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.”
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.
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.
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?
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.)
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.
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).)
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.
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:
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.
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.
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.
“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.”
The Editor will post and circulate a zoom invitation for Town Hall 18 in a few days. Do join us.
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.
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.
From this account by Lexi Lonas in The Hill
Any volunteers to represent General Milley pro bono?
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:
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.
