A new twist in Pakistan

Bad enough that Pakistan has used military courts to prosecute civilians. Consider this case, in which a military court convicted the son of a retired major general for writing a letter to the Chief of Army Staff suggesting that his term should not have been extended and that he should resign. This was deemed to be treasonous.

For more on the case, click here.

30 years of military justice: where are we now?

On Thursday, October 28, at 1:00 p.m., you can join the National Institute of Military Justice and the Georgetown University Law Center's Center on National Security and the Law for a webinar on military justice. The symposium marks the 30th anniversary of NIMJ's founding in 1991. Here's the link to register. And here's the program.

Keeping the pedal on the gas

Eight U.S. Senators -- four from each party -- have sent this strong letter to Secretary of Defense Lloyd J. Austin III, urging faster action on military justice reform. They are asking to be briefed by November 30, 2021.

You Bolshies you

"I have already adverted to the fact that the report concludes, following Col. Wigmore's letter, as you remember, that if you loosen up on this system of discipline, as you call it, you are bound to have bolshevism. That is the bugaboo now. There will never be a bit of reform or a bit of progressive legislation proposed but that the people who insist on being static will label it bolshevism."

Mr. Samuel T. Ansell, speaking to the Subcommittee on Military Affairs, United States Senate, August 20, 1919, on Establishment of Military Justice--Proposed Amendment of the Articles of War, at 293.

You can read more about the Ansell-Crowder controversy in a piece by Fred L. Borch.

Perhaps we may be forgiven for feeling a sense of déjà vu, or cognitive empathy, as we have our own experiences with military justice reform.

Town Hall 21: Legal Defense Funds--A Minefield

Global Military Justice Reform Town Hall 21 (Legal Defense Funds--A Minefield?)

Monday, November 1⋅9:00 – 10:30am

Join Zoom Meeting

Location:

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Portrait presentation

The U.S. Court of Appeals for the Armed Forces will celebrate the presentation of a portrait of Senior Judge (as he now is) Scott W. Stucky on November 18, 2021. Judge Stucky served from 2006 to 2021, including four years as the Court's 13th Chief Judge. He is the Court's 21st Judge, and one of eight current Senior Judges.

Sook Ching war crimes trials program, Oct. 28, 2021

ASIAN LEGAL HISTORY SEMINAR SERIES

Revisiting the ‘Sook Ching’ war crimes trials: community demands and the doing of justice

Speaker: Dr. Cheah W. L. (National University of Singapore)
Respondent: Dr. Kwong Chi Man (Hong Kong Baptist University)

In the immediate aftermath of WWII, the British military conducted hundreds of war crimes trials across Southeast Asia. Altogether 306 trials involving 920 defendants were held in Singapore, Malaya, Hong Kong, Burma, and Borneo. The informal and expedited nature of these military trials sets them apart from the Tokyo and Nuremberg trials as well as more legalistic contemporary international criminal law trials. Their implementation was facilitated by their informal and non-legalistic nature as many British trial personnel did not hold legal qualifications. Unlike present-day war crimes trials, these trials did not have law-making or expository ambitions. This presentation focuses on a set of trials referred to as the ‘Sook Ching’ trials, which dealt with the arbitrary massacre of Chinese residents suspected of being ‘hostile’ elements by Japanese soldiers across Southeast Asia during WWII. The ‘Sook Ching’ trials were subject to close public scrutiny, and the atrocities prosecuted continue to prominently feature in Southeast Asian intergenerational wartime memories. Like other British military trials in the region, these ‘Sook Ching’ trials were conducted pursuant to British military law which incorporated the laws of war. However, there was little discussion about positive law and its content in these trials. Instead of relying on specific legal provisions, trial actors examined questions of harm and responsibility by referring to moral and common-sense ideas. Trial transcripts and military records also show British military personnel struggling to accommodate the harsh demands of Chinese community leaders. This talk explores the tensions that arose as trial organisers sought to deal with the demands of victim communities. The talk will also discuss the public outreach and education efforts of the Singapore War Crimes Trials Project: https://www.singaporewarcrimestrials.com/
 
Date: Thursday 28th October, 2021
Time: 3:30-5:00
Please register: https://forms.gle/GchrDBkMD8m7scDh7  

Conveners
Dr. Michael Ng
Dr. Alastair McClure

All Welcome
Registration Required
Enquiries amcclure@hku.hk   or michaeln@hku.hk  

St. Crispin's Day

Tomorrow, October 25, being St. Crispin's Day, attention is invited to this remarkable miniseries version of The Speech.

H/T to Fran Morriss for the link.

Have you forgotten the text?

WESTMORLAND. O that we now had here

But one ten thousand of those men in England

That do no work to-day!

KING. What's he that wishes so?

My cousin, Westmorland? No, my fair cousin;

If we are mark'd to die, we are enough

To do our country loss; and if to live,

The fewer men, the greater share of honour.

God's will! I pray thee, wish not one man more.

By Jove, I am not covetous for gold,

Nor care I who doth feed upon my cost;

It yearns me not if men my garments wear;

Such outward things dwell not in my desires.

But if it be a sin to covet honour,

I am the most offending soul alive.

No, faith, my coz, wish not a man from England.

God's peace! I would not lose so great an honour

As one man more methinks would share from me

For the best hope I have. O, do not wish one more!

Rather proclaim it, Westmorland, through my host,

That he which hath no stomach to this fight,

Let him depart; his passport shall be made,

And crowns for convoy put into his purse;

We would not die in that man's company

That fears his fellowship to die with us.

This day is call'd the feast of Crispian.

He that outlives this day, and comes safe home,

Will stand a tip-toe when this day is nam'd,

And rouse him at the name of Crispian.

He that shall live this day, and see old age,

Will yearly on the vigil feast his neighbours,

And say "To-morrow is Saint Crispian."

Then will he strip his sleeve and show his scars,

And say "These wounds I had on Crispin's day."

Old men forget; yet all shall be forgot,

But he'll remember, with advantages,

What feats he did that day. Then shall our names,

Familiar in his mouth as household words—

Harry the King, Bedford and Exeter,

Warwick and Talbot, Salisbury and Gloucester—

Be in their flowing cups freshly rememb'red.

This story shall the good man teach his son;

And Crispin Crispian shall ne'er go by,

From this day to the ending of the world,

But we in it shall be rememberèd—

We few, we happy few, we band of brothers;

For he to-day that sheds his blood with me

Shall be my brother; be he ne'er so vile,

This day shall gentle his condition;

And gentlemen in England now a-bed

Shall think themselves accurs'd they were not here,

And hold their manhoods cheap whiles any speaks

That fought with us upon Saint Crispin's day.

Guess who won't be in the room where it happens?

Rebecca Kheel has written this excellent Military.com status report on the competing proposals for military justice reform. It's hard to see why it would not be better for Congress to consider the subject through freestanding legislation rather than in the context of the defense authorization. 

Meanwhile, the Defense Department is moving ahead with its own plan, implementation of which could take years. 

Why so long? President Harry S. Truman signed the UCMJ on May 5, 1950, and the measure, with a new all-services Manual for Courts-Martial, took effect less than 13 months later. 

Military courts continue to try civilians in Lebanon

Al Jazeera's Kareem Chehayeb reports here on the continuing use of military courts to suppress dissent in Lebanon. The issue has been debated for years. Why do things remain the same?

Sexual offenses--Australia

Sexual assault complaints made in the Australian Defence Force soared to 187 cases in 2020-21, with the majority of concerns raised over incidents of aggravated misconduct.

Said SBS News. 

The sexual assault allegations reported also show a sharp increase compared to previous figures of 160 in 2019-20, 166 in 2018-19 and 170 in 2017-18.

Actually, looking at their chart, the "soaring" should also be compared to 2015-16, where the highest number was 98.

John Blaxland, a professor of international security at the Australian National University, said while troubling the spike in reporting could be linked to greater willingness to come forward with complaints.

And, perhaps the willingness of command to take action on complaints?

Larrabee oral argument

Are members of the Fleet Marine Corps Reserve subject to court-martial jurisdiction? Click here for the audio of today's Larrabee hearing at the U.S. Court of Appeals for the District of Columbia Circuit.

Which prison would you prefer?

On November 5, 2020, a General Court Martial sentenced army Sergeant M.A. Lévesque, Royal 22e Regiment, to three months to be served in a military prison following his guilty plea for having committed the following offences during his deployment on operation PRESENCE from January 27 to May 31, 2019 in Dakar, Senegal.

• a)    Pointing  a firearm at another person without a lawful excuse contrary to section 87 of the Criminal Code; 
•   b)  Driving a military vehicle recklessly or in manner dangerous to any person contrary to section 111 of the National Defence Act (NDA) and; and,  
• c)     Having proffered racist comments and uttered threats contrary to section 129 ofthe NDA.

Sergeant Lévesque was released (discharged) on 19 August 2020. However, subsection 60(2) of NDA stipulates that every person subject to the Code of Service Discipline at the time of the commission of a service offence continues to be liable to be charged with and tried in respect to that offence under the Code of Service Discipline notwithstanding that the person may have, since the commission of the offence, ceased to be a member of the Armed Forces.

As a result Sgt Lévesque was tried by a General Court Martial – R. c. Levesque, 2020 CM 5014 which took place in November 2020. The court sentenced him to 3-month term of imprisonment in a military prison and reduced him in rank to the rank of Corporal. 

Corporal Lévesque appealed his sentence of imprisonment to be served in a military prison. 

He argued that the service prison where he will be sent is in Edmonton, Alberta would be very far from his home, whereas there is a civil prison in the Quebec region, where he currently lives, and where his young children also live. He also argued that he has not been a member of the Canadian Armed Forces for 13 months and feels that it would be very detrimental to him to find himself in a military environment again. He also submitted that the detention conditions in a service prison are much more restrictive than those in a civil prison.  

 Considering all of the circumstances, including the fact that the appellant has not been a member of the Canadian Armed Forces for over one year, his personal circumstances, and the Crown’s position at both the sentencing hearing and the appeal hearing, the Court Martial Appeal Court granted the appeal and ruled that that Corporal Lévesque will serve his sentence in a civil prison.

NIMJ/Georgetown Law Symposium

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.

Festivities begin at 1300, Washington, DC, time.

The event will be available by Zoom at this link:

https://georgetown.zoom.us/webinar/register/WN_r8fuO7-nSNemQAay4Wpq6Q

Congressional Research Service report on pending reform proposals

The Congressional Research Service recently issued this report on proposals to alter the disposition of offenses under the Uniform Code of Military Justice. Might it assist Congress if the report's table of military justice practitioners were expanded to take account of reservists?

Table 2. Active Duty Military Justice Practitioners

Judge Advocates, by Armed Force

Duty Position	Army	Navy	Marine Corps	Air Force	Coast Guard	Total
Defense Counsel	132	53	69	104	8	366
Trial Counsel	128a	45b	72	—	19	342
Military Justice Chief	58	8	41	76	1	184
Military Judge	25	12	12	20	3	72
Appellate Judge	6	5	3	10	3	27
Total	349	123	197	288	34	991

Source: CRS analysis of information provided by JAG legislative liaison officials, December 11, 2020.

Notes: A “trial counsel” is a prosecutor, and a “military justice chief” is a supervisory prosecutor. A “military judge” is a judge advocate who is detailed and designated under 10 U.S.C. §§826, 830. Air Force officials informed CRS that 67% of all the service’s judge advocates notionally are available to serve as trial counsels, but this general data could not be aligned with the specific data provided by other services.

1. Army officials informed CRS that the trial counsel number of 128 is for full-time prosecutors, but there are an additional 130 trial counsels who can prosecute cases as needed.
2. Navy officials informed CRS that the trial counsel number of 45 is for full-time prosecutors, but there are an additional 51 trial counsels who can prosecute cases as needed.

SANDF unveils electronic case management system

The South African National Defence Force's Electronic Case Management System is now operational. Details here, thanks to defenceWeb. Excerpt:

“The scope of ECMS,” [Col. John] Yarrow writes,” is extremely broad and designed to capture all military cases from first registration of offences by the six legal satellite offices to review of completed trials, including proceedings at the Court of Military Appeals”.

ECMS is sufficiently sophisticated to register cases involving multiple accused charged with multiple offences, even when charges “follow divergent paths to conclusion”. This includes preliminary investigation, trial and conviction or acquittal, referral to a civilian court, applications and decisions not to prosecute and “varied outcomes of the review process”.

ECMS is simple to operate but access is restricted to military legal practitioners (MLPs) with “read only” access available to key non-MLP personnel. On this list are chiefs of services and divisions, officers commanding level 3 and 4 force structure elements (FSEs) and domain staff officers.

Decisions of the Court of Military Appeals do not seem to be available online to the public. Perhaps this could be arranged?

Administrative separation where members decline to dismiss an officer; independence of post-trial legal review

In Howieson v. Chief of Army, 2021 DFDAT 1 (Austl. July 9, 2021), the Defence Force Discipline Appeal Tribunal of Australia quashed a conviction and ordered a new trial of the accused officer. After addressing the issues presented, the court added:

57    Though the reasons just given are sufficient to explain why we have made the orders mentioned, we consider ourselves duty bound to make the following additional observations.

58    One of the documents which, by reg 8(1)(b) of the Defence Force Discipline Appeals Regulation 2016 (Cth), the Registrar of Military Justice is obliged to transmit to the Tribunal’s Registrar is “a record of any review with respect to the proceedings of the court martial or Defence Force magistrate”. The reviewing officer’s report under s 154 of the DFDA is such a document. Such reports in no way bind the Tribunal but they can be of assistance in provoking thinking on the part of an appellant, a service chief respondent, and the Tribunal about legal issues or, as in the present case, for the summaries of evidence they may offer. Their transmission to the Tribunal, and thus the Tribunal’s scrutiny of them, is not coincidental but intended by the Governor-General in Council in making this regulation pursuant to the Appeals Act.

59    In the case of a conviction by a court martial or Defence Force magistrate, such a report must be prepared by a legal officer appointed by instrument in writing by the Chief of the Defence Force or a service chief on the recommendation of the Judge Advocate General: s 154(1)(a) DFDA. Subject to any contrary opinion which may be expressed by the Judge Advocate General or a Deputy Judge Advocate General upon any further review, a reviewing authority is bound by any opinion on a question of law set out in a report obtained under s 154: ss 154(2) and 154(4), DFDA.

60    The report made by a reviewing officer or the Judge Advocate General or a Deputy Judge Advocate General under s 154 of the DFDA in respect of a conviction and sentence is intended to be an independent, internal opinion in respect of that conviction and sentence. Unfortunately, the report provided in this case, which was otherwise comprehensive, careful and balanced, did not confine itself to expressing such an opinion, but also offered policy advice to the reviewing authority in respect of the taking of administrative action against CAPT [William Michael] Howieson regardless of the outcome of the disciplinary proceedings. The administrative action contemplated was apparently early termination of his service pursuant to reg 24 of the Defence Regulation 2016 (Cth). This policy advice, with respect, ought not to have been furnished by the reviewing officer.

61    Under the DFDA, it is no part of the functions of the Judge Advocate General or a s 154 reviewing officer to furnish such policy advice to the Chief of the Defence Force, a service chief or any reviewing authority. Those officers must look to other advisers for such policy advice. The author of a s 154 report must not just be independent but be seen to be independent. Presuming to furnish such policy advice is antithetical to that independence.

62    In a case where a court martial panel has deliberately chosen not to impose a sentence of dismissal from the Australian Defence Force on a defendant and, instead, imposed a sentence in which an opportunity for rehabilitation is an element, the taking of such administrative action could be regarded as undermining the court martial process. We otherwise expressly refrain, because it is no part of the Tribunal’s function, from expressing any view about the merits, if any, of the policy advice furnished in the s 154 report. However, having noted that it has been given, we do consider ourselves duty bound to draw the report and our observations concerning it to the attention of the Judge Advocate General. We shall therefore give a direction to the Registrar to furnish the Judge Advocate General with a copy of these reasons and that report.

Judge Ryan speaks at UVA FedSoc Chapter

Senior Judge Margaret A. Ryan of the U.S. Court of Appeals for the Armed Forces was interviewed on October 7, 2021 before the University of Virginia School of Law chapter of the Federalist Society. The transcript can be found here. One notable quote if you were wondering what is happening with the current vacancy on the Court of Appeals: "Right now, actually four judges are sitting in every case and a senior judge is sitting in because they have not nominated a successor for Chief Judge [Scott W.] Stucky. And I understand that Senator [Josh] Hawley has said that he won't -- that he's not going to vote on anyone for the Department of Defense until General [Mark A.] Milley and the SecDef resign, or something like that. So Senator Hawley -- this is actually not the military. It's civilian oversight of the military justice system, and its disruptive. It's disruptive to have senior judges sit in. . . . "

So you want to be Assistant Secretary of Defense?

Word & Way's Brian Kaylor and Beau Underwood have this disturbing account of a Senate hearing into the nomination of a distinguished West Point alumna to be Assistant Secretary of Defense (Manpower and Reserve Affairs). 

Is there a "war on military chaplains"?

Why was this case tried in a Russian military court?

Caucasian Knot reports:

The Military Court of Appeal has upheld the sentences to four residents of the Agul District of Dagestan convicted on charges of involvement in a terrorist community and an illegal armed formation (IAF).

The "Caucasian Knot" has reported that on May 31, 2021, the Southern District Military Court in Rostov-on-Don sentenced Ramazan Tagriverdiev, Ramazan Kurbanov, Rakhmatula Magomedov and Gadad Ramazanov, residents of the Agul District of Dagestan, to prison terms from 10 to 18 years at a maximum security colony. The fifth defendant, Ali Aliev, accused of plotting the murder of the head of the Agul District, was acquitted. The Court ignored the defendants' statements that their confessions at the initial investigation were obtained under pressure, their advocates assert.

Quaere: will the defendants file a complaint with the European Court of Human Rights? 

Another lawsuit challenging mandatory COVID-19 vaccination

The complaint in Doe v. Austin (N.D. Fla.) can be found here.

And here's the complaint in Navy SEAL 1 v. Biden (M.D. Fla.).

Tunisia's misuse of military courts

MENA reports here on Tunisia's continuing misuse of military to prosecute civilians. Excerpt:

The military justice code, which was established after Mr [Habib] Bourguiba led the country to independence in 1957, grants military courts the right to judge civilians on crimes including public insult of “the flag or the army” and “criticism of the actions ... of army officials which undermines their dignity”.

While they underwent a partial reform following Tunisia’s uprising, military courts are still controlled by the executive branch as the President has exclusive say over the appointment of judges and prosecutors in the courts.

P.S. Did you know that under some circumstances, Spanish courts-martial may also try civilians? Consider this summary of the Spanish system.

Posse Comitatus Act explainer

 The Brennan Center has posted this explainer on the Posse Comitatus Act.

Courthouse v. funhouse

Every once in a while, here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza, something comes across the screen that makes you think you've entered a funhouse. So it was with this gem from the Scheller trial, thanks to The Business Insider:

[Rep. Louis] Gohmert [R-TX] slammed [General Mark A.] Milley, saying that he disrespected President [Donald J.] Trump during the Lafayette Square controversy in Washington in June 2020.

"Earth to Louie . . . "

South Korea's sexual assault problem

The New York Times has a lengthy article about the suicide of a woman in the South Korean Air Force who took her own life when superiors ignored her complaint about being sexually assaulted. The issues resonate with those the U.S. has been attempting to confront for years. Excerpt:

South Korean society has long understood the need to address widespread gender bias, but women in the armed forces are seen as particularly vulnerable. The country’s 550,000-member military is considered one of its most hierarchical, male-dominant and paternalistic institutions, and former soldiers say women are treated as playthings rather than colleagues.

LtCol Scheller beats the pretrial

A military judge yesterday sentenced LtCol Stuart Scheller of the U.S. Marine Corps to a reprimand and forfeiture of $5,000. Jeff Schogol reports for Task & Purpose:

The military judge gave Scheller a sentence that was lighter than the maximum punishment allowed under an agreement reached with prosecutors, which would have required Scheller to forfeit two-thirds of one month’s pay for 12 months. The judge said in open court that he would have docked Scheller’s pay for two months, but he gave the Marine lieutenant colonel credit for time he had served in the brig.