Cases decided by the U.S. Court of Appeals for the Armed Forces on full opinion during the present Term of Court

as of August 30, 2022. The Term ends on September 30, 2022.

Dave Philipps writes about BUD/S

Dave Philipps , who wrote powerfully about the court-martial of SEAL Chief Petty Officer Edward R. Gallagher, has the lead story in this morning's New York Times: "Death in Navy SEAL Training Exposes a Culture of Brutality, Cheating and Drugs. The elite force’s selection course is so punishing that few make it through, and many of those who do resort to illicit tactics."

Not military justice, but . . .

 Just Security has posted this excellent essay by George Croner: A Damage Assessment of Trump’s “Declassification Defense.” Required reading for anyone dealing with classified information. Excerpt:

In this article, I focus on a specific aspect related to the national security risks from the disclosure of such documents. I address on its own terms Trump and his allies’ claim that, while president, he issued either a general or standing declassification order that covered these documents. If that is to be the defense on which the former president relies in the court of public opinion or in a court of law, we should understand the national security implications that would flow from such a presidential decision. It should be shocking to the American public and to jurors in a courtroom to hear such a line of defense to allegations of mishandling national defense information. That justifiable shock can come, however, only if people comprehend the grievous harms to national security from any such order.

R v MacPherson, 2022 CMAC 8: retrospective application of jurisdiction of the Code of Service Discipline

On 23 August 2022, the Court Martial Appeal Court of Canada (CMAC) handed down its judgment in R v MacPherson, 2022 CMAC 8, upholding the judgment at first instance by Military Judge, Commander (Cdr) S. Sukstorf: R v MWO MacPherson, 2021 CM 2014. 

The outcome of the judgment was not particularly surprising.  On 8 September 2021, Cdr Sukstorf terminated the court martial convened to try Master Warrant Officer (MWO) MacPherson on two counts of sexual assault, contrary to section 271 of the Criminal Code, and incorporated into the Code of Service Discipline by virtue of para 130(1)(a) of the National Defence Act (NDA).  Although MWO MacPherson had been charged under the Code of Service Discipline in 2019, and the charges were preferred for court martial on 10 December 2019, the allegations dated from a period of time between August and October 1998.

Those dates were significant.  By virtue of section 70 of the NDA that was in force at that time, charges of sexual assault, alleged to have occurred within Canada, could not be prosecuted before court martial.  By virtue of significant amendments to the Code of Service Discipline introduced by Bill C-25 (An Act to Amend the National Defence Act), section 70 of the NDA was amended to remove the prohibition against prosecution, before court martial, of sexual assault, sexual assault with a weapon, and aggravated sexual assault.  These amendments were driven by public opinion in the 1990s that this lack of jurisdiction for the Code of Service Discipline hampered its capacity to maintain the discipline, efficiency, and morale of the Canadian Forces (CF).  These amendments came into force on 1 September 1999.  That factor can be contrasted with recent opinions that such charges should not be prosecuted within the 'military justice system'.

Section 70 of the NDA lists (and listed) offences that, when alleged to have been committed in Canada, cannot be tried by court martial.  [NB: The offences that were, and are, listed at section 70 cannot be tried by Summary Trial.]  The issue at trial in MacPherson was whether the amendments to section 70 of the NDA had retrospective application.  In other words, once the amendment came into force on 1 September 1999, was there jurisdiction under the Code of Service Discipline where charges were laid on or after this date, even if they were alleged to have occurred prior to that date.  The provision refers to the jurisdiction of courts martial to try the listed offences; it does (and did) not speak to the general jurisdiction of the Code of Service Discipline.

In order for a provision to have retrospective application, there must be a clear expression from Parliament as to its intention regarding the legislative amendments in question with respect to transitional provisions: R v Dineley, 2012 SCC 58.  The issue for Cdr Sukstorf was whether the legislative amendments to the NDA communicated such clear intent.  In her judgment, she offered compelling reasons why Parliament did not provide such clear expression of intent.

The CMAC concluded that Cdr Sukstorf was correct:

... There is no clear Parliamentary intent that the amendment to s. 70 of the NDA is to have retrospective effect. Furthermore, the amendment affects substantive rights of accused and convicted persons. Those include a right to be tried by jury and the right not to be subjected to more severe punishment than was available at the time of the alleged offence. Consequently, the amendment to s. 70 does not apply retrospectively. [per Bell CJ, at para 43, for a unanimous Court]

In light of Cdr Sukstorf's comprehensive and compelling reasons at trial, this outcome was not surprising.  One might be inclined to observe that this CMAC judgment is noteworthy because it decisively concludes that "Service tribunals do not have jurisdiction to try sexual assault offences alleged to have occurred in Canada prior to September 1, 1999."  While this is true, it is noteworthy for several other reasons, including:

1.  At first instance, Cdr Sukstorf considered the issue on the Court's own motion.
2.  The matter had been referred to a civil Crown Attorney, who declined to proceed.
3.  In its judgment, the CMAC offers some critical comments regarding the fairness of service tribunals.

Cases decided by the U.S. Court of Appeals for the Armed Forces on full opinion during the present Term of Court

as of August 25, 2022. The Term ends on September 30.

Conscientious objection in South Korea -- still an issue

Despite a Constitutional Court decision finding a right to conscientious objection, a South Korean Jehovah's Witness is facing trial. He objects to the fact that alternative service -- now permitted -- lasts too long and must be performed in a prison or other correctional institution. Details here. Amnesty International is on the case.

A duty to disobey?

Doyle Hodges examines this question in a detailed response to a recent New Yorker article by Susan B. Glasser and Peter Baker about General Mark A. Milley's actions in the waning weeks of the Trump administration. See what you think (and read the New Yorker piece before making up your mind).

Jurisdictional overreach in Pakistan?

 A recent report in the Express Tribune of Pakistan raises questions about the potential for jurisdictional overreach under the military law of Pakistan. The issue arises in the context of an allegation that Shahbaz Gill, leader of opposition political party Pakistan Tehreek-e-Insaf, has incited mutiny in the Pakistani army. A member of the Prime Minister’s office has suggested that Mr Gill should be tried by court-martial for this offence. In this post I examine whether that is a serious prospect under Pakistani military law and, if so, what international law would have to say on the matter.

Under section 31 of the Pakistan Army Act 1952, it is an offence for “any person subject to this Act” to, inter alia, incite mutiny in the military forces of Pakistan, or attempt to seduce a member of those forces from his or her duty or allegiance to the Government of Pakistan. Pakistan is a state which, like many members of the Commonwealth, has derived its military law from a British root. In most such states, the limitation of jurisdiction to “any person subject to this Act” would put an end to any speculation as to whether Mr Gill could be tried by court-martial. He is not a member of the Pakistani armed forces and nor does it appear that he has any particular connection with those forces. Ordinarily, that would mean that he would not be subject to the Act. However, the jurisdictional provision which defines who is subject to the Pakistan Army Act (section 2) has been successively amended since the mid-1960s until as late as 2017, to expand the jurisdictional ambit of the Act to quite a surprising degree. Certain persons considered to be terrorists are subject to the Act (section 2(d)(iii) and (iv)) as well as anyone, not otherwise subject to the Act, who is accused of “seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government” (section 2(d)(i)).

In the article in the Express Tribune, Colonel Inamul Rahiem, a retired officer of Pakistan’s Judge Advocate General’s branch indicates that jurisdiction over a civilian cannot in fact be exercised in these circumstances consistently with the Constitution of Pakistan, and that there is Supreme Court authority to that effect. It would be surprising if that were not so, given Pakistan’s ratification of the International Covenant on Civil and Political Rights (ICCPR) in 2010.

The question of how the ICCPR and other international norms impact on the exercise of military jurisdiction is canvassed in the Principles Governing the Administration of Justice Through Military Tribunals, a soft law instrument which has evolved over the last 20 years under the auspices of the United Nations; the most recent consideration of the principles being a re-draft prepared at Yale University in 2018 by a group of experts including myself and a number of other contributors to this blog. The issue we are looking at here is dealt with in Principle 6:

“Military courts have no jurisdiction to try civilians except where there are very exceptional circumstances and compelling reasons based on a clear and foreseeable legal basis, made as a matter of record, justifying such a military trial.  Those circumstances only exist, where:

(a)         Such a trial is explicitly permitted or required by international humanitarian law;

(b)         The civilian is serving with or accompanying a force deployed outside the territory of the sending State and there is no appropriate civilian court available; or

(c)          The civilian who is no longer subject to military law is to be tried in respect of an offence allegedly committed while he or she was serving as a uniformed member of the armed forces or he or she was a civilian subject to military law under paragraph (b).”

This principle reflects the axiom that, in ordinary circumstances, only military personnel should be subject to military law. However, it also recognises that there are some very limited exceptions in which the application of military law to a civilian would be compatible with international norms. The exceptions permit a compatible reading of States Parties’ obligations under the ICCPR on the one hand, and the Geneva Conventions on the other. However, none of the exceptions appear to apply in the case of Mr Gill. It must be observed that any attempt to use military law as hammer to crack the “nut” of political opposition cannot fail to bring both the military jurisdiction and the State itself into disrepute.

I suggest that it might be timely for the Government of Pakistan to address the apparent incompatibility between section 2 of the Pakistan Army Act 1952, the Constitution of Pakistan and Pakistan’s international obligations.

Cases decided by the U.S. Court of Appeals for the Armed Forces on full opinion during the present Term of Court

as of August 17, 2022. The Term ends on September 30.

"Milicogate"

On March 2, 2022, General Ricardo Martinez announced his resignation as Commander in Chief of the Chilean Army because he was accused of crimes of corruption within the Army.  The announcement came a week before his successor, Javier Iturriaga, was to become the new Commander in Chief to serve for four years beginning March 9, 2022.  Martinez is the fourth Commander in Chief, of six, following Augusto Pinochet, to be accused of corruption, following Oscar Izurieta (2006-2010), Juan Miguel Fuente Alba (2010-2014), and Humberto Oviedo (2014-2018), who all denied the accusations and declared their innocence -- as did General Martinez.  

Martinez was charged with defrauding the military of $44 million and for allegedly using institutional travel funds for his own and his wife's benefit. Judge Romy Rutherford has been investigating the fraud case in the Army since 2011 and she questioned, in particular, eight trips carried out by Martinez while on active duty, during the years 2011-2017; on three of the trips accompanied by his wife.  He was placed in preventive detention for three weeks.  On April 5, 2022, the Military Tribunal dismissed the prosecution against him.

The decision of the Military Tribunal to dismiss Judge Rutherford's prosecution was a divided one of three judges against two.  The majority accepted the defense's argument that the amount of money in the fraud had not been clearly established, that the alleged trips were subject to a statute of limitations and that Martinez had returned some of the money.  Now the Council of the Defense of the State (CDE -- a group of 12 lawyers appointed by the President) will have to decide whether to appeal to the Chilean Supreme Court to overturn the Military Tribunal's decision.

Captain Kevin J. Barry used to say

"Scratch a case and find an outrage." The Texas Tribune and ProPublica are looking for stories about the military justice system. "We’re looking into how the military investigates service members accused of crimes, intersects with the civilian justice system and treats cases that do not make it to courts-martial. Guide us to important stories." Here's the link to share your story.

Mere dicta, or a warning?

The following discussion appears in the judgment of the Defence Force Discipline Appeal Tribunal of Australia in Kearns v Chief of Army [2022] ADFDAT 3 (Aug. 12, 2022):

119   By a notice dated 9 August 2021, a little over two months after his conviction and punishment by DFM [Defence Force Magistrate], administrative action was taken against the appellant leading ultimately to his administrative discharge on the basis that the retention of his service was not in the interests of the Defence Force. By the time these proceedings were heard by the Tribunal, he was no longer a member of the ADF.

120    On 7 May 2021 the DFM made a considered decision under DFDA, Pt IV that the appellant had continuing value to the ADF and should be retained in service but with a loss of seniority within his existing rank of LTCOL. The transcript of the punishment hearing shows the DFM reached this decision based not only on the circumstances of the convictions and a victim’s impact statement but on extensive examination of the appellant’s service record, officer performance appraisals, character, and a psychological analysis of the appellant’s circumstances.

121    The subsequent administrative decision to terminate his service produced quite a different outcome for the appellant. This Tribunal is not reviewing that decision and its factual basis and the reasons for it are not before this Tribunal. But the appellant has contended in documents before this Tribunal that the termination decision was based upon the same or substantially the same facts as those that led to his two convictions. This Tribunal is not charged with deciding whether that contention is correct or not.

122    But the contention raises a wider question about administrative decisions after DFDA action against a member and the authority of the decisions of superior service tribunals under the DFDA. The apparatus of the Appeals Act provides for public external review of the conviction, but not the punishment, of defence members by superior service tribunals under the DFDA. The public functions of review by this Tribunal under the Appeals Act are one of several statutory safeguards that maintain confidence in the independent administration of justice under the DFDA leading to both conviction and punishment. Another statutory safeguard is the requirement under DFDA, s 140 for superior service tribunals to hold trials in public.

123    This Tribunal’s functions in scrutinising the proper administration of justice leading to conviction by superior service tribunals, give it an interest in matters which may undermine the authority and independence of those tribunals, even matters occurring after conviction. Maintaining public confidence in the convictions of superior service tribunals is not limited to looking at events before conviction.

124    An administrative decision made close in time to a punishment imposed by a service tribunal under the DFDA, but which produces on substantially overlapping facts an outcome which may objectively be described as more severe, may need to be reconciled with the operation of DFDA, s 162.

125    Several provisions of the DFDA prohibit commanders from increasing punishments imposed under the DFDA. Under DFDA, s 68 a commanding officer of a convicted person “may moderate the consequences of” a punishment “imposed” by service tribunal, but has no power to increase the punishment. And upon review of action under DFDA, Pt IV under DFDA, s 162 a conviction may only be quashed under s 162(1) if it is “excessive” or “wrong in law” and once quashed any substitute punishment imposed under s 162(5), “shall not…be more severe” than the punishment imposed by the service tribunal. No power exists in the reviewing authority to quash a conviction on the grounds of insufficiency of punishment.

126    An administrative decision maker considering termination of a defence member after DFDA action on facts substantially overlapping with the DFDA action does not act as a reviewing authority under the DFDA. But such a decision-maker may have to examine real questions of continuing fidelity to the commands of DFDA, s 68 and s 162 and what punishment is being imposed in practice and whether the administrative decision is consistent with the maintenance of good conscience by command.

127    DFDA, s 68 and s 162 reflect well-established principles that military command is bound to observe good conscience in punishing a defence member. The High Court in Lane v Morrison (2009) 239 CLR 230, at [85] (Lane), identified that the central point of the court-martial within military command structures such as the ADF is to inform the conscience of the commanding officer. In Lane, at [85], the High Court cited the following reasoning of Platt J in the Supreme Court of New York in Mills v Martin (1821) 19 Johns 7, at 30, as accurately capturing this aspect of the role of the court-martial within the command system:

The proceedings of the court-martial were not definitive, but merely in the nature of an inquest, to inform the conscience of the commanding officer. He, alone, could not condemn or punish, without the judgment of the court-martial; and, it is equally clear, that the court could not punish without his order of confirmation.

128    The court-martial informs the conscience of command and command acts on good conscience by confirming or moderating, but not increasing, the punishment fixed by the court-martial. Recognising that a punishment imposed by a service tribunal in relation to a defence member sets the upper limit of post-conviction action binding on the conscience of command for that member provides safeguards for the ADF and for the member.

129    For command, it promotes military cohesion and defence members’ acceptance of discipline decisions by separating command from any perception of personal bias or ill-will in the exercise of discipline. For the member punished, command’s fidelity to good conscience in confirming or moderating punishments confers security and stability and promotes loyalty to the service in that member and in all members who see command observing the precepts of good conscience in punishments.

130    Moreover, as this Tribunal emphasised in Howieson v Chief of Army [2021] ADFAT 1, at [62] (Howieson), an administrative decision to terminate a member’s service where a court-martial has imposed a sentence which gives the member an opportunity for rehabilitation “could be regarded as undermining the court-martial process”. We add the reasoning here to that expressed in Howieson on this subject.

131    If the obligations of good conscience upon command in imposing DFDA punishments recognised in Lane and embedded in DFDA, s 68 and s 162 are ignored post-conviction, leading to the administrative termination of the service of defence members, stigma, loss of morale and confidence in the administration of justice in the ADF may be most acute for those directly affected by the termination but similar effects are likely to be felt more widely. But more broadly, as Howieson emphasises, the authority of DFDA in specialist superior service tribunals seeking to do justice by balancing rehabilitation against other sentencing factors may also be undermined.

132    This question may need to be addressed in the future when what it means to “impose” a punishment under the DFDA falls to be decided; and whether that means more than just to pronounce the punishment but to carry it out.

For your reading list

Noah Riseman, The Royal Australian Navy and Courts-Martial for Homosexuality, 42 Int'l J. Mil. Hist. & Historiography 46 (2021) is available online here.

Supreme Court upholds Armed Forces Tribunal's refusal to reinstate Indian Navy Officer Cadet

The Supreme Court of India has refused to grant relief to an Officer Cadet of the Indian Navy who was reverted to his original rank and returned to his Unit from the Naval Academy where he was training to become a Commissioned Officer.

The Officer Cadet was originally a sailor in the ranks who was selected for a Commission for which he was training in the Naval Academy. He was, however, relegated twice for infractions such as possession of pornography, cigarettes and belongings of other Cadets. On one occasion, even a ‘seal’ of the government was found on him. After issuing him with Show Cause Notices twice, and finding no improvement in his behaviour, the Navy decided to revert him back to his service in the ranks without loss of seniority

The action of the Navy was challenged by him before the Armed Forces Tribunal which dismissed his case. Thereafter he challenged the verdict of the Tribunal by way of a direct statutory appeal to the Supreme Court.  

In the Supreme Court, it was averred that the principles of natural justice were not followed, and that, as per regulations, it was only the Central Government which could have ordered his reversion to the ranks.

Dismissing his appeal, the Supreme Court has held that the regulation cited by the sailor pertained to termination of service which the Navy did not resort to since he was only reverted back to his original service and cadre without terminating his services. The Court has observed that the Navy did not find him possessing the qualities as required by a Commissioned Officer and it had the full authority under law to take the action it had resorted to.

The judgment can be accessed here.

Coast Guard Day, 2022

Happy 232nd birthday.

Passing of Steven S. Honigman (1948-2022)

Yesterday's New York Times included a notice of the passing of Steven S. Honigman. Steve had a distinguished career at the bar and in public service, including major contributions to military justice. He graduated from NYU and Yale Law School. After a federal court clerkship, he attended the Naval Justice School and served on active duty for four years in the Navy Judge Advocate General's Corps. For a number of years he chaired the Military and Veterans Affairs Committee of the Association of the Bar of the City of New York (a/k/a the New York City Bar), and shepherded through an important military justice reform proposal. He was a public member of the Military Justice Act of 1983 Advisory Commission and served for five years as General Counsel of the Navy during the Clinton Administration. In the Gilbert and Sullivan canon, Steve was especially partial to "I am the Monarch of the Sea (When I was a Lad" from Act I of HMS Pinafore. Sincere condolences to Steve's wife and daughter, Drs. Irene Finel-Honigman and Ana Finel Honigman.

Why might this be at court-martial?

KLDNews13 has a video report of a "Marine accused of fatally stabbing wife on H-3 could be turned over to the military for a court martial (sic)." The H-3 is one of Hawaii's Interstates, from the Honolulu area of Oahu island to Marine Corps Base, Kaneohe Bay. K-Bay, as we call it.

The report says that he is held in custody on second-degree murder charges. The reporter notes that the military has the death penalty. But the death penalty would only be for a conviction under UCMJ art. 118. Hawaii does not have the death penalty. 

The military equivalent of "second-degree" murder does not authorize the death penalty. I think voluntary manslaughter under UCMJ art. 119 is the closest analogy.

The spouse was pregnant, so the possibility exists of a second charge under UCMJ art. 119a at court-martial. Death is not an authorized punishment under this article. 

It does not appear the spouse is a service member.

The report notes (as we know) that civilian and military authorities frequently discuss jurisdiction when a service member is a suspect.

https://www.kold.com/video/2022/08/02/marine-accused-fatally-stabbing-wife-h-could-be-turned-over-military-court-martial/

Uganda CDF to Special Investigations Branch: "pull up your socks"

The General Court-Martial in Uganda has a new chairperson, Brigadier Freeman Mugabe. Video of the installation ceremony can be found here. At the ceremony, the Chief of Defence Forces, General Wilson Mbasu Mbadi, criticized the country's civilian courts for interfering with the military court's ability to process cases in a timely fashion. Uganda's military courts regularly exercise jurisdiction over civilians accused of weapons offenses, even though human rights jurisprudence strongly disfavors military trials of civilians and the African Charter on Human and Peoples' Rights is understood to bar it absolutely. 

D.C. Circuit decides Larrabee

A divided panel of the U.S. Court of Appeals for the District of Columbia Circuit today decided Larrabee v. Del Toro. The case concerns whether military retirees can constitutionally be tried by court-martial. The opinion of the court was written by Judge Neomi Rao. Judge Justin R. Walker concurred except with respect to Part III of the decision, concerning deference to Congress. Judge David S. Tatel concurred in part and dissented in part.

Perfect storm on E Street

Sunday marked one year since Chief (now Senior) Judge Scott W. Stucky's term on the U.S. Court of Appeals for the Armed Forces expired. The seat he held remains unfilled, although the nomination of Col. (ret) M. Tia Johnson was reported out favorably by the Senate Armed Services Committee months ago. The court has continued to hear cases with a full bench by drawing on its roster of eight senior judges (Senior Judges Andrew S. Effron, Susan H. Crawford, Charles E. "Chip" Erdmann, Margaret A. Ryan, Scott W. Stucky, and Walter T. Cox III have all pitched in).

But all is not well. On the contrary, the circumstances present an institutional perfect storm, with three unacceptable conditions conspiring to impede the fair administration of justice.

First, it is hard-wired into the UCMJ and title 28, U.S. Code, that the Supreme Court can only entertain a petition for certiorari from a case decided by CAAF on petition for review if CAAF has granted discretionary review. This means that the lion's share of the cases that come before CAAF are never eligible for direct review by the Supreme Court. That's on Congress. While many petitions to CAAF are submitted each year without errors assigned by either appellate defense counsel or noted by the accused, scores of others do assign issues. Those cases, unconstitutionally, never qualify for Supreme Court review, unlike every other federal and state criminal appeal, including military commission cases. As of the first anniversary of the Stucky vacancy, CAAF has denied review in a whopping 263 petition cases.

Second, CAAF has made it harder to get a grant of review by refusing to call upon senior judges to fill out the bench for consideration of petitions for review. This means that instead of requiring a 40% vote (2 out of 5) to secure review (and access to the Supreme Court), a 50% vote (2 out of 4) is required. This is on CAAF. CAAF could reduce this unfairness by granting all petitions that assign errors and acting summarily on those that do not warrant plenary briefing and oral argument; by holding all petitions until the Stucky vacancy is filled (or doing so if requested); or by calling on senior judges to vote on petitions for grant of review. Failing to do any of these is on CAAF.

Third, the Senate has failed to act in a timely fashion on Col. Johnson's Jan. 7, 2022 nomination. The nomination has been on the Senate Executive Calendar since Apr. 5, 2022. This delay is the result of an asinine hold placed on certain DoD nominations by fleet-footed Sen. Josh Hawley (R-MO) because he wants to have a public hearing into the chaotic U.S. withdrawal from the Kabul airport a year ago. [Objection! Irrelevant.] He insists that the Secretaries of Defense and State and the National Security Advisor all resign as the price of lifting his hold. That is chiefly on him but also on the Senate, the rules and customs of which tolerate this kind of misguided tactic. The result is the longest hiatus on the military's high court in decades.

Apart from the unfairness to the nominee, the combined effect of these three factors is to shortchange scores of GIs. Every member of the armed forces who has an articulable legal claim in connection with a court-martial has a right to the same access to the Supreme Court as everyone else. GIs haven't gotten a fair shake since 1951, when the UCMJ went into effect without provision for Supreme Court review; they haven't gotten it since the Supreme Court got the power to review a limited category of military cases through the Military Justice Act of 1983; and they certainly haven't gotten it since Aug. 1, 2021.