Monday, June 21, 2021

Court-martial of civilians in Taiwan (ROC)

The Taipei Times reports,

The Transitional Justice Commission last week overturned the guilty verdict of a former mechanic court-martialed 47 years ago, saying that the original ruling contravened the principles of criminal law.

Chen Wen-chiung was court-martialed in 1974 for insulting a commanding officer, which at that time contravened Article 75 of the Criminal Code of the Armed Forces, and was sentenced to less than three years in prison. The act has since been amended, moving such an offense to a different article.

During the review, Chen told the commission that he was employed as a mechanic at the Joint Logistics Command’s Factory 44, and although considered a subordinate of the factory commander, he was not serving in the military.

A riposte to arguments against U.S. military justice reform

The President of the National Institute of Military Justice (NIMJ), Rachel E. VanLandingham, has this piece in today's Just SecurityProfessional Criminal Prosecution Versus The Siren Song of Command: The Road to Improve Military Justice.

Fact: Military commanders do not require prosecutorial discretion over serious criminal offenses by their service members in order to ensure good order and discipline within their units.

Fact: The vast majority of U.S. military commanders – officers vested with formal responsibility for particular groupings of service members in the military’s hierarchy – do not possess prosecutorial authority over serious crimes. There are approximately 14,500 military commanders (according to the most recently available data). Only roughly 400 have the power to convene courts-martial for serious crimes, and of those, approximately only 140 actually use that power: so less than one percent of all military commanders criminally prosecute (court-martial) service members for serious offenses.

Fact: Court-martialing Black service members at a rate twice that of their white counterparts is a broken system in need of repair. Period.

dFact:  Sens. Gillibrand and Ernst’s proposal contemplates a streamlined version of the current system that is more efficient and reduces the current need for staffing required for commanders with prosecutorial discretion. Why Mr. Johnson does not at least engage in that well-known fact is puzzling. As for Guantanamo, the Military Commissions have been a tragic failure, indeed, but by almost all accounts due to evidentiary and due process issues related to torture allegations used to extract confessions; the refusal by the government to share classified information; along with hampered access to defense counsel and a merry-go-round of judges. The claim that the current proposal will result in similar failure is simply another scare tactic by those wedded to the status quo. Indeed, it is such a poor analogy that it calls into question the soundness of the opposition more generally and the rhetorical tactics used to make their case.

Sunday, June 20, 2021

That train crash in Colombia

Last Thursday we noted the Colombian case in which the military and civilian justice systems were at loggerheads over which had jurisdiction in the case of a civilian who was killed during a protest. On Friday, the Constitutional Court ruled that the case belonged in the ordinary courts. Excerpt:

The Court indicated that the military criminal jurisdiction "only applies to crimes committed by members of the Public Force on active duty and in relation to the same service," so the direct, close and immediate link of origin must be found between the activity of service and crime. The high court said that the evidence provided by the Police does not show with "the required clarity" that [the Mobile Anti-Disturbance Squadron, or riot police] Esmad's reaction, in that case, was undertaken to counteract a demonstration that had acquired a violent character.

In addition, it pointed out that there are sufficient elements of judgment that lead to consider that in Dilan [Cruz]'s death there was some disproportionate and excessive use of force in trying to control a peaceful protest, that is why the death of the young man is configured under the prima facie concept as violation of human rights. That is, it could be considered as such in principle.

The decision is not yet on the court's website

Saturday, June 19, 2021

Extremism in the Bundeswehr

Melissa Eddy writes here in The New York Times about the recall of a Bundeswehr unit from duty in Lithuania. The reasons include alleged criminal acts as well as extremism. What criminal and administrative sanctions will follow, and what other steps will be taken to root out extremism? This is an emerging story, with potential lessons for other countries.

New York Times editorial board weighs in on the Gillibrand bill

This editorial has just gone up on The New York Times website. Excerpt:

While sexual assault is the focus of the reform push, supporters of Ms. [Kirsten E.] Gillibrand’s proposal say that reforming the military justice system more broadly will make it fairer and less prone to bias — and help address existing racial disparities in prosecutions and convictions. They warn that singling out sexual assault would establish a “pink court,” effectively creating a two-tiered justice system and further stigmatizing victims.

Advocates also point out that many U.S. allies, including Israel, Britain and Canada, have already made similar changes to their military justice systems.

Military justice and civilian blogging

Tunisia is one of a number of countries that persist in prosecuting civilians in military courts, despite human rights jurisprudence. (Others include Uganda, Cameroon, Egypt, Lebanon.) But there is pushback, including this from Ahmed Nejib Chebbi, a leading attorney and opposition figure, objecting to the military trial of a civilian blogger. Excerpt:

Indicating that the post published by the blogger in question, whatever its content, does not amount to a “military crime” because the young man did not target the military institution and that he It is in no way possible to attribute the military function to the Head of State, who represents the civil authority par excellence to which the armed forces of any democratic State are subject.

"I accuse the President of the Republic of involving military justice in specialties beyond his competence" he insisted.

"I accuse the Military Prosecutor's Office of having derogated from the law and of having deviated from its constitutional powers to the pleasure of certain political parties". he added.

Friday, June 18, 2021

Cameroonian military justice explained

Here is a brief report on recent testimony by Cameroon's minister of defense concerning that country's military justice system. Note the offenses for which civilians may be tried by court-martial. This is strongly disfavored by human rights principles and theoretically prohibited under the African Charter on Human and Peoples' Rights.

A new federal holiday starting today (Juneteenth itself is tomorrow)


Thursday, June 17, 2021

Train crash in Colombia

This just in from Colombia (adjusted Google translation):

Train crash between the Prosecutor's Office and Military Criminal Justice for alleged police violence

Investigations of police officers for violence against protesters are generating a confrontation between the Prosecutor's Office and Military Criminal Justice.

The attorney general, Francisco Barbosa, ordered an investigation into Military Investigating Judge 188, a decision that generated enormous surprise among Military Criminal Justice officials, who expressed fear of possible judicial persecution. Military Criminal Justice sources explained that the power to investigate the judges belongs to the Military Superior Court and not to the Prosecutor's Office, which in this case would be exceeding its limits.

The judge is being investigated because in principle he had taken up the case against a police officer implicated in the death of the young Santiago Andrés Murillo, which occurred on May 1 in Ibagué, a case that is now being claimed by the Prosecutor's Office.

Watch this space.

Stand by for a challenge to Jamaica's military justice system

This account in The Gleaner indicates that two members of the Jamaica Defence Force plan to challenge the independence and impartiality of the Ordinary Court-Martial, a core feature of the island country's military justice system.

The Defence Act still prescribes a classic pre-Findlay system. No military judge; convening and confirming authorities; court-martial members selected by the commander -- "the whole nine yards." Non-capital courts-martial are subject to appellate review by leave of the Court of Appeal. The challenge in the current case will rest on § 16.1 of the Constitution of Jamaica, which provides:

Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

Wednesday, June 16, 2021

Push for reform in Seoul

The Korea Herald reports here on a current proposal to reform the South Korean military justice system. It seems to have broad support. Reform proposals have fizzled over the past 17 years, but now the Defense Ministry may be supportive. Excerpt:

Under the bill, commanders would no longer have the power to commute sentences or exert any authority over the military prosecutors at the bases they oversee. Military prosecutors would have to report to the defense minister or their respective armed forces chiefs instead.

Commanders who oversee military courts handling first trials would no longer be able to appoint judges; the defense minister would fill that role.

Tuesday, June 15, 2021

Sen. Gillibrand on WNYC's Brian Lehrer Show

New York Sen. Kirsten E. Gillibrand discusses pending military justice reform legislation on this morning's The Brian Lehrer Show on WNYC. The pertinent part of the interview begins at about 6:00.

Monday, June 14, 2021

Court Martial Appeal Court of Canada - R v Edwards, et al., 2021 CMAC 2

On Friday, 11 June 2021, the Court Martial Appeal Court of Canada (CMACC) handed down its judgment in four appeals (and one cross-appeal) concerning the independence of military judges.  The judgment will undoubtedly be determinative of two subsequent appeals on the same issue (R v Proulx, CMAC-612, and R v Cloutier, CMAC-614).

R v Edwards, et al., 2021 CMAC 2

In a unanimous decision, the Court granted the appeals by the Minister of National Defence (represented by the Director of Military Prosecutions) and dismissed the cross-appeal by the accused in R v Crépeau, CMAC-607.

The Court rejected the conclusions by military judges that the Military Judges Inquiry Committee (MJIC) constituted a separate disciplinary system that displaced the Code of Service Discipline.  The Court ultimately held that, in the unique context of the military justice system - a system established to promote the discipline, efficiency, and morale of the armed forces of Canada raised by Her Majesty - a reasonable and "... informed person, viewing the matter realistically and practically—and having thought the matter through could ... reach no other conclusion than [that] military judges meet the minimum constitutional norms of impartiality and independence as required by section 11(d) of the Charter."

Consequently, the CMACC held that military judges are subject to the Code of Service Discipline while they hold office and the impugned order issued by the Chief of the Defence Staff (which placed military judges under the disciplinary authority of senior officers) does not compromise the rights of an accused, tried by court martial, to a trial before an independent and impartial tribunal, under section 11(d) of the Charter.

This judgment is relatively recent.  There is no indication whether any of the accused will seek leave to appeal before the Supreme Court of Canada (SCC).  However, as the judgment is unanimous, if one or more of the accused wished to appeal the CMACC judgment, they would have to seek leave from the SCC.  In these circumstances, there is no automatic right of appeal - although the SCC clearly has the jurisdiction to hear an appeal.

The Court also dismissed, on relatively cursory analysis, the Defence motions to adduce new evidence on appeal, holding that it would have no bearing on the merits of the appeal.

There will undoubtedly be further analysis and commentary regarding this judgment.

The practical consequence of the judgment is that the six prosecutions that were stayed can now proceed (as can other prosecutions that may have been vulnerable to such Charter applications).  We must recall that the stays of prosecution in all six of those courts martial were ordered prior to any trials on the merits of each of those proceedings.

Ultimately, to paraphrase the immortal words of Samuel Clemens: "Rumours of the death of the Code of Service Discipline have been greatly exaggerated."  This judgment has, in effect, reinforced the viability of the military justice system.

Flag Day, 2021


Sunday, June 13, 2021

Chinese legislation forbidding slander or demeaning the honor of military personnel

China's new Law on the Protection of the Status, Rights, and Interests of Military Personnel includes the following provision:

Article 32: The honor and reputation of military personnel shall be protected by law.

The honor obtained by a soldier shall be enjoyed by him for life, and shall not be revoked except for statutory reasons or procedures.

No organization or individual may in any way slander or demean the honor of soldiers, insult or slander the honor of soldiers, and must not intentionally damage or defile the awards of soldiers.

The new legislation was adopted by the Standing Committee of the National People's Congress on June 10, 2021 and goes into force on August 1, 2021.

H/T to Global Military Justice Reform contributor Susan Finder for the link to the statute and the translation.

This news report explains:
Recently, a popular Chinese blogger was sentenced to eight months in jail under the existing law for “defaming” People’s Liberation Army (PLA) soldiers killed in last year's clash with the Indian Army at the Galwan Valley in eastern Ladakh.

Qiu Ziming, who had over 2.5 million followers, was also ordered to publicly apologise through major domestic portals and the national media within 10 days to eliminate the negative impact.

While the Indian Army announced that 20 of its personnel were killed in the clash on June 15 last year just a few days after the face-off, the Chinese PLA took nearly eight months to acknowledge that it had suffered casualties during the incident and revealed that it had lost four of its military personnel.

Prosecutors can file PIL for defaming Chinese army

The new law allows prosecutors to file public interest litigation in cases of defamation of military personnel and the infringement on their legitimate rights and interests that have seriously affected their performance of duties and missions and damaged the public interests of society. It also bans the desecration of plaques in honour of military personnel.

Song Zhongping, a former PLA instructor and Hong Kong-based military affairs commentator said the legislation which also covers families of service personnel was meant to bolster the military personnel’s sense of mission.

“Previously, our legal instruments were not complete and this new law will provide more comprehensive protection for the rights and honours of our [troops].

Where should this Chilean case be tried?

By a 3-2 vote, the Second Chamber of the Supreme Court of Chile has issued a noteworthy decision on military jurisdiction in a case involving the shooting death of a member of the Carabineros. Here is the official summary (Google translation)

The Supreme Court settled the dispute of jurisdiction between the Third Military Court, based in Valdivia, and the Yumbel Guarantee Court in a case in which the death of a first corporal of the Carabineros is investigated, who died after being found with a shot to the head, inside a bathroom at the Centinela Retention, a detachment dependent on the Fifth Police Station of Yumbel, on August 17 of last year.

In a divided ruling (case roll 21.903-2021), the Second Chamber of the highest court - made up of the ministers Manuel Antonio Valderrama, Leopoldo Llanos, María Teresa Letelier, Jorge Zepeda and the lawyer (i) Leonor Etcheberry - established that the knowledge of the process It will correspond to the ordinary justice and not to the military, since there is an indirect civil victim in the case, the minor son of the deceased.

"That the facts investigated, according to the accompanying antecedents, show that in a Carabineros compound an official of that police, at the end of his patrol shift, was found in the bathroom of the police unit, with a bullet impact in the head but with signs of life and that, transferred to a health center in serious condition, he died around 9:15 p.m., without any indication of civilian participation in the act, ”the ruling maintains.

The resolution adds: “That in relation to the prosecution of common crimes committed by personnel with military jurisdiction, the latest legal modifications to specialized military justice, following a trend that had been emerging since 1990, have been aimed at significantly restricting the jurisdiction of the military courts. Indeed, Article 1 of Law No. 20,477 of December 30, 2010, amended by Law 20,968, of November 22, 2016, in force at the time of the commission of the facts, provides: 'Restriction of the jurisdiction of military courts. In no case, civilians and minors, will be subject to the jurisdiction of the military courts. This will always be established in the ordinary courts with competence in criminal matters. For these purposes, it will be understood that a civilian is a person who does not have the status of a military man, according to article 6 of the Code of Military Justice . Thus, the jurisdiction was first established in the Ordinary Courts, excluding from the military judiciary any cause in which a civilian has been involved, either as a defendant or victim and minors, even when the perpetrator had military jurisdiction ( SCS Case No. 8055-2017; Case No. 8056-2017; Case No. 8140-2017, Case No. 19061-17 and Case No. 38.680-17) ”.

"That, consequently, despite the fact that the investigated events occurred inside a military compound, given that one of the indirect victims is a minor, it is appropriate for the matter to be heard by the Ordinary Courts," it orders.

Therefore, it is resolved that: "it is declared that the Yumbel Guarantee Court is competent to hear this matter, which must continue with its processing in accordance with the procedure contemplated in the Criminal Procedure Code."

Decision adopted with the votes against by Ministers Valderrama and Letelier.

There is a link to the decision itself at the foot of this page. Incidentally, is there an issue about adjudicating any case involving gendarmerie or constabulary members in military courts? This has been a concern elsewhere, e.g., in connection with Spain's Guardia Civil.

Saturday, June 12, 2021


A neo-Nazi Austrian soldier has been jailed by a civilian court for 19 months for having his brother tattoo a swastika on a place where people do not normally have tattoos. Weird details here.

Slow-rolling in Pakistan

Remember Kulbhushan Jadhav? He's the Indian citizen convicted and sentenced to death by a Pakistani military court in a case that went to the International Court of Justice four years ago because of a denial of consular access. He's back in the news, as Pakistan's National Assembly has finally gotten around to enacting legislation affording him a right to appeal his conviction. It's complicated -- and must have been a rowdy scene in the legislature. The measure now goes to the Senate.

Friday, June 11, 2021

Clerkship opportunity

Judge Gregory E. Maggs of the U.S. Court of Appeals for the Armed Forces is hiring a law clerk for 2022-23. The job announcement can be found here. "No prior military service or knowledge of military law is required."

Another view of Gen. Flynn's issues

Dan Maurer and Yev Vindman, both Army JAGs, offer this view in their personal capacities. Comments welcome (real names only, as always).

Thursday, June 10, 2021

Friction between the General Council of the Judiciary and the Spanish Supreme Court

The Spanish Supreme Court annulled the appointment of a female judge in a military court in Valladolid.  The justices complained that the General Council of the Judiciary (photo) did not take into consideration a report from her superior that affirmed that she was not qualified for the post.  The Supreme Court annulled her appointment despite the fact that she had been approved two years ago by the General Council.   

This is the third time the Supreme Court has annulled a judicial appointment for a military court.  The judges of the contentious-administrative chamber of the Supreme Court studied the case of Captain Maria Paz Rodriguez, who was appointed judge by the plenary of the General Council in March 2019.  The vote was very close between Rodriguez and another candidate for the position that had been vacant for two years.  The Supreme Court annulled the appointment after having detected a deficiency in the proceedings.  Neither the plenary nor the permanent commission of the General Council had analyzed thoroughly the reports regarding her qualifications, and both the Central Military Court and her then superior had affirmed that she had neither the background nor the aptitude for the position.  The Supreme Court reproached the General Council for not investigating the reasons for these negative reports.

The upshot is that the General Council must begin the nomination process all over again since the judgment rendered by the Supreme Court must be executed, it is not a question of simply changing the appointment.  The Court gave the General Council two months to put in place the proceedings and to make a new nomination, just as it had been required to do in April when it annulled the appointments of two other judges for the 5th Chamber, which concerns military jurisdiction, of the Supreme Court.  In the earlier annulments, the Supreme Court criticized the General Council's failure to request certain reports.  After the proceedings were carried out following the Supreme Court's judgment, the same two judges were reappointed by the General Council.

Military justice reform, "pink courts," and unit cohesion

This op-ed by Commander (ret) Phil Cave, Prof. Rachel VanLandingham, Mills College President Beth Hillman, and the Editor can be found on The Hill. We write:
[E]ven though men as well as women in uniform are victims of sexual assault, public concern has chiefly focused on the women. It is concern over them and their willingness to come forward without fear of retaliation that has given the reform issue such potency. As a practical matter, if a parallel system is created for the disposition of sex offenses, that system will be understood as having been created chiefly for the benefit of women in uniform. Congress will, in effect, have created “pink courts” — courts for women. 
Creating “pink courts” will destroy unit cohesion. It is difficult to imagine a surer way of turning back the clock on all the progress our country has made in integrating women in uniform, including opening occupational specialties, admission to the service academies, qualification as pilots of warplanes and commanders of naval ships and Coast Guard cutters, and promotion to flag and general officer ranks.

In this connection, on June 7, 2021, Justice Sotomayor, joined by Justices Breyer and Kavanaugh, noted the following in a statement respecting the denial of certiorari in National Coalition for Men v. Selective Service System: No. 20-928:

Beginning in 1991, thousands of women have served with distinction in a wide range of combat roles, from operating military aircraft and naval vessels to participating in boots-on-the-ground infantry missions. See Brief for Modern Military Association of America et al. as Amici Curiae 11–18. Women have passed the military’s demanding tests to become U. S. Army Rangers, Navy SEALs, and Green Berets. See Brief for General Michael Hayden et al. as Amici Curiae 11–13. As of 2015, there are no longer any positions in the United States Armed Forces closed to women. See Memorandum from Secretary of Defense to Secretaries of the Military Departments et al. Re: Implementation Guidance for the Full Integration of Women in the Armed Forces 1 (Dec. 3, 2015).

Court orders ignored in Nigerian officers' cases

Here is a disturbing report on the long-running fight between the Nigerian government and a number of senior officers who were sacked without due process. The government has ignored court orders for reinstatement.

A death in Korea. Will reforms follow?

South Korea may see major reforms to its military justice system in the wake of a soldier's suicide after sexual abuse. Hyonhee Shin reports here for Reuters. Excerpt:

Lee's case triggered calls for an amendment of the Military Court Act, which activists say hampers the independence and fairness of criminal investigations because commanders oversee military prosecutors and courts.

The law also allows military chiefs to reduce sentences by up to a third, and that often results in lighter penalties for sexual abusers, the activists say.

Members of parliament's legislation and judiciary committee discussed on Thursday an early passage of a pending bill for revising the law to dilute commanders' power, including removing their authority to reduce sentences.

The proposal also calls for limiting military courts to first trials and transferring appeals to civilian courts.

* * *

"In order to enhance the military judiciary system's credibility, the influence of commanders over the procedure of criminal cases, reform should be taken to ensure the independence and fairness of investigations and trials," [Defense Minister] Suh [Wook] told the [parliament's legislation and judiciary] committee.

Any of this sound familiar? 

Wednesday, June 9, 2021

20th edition of CAAF Rules Guide


The 20th edition of the unofficial Guide to the Rules of Practice and Procedure for the United States Court of Appeals for the Armed Forces is now available from LexisNexis. Publisher's details here.

The authors invite readers to send along suggestions for the 21st edition. What have we missed?

An odd conflict of interest issue

MENAFN reports some curious events in Lesotho.
A lawyer appointed by the High Court to defend soldiers charged with the murder of Lieutenant General Maaparankoe Mahao has been withdrawn after it became clear (emphasis added) he was conflicted.
The High Court withdrew Advocate Thulo Hoeane's appointment to appear pro deo, which is legal work undertaken without charge, for Corporals Molefi Seitlheko and Marasi ''Moleli yesterday.
It was after the court learnt that Advocate Hoeane prosecuted the two soldiers in the Court Martial for the same case he was about to defend. It also learnt that Advocate Hoeane wrote a column in a local newspaper condemning the soldiers.
[Advocate Hoene] said he took a principled decision to accept the appointment as he already has two other clients in the same case, Corporal Motšoane Machai and Sergeant Motsamai Fako. ''So, it won''t take (much of) the court's time to begin the trial,'' Advocate Mafaesa said.
(Note. On the facts, it would appear immediately clear that there was a conflict of interest.)

A short Amnesty International piece (from June 2016) suggests,
Authorities must ensure that the criminal investigation into the killing of Lieutenant-General Maaparankoe Mahao by members of the Lesotho Defence Force (LDF) is thorough and pursued vigorously without undue delay, said Amnesty International today on the first anniversary of his unlawful killing.
Lieutenant-General Maaparankoe Mahao was killed on 25 June 2015 by members of LDF who claimed that he was resisting arrest outside Maseru.
However, the (SADC) Commission of Inquiry report into his killing, which was tabled in Parliament on 8 February, found that he had not resisted arrest and his death involved excessive use of force.
He was accused of leading a number of soldiers in a mutiny plot.
The SADC report has also dismissed mutiny claims, finding that “the involvement of Lieutenant-General Mahao on the alleged mutiny plot remains doubtful as there was no evidence to prove his involvement.”
Dozens of soldiers were arrested in connection with the alleged mutiny and 16 of them are still detained at the Maseru Maximum Security Prison.
Lesotho Times has a summary here.

Amnesty International has a little more here.

Here's a pretty kettle of fish

The Ben Roberts-Smith VC war-crimes/defamation case is just beginning in Australia, but it's already gotten wild and woolly. Recusal of Federal Court Justice Robert Bromwich (left)? Client said to be dating his solicitor? Ill-gotten emails? It's all there.

Wrong courthouse

The Italian Air Force's high-profile Giulia Schiff hazing case must be tried in civilian court, not a court-martial, according to a June 2, 2021 decision of the First Section of the Supreme Court of Cassation. The whole case must begin again or, as the musical phrase goes, da capo. A news report can be found here. The decision is not yet on the court's website.

Tuesday, June 8, 2021

Misuse of military justice

A civilian college student dies in a fracas in Boston. A Massachusetts state grand jury refuses to hand up an indictment against a suspect who happens to be a Marine reservist. Now the case is before a general court-martial in Virginia.

Is this what the military justice system was created for? It may be constitutional, but is it right?

Defamation trial opens in Australia

A remarkable defamation case is playing out in Australia. A holder of the Victoria Cross is suing journalists and newspapers for reports of war crimes in Afghanistan. The case has everything -- an elderly barrister's swan song, a photogenic highly-decorated soldier, and the ghost of Breaker Morant. Details on Day 1 here. The soldier's attorney's opening statement will consume two days.

Monday, June 7, 2021

Want to know what it means to have a noncompliant system?

The Supreme Court of Pakistan handed down a fascinating decision in Bashir v. Federation of Pakistan on May 6, 2021. The accused, a junior officer, was charged with homicide and fornication, and convicted only of fornication. The convening authority in this old-style field general court-martial system sent the case back for reconsideration of the evidence, whereupon the accused was convicted of both charges. The accused's original sentence of three years and six months confinement, a fine, and dismissal wound up as a life sentence.

Dawn has this account of the case.

Gag order under review at the Kirya

There is more news concerning the decedent without a name. According to this account, the Israeli military court is considered relaxing the gag order on information about the case. The article notes that the soldier was denied burial in a military cemetery because he had been discharged -- which seems odd. If he had been discharged, and the charged offense(s) occurred before separation, what was the basis for continuing court-martial jurisdiction? Tail jurisdiction of the kind we had until United States ex rel. Toth v. Quarles? Suppose he had been acquitted. Would he have been restored to duty?

Town Hall 16 video

Here is the link for the recording of today's Town Hall 16, What's Up In Canada? 

Passcode: H$P3??r5


The Editor's Just Security post on Getting Real About General Flynn can be found here.

What's Up In Canada (The Third Independent Review and More) -- Town Hall 16 at 0900 today

Monday, June 79:00 – 10:30am East Coast Time

Join Global Military Justice Reform's Town Hall 16. Rory G. Fowler will present on "What's up in Canada?" Open admission; feel free to share the link.

Meeting ID: 897 6270 0036
Passcode: 083301
One tap mobile
+13017158592,,89762700036#,,,,*083301# US (Washington DC)
+13126266799,,89762700036#,,,,*083301# US (Chicago)

Saturday, June 5, 2021

Batson and backroom prosecutors

We at GMJR are closely following the cert petition with the U.S. Supreme Court previously reported here filed by Pedro Bess, a Black U.S. sailor challenging the secretive process of how panel members were selected where he was convicted by an all-white jury of sexual misconduct against white women.  

The government has now filed its response and Bess filed his reply.  

Noteworthy from Bess's reply brief:

Peremptory challenges pose a danger of permitting “‘those to discriminate who are of a mind to discriminate.’” But at least they occur in a courtroom. CAs [convening authorities] can exclude Black members behind closed doors before the public, the accused, or the judge see the venire. The CA’s actions are more permissive of discriminatory intent—and thus more dangerous.

Building on this point, it is helpful to further draw out differences between "public prosecutors" (trial counsel) and "backroom prosecutors" (CAs).  Some pertinent distinctions:   

- Public prosecutors are lawyers.  Backroom prosecutors usually are not.  

- Public prosecutors are subject to codes of professional ethics.  Backroom prosecutors are not.  

- Public prosecutors make peremptory challenges in the presence of a judge, defense counsel, the public, and on a verbatim record.  Backroom prosecutors make peremptory challenges in secret.  

- Public prosecutors are permitted a limited number of peremptory challenges. Backroom prosecutors make an unlimited number of peremptory challenges -- they personally select every member of the jury, a process that also involves not selecting other qualified candidates.  

- Public prosecutors are subject to having their peremptory challenges contested and reviewed.  Backroom prosecutors, who are high-ranking officers, are afforded great deference and rarely are required to testify about how they made their jury selection decisions.  

- Public prosecutors prosecute cases assigned to them.  Backroom prosecutors personally select which cases and charges will be tried.  This selection occurs at the same time they select jurors for a case.

In Bess, CAAF split 3-2 in deciding that Batson is not applicable to backroom prosecutors.  Yet CAAF never addressed the more important question raised above: because of the backroom prosecutor's greater potential for unchecked racial bias in jury selection, what measures should be required that are even stronger than Batson?  

CAAF missed this opportunity.  Since the sentinel court of military justice blocked further inquiry into the questionable acts of a backroom prosecutor, only the U.S. Supreme Court now can enforce its requirement that military members, like all other Americans, are entitled to  “a criminal trial free of racial discrimination in the jury selection process.”  Flowers v. Mississippi, 139 S. Ct. 2228, 2242 (2019).

“I mean, it should happen here”

Missy Ryan of The Washington Post writes here about whether retired Army Lieutenant General Michael T. Flynn will or should be prosecuted for suggesting that a Myanmar-type military coup would be a good idea. "[E]xperts said any case against Flynn would likely be questionable, especially since he quickly disavowed support for overthrowing the government." 

Really? Walking it back promptly may go to the question of remorse or the danger of recidivism, but it doesn't bear on the legal question of whether an offense was committed. Soliciting or advising sedition is, according to ¶ 6.c.(1) of the Manual for Courts-Martial, an "instantaneous offense."

The real drivers are whether General Flynn's comment meets the definition of any offense under the Uniform Code of Military Justice and whether (assuming the exercise of personal jurisdiction over a retiree is constitutional) the public interest is served by making him a martyr or offering him the soapbox of an Article 32 preliminary hearing or a trial. 

On the first of these questions, Article 94(2) provides that a person subject to the Code who, "with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition." General Flynn's comment seems not to satisfy the definition. Under Article 82(b)(2), however, soliciting or advising "another" to commit sedition is also an offense, even if sedition itself never occurs or is attempted. It is at best doubtful that his comment qualifies under this provision. Who was the "other"? Everyone in his audience? Paragraph 6.b.(1) of the Manual requires that the solicitee or advisee be "a certain person or persons" (emphasis added).

General Flynn's comment doesn't come close to violating Article 88, and any effort to shoehorn it into Article 134 would certainly as to clauses 1 and 2 and very likely as to clause 3 bump into the preemption doctrine. See Manual ¶ 91.c.(5)(a) & Discussion. "Novel" or bespoke specifications are clearly risky.

Full disclosure: the Editor is one of the appellee's counsel in a pending case at the U.S. Court of Appeals for the District of Columbia Circuit in which the government seeks reversal of Judge Richard J. Leon's decision that the exercise of court-martial jurisdiction over a member of the Fleet Marine Corps Reserve is unconstitutional.

Friday, June 4, 2021

The WWII era killing of a black soldier by military police

Last week, the Washington Post chronicled the killing of Private Albert King. King was killed by Sergeant Robert Lummus, a military policeman, outside the gates of Fort Benning, Georgia, in March 1941. Lummus was tried by general court-martial the following day, where he was acquitted in a case where the prosecution wasn't trying. A later inquiry found King's killing unjustified and that he was in the line-of-duty, findings that would have entitled his family to death benefits. But that inquiry then changed its conclusions after intervention by higher authorities.

The writer discusses other examples of the unjustified killings of black Soldiers on and around Fort Benning in that era, as well as efforts by those trying to uncover these injustices and, to the limited extent possible, to rectify them with efforts to correct King's military records. One interesting aspect to the article is seeing some historical figures fighting for justice, or others, like a former judge advocate general, choosing to look the other way. The article's choice to focus on the injustice of a singular episode, while putting the incident into it broader historical milieu, reminds one of the struggle for equal rights that continues to the present day.

The Guantánamo Docket

The New York Times has done a major overhaul of its invaluable Guantánamo Docket, making it -- if this is possible -- even more invaluable. Check it out here.

Since 2002, roughly 780 detainees have been held at the American military prison at Guantánamo Bay, Cuba. Now, 40 remain. Of those, 12 are being handled by the military commissions war court — three are facing proposed charges, seven are facing active charges and two have been convicted. In addition, 19 detainees are held in indefinite law-of-war detention and are neither facing tribunal charges nor being recommended for release. And nine are held in law-of-war detention but have been recommended for transfer with security arrangements to another country.

This is an astounding, granular resource. BZ to the Times team that produced it. In the At War newsletter, Carol Rosenberg writes:

In the minds of many people, the roughly 780 men and boys who were held at remote Guantánamo are still nameless, identically clad men locked behind razor wire. Forty remain there today, while the rest have been repatriated or dispersed around the world.

But in the tug of war for transparency there, time does win out.

The latest testament to that can be found in The New York Times’ online database of prisoner profiles called The Guantánamo Docket, which recently underwent not just a redesign but an update of nearly a decade of developments and documents — a herculean effort undertaken during the pandemic by a far-flung group of Times software engineers, editors and journalists.

Decedent without a name

From this report in Haaretz:

“In September 2020, after an investigation by military police, an indictment was filed against an officer that served in the Israel Defense Forces Military Intelligence Corps with the military court.

“The officer was arrested following a decision by the military court and the legal process on the matter had not been decided. On the night between May 16 and 17, 2021, the officer was found at a military detention facility in the center of the country in serious medical condition. The officer was transferred for medical treatment to a hospital, where he was pronounced dead. His family was notified.”

The statement added that “the army’s Internal Investigation Unit opened a probe into the circumstances of his death and upon its completion, its findings will be handed over to the military prosecutor for examination. Hearings in the officer’s case were held behind closed doors and a sweeping gag order was placed on them. An additional gag order was issued on the Internal Investigation Unit’s probe into the circumstances of his death.”

More information will presumably emerge about this case. 

Why are these civilians being tried in a Myanmar military court?

Add Myanmar to the list of countries that, contrary to human rights jurisprudence, prosecute civilians (here, journalists) in military courts. The Committee to Protect Journalists has the story here

F. Lee Bailey, Medina defense counsel, dies

F. Lee Bailey, who successfully defended Capt. Ernest Medina in connection with the My Lai massacre, has died. The New York Times has this obituary. Mr. Bailey was also successful in Cooke v. Orser, 12 M.J. 335 (C.M.A. 1982) (2-1 decision). The Editor had the opportunity to see his courtroom work in real time during a 1981 motions hearing in United States v. Cooke. He was brilliant, dominated the proceedings, and brought home the bacon for his client. 

Sadly, after many famous successes, he wound up disbarred and had to declare bankruptcy. He was 87 years of age.

Wednesday, June 2, 2021

Prof. MacKenzie reacts to the Fish Report

Prof. Megan MacKenzie (Simon Fraser) is interviewed here on the military justice report submitted by retired Supreme Court of Canada Justice Morris J. Fish. She looks for "radical transformation" and wonders if a separate system is needed at all.

A two-part ABA webinar on diversity, equity and inclusion in the military

Valuable webinars from the ABA on June 3 and 8:

PART 1 - A Historical Review of Seminal Cases and Disparate Treatment of Minority Service Members

Date: Thursday, June 3, 2021
Time: 1:00 p.m. - 2:30 p.m. EDT
Register Here ?

This panel will provide an educational review from a historical perspective of discrimination and the lack of diversity and equity in the military, including historical changes in military justice designed to remove these disparities. It will also discuss the status of these matters in today?s Armed Services.

The discussion will include a review of several historic/seminal courts-martials where minority Soldiers were convicted of crimes without adequate legal defense. It will include a brief discussion of the current findings related to disparity in military justice for minority service members. We will review several of the Defense Department?s initiatives related to diversity and inclusion. Finally, the discussion will include any current initiatives/measures to counter this historically inequitable treatment in each of the services.

This panel includes senior military veterans and retirees who have an interest and desire to help further the dialogue, understanding, and education of all legal professionals in these areas. The death of George Floyd has highlighted the fact that change is still needed.

PART 2 - Racial Disparity in the Services

Date: Tuesday, June 8, 2021
Time: 1:00 p.m. - 2:30 p.m. EDT
Register Here ?

This panel will provide an educational discussion of racial disparities in the Military Justice System and its impacts on mission effectiveness and readiness. The 1972 ?Report of the DOD Task Force on the Administration of Military Justice in the Armed Forces? talked about the lack of minority officers as a factor contributing to ineffectiveness and diminished readiness. Notably, there was a recent investigation at Fort Hood, TX into racial discrimination and sexual harassment of minority service members. The results of that investigation are pertinent to this discussion.

The discussion will include a review of the 1972 DOD Task Force Report and other relevant publications. It will highlight several seminal and historic cases relevant to this discussion on the disparity in military justice by commanders when determining the level of nonjudicial punishment or military justice action taken against a minority service member in comparison with a Caucasian service member.

Finally, the discussion will include recommendations and initiatives in each of the services towards correcting these disparities.

These webinars are jointly sponsored by the ABA Standing Committee on Armed Forces Law; co-sponsors include the ABA Coalition on Racial and Ethnic JusticeABA Commission on Hispanic Legal Rights & ResponsibilitiesABA Commission on Sexual Orientation and Gender Identity, and ABA Council for Diversity in the Educational Pipeline

NYT video op-ed on sexual assault and military justice reform

 This video op-ed is from The New York Times' website.

Plus ça change plus c'est la même chose!


June 1, 2021. Retired Supreme Court Justice Morris Fish, as the Third Independent Review of the National Defence Act, issued his report containing a total of 107 recommendations touching on all aspects of the Canadian Military Justice System. Taken as an ensemble, his report is an unmistakably clear critique of the very poor health of that system which is in need of a major overhaul. It is broken at its very core. It needs major, across the board modifications, updates and, shockingly, the implementation of existing legislation.
  • Consider Bill C-77 which was given Royal Assent in June 2019.  For unexplained reasons, the Bill remains to be put into force by the Office of the Judge Advocate General. 
  • This Bill provides victims of crimes which are prosecuted before a military tribunal with a number of rights already enjoyed since 2015 by every one else on Canadian soil. 
  • Bill C-177 has also repealed the Summary Trial system - a middle-age institution.  Yet, the Canadian military is undeterred by the passage of this legislation as they continue to submit the rank and file to the vagaries of a defunct summary trial system.
Suffice to say, that the probability of having Justice Fish's recommendations implemented is rather low unless the military consider it wise and acceptable. Otherwise it will remain in the proverbial in-basket. For instance, consider what happened to the equally sage  recommendations made by two of his immediate predecessors. In his report, Justice Fish chronicles eleven (11) key recommendations made by retired Chief Justice (CJ) Lamer (2002) and retired Chief Justice (CJ) LeSage (2013) that were never implemented. This highlights a pattern of behaviour of Canadian military authorities ignoring such recommendations:

                                            Ignored recommendations 

  1.  “CJ Lamer recommended the creation of a permanent military court … this recommendation has not been implemented” (para 83-4)
  2. “In 2011, CJ LeSage … recommended that the standing to make an interference complaint be extended … they have not yet been implemented” (para 191)
  3. Victims are deprived of rights guaranteed to them since 2015 by the Canadian Victims Bill of Rights… A corresponding Declaration of Victims Rights for the military justice system was included in Bill C-77 … it may not be implemented for at least several years, and I have been given no firm or even target date for its implementation.” (para 206)
  4. CJ Lamer recommended “additional guidance” on the distinction between military punishments. “His recommendation was not implemented … while some preliminary work was done, the task … was not pursued.” (para 303-304)
  5. “I have been advised that the summary hearing process may not be implemented for several years, and I have been given no firm or even target date for its implementation.” (para 378)
  6. CJ Lamer’s recommendation concerning confidentiality of discussions between an accused and an assisting officer “was not implemented.” (para 388-9)
  7. CJ Dickson, Lamer and LeSage all recommended training for AOs, which were not implemented (para 394-5)
  8. CJ LeSage recommended amending s.187 NDA concerning military judges deciding preliminary issues “which was not implemented.” I agree with his recommendation. (para 448)
  9. CJ LeSage recommended in 2011 that “[t]he Military Rules of Evidence should be superseded by the statutory and common law rules of evidence in the court martial system”. This was “not implemented”. (para 452)
  10. CJ Lamer recommended time limits for the FA in the CAF grievance process, which was “not implemented” (para 629)
  11. Chief Justices Lamer and LeSage both recommended that section 129 of the NDA be amended to clarify the requisite elements of an offence thereunder … I have been informed that their recommendations were not implemented because “[t]here has been no judicial determination or recommendation, at either the trial or appellant level, that s. 129 requires statutory amendment”: (footnote 296)

 Pattern of behaviour

  • The  2015 Report on Sexual Misconduct in the Canadian Forces by retired Madam Justice Marie Deschamps made ten recommendations. None of these were truly implemented.
  •  CJ LeSage’s report notes: “Unfortunately, many of the same concerns were raised by CF members at the bases I visited in the summer of 2011 and also in the submissions forwarded to me, now eight years after the Lamer Report” (para 630).
  • The Somalia Inquiry Report by then Justice Létourneau recommended the creation, by statute, of an Inspector General with broad powers of inspection and investigation. The recommendation was not implemented. (para 724)