Thursday, September 30, 2021
International Military Justice Forum
Department of Serendipity
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?
International Society of Military Sciences -- Symposium 11 to 14 October 2021
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 (rory@roryfowlerlaw.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
He's in the brig. Now what?
A focused Military Law Review edition
Vol 229(2) from 2021 is focused on Nuremberg.
Fred L. Borch III
Colonel Sean T. McGarry
The Nuremberg Military Tribunals: A Short History
Fred L. Borch III
German Justice on Trial: The Justice Case
William F. Meinecke Jr.
Individual Criminal Responsibility for War Crimes
Geoffrey S. Corn
“Smoothing Out” the IMT Judgment: The Legal Legacy of the Twelve Subsequent Military Tribunals
Gary D. Solis
Andrea Joy Harrison
Nuremburg and the Role(s) of Accountability in the Law of Armed Conflict
Thomas B. Nachbar
The Significance of the Nuremberg International Military Tribunals on the Practice of Military Law
Lieutenant General Charles N. Pede
An interesting twist
So reports, The NEWS Minute, Sept. 28, 2021.
Monday, September 27, 2021
Town Hall 20: A View From the Bench (A Conversation With Military Judges), Monday, Oct. 4, 2:00 p.m. (East Coast US)
Sunday, September 26, 2021
US Marines allow Sikh to wear a turban, sometimes
The New York Times this morning covered the story of First Lt. Sukhbir Toor, 26, the first Marine permitted to wear a turban with his uniform --sometimes. Sikh troops have been permitted to wear turbans in uniform in the U.K., Australia and Canada and in other branches of the U.S. military, but it is a first in the 246-year history of the U.S. Marines. Nearly 100 Sikhs serve in the Army and Air Force wearing full beards and turbans.
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.
Bookshelf Notes
Thursday, September 23, 2021
COVID-19 and military justice (U.S.)
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.
DoD moves to attack sexual assault
foundational investments to support sexual assault accountability, prevention programs, healthy command climates and quality victim care.
. . .
"[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."
. . .
"[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
Kicking the torture can down the road
One wonders whether, in the year 2021, it serves the public interest to continue kicking this can down the road.
Sunday, September 19, 2021
Deserters in South Korea
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.
He's not going quietly
Accountability for war crimes in U.S. courts
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
What is the real source of outrage about General Vance (retired)?
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)?
Canadian military justice system in trouble again
The Global news team asked the Defence Department "why the probe into any possible military service violations ended on Aug. 6 with no charges," and a military police spokesperson spoke from the report of the Third Independent Review of the military justice system by former Supreme Court justice Morris Fish. Justice Fish warned it was "legally impossible" under the current rules to try someone of Vance's rank in the military system.
Retired Chief Military Judge Colonel Mario Dutil was alleged to have had an inappropriate relationship and was charged. What followed was a series of circumstances that made the Canadian military's Judge Advocate General organization appear to be hopelessly chaotic and incompetent as they unsuccessfully tried to subject the Colonel to a court martial. He was charged on 25 January 2018; in February 2018, Lieutenant-Colonel Mark Poland was appointed Special Prosecutor, and four months later, in June 2018, Lt-Col Poland advanced additional charges against Dutil. The Deputy Chief Military Judge, Lieutenant-Colonel Louis Vincent d'Auteuil recused himself as the presiding judge in the court martial and refused to assign the matter to another judge.
Now-retired Colonel Bruce MacGregor, formerly Director of Military Prosecution, applied to the Federal Court of Canada for a judicial review of the Deputy Chief Military Judge's refusal to reassign the court martial to another military judge, but the Federal Court determined that Lt-Col d'Auteuil's position was reasonable and declined to accede to the application of the Director of Military Prosecution.
The case collapsed.
Colonel MacGregor later said "All members of the Canadian Armed Forces, regardless of rank or appointment, are held to the same, highest standard of conduct. In this specific case, alleged wrongdoing was reported and investigated by proper authorities, charges were laid and moved forward in accordance with the law."
But they were moved forward unsuccessfully.
On 21 July 2011, Lt-Col d'Auteuil presided over previous court martial in which Brigadier-General J.B.D. Ménard was charged with an offence under section 129 of the National Defence Act, conduct to the prejudice of good order and discipline, for an inappropriate relationship while the Canadian commander in Afghanistan. He was fined $7,000 and reduced in rank to colonel.
Launching a court martial against Brig-Gen Ménard and the subsequent inability to address the conduct of two other senior officers does not conform to Colonel MacGregor's statement that "All members of the Canadian Armed Forces, regardless of rank or appointment, are held to the same, highest standard of conduct."
This suggests that it may be time to quickly relegate the Canadian Forces National Investigation Service, Military Police's investigatory arm, and the Canadian military justice system to the dustbin of history and take a different approach to military justice. Those in charge are simply unable to meet their taxpayer-financed responsibilities for which they are staffed, funded and equipped to manage.
What if the accused is a top general?
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.