Monday, July 26, 2021

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.

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.

Monday, July 12, 2021

Stirrings in Uganda's "graveyard of constitutional petitions" -- or a false alarm?

Derrick Kiyonga and Joel Mukisa have written this worthwhile account of Uganda's Constitutional Court, including comments by Global Military Justice Reform contributor Dr. Ronald Naluwairo. The court has a considerable backlog but seems to be starved for administrative resources. About its latest decision, concerning the trial of civilians by courts-martial, the authors suggest that the victory may have left a critical loophole:

Going by the majority judgment, it also clear that there are situations where even after these judgments civilians might be tried under the military court. 

In their final orders, the justices said Section 119(1)(g) of the UPDF Act is not unconstitutional provided the person not otherwise subject to military law is tried as an accomplice together with a person who is subject to military law as the principal offender on the same charge sheet. 

“The Constitutional Court should not be applauded for delivering what is essentially a juristic counterfeit that will continue to expose civilians to the dreaded dungeons of the NRA military junta through arbitrary classification as ‘an accomplice’ of a person subject to military law,” says [democracy and human rights activist Isaac Kimaze] Ssemakadde.

The article chronicles the numerous efforts that have been made over the years to push back against the use of military courts to try civilians. It's too soon to say whether the Constitutional Court's latest ruling is a one-off or marks a turning point. Will it survive appellate review by the Supreme Court? 

Saturday, July 10, 2021

More on General Martins's retirement

Carol Rosenberg's story in The New York Times about the surprise retirement of Brigadier General Mark S. Martins, the chief prosecutor at the Guantánamo military commissions, has been augmented with additional information:

General Martins submitted his retirement papers on Wednesday after repeatedly butting heads with Biden administration lawyers over positions his office had taken on the applicable international law and the Convention Against Torture at the Guantánamo court, according to senior government officials with knowledge of the disputes. General Martins did not respond to a request for comment.

A key point of contention was a recent decision by General Martins to use a statement that a man accused of orchestrating the U.S.S. Cole bombing in 2000 had made to the C.I.A. while being tortured to make a point with the military judge presiding in that case, which is also a death-penalty prosecution. Defense lawyers for the prisoner, Abd al-Rahim al-Nashiri of Saudi Arabia, are appealing the admissibility of that evidence.

On the same day General Martins chose to retire, he filed a brief asking the U.S. Court of Military Commission Review for extra time to respond to the appeal.

Stand by for additional reporting as more of the surrounding circumstances emerge. 

Friday, July 9, 2021

General Martins to retire

Brig. Gen. Mark S. Martins, the longest-serving (by far) chief prosecutor for the Guantánamo Bay military commissions, will be retiring from the Army on September 30. Carol Rosenberg of The New York Times has the story here.

Touchdown--for the BCNR

It's not every day that the Board for Correction of Naval Records figures in The New York Times's SportsThursday subsection. But so it was on July 8, 2021, with this "Pro Football" story about U.S. Naval Academy Class of 2021 graduate Cameron Kinley. He was apparently commissioned and was to enter on his five-year active duty obligation, but the BCNR granted his petition to have his commission rescinded so that he can proceed with a career in the National Football League. The matter required the personal involvement of both acting Secretary of the Navy Thomas W. Harker and Secretary of Defense Lloyd J. Austin III. Senator Marco Rubio helped get the case moving.

The Times's Emmanuel Morgan reports:

The official policy for graduates of service academies pursuing careers as professional athletes has changed repeatedly in the last few years, with athletes required to pay back the costs of attending their academy if they immediately play professionally without earning a waiver. During the Obama administration, graduates could continue their athletic career immediately if they were granted reserve status. But President Donald J. Trump in 2017 rescinded that policy, only to direct the Department of Defense to re-enact it again in 2019 after hosting the Army football team at the White House. [President Joseph R.] Biden, in a statement on Tuesday, said he supported the Pentagon’s decision.

“I am confident that Cameron will represent the Navy well in the N.F.L., just as he did as a standout athlete and class president at the Naval Academy. After his N.F.L. career is over, he will continue to make us proud as an officer in the United States Navy.”

The Tampa Bay Buccaneers player-to-be saw a larger lesson:

“The most valuable lesson I’ve learned throughout this whole process,” Kinley said, “is to trust his timing and remain confident in the fact that God will always prevail.”

Comments on this case, the policy it reflects, the priority it received, and the role of political influence and/or of the Almighty are welcome, particularly from readers who have represented less athletically-gifted clients before the correction boards.

Systemic change coming in South Korea

This Korea Joong Ang Daily report on charges arising from the sexual assault and suicide of an officer includes new information about systemic changes apparently underway in South Korea:

The Ministry of National Defense will also overhaul the military investigation and court martial systems. Military prosecutors will be directly supervised by Army, Air Force and Navy chiefs of staff. A sexual crime investigation team will be established.

Military courts of the Army, Air Force and Navy will be integrated into a military court under the Ministry of National Defense, and a court exclusively handling sex crimes will be created.   

The ministry also said it plans to hand over appeals to the judiciary outside the military.

GAO: legal training for commanders

The U.S. Government Accountability Office has just issued a report titled Military Training: The Services Need to Ensure That All Commanders Are Prepared for Their Legal Responsibilities. GAO's summary:

What GAO Found 

Military commanders are entrusted with a variety of responsibilities that can involve understanding, interpreting, or complying with legal requirements. Thus, the military services provide legal training to commanders throughout their careers. GAO found that commanders receive dedicated legal training; other training that includes blocks of legal content; and informal legal training, such as informal briefings or conversations with military legal staff. 

While legal training is provided, the services’ ability to account for the completion of training varies, as the services’ systems of record do not document all legal training that commanders complete. Specifically, for four courses in the Army, Air Force, and Marine Corps, training completion data in the service databases were different from the records maintained by the training providers. For example, GAO found that 26 of 56 fiscal year 2019 Army commanders had taken a required course according to the system of record, while training records outside the system showed that 47 of 56 commanders had taken the course. In addition, for four training courses in the Navy and the Air Force, training completion was tracked using a different system than the training system of record. Tracking all training completion in the official systems of record could help the services ensure that commanders complete their required legal training. 

GAO also found, through analyses of the legal training offered and from discussion groups and interviews with commanders and legal support staff, that perspectives varied on the general preparedness of commanders to address legal issues. In addition, GAO found that the timing, amount, and mix of legal training provided to commanders may not be meeting their needs. For example:

 • Dedicated legal training is generally for mid-level commanders, who may hold multiple command positions before attending the training. Commanders from all four services indicated that they would have benefited from dedicated legal training earlier in their careers.

 • Commanders of similar grades and legal responsibilities may not receive similar levels of legal training. For example, GAO found that, although course materials for the Army pre-command course for junior commanders were centrally developed, the time spent covering designated legal topics varied substantially by the location where the instruction took place.

 • Some commanders and legal support staff expressed the view that commanders would benefit from additional legal training. 

The Navy has begun taking steps to improve its legal training by expanding its training requirements and curriculum, but it has not formalized these efforts through policies and procedures. The Marine Corps is also taking steps to update its legal training materials, but has not taken actions to require that a comprehensive mix of legal training be provided to commanders throughout their careers. Similarly, the Army and the Air Force conduct surveys and reviews of individual courses, but do not know if the current timing, amount, and mix of legal training is meeting the needs of commanders. Both services would benefit from undertaking a comprehensive assessment of the entire continuum of legal training provided to commanders to determine whether they are being sufficiently prepared to carry out their legal responsibilities.

According to page 90, under the heading Army Training with Blocks of Legal Content for General Officers, "Army officers selected for promotion to the grade of O-7 are required to attend the Army Strategic Education Program – Basic. This 10-day course includes a full day of instruction on legal issues, and includes a presentation by The Judge Advocate General of the Army. Officers from The Judge Advocate General’s Legal Center and School then present on a variety of legal topics, as shown in figure 4 above. [It's actually Figure 5.] The course ends with a panel discussion featuring three senior Army judge advocates." [Footnote omitted.] Figure 5 indicates that general officer training includes one hour on the commander's UCMJ role and 30 minutes on unlawful command influence.

The comparable paragraph for the Navy appears on p. 93:

Navy officers selected for promotion to the grade of O-7 attend the New Flag and Senior Executive Training Symposium, which is a mandatory 1-week in-residence course at The Bolger Center in Potomac, Maryland. For the iteration of the course that we reviewed, the course contained a 1-hour legal block covering ethics. Course officials said that the Navy was considering adding an additional block of military law training, to include military justice and aspects of administrative and personnel law. In June 2020, the Navy directed the Office of Chief of Naval Operations Flag Officer Management and Distribution to partner with the Office of the Judge Advocate General to review and deliver legal training requirements for new flag officers and to review the New Flag and Senior Executive Training Symposium legal training curriculum at least annually. See figure 20 for fiscal year 2019 commander completion rates for the New Flag and Senior Executive Training Symposium program. [Footnotes omitted.]

See also pp. 95 (Marine Corps), 97 (Air Force).

MacLean's reports on "the war inside the Canadian armed forces"

MacLean's has this long piece by Marie-Danielle Smith about the state of Canadian military justice, particularly with regard to sexual misconduct. Some of the incidents reported on occurred decades ago, but much of what is addressed in the article is quite current. Excerpt:

The Canadian Armed Forces, as an institution, has a necessarily coercive culture. Leaders must have a high degree of authority and control over their subordinates in order for the military to be effective when it is called into action. But the checks and balances meant to stifle the ugly side of that coercion—an instinct to demonstrate power with subjugation, humiliation and harm—are deficient.

More than a dozen current and former military members tell Maclean’s of a deep distrust in the institutions that are supposed to bolster them, and of a belief that bad actors within the system will protect perpetrators and ostracize or punish complainants. All believe in the potential of the Forces, and that good men and women serve in its ranks. But few are optimistic about senior leadership’s willingness to tackle the cultural and systemic problems that undermine their efforts.

Who's got this? 

Wednesday, July 7, 2021

Uganda update

AllAfrica reports,

Government yesterday commenced the appeal process to challenge the Constitutional Court landmark judgment that stopped military courts from trying civilian suspects.

The government in its notice of appeal to the Supreme Court states that it is dissatisfied with last week's decision of the Constitutional Court that declared it unconstitutional for the military courts to try civilians.

"Take notice that the respondent (government) being dissatisfied with the judgment of the honourable court delivered on July 1, 2021, intends to appeal to the Supreme Court of Uganda against part of the judgment," the appeal notice reads in part.

SARGE Statement on the IRC Report

The Shadow Advisory Report Group of Experts today issued this Statement on the Report of the Independent Review Commission on Sexual Assault in the Military.

Sexual harassment reform comes to California

The California Legislature is considering measure that would amend the state's Military and Veterans Code. Lieutenant Governor Eleni Kounalakis and State Senator Susan Talamantes Eggman write in this op-ed:

We are proud to be partnering on Senate Bill 352, a California Legislative Women’s Caucus priority bill that will make sexual harassment a crime in California’s military ranks (including the Office of the Adjutant General, California National Guard, State Guard, California Cadet Corps and Naval Militia).

While federal representatives work for change in Washington, California has an opportunity to do as it always does — lead the nation by taking meaningful action with the passage of SB 352. 

Federal representatives such as Rep. Jackie Speier, a Democrat from California, and Sen. Kirsten Gillibrand, a Democrat from New York, have introduced legislation to bring about federal reform. While recent support for change from Defense Secretary Lloyd Austin is promising, more than a year after [Vanessa] Guillen’s death, meaningful reform efforts have yet to be realized.

Sexual harassment is not a crime in the U.S. military. Senate Bill 352 would make it a stand-alone offense in California’s incorporation of the Uniform Code of Military Justice, thus removing any question that sexual harassment is punishable in California’s military ranks.

Guardia Civil docket

The Unified Association of Civil Guards (AUGC) reports here on recent military justice developments (Google translation):

AUGC represents a civil guard from Cehegín who was tried on May 10 for an alleged military crime of "simulating illness" [malingering] and has obtained an acquittal that has prevented him from having to enter the Military Prison of Alcalá Meco for a period of six months.

However, this victory has not prevented that during the four years that the process has lasted, his medical and personal situation has worsened as a result of the uncertainty of the possible conviction for an unfair and grotesque situation. From AUGC we wonder if those responsible for the accusation will also be tried for "inventing that our partner was simulating a disease."

On May 10, a trial was held against our colleague, accused of a military crime of "simulating illness" for some events that occurred in 2017. At that trial, the members of the Military Medical Court were summoned as witnesses, as well as as well as the private media that had assisted him. After hearing the testimony of the former, the Military Prosecutor observed that this judicial matter was a tremendous error and stopped the accusation, which resulted in the acquittal.

A SICK CIVIL GUARD TREATED AS A CRIMINAL OFFENDER

The origin of such unreason occurs in 2017, when after three years of medical leave for psychiatric reasons, he was obligatorily discharged and returned to his job, where in a psychotic outbreak he took a gun with the intention of committing suicide. Fortunately, a corporal from his unit prevented any damage and alerted his commanders and the medical services.

The agent was transferred to the Caravaca de la Cruz hospital, where the emergency psychiatrist who treated him appreciated ideas of death and he was transferred to a specialized psychiatric center. Once in the psychiatric hospital, he was diagnosed with an anxious depressive disorder and days later, after being reviewed by his psychiatrist, he was granted medical leave, a situation he has maintained ever since. 

However, the simple comment of a captain about the possibility that he was simulating a disease, collected in the initial medical report, led to a witch hunt for possible military crimes that has now ended. Four years of personal ordeal and worsening of his medical ailments, solely due to the comment of a commander who should have kept quiet, since he was neither certain nor about medical or psychiatric personnel.

Finally, and after four years of delay, sanity has been imposed and it has been sentenced with free acquittal and for all purposes, the sentence picking up a totally illuminating quote.

What happens when a complaint is filed against a Brazilian flag or general officer?

Folha de S. Paulo reports here on the fact that over the last 10 years, only one Brazilian flag or general officer accused of serious crime has been punished by the Superior Military Court (STM), out of 20 cases filed. Excerpt:

Of eight accusations made to the court by the Military Public Ministry, three were accepted.

Rear Admiral Jorge Nerie Vellame was convicted of wrongful bodily injury (unintentionally). He served two years in detention in 2015, and the sentence was extinguished in 2018.

There were also at least 13 inquiries that didn't even reach the higher court.

The STM and the Military Prosecutor's Office deny that there is impunity or corporatism in the analysis of such cases. The court emphasizes that, in the cases cited, civilian members voted for the acquittal.

AFRICOM data

The Intercept has a lengthy report here by Nick Turse about apparent under-reporting of sexual assault and harassment complaints from AFRICOM. Excerpt:

The incident is one of 158 cases of sexual crimes — including rape, sexual assault, and abusive sexual contact — involving U.S. military personnel in Africa that were reported over the past decade, according to criminal investigation records from the Army, Navy, and Air Force that The Intercept and Type Investigations obtained through the Freedom of Information Act.

While many of the files are heavily redacted, making it impossible to identify the military personnel involved, they nonetheless shine a light on the operations of U.S. Africa Command, or AFRICOM, whose commanders and troops have been embroiled in a long series of scandals. Even more striking is the fact that the number of incidents described in the files are more than double the Pentagon’s official sexual assault figures for the African continent, highlighting the degree to which the military has failed to properly track cases of sexual offenses, thereby masking the overall severity of the problem.

Tuesday, July 6, 2021

Defining extremism in order to combat it

Captain Keith S. Gibel, an active-duty U.S. Navy JAG, writes in Lawfare on the importance of generating a workable definition for extremism. His definition, "[a]n inflexible ideology that instills hate or fear, and advocates, promotes, facilitates or condones violence, to advance its primacy over alternative or competing views," focuses on an extremist's inability to compromise and use of violence to dominate other's viewpoints. 

He calls upon leaders to explain the deleterious effect such an ideology has on unit cohesion. And he argues any solution must emphasize empathetic leadership, and not rest disproportionately on criminal prosecutions.  It's a workable definition: clear, concise, and easily understandable by all servicemembers regardless of rank or education. Hopefully if this definition is adopted, it can reduce extremist activities in the military. 

But I use his article to state once again my fear that the military will have difficulty combatting extremism successfully and remaining an apolitical institution. And between those two competing interests, the military should combat extremism and be unafraid to face accusations of political bias.

Personnel inside and outside the military understand the DOD's emphasis on combating extremism is a result of the January 6 riot at the Capitol. During my two-weeks of active army time last month, I steered away from a conversation from a fellow officer who disparaged the emphasis on extremism training, and who also minimized the violence at the Capitol during the Electoral College vote count. 

Despite my reluctance to engage and challenge his beliefs, I still believe the military as an institution needs to be more direct and clear about combating extremism; which inevitably means confronting the significant portion of the Republican Party that is radicalizing against democracy. For just one recent data point, an estimated 46% of Republicans support the state legislatures overturning the 2020 vote. 

To further illustrate the point, Captain Gibel's extremism definition works aptly to characterize the Capitol rioters. They recognized violence, and the threat of violence, as the last available means to install their preferred candidate.  The erected gallows, the chants to hang Mike Pence, the violent rush to the Senate Chamber to stop the legal counting of votes, were all designed to dominate their foes through force, to thwart the peaceful transfer of power. 

So the current and former members of the military who participated in the Capitol Riot, who fought against democracy on January 6, are violent extremists. Commanders and DOD personnel should not shy away from this particular example when discussing extremism. We all know that is why we're doing this training, and why commanders at all levels are discussing extremism. I am sympathetic, and I understand everyone's reluctance, considering I have not overcome the discomfort of openly discussing political issues in uniform myself. But this is not a problem that will go away with time if we collectively ignore it. The former commander-in-chief continues to insist the 2020 election was stolen from him. 

The oath to the Constitution that military members take is an oath for representative government; in essence, an oath for democracy. If, as Captain Gibel writes, we need empathetic leaders to bridge divides to develop unit cohesion, those leaders need to focus on the primacy of our representative government. An effective military must be filled with individuals who respect the supremacy of civilian control over the military, as well as the civilian's authority to choose their own leaders. If naming and combating agitators to democracy endangers the apolitical military, then that is the fault of a political party that possesses values inconsistent with this country, not the military's.