Town Hall 26, Apr. 30, 2024, 10:30 a.m.

At 10:30 a.m. (US East Coast time) on Tuesday, April 30, Global Military Justice Reform will hold a zoom Town Hall on today's important decision of the Supreme Court of Canada in Edwards v. H.M. The King, 2024 SCC 15. Associate Editor Rory Fowler will kick off the conversation.

Please join us, and encourage friends to do so as well. Information on joining can be found here.

Link: https://yale.zoom.us/my/fidell?omn=98497668319

Meeting ID: 898 664 5482

Who's on first?

The Supreme Court of Pakistan's "military courts case" is back on hold, one of the judges having recused himself earlier this week. Here we go again. Details here.

Edwards appeals dismissed, 6-1

The Supreme Court of Canada has today dismissed the appeals in the judicial independence case of Edwards v. H.M. The King by a vote of 6-1. The decision can be found here. We'll have more on this, including a Town Hall.

Edwards decision on Friday

At 9:45 a.m., Friday, April 26, 2024, the Supreme Court of Canada will hand down its decision in Edwards v. H.M. The King, No. 39820, and four other cases that raise the same or similar issues. From the court's summary:

The appellants are members of the Canadian Armed Forces who had various charges laid against them. They each filed a preliminary application in the Court Martial seeking a stay of proceedings because of an alleged infringement of their constitutional right to be tried by an independent and impartial tribunal guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms. They argued that their right was infringed by an order by the Chief of Defence Staff dated October 2, 2019 regarding the designation of a commanding officer for purposes of considering disciplinary matters for military judges (“impugned order”). Captain Crépeau, in her application, also asked the tribunal to declare ss. 12, 18 and 60 of the National Defence Act to be of no force or effect, alleging that their combined effect was to allow the Chief of Defence Staff to issue an order, like the impugned order, relating directly to discipline for military judges and thus to permit the military hierarchy to exert pressure on a military judge presiding at a court martial. In a series of decisions, military judges concluded that there was an infringement of the accused’s right guaranteed by s. 11(d) of the Charter. In each of the proceedings, they made a similar declaration to the effect that the impugned order was an infringement of the right set out in s. 11(d) of the Charter. They also stayed the proceedings under s. 24(1) of the Charter. The Court Martial Appeal Court of Canada allowed the Crown’s appeals, ruling that no informed person would conclude that there was an apprehension of bias or that the independence of courts martial was compromised. It dismissed Captain Crépeau’s cross-appeal.  

The court's full news release can be found here. Global Military Justice Reform will host a Town Hall (No. 26 if you are counting) after the decision. Watch this space.

Speaking of free speech (and misuse of military courts)

Moscow Times reports:

A Russian court has sentenced Meta spokesman Andy Stone to six years in prison in absentia on “terrorism” charges linked to the company’s wartime content moderation policy, the independent Mediazona news website reported Monday.

Stone was charged with the “promotion,” “public calls for” and “justification” of terrorism after his March 2022 announcement that the Facebook and Instagram parent company would temporarily lift its ban on violent speech for comments against the “Russian invaders” of Ukraine. 

Moscow’s Second Western Military Garrison Court on Monday found Stone guilty of the “justification of terrorism” and handed him a six-year sentence in a high-security prison in absentia, according to Mediazona.

Can a civilian attorney for the family of a victim speak to the media?

This seems a real question in a current Spanish case. The attorney in question, Luis Romero Santos, writes in this op-ed:

Perhaps Your Honor receives pressure from his bosses and from the defense's military lawyers, since we must not forget the hierarchical dependence of military judges, both functional and organic. They must follow orders and their career advancements may be in jeopardy. That is why we should ask ourselves if it is not time to integrate military jurisdiction into ordinary jurisdiction, as has happened some time ago in Germany, France, Holland and Portugal. Our Constitution allows it.

It is anachronistic and contrary to the rule of law that military justice is exercised by soldiers who do not have the independence that judges and prosecutors of the ordinary jurisdiction have. There are provisions and privileges that are already outdated in a democracy.

Justice must be equal for everyone.

Alabama Code of Military Justice

The Alabama Senate has passed a bill amending the state's Code of Military Justice. Among other things, the bill amends the provision on subject matter jurisdiction. 

Under the new version, offenses by a member in any duty status will be rebuttably presumed to have the requisite service nexus. The measure goes to the State House of Representatives.

Misuse of military courts

The play's the thing, according to this RFE/RL report.

Moscow theater director Yevgenia Berkovich and playwright Svetlana Petriichuk will face trial in a Russian military court after prosecutors affirmed charges of justifying terrorism, lawyer Sergei Badamshin said on April 19. The two women were arrested in May 2023 following the production of the play Finist The Brave Falcon. The play is about Russian women who married Muslim men and moved to Syria. Berkovich and Petriichuk maintain their innocence. If convicted, they face up to five years in prison. Military courts handle cases related to terrorism charges in Russia.

Mast, office hours, and data

The Government Accountability Office (GAO) has released a new report: Quality Data Needed to Improve Oversight of Navy and Marine Corps Disciplinary Measures. It makes two recommendations:

• The Secretary of the Navy should ensure that the Chief of Naval Operations establishes a time frame for automating the Navy's process to collect and maintain quality nonjudicial punishment data in its personnel database and then implements this automated process.
• The Secretary of the Navy should ensure that the Commandant of the Marine Corps establishes a time frame for automating the Marine Corps' process to collect and maintain quality nonjudicial punishment data in its personnel database and then implements this automated process.

From the summary:

Nonjudicial punishment, such as forfeiture of pay or a reduction in grade, is a tool to deter misconduct, maintain discipline, and improve performance without going through the court-martial process. Service members onboard a vessel at sea cannot refuse nonjudicial punishment and demand a trial by court-martial when a commanding officer uses the vessel exception. The Navy and the Marine Corps are refining guidance on the use of the vessel exception for nonjudicial punishment and plan to evaluate policy changes as new guidance is issued. For example, in November 2023, the Department of the Navy issued guidance that restricts use of the vessel exception when a ship is undergoing maintenance and is not operational. With these ongoing efforts, the Department of the Navy is on track to improve oversight of nonjudicial punishment and the use of the vessel exception.

The Navy and the Marine Corps have processes in place to report nonjudicial punishment data. However, GAO found, and Navy and Marine Corps officials acknowledged, that the accuracy and completeness of nonjudicial punishment data are limited due to human error and lack of automated processes. The Navy planned to use an automated system by October 2022 to collect nonjudicial punishment data but did not meet this goal due to funding constraints, according to Navy officials. Further, although the Navy issued a revised policy that clarifies reporting on the use of the vessel exception in January 2024, the policy does not address data quality issues stemming from the manual compilation of data. Without establishing a time frame to automate the collection and maintenance of quality nonjudicial punishment data and then implementing these automated processes, the Navy, the Marine Corps, and Congress may be hindered in their ability to provide sufficient oversight of nonjudicial punishment and the use of the vessel exception. Such oversight would include the use of quality data to analyze trends in military justice processes and to measure the effectiveness of discipline-related initiatives.

Alternate disposition authority

Each of the (US) Services has a mechanism where a servicemember can be granted a discharge in lieu of court-martial--what is referred to as one form of alternate resolution during pretrial negotiations. The approval of alternate resolutions was a collaborative process involving the commander, higher authority, prosecutor, and any victims. Because of the new OSTC system, the Army has placed the responsibility for approval with the OSTC.

Earlier news articles by ProPublica had focused on the number of servicemembers allowed to leave the military administratively rather than through court-martial for serious crimes, including sexual assaults. The Army has changed its approval process. It is unclear what effect, if any, there will be on the number of Army discharges in lieu of court-martial. Presumably, the same facts and considerations for approval will apply under the new system as the old. It would be unusual under the old system for a commander to go against the advice of the prosecutor. Arguably, nothing will change but for the window dressing. There may be a small effect on the speed of approvals or disapprovals. Under the old system, there'd be negotiations with the prosecutor who would tell the defense she'd recommend for or against the delay while the approval authority was consulted and decided. During that delay, the parties would still be preparing for trial.

Vianna Davila & Lexi Churchill, Soldiers Charged With Violent Crimes Will Now Face More Scrutiny Before They Can Simply Leave the Army, ProPublica, 19 April 2024.

The U.S. Army, the country’s largest military branch, will no longer allow military commanders to decide on their own whether soldiers accused of certain serious crimes can leave the service rather than go on trial.. . .

Under the new rule, which goes into effect Saturday, military commanders will no longer have the sole authority to grant a soldier’s request for what is known as a discharge in lieu of court-martial, or Chapter 10, in certain cases. Instead, the newly created Office of Special Trial Counsel, a group of military attorneys who specialize in handling cases involving violent crimes, must also approve the decision. Without the attorneys’ approval, charges against a soldier can’t be dismissed.

The Office of Special Trial Counsel will have the final say, the Army told the news organizations.

The new rule will apply only to cases that fall under the purview of the Office of Special Trial Counsel, including sexual assault, domestic violence, child abuse, kidnapping and murder.

When Commanders Decide

This just in: M. Chris Cox, When Commanders Decide: Military Prosecutorial Decision-Making in Sexual Assault Cases, 22 Seattle J. Soc. Just. 371 (2024).

Veterans canon under the gun

Yesterday the Supreme Court of the United States decided Rudisill v. McDonough, No. 22-888. At issue was a technical question concerning educational benefits afforded to veterans who qualify under two separate GI Bills. Of broader potential interest is the hostile treatment of the so-called "veterans canon" in both the concurring opinion of Justice Brett Kavanaugh (joined by Justice Amy Coney Barrett) and the dissenting opinion of Justice Clarence Thomas (joined by Justice Samuel Alito). Under that canon, statutes that confer benefits on veterans are construed in the veteran's favor. To quote Justice Kavanaugh, "[a] substantive canon [--this is one--] is a judicial presumption in favor of or against a particular substantive outcome." Four votes is one short of a majority, but it's close. What other substantive canons might come under attack in the future? In Arizona v. Navajo Nation, 599 U.S. 555, 572 (2023), Justice Thomas, concurring, called into question one of the Indian canons of statutory construction. His Rudisill dissent cites that concurrence without elaboration.

An AAR on the COVID-19 mutiny

Shawn D. McKelvy, L. William Uhl & Armand Balboni, Shots Fired, Shots Refused: Scientific, Ethical, and Legal Challenges Surrounding the U.S. Military's COVID-19 Vaccine Mandate, 55 St. Mary's L.J. 405 (2024).

AWOL watch in Russia

More details on desertion prosecutions in Russia can be found here.

Exam time

The Associated Press's Steven K. Paulson writes here about two recent incidents that are pretty strange. One involves a Fort Carson soldier who hid in a car so as not to have to get out and salute during evening colors.

In an unrelated incident:

Last week, two Wisconsin National Guard members were suspended in an investigation stemming from a photograph showing soldiers clowning around by an empty flag-draped casket at a guard training facility.

The photograph shows soldiers mugging for the camera around the empty casket. It shows 14 men and women posing, some lightheartedly. Two pairs of men hug playfully, another man has his back turned and is pointing off in the distance, and a kneeling woman flashes a peace sign.

The caption reads, "We put the FUN in funeral — your fearless honor guard from various states."

Good fodder for military justice exam questions?

Eid pardons in May 9 cases

With the Supreme Court about to resume consideration of the constitutionality of trying civilians in military courts, Pakistan's Chief of Army Staff has pardoned at least 20 of those convicted in connection with the May 9 rioting. Details here.

Transparency

Score one for ProPublica (and the public). Excerpt from this report:

A federal judge ruled in March that ProPublica’s lawsuit against the secretary of defense should move forward, as the news organization seeks to increase public access to the military’s court proceedings and records.

ProPublica sued in 2022, claiming the Pentagon has failed to issue rules ensuring that the services comply with a law that was supposed to make the military justice system more transparent.

Although ProPublica’s lawsuit originated from a single high-profile arson case in which the Navy refused to release records, the suit challenges the overall legality of the Pentagon’s current guidance, which allows the services to shroud much of the court-martial process in secret.

National Institute of Military Justice president -- and Global Military Justice Reform contributor -- Frank Rosenblatt is quoted:

The Army also does not tell the public about Article 32 hearings, which “lets military officials decide to keep cases secret that might be embarrassing to the military,” said Frank Rosenblatt, president of the National Institute of Military Justice, a group that aims to improve fairness in the court-martial system. “Whether a case is in the ‘public interest’ should be decided by the public, not military officials.”

The decision in ProPublic v. Butler can be found here.

Thank you

As we wrap up the first quarter of CY24, the Editors wish to thank all of the contributors who have been posting recently. Having more than one voice on this blog adds important depth and a healthy variety of viewpoints. Keep up the good work!

We are moving into what may be a busy season, with major military justice decisions expected from the Supreme Courts of Canada and Pakistan -- and perhaps Uganda. Stay tuned.

If you know of significant pending litigation in other jurisdictions, please post if you are a contributor, or pass the word to the Editors.

Facial hair watch

British Army soldiers will now be permitted to wear beards. Read all about it here. For a global survey, check this Wikipedia entry on Facial Hair in the Military.

Pakistan's military courts case -- ever stranger

"It is most unfortunate that the Supreme Court created this situation, which allowed the state to continue depriving civilians of their constitutional liberties without any finding of guilt against them. As some observers have pointed out, in our legal system, the process itself seems to be the punishment. This should not be allowed to continue."

From this article in Dawn

Hollywood

Sometimes the headline tells pretty much the whole story. Example: William Shatner's Height Insecurity Forced A Change To Star Trek's Court Martial Episode.

Good to know.

Military justice in the wartime Wehrmacht

Kimmo Lackman

For an interesting read: Kimmo Lackman, Were the German Deserters the Wehrmacht Judges' Victims? E.g., did judges fairly consider mitigating factors; did deserters act out of fear or for political reasons?

Some jobs are tough to quit

Military service provides obligations you don't see in civilian life. You have less say on where you live. Habitual lateness can result in loss of pay and rank, instead of silent resignation from your boss. And then there's also the matter about whether you're free to quit.

Here is the story of a Nigerian doctor who had to sue the Air Force to let him resign. His superiors argued they did not have to accept the resignation, and labeled him a deserter. Luckily for him, a judge found the law requiring approval to resign in situations like his unconstitutional, allowing the good doctor the freedom to choose how to earns his living. 

An excellent resource

The Army's excellent online Criminal Law Deskbook can be accessed here. Kudos to the Judge Advocate General's Legal Center and School for making it available.

Sea change or one-off?

On April 11, 2023, under the heading Extensions of Time, Global Military Justice Reform observed:

Ever wonder how often the U.S. Court of Appeals for the Armed Forces grants extensions of the time in which to file the supplement to the petition for grant of review? In the 12 months ending March 31, 2023, the court granted all 159 such requests. Of these, 123 were initial requests, 28 were second requests, and 8 were third requests. None were denied.

Against that backdrop, what to make of this interlocutory order from the court's March 25, 2024 Daily Journal?

No. 24-0106/AF. U.S. v. DeQuayjan D. Jackson. CCA 40310. On consideration of Appellant's second motion to extend time to file the supplement to the petition for grant of review, it is ordered that the motion is granted, up to and including April 16, 2024. No further extensions of time will be granted in this case.

Is this evidence of a change in policy at the U.S. Court of Appeals for the Armed Forces or simply a one-off? If the latter, what was the court's reasoning? If the former, why not say so? Comments or clarification welcome (real names only, please.)

Alleged torturer gets pension

The decision of the High Court of Kenya in the case of an officer prosecuted for torturing a prisoner is not yet available, but some of the factual details and legal background can be found in this news report. Excerpt:

Justice Jemimah Keli from Bungoma acknowledged that the rights of the officer, who has participated in multiple peacekeeping missions in Sudan and Somalia, were disregarded to expedite the process of holding the officers involved in the spy's torture accountable, as stated in a letter from Brigadier Mohamed Nur Hassan. The judge also observed that the quick resolution of Mulekano's case deprived him of the opportunity to challenge the evidence against him or present his own defence. Senior Private Edgar Mwore and Senior Private Patrick Murithi were the individuals involved, according to the Judge.

The Officer Commanding (OC) did not follow instructions and proceeded to document the case as 'heard', as per the Judge's statement. This incident took place on the morning of July 18, 2019. It was revealed in court that the OC heard the case and then passed it on to Colonel Rotich, a higher-ranking official, for further instructions. The Judge noted that it was peculiar that the record presented to Colonel Rotich in the afternoon, when Mulekano was remanded for a decision rather than a trial, had been modified to indicate that Mulekano had stated he did not wish to call witnesses.

The Judge concluded that this was an attempt by Colonel Rotich to rectify the mistake of not providing witnesses during the hearing before the OC. As a result of this breach, the court ruled that Mulekano should receive compensation of Sh 5 million for his wrongful dismissal and violation of his right to a fair trial. Additionally, the court ordered that the discharged soldier, who still had six years remaining until retirement, should receive his terminal benefits, which the Force had initially decided to deny him. The Judge emphasized that Mulekano had served for 29 years, only to face an unfair hearing in his old age.

They're back

Yes, the Supreme Court of Pakistan is back, again dealing with the hot mess of Intra-Court Appeals in the case concerning the military trials of civilians. Dawn has this detailed report. Everything seems up for grabs. For example:

At the outset of the hearing, Justice Khawaja’s counsel objected to the size of the bench.

“103 suspects are in custody. Their families want to be included in the case proceedings,” Ahmed said, urging the court to allow the suspects’ families to be present for the proceedings.

To this, Justice Khan replied that the courtroom was fully occupied, adding, “There is no objection on [the families] coming to the court; we will look at this matter.”

Justice Khawaja’s counsel further requested the SC to constitute a nine-member larger bench to hear the appeals. Ahmed argued that his client had sought the same in his petition. “It is my request to the court to urge the SC committee to constitute a nine-member bench,” he said.

Bill C-66 - An Act to Amend the National Defence Act

Today, Canada's Minister of National Defence, Bill Blair, announced the tabling of Bill C-66 - An Act to Amend the National Defence Act.  This legislative initiative has been characterized, with good reason, as an effort to "... strip military of power to investigate sexual offences."

However, the proposed legislation raises several questions.  Perhaps the most important question is whether it will address the core problem regarding the Canadian Forces' (CF) failure to respond effectively to sexual misconduct.

And, as Global Military Justice Reform contributor, Rory Fowler, suggests: perhaps one of the principal shortcomings of Bill C-66 is that legislators have not correctly identified the key problem.

Rory Fowler, "Bill C-66 - Initial Observations" (21 March 2024) online: Law Office of Rory G Fowler, Blog <http://roryfowlerlaw.com/bill-c-66-initial-observations/>

Military justice training: which laws?

A yawning gap is emerging in how military justice is trained globally. While military justice is based on domestic laws that obviously vary from country to country, underlying military justice are tenets of international law that govern conduct in war and basic standards of judicial tribunals. Sources of this law include international humanitarian law, international human rights law, and international criminal law. 

Countries such as the United States that are not members of the Rome Statute Some countries tend to deemphasize instruction in international criminal law. 

On the other hand are countries that have signed the Rome Statute, where training in international criminal law is the central feature of military justice instruction.

Recent military justice training in Nigeria provides a case in point about the centrality of international criminal law. The Nigerian Chief of Army Staff, Lt.-Gen. Taoreed Lagbaja, just presided over a specialized training session of Nigerian Army personnel on the operations of the ICC in Abuja. 

The training was organized by the Army in collaboration with the Nigerian Institute of Advanced Legal Studies. 

This training is not just a theoretical familiarization with the Rome Statute and its tenets. The ICC recently undertook at preliminary examination in Nigeria that concluded in December 2020. Nigeria underwent a process called "positive complementarity" in which it modified its domestic laws and legal procedures, including those related to military justice, to help Nigeria better conform with its Rome Statute obligations. 

De-CAAF, anyone?

Last year, the Editor wrote an article titled The Case for Termination of the United States Court of Appeals for the Armed Forces. Naval reservist Gregory R. Hargis has responded with A Bridge Too Far: Terminating the United States Court of Appeals for the Armed Forces Would Harm National Security and Cause Inefficient Administration of Military and Civilian Justice. See what you think.

Short-term punishment units in the World War II Wehrmacht

This article by Mel Hecker and Geoffrey P. Megargee from volume 4 of the U.S. Holocaust Memorial Museum's Encyclopedia of Camps and Ghettos, 1933-1945 (Indiana U. Press 2022), tells the tale. Fifteen hours' hard work per day in summer; 12 in winter. The alternatives were grimmer.

An era of change

"It is true that the '[Courts of Criminal Appeals (CCAs)] are presumed to know the law and [to] follow it.' United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016). However, this can be a hazardous legal path to tread when, as here, the CCAs are applying a new statutory provision. We have entered an era where there are many changes afoot in the military justice system. Mischief will result if this Court fails not only to provide crisp, clear guidance to the CCAs about the practical effects of those changes, but also if it fails to ensure that the CCAs are scrupulously adhering to the legal and analytical obligations that those changes have placed upon them."

Ohlson, C.J., concurring in part & dissenting in part, United States v. Flores (C.A.A.F. Mar. 14, 2024), at 14. Judge M. Tia Johnson joined in the opinion. [H/T to CDR Phil Cave across the pier.]

S. Korea shifts to civilian prosecutions

Reuters reports that: Sex crimes and homicides committed by members of South Korea's military will be tried in civilian courts under a new law passed on Tuesday, sparked by multiple scandals and victim suicides.

Activists and victims had accused South Korea's powerful military of standing in the way of previous efforts to reduce the power commanders have over the process, but reform efforts gathered steam https://www.reuters.com/article/us-southkorea-abuse-military-idCAKCN2E60T6 after a series of deaths and prominent crimes.

Under the revised Military Court Act, all sex crimes, as well as violent crimes such as homicides, will be tried from the start at civilian courts, rather than courts martial.

Military courts will be consolidated, while military police and prosecutors will be placed under the defence minister and the chiefs of each service branch in an effort to reduce the influence of commanders.

Do we mean what Art. 88, UCMJ says?

If the U.S. Congress does not want former military officers wading into the political fray unless they formally declare their candidacy for elected office, then current Article 88 UCMJ provisions concerning criticism of the president should be enforced, rather than be dead letter law for retirees. Otherwise, active-duty military members will feel empowered to denounce political leadership due to the norm-erosion of recently retired military leaders criticizing American leaders. If rule of law and its credibility matter in modern society, retired military officers should be legally required to resign their commissions before entering into influential political conversations either through elected office or serving as political appointees, much like Dwight Eisenhower did prior to running for president in 1952 (Smith, 2012). Absent their formal departure from military affiliation, military retirees should keep their politics personal; not public and remain above the political fray. Whereas the president is bucking norms but applying the law, the generals are applying presidential norms but bucking apolitical military norms and military law. This distinction may be uncomfortable, but again, abiding to the written laws and rules is what keeps the “soul” of an apolitical military protected, helping keep partisanship out of civil–military relations.

Excerpt from Ryan Burke and Jahara Matisek, Trump(ing) Tradition: Old Laws, New Norms and the Danger to Civil-Military Relations, Armed Forces & Society (2024) (H/T to Cdr. Phil Cave)

GAO on USCG

The Government Accountability Office's latest testimony on U.S. Coast Guard efforts to address sexual assault and harassment can be found here.

Clerkship opportunity

The Honorable M. Tia Johnson
United States Court of Appeals for the Armed Forces
450 E St, NW
Washington, DC 20442-0001

CLERKSHIP OPPORTUNITY

The United States Court of Appeals for the Armed Forces exercises world-wide appellate jurisdiction over court-martial cases involving U.S. military personnel. Cases on our docket address a broad range of legal issues, including constitutional law, evidence, administrative law, and national security law. Our decisions are subject to direct review by the Supreme Court of the United States. Our clerks perform an important public service in an environment designed to enhance their legal skills. The Court's web site, https://www.armfor.uscourts.gov, contains additional information about the Court, including recent decisions.

This is a civilian clerkship and no prior military service or familiarity with the Uniform Code of Military Justice is required. Judge Johnson is seeking top law school performers with strong research and legal writing skills.

TERM CLERKSHIP

• Judge Johnson anticipates one opening for a full-time term clerk beginning August 2025 for a one-year period.
• Consideration will be given to:
  • Students who have completed at least two years of law school at the time of application, and
  • Attorneys who have been in practice for less than three years at the time of application.
• The compensation for clerks is similar to that at other federal courts.
• Application period: From March 4, 2024, until the position is filled.

APPLICATION PROCESS

• Candidates for the clerkship should submit:  
• A brief cover letter
• A resume
• Law school transcript (a photocopy is acceptable)
• Two letters of recommendation from faculty members or employers familiar with the candidate's legal work
• A writing sample

Please submit applications via e-mail to johnsonchambers@armfor.uscourts.gov.

If you have any questions, please call (202) 761-1461 or johnsonchambers@armfor.uscourts.gov.

Do not abuse your subordinates

If you do in South Korea, you're out, according to this report. Excerpt:

The Chuncheon branch of the Seoul High Court upheld the earlier court ruling that ruled in favor of the Air Force dismissing the senior non-commissioned officer, who had the rank of "wonsa" which is roughly equivalent to chief master sergeant in the US Air Force.

He was removed from the post in May 2022 after being accused of insulting his colleagues, swearing at them and assaulting his subordinates. Among the accusations are of him having one of lower-ranked non-commissioned officers pick him up after drinking, neglecting one's duties and smoking multiple times in non-smoking areas.

In addition to his dismissal, the court martial sentenced him to a prison term of four months, suspended for two years for violating the Military Personnel Management Act.

Six months and waiting

An officer in the Botswana Defence Force is charged with having raped the wife of a fellow officer in 2019. The case was tried in civilian Magistrates Court last August but the verdict has still not been handed down. Moral: military courts do not have a monopoly on "the slows."

Accountability for domestic violence

Domestic violence is a great concern everywhere and Congress has mandated that the military take steps to address the problem and hold offenders accountable. For example, an amendment to the UCMJ creates a domestic violence offense. The violence is not just between spouses and children but includes an "intimate partner, or an immediate family member of that person;" for example, the live-in mother-in-law or the visiting girlfriend or fiancee. The offense also covers "any property, including an animal[.]" Yes, there are cases where a family dog is injured, or involve punching a hole in the wall, etc., etc., etc.

Which brings us to the ongoing court-martial of an An Army lieutenant colonel charged this month with 16 counts of domestic abuse. The charge sheet details how he allegedly beat, harassed and emotionally abused his wife, doing so on two separate occasions in front of an unnamed child, over a nine-month period between late 2022 and mid-2023.

Reports military.com. The child is also a charged victim because of the circumstances.

Mission creep for Egypt's military courts

From this Human Rights Watch report on recent Egyptian legislation:

Law No. 3 tasks the armed forces with “assisting, and fully coordinating with the police, in guarding and protecting public and vital facilities and buildings including power stations, electricity lines and towers, oil fields, railway tracks, roads, bridges,” and “other comparable facilities.” The law provides military personnel involved in such operations with the same judicial powers of arrest and seizure as the police. It also stipulates that all offenses against or in relation to broadly worded “vital” public facilities and buildings are to be prosecuted in military courts.

*  *  * 

Amendments to the Military Code of Justice include adding to the military courts’ jurisdiction crimes committed against “public and vital facilities and public properties, and other comparable things, that are protected by the armed forces.” Other amendments introduced new military appeals courts for major offenses, following the template of a similar change in January made to the civilian court structure. Previously, appeals in cases of major offenses in military courts went directly to the Military Cassation Court, the military counterpart of the Cassation Court in the civilian justice system.

While increasing opportunities for legal appeals could be a positive change, it does not alter the well documented abusive record of military courts, their lack of independence, and their inability to uphold the right to a fair trial. The motivation appears to be increasing the military judiciary’s capacity to replace the function of the civilian court system rather than limiting its mandate to military staff, Human Rights Watch said. The amendments introduced a new entity within the Defense Ministry to oversee military courts, but they did not change the nature of military judges as serving military officers who are subject to the Defense Ministry’s laws regulating issues related to hierarchy, promotion, discipline, and general work.

*  *  *

The African Commission on Human and Peoples' Rights, in interpreting the African Charter on Human and Peoples' Rights, has said that military courts “should not, in any circumstances whatsoever, have jurisdiction over civilians.” It said that even when military courts follow guidelines for fair trial guarantees – as they always should – their “only purpose” should be in “offenses of a purely military nature committed by military personnel.”

Six years to dismiss a case

Consider this video report of the dismissal, after six years, of military charges against senior Ugandan police officials. And, yes, why again were they held for trial by court-martial?

Popup zoom today, Wednesday, March 6 -- do not miss this joint CAAFlog/NIMJ event

CAAFlog (our sister ship that ties up across Reform Pier) will hold a popup zoom today at 3:00 p.m. (Eastern Time). The topic: the Ironhawk extraordinary writ case that is now pending before the U.S. Army Court of Criminal Appeals. 

Details of the United States v. Emanuel popup zoom can be found here. There is a link to instructions for anonymous zooming for those who are shy, informally attired, or risk-averse. Click here for pertinent documents.

A bad case of the slows

President Abraham Lincoln complained about General George B. McClellan having "a bad case of the slows." How about the Court of Appeal of Kenya, which has taken over eight years to overturn a High Court decision that had acquitted 25 members of the Kenya Navy on desertion charges. The case is Republic v. Pepela, [2024] KECA 204 (KLR) (Mar. 1, 2024). The Court of Appeal faulted the High Court for deciding the cases en bloc rather than individually, which seems a reasonable position -- although not one that should have required so long to arrive at.

For earlier coverage of the government's appeal, click here.

Op-ed: "Duty to assist the Cause of Justice, not just the Client"

The following op-ed authored by GMJR editors Maj Navdeep Singh and Dr Pascal Levesque appeared at www.LiveLaw.in –

Duty to assist the Cause of Justice, not just the Client

Navdeep Singh & Pascal Levesque

The two of us came across some interesting comments on social media while discussing the recent (and very pertinent) observations of the Chief Justice of India during the Commonwealth Attorneys and Solicitors General Conference (CASGC), 2024, to the effect that law officers of the State must not just function as representatives of the government but also as officers of the court.

While this aspect of litigation might sound trite to true-blue constitutionalists, especially from functional democracies, it remains hazy to the public at large and even for many officers of the government, all across the world, who see litigation as nothing but an extremely adversarial concept and expect the establishment’s law officers only to defend the State at all costs.

But indeed, the duty of a lawyer is to the cause of justice more than her client. The obligation is to assist the court in arriving at a just decision, rather than just sharply singing the tune of the party being represented. Though this applies both to lawyers representing private parties as well as instrumentalities of the State, it assumes greater importance in case of the latter since the government is supposed to be a faceless and nameless entity in perpetuity, irrespective of the political party in power, which should be more concerned with justice, rather than a ‘win’ within the contours of a courtroom.

It is in this context that Justice Robert H Jackson of the Supreme Court of the United States, who also happened to be a former Attorney General, speaking at his famous 1940 address to the United States Attorneys, underscored that the spirit of fair-paly and decency should animate the federal counsel, adding that a lawyer who risks his name for fair-dealing to build up statistics of success has a “perverted sense of practical values, as well as a defect of character.” He also called upon government lawyers to temper their zeal with human kindness. But the golden words in that lecture shall always remain these-

“Although the government technically loses its case, it has really won if justice has been done.”

This spirit of fairness expected of a counsel is not uncommon in common-law legal systems- both on the civil as well as criminal side. In India, it was captured in beautiful words in Ram Ranjan Roy vs Emperor AIR 1915 Cal 545 by the Calcutta High Court. Later, in Ghirrao vs Emperor AIR 1933 Oudh 265, the Oudh Chief Court outlined the responsibility of a prosecutor by stating- “his duty as a public prosecutor is not merely to secure the conviction of the accused at all costs but to place before the court whatever evidence in possession of the prosecution, whether it be in favour of or against the accused and to leave it to the court to decide upon all such evidence, whether the accused had or had not committed the offence with which he stood charged.”

Again, in the context of prosecutors, the Supreme Court of India noted in Shakila Abdul Gafar Khan vs Vasant Raghunath Dhoble 2003 (7) SCC 749 that “it is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice.”

On the overall fairness expected in litigation by the government, in the case of Urban Improvement Trust, Bikaner vs Mohan Lal 2010 (1) SCC 512, the Supreme Court of India observed that governments and statutory authorities must not raise frivolous and unjust objections or act in a callous or highhanded manner, and must rather act as model or ideal litigants. Citing earlier judgments, the Supreme Court again emphasized that the government must not try to win a case against its own citizens by hook or by crook or to score a technical point or overreach a weaker party

In Canada, in the case of Boucher vs The Queen [1955] SCR 16, where the prosecutor used inflammatory language in his address to the jury, the Supreme Court of Canada stated that the prosecutor’s duty “should be done firmly and pressed to its legitimate strength but it must also be done fairly,” adding that it “excludes any notion 'of winning or losing’, rather a matter of public duty” and “in civil life there can be none charged with greater personal responsibility, it is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.”

Of course, as far as the duty of prosecutors is concerned, the guidelines adopted at the 8^th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, 1990 (Havana Statement) speak of impartial functioning of prosecutors and their duty to act with objectivity, irrespective of whether the position taken is to the advantage or disadvantage of the suspect. These also provide that prosecutors shall not initiate or continue prosecution when an impartial investigation shows the charge to be unfounded.

But even more than the counsel, the sentiment of assistance to the cause of justice is required to be ingrained in government officers dealing with litigation, some of whom view litigants as rivals of the State, and this includes trivial service, employment or pension related matters. By experience, one of us (Navdeep Singh), can say that the prevalence of this attitude is alarmingly high in litigation related to the defence services wherein not only certain officers avoid briefing their own counsel about the true position of law to assist the court in dispensing justice, but also attach too much prestige by getting overinvolved in matters and pressurising the system to ‘win’ cases. Unaware of how the litigation milieu works, they even express an uncomfortable surprise in regular happenings in courts such as two opposite counsel sharing healthy and hearty relations or informal chitchat over coffee.  This attitude had, in fact, prompted the then Defence Minister of India, Mr Manohar Parrikar, to appreciably pass official instructions in 2018 warning officers to take note of the guiding principles that ‘litigation be viewed in an impersonal, non-adversarial and dispassionate manner and should not be made a prestige-issue or a win/loss situation.”

Lawyers serving the State, not only prosecutors but also those rendering legal advice to ministries and public bodies, have a general duty to ensure that the affairs of the State are administered in accordance with the law, which includes the principle of moderation in prosecutions. By doing so, it contributes not only to the fairness in judicial proceedings or trials, but in mitigating them in the first place. It might not be as glamorous as a ‘win’ in a court in the short-term, but is certainly more robust, long-lasting and precious in upholding the Rule of Law and the duty towards the profession and the society, besides reducing the burden of litigation on the State, the exchequer, and ultimately the taxpayer. 

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Navdeep Singh

Navdeep Singh is a practising lawyer at the Punjab & Haryana High Court, founder President of the Armed Forces Tribunal Bar Association and a former member of the Committee of Experts constituted by the Government of India to reduce litigation in the Defence Ministry and reform the system of Redressal of Grievances. He is also a Member of the International Society for Military Law and the Law of War, Brussels, International Fellow at the National Institute of Military Justice, Washington DC, and Member of the Advisory Committee on Military Justice of the Commonwealth Secretariat, London.

Dr Pascal Levesque

Dr Levesque has acted as legal counsel for public-sector organizations, including as a military lawyer, public prosecutor and defence lawyer in Canada. He has been a teacher and a university ombudsperson. He currently works in the field of parliamentary ethics and public integrity. He is also a Member of the International Society for Military Law and the Law of War, Brussels, and International Fellow at the National Institute of Military Justice, Washington DC.

The opinions are their own.

Presto agitato, Maestro

DoD Military Justice maven Dwight H. Sullivan's The Military Justice Decrescendo is must reading for anyone interested in a quick but rigorous summary of the contemporary U.S. system. In addition to charting the precipitous, continuing falloff in cases, the article usefully explains why the system cannot prudently be abandoned. 

USCAAF Annual Report for 2022-23

The annual report of the U.S. Court of Appeals for the Armed Forces for the year ending Sept. 30, 2023 can be found here.

Transparency watch

When [Chief Fire Controlman (AEGIS) Bryce Steven] Pedicini will have his day in court remains unclear. The Navy’s public court docket shows a motions hearing took place on Wednesday of this week, but Naval Surface Forces officials declined to say what that hearing entailed when asked by Navy Times Thursday.

Command spokesman Cmdr. Arlo Abrahamson also declined to say if or when a trial date had been set.

He also declined to say why Pedicini was being tried in the military justice system.

Not much more in this report.

Why was this case tried in military court?

From Russia, with love of unusual court procedures, a sociologist and Marxist theorist had a five-year jail sentence imposed on appeal. The state appealed a military court's decision to fine Boris Kagarlitsky 600,000 rubles ($6,600ish). The military court found Mr. Kagarlitsky guilty of "justifying terrorism" for a video he produced on the 2022 Ukranian attack of the Crimean Bridge. Unhappy with the leniency the trial court showed this civilian, the prosecutors found a more receptive bench at the military court of appeals.   

While this is not the biggest news to come out of Russia recently, it is another entry in a never-ending series at this blog, "Why was this case tried in miltiary court?"