Tuesday, August 31, 2021

Don't Ask, Don't Tell -- new movie coming

DEADLINE reports here on a forthcoming film about the Don't Ask, Don't Tell era.

GAO and racial disparities

From the Government Accountability Office:

. . . [T]hree of our 11 recommendations have not been implemented. Specifically, the Air Force investigations database is not yet able to report consistent demographic data and the Department of Defense (DOD) has not identified when disparities should be further reviewed or studied the causes of disparities in the military justice system. Agency actions taken thus far to address the three remaining open recommendations are as follows:

  • The Air Force has developed the capability to present race and ethnicity data in its personnel database consistent with the uniform standards established by the Department of Defense in 2018, but has not yet done so for its investigations database as GAO recommended. The Air Force is currently developing a new case management system that will replace its existing investigations database either in fiscal year 2021 or fiscal year 2022.
  • DOD has not identified when any possible racial, ethnic, or gender disparities in the military justice system should be examined further, as GAO had recommended. Officials from DOD's Office of Diversity, Equity, and Inclusion (ODEI) said that a nonprofit research and analysis organization will conduct a study to further identify disparities in the military justice system. ODEI officials said that they plan to use the findings and recommendations from that study to develop criteria and steps that will be taken to conduct a review on disparities. ODEI officials said that the study should be completed around June 2022.
  • DOD and the military services have some assessments of military justice system disparities completed or underway, within which they are beginning to comprehensively study the extent and causes of any disparities, as GAO had recommended. However, DOD has not identified causes or taken steps to address disparities. ODEI officials said the study that will be conducted by a nonprofit research and analysis organization would provide a more independent assessment than a study conducted using internal DOD capabilities. The officials said that they plan to use the findings and recommendations from this study to identify the causes and steps to take to address those causes. In addition to the planned ODEI study, four of the military services are respectively conducting studies about disparities.

You can find a link to GAO's full report here

Monday, August 30, 2021

DRC: Military courts requested in new provinces

Radio Okapi, the United Nations media in Democratic Republic of the Congo (DRC), reports in this article that the lawyers at the garrison military court for the province of South Ubangi have asked the judicial authorities to establish a new military court for each of the country’s new provinces. Me Murphy Mopila, a lawyer defending nearly 40 soldiers convicted by the garrison military court, made the request on Friday, 27 August.

"We need a garrison court in South Ubangi so that if a detainee is sentenced to what is called an emergency, the military justice of Gemena can arrange for the accused to go to Mbandaka and defend himself. But when they have appealed, the cases linger for 3 years, 5 years. It is impossible," complains Me Murphy Mopila.

He indicated that his request could put an end to the injustice which several military detainees have suffered for years.

"The problem is that there are so many convicts at the level of the military tribunal of garrison of South Ubangi, these convicts have appealed, but they are still in prison, which violates their most legitimate right," he adds.

These lawyers also want the convicts who have appealed to be allowed to go to the city of Mbandaka to defend their cases.

The DRC has been divided into 26 provinces since 2015, while before that there were eleven. One of the objectives of that reform was to reduce the risk of secession in some regions.

The Bouterse judgment

Global Military Justice Reform contributor Brig. Gen. (ret) Jan Peter Spijk writes:

Today, the Suriname Military Court has again convicted former President Dési Bouterse to 20 years' imprisonment for co-committing 15 murders on December 8, 1982. The victims were prominent lawyers, officers and journalists, who had criticized Bouterse’s military regime at the time.

This verdict comes at the end of a repeated trial by the Military Court. Bouterse was convicted in absentia in 2019, to which conviction he had filed an objection. The Military Court, in the same composition as in 2019 and chaired by President Cynthia Valstein-Montnor, judged that no new facts had emerged.

This judgment is not final. Mr. Bouterse’s lawyer, Mr. Irvin Kanhai, has already announced that he will appeal to the Suriname (civilian) Appeals Court.

As with the last judgment, when he still was President, the now 75-year-old Mr. Bouterse was not present when the verdict was announced. He had reported himself sick. The Military Court has not ordered the imprisonment of Mr. Bouterse.

Judgment day in Paramaribo

The Surinamese military court is scheduled to announce its decision today in the case of former President Dési Bouterse. At left, Judge Cynthia Valstein-Montnor.

Sunday, August 29, 2021

How global is Global?

Ever wonder how global Global Military Justice Reform is?

Here are the jurisdictions from which we have had hits in the last 24 hours, in descending order of frequency:

United States, Canada, India, France, Germany, Russia, Indonesia, Vietnam, United Kingdom, Pakistan, Belgium, Israel, Netherlands, Singapore, Togo.

For readers using Department of Defense computers, word reached the glass-enclosed newsroom high above Global Military Justice Reform Plaza the other day that whatever had been blocking access to the blog in the past has been resolved.

Saturday, August 28, 2021

Semper Fidelis?

"In a post five hours after he was relieved of command, [LtCol Stuart] Scheller [of the U.S. Marine Corps] said that after having had time to process the situation, and having had many Marines agree with him, he offered this: 'If you all agree … then step up. They only have the power because we allow it. What if we all demanded accountability?'”

From this article in the Washington Post

Here is the video from LtCol Scheller's Facebook page. Some questions that come to mind:

  1. Which punitive article(s) of the Uniform Code of Military Justice come to mind, and how would you evaluate the government's prospects for obtaining a conviction?
  2. If you were this officer's commander, how would you dispose of the charges?
  3. If the officer's commander elects to refer any charge to a court-martial or hold office hours (non-judicial punishment), and you were White House Counsel, what advice would you give President Joe Biden?
  4. If the case went to a court-martial and you were defense counsel, what motion(s) would you make, and how would you gauge your chances for success?
  5. If the facts set forth in the article are correct and the officer pleads guilty, what sentence would you adjudge?
  6. If you were a betting person, what odds would you give that this officer will run for elective office?
  7. If you were President, Secretary of Defense, Secretary of the Navy, Commandant of the Marine Corps, a Senator, or a Member of Congress, what, if anything, should you say or do about this case?
Comments are respectfully invited. Real names only, please. Anonymous comments will not be posted.

Why was this case tried in military court?

Seungri is a South Korean entertainment figure. His entry on Wikipedia reports the following (footnotes omitted):

Seungri enlisted in the military on March 9, 2020, and his [civilian criminal] case was transferred to the military court. His trial started on September 16, consisting in eight charges. Seungri denied all charges except one, violation of the Foreign Exchange Transactions Act, for which he stated he was deeply reflecting on his mistake.

Regarding the allegations related to prostitution (prostitution mediation and prostitution for self), Seungri's lawyer stated that Seungri had no reason to mediate prostitution and that he didn't remember having sexual intercourse with the woman in question, who he thought was just a person who wanted to meet him. During the trial, the witnesses confirmed that it was Yoo In-Seok who ordered prostitution, not Seungri.

Regarding the charge of distributing obscene material, Seungri's Defense stated that he only shared with friends a photo that wasn't taken by him, but was sent to him from an entertainment bar.

For the charge of habitual gambling, Seungri's lawyer answered that Seungri didn't gamble as a habit, and that he visited the USA for work and not purposely for gambling. Habitual gambling is illegal but not gambling for momentary pleasure.

The charge of embezzlement is divided in two different charges, for which Seungri's side declared that Seungri had no motive or intent to commit embezzlement. Seungri's charges also include Violation of Food Sanitation Act (for inappropriately declaring Monkey Museum as a restaurant instead of an entertainment establishment).

On January 14 the Prosecution added against Seungri the charge of eliciting violence. In 2015, a drunk customer in a bar entered into the private room of Seungri and his acquaintances: the Prosecution claimed that after an argument, Seungri called Yoo In-Seok who involved gang members into the argument to threaten the man. The Prosecution claimed Seungri conspired with Yoo thus charging him as instigating co-conspirator. However, Seungri claimed that he didn't have anything to do with the gangsters, and during the 15th hearing one of the alleged victims said that he didn't feel threatened at the time, while the other one stated that he didn't know at all that Seungri could be related to the incident.

The trial also encountered an issue related to confirmation bias: on March 25, 2021, after the 13th hearing for Seungri's trial, a witness claimed that the police had wrote up a statement against Seungri that he actually never made. Other Prosecution witnesses also claimed that the investigators put pressure on them in giving false testimonies, probably due to the pressure from media and public to find Seungri guilty. Many of the witnesses also claimed that the Prosecution slightly changed their answers or seemed to have designed questioning with the target of necessarily arriving at Seungri's name.

On August 12 2021, Seungri was sentenced to a three-year prison term, a fine of 1.15 billion won (US$990,000) and immediate detention.

This news account says the prosecution and defense have both appealed, adding:

According to the Military Court Act, a sentence of a fine or imprisonment must receive confirmation from the relevant authorities. A source from the military court stated, “If a confirmation letter from the relevant authorities is submitted to the court within 10 days of the sentencing trial, then the defendant will be served the judgment.”

Seungri’s lawyer had already declared his intent to appeal on August 12, so a second trial had already been expected. As Seungri submitted his appeal to the military court before his discharge from the military, the appeal trial will be held at the High Military Court in Yongsan, Seoul.

Seungri is scheduled to be discharged from mandatory military service on September 16. As he has appealed his sentence, as long as he continues to fulfill his duties until the second trial is complete, he will be discharged as usual. If he had not appealed his sentence, he would have been transferred into the wartime labor division as he received a prison sentence and a fine, according to Article 137 of the Military Service Act.

But why was this case tried in military court ? 

Incorporate courts-martial like provisions in the Central Reserve Police Force (CRPF): India’s Home Ministry

As per news reports, the Ministry of Home Affairs of the Government of India has asked the Central Reserve Police Force (CRPF) to consider incorporating the system of ‘Force Courts’ (which is analogous to courts-martial) as is applicable to other Central Armed Police Forces (CAPFs) in India, such as the Border Security Force (BSF), Indo Tibetan Border Police (ITBP) etc.

While on merits, the communication does make sense, on a practical level it means nothing since it is for the legislature to introduce such provisions, if so desired, for the CRPF by amendments in the Parliamentary Act, and the CRPF hierarchy can do nothing about it. Most other CAPFs already have the system of ‘Force Courts’.

The import of the communication by the Ministry hence is not fully comprehensible.

The CAPFs are basically central forces which are organised more or less on the lines of the military with concepts such as Sections, Platoons, Companies and Battalions. Most of the CAPFs fall under the purview of the Home Ministry.

Friday, August 27, 2021

Law Professors' Statement on Military Justice Reform

This Law Professors' Statement on Military Justice Reform was released this afternoon. It recommends transfer of the disposition power for serious offenses to lawyers outside the chain of command, removal of military commanders from the member selection process, and providing military personnel equal access to the Supreme Court of the United States.

Thursday, August 26, 2021

NIMJ's 30th anniversary

From the National Institute of Military Justice website:

In honor of its 30th anniversary, the National Institute of Military Justice, co-sponsored by Georgetown University Law Center’s Center on National Security and the Law, will host an in-person symposium on military justice on October 28, 2021 at Georgetown University Law Center. The symposium will feature panel presentations of works in progress from various invited contributors, with room for a small number of additional unsolicited papers to be selected by a committee of peer reviewers. Papers selected for inclusion in the symposium will be published, along with the invited papers, in the Journal of National Security Law & Policy. Authors of selected papers are invited to present them in-person at the symposium, although travel expenses will not be provided. 
Please submit papers to symposium@nimj.org by September 30, 2021 at midnight ET. Papers should address a military justice topic, should be fewer than 4,000 words in length, be of scholarly content and tone and conform to the requirements outlined here.

Military discharge upgrade manual

The ABA has announced publication of the Military Discharge Upgrade Legal Practice Manual, by Margaret Kuzma, Dana Montalto, Elizabeth R. Gwin, and Daniel L Nagin.

"This landmark publication—the first of its kind in 30 years—enables advocates to successfully represent veterans who unjustly received less-than-honorable or other stigmatizing discharges. Written by attorneys from the Legal Services Center of Harvard Law School’s Veterans Legal Clinic and Connecticut Veterans Legal Center, this book helps bring honor and life-altering benefits to veterans."

More information can be found here.

Excessive and indefensible

Yesterday's mail brought the 1267-page 2021 edition of Military Court Rules of the United States: Procedure, Citation, Professional Responsibility, Civility, and Judicial Conduct (7th ed. Matthew Bender & Co.), by Frank Rosenblatt, Jonathan Potter, Jocelyn Stewart, and the Editor. Readers of Global Military Justice Reform may find this excerpt from the Foreword of interest:

    Since the publication of the first edition of this book, the number of divergent sets of rules emanating from the four small military jurisdictions and the military commissions has, most unfortunately, continued to grow. The sheer size of this compendium is clear and convincing evidence that the proliferation of rules has become excessive and indefensible. As in the past, and remaining optimists, we hope the current edition will spark efforts to reverse that process and that it will lead to greater uniformity, in keeping with the spirit of the Uniform Code of Military Justice. This would be a good time for such efforts, given the many changes wrought by the Military Justice Act of 2016, the promulgation of an updated Manual for Courts-Martial in 2019, and the likelihood of significant corresponding changes in the rules of the Court of Appeals for the Armed Forces in the next year or two. The many challenges the military justice and military commissions systems have faced as a result of the COVID-19 pandemic may lead to further changes of a more permanent nature than the flurry of ad hoc issuances in the first months of 2020.

Wednesday, August 25, 2021

Stop the presses!

The delightful clink of champagne flutes was heard just now in the glass-enclosed newsroom high above Global Military Justice Reform Plaza as we celebrate . . . drum roll . . . our one-millionth hit. Let's put down our glasses long enough to run the numbers:

Hits, 1,000,000
Jurisdictions, 191
Posts, 6234
Comments, 934
Town Halls, 18
Contributors, 26
Editor, 1

Global Military Justice Reform was launched on January 12, 2014.

Many thanks to the contributors, commenters, readers, public officials, and scholars around the world who have carried forward the task of military justice law reform.

Tuesday, August 24, 2021

Military justice bookshelf

Dave Philipps (left) of The New York Times has written a book about the case of (retired) Navy SEAL Edward R. Gallagher, titled Alpha: Eddie Gallagher and the War for the Soul of the Navy SEALS. Seth Combs reviews it here for The San Diego Union-Tribune. Excerpt:

“It wasn’t that long ago where if you asked someone what they thought of the SEALs, I think unequivocally they would have thought it was a very positive organization,” Philipps says. “Real professionals. And now I think that’s a lot less clear. I think that Eddie Gallagher is now one of the few SEALs people can name, and even if they have strong opinions either way, both of them are pretty problematic for the organization.”

Colonel, you might want to do some reading before going on camera

For a blazing example of legal ignorance, consider the suggestion by a retired British Army officer (who once commanded UK forces in Afghanistan) that President Joseph R. Biden should be court-martialed. H/T to Fox News for spreading the word. Nice going, colonel.

Winds of reform in South Korea

The Republic of Korea's National Assembly is proceeding with legislation that would make major reforms in the military justice system. According to this report:

[T]he National Assembly's Legislation and Judiciary Committee passed a revision of the Military Court Act, which requires military sexual offenses to be tried in civilian courts rather than in military courts.

The legal revision has been pushed amid criticism that the current military law system, in which investigations, prosecutions and trials are all conducted within the military organization, neglects the protection of service member victims.

In addition:

The revision also mandates that civilian courts be additionally responsible for dealing with the death of a soldier killed in non-military crimes and crimes committed before enlistment, for instance.

Is this a proper use of military trial?

A military court in Somalia has convicted a civilian charged with having been a money-launderer for IS-Somalia, sentencing him to 15 years' confinement. Details here.

Human rights jurisprudence strongly discourages the trial of civilians by military courts.

Monday, August 23, 2021

Of trials and prizes

Remember former Suriname president Dési Bouterse? He's awaiting the imminent outcome of the appeal of his murder conviction by a military court. Meanwhile, Astrid Roemer, an author who has spoken up in his defense, is due to receive a big literary prize in October. She'll get the prize, but it won't be handed to her by King Philippe of Belgium, judging by this story. 

Racial bias and military justice reform

Is American military justice administered in an unbiased fashion? This National Public Radio piece by Daniel Lam examines this and related questions. Excerpt:

Army veteran and chair of the Black Veterans Empowerment Council Victor LaGroon, who is Black, says seeing the disparate treatment of a soldier of color early in his military career put him on guard, even in his own unit.

After basic training and advanced individual training, LaGroon was at Fort Polk in Vernon Parish, La. in 2004 when he witnessed a white superior discipline a Latino soldier for being late. A white soldier showed up even more tardy, and received no punishment. LaGroon says that after the incident, other soldiers discussed what they had witnessed and concluded that the junior white soldier was not disciplined because both he and their superior were white.

"Now, whether that's true or not, that's the perception and the perception is the reality," LaGroon says. "It's what I took from it. It's what others around me of different races took from it."

LaGroon says that early exposure to inequality left a lasting impact on his next two years in the Army before he medically retired in 2006. He says the initial incident made him cautious to avoid situations where he could be subjected to a superior's biased perception of him because it could have cost him his security clearance and his career. When working with a superior who has a reputation of applying unequal discipline, LaGroon says that soldiers are left to question, "How fair are you? How biased are you? How much can I trust you?"

Sunday, August 22, 2021

Law clerk to the clerk of court

The U.S. Court of Appeals for the Armed Forces is in the market for a law student to be the law clerk to the Clerk of the Court. The job announcement can be found here.

Saturday, August 21, 2021

How much judicial experience can one get in 24 months?

If you have been on the bench only 14 months, how much more experience do a few extra trials give you? Apparently, a lot.

An Air Force judge who had been considered too inexperienced last year to oversee the trial of five prisoners at Guantánamo Bay who are accused of plotting the attacks of Sept. 11, 2001, was named on Friday to preside in the case.

In October, Col. Matthew N. McCall was chosen as the judge for the death penalty case involving Khalid Shaikh Mohammed, but his name was withdrawn after prosecutors protested. Under the rules for military commissions, they said, he had not yet served for two years as a military judge, a prerequisite for a judge at the war court. He passed that milestone last month.

According to Air Force judiciary records, Col. McCall has presided in several sexual assaults and drug-related courts-martial of service members.

More reported here

In 2021, Col McCall has sat as judge in four courts-martial. (I did not count for last year.)

  • One was a sexual assault and assault case where the enlisted members (jury) acquitted.
  • One was a sex offense in which the members convicted and gave a reprimand and one pay grade reduction.
  • Another was a drug case where the enlisted members acquitted.
  • In the fourth, it looks like he was the arraignment and motions judge.

In 2021, Col McCall shows as having three courts-martial pending.

So, not counting last year, his current experience is four completed courts-martial.

It would appear the assignment is not based on "experience" as the article alludes but time on the bench, two different but complementary qualifiers. This is not an adverse reflection on Col McCall as a lawyer or a judge--rather, it says a lot about the military commissions. As well as any public reaction to the various difficulties over the years with trial judges, beginning with the Spath issue.

As an aside, I was at Gitmo a couple of weeks ago as an observer for NIMJ in the Kahn case. The tents and other modular housing are progressing as is the addition of a new courtroom. 

Stand by for a big announcement

In a few days there'll be big news from the glass-enclosed newsroom high above Global Military Justice Reform Plaza. Stay tuned.

How extraordinary

On Monday, an Ordinary Court-Martial will convene at St. Ann's Fort in Barbados to try a member of the Barbados Defence Force. The Defence Act 1979 follows the old British model and, if the country were subject to the European Court of Human Rights, the system would unquestionably be found "non-compliant." 

Will Private Raheem Reeves's attorney challenge the procedures, setting the stage for appellate review by the Court of Appeal and the Caribbean Court of Justice? Barbados is a party to the First Optional Protocol to the International Covenant on Civil and Political Rights, so an individual complaint could also be submitted to the UN Human Rights Committee.

Jamaica's military justice system is also non-compliant. The Privy Council still has jurisdiction over appeals from Jamaica.

Friday, August 20, 2021

No criminal charges filed in mishandled Wisconsin National Guard cases

The Wisconsin Department of Justice completed its review of 33 sexual assault cases from 2009-2019, stemming from the Wisconsin National Guard's botched handling of the initial investigation. A scathing report from the National Guard Bureau had found deficiencies, among other things, with how the Wisconsin National Guard investigated sexual assault and harassments complaints. The Wisconsin Department of Justice did not have the power to prosecute any of the cases, so after their investigation, the cases were referred to local district attorneys, who declined to prosecute. 

State military justice

The National Institute of Military Justice has created a web page with links to state and territorial codes of military justice. This is a frequently-overlooked aspect of American military justice. Perhaps the easy availability of the source materials will prompt additional legislative and academy consideration.

Suggestion for a worthwhile follow-on project: collect all decisions concerning state courts-martial and nonjudicial punishment. Some states have their own courts of military appeals; others rely on the usual civilian courts for appellate review.

H/T to CAAFlog for posting about the new NIMJ page.

Wednesday, August 18, 2021

Not military justice, but . . .

The timely August 2021 report of the Special Inspector General for Afghanistan Reconstruction (SIGAR), What We Need to Learn: Lessons from Twenty Years of Afghanistan Reconstruction, is available here.

Central Legal Staff job announcement

The U.S. Court of Appeals for the Armed Forces is seeking applicants for a staff attorney position on the Central Legal Staff. According to the announcement, CLS staff attorneys perform "a complete de novo review" of records of trial.

Tuesday, August 17, 2021

Judicial tenure

An April 20, 2020 report on a visit to Uzbekistan by Diego García-Sayán, the UN Special Rapporteur on the Independence of Judges and Lawyers, includes the following recommendation on security of judicial tenure:

104. The system of two temporary appointments before achieving a lifelong appointment should be reconsidered, since it exposes judges to the risk of undue pressure and interferences during the first 15 years in office. While moving towards life appointment, the Special Rapporteur recommends limiting temporary appointments to a single initial term of office, possibly for 10 years.

The Special Rapporteur's mandate includes military as well as civilian tribunals.

In a report on a 2017 visit to Poland, Sr. García-Sayán questioned a provision that would have retired all sitting judges of the country's Military Chamber.

Sunday, August 15, 2021

Admiral, is that your signature?

Donald D. Bramlett has been convicted of failing to register as a sex offender based on a court-martial conviction and making and using a false document. His defense: that his court-martial had been overturned. The proof: a letter signed--he claimed--by the Judge Advocate General of the Navy (and more recently Under Secretary of the Army).

Assistant U.S. Attorney: "Call retired Rear Admiral James E. McPherson to the stand" (or, as we say, words to that effect).

Click here to see what happened next.

Saturday, August 14, 2021

Comments policy reminder

The Editor wishes to remind readers that, while comments are most welcome, they will not be posted on the site unless the commenter's name is provided. Thanks for understanding, and please do comment.

Friday, August 13, 2021

Indonesian military kicks out soldier, sentences him to prison for homosexuality

An Indonesian servicemember was sentenced to 7 months in prison for having sex with another man. He was also kicked out of the service. More details are in this Quebec Journal piece, that Google will helpfully translate for the non-Francophones. 

The article clarifies that outside of the province of Aceh, homosexuality is legal in Indonesia, even though the military prohibits it in the ranks. I'm not aware of a compendium of military regulations for countries that criminalize homosexuality. But Human Rights Watch has compiled a list of countries that have outlawed homosexual relations among the civilian population.  

Thursday, August 12, 2021

Chief of the Defence Staff (CDS) placed on indeterminate administrative leave


Admiral Arthur Gerard McDonald, CMM, MSM, CD, Chief of the Defence Staff
Admiral Arthur Gerard McDonald, CMM, MSM, CD
Chief of the Defence Staff
Canadian Armed Forces 

The Chief of the Defence Staff, Admiral Art McDonald,  served as CDS from January 14 until February 24, 2021 when he voluntarily stepped aside pending a military police investigation conducted by the Canadian Forces National Investigation Service (CFNIS). 

The investigation was started following a complaint filed by Lieutenant (Navy) Heather MacDonald, a combat systems engineer in the Royal Canadian Navy, allegedly about "unwanted touching" during a reception that  took place in July 2010 onboard HMCS Montréal while alongside in Nuuk, Greenland 

On February 25, 2021, the Commander of the Army, Lieutenant-General (LGen) Wayne Eyre was appointed as acting CDS. LGen Eyre has been serving  uninterrupted in this role since then. 

On Friday August 13, 2021, LGen Eyere was promoted by Her Excellency the Governor General to the rank of General.

CFNIS investigation

It took nearly seven months for the CFNIS to conduct their investigation.  On the late afternoon of Friday, August 6, 2021, the CFNIS announced that their investigation  . . . did not reveal evidence to support the laying of charges under either the Code of Service Discipline or the Criminal Code of Canada.

Unexpectedly, on Wednesday, August 11, 2021, lawyers for Admiral McDonald [Messrs Michael Edelson and LtCol (retired) Rory Fowler] released a two-page statement to the media. At its core, the statement announced the following:

 “After consultation with his counsel, Admiral Art McDonald has decided to return to his duties and functions immediately.                [My emphasis]
Given that it was his decision to step aside, it is now his decision - indeed obligation - to return to his duties.

A copy of that statement from counsel will be made available on demand.

Admiral McDonald's decision to return to duty is immediately  rebuffed by government

Also on Wednesday, August 11, 2021, the Privy Council Office (PCO), which advises Prime Minister Justin Trudeau, released a statement pointing out that until further notice LGen Eyre will remain in his role as acting Chief of the Defence Staff. 

Later that same day, the Minister of National Defence (MND), Harjit Sajjan, offered the comment that “the position of chief of the defence staff must always uphold the highest standard within the Canadian Armed Forces”. He went on to add that "Canadians and the military have been well served by the Acting CDS, LGen Eyre."

CDS is placed on administrative leave and will be marking time till the Fall 2021

On Thursday, August 12, 2021, the MND sternly announced that Admiral McDonald has now been placed on “administrative leave” and that he will not immediately return to his job as the CDS. 

To give legal force to that decision, the Government also approved an Order-in-Council (OIC). 

  • An OIC is a legal instrument made by the Governor in Council (Cabinet) on the recommendation of the responsible Minister of the Crown.
  • It takes legal effect only when approved and signed by Her Excellency the Governor General.



Black letter law. The Prime Minister has the ultimate responsibility for appointing, re-instating or terminating the person acting as the CDS.

The Facts. Admiral McDonald may not have been given a red light by the Prime Minister but, at a minimum, he has been shown a bright 'yellow light."  This means that Admiral McDonald will only be able to exercise his duties as the CDS, if and when the Prime Minister gives him a "green light" to resume his duties as the CDS.

On Sunday, August 15, 2021 a General Election was called for September 20, 2021.  A formal decision on the fate of Admiral McDonald will likely not be made until a new Government assumed office and a new Cabinet is thereafter formed in the Fall.  In the meanwhile,  Admiral McDonald will be "marking time".

Next government will need to set the bar high

The individual who next will be given the 'baton' as the CDS would need to have the required high ‘moral authority’ to be trusted, from the get go, by his political masters, the general public as well as the military rank and file [and military families] to permit him or her to carry the torch forward for the eradication of sexual harassment and violence in the armed forces. 


So you want to fight taking the vaccine, eh?

Prof. Brenner Fissell and Cdr. (ret) Phil Cave write about legal issues surrounding vaccination for COVID-19 here on Military.com. Excerpt:

Service members should be aware of regulations and policy in place that allows them to first seek an exemption on medical or religious grounds. Failure to use the exemption request process is part of the reason Monifa Sterling got in trouble.

Concurrent jurisdiction cases in Liberia

What to do if an accusation against a member of the armed forces is subject to prosecution by both military and civilian courts? We learn from this article that in Liberia a memorandum of understanding between the Ministries of National Defense and Justice provides for civilian prosecution when the victim is a civilian.

Tuesday, August 10, 2021

"Bizarre and unjust" discrimination against military accuseds

In addition to being shortchanged when it comes to access to the Supreme Court, it turns out that military personnel also are treated worse than civilian federal and state criminal defendants with respect to post-conviction DNA testing. In Hubbard v. United States, No. 20-16094 (9th Cir. Aug. 10, 2021) (per curiam), the U.S. Court of Appeals held that the Innocence Protection Act of 2004 does not apply to persons convicted by courts-martial. A concurring opinion by Circuit Judge Michelle T. Friedland, in which the other two judges on the panel joined, stated:

          The IPA’s text creates the bizarre and unjust result that servicemembers convicted by courts-martial are less able to obtain DNA testing than other categories of prisoners, federal or state. See Kerry Abrams & Brandon L. Garrett, DNA and Distrust, 91 Notre Dame L. Rev. 757, 776 (2015) (“Today, all fifty states have enacted statutes providing access to DNA and post-conviction relief.”); Samuel R. Wiseman, Waiving Innocence, 96 Minn. L. Rev. 952, 954 (2012) (“DNA has provoked a small revolution in criminal procedure, causing almost every state legislature, as well as Congress, to rethink well-established notions . . . to allow for post-conviction testing and relief.” (footnotes omitted)). This disparity is entirely inconsistent with the respect usually given to veterans. I urge Congress to remedy this unfairness by amending the IPA to explicitly provide servicemembers convicted by courts-martial the same avenues for post-conviction DNA testing afforded to other prisoners.

Editor's Note: cc Senate and House Judiciary Committees 

Which arm?

COVID vaccinations are coming to the U.S. armed forces, like it or not. Politico has this story. Global Military Justice Reform contributor Phil Cave has collected useful sources over at CAAFlog.

Query: were there Royal Navy sailors who refused to eat limes despite the danger of contracting scurvy?

Monday, August 9, 2021

A steal at £2.25 million

The former Lambeth home of Vice-Admiral William Bligh (1754-1817), sometime Governor of New South Wales and captain of HMS Bounty, is for sale. Any takers? For an interesting Australian video with descendants of Bligh and mutineer Fletcher Christian, catch this.

Saturday, August 7, 2021

"An interesting case"

Stand by for litigation challenging any military order to submit to COVID-19 vaccination. Thomas Gnau has the story here in the Springfield News-Sun

Anthrax is not contagious, COVID-19 is. So how pertinent is the anthrax case law?