Uganda--still at it

Uganda continues to prosecute civilians in courts-martial. The latest case involves six men charges with possession of a rifle and 16 rounds of ammunition--all said to be a monopoly of the armed forces. Details here.

Human rights jurisprudence strongly disfavors the trial of civilians in military courts. Uganda is a regular offender of this principle.

Donald N. Zillman

We note with sadness the death on July 27 of Donald N. Zillman. Don was a longtime close observer of military justice as well as military personnel policies more generally. He wrote extensively about these fields, including articles concerning the decline in the number of veterans in the U.S. Congress. He was incurably optimistic and encouraging of others. For many years he was the Edward Godfrey Professor of Law at the University of Maine School of Law. He graduated from the University of Wisconsin (B.A., J.D.) and the University of Virginia Law School (LL.M). He served as a U.S. Army judge advocate and taught law at Arizona State University, the University of Utah, and the University of Maine. He served as Dean at Maine Law and, for six years, as President of the University of Maine at Presque Isle (UMPI). He was a visiting professor at the United States Military Academy at West Point and the University of Southampton (UK).

UMPI posted this obituary.

Are we coming to the end of an all-volunteer military force?

The Washington Post on September 22, 2023 carried an opinion piece by former Defense Secretary Mark T. Esper (2019-2020).  He was President Trump's Defense Secretary and fired after he called Trump's effort to subvert the 2020 presidential outcome "a national embarrassment that undermined our democracy." His term as Defense Secretary was distinguished by his attempt to modernize the military and especially the recruitment thereof.  For that reason his concern about the decline in the number of Americans who are qualified and interested in serving, deserves attention:

"The fact is , the pool of Americans ages 17 to 24 who are qualified and interested in serving continues to shrink.  When I was Army secretary in 2017, 71 percent of these 34 million young people could not meet the military's entry requirements, mostly because of obesity, drug abuse, and physical and mental health problems.  That number is even higher now.  About half of the 23 percent remaining who are eligible to serve today decide to attend college.  At the same time, the share of the entire cohort with a propensity to serve has dropped from 13 percent to 9 percent.  That leaves fewer than 500,000 potential recruits.  It's hard to believe that a nation of 333 million people can't produce a larger pool."

Maybe if the military offered to cover the cost of a college education after military service more young people would be interested in enlisting.

Use of race in detailing court-martial members--no mas

Yesterday, the U.S. Court of Appeals for the Armed Forces, in an opinion by Judge Sparks, decided United States v. Jeter, No. 22-0065. Judge Maggs dissented. From the opinion for the court:

In United States v. Crawford, 15 C.M.A. 31, 35 C.M.R. 3 (1964), our predecessor Court stated that in the course of creating a venire panel, it is appropriate to add an African American servicemember to the panel specifically because of that servicemember’s race. The Court stated that if such a step constitutes discrimination, “it is discrimination in favor of, not against, an accused.” Id. at 41, 35 C.M.R. at 13. However, in Batson v. Kentucky, the Supreme Court held that “[a] person’s race simply is unrelated to his fitness as a juror.” 476 U.S. 79, 87 (1986) (citation omitted) (internal quotation marks omitted). Accordingly, we conclude today that our predecessor Court’s holding in Crawford was abrogated by the Supreme Court’s holding in Batson. In other words, Crawford’s authorization— indeed, its encouragement—to use race when deciding who should be appointed to a court-martial venire panel is no longer good law. As a result, whenever an accused makes a prima facie showing that race played a role in the panel selection process at his court-martial, a presumption will arise that the panel was not properly constituted. The government may then seek to rebut that presumption. Here, the Government did not meet its burden. Therefore, the decision below is reversed but a rehearing is authorized. [Footnote omitted.]

Jeter is the court's 24th full-opinion case of the about-to-end Term.

Judicial independence case in Canada

Edwards et al. v. H.M. The King, a case pending in the Supreme Court of Canada, raises a fundamental issue of judicial independence: Can a military judge be independent if he or she is a serving officer? The parties' factums and briefs from two organizational intervenors can be found here. The cases will be argued at 9:30 a.m. on October 16, 2023. The hearing will be webcast live.

UK research tool

Those who concern themselves with British military justice will want to save a link to the July 20 Summary of Court Martial Appeal Court Cases, issued by the Judge Advocate General.

Caine Mutiny remake trailer

Check it out here. Coming on 6 October.

Civilian oversight of military justice in Kenya

Cyrus Ombati, The Star (Kenya), reports that the Cabinet Secretary for Defense has invited representatives of the Commission for Administrative Justice (CAJ) to attend sessions of court-martial to see how fair they are. The invitation was generated because of complaints that courts-martial “lack fairness.” The invitation resulted from a meeting between the Secretary and persons from the Office of the Ombudsman led by the Chairperson.

Duale said he acknowledges and appreciates the place of the independent Commission founded under Article 59(4) of the Kenyan Constitution and their mandate of tackling maladministration in the public service. 

He informed the team that MoD has opened its gates for complaints both internally and externally under the existing chain of command anchored in the KDF Act of 2012. 

Also present during the meeting were the Chief of Strategic Policy and Plans Brig Edward Rugendo and Colonel John Ngatia from the Department of Legal Services.

Improved access to CAAF briefs

The U.S. Court of Appeals for the Armed Forces has quietly made a worthwhile change in its website. It now includes a new page for "Briefs of [should this read "in"?] Granted Cases Without a Hearing Date." According to an explanatory note:

In descending order, the following cases have been granted by this Court and ordered to file briefs. These cases have not yet been scheduled for hearings. Links to the briefs are provided soon after the briefs have been filed at this Court. Cases will be removed when a hearing date has been scheduled -- see Hearing Calendar -- or when another disposition has been published.

This is a step forward, although more can be done, even without shifting over (as the court should) to PACER. For example, it would be highly desirable to have access to supplements to petitions for grant of review. 

For comparison's sake, here's what the Supreme Court of the United States provides for a current military-justice-related case.

A call for reform legislation in India

Retired Major General (and former Indian Army Judge Advocate General) Nilendra Kumar writes here about the urgent need for reform in Indian military justice. He notes, among other things, the lack of parliamentary hearings on a recent bill, the absence of progress towards a statute that would cover military justice in all branches, and the failure to prescribe standards to govern rule making authority.

Is India's Armed Forces Tribunal independent?

That question has been put to the Supreme Court of India in a recent filing. Excerpt from ThePrint:

An Army colonel has raised doubts over the independence of the Armed Forces Tribunal (AFT), claiming it continues to work under the administrative control of the Union Ministry of Defence (MoD) despite the Supreme Court’s repeated judgments asking the Centre to put an end to the MoD’s control over the AFT.

*. *. * 

[Col. Rajbir] Singh’s petition also highlights the delays in AFT’s decision-making process. The tribunal, Singh contended, was under obligation to deliver judgment within a 30-day period, according to the provision of the AFT Act under which the tribunal was established. Under the law, the tribunal was also bound to specify the date of judgment at the time of reserving its verdict.

Comparative law note: The U.S. Court of Appeals for the Armed Forces is, by statute, located in the Department of Defense "for administrative purposes." Should it be?

Syria's military field courts

The Syrian Network for Human Rights has issued a powerful report titled An Instrument of Death and Disappearance: How the Syrian Regime Uses Military Field Courts Against Activists and Dissidents.

"The report explains the history of the founding of Military Field Courts in Syria, their historical evolution, structure, jurisdiction, procedural laws, and legitimacy from constitutional and human rights standpoints, as well as how they serve as instruments fully controlled by the head of state and the Minister of Defense. The report also details how Military Field Courts fail to adhere to the most basic guarantees of a fair trial, such as the right to attorney, the right to a public trial, and the right to appeal, as well as revealing that their judges do not report to the judiciary with regard to various functions such as appointments, transfers, inspection and disciplinary matters. That is to say that the Military Field Court is, in reality, an instrument wielded by the head of the state, the Ministry of Defense, and the state security apparatus to perpetuate the regime’s tyrannical rule and crush anyone who dares to involve themselves in any dissident action. In light of the nature of the complexities of the Military Field Court in Syria and the Syrian regime’s enforced disappearance practices and the intersection between these, the report draws upon multiple analytical tools in analyzing the data in the hopes of arriving at accurate findings based on the contents of SNHR’s regularly updated database on detainees and forcibly disappeared persons which has been built up through daily monitoring and documentation since 2011. In addition, the findings of the report draw upon the tracking and monitoring of the court’s procedures and mechanisms."

Vindication in Kenya

Kenya's Employment and Labor Relations Court has granted substantial damages to a former Army officer who was discharged from the service after the High Court overturned his court-martial conviction. The lateast decision is discussed here. The High Court's decision is Nyambok v. Republic, Crim. App. No. 3 of 2018 (Kenya High Ct. 2020).

New judges named down under

Attorney General Mark Dreyfus has announced five impressive appointments (including one reappointment) to the Defence Force Discipline Appeals Tribunal of Australia. Details can be found here.

No deal

President Joe Biden has nixed any deal with Guantánamo military commission defendants that would not only avoid the death penalty but would also protect them from solitary confinement and guarantee care for trauma due to torture. Carol Rosenberg and Charlie Savage of The New York Times have the story here.

Hasan decision

The U.S. Court of Appeals for the Armed Forces today handed down a 118-page decision unanimously affirming the capital case of United States v. Major Nidal M. Hasan, No. 21-0193. The Opinion of the Court was delivered by Chief Judge Kevin A. Ohlson.

Dr. Hasan has a right to seek reconsideration. He may also file a petition for a writ of certiorari with the Supreme Court of the United States.

The last U.S. soldier to be executed following conviction by a court-martial was Army Private John A. Bennett, who was hanged at the U.S. Disciplinary Barracks, Ft. Leavenworth, KS, in 1961.

About that mutiny . . .

What, again? Yep, it's the USS Caine.  Check here for specifics about the new film version of Herman Wouk's prize-winning World War II classic. (He served in USS Zane (DMS-14), left.)

Another challenge to Pakistan's misuse of military courts

A habeas corpus petition has been filed with the Supreme Court of Paklistan, charging that the use of military courts to try civilians is unconstitutional. Details of the petition are set forth in this account in The Nation. The petition was filed on behalf of detained barrister Hassan Khan Niazi by Mr. Niazi's father, a journalist. Excerpt:

He requested the court to declare that Section 94 of the Army Act, and the 1970 Rules are in­herently discriminatory, in direct violation of Ar­ticles 25 and 175 of the Constitution therefore ultra vires of the Con­stitution and to declare that the Commanding Officer’s Letter dated 17-08-2023 as unconstitu­tional, illegal and unlaw­ful vis-à-vis the handing over of the custody of the [said] Hassan Niazi in vio­lation of his fundamental rights, and provisions of the constitution. 

The petitioner fur­ther prayed the court to hold that Pakistan Army (Amendment) Act 2023 and the Official Secrets (Amendment) Act 2023 are ultra vires the Con­stitution, having been promulgated without fulfilling the formalities of Article 75 of the Con­stitution. He also asked the court to hold that the concept of ‘deemed’ as­sent as used in the prom­ulgation of the Army Act 2023 and Official Se­crets Act 2023 is alien to the constitution and contrary to the legisla­tive and constitutional scheme set out therein.

Australian Royal Commission on defence and veteran suicide continues its work

In 2021, the Governor-General of Australia created a Royal Commission into Defense and Veteran Suicide. The Commission's user-friendly website can be found here. The latest press release states:

The independent body charged with ensuring a fair and impartial military justice system will come under the spotlight when the Royal Commission into Defence and Veteran Suicide continues its hearing in Melbourne this week.

The Inspector-General of the Australian Defence Force (IGADF), James Gaynor, and his team will give evidence about the policies and processes that guide their work. Of particular interest to the Royal Commission will be how the Office of the IGADF maintains its independence while operating inside the Defence establishment.

Their evidence will follow that of former serving ADF members who last week gave evidence about their experiences engaging with the Office of the IGADF.

The Royal Commission will hear further evidence about the culture and practices of the Department of Veterans’ Affairs (DVA).

Commission Chair Nick Kaldas said the inquiry regularly hears from veterans whose interactions with DVA cause them immense distress.

“Despite signs of change within DVA, we continue to hear evidence the Department operates more like an insurance processing house and its adversarial approach is impacting the mental health and well-being of veterans and their families”, he said.

Former Army medical officer and Afghanistan veteran Daniel Mealey will also give evidence.

Dr Mealey, known for his advocacy for homeless veterans, served in Afghanistan as an Army doctor. In 2019, he produced the documentary Man Down which examined veterans’ struggles with post-traumatic stress disorder (PTSD) and the difficulties faced when seeking support from DVA.

During the first week of the Melbourne hearing block, the inquiry heard from Julie-Ann Finney, whose son David died by suicide after serving in the Navy. It also heard from Victorian Premier Daniel Andrews, who said DVA behaved more like an insurance company than an agency that exists to support veterans.

The Melbourne hearing will conclude on Friday 8 September 2023.

Analysis of an Indonesian court-martial

Victor Januaris Berutu, Juanrico Alfaromona Sumarezs Titahelu and Elias Zadrach Leasa of the Faculty of Law, Pattimura University, Ambon City, Maluku Prov., Indonesia, have written Analysis of Military Court Decision No. 94-K/PM III-18/D/IX/2018 in the Case of Persecution Committed by Unscrupulous Military Personnel, 2 J. Ed. Tech., Info. Sci. & Health No. 2 (2023). It can be found here.

Asking the wrong question

From the conclusion of David A. Schlueter & Lisa M. Schenck, Transforming Military Justice: The 2022 and 2023 National Defense Authorization Acts, 231 Mil. L. Rev. 1, 45-46 (2023):

It is clear that the 2022 and 2023 NDAAs will effect major changes to the military justice system. The real question is whether the changes will result in the outcomes that Congress intended.

For example, reserving charging decisions for special trial counsel will certainly provide what some reformers have been arguing for—more control by uniformed judge advocates. But, will that shift result in more sexual assault prosecutions and convictions, the perceived goals of the legislation? Perhaps not. If lawyers alone are examining the evidence and measuring the credibility of witnesses, they may be even more hesitant to bring a close case to trial. Under the current system, both the commander and a uniformed lawyer are involved in the decision as to whether and what charges should be preferred. As such, there may be cases where the two parties do not agree on those questions; in a command-centric system, the commander’s view can prevail. It is important to recall that uniformed lawyers, unlike commanders, are bound by rules of professional responsibility, such that a decision by a uniformed lawyer must be informed by those rules. If the new system results in fewer prosecutions, then what is Congress to do next—remove uniformed judge advocates from the equation?

But what if the goal is broader than simply driving up the number of sexual assault cases but to foster increased confidence in the administration of military justice by having lawyers do the lawyer's job of deciding whom to prosecute for serious offenses?

World War II reading list

For a fascinating read, check chapter 7 of Claus Bundgard Christensen, Niels Bo Poulsen and Peter Scharff Smith, Genocide and Cultural Memory: The Waffen-SS, 1933 to Today. It's titled Punishment and Discipline in the Waffen-SS: Law and Legal Practice in the Racial State. Of particular interest is the disparity in punishment policies as between the SS and the Wehrmacht. The increase in the number of executions from World War I to World War II is also startling.