Army training Sir!*

**Borneo Post (online) reports that:

The case involving a senior army officer who allegedly abused an army personnel last month has been referred to the Attorney General’s (AG) Office, said Sarawak Police Commissioner Datuk Mancha Ata. . . .

In the post, the victim claimed that he was slapped on the left side of his face and kicked in the abdominal area by the senior officer, who is based in Sarawak.

The army statement said the incident may have happened during a training exercise.

For comparison, here is a link to a Marine Corps case just decided by the Navy-Marine Corps Court of Criminal Appeals--United States v. Kukharau.

* Excuse the reference to "Stripes."

** Borneo has several different flags, the one displayed is for Sarawak.

Shot case shot down

The Supreme Court of the United States yesterday denied certiorari in a case brought by 39 military chaplains over the COVID-19 mandatory vaccination program. The  U.S. Court of Appeals for the Amed Forces had ruled in 2023 that the chaplains' case was moot because the mandate had been revoked.

Today in history

Commander Maurice William Bailward was charged with negligently stranding Submarine L25 in the Needles Channel at a Naval Court Martial in Portsmouth on 29th April 1924 – 100 years ago today.

Island Echo, 29 April 2024.

R v Edwards, 2024 SCC 15: A view from the cheap seats

In advance of Tuesday's Town Hall to discuss the judgment of the Supreme Court of Canada in R v Edwards, your faithful Canadian correspondent offers a few observations for your consideration:

Rory Fowler, "R v Edwards, 2024 SCC 15 … Meh …" (29 April 2024) online: Law Office of Rory G Fowler, Blog < http://roryfowlerlaw.com/r-v-edwards-2024-scc-15-meh/ >

Not military justice, but . . .

LTC Dan Maurer has an excellent article, The Department of Defense's In Extremis Legal Challenges During Modern Warfare, in the Lieber Institute's Articles of War series. He identifies three principles and four imperatives, packing a lot into a brief essay.

How many judges does it take to decide a major case?

Six? Nine? It's up in the air in Pakistan's military courts case. Details here, from the Express Tribune.

Kansas Code of Military Justice

Gov. Laura Kelly has signed into law Senate Bill 292, significantly amending the Kansas Code of Military Justice. There is a useful explanatory memorandum here. Remarkably, the measure abolishes courts-martial; punishment powers are exercised by commanding offiers. Under § 121(b), decisions of the federal military appellate courts are not binding, but can be used for guidance.

Town Hall #26, Tuesday, 30 April 2024, 10:30 a.m.

At 10:30 a.m. (US East Coast time) on Tuesday, 30 April, Global Military Justice Reform will hold a zoom Town Hall on today's important decision of the Supreme Court of Canada in R. v. Edwards, 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 R. v. Edwards 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.