4th edition of casebook available in time for 2023-24 academic year

It's true: the fourth edition of Military Justice: Cases and Materials is now available (see proof of life image at left). Carolina Academic Press is once again the publisher. Click here for a peek inside, including the table of contents as well as the preface and foreword by distinguished military justice mavens.

A Teaching Manual will also be available for faculty.

Watching and waiting in Pakistan

Will the Supreme Court move a notch up from where it left the issue of military courts in 2015? The collective national conscience is on trial right now; judiciary, civil society, the [Human Rights Commission of Pakistan], large sections of lawyers as well as civilian bureaucracy — all under the awe of the blitzkrieg.

From this Express Tribune op-ed by Imtiaz Gul 

Access to court-martial records

ProPublica has filed this opposition to the defendants' partial motion to dismiss in ProPublica v. Butler. At issue is whether the government is complying with article 140a, UCMJ, on access to court-martial records.

Executive Order makes major changes effective

Here is the White House fact sheet on the Executive Order President Joe Biden signed today, amending the Manual for Courts-Martial. The order is not yet available online,

Supreme Court access and the FY24 NDAA

Prof. Steve Vladeck and the Editor have written this op-ed for Just Security. After nearly 40 years, isn't it time for GIs to get the same access to the Supreme Court as everyone else?

May 9 case in Pakistan adjourned sine die

The Nation has this detailed account of the latest hearing in the May 9 case before the Supreme Court of Pakistan. Excerpt:

The attorney general said that proceeding will be held in open court but only the family members and the counsel will be allowed. He told that the protesters are being kept in room and not in hardened or inhuman condition, and all facilities are accorded, which are given to a person in the detention. The Chief Justice questioned, is it possible that group of lawyers can visit them. The attorney general responded that it may not be possible. The chief justice said, “We appoint a retired judge to visit them and examine the condition whether that is fair and in accordance with the law.” The attorney general asked the bench to grant one month to deliberate on the providing appeal, saying there is an international aspect and the many complications involved. Justice Munib [Akhtar] said the tenure of National Assembly is ending in August then how it can pass the law. Chief Justice Umar Ata Bandial cautioned Attorney General for Pakistan “that there should be no trial of persons, and if he goes against his words then we will call the concerned person.” He, however, expressed satisfaction over the cooperation of the government regarding the instant matter. He asked the petitioners’ lawyers to relax as no trial has commenced. Reacting to Sardar Latif Khosa’s remarks, the Chief Justice said: “This is not Zia ul Haq’s era and no Martial Law in the country.” He added, “If Martial Law like situation arises then we will interfere.” Earlier, Khosa, representing Aitzaz Ahsan, one of the petitioners, stated whatever has been happening in the country today had taken place during the tenure of former military dictator Zia ul Haq. He said that still the list of 102 persons has not been provided. He said there is concern of due process, fundamental rights of the persons in custody. Later, the bench deferred the hearing of the case without notifying the next date.

Global Military Justice Reform will continue to monitor developments in this landmark case. The trial of civilians by military courts is strongly disfavored under international human rights jurisprudence.

A world with a view

The decision to conduct military trials has "been roundly condemned by human rights organisations within Pakistan and abroad. Amnesty International said trying civilians in military courts is contrary to international law."

Abid Hussain,Pakistan’s controversial Army Act: What is it, how does it work? Al Jazeera, 18 May 2023.

The decision by Pakistan Army to try civilians accused of involvement in the May 9 riots under military laws has ignited concerns among human rights activists, raising questions about the protection of fundamental rights and civil liberties in the country.

Baqir Sajjad, Undermining Justice: Court-Martialing Civilians in Pakistan. 5 June 2023.

The Pakistan government should immediately transfer civilians set to be tried in military courts to the civilian justice system, Human Rights Watch said today. Trying civilians before military courts violates Pakistan’s obligations under international human rights law to ensure the due process and fair trial rights of criminal suspects.

Pakistan: Don’t Try Civilians in Military Courts: Uphold Fair Trial Rights While Prosecuting Violence. Human Rights Watch, 21 May 2023.

May 9 hearing resumes

Dawn has this detailed report on the latest hearing before the Supreme Court of Pakistan on the constitutional petitions challenging the use of military courts to try civilian protesters. Of particular interest was the attorney general's concern that nothing be done in the May 9 cases that might prejudice Pakistan's position in the long-running case of Indian national Kulbhushan Jadhav, which led to an adverse decision by the International Court of Justice.

CIVCAS redux

Outstanding job by NPR to force some transparency by bringing yet another flawed Pentagon review into the light of day -- this time of another U.S. military CIVCAS incident that occurred in fight against ISIS, the 2019 raid that killed the ISIS founder and leader, Al-Baghdadi. 

Bottom line:  once again, the Pentagon concludes "good shot" as it investigates itself, with its cognitive biases on full display. The Pentagon review, released thanks to NPR's FOIA request, even tellingly reveals that HQ USCENTCOM refused to initially investigate the incident because according to it, no credible evidence existed that civilians were killed in the raid. They then seemingly doubled down on the initial misidentification, and completely muddled hostile intent based targeting (and what was likely misidentification of same) with status-based killing under IHL based on combatant status. Such shells games are surely not representative of a credible, accurate and objective analysis of an incident, like so many, that threaten US legitimacy and create new enemies. "Good shot, bugger off" is apparently still the name of the DOD investigative game when it comes to investigating its own CIVCAS incidents.

Yet DOD Secretary Lloyd Austin pledged last year to reduce civilian harm in combat operations through a comprehensive and laudable civilian harm reduction program. However, the Secretary needs to now put money where his mouth is.

Unless the Pentagon uses some of the $3 million dollars Congress specifically gives it to redress civilian harm ($3 mill a year for a decade), to provide condolence (ex gratia/solatia) payments to the victims of this 2019 strike that killed and maimed civilians, DOD's new program will remain superficial window-dressing.

If the US cannot tangibly admit combat mistakes that take innocent lives and injure civilians by providing victims and their families assistance through monetary compensation (despite such payments legally not representing admission of fault), the US military's growing reputation of not caring about civilians in combat zones (hence feeding directly into enemy foreign propaganda and terrorist recruiting lines) will only continue to strengthen. Never mind that paying these victims is simply the right thing to do, and the least the US can do when it unavoidably kills innocents in war (if the deaths were avoidable, then there should be courts-martial along with the payments).

Extremism: what to do?

Air Force military judge Michael Schrama, writing in War on the Rocks, has offered this thoughtful appraisal of the problem of extremism in the ranks and what might be done about it. Excerpt:

[T]he freedom of speech protections under the First Amendment drastically limit the ability of criminal statutes to regulate content and viewpoints in a domestic setting. There is a concern that the application of a domestic extremist punitive article will violate the First Amendment. Certainly, every effort must be made to avoid undermining servicemembers’ constitutional rights. However, the Supreme Court has been consistent in giving deference to the military to determine and create policies for itself. In fact, policies aimed at keeping the military “insulated from both the reality and the appearance of acting as a handmaiden for partisan political causes” are “wholly consistent with the American constitutional tradition of a politically neutral military establishment under civilian control.” The Court’s deference extends to military policies that restrict individual rights, which are constitutionally protected for civilians. 

The Supreme Court has not held that the Constitution and the Bill of Rights are inapplicable to the military, but it has held that the executive branch and Congress have extraordinary leeway to determine the extent of those rights. Accordingly, the military can curtail a servicemember’s rights far more than civilian authorities can curtail a civilian’s rights. The Supreme Court often refers to the military as a “separate community” with the wholly unique purpose of providing for the nation’s defense and waging the nation’s wars: “The different character of the military community and of the military mission requires a different application of [First Amendment] protections.” Courts base the argument for the separate community doctrine on the military’s exigent function, on which the survival of the nation depends and which has no analogue or parallel in civilian society. To provide for the nation’s defense and survival, this separate community abides by strict rules of discipline that will necessarily involve restriction of otherwise constitutionally provided protections.

Will the Supreme Court defer to a congressional judgment on this subject? That's the $64,000 question. 

More on court-martial jurisdiction--Pakistan

The federal government on Monday requested the Supreme Court to dismiss all the petition challenging the trial of civilians in military courts, saying that violence against military and vandalism of army installations was a direct attack on the national security of Pakistan, and was therefore prejudicial to security, interests and defence of Pakistan.

Sohail Khan, Military courts trial doesn’t curtail rights under law, govt tells SC. The News, 18 July 2023.

Possible contempt in TT

The Trinidad and Tobago Coast Guard went ahead with promotions in the face of a court order staying them. Judging by this report, the government has some explaining to do.

Green pass violation acquittal

An Italian military court has issued a noteworthy decision in the case of an unvaccinated soldier who entered the barracks without the required COVID "green pass." Details here (use Google Translate). Excerpt:

In terms of constitutional, criminal and civil law, there is no difference between the vaccinated and the unvaccinated. This is the result of the sentence of the Military Tribunal of Naples, the first ever in Italy, which effectively invalidates the logic of the green pass and addresses the issue of adverse effects from the Covid vaccine with extreme seriousness.

Can a military person be tried in civilian court?

That question is pending before the High Court of Kenya, according to this report. The accused is now a civilian but at the time of the charged murders was apparently an active duty major in the Kenya Defence Forces.

Sections 4, 5 and 56 of the Kenya Defence Forces Act would seem to permit civilian trial and exclude trial by court-martial.

Pakistan

The Supreme Court of Pakistan will resume consideration of the constitutional petitions challenging the trial of civilians by military courts on Tuesday, July 18.

Arrrhh (for your bookshelf)

Reaktion Books, distributed by the University of Chicago Press, has announced the publication of a fascinating new book by Rebecca Simon, The Pirates' Code: Laws and Life Aboard Ship. Bookseller's review says it a "rollicking account" [no surprise there] that "explains how [the pirates' codes] determined everything, from how much each pirate earned from their plunder to compensation for injuries, punishments, and. more."

Bastille Day 2023

 

States and the Right to "Turn Down" Nonjudicial Punishment

Article 15(a) of the UCMJ permits U.S. military members facing nonjudicial punishment (NJP) to turn down the punishment and instead "demand[] trial by court-martial." This right applies unless the member is attached to or embarked on a vessel. 

U.S. states and territories each have their own codes of military justice. All authorize NJP. But interestingly, when it comes to the "turn down" right they are almost evenly split: 28 permit military members to turn down NJP, 26 do not (meaning that NJP is binding).

The 28 states and territories that follow the DoD on permitting NJP turn-downs: Alabama, Arizona, Arkansas, California, Connecticut, Delaware, the District of Columbia, Guam, Idaho, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Montana, New Jersey, New Mexico, Oklahoma, Puerto Rico, South Carolina, South Dakota, Utah, Vermont, Virgin Islands, Washington, and West Virginia.

The 26 states and territories where NJP is binding: Alaska, Colorado, Florida, Georgia, Hawaii, Illinois, Indiana, Maine, Michigan, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Virginia, Wisconsin, and Wyoming.

There are several reasons why nearly half of the U.S. jurisdictions do not follow the UCMJ, which is often the default template for states when crafting their own codes of military justice. First, some states may not conduct courts-martial, or can only convene them with great difficulty and expense. Military officials would lose credibility, and offenders gain sway, if the military's bluff is called when a member exercises the turn down right and the military is forced to back down. Second, many states offer other avenues of relief for military members who perceive they were treated unfairly in NJP, including petitions to the governor. Finally, several states may have decided that matters that were already deemed to be "minor offenses" suitable for NJP would be a waste of judicial resources for full-fledged court-martial, which are most suited for the adjudication of major offenses.

Military trials of civilians in Cuba

From this elToque report on Cuba's proposed military criminal code:

In Cuba it is common for civilians to be tried in Military Courts regardless of whether the conditions of the accused and the fact correspond to what is established in the military procedural law.

A recent example is sentence no. 13 of 2023 issued by the Central Territorial Military Court against eight people from Cienfuegos who protested during the summer of 2022 against the electricity cuts in the Covadonga town, Aguada de Pasajeros municipality. 

The ruling provided for sentences of up to nine years in prison for some defendants, after having considered that their protest constituted the common crimes of sabotage and public disorder, both typified in the current Penal Code. 

Following the protest, the authorities created two separate files. One was processed by the Civil Prosecutor's Office; in which they grouped the protesters who did not take part in the assault on a local currency collecting store (TRD). Another, instructed by the Military Prosecutor's Office, grouped those who did. 

However, as the investigations progressed, the General Prosecutor's Office decided that the demonstrators should be tried in a single file that had to be investigated by the Military Prosecutor's Office and tried by a Military Court. The legal justification for the decision was that the TRD belongs to Cimex (a company of the Armed Forces business system). Therefore, a social protest that had resulted in the assault of a facility of this type could be considered a crime that had been committed in a “military zone”. In this way, he had to be judged by the Army Courts.

The above is not a new treatment. Several protesters from 11J were tried in the military courts under the same argument. But it is a treatment that shows how crooked the Cuban justice system is and how deep is the deformation of a police/military State that considers a store of basic necessities a military zone, and a social protest that did not even have the store as a center, a criminal act that must be judged under the rules of a military court.

The trial of civilians by military courts is strongly disfavored under human rights jurisprudence. Military trials of civilians are a familiar feature of regimes that wish to suppress dissent.

Disorder in the court

Have you been wondering what's going on with the Supreme Court of Pakistan, before which cases challenging the trial of civilians by courts-martial are pending? Dawn has this useful article: it turns out two justices think the court first needs to decide whether the Chief Justice of Pakistan has power to constitute benches to hear cases. A member of the bar has sought to have them held in contempt for refusing to sit on the court-martial case until the question of the Chief Justice's powers is resolved. 

Why does this all look like a slow-motion train wreck?

Welcome to Myanmar

Yes, Myanmar, where civilian union organizers and garment workers are put on trial before a military court for seeking higher wages and better working conditions. Details here.

Political activities in the age of social media

War on the Rocks has a really smart op-ed by John Childress, Dave Richardson and Heidi Urben on the urgent need to update the Defense Department directive on political activities of military personnel. Here's how they set the stage:

When the Department of Defense last updated its directive that regulates the political activities of servicemembers, the social media platforms TikTok, Instagram, and WhatsApp had not yet been created. Twitter was two years old, and Facebook had only been open to the public for 18 months. The current directive was published exactly two weeks after Super Tuesday in the 2008 presidential primaries, a time when political polarization was starting to gain more attention on the national landscape. As the Department of Defense wrestles with how to preserve the military’s nonpartisanship in what is clearly now an exceptional period of polarization, it relies on an outdated directive that fails to address the contemporary challenges the military services face regarding partisan political speech and behavior by those in uniform. 

It is critical that the Department of Defense develop and publish a significant revision to the outdated directive that currently guides the political activities of U.S. military members before the November 2024 presidential election. However, a new and updated directive is not enough. The U.S. military should also commit to training the force on both the content of the new directive and the reasons why norms and rules surrounding political activities are so important to the health of U.S. democratic norms.

Tribunal of inquiry likely in Ireland

The Irish Examiner reports here that there will be a public Tribunal of Inquiry to investigate charges of abuse in the Irish Defence Forces. Excerpt:

The Women of Honour group earlier expressed “disappointment” that the terms of reference had not been substantively changed.

A spokesperson said: “We will be opposing this plan and will be communicating this to all other party leaders.

“It is very disappointing that, despite in-depth discussions and the efforts of so many, comprehensive terms of reference will not be put forward to Government.

“We remain of a view that the Department of Defence is having too much influence in this matter.”

An Irish three-fer: union membership, prosecutorial independence, transparency

A May 24, 2023 decision of Daniel Murphy, adjudicator in a case between the Representative Association of Commissioned Officers (RACO) and the Irish Department of Defence, makes interesting reading regarding unionization, prosecutorial independence, and transparency. Held, the (unpublished) regulation disqualifying RACO members from serving as Director of Military Prosecutions is unreasonable. Excerpts:

Secret Laws

39. As an aside, I asked the Department where Defence Force Regulations (which the Department described as “secondary legislation”) are published. It appears that these laws are not published in the Irish Statute Book website or Iris Oifigúil or, indeed, anywhere at all. The Department did say that they were brought to the attention of serving Defence Force personnel. However, this does not seem to be organised in any coherent way in view of the fact that the General Secretary of RACO who is a Lieutenant-Colonel in the Army had not been advised of the adoption of the law set out in DFR 02/2020 either in his capacity as General Secretary or as an Army Officer until he happened to come across a reference to it in the Official Side Counter-Statement on Arbitrability in March, 2021 – 15 months after it had been adopted. There cannot be secret “laws”.

*. *. * 

No Justification for Prohibition on RACO Membership

74. I cannot understand how it can be argued that the prohibition on RACO membership for the Director of Military Prosecutions can be justified against this background. It makes no sense to bar RACO membership on grounds of a fear that it could affect the independence of the Director in the exercise of his functions when the independence of a Military Judge is not affected by RACO membership; when the independence of Officers sitting in judgement on their fellow officers and RACO members in the military justice system is not questioned; when the independence of holders of other statutory offices are not affected by trade union membership; when independence is apparently not threatened by attendance at Officers’ messes and participation in cultural and sporting organisations of Military Officers; when the Department was unable to provide any concrete evidence that membership of RACO had affected the independence of previous Directors and when matters relating to discipline are outside the scope of the representative functions of RACO.

Independence – Military Officer – Member of RACO

75. One must also have regard to the relative significance of being an officer in the Defence Forces and being a member of RACO. For most normal people, their occupation is one of the things that defines them – both to others and to themselves. People who are members of trade unions or representative associations are, of course, aware of the fact of their membership of these organisations but this awareness is, at it were, in the background and not a permanent focus of their lives, unlike their actual occupation. In the case of military officers, the military milieu (uniforms, salutes etc.) emphasises their occupation significantly but their relative awareness of RACO membership is not any way greater than that of people in civilian life.

76. The Official Side maintain that membership of RACO is such that it would impair the DMP’s independence. Yet, despite the fact that being a member of the cadre of military officers is a far more significant part of the life of any military officer than his/her membership of RACO, they do not maintain that being a military officer can affect the independence of the DMP. Objectively, there is no logic in this but, of course, the Official Side could not advance this argument since the Oireachtas has legislated, explicitly, that the DMP is to be a military officer. Since that, by explicit decision of the Oireachtas, does not impair the independence of the DMP, it defies all reason to maintain that membership of RACO – a far less significant factor than membership of the cadre of military officers - would impair that independence.

The Dublin Journal has this report. 

Looking at ¶ 74 of the decision, is it clear that uniformed military judges meet the test of independence? A Charter case currently before the Supreme Court of Canada, Edwards v. H.M. The King, No. 39820,  raises that issue. The case will be heard on October 16, 2023.

Cienfuegos military trial

A military court in Cuba has completed the sedition trial and sentencing of civilians who protested last year's blackouts. Details here, courtesy of Martí Noticias.

Among the countries that, like Cuba, have a tradition of prosecuting civilians in military courts: Uganda, Lebanon, Egypt, Tunisia, Pakistan, and Cameroon. Cases currently pending in the Supreme Courts of Uganda and Pakistan challenge the practice, which violates international human rights standards.

2 distinguished DAC-IPAD members write about the charging standard

Two members of DAC-IPAD (the Defense Advisory Committee on the Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces) have written a persuasive op-ed on the need for DoD to promptly settle on and announce a single standard to govern charging decisions by the new Special Trial Counsels. According to retired Federal District Judge Paul Grimm and Assistant U.S. Attorney Meghan Prokash:

Uniform prosecution standards also would forever put to rest the military’s archaic practice of using the less rigorous standard of probable cause to refer a case to court-martial. Over the last decade, the probable cause referral standard has likely been the culprit for the abysmal conviction rate in sexual assault cases in the armed forces. Additionally, the military is the only jurisdiction in the United States of America that uses probable cause (the standard of proof to obtain a warrant) to refer a case to a felony level trial where the burden of proof is beyond a reasonable doubt. The probable cause standard to refer a case to court-martial has plagued military sexual assault prosecutions for years. As the military professionalizes lawyers in its ranks with the establishment of independent offices charged with prosecuting special victim crimes, it must also adopt uniform principles of prosecution on par with the Department of Justice. And its prosecutors across all services should use the heightened referral standard of admissible evidence to obtain and sustain a conviction.

The slaps heard round South Korea

Yonhap News Agency reports here on a decision of the Republic of Korea's Supreme Court remanding a case in which a colonel had repeatedly slapped a junior soldier for failing to salute him. The soldier did not want to press charges, but the case is going ahead anyway. Excerpt:

In the first trial, he was found guilty, but an appeals court dismissed his indictment by agreeing with his argument that the U.S. military base is not subject to the Military Criminal Act and violence cannot be punished against a victim's objection under the civilian criminal code.

However, the Supreme Court rejected that decision and sent the case back to the Seoul High Court for a retrial, saying it does not matter whether the violence took place on a military base for foreign troops or not as long as it happened at a place used for the country's military operations.

Legislation proposed in Cuba

A bill to amend the Military Penal Code has been introduced in the Cuban National Assembly. The bill, which was submitted by the Supreme Court, can be found here. This news article on the bill gives a few details.

Operation Fouled Anchor

The U.S. Coast Guard is on the hot seat for not revealing a major investigation into the handling of sexual misconduct at the Coast Guard Academy. Details here.

From CNN's report:

“This investigation made clear that the [school’s] leadership was more concerned at that time about organizational and [Coast Guard Academy] reputation than about the victims of crimes who were members of our service,” a draft of the Fouled Anchor final report from 2019 said.

Watch for congressional action. 

And Uzbekistan makes 195

It was a quiet holiday weekend evening here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza until the starboard lookout happened to notice our first hit from Uzbekistan. That makes an incredible 195 jurisdictions. 

Time to run the numbers:

Hits, 1,275,776

Posts, 7076

Comments, 1047

Jurisdictions, 195

Contributors, 26 + 1 Editor

Town Halls, 25

Thanks to everyone for helping us reach this milestone. We are still waiting to hear from Nauru and a few other jurisdictions that haven't yet checked in.