Brigadier General Cooke's Romig Lecture

Brigadier General (ret) John S. Cooke, now Director of the Federal Judicial Center, delivered the Third Thomas J. Romig Lecture on Principled Legal Practice at the Army Judge Advocate General's Legal Center and School in Charlottesville. Here's an excerpt from his discussion of some of the themes and lessons that can be drawn from American military justice history:

The first one goes back to what I talked about before, justice and discipline. Discipline had gone from something imposed on unwilling or recalcitrant people to something that is instilled and inspired by the court-martial system and by society in its approach to people and recognizing their dignity and autonomy and trying to foster that. William Tecumseh Sherman, a lawyer in the 1800s, said that justice and discipline are polar opposites. That may have been the case when all this started, but now they are joined. You cannot have one without the other. You need them both. To me, that is the overarching change that occurred throughout this time. It has happened in the court-martial process through some changes in the rules, but more in the changes in our attitudes and approach to what we are trying to get out of people and accomplish. Recognizing that courts-martial are important, it is a much broader approach to accomplish the justice and discipline that we want. Obviously, one trend has been the curtailment of the broad authority that commanders had under the original Articles of War. Their powers have been restricted at almost every step of this change. It is noteworthy that, for the most part during the period that I have talked about up through the eighties, the power of commanders were restricted because it was perceived that commanders had a thumb on the scale in favor of the prosecution, that they had a tendency to be too harsh, and that the imposition of discipline was given too much weight.

The changes that you are going to confront were made for a different reason. They were made because commanders were perceived rightly or wrongly, to be too lenient or too lax in exercising the prosecutorial function. That is a big change. I do not know the implications that really has going forward, but I think it is something that needs to be thought about. As commanders’ roles and authorities were restricted, lawyers stepped in and gained more authority and responsibility throughout this whole process. Sometimes it was done through regulation, rule, statute, or by default. Somebody had to do it. Commanders were not allowed to do it or did not want to do it. Lawyers stepped in and, as we have seen, they did so under some difficult circumstances, including the Korean War, the Vietnam War, and the turbulence of the seventies. Each time lawyers stepped up and did it, they did it while controversy may have continued at higher levels. The Pentagon, politicians, and others may have continued to fight and argue over whether this was a good change or a bad change. The lawyers on the ground, the company grades and the field grades, were out there making it work and doing it the best they could. It did work, and the system has improved throughout that process. It has not always been a straight linear line up. There has been bumps, but it has worked because people like you made it work. You put your head down and said, this is what we have got to do to get this done, and that is the broad history of it.

"A new low"

A group of UN experts has criticized the recent decision of the Russian Constitutional Court on legislation criminalizing speech that discredits the armed forces. The Office of the High Commissioner for Human Rights issued this news release. Excerpt:

“We are seriously concerned about the implications of the decision for many legal cases brought against individuals for expressing themselves critically or for participating in demonstrations against the war in Ukraine,” the experts said. They warned that scores of activists, journalists and human rights defenders face harsh punishments ranging from five to 15 years imprisonment.

“We respectfully urge the Constitutional Court to change course and guarantee freedom of expression in Russia, and urge Russian authorities to repeal the legislation,” the experts said.

Seen at the British Museum

 

A Tip of the Hat to Admiral Kessi Kouamé, for his remarkable and exceptional contribution to Côte d’Ivoire's civil society and military justice

This past January 20323, Admiral Bernard Kessi Kouamé retired from the armed forces of Côte d’Ivoire in his capacity as Military Prosecutor. In an interview published in August 2023 by PRATMAT-INFO, Admiral Koamé speaks openly about his 23-year military service particularly in his role as military prosecutor before the Military Tribunal of Abidjan. He notes, inter alia, “ During those 23 years, I was never pressured. Military law requires me to report to the Minister of Defence and the Minister of Security. So sometimes I report to them and wait for their instructions on some very sensitive issues. Otherwise, I was not pressured in the performance of my duties.” 

LINK:  Amiral Ange Bernard Kessi Kouamé (Procureur militaire à la retraite) : « Le procès du général Guéi a été un challenge pour moi » (interview exclusive) | FratMat

Admiral  Kouamé went on to speak about his role in the trial of General Guéi’s presumed assassins: “The trial, from the investigation to the end, was a challenge for me. A challenge because you had to judge generals, then you had to be precise to make sure you were not wrong.” 

Admiral Kouamé is also known  and respected for his important and generous civil contribution: “ Every month, I set aside 300,000 francs. . .  .half of my bonus as a military magistrate . . .   These are savings  . . .that can be made to redistribute to our population, and that's what I did. . . .to help the population with little. Look, one day students from the modern high school of Arrah came to see me to be their godfather and they presented me with a quote of 4 million. I told them that if I have money, it is to make sustainable works, I will built eight for the modern high school of Arrah, four for girls and four for boys.”

Admiral Kouamé is also the author of several books including:  "The impact of court decisions on human resources management in the armed forces of Côte d'Ivoire". 

Government brief in opposition in Larrabee

The government's brief in opposition to the certiorari petition in Larrabee v. Del Toro, U.S. No. 22-1082, concerning court-martial jurisdiction over retirees, can be found here. [Full disclosure: the Editor is one of the petitioner's attorneys.]

New military commissions convening authority

Retired U.S. Army JAG Corps Brigadier General Susan K. Escallier will take over from Col. Jeffrey D. Wood as military commissions convening authority on October 8. Carol (All Things GITMO) Rosenberg reports here for The New York Times.

Transparency (if a tree falls in the dark . . .)

ProPublica is on the U.S. Navy's case when it comes to transparency of court-martial records. Megan Rose has the story here. Excerpt:

[T]he Navy’s policy is to withhold court records from the public throughout most, if not all, of those proceedings, preventing independent scrutiny into how sexual assault cases are prosecuted. What happens in the crucial period before a court-martial is never made public by the Navy. The public doesn’t even know if a sailor or Marine has been charged with a crime unless the case goes to trial. The Navy provides no notice of when the service is holding an Article 32 hearing, which determines if there’s enough evidence for trial. And the related pretrial records are concealed permanently.

Meanwhile, the Brennan Center for Justice has this report on the Defense Department's larger lack of military transparency. Excerpt:

The Department of Defense has a transparency problem, and Congress knows it. The department has long not complied or undercomplied with its legal obligations to provide lawmakers with reports and notifications about military activity. Recently, Congress has begun to push back — gently — on these shortfalls. In 2019, Congress required the department to prepare a plan for standardizing its submission of reports. And in 2021, Congress required the department to publish biannual lists of the reports it submitted. Unfortunately, these modest efforts have not led to improved military transparency. More robust action from Congress may be necessary to overcome the Department of Defense’s persistent failure to give information to lawmakers.

Through a Freedom of Information Act request, the Brennan Center obtained a copy of the Department of Defense’s plan for standardizing its submission of reports — a document titled A Report on Reports. Instead of proposing concrete steps for the department to take, the plan is rife with blame shifting, legal misinterpretation, and an implicit unwillingness to follow the law.

RAF and indecent exposure

A British judge advocate has said RAF officers need to stop exposing themselves. Here's the story.

Transparency in military justice

The National Institute of Military Justice is hosting a one-day program on transparency in military justice on October 6, 2023 at George Washington University Law School. You can find full information here.

Panel I: The Role of the Press | 10:00AM-11:30AM

Moderator: Brenner Fissell, NIMJ
David Phillips, National Correspondent, The New York Times
Kyle Rempfer, Editor, The Washington Post
Thomas Brennan, Founder, The Warhorse News
Jessica Kegu, Producer, CBS News
 
Panel II: Public Involvement in Lawmaking and Rulemaking | 12:30PM--1:45PM

Moderator: Rachel VanLandingham, NIMJ
Eugene Fidell, Senior Research Scholar, Yale Law School
Jamie Jackson, Partner, K&L Gates
Don Christensen, Of Counsel, Solomon Law
 
Panel III: Public Access to Courts | 2:00PM--3:15PM

Moderator: Franklin Rosenblatt, NIMJ
​Seth Berlin, Senior Counsel, Ballard Spahr
Sarah Matthews, Deputy GC, Pro Publica
Brittany Warren, Senior Associate, WilmerHale​

Black flags and juridification

Taking the decision of whether an order is manifestly unlawful away from combatants and trusting it in the hands of lawyers is part of the juridification of war. The debate on whether such juridification helps or hinders the advancement of human rights is an ongoing one in Israel and globally. David Kretzmer and Yaël Ronen argue in their book “The Occupation of Justice” that the involvement of the Israeli Supreme Court in scrutinizing the legality of Israel’s occupation helped legitimate it and thus may have even prolonged it. My argument is different and aims to show that in the name of advancing human rights obligations, the juridification of the process of ordering airstrikes has created an inhuman system in excluding the pilot’s eye from the decision of whether an order is manifestly unlawful.

From Dr. Or Bassok, The Legal Takeover of the Manifestly Unlawful Order Doctrine in Israel, Just Security, Aug. 14, 2023

Nashiri confession suppressed

A military judge has suppressed the confession of one of the defendants in the USS Cole bombing military commission case. Carol Rosenberg of The New York Times has the story here. The judge's 50-page decision can be found here. Excerpt from the Times article:

Rear Adm. Aaron C. Rugh, the chief prosecutor for military commissions, did not respond to a question about whether his team would appeal the ruling. With a new judge expected later this year, prosecutors could seek reconsideration at the Guantánamo court or raise the issue with a Pentagon appeals panel, the Court of Military Commissions Review.

The case for termination

The Summer 2023 issue of the Journal of Appellate Practice and Process has this article by the Editor on The Case for Termination of the United States Court of Appeals for the Armed Forces.

Editorial in The Telegraph (India) on the desirability of changes in military law in India in view of the reforms in the US

The Telegraph (India) has carried an insightful opinion piece attributed to its editorial board on the desirability of replicating in India the recent changes initiated by President Biden in the US through an Executive Order to implement military justice reform to strengthen the system of how the military handles sexual assault cases. 

The write-up crucially (and rightly) raises concerns on the independence of
the military justice process and the prosecution under the Indian system. While there is no dearth of voices within and outside the system for progressive changes in military justice in India, especially to make it more independent, the accompanying ground-work is lacking and very lethargic, although (minor) steps have been taken to conceptualize a common military justice code. Currently, the three defence services have separate Acts governing them.

However, one point which is not common knowledge amongst legal minds, both within and outside the country, is that military courts cannot try all offences committed by defence personnel against civilians, and in certain cases it is mandatory to process the case through a regular criminal court. Meaning thereby, that the law bars the trial of certain offences by a court martial. In case a person subject to military laws commits the offence of murder or culpable homicide or rape against a civilian, that person cannot be tried by a court martial unless the said offence is committed while on “active service” (practically in an operational area), outside India or “at a frontier post specified by the central government by notification in this behalf”.

The editorial can be accessed here.

Changes to Wisconsin military law under consideration

The Wisconsin Examiner reports here on a state senate committee hearing on possible changes to the Wisconsin military code. Excerpt:

SB 166 would make several changes to the Wisconsin Code of Military Justice, including by implementing a policy that ensures that victims of offenses, under the code, are treated with dignity, respect, courtesy and fairness. 

SB 167 would require the Department of Military Affairs (DMA) to compile and submit annual reports. One report, which would be submitted to the governor and the Legislature, would focus on sexual assault and sexual harassment reported by members of the Wisconsin National Guard. The DMA would also need to submit a report that describes any substantive changes to the federal Uniform Code of Military Justice (UCMJ) during the prior federal fiscal year to the Legislature. 

SB 168 would require the DMA to establish and maintain a case management system, which would ensure a way for the National Guard to track and manage casework related to misconduct within the Guard.

COVID-19 and the Canadian Forces grievance process

Recently, several Canadian national news media platforms have reported on a series of Findings & Recommendations (F&R) produced by a member of the Military Grievances External Review Committee (MGERC), Nina Frid, regarding several grievances submitted by members of the Canadian Forces (CF) who faced adverse administrative action, up to and including compulsory release from the CF for declining or refusing vaccination against COVID-19.

These F&R - and the national news media coverage of them - are noteworthy for a variety of reasons.  Mandatory vaccination against COVID-19 in certain circumstances remains a contentious subject.  Nearly 300 CF personnel were compulsorily released from the CF on these grounds.  Yet, the CF subsequently halted such action for other pending releases.

Notwithstanding that section 126 of the National Defence Act expressly creates a Code of Service Discipline offence for refusing vaccination without reasonable excuse, no one was ever charged or prosecuted for refusing COVID-19 vaccination.  This is also noteworthy in light of the "disciplinary language" employed when CF members were subject to adverse administrative consequences for their refusal.

One of the most significant facets of the F&R produced by Ms. Frid is that she produced three analytical Annexes of broad application to these grievances.  These Annexes refer to policies and practices as well as law and legal principles.  They are not specific to any particular grievance.  They do not disclose personal information relating to specific grievants.  Consequently, these Annexes can be, and have been, made public.  This has fueled further discourse on the merit of both the CF polices (and their implementation) and the MGERC F&R.

However, the MGERC is not the final decision-maker or adjudicative authority for these grievances.  The MGERC merely provides F&R.  The Chief of the Defence Staff (CDS) is the final authority in the CF statutory grievance process and he is not bound by the MGERC F&R.  There is a marked likelihood that the CDS will be inclined to reject all or part of the F&R relating to these grievances, although he will have to provide adequate reasons for doing so.  This could likely trigger judicial review before the Federal Court.  The F&R does not constitute the "last word" on this issue.  However, Ms. Frid's now-public F&R will likely be the subject of further discussion and judicial review.

For a more detailed examination of the decision-making dynamic between the MGERC, the CF, and the CDS: 

Rory Fowler, MGERC Findings & Recommendations: Myths & Misconceptions, 9 August 2023

Has the Supreme Court of Pakistan blinked?

The Supreme Court of Pakistan has put on indefinite hold the several cases challenging the government's use of military courts to try civilians, ostensibly because legislation to create proper appellate rights for persons tried under the Army Act. Dawn has the story here. 

Giving direct appellate review rights to the civilian courts is a step in the right direction, but the human rights issue is more fundamental: human rights principles strongly disfavor the trial of civilians by military courts. By the time a case reaches the appellate stage, the damage is already done.

Geoff Corn on the new charging system

Texas Tech's Professor Geoff Corn has written this insightful op-ed on where the path leads now that President Joe Biden has issued an Executive Order promulgating the 2023 amendments to the Manual for Courts-Martial. Excerpt:

We should also expect that these Prosecutors will make their critically important decisions ethically and honorably, faithful to the law they each swear to uphold. All of this indicates a new era of more aggressive sexual assault prosecutions may be an unrealistic expectation; that the number of cases sent to trial may actually decline. Whatever the numbers turn out to be, this is by far the most laudable consequence of this change: a higher degree of confidence that the decision to send a case to trial – or decline to do so – is based on evidence and law and one we should respect. But from a policy perspective, this may actually contribute to the perception that the system is still flawed. That would be truly unfortunate.

For some who participated in the years-long effort that led to creation of the new Special Trial Counsel system, the goal was to drive up the number of prosecutions for sexual assault and similar offenses. For others (the Editor is one), the goal was to foster increased public confidence in the administration of military justice across the board, regardless of whether the number of prosecutions went up, down, or sideways. Prof. Corn's op-ed is spot on in noting that public confidence is the goal, "[w]hatever the numbers turn out to be."

The question on the Editor's mind now is whether and when Congress will focus on the obvious diseconomy of maintaining two parallel charging apparatuses -- one (STCs) for "covered," "related" and "known" offenses, and the other (command-centric) for everything else. The current "house divided" makes no sense as anything more than an interim state of affairs.

E.O. 14103

The Federal Register version of the 2023 amendments to the Manual for Courts-Martial can be found here. 

H/T to Global Military Justice Reform contributor Don Rehkopf.

D.C. Circuit rejects heightened deference to PDBR decisions and clarifies ratings for multiple conditions

Elizabeth J. Jonas of DLA Piper LLP has kindly written this account of a noteworthy recent decision.

On July 28, 2023, the D.C. Circuit issued its noteworthy decision in Sissel v. Wormuth, No. 22-5045.  First, it rejects heightened deference to decisions by the Physical Disability Board of Review (“PDBR”), holding that typical arbitrary-and-capricious review under the Administrative Procedures Act applies.  Second, it finds that when multiple conditions are implicated, the PDBR must separately identify each condition in issuing ratings decisions, even in cases where two or more conditions collectively render a servicemember unfit and one of these conditions separately renders a servicemember unfit.  

Several amici curiae participated in this important case in support of Mr. Sissel, including Military-Veterans Advocacy, Inc., the Connecticut Veterans Legal Center, and Professors Eugene R. Fidell and Franklin D. Rosenblatt.  We had the privilege of representing Professors Fidell and Rosenblatt in their brief arguing that heightened deference should not apply to PDBR decisions. 

The Sissel decision is an important development in disability benefits law, as it rejects any sort of heightened deference to PDBR decisions—the type of deference typically afforded to military corrections boards.  The court reasons that such deference does not make practical sense because the PDBR performs distinct functions that do not concern active personnel, “such as performance reviews and promotion decisions.”  Additionally, the court is guided by the premise that less deference is warranted where an agency is afforded less discretion under a governing statute.  The court reasons that the PDBR is afforded less discretion under its operating statute, 10 U.S.C. § 1554a—which says the agency “may” act—than the statute which governs the correction of military records, 10 U.S.C. § 1552, which provides that an agency can act “when the Secretary considers it necessary.”   

Further, the court found that the PDBR erred in failing to separately rate each of Mr. Sissel’s injuries, instead lumping two injuries under a single diagnostic code and fitness rating.  To the extent one injury was non-ratable, the PDBR should have notated this condition as not separately unfitting and not contributing to unfitness; to the extent the second condition contributed to the first condition to render Mr. Sissel collectively unfit, the PDBR was obligated to separately rate the second condition.  Relatedly, the court held that a condition does not need to “significantly” contribute to a finding of collective unfitness to be separately rated; if it contributes at all to the unfitness determination, it must be separately determined. 

The decision in Sissel has significant implications for servicemembers appealing decisions of the PEB and PDBR, including opening the way to more circumspect review of disability-related agency decisions by courts.

Happy birthday

System of Cutters, U.S. Revenue Cutter Service, U.S. Coast Guard, August 4, 1790--August 4, 2023