Thursday, March 31, 2022

Observations on the guilty plea by General Jonathan Vance (retired)

There has been a fair bit of commentary regarding the guilty plea by General Jonathan Vance (retired) to the sole charge of obstructing justice (contrary to section 139(2) of the Criminal Code), and the consequent conditional discharge (in lieu of a sentence and the conviction that would arise therefrom).

Global Military Justice Reform contributor Rory Fowler offers some observations in his blog on the nature of the guilty plea, the joint submission for the disposition of the charge, and some of the consequent commentary published by national news media:

 General Vance (retired) Pleads Guilty to Obstructing Justice

CAAF 4-judge-bench denials of petitions for review since August 1, 2021 [updated]

through March 29, 2022.

Retired General Jonathan Vance pleads guilty to a charge of obstruction of justice

March 31, 2022. New York Times reports on former Chief of the Defence Staff, General Jonathan Vance pleading guilty to a criminal charge of obstruction of justice in connecting with a Canadian military police investigations into allegations that he engaged in sexual misconduct with one of his subordinates while in office.

"After Mr. Vance entered a guilty plea before the Ontario Court of Justice, he was granted a conditional discharge which will spare him a criminal record on those charges. He was sentenced to 12 months probation and 80 hours of community service."

Crime victim rights in Canada

The headline reads,

Long-awaited victims’ rights for military coming into effect in June, says Lee Berthiaume in The Canadian Press, Wed., March 30, 2022.

At first glance there is a likely similarity with U.S. practice. See UCMJ art. 6b, 10 U.S.C. § 806b.

The new rights include providing access to information about their case as well as specially designated liaison officers who will help victims navigate the military justice system, and access to a complaint mechanism if they feel their rights have been violated.

Acting judge advocate general Col. Robin Holman said numerous regulations needed to be changed to reflect the rights named in the declaration, while consultations were held with victims’ groups to capture their perspectives.

Wednesday, March 30, 2022

Former Chief of the Defence Staff pleads guilty to obstructing justice

Today, General Jonathan Vance (retired), former Chief of the Defence Staff (CDS) of the Canadian Forces, pled guilty to a single count of 'obstructing justice' before a civil court of criminal jurisdiction.  This charge arose out of an investigation by the Canadian Forces National Investigation Service (CFNIS) into an alleged extra-marital affair that General Vance had with an officer of lower rank.

No charges were ever laid under the Code of Service Discipline.

The guilty plea was part of a joint submission submitted by both the Defence and the Crown prosecutor for which Vance received a conditional discharge that included one year of probation and 80 hours of community service.

Consequently, when the terms of the conditional discharge are completed, Vance will not be convicted of a criminal offence and will not have a criminal record.

Murray Brewster, of CBC news, offered this brief report.

Sunday, March 27, 2022

Chinese military law

Global Military Justice Reform contributor WgCdr (R) U C Jha, co-authoring with Kishore Kumar Khera, has a new book coming in April: Chinese Military Legal System: An Analysis. It will include the text of recent Chinese military laws and these chapters:

Chapter 1 Peoples’ Liberation Army: An Introduction

Chapter 2 Military Administration in China

Chapter 3 Military Legal System in China

Chapter 4 Military Criminal Law and Procedure

Chapter 5 Military Court System and Trial

Chapter 6 Discipline Related Offences and Punishments

Chapter 7 The Right to a Fair Trial

Chapter 8 Corruption in PLA and Military Legal System

Chapter 9 Gestalt


Friday, March 25, 2022

Vaccine litigation

The U.S. Supreme Court has acted on the partial stay of the injunction request in Austin v. U.S. Navy SEALS, a vaccine refusal case.
The application for a partial stay presented to JUSTICE ALITO and by him referred to the Court is granted. The district court’s January 3, 2022 order, insofar as it precludes the Navy from considering respondents’ vaccination status in making deployment, assignment, and other operational decisions, is stayed pending disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.
Justice Thomas would deny the request and Justices Gorsuch and Alito dissent.

Thursday, March 24, 2022

CAAF 4-judge-bench denials of petitions for review since August 1, 2021 [update]

through March 23, 2022.

Challenge to head of Bolivia's military court

An objection has been lodged in response to the appointment of Brig. Gen. Antonio Monasterios Chui as president of Bolivia's Permanent Court of Military Justice. Among the irregularities: reservists cannot be recalled in senior grades and in any event the position is supposed to be held by a Division General. There's also an allegation that the appointment was backdated. Details here. (Use Google Translate.)

Wednesday, March 23, 2022

Continuity of education allowance -- too tempting?

Does the UK's Continuity of Education Allowance represent too much of a temptation for fraud? One Judge Advocate thinks so, after three recent convictions. Details here.

Hearing for CAAF nominee

Yesterday the Senate Armed Services Committee conducted a hearing on the nomination of Col. (ret) M. Tia Johnson to be a Judge of the U.S. Court of Appeals for the Armed Forces. Her opening statement may be found here, and her responses to the Committee's advance policy questions can be found here.

Tuesday, March 22, 2022

Diversity in the IDF bench

Majors Tamar Bekia Adgach
and Mazi Mekonen (IDF Photo)
A first for the IDF: two women of Ethiopian background have been named military judges. Details here.

Monday, March 21, 2022

CAAF 4-judge-bench denials of petitions for review since August 1, 2021

160 through March 18, 2022.

Global Military Justice Reform will continue to report the cumulative total until either (a) the current vacancy on the U.S. Court of Appeals for the Armed Forces is filled or (b) one of the eight eligible senior judges is recalled to sit with the four judges in regular active service to rule on petitions for grant of review. 

Orders denying review could usefully note whether a petitioner had briefed any issues or the petition included Grostefon issues. Alternatively, the court could issue a Notice indicating (if that is the policy) that, for the remainder of the current hiatus, it will only deny petitions in cases that have been submitted on their merits and in which no Grostefon issues have been personally asserted by the petitioner.

To date during this lengthy interregnum, the Daily Journal discloses no motions to withhold action on a petition until the vacancy caused by expiration of Chief Judge Scott W. Stucky's term has been filled or a senior judge is recalled to act on petitions.

Sunday, March 20, 2022

Russo-Ukrainian War

Will there be courts-martial on either side? Have there been some already?

The 1999 Russian Federation Law on Military Courts can be found here.

Thinking of volunteering for Ukraine? Richard Dahl writes here for ThomsonReuters FindLaw blog:

Meanwhile, Russia issued a warning that foreign fighters — Russian President Vladimir Putin calls them "mercenaries" — will be treated harshly. On March 3, Russian Defense Ministry spokesman Igor Konashenko warned that foreign fighters will not be afforded the rights of lawful combatants under international law.

"At best, they can expect to be prosecuted as criminals," he said. "We are urging all foreign citizens who may have plans to go and fight for Kyiv's nationalist regime to think a dozen times before getting on the way."

Sean Timmons also strikes a cautionary note at for would-be volunteers who are veterans of the U.S. armed forces.

Denials by a bobtailed court

Since the expiration of Chief Judge Scott W. Stucky's term of office last July 31, the U.S. Court of Appeals for the Armed Forces has continued to deny petitions for grant of review (and thereby denying those petitioners access to the U.S. Supreme Court) with the participation of only the four judges in regular active service rather than adding a fifth set of eyes and ears from among the eight senior judges who could be asked to round out the bench. Here are the numbers to date.

August 2021, 25

September 2021, 19

October 2021, 17

November 2021, 20

December 2021, 17

January 2022, 25

February 2022, 20

March 1-16, 2022, 13

Total, 156

New hearing procedures at CAAF

On March 16, 2022, the U.S. Court of Appeals for the Armed Forces issued new hearing procedures for the balance of the Term. The court also announced that there will be no Project Outreach "away" hearings this Spring. The Notice and Order can be found here.

Delhi High Court re-emphasizes and delineates the power of judicial review over orders of Armed Forces Tribunal

By way of a strong and robust judgment, the Delhi High Court has delineated the circumstances in which litigants can approach the jurisdictional High Courts of States under writ jurisdiction to challenge the judgments and orders of the Armed Forces Tribunal (AFT) rather than approaching the Supreme Court directly by way of the appellate provisions of the AFT Act.

As per the constitutional scheme and also law laid down by Constitution Benches of the Supreme Court, orders from tribunals are amenable to the jurisdiction of the High Courts. However, the Supreme Court in a judgment rendered in 2015, had held that since an appellate provision for a direct appeal to the Supreme Court was provided from the orders of the AFT within the AFT Act, the High Courts should refrain from exercising their writ jurisdiction for judicial review.

This practically rendered litigants remediless from the orders of the AFT since as per the Act, only matters involving a “point of law of general public importance” can be appealed to the Supreme Court from the AFT, meaning thereby that issues that are personal to the litigant, cannot be challenged in any forum and the AFT practically becomes the Court of first and last instance. Approaching the Supreme Court directly makes justice inaccessible and unaffordable for the common litigant.

In 2019 however, another bench of the Supreme Court had held that the writ jurisdiction of the High Courts provided in the Constitution, High Courts being constitutional courts, cannot be taken away even by legislation and that High Courts can exercise judicial review over AFT.

The Delhi High Court has now laid down the areas of litigation where High Courts can exercise judicial review over the AFT, essentially holding that High Courts can intervene in cases which do not involve “a point of law of general public importance”.

The judgment and related details can be accessed here at Bar & Bench.

Thursday, March 17, 2022

Ukraine, ICRC, IHL

Two items relevant to Ukraine which you may be interested in.

Ukraine v. Russian Federation

The decision and separate opinions of the International Court of Justice on provisional measures in Ukraine v. Russian Federation can be found here.

Query what military justice fallout this conflict may have. It will be years before we know.

Vaccine Mutiny

Is there a Vaccine Mutiny? What should be done? Here's the Editor's opinion, from The Bulwark.

Wednesday, March 16, 2022

Blog contributor in the news

Global Military Justice Reform contributor Matthew Bolt is in the news in the UK. Cornwall Street Barristers, where he practices, has this report on two recent courtroom victories. Congratulations.

Mr Bolt is also Membership Secretary of the Association of Military Court Advocates.

Tuesday, March 15, 2022

Pornography and a culture of respect

Commander Joel Coito of the U.S. Coast Guard has written Toward a Pornography-Free Military: "Good Order and Discipline" Through a Culture of Respect, for the University of Florida Journal of Law and Public Policy. You can find it here.

Monday, March 14, 2022

Fowler's in uniform

It's a long story, but the Editor has been thinking about some inconsistencies in military-lawspeak. Some notes follow. Please add your faves,  non-faves, or quibbles in the comments (real names only, please).

U.S. Court of Military Appeals: abbreviated as CMA, but pronounced like "coma" -- and no, it's not "the CMA."

U.S. Court of Appeals for the Armed Forces: not pronounced "us-caf" or see-double-A-eff. And no definite article. Just say CAF (rhymes with "calf").

U.S. Army Court of Criminal Appeals: ACCA (ack-uh),  no definite article. For all other CCAs, use the definite article, since otherwise they sound weird (e.g., how to say "CGCCA"?).

Yes, it's "the TJAG" when referring to Numero Uno, pronounced tea-jag. See also dee-jag.

Department of Defense: dee-oh-dee, no definite article. Federal-agencyspeak is totally inconsistent on this kind of thing: we refer to the Department of Justice as "DOJ" (no definite article) and the Federal Energy Regulatory Commission as FERC ("furk") (same), but use the definite article when referring to the IRS, the SEC, or the FCC.

National Institute of Military Justice: NIMJ, no definite article, and pronounced to rhyme (roughly) with "binge" not with "ninja." Or en-eye-em-jay.

Last but not least: 10-yard penalty for "military court-martial" or "court-martials."

Your move.

Former Tunisian bar president facing military court

Human Rights Watch has been tracking the military prosecution of a former president of the Tunisian bar. From HRW's latest statement:

[Abderrazak] Kilani faces charges of “disturbing the public order,” “insulting public officials,” and “inciting [members of the security forces] by violence, assault, threats, or fraudulent practices to cease performing their individual or collective duties,” under articles 79, 125, and 136 of the penal code, Samir Dilou, one of his lawyers, told Human Rights Watch. The military court claims jurisdiction apparently because the speech in question was addressed to members of the security forces, Ridha Belhaj, another of his lawyers said. Kilani faces up to seven years in prison if convicted.

Kilani, 67, served as a deputy prime minister for relations with the Constituent Assembly from 2011 to 2013. He also has served as head of the bar association and as ambassador to the UN in Geneva. He is active in the Citizens against the Coup, an informal group of Tunisians who openly oppose [Kais] Saied’s seizure of special powers.

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

Not military justice, but . . .

Here's a new one. In India, many Armed Forces Headquarters Civil Service promotions to senior levels have been held up due to long-running litigation. Details here.

Military Prosecutor Dobermann

Ready for a new show about military prosecutors? Check this out. Teaser from the review by L. Kim:

“Military Prosecutor Doberman[n]” is a new drama about two military prosecutors who chose the job for very different reasons—but who ultimately wind up coming together to fight evil. Ahn Bo Hyun stars as Do Bae Man, an apathetic prosecutor who only took the job for money, while Jo Bo Ah stars as heiress Cha Woo In, who became a military prosecutor for revenge.

Friday, March 11, 2022

D.C. Police Retirement Board for the first time recognizes suicide as a line-of-duty death

The DC Police and Firefighters' Retirement and Relief Board for the first time recognized that Officer Jeffrey Smith's suicide nine days after confronting a mob at the US Capitol on January 6, 2021, was the direct result of an injury suffered to his head during the riot.  Police Departments do not typically recognize suicide as job related.

The policy contrasts sharply with that of the US military which now treats some 90% of suicides as line-of-duty deaths caused by post traumatic stress, brain injuries and other deployment hazards.

Thursday, March 10, 2022

Professional responsibility

The disciplinary summaries section of the March/April 2022 issue of Washington Lawyer reports that the D.C. Bar's Disciplinary Counsel has issued an informal admonition to a lawyer who had been retained to pursue "one final avenue of relief, the filing of a residual clemency request with the Coast Guard Clemency Board," which he did not do. He--

failed to (1) serve the client with skill and care, (2) represent the client zealously and diligently within the bounds of the law; (3) keep the client reasonably informed about the status of the matter and promptly comply with reasonable requests for information; (4) withdraw from the representation when his physical or mental condition materially impaired his ability to represent the client; and (5) return the client file after multiple request in violation of Rules 1.1(b), 1.3(a), 1.4(a), 1.6(a)(2), and 1.16(d).

Tuesday, March 8, 2022

Cuban military court to try "July 11" civilians

Hundreds of Cuban civilians face military trial in connection with the "July 11" protests and looting of stores owned by the armed forces. The charges include sabotage, public disorder, disrespect, attack, and robbery with force. Details can be found here (you'll want to use Google translate). Excerpt:

According to Cuban lawyer Julio Ferrer, consulted by the aforementioned media outlet [Radio Television Martí]," many of the protesters of July 11 have been subjected to military jurisdiction and tried by military courts, especially those who were or took part in the events that took place in relation to the TRD stores."

Ferrer explained that the trial in a military court is due to the fact that the TRD stores belong to the Revolutionary Armed Forces, for which the regime considers that the Güira de Melena protesters who broke up these stores should be prosecuted in said courts.

The trial of civilians by military courts is strongly disfavored by human rights jurisprudence, including that of the Inter-American Court of Human Rights.

Annual reports now available

The FY21 annual reports of the armed forces, required by Article 146a of the Uniform Code of Military Justice, are now available on the website of the Joint Service Committee on Military Justice.

The corresponding report of the U.S. Court of Appeals for the Armed Forces was released some time ago and can be found here.

Postscript: Col. (ret) Don Christensen has this number-crunching post over at CAAFlog.

The separate service reports perpetuate the problem of non-comparable data. The footnotes to the charts vary from service to service. Who is going to integrate the data on a system-wide basis? Congress?

Monday, March 7, 2022

Zen and the Guardia Civil

The classic Zen ko'an asks "what is the sound of one hand clapping"? Here is the Spanish Supreme Court's response in a disciplinary case from the Guardia Civil. 

Sunday, March 6, 2022

Supervisory authority

On March 4, 2022, the United States Supreme Court, by a 6-3 vote, reversed the decision of the U.S. Court of Appeals for the First Circuit in United States v. Tsarnaev, No. 20-433 (the Boston Marathon Bombing case). In the process, the court cast doubt on the extent of the courts of appeals' supervisory authority over the trial courts. In this capital case, the question concerned a long-ago circuit precedent concerning voir dire in high-profile cases. Justices Amy Coney Barrett and Neil Gorsuch went further and suggested it was "worth revisiting" dicta (their characterization) suggesting that there even is such a supervisory power.

Quaere: how will this issue play out at the U.S. Court of Appeals for the Armed Forces--or has it already done so? The court's rules formerly referred to a supervisory power but this was deleted in 2015. The Rules Advisory Committee's comments may be found in Fidell, Fissell & Sullivan, Guide to the Rules of Practice and Procedure for the U.S. Court of Appeals for the Armed Forces §§ 5.02 & 21.02 (20th ed. 2021). The committee noted that in Clinton v. Goldsmith, 526 U.S. 529, 536 (1999), the Supreme Court wrote that "the CAAF is not given authority, by the All Writs Act or otherwise, to oversee all matters arguably related to military justice or to act as a plenary administrator of final judgments it has affirmed." The committee observed: "This is not to say that supervisory authority does not exist, only that it is not as expansive as it was pre-Goldsmith, and its contours will need to be resolved in future cases." The question now is whether, in matters squarely within its jurisdiction, the Court of Appeals may exercise the kind of supervisory power the First Circuit had exercised and that was addressed in Tsarnaev.

Comments welcome. (Real names only, as always.)

Global Military Law Landmarks

Today a panel discussion of Navdeep Singh and Frank Rosenblatt's Global Military Law Landmarks was conducted under the auspices of the Jindal Society of International Law at Jindal Global University. You can access the video here.

Saturday, March 5, 2022

Is this federal district judge running the Navy?

Mark Joseph Stern writes here, for Slate, on the burgeoning Vaccine Mutiny docket. Excerpt:

But Doe poses the bigger threat. He is currently the commanding officer of a warship that may soon set sail. If he falls seriously ill at sea—which is more likely because he refuses the vaccine—he may thwart the entire mission. The issue, however, goes deeper than that. In declarations, Vice Admiral D.W. Dwyer and Captain Frank Brandon explained that Doe’s anti-vax beliefs are part of a broader pattern of insubordination. Brandon testified that last November, he spoke with Doe on Doe’s ship one day before its scheduled departure. Doe was experiencing multiple symptoms of COVID, and appeared to have a relatively severe case; he could, Brandon recalled, “barely speak.” Yet Doe refused to get tested—a clear violation of protocol—and attended a briefing in a cramped room with about 60 other people. Brandon ordered Doe to get a test, which revealed that he did, indeed, have COVID, and exposed dozens of others to the virus.

Doe engaged in other deceptive behavior. For instance, when requesting leave, he concealed the fact that he was flying to another state, which would have triggered a mandatory risk assessment. After Brandon discovered this subterfuge, he learned that Doe had traveled to a high-risk area, requiring five days’ quarantine upon return. Doe did not inform his Executive Officer of this extended absence, creating a “significant and very rare” disruption “across the waterfront” during a crucial phase of ship preparation. Brandon concluded that Doe “intentionally deceived me,” “put his crew at risk,” “failed to comply with the Navy’s COVID-19 policies,” and engaged in “negligent behavior” in “performance of his duties.”

“I do not trust [Smith] with the lives of our Sailors,” Brandon testified. He continued:

I am responsible for the well-being of my Squadron, including welfare of my ships and the health of my sailors. My loss of confidence in [Smith] is … based on the fact that I cannot trust his judgment, I cannot trust him to look after the welfare of his sailors, and I cannot trust him to be honest with me. In my judgment, allowing him to remain in command of a Navy warship would be reckless.

Friday, March 4, 2022

Boycott in Tunisia

A committee of lawyers in Tunisia is boycotting a military court following the arrest of a former president of the bar. Details here.

Thursday, March 3, 2022

State secrets ruling

 United States v. Husayn, aka Zubaydah, et al. U.S. Supreme Court, March 2022.

From the summary.

In the aftermath of the September 11, 2001, terrorist attacks, the Central Intelligence Agency believed that Abu Zubaydah was a senior al Qaeda lieutenant likely to possess knowledge of future attacks against the United States. Zubaydah—currently a detainee at the Guantánamo Bay Naval Base—says that in 2002 and 2003 he was held at a CIA detention site in Poland, where he was subjected to “enhanced interrogation” techniques. In 2010, Zubaydah filed a criminal complaint in Poland, seeking to hold accountable any Polish nationals involved in his alleged mistreatment at the CIA site ostensibly located in that country. The United States denied multiple requests by Polish prosecutors for information related to Zubaydah’s claim on the ground that providing such information would threaten national security. Zubaydah filed a discovery application pursuant to 28 U. S. C. §1782, which permits district courts to order production of testimony or documents “for use in a proceeding in a foreign . . . tribunal.” Zubaydah asked for permission to serve two former CIA contractors with subpoenas requesting information regarding the alleged CIA detention facility in Poland and Zubaydah’s treatment there. The Government intervened and asserted the state secrets privilege in opposition to Zubaydah’s discovery request. The District Court rejected the Government’s claim that merely confirming that a detention site was operated in Poland would threaten national security.

The District Court nevertheless dismissed Zubaydah’s discovery application. It concluded that the state secrets privilege applied to operational details concerning the CIA’s cooperation with a foreign government, and that meaningful discovery could not proceed without disclosing privileged information. On appeal, the Ninth Circuit agreed with the District Court that much of the information sought by Zubaydah was protected from disclosure by the state secrets privilege, but the panel majority concluded that the District Court had erred when it dismissed the case. It believed that the state secrets privilege did not apply to publicly known information. The panel majority also concluded that because the CIA contractors were private parties and not Government agents, they could not confirm or deny anything on the Government’s behalf. Given these holdings, the panel majority determined that discovery into three topics could continue: the existence of a CIA detention facility in Poland, the conditions of confinement and interrogation at that facility, and Zubaydah’s treatment at that location.

Held: The judgment is reversed, and the case is remanded

Wednesday, March 2, 2022

Desertion, anyone?

Bravo to Tom Dannenbaum for this fascinating and timely Just Security piece on the obligation to recognize Russian deserters as refugees. Excerpt:

When troops lay down their weapons and refuse to use them to prosecute an illegal war, they take significant personal risk to do the right thing by the law’s own lights. States have a collective duty to protect them in that endeavor.

No mocking General Rat


The Central Military Tribunal sanctioned the head of the AUGC in Alicante for jokes he made about the name and surname of General Rueda Ratón, which were considered a serious (minor) offense and imposed a sanction on him. According to the judgment of the first section of the Central Military Tribunal the jokes were made in a video on Twitter about the General's names, Rueda meaning "wheel" and Ratón meaning "rat." The Central Military Tribunal reminded that the General "was superior to the Guardia Civil," and that jokes about his name constitute an unjustifiable attack against his essence as a human being, and given that it involves a superior officer it undermines his moral prestige and authority. The disciplinary sanction imposed was five days loss of wages along with suspension of functions for a serious minor offense. The judgment is being appealed by the AUGC before the Military Chamber of the Supreme Court.

The members of the "Unified Association of the Civil Guard" (Asociación Unificada de Guardias Civiles) in Spain sought the removal of General Rueda Ratón, Division General, Head of the Traffic Unit of the Guardia Civil, for some time due to his arrogance and belittlement of the members of the Guardia Civil. The AUGC, the trade union of the Guardia Civil, has existed since the European Court of Human Rights decisions in two French cases (Matelly v. France and ADEFDROMIL v. France) that declared unanimously that the prohibition on unions in the military violated the European Convention on Human Rights. In June 2021, General Rueda Ratón ceased being the Head of the Traffic Unit and went into the reserves after seven years in the post.

A first?

In his State of the Union address last night, President Joe Biden mentioned the recent reforms in the U.S. military justice system:

"I signed 80 bipartisan bills into law last year. From preventing government shutdowns to protecting Asian Americans from still-too-common hate crimes to reforming military justice."

Talk in the glass-enclosed newsroom high above Global Military Justice Reform Plaza was that this was a first.