Sunday, October 31, 2021
Tuesday, October 26, 2021
Monday, October 25, 2021
Sunday, October 24, 2021
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.
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.
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?
Saturday, October 23, 2021
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.
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?
Friday, October 22, 2021
Thursday, October 21, 2021
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.
The event will be available by Zoom at this link:
Table 2. Active Duty Military Justice Practitioners
Judge Advocates, by Armed Force
Military Justice Chief
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.
- 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.
- 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.
“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?
Wednesday, October 20, 2021
Administrative separation where members decline to dismiss an officer; independence of post-trial legal review
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.
Tuesday, October 19, 2021
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"?
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?
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.
Sunday, October 17, 2021
Saturday, October 16, 2021
[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 . . . "
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.
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.
Friday, October 15, 2021
Hosted by the International Committee of the Red Cross (ICRC), the 14th annual Senior Workshop on International Rules governing Military Operations (SWIRMO) will focus on current issues: urban warfare, partnered military operations, and influences on battlefield behaviour. Participants will also use a new video game simulation created by the ICRC that puts officers and soldiers in scenarios that resemble real-life where military objectives need to be balanced against the risk of civilian harm.
Thursday, October 14, 2021
Among the witnesses called by Scheller’s defense team were Rep. Louie Gohmert (R.-Tex.) and Rep. Marjorie Taylor Greene (R-Ga.), two of the most controversial members of Congress. They questioned why Scheller has been prosecuted for his actions when senior U.S. officials such as President [Joseph R.] Biden, Defense Secretary Lloyd Austin and Gen. Mark A. Milley, chairman of the Joint Chiefs, have not. Greene, under oath, called for the impeachment of Biden for his handling of Afghanistan and said her office has been flooded with calls in support of Scheller. She also accused U.S. troops who carried out a drone strike that killed civilians in the closing days of the United States’ withdrawal of “war crimes.”
This seems a very strange defense strategy in a very strange case.
Wednesday, October 13, 2021
Strictly speaking, this is not a matter that concerned the Code of Service Discipline and, consequently, is not a matter of 'military justice' as that term is defined by the Judge Advocate General of the Canadian Forces (and as the National Defence Act will define the term once section 2 of Bill C-77 comes into force). However, it does concern 'military justice' where that term is interpreted to include the application of statutory powers in a manner that affects the rights, interests, and privileges of members of the Canadian Forces, and it is related to a disciplinary investigation.
MGen Fortin had been seconded from the Canadian Forces to the Public Health Agency of Canada (PHAC) to co-ordinate vaccine delivery in response to the COVID-19 pandemic. In March 2021, a complainant reported what is characterized as an 'historic' complaint of sexual misconduct dating from a period when MGen Fortin was an Officer Cadet at Royal Military College St-Jean in the late 1980s. He was removed abruptly from his position with PHAC in May 2021, when news of the investigation leaked. That investigation eventually led to a charge of sexual assault pursuant to section 271 of the Criminal Code, which was laid under the civilian criminal justice system, and not under the Code of Service Discipline. That allegation has yet to be tested in court.
In his application for judicial review, MGen Fortin alleged that, on May 14, 2021, a decision was made by the Minister of Health, the Minster of National Defence, the Prime Minister of Canada, and the Clerk of the Privy Council to remove him from his position prior to the anticipated end date of 31 October 2021. He alleged that the decision was not made by the Acting Chief of the Defence Staff (A/CDS), (then) Lieutenant-General Wayne Eyre, who was the appropriate authority to make such a decision, but by political actors, and that the decision was prompted by a change in the “political calculus”.
As a result, MGen Fortin asserted that the CF grievance process was not the appropriate mechanism for him to seek redress, as the final authority in the process -- the Chief of the Defence Staff -- has no authority over the political actors who made the decision. In his application, MGen Fortin sought reinstatement in his position with PHAC, or a position commensurate with his rank. In the alternative, he asked the court to remit the matter to the A/CDS for re-determination.
However, in a 20-page judgment, Justice McDonald held that MGen Fortin was obliged to exhaust the 'adequate alternative remedy' presented by the CF grievance process, as he had failed to demonstrate that he could not obtain redress through that process.
MGen Fortin has until 12 November 2021 to file a Notice of Appeal, as of right, if he chooses to appeal the judgment of the Federal Court.