutional Courts. The High Court set aside the initiation of disciplinary proceedings on the ground that once the authorities had taken the decision to proceed against the officer administratively by stating that a Court Martial was not expedient, they could not midway change the course and start disciplinary proceedings for a Court martial.
The High Court has set aside all proceedings against the officer and has ruled that he would be deemed to have retired from service on the date of superannuation.
A press report on the case from The Times of India is available here.
Sunday, May 16, 2021
Colonel Christensen op-ed in "The Hill"
Sexual harassment in Taiwan's armed forces
this account of the incidence of sexual harassment in the Taiwanese armed forces, as reported to the Legislative Yuan. Excerpt:
From 2016 to last year, the military handled 245 sexual harassment allegations, including 157 that were later proven, and 58 that went to trial but did not result in a conviction, the report said.
Twenty-six cases were later dropped, and four remain in the legal process, it said.
Allegations and convictions rose almost annually from 38 allegations and 24 proven cases in 2016 to 65 allegations and 41 proven cases last year, it said. . . .
Male on female harassment, which accounted for 160 cases, was by far the most prevalent in the military, followed by 11 cases of male on male harassment and one case of female on female harassment.
The perpetrator was the victim’s superior in 103 cases and of lower rank in four cases, while 99 of the incidents involved a perpetrator in a leadership position, 63 involved colleagues and 21 involved a person pursuing a relationship with another, the report showed.
The victim was a military service member of non-commissioned rank in 75 cases, enlisted rank in 51 cases, a lieutenant or captain in 12 and major or colonel in three.
Out of 241 incidents, 184 involved inappropriate touching; 33 involved sending or sharing images without consent or sending unwanted texts; 20 involved humiliating, derogatory or hostile language; and four involved recording a person without their consent.
Taiwan abruptly abolished peacetime military courts in 2013. It is unclear whether the cases reported here were handled administratively or in the civilian courts.
Judicial review of minor punishments in India
Judicial review of summary punishments is a recurring issue. Non-judicial punishments under Article 15, UCMJ, are excluded, for example, from the jurisdiction of the U.S. Court of Appeals for the Armed Forces, United States v. Gammons, 51 M.J. 169, 175 (C.A.A.F. 1999); United States v. Edwards, 46 M.J. 41, 43 (C.A.A.F. 1997), although they are reviewable by the service boards for correction of military and naval records and in the Court of Federal Claims and federal district courts.
The 2019 Yale Draft Principles for Military Summary Proceedings stated in Principle 14:
Summary proceedings resulting in the imposition of a punishment shall be subject to appeal or review by a tribunal or higher military authority in a fair process prescribed by national law. Nothing in this principle affects the right of a member of the armed forces to seek judicial review of a decision by a military authority to the extent permitted by national law. [Footnote omitted.]
Saturday, May 15, 2021
Who's on first?
Since Solorio, court-martial jurisdiction over the person is based only on their status as a member of the armed forces — nothing more. Neither O’Callahan nor Solorio gave or took authority from the commander to prosecute. The issue was about who was charged, not who did the charging. Congress chose to make personal status a jurisdictional requirement, and nothing in the Military Justice Improvement and Increasing Prevention Act will change that. The bill puts the discussion and decision of “who” on the floor for debate and potential adoption. Regardless of the outcome, the courts will defer to Congress.
Separately, one of two significant concerns with the proposed legislation is the failure to address who appoints the “jury” members. The military calls the jury a “panel of members,” yet a panel discusses and decides a case similar to a jury in federal or state court. The commander appoints the initial pool of members who sit to determine guilt and a sentence — the commander influences who sits on the jury. You might say this is the home team manager selecting the umpire for the baseball game. If the authority to prosecute is removed, the power to appoint the jury also should be removed.
Friday, May 14, 2021
A busy few days in reporting on the Canadian Forces
It would require a lengthy and comprehensive blog post to address all of the narratives that have arisen in the past few days. Indeed, it would require a relatively comprehensive commentary to separate the signal from the noise regarding those narratives.
The present post is not a comprehensive discussion. However, it does offer links to some noteworthy news media reports. Readers are on their own initiative to examine and consider the merit and significance of each. [And please excuse any editorializing that may creep into your loyal servant's comments that follow.]
One of the recurring 'events' are the broadcasts of meetings of Parliament's Standing Committee on National Defence. These are regular fodder for news media. These are typically described as 'hearings' although that is a bit of an exaggeration, particularly when compared to similar processes conducted by our American cousins. They certainly have the feel of 'bread and circuses' that tend to accompany some of the more sensational hearings conducted by Congress south of the 49th Parallel. The term 'testimony' may also seem to be a bit of a misnomer, as the commentary offered by 'witnesses' is not provided under oath.
Some of the headlines arising from those committee meetings include:
- Canada’s military police commander defends unit’s handling of sexual misconduct cases
- Military police chief defends independence; Vance allegedly said he 'owned' force
- Commons committee asks whether military has sexist double-standard on fraternization
- Liberals move to end defence committee study on military sexual misconduct
- Katie Telford agrees to appear at defence committee probing military sexual misconduct
- Katie Telford testifies she was 'very concerned' but had no details about 2018 Vance allegation
For example, when both reporters and 'witnesses' - who really ought to know better - characterize 'adverse personal relationships', as defined under Defence Administrative Order and Directive (DAOD) 5019-1, as 'fraternization' (which has a markedly different meaning under that same directive), confidence in the accuracy of other statements may wane. That is but one mischaracterization in recent appearances. Similarly, factual gaps - often filled by conclusory statements - can pose challenges in understanding the full context of the subjects of the reports.
Regrettably, in the fast-paced churn of the news cycles surrounding these subjects, facts sometimes take a back-seat to the sensationalism of the headlines. Compare for example, the reporting about the appointment of the new Chief of Military Personnel (CMP), Lieutenant-General Steve Whalen. The government news release "Acting Chief of the Defence Staff announces additional 2021 Canadian Armed Forces General and Flag Officer senior promotions and appointments" translated into "Military replaces another top officer in wake of sexual misconduct allegations" when reported by the public broadcaster, Canadian Broadcasting Corporation (CBC).
And, often, a news report will principally serve as an opportunity simply to rehash the same allegations and narrative that has been presented to the public over the past several weeks. For example, very little of the Global News report "Head of Canadian military intelligence school removed amid misconduct probe" actually addressed that matter. At least half the article was simply a rehash of other news stories.
One thing is certain, the news cycles will continue, and information, misinformation, and even disinformation, will continue to flow.
This would be in accord Parkinson's Law which is described and defined as the natural tendency for bureaucrats to make more work for each other and in so doing accumulate interminable delays by British naval historian and author Cyril Northcote Parkinson who in an essay in the ECONOMIST in 1955 wrote as follows:
"It is a commonplace observation that work expands so as to fill the time available for its completion. Thus, an elderly lady of leisure can spend the entire day in writing and despatching a postcard to her niece at Bognor Regis. An hour will be spent in finding the postcard, another in hunting for spectacles, half-an-hour in a search for the address, an hour and a quarter in composition, and twenty minutes in deciding whether or not to take an umbrella when going to the pillar-box in the next street. The total effort which would occupy a busy man for three minutes all told may in this fashion leave another person prostrate after a day of doubt, anxiety and toil."
Forget me not
First active duty servicemember charged in Capitol riot
Major Warnagiris is now the the 45th person with military service charged in the riot, out of approximately 440 total defendants. He appears to be the first one who serves currently on active duty.
Thursday, May 13, 2021
Prosecutorial discretion---who decides?
The National Institute of Military Justice (NIMJ) has published a statement on PROSECUTORIAL DISCRETION UNDER THE UNIFORM CODE OF MILITARY JUSTICE. You will see recommendations beyond what is in the current Military Justice Improvement & Increasing Prevention Act (S.B. 1520 of 29 April 2021).
NIMJ recommends transferring prosecutorial discretion not only for all sex offenses, but also for all serious offenses – those for which the authorized maximum punishment exceeds one year’s confinement. This dividing line is a familiar feature of American criminal justice. Additionally, commanders should play no role in selecting court-martial members.
Wednesday, May 12, 2021
A reminder about comments
Tuesday, May 11, 2021
Déjà vu all over again
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
Another county heard from
Sunday, May 9, 2021
Italian Air Force hazing case
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
"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.