Saturday, July 31, 2021

Herding 54 ducks

While attention has been riveted on reforms to the military justice system for the U.S. armed forces, what about the state, territorial, and D.C. militias that form the National Guard? Katelyn Ferral of the Milwaukee Journal Sentinel reports here on aspects of pending federal legislative proposals that would address sexual assault in particular in the Guard. USA Today's Tom Vanden Brook also contributed to the reporting.

The Guard is composed of 54 militias in each state and territory that largely police themselves and answer to governors rather than the federal government.

“I'm deeply concerned about the National Guard because they're primarily under state control," [Sen. Kirsten E.] Gillibrand said in an interview Tuesday with USA TODAY. "There's a lot of complex issues with regard to who can set policy.”

Friday, July 30, 2021

Another interregnum

Tomorrow marks the end of Chief Judge Scott W. Stucky's term on the U.S. Court of Appeals for the Armed Forces. As with any multi-member appellate court, any time a judge leaves and a new one arrives, a new "court" arises. It will be interesting to see what changes occur in procedure, substance, and tone when the Administration settles on a replacement.

One recurring issue has to do with the Court's practice with respect to petitions for grant of review when there is a vacancy on the bench. Plainly, the more judges, the easier it is to find two votes for a grant. When the bench is complete, it takes 40% of the complement; when the court is bobtailed, it takes 50%. A vacancy therefore works asymmetrically to the detriment of the accused, since the government is typically better positioned to persuade the Judge Advocate General to certify a case for review. Additionally, a fifth set of eyes reviewing a supplement may identify some issue or aspect of a case the others miss; and that judge--who will most likely be one of the Court's about-to-be 8 senior judges--may be able to persuade someone else to join in voting to grant. Where is the harm in doing this?

In the past, the Court has dismissed suggestions that it add a senior judge or find an Article III judge to fill out the bench for acting on petitions, as it does for granted cases. See generally Eugene R. Fidell, Brenner M. Fissell & Dwight H. Sullivan, Guide to the Rules of Practice and Procedure for the U.S. Court of Appeals for the Armed Forces § 6.03[1], at 62-63 (Matthew Bender & Co. 20th ed. 2021); see also id. § 6.03[8], at 72-73. Perhaps the four remaining judges, one of whom of course has never had to face this issue, may reach a different conclusion. They should. At the very least, the Court should defer action on any petition when so requested by a petitioner during the current hiatus.

Equal access to the Supreme Court for GIs

Rep. Louie Gohmert (R-TX) yesterday introduced H.R. 4790, The Service Member SCOTUS Act of 2021. The bill has been referred to the House Committee on the Judiciary. Rep. Gohmert served in the U.S. Army JAG Corps for four years. The bill seeks to remedy the discriminatory effect of current law that was recently examined in this Yale Law Journal Forum article by Prof. Brenner M. Fissell, Commander (ret) Philip D. Cave, and the Editor.

All eyes on Kampala

The Supreme Court of Uganda will rule later today on the government's appeal from a decision of the Constitutional Court on the constitutionality of trying civilians in military court. Interim details here.

History catches up with a judge

The president of Uruguay's Supreme Military Court has been forced out of his job by the Minister of National Defense. The name of the judge, retired General Daniel Castellá (at left), had been discovered among the officers who were present when Dr. Vladimir Roslik was tortured during the country's military dictatorship. Castellá was a captain at the time. His name surfaced on a document uncovered on Monday as a result of as freedom of information act request by a journalist.

The Bonhomme Richard case

The New York Times's John Ismay reports that a sailor has been charged with the 2020 arson that led to the loss of USS Bonhomme Richard (LHD-6), an amphibious assault ship.

Wednesday, July 28, 2021

Town Hall 18, Monday, August 2, 2021, 0900 East Coast US Time


Global Military Justice Reform Town Hall 18
Monday, August 29:00 – 10:30am

Description:Gene Fidell is inviting you to Town Hall 18, for a discussion of Hard Truths and the Duty to Change: The Report of the Independent Review Commission on Sexual Assault in the Military

The IRC's report can be found at: 
https://media.defense.gov/2021/Jul/02/2002755437/-1/-1/0/IRC-FULL-REPORT-FINAL-1923-7-1-21.PDF/IRC-FULL-REPORT-FINAL-1923-7-1-21.PDF

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A reminder about comments

Recently a comment arrived here at the glass-enclosed newsroom high above Global Military Justice Reform Plaza. It was a perfectly reasonable comment, but lacked the sender's full name. Please do comment, but remember to include your full, real name. No name, no publish.

Tuesday, July 27, 2021

Cameras? We don't need no stinkin' cameras!

According to this report, the U.S. Air Force is getting rid of its security force body cams (at a time when American police forces' best practices have moved in precisely the opposite direction).

Avoiding another Guantánamo

Writing here in The Hill, Karen J. Greenberg and Michel Paradis caution against repeating the mistakes of Guantánamo in the future. Their 5-point prescription: clearly define who is the enemy; know the conditions for ending the war; use international law; trust the civilian courts; never torture. Excerpt:

All wars should be avoided. But if history is any guide, the United States will find itself in future wars. When that happens, we should insist on clear terms defining the enemy and the battlefield, adherence to law, trust in our courts, and a refusal to torture. We should never again let the uncertainty of the moment blind us to the far graver challenge of protecting the values we have striven to more perfectly realize for two-and-a-half centuries.

Monday, July 26, 2021

HASC subcommittee NDAA markup

Tune in here for the HASC military personnel subcommittee's markup of the FY22 NDAA. July 28, 2021, 3:30 p.m.

What does it cost?

Department of Serendipitous Research

Did you know that there is a Treasury Department website, USASpending.gov, that tracks federal spending? The U.S. Court of Appeals for the Armed Forces' spending can be tracked here.

The President's $15,589,000 budget request for the court for FY22 can be found here.

Who knew?

The July/August issue of Washington Lawyer, the official publication of The District of Columbia Bar, includes a profile of Chad T. Sarchio, the D.C. Bar's 50th president. Come to find out, Mr. Sarchio has seen service as a U.S. Army judge advocate (and military judge). Congratulations!

Thoughts on the choice before Congress

The Editor's op-ed, In Military Justice, It's Time to Leave Lawyers' Work to Lawyers, can be found here on The Bulwark. Excerpt:

As urgent as these concerns [high levels of sexual assault, racial disparities] are, however, the central issue with the system for charging decisions under the Uniform Code of Military Justice both predates and transcends them. To put things in plain English, in 2021, in the United States, whether to charge any person with a serious criminal offense (which I would define as anything that could lead to more than a year in jail) is lawyers’ work—and virtually no military commanders currently exercising prosecutorial discretion are lawyers.

Could the training of nonlawyers paper over this flaw? Thanks to the Government Accountability Office, we now have at least a little information about just what UCMJ training military commanders receive. A recent report reveals that new Army brigadier generals receive one hour of training in military justice generally and an additional half-hour of training on the critical topic of unlawful command influence (UCI). UCI is rightly described as “the mortal enemy of military justice,” and these issues continue to reach the military appellate courts like clockwork.

The level of training disclosed by the GAO report is plainly inadequate. And it can’t be made adequate so long as military charging decisions are made by nonlawyers. Law school takes three years, not ninety minutes. Even if training were dramatically expanded, prosecution decisions need to be governed by enforceable ethical standards of the kind that apply to every attorney. There are no comparable standards for nonlawyers. What’s more, even if training could be drastically increased, do we really want our senior military commanders to be spending scarce time on these matters? For that matter, do they?

It also makes no sense to segregate sex cases and leave other major offenses to nonlawyer commanders. Should nonlawyers decide whether a potentially capital case should be tried, or whether the death penalty should be sought? What about some other charge that is likely to entail difficult and at times novel issues of law, evidence, or constitutional rights? How many commanders are in a position to decide whether a cybercrime or other complex fraud has occurred?

Meet an IRC member

The Buffalo News has this informative profile of Meghan Tokash, an Assistant U.S. Attorney in Buffalo, N.Y., who served on this year's Independent Review Commission on Sexual Assault in the Military. The article correctly notes that the IRC did not address the broader all-major-crimes approach taken in the bill spearheaded by Senators Kirsten Gillibrand and Joni Ernst. Ms. Tokash said doing so would have taken another 90 days.

Excluding excludable evidence in Canada

Steven Penney & Moin A. YahyaSection 24(2) in the Trial Courts: An Empirical Analysis of theLegal and Non-legal Determinants of ExcludingUnconstitutionally Obtained Evidence in Canada. University of Alberta (2021) 58:3 Osgoode Hall L.J. [forthcoming].

Abstract

This empirical study explores the legal and non-legal factors influencing trial judges’ decisions to admit or exclude illegally obtained evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms. Mining an original dataset of 1,472 reported decisions from 2013-2018, we found little evidence that they are affected by judges’ gender or partisan ideology. We did find, in contrast, that they are substantially influenced by judges’ previous professional background: former criminal defence lawyers are more likely to exclude than former non-criminal practitioners, who are in turn more likely to exclude than former prosecutors. We also found significant regional disparities, with judges in Quebec, British Columbia, Newfoundland, and Nova Scotia more likely to exclude than Alberta judges. The study also revealed that judges are more likely to admit evidence when trying more serious charges and less likely to do so when trying female defendants.

(This article was #1 in the Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal on last week's CrimProfblog.)

Sunday, July 25, 2021

Commons Defence Committee issues report on treatment of women in the UK armed forces

The House of Commons Defence Select Committee has issued a 101-page report titled Protecting Those Who Protect Us: Women in the Armed Forces from Recruitment to Civilian Life. From the Committee's summary:

Although the Forces generally welcome servicewomen today, it gravely concerns us that bullying, harassment and discrimination (BHD)—already affecting too many Service personnel—was experienced by nearly 62% of female Service personnel and veterans who completed our survey. These behaviours include sexual assault and other criminal sexual offences. Our inquiry received truly shocking evidence from female Service personnel of bullying, sexual harassment, sexual assault and rape they experienced, some of which—even more disturbingly—involved senior officers acting as wrongdoers. The MOD’s representative statistics show that servicewomen were nearly twice as likely to experience BHD in 2020 as servicemen. In 2021, servicewomen were more than ten times as likely as servicemen to experience sexual harassment in the last 12 months.

When things go wrong, they go dramatically wrong. The systems for responding to unacceptable behaviour are failing our service personnel, both male and female. The Service Complaints Ombudsman has never judged the military’s internal complaints system, in which female Service personnel are overrepresented, as ‘efficient, effective and fair’. Nearly 40% of 993 military women told us their experiences of the complaints system were “extremely poor”. Too often, complaints are being brushed under the carpet and there is inadequate support. A lack of faith in the system contributes to 89% of both male and female personnel in the Regular Forces not making a formal complaint about BHD. In our survey, around six in 10 servicewomen and female veterans who had experienced BHD did not report it. The chain of command can be a direct barrier to reporting: a point of failure. There are also serious problems with how the Service Justice System handles criminal sexual offences—most of which (76% in 2020) involve female victims.

Saturday, July 24, 2021

Due Process at the USMA

For us in the U.S., adverse administrative actions can be intertwined, collateral to, or an alternative to a UCMJ court-martial action. Separation from service, under Honorable, General Under Honorable, or Under Other Than Honorable circumstances also can flow from misconduct allegations. Each Service has its own regulation on how to do this and what process is due. The process due depends on many factors including time-in-service, what characterization of service may be warranted, status, and whether the person wants to contest the separation. A long introduction to Doolen v. Secretary of the Army.

Doolen claimed he was wrongfully separated from the U. S. Military Academy (West Point). Each Service Academy has a discipline code and process of enforcement. Doolen had multiple "infractions" over time which resulted in multiple disciplinary actions where he was found at fault. The decision was then made to separate him for his multiple failures. Doolen claimed his separation from the USMA was wrongful because, 

[T]he cadet separation procedures of the United States Military Academy at West Point fail to provide due process and that [his] separation proceedings violated West Point’s own regulations in a manner that substantially prejudiced him."

The Court of Appeals for the Second Circuit affirmed the District Court's dismissal of Dollen's lawsuit on summary judgment because the appellate court, 

"[C]conclude[d] that West Point’s cadet separation procedures satisfy due process and that the intra-military immunity doctrine, which bars judicial interference in discretionary military personnel decisions, renders Doolen’s regulatory claims nonjusticiable."

The Federal courts have long recognized that “[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian.” Chappell v. Wallace, 462 U.S. 296, 301 (1983) (quoting Orloff v. Willoughby, 345 U.S. 83, 94 (1953)). Courts grant “greater deference” in the context of national defense and military affairs than perhaps any other area. Id. (quoting Rostker v. Goldberg, 453 U.S. 57, 65 (1981)).

The doctrine is not an absolute bar to claims where the military regulations at issue may be unconstitutional or where the military fails to follow its own regulations.

After the circuit court dispensed with the constitutional claims, the court discussed a failure in the processing of the case under the must-follow-the-rules argument. The staff judge advocate review of Doolen's case was not served on him and deprived him of the opportunity to comment. The review had errors. But, in denying the didn't-follow argument, the court found that Doolen had not satisfied the legal standard of an error causing "substantial prejudice."

Whether a petition for a writ of certiorari to the U.S. Supreme Court is in the works is unknown. Gene might have a better idea of the certworthiness of the issues.

(Note, when an academy member is separated for reasons of misconduct or other conduct of their own, the government will recoup the value of their education. The approximate value of Doolen's education to be recouped is $226,662.00 (about £164,863.08).)

Perhaps of additonal interest:

Jennifer Beckett, Intramilitary Tort Immunity: A Comparison of the United States and Great Britain, 14 Hastings Int'l & Comp. L. Rev. 189 (1990).

Michigan Law Review, Intramilitary Immunity, and Constitutional Torts, 80 MICH. L. REV. 312 (1981). 

Friday, July 23, 2021

Misuse of military law in Myanmar

Adherence to the rule of law has reached a new low in Myanmar, according to this report from Human Rights Watch that the armed forces, having imposed martial law, are now routinely imposing death sentences on civilians following trial by court-martial. Many of the new capital offences fall neatly under the rubric of what civilized nations would consider freedom of speech and peaceful protest.

This is precisely the sort of thing which gives military justice a bad name around the world. I am reminded of something that His Excellency the Right Honourable Lieutenant General Sir Bernard Freyberg said to New Zealand's Dominion Law Conference four years after the end of World War II:

"...the true rule of law is not purely a matter of academic or legal interest, but rather one which concerns the whole nation, whether at work in peacetime or on the field of battle upholding the rule of law. That is a logical conclusion... 

...unless you are prepared to uphold the rule of law, by force of arms if necessary, democracy is but a misleading and empty word, for the contrast between a democracy and the totalitarian State lies in the reliance by peoples wedded to democratic ideals on the rule of law".

[2001] New Zealand Armed Forces Law Review 34.

I for one will be looking for ways to ensure that I do not inadvertently support the junta in Myanmar, e.g., by consuming products imported from that nation.

New JAG, Deputy, named in Australia

A new JAG and Deputy JAG have been named in Australia. Details here. Congratulations to Rear Admiral Jack Rush and Commodore James Renwick, respectively.

Sorry, Dési

Suriname's Constitutional Court has affirmed a ruling by the military court that the amnesty of which former President Dési Bouterse had sought to take advantage was invalid. Details here.

Political interference in the career management of a Canadian general

 The daily National Post reports today that earlier this year Major-General Dany Fortin received glowing and rave evaluation reports from the acting Chief of the Defence Staff[ (CDS) for his performance since November 2020 as the Vice-President of Logistics and Operations of the Public Health Agency of Canada (PHAC) during which he led the vaccine roll-out  and the rest of the government’s response to COVID-19 across Canada.

This caused a strong adverse reaction from Canada’s two opposition political parties because the acting CDS, Lieutenant General Wayne Eyre would have known by then that MGen Fortin was under investigation by the military Police. News Democratic Party of Canada’s Defence Critic is quoted as saying as follows:

It’s a concern that if he did know about it, and he still wrote that kind of recommendation, then it’s another example of the failure to take things seriously” in Canada’s military when it comes to allegations of sexual misconduct.

This writer challenged this unfair criticism. My comments are below. First, for a bit of a background on MGen Fortin

BACKGROUND

MGen Fortin is a 30-year veteran. He recently led NATO’s Training Mission in Iraq and previously led Canadian soldiers in Afghanistan. He also previously  served  on a two-year assignment (2015-2017) as the Deputy Commanding General of I Corps DCG-0 at the Joint Base Lewis-McChord stationed in the State of Washington.  A rising star!

On May 14, 2021,  MGen Fortin was suddenly removed from the performance of his military duty with the PHAC, on the orders of his political masters: the Minister of National Defence and the Minister of Health pending the results of a military police investigation. 

MGen Fortin first learned of the specific of the allegations against him only on  May 16, 2021. This information was provided by a news reporter. This took him completely by surprise.  Hevigorously and categorically denies the allegations.  

According to the same news media sources, the incident being investigated dates back to 1989 when Fortin would allegedly have exposed himself to a woman while he was a student at the Royal Military College at St-Jean-sur-le-Richelieu, Quebec. The identify of the complainant has not been made public. 

On May 19, the military police referred the matter  to the Province of Quebec’s Director of Criminal and Penal Prosecutions for review. and possible prosecution before a civil court (presumably because on the date of the alleged offence, the Canadian military did NOT have jurisdiction to prosecute 'sexual assault'. 

On June 14, 2021, MGen Fortin filed and Application for Judicial Review before the Federal Court of Canada asking that the decision to remove him from his military duties with the PHAC be judicially reviewed. In his application, he pleaded that the decision to remove him was made for a political purpose and that he was denied procedural fairness.  

The decision was arbitrary, not in the public interest and made solely for the personal and political gain of the Ministers of Health and National Defence and the Prime Minister.

Since the termination of his secondment to PCAC, MGen Fortin has been without assignment and has been relieved from the performance of a military duty.

MY COMMENTS: POLITICAL INTERFERENCE GALORE

The National Post article published today cites this writer as follows:

  • Operating under the accepted constitutional principle that one is assumed to be innocent until proven guilty by a court of law, it makes a lot of good sense for the acting CDS, LGen Wayne Eyre to have assessed MGen Fortin’s previous year on-job performance to his true and well-earned value.
  • To do otherwise, would mean that LGen Eyre would have acted, at that moment, as judge and jury in the affair. The CDS  acted most properly by giving due recognition to Maj Gen Fortin’s potential  for further advancement and letting justice run its course. To have acted any other way would have been improper, unjust, unfair and contrary to procedural fairness.” 
  • It clearly was the politicians not the military command that decided on MGen Fortin’s future. And this is most preoccupying. We have sacrificed the career of an otherwise outstanding military officer to satisfy the perceived political interests of the moment. It is Canada’s loss

CONCLUSION

As acting CDS, LGen Eyre is currently lacking in power, stature and authority to  face, contest and resist political interference with his onerous  responsibilities while facing one of worst possible crisis ever facing the Canadian military. .

This is most troublesome and concerning.

Under current climate at National Defence Headquarters (Pentagon North), the acting CDS’s power, authority and influence is therefore considerably reduced.  

From all accounts, Maj Gen Fortin is being sacrificed on the altar of political expediency. That is too bad for him, the armed forces and Canada.

Thursday, July 22, 2021

British Army in Iraq

Bella Caledonia has a posting about British soldiers in Iraq: British Soldiers Who Tortured Iraqi Children Have Been Immunised From Prosecution

As the British government announces a statute of limitations to end all prosecutions related to the Troubles in Northern Ireland before 1998 – effectively an amnesty for the armed forces – we look at another arena in which the British Army’s conduct has been airbrushed from history. In an exclusive for Bella Irfan Chowdhury reports on the the International Criminal Court’s report on British war crimes in Iraq. We have deliberately not included or embedded some of the most disturbing footage and images of these incidents.

On 9 December 2020, the International Criminal Court (ICC) released a report on British war crimes in Iraq, entitled ‘Situation in Iraq/UK: Final Report’, which was the product of a preliminary examination that the ICC carried out from 2014 onwards. The report concludes that “there is a reasonable basis to believe that various forms of abuse were committed by members of British forces against Iraqi civilians in detention”, including “the war crimes of murder, torture, rape and/or other forms of sexual violence, and forms of mistreatment amounting to inhumane and cruel treatment or outrages against personal dignity”. The report also confirms that there were at least three incidents in which Iraqi children were tortured by British soldiers; two of the incidents occurred at one location in 2003, and the other incident occurred at a separate location in 2004. None of the soldiers who committed war crimes against children in these incidents have been prosecuted in Britain, and the ICC has also declined to take action against them.

I did find this piece on the Guardian about the statute of limitations issue.

Augmenting civilian judges presiding over the Court Martial

At the outset I must confess, if such is necessary, that I am not a member of the judiciary and it is some time since I last "trod the boards" before the Court Martial (although I have been in Criminal practice since,as a prosecutor). Nevertheless, over the years since my retirement from the army, I have maintained a healthy and benign interest in the service justice system. The news article of 21 July 2021, about the problem facing the military justice system in New Zealand, specifically in relation to the backlog of cases and the appointment of nine new judges to the Court Martial of New Zealand panel (after two of the court's three judges retired or moved to new roles), is one that the UK system has also experienced from time to time. A compulsory retirement age and the abolition, on cost-saving grounds, of deputy judge advocates (and part-time judges drawn from civilian practice, and often from those defending in the court martial and versed in service law) is unhelpful when there is a crisis and a judge advocate is needed at short notice eg through illness. The recent COVID scare could have impacted seriously in this respect, bearing in mind the small number of available JAs now (6 when I last looked).

One thing that is clear to me is that the number of cases tried nowadays in the UK tri-service system is much less than previously. The reasons for that will be many and varied. The latest available statistics are for 2019 and show a total of 498 cases, of which 12 were cases of desertion and 40 were cases of Absence Without Leave. This is to be compared with figures for the single services prior to the creation of the tri-service system, where, during my time with the Army Prosecuting Authority, the Army prosecuted 600 – 700 cases per year, and the other two services between 60-80 each. Out of the figures for 2019 there are 41 Navy cases and 47 for the Air Force. Interestingly, 19 of the 498 cases were prosecuted overseas, in Germany (10) and Cyprus (9).

So, while the case load has almost halved, as a consequence of austerity it is understandable that the Judge Advocate General sought to reduce the number of JAs. Coupled with a rapidly shrinking army and the reduction of overseas stations, particularly Germany, where the serious crime was prosecuted (as the Services had full jurisdiction), a commensurate reduction in JAs was a self evident consequence. The reduced case load also led to some interesting results – JAs spent more and more time sitting in the Crown Court, as recorders. One even imparted to me that, after sitting quite extensively in the Crown Court, returning to try a court martial case required some “brushing up” on service law. This rather emphasised the importance of familiarity with service jurisdiction as something that can be easily lost or diminished if practitioners are not regularly immersed in it. The Armed Forces Act 2006 ("AFA") does already provide, in section 362, for the appointment of "assistants" to the JAG (the Deputy JAs referred to above) and also for the appointment of Puisne (High Court) judges, such as happened in the case of Mendonca and others concerning the death of Baha Musa and the mistreatment of Iraqi detainees.

The Lyons Report has taken this a stage further and made a proposal, which is included in the Armed Forces Bill 2021, to amend paragraph (c) of section 362 of AFA 2006 so as to allow Crown Court judges to be appointed as JA. For those unfamiliar with the UK criminal justice system, a Crown Court judge is one who tries cases on indictment, before a jury. While it is a very positive step to consider ad hoc appointment of civilian judges as JAs,and is to be broadly welcomed in the more complex cases, the principal concern is the perennial one of the importance of understanding the Service context of offending and its impact on discipline and operational effectiveness.

A human rights challenge to Brazil's system

A case in the Supreme Federal Court of Brazil challenges 2017 legislation that gives military courts exclusive jurisdiction where civilians are victims of violence by military personnel. Details here. Excerpt:

The circumvention of the authority of a Jury Trial to judge premeditated murder committed by military personnel during GLO (Guarantee Law and Order) operations, for example, removes from civil society an important means of controlling military activity. “Within the Military Justice system, there are no external control structures, there is no civil control, nor social control over investigative agencies,” said Gabriel Sampaio, coordinator of the program to Combat Institutional Violence at Conectas. “Cases of abuse should be investigated by civil authorities and judged, in the case of willful crimes against life, by Jury Trial”.  

Moreover, “these changes introduced by Law 13,491/2017 generate a conflict between the basic principles of justice and Brazil’s obligations under international law that only authorize the limited application of military justice and only for ‘functional crimes’ [against the public administration]. There should be no different treatment for military personnel from the Armed Forces compared to police officers or even the civilian population. The crimes should be investigated and judged by civil authorities,” added Sampaio. 

In practice – in addition to violating the Federal Constitution – the law can benefit the military and create a kind of safe conduct so soldiers are not held accountable for the excesses they may commit.  In view of this, the ADI (Direct Action of Unconstitutionality) No. 5901 filed by the PSOL (Socialism and Liberty Party) in the Supreme Court challenges this authority assigned to the Military Justice system. 

Disclosure: The Editor is a signer of an amicus brief in the Supreme Court of Brazil. 

Tuesday, July 20, 2021

5-1

In a markup session today, the Personnel Subcommittee of the Senate Armed Services Committee approved Sen. Kirsten Gillibrand's military justice reform bill for inclusion in the FY22 NDAA. Now the issue will be before the full committee. Details here. Excerpt from the news account:

“While I have disagreed strongly and publicly with the chairman on the substance and the merits of this bill, I do recognize that he is the first chairman of this committee to support at least moving sexual assault and related crimes from the chain of command,” Gillibrand said July 20. “That is an important piece of the puzzle, but we must resist the urge to isolate sex crimes and create a separate but unequal system of justice within the military for survivors.”

Monday, July 19, 2021

Town Hall 18 homework

For Global Military Justice Reform's Town Hall 18 on Monday, August 2, 2021, please set aside time to read Hard Truths and the Duty to Change, which is the final report of the Independent Review Commission on Sexual Assault in the Military. You may wish to start with the 42-page main body of the report, then focus on Appendix B, which concerns accountability. If you have time, of course, please look at the remaining parts as well. The IRC's report will necessarily be of the most direct interest to American students of the field, but events in other countries that are grappling with sexual assault in the armed forces will make it worthwhile reading. Are there transferable answers? Are there even transferable questions?

The Editor will post and circulate a zoom invitation for Town Hall 18 in a few days. Do join us.

Sunday, July 18, 2021

Hazing

Luisa Sandoval writes here about hazing in the Philippines. The latest incident in a growing list involves the country's Merchant Marine Academy. Excerpt:

Jonash Bondoc, 19, was found unresponsive in the school restroom early morning of July 6. Initial findings showed that he suffered serious head injuries after he was allegedly punched by Midshipman Cadet 2nd class Jomel Gloria during a “traditional recognition” of Mindanao’s underclass cadets.

Such unfortunate incidents show how the culture of violence prevails and is normalized in police and military academies, according to student activist and campaign coordinator of the National Union of Students of the Philippines (NUSP) Coleen Mañibo.

“Cadets begin to imbibe fascism this early, instead of embodying their mandate of serving and protecting the Filipino people. It has become so easy for them to be violent towards ordinary people,” said Mañibo in a phone interview.

The country passed an Anti-Hazing Act in 2018 but implementing regulations have still not been issued. 

COVID-19 and military justice (UK)

Despite Prime Minister Boris Johnson's plan to lift COVID-19 restrictions tomorrow, Britain's military courts will continue to take precautions. Here is the official announcement:

The Prime Minister announced on 12 July 2021 that COVID-19 restrictions will be fully lifted on 19 July 2021 as planned. We have reviewed the impact of this decision on the operation of the Military Court Centres and taken into account a variety of factors including the need to maintain the operation of the courts during what will be a challenging phase of the pandemic.

From 19 July 2021
There will be NO CHANGE to all our current COVID-19 mitigation measures as a condition of entry into the court centres, including the wearing of face masks in public areas. This decision will be subject to regular review.

The presumption that Plea and Trial Preparation Hearings (PTPHs) and other hearings will be held with all parties attending over live link will continue to apply. Judges will also consider whether witnesses can attend trials over live links and are likely to direct such a course more regularly than before the pandemic. Sentencing hearings with some or all of defendant/Defence Assisting Officer/counsel attending remotely are likely to continue, but this will be a matter for judicial discretion.

We are both very grateful for everyone’s continued support and patience during what is a difficult and challenging period.

Alan Large, Judge Advocate General

Cleaven Faulkner, Director Military Court Service

15 July 2021

Published 16 July 2021

Saturday, July 17, 2021

Charlottesville alumna to be next IDF Military Advocate General

Yifat Tomer-Yerushalmi has been named the IDF's next Military Advocate General. She'll be Israel's second female major general. Haaretz reports:

Tomer-Yerushalmi will replace Sharon Afek, a man, who has been military advocate general since 2015. [Defence Minister Benny] Gantz appointed Tomer-Yerushalmi on [Chief of Staff Lt. Gen. Aviv] Kochavi’s recommendation, after also consulting Attorney General Avichai Mendelblit.

Before becoming Kochavi’s adviser on gender issues, Tomer-Yerushalmi headed the military prosecution’s legal advice and legislation department. Before that, she was a military judge, eventually rising to the post of deputy president of the Jaffa military court.

The Winthrop of Mar-a-Lago speaks

“The writings within these third-rate books are Fake News, and 'General' [Mark A.] Milley (who [former Defense Secretary James] Mattis wanted to send to Europe in order to get rid of him), if he said what was reported, perhaps should be impeached, or court-martialed and tried,” [former President Donald J.] Trump said in a statement on Friday.

From this account by Lexi Lonas in The Hill

Any volunteers to represent General Milley pro bono?

Offered without comment

Trigger warning: snake blood? Read on if you dare.

Friday, July 16, 2021

A modest proposal for India

Global Military Justice Reform contributor Major Navdeep Singh and the Editor have written this op-ed for The Print. Hasn't the time come to enact a single disciplinary statute for all of India's armed forces -- and to make other basic changes needed to achieve judicial independence?

Uganda Update

ChimpReports tells us that the Supreme Court of Uganda has put a hold on the ruling of the Constitutional Court that courts-martial of civilians are unconstitutional.

Thursday, July 15, 2021

General Jonathan Vance (retired) charged with 'Obstruct Justice'

News broke this afternoon that former Chief of the Defence Staff (CDS) of the Canadian Forces (CF), General Jonathan Vance (retired) has been charged before a civil court of criminal jurisdiction with one count of 'obstruct justice' contrary to subsection 139(2) of the Criminal Code.  The maximum penalty for this offence, when it proceeds by indictment, is up to 10 years imprisonment.  The charge has not yet been tried before any court of competent jurisdiction.

Notwithstanding that the investigation was conducted by the Canadian Forces National Investigation Service (CFNIS), the charge was not laid under the Code of Service Discipline.  This is almost certainly because such a charge would give rise to a right to elect trial by General Court Martial (GCM), and it is practically impossible to convene a GCM Panel where the accused is a current or former CDS.  For a detailed examination of this issue, see: "Prosecuting the Chief of the Defence Staff".  Moreover, based upon the wording of the charge, it appears to have arisen after Jonathan Vance retired (although it remains unclear whether he had been released from the CF at that point, or if he was on 'terminal leave'). 

The particulars of the charge state that General Vance (retired) "... did willfully attempt to obstruct the course of justice in a judicial proceeding by repeatedly contacting Mrs K.B. by phone and attempting to persuade her to make false statements about their past relationship to the Canadians Forces National Investigation Service ...".  Initial reports by Global News indicated that the charge was laid pursuant to subsection 139(1) of the Criminal Code; however, that provision is inconsistent with the allegations.  (The offence under subsection 139(1) concerns improper conduct relating to sureties provided for judicial interim release or bail.)

There are several noteworthy aspects arising from this news, including:

  • Notwithstanding that the Director of Military Prosecutions (DMP) rigorously pursued appeal in R v Edwards, et. al., 2021 CMAC 2 and R v Proulx and Cloutier, 2021 CMAC 3, adamantly arguing that all CF personnel are equal under the law (and, presumably, the Code of Service Discipline), the charge was not laid under the Code of Service Discipline, even though it related to the conduct of one CF member (or, potentially, former CF member) to another CF member;
  • Ironically, then, it would appear that 'independent' military judges remain liable to be tried under the Code of Service Discipline, but a current or former CDS is not; 
  • Often, 'obstruct justice' charges will be laid in conjunction with one or more additional criminal offences.  That is not the case here.  That factor may prove to be relevant, as it may be difficult to establish that there was a 'proposed judicial proceeding' when there has been no separate charge laid;
  • One of the essential elements of an 'obstruct justice' charge under subsection 139(2) of the Criminal Code (in the circumstances described) is that the accused must willfully dissuade or attempt to dissuade a person by threats, bribes or other corrupt means from giving evidence in an existing or proposed judicial proceeding.  Simply asking a person not to give information to investigating police will not meet this threshold.  There appears to be insufficient information in the public sphere to draw any meaningful conclusions regarding this factor; and
  • It is likely that the CFNIS, and the military prosecutors who advised them, had in mind the recent Supreme Court of Canada case of R v Morrow, 2021 SCC 21, aff'g R v Morrow, 2020 ABCA 407.  However, that judgment does not obviate the requirement to establish a threat, bribe, or other corrupt means that, objectively, would have dissuaded a complainant from giving evidence in a judicial proceeding.
This represents the early stage of this proceeding, and there will inevitably be much more information to follow.  However, this will undoubtedly dominate the news cycle pertaining to the Canadian Forces over the next 24 to 48 hours.  It runs the risk of distracting media attention from the efforts of many Canadian veterans and others who are encouraging the Canadian federal government to take meaningful steps to help rescue Afghans who worked with the CF during its missions in Afghanistan, and who are at risk of death and torture if they fall into the hands of the resurgent Taliban.  Hopefully, this will not prove to be a convenient opportunity for the government to ignore those pleas.

Controversial reappointment to the Uruguayan Supreme Court

On March 13, 2021, the Uruguayan Senate consented to the 5 -ear reappointment of retired Colonel Eduardo Aranco Gil as "conjuez militar" (military associate justice) to the Supreme Court.  The consent was polemical because the Frente Amplio (Broad Front), the left-wing party that ruled Uruguay for 15 years, until 2020, when Luis Lacalle Pou of the center-right Partido Nacional (National Party) was sworn in, opposed his reappointment, despite the fact that this was his third term on the Court and that he was originally proposed and supported by the Frente Amplio.

The Uruguayan Supreme Court is comprised of five judges and two military associate justices, who together comprise the Court when it is required to deal with cases involving military justice, such as the final appeal in a case or a case involving a conflict of jurisdiction between it and the judicial branch.  These cases are few and far between and in the past ten years only four have arisen.  Since military justice does not form part of the Judiciary, it does not provide the basic guarantees of due process for the simple reason that the independence of its judges is not guaranteed.  When the Supreme Court receives a case challenging a decision of military judges then the only stage that can be called "judicial" begins.  This Court deals with events during war and also "military crimes" such as disobedience and desertion.

His reappointment became polemical because in a recent interview Mr. Aranco Gil stated that in Uruguay there is "no legal certainty" for members of the military who have been tried for violations of human rights during the dictatorship and that "all" of them "were prosecuted badly."  The prosecution of the human rights violations committed during the dictatorship (1973-1985) has been part of the public agenda since the Naval Club pact was signed in 1984.  In short, his criticism centers on the fact that the courts are still trying members of the military for crimes that were committed 40 or 50 years ago and he argues that this should be stopped and statutes of limitation applied.  Aranco Gil has a doctorate in law and acknowledges that statutes of limitation would be declared unconstitutional in Uruguay, and consequently he is calling for a law to exempt from prosecution those members of the military who have been living peacefully in Uruguayan society since 1985, on the basis that they do not pose a danger to society today.

Wednesday, July 14, 2021

A reverse bill of attainder?

Pakistani legislators continue to drag their feet in affording appellate rights to an Indian man who has been sentenced to death, following the consular access decision of the International Court of Justice. The latest objection is that the necessary measure is in effect special legislation that affects only one individual. Details here. Excerpt:

"To me, this law [the International Court of Justice (Review and Reconsideration) Bill, 2021] is person specific. The question arises whether we can pass a law which is person-specific?" observed Barrister Ali Zafar, chair of the committee. Farooq H Naek pointed out that there was no provision to allow review in criminal law.

"Can we bring a new law, if there is no provision in the statute?" Naek questioned. He also pointed out that the Supreme Court does not entertain the judgments of the military courts.

[Kulbhushan] Jadhav, the arrested Indian spy, has been sentenced to death by a military tribunal, whereas the International Court of Justice (ICJ), in its July 17, 2019 judgement has called for a review and reconsideration in the military court's decision.

Mian Raza Rabbani pointed out that the government by introducing Jadhav-specific bill provide the ground of Article 36 of the Vienna Convention, whereas, Article 36 only deals with consular access. In his observations, the chair of the committee stated: "Obviously, we [Pakistan] have international obligations, but we should also have to look thoroughly into all the observations of the committee members."

À nos chers amis francophones

 


Tuesday, July 13, 2021

Ah, the cupcake offense

"The chain of command's loss of the cupcake wrappers was so shockingly negligent as to constitute an abuse of process."

That is what the defense counsel, for a Canadian soldier accused "who allegedly fed cannabis-infused cupcakes to an artillery unit before a live-fire exercise[,]" has told the court.

This is interesting, "Canadian Armed Forces members are barred from consuming cannabis eight hours before any known or expected performance of duty." Nope to dope--nada--in the U.S.

I may have mentioned we had a Mess Specialist who put marijuana in the lunch of a ship's wardroom members--in the early 80's.

Thanks Regina-Leader Post.