Thursday, September 30, 2021
No. 76: Service of State Employees as Part-Time United States Magistrate Judges
This opinion considers the propriety of appointing state or local public defenders or prosecutors as part-time United States Magistrate Judges.
The Committee advises that it would be inappropriate to appoint as part-time United States Magistrate Judges persons who are simultaneously serving as state or local public defenders or prosecutors. Likewise, it would be inappropriate for a part-time United States Magistrate Judge to serve as a state or local public defender or prosecutor.
The Judicial Conference has adopted Conflict-of-Interest Rules for Part-time Magistrate Judges. See Guide to Judiciary Policy, Vol. 2C, § 1110. Rule 3 provides that a part-time magistrate judge may appear as counsel in criminal actions in a state court. That provision relates to appearances as private counsel for the defendant and is permissible so long as it does not interfere with the performance of duty as a part-time magistrate judge.
Appearances in court of a part-time magistrate judge as a representative of the state or local government, whether as prosecutor or public defender, implicates two Canons of the Code of Conduct for United States Judges: Canon 1, that a judge should uphold the independence of the judiciary, and Canon 2, that a judge should avoid impropriety and the appearance of impropriety. Dual employment of the same person in the federal and in state or local judicial systems would be in conflict with the intent of these canons.
The military justice system is not included in the Judicial Conference of the United States, so the Committee's opinion -- one of many -- is not directly binding on military trial and appellate judges. Still, one must assume that it would be something those responsible for the administration of military justice (the TJAGs, the Joint Service Committee, the Chief Judges of the CCAs, the Chief Trial Judges, and less directly, the CAAF Judges) would heed unless there was a compelling basis for military justice exceptionalism on the question presented. Is there? After all, the services' judicial conduct rules closely echo the Code of Conduct for United States Judges.
Given Advisory Opinion 76, should Reserve Component (RC) judge advocates who are state prosecutors or public defenders be assigned as general or special court-martial military judges, CCA judges, or military magistrates? What about RC judge advocates who are Assistant U.S. Attorneys, Main Justice attorneys, or federal defenders?
Royal Military College of Canada (RMC) will be hosting a Symposium for the International Society of Military Sciences from 11 to 14 October 2021. More information is available via this link. The theme of this year's conference is 'Resilience, Cohesion, Disruption'.
Working Group 5 - Military Law and Ethics, may be of interest to the Global Military Justice Reform community. In particular, there will be a Round Table discussion on Military Justice Reform on Wednesday, 13 October 2021, from 1000 to 1130 hrs EST. There are also two sessions for the Military Law and Ethics Working Group: Tuesday 12 October 2021, 1500 to 1630 hrs EST and 1800 to 1930 hrs EST.
As a means of encouraging attendance for this Round Table Discussion, Dr. David Last, from RMC, the Program Chair and Secretary for the International Society of Military Sciences (ISMS), has indicated that they will waive the $75.00 conference fee for those who wish to attend the Round Table discussion on Military Justice Reform. Interested persons can contact Rory Fowler (email@example.com) prior to 8 October 2021, and provide their name and contact information, which will be forwarded to organizers.
Wednesday, September 29, 2021
Is criticism of others in the military a violation of discipline or does characterizing it as an offense amount to censorship?
In a 6 to 2 decision on 24 September 2021, the Colombian Constitutional Court, struck down a provision of the Code of Military Discipline that considered such criticism a "serious offense." In declaring the provision unconstitutional, the plenary of the Court pointed out that discipline is an essential condition for the existence of the Armed Forces and it is legitimate to characterize certain acts as offenses but within the limits of the Constitution.
Such limits include the principles of legality and precision (in characterizing the offense) which are derived from the fundamental guarantee of due process. This means that the behavior that comprises the disciplinary offense must be directed at censuring the public servant's failure to carry out his functions, because in no other way could the offense be considered substantively related to the conduct.
The plenary of the Court concluded that in this matter due process was violated because the concepts employed in the Military Discipline Code were ambiguous and vague and did not precisely identify the conduct deemed offensive, which broke the connection between the offense and the public servant's function which it was intended to protect.
The petitioner had argued that to punish all criticism would violate freedom of expression, conscience and information. Criticism of things that are done wrong leads to improvement in the best of cases and this is cut off when all criticism is prohibited.
Tuesday, September 28, 2021
So reports, The NEWS Minute, Sept. 28, 2021.
Monday, September 27, 2021
Sunday, September 26, 2021
His case demonstrates a conflict in fundamental values: the tradition of discipline and uniformity and the constitutional liberty of freedom to manifest one's religion. The Marine Corps has made the allowance only to a point. Lt. Toor can wear a turban in daily dress at normal duty stations, but he cannot do so while deployed to a conflict zone, or when in dress uniform at a ceremonial event, where the public would see it.
Lt. Toor grew up in the U.S. as a son of Indian immigrants and in the wake of 9/11. He knew that many Americans associated Sikhs with dangerous religious fanatics and by joining the military he wanted to change that. He shaved daily and wore a Marine Corps cap without complaint until he was selected for promotion to captain and then he made his formal request for a religious accommodation. It was decided that he would be allowed to wear a beard and turban except when deployed serving in a combat unit or performing ceremonial duties in dress uniform, which was effectively a denial since he is a combat arms officer. After he appealed the decision, the Marine Corps retreated somewhat on ordinary duty but not on the ceremonial duties and argued that the mere sight of a deviation from uniformity inherently hinders mission accomplishment. He has appealed the restrictive decision and has said he will sue the Marine Corps if he loses his appeal.
Thursday, September 23, 2021
Civilian visitors to the Courthouse are required to fill out and sign the Certification of Vaccination -- see link below. If a visitor declines to respond or is not fully vaccinated, that visitor must comply with the following safety protocols while inside the Courthouse:
(1) wear a mask regardless of the level of community transmission,
(2) physically distance, and
(3) provide proof of having received a negative COVID-19 test from within the previous 3 days.
. . .
"[Tier 1] consists of the most important elements in preventing sexual assault and sexual harassment and holding offenders accountable," Hicks said. "The preponderance of initiatives and resources are focused in our first tier. For instance, it contains three of our highest-priority recommendations, including the establishment of the offices of special-victim prosecutors, the creation of a full-time and specialized prevention workforce, and the implementation of full-time sexual assault response coordinators and sexual assault prevention and response victim advocate positions."
Note: the 2027 is not a typo. Also, ""Full implementation of the first tier must be completed by 2027; implementation of the full slate must be accomplished by 2030, according to the plan."
Tuesday, September 21, 2021
here about Monday's ruling by the U.S. Court of Military Commission Review dismissing a mandamus or prohibition petition that raised the question whether torture-derived evidence could ever be used in a military commission proceeding. The court ruled that the issue -- one that looms over other cases as well -- was not yet ripe for adjudication. At some point, this issue is going to have to be faced.
One wonders whether, in the year 2021, it serves the public interest to continue kicking this can down the road.
Sunday, September 19, 2021
I'm curious to see if D.P. addresses economic inequality in the show, as I've been interested in discussions about what drives people to volunteer for the United States military. I would have assumed there was some economic benefit for those at the bottom to compulsory service, as it would serve as an equalizer during that time of service. Some quick googling just now came up empty, but I've also assumed the military, at least the British and American, has historically been a way for some to move up in social caste. At the very least, I firmly believe that if you are a patriotic sort without a safety net of your own, the only avenue to an American socialist paradise of free health care and free college is the United States military. In any case, a new show to check out.
A [U.S] federal judge in Philadelphia ruled that a former Liberian military commander, Moses W. Thomas, who oversaw the massacre of hundreds of innocent civilians at a church during the country's civil war in 1990 can be held to account under U.S. law for the extrajudicial killings and torture.
The lawsuit said Thomas was in command as soldiers fired into the packed church from the front door and through windows, targeting those trying to escape.
Thomas was later promoted to head the country's defense intelligence service and emigrated to the United States in 2000.After the war, Thomas emigrated to the United States, worked at a restaurant and lived in Sharon Hill, Pennsylvania, a Philadelphia suburb. He went back to Liberia two years ago. His lawyer said Friday he now lives in the capital of Monrovia.
Saturday, September 18, 2021
Some of that reporting has been - shall we say - sensationalist in nature.
Some people have also bemoaned the state of the Code of Service Discipline - "Look", they cry, "it cannot even be used to prosecute the most senior member!"
But, if the Code of Service Discipline is intended to be used by the leadership of the Canadian Forces to maintain the discipline, efficiency, and morale of the armed forces, ought we expect that it would be used to prosecute the officers at the apex of the armed forces? If the Chief of the Defence Staff - a senior and experienced officer with significant public responsibilities - demonstrates bad judgement or unethical behaviour, ought our foremost concern be whether a mechanism can 're-instill the habit of obedience'? Or is the real issue whether that officer should be CDS?
The nature of recent reporting on this issue, and potential answers to those questions are offered here: What is the real source of outrage about General Vance (retired)?
Briefly stated, as currently constituted, the military justice system simply cannot try an officer with the rank of general. Why? A general court martial is composed of a military judge and a panel (jury) of five military members. Pointedly, the senior member of the panel must be an officer of or above the rank of the accused. In such an instance, the only possible candidate to preside a potential general court martial of [Gen. Jonathan] Vance would be Gen. Wayne Eyre.
In my considered opinion, the latter’s previous subordinate relationship to Vance, as well as his current appointment as acting chief of the defence staff, would likely disqualify him from serving as an independent and fair trier of facts to decide at trial on the guilt or innocence of Vance.
Moreover, because all military judges hold a rank that is subordinate to that of general, all military judges would face the same conundrum as Eyre. Simply put, it is most unlikely that a general court martial could be convened to try Vance.
Friday, September 17, 2021
here that the UN has withdrawn the entire Gabonese contingent from the Central African Republic (CAR) due to sex offenses. Excerpt:
Allegations of sexual crimes involving peacekeepers in CAR have been recurrent.
If the “alleged facts... are proven, the perpetrators will be brought before the military courts and judged with extreme rigour”, Gabon’s defence ministry said.
“Gabon has always demanded irreproachable and exemplary behaviour from its army, both on its territory and abroad.” The UN has struggled for years over allegations of sexual exploitation and abuse by UN peacekeepers around the world. Since 2010, it has posted 822 such allegations on its website.
By nationality, the peacekeepers with the most allegations against them since 2015 have been Cameroon, with 44 cases, South Africa (37), the Democratic Republic of Congo (32), Gabon (31) and the Republic of the Congo (26).
Venezuela is hereby awarded an Ansell.