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.
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
"[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.
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.
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.
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.
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.
. . . 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.
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.
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 [1962] 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.
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.
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.
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.
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.
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.
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.”
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.
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 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.]
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.
"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."
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.
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.
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.
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.
"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.
