Lieut. William Calley, notorious for My Lai massacre, dead at 80

The New York Times has Lieut. William L. Calley Jr.'s obituary here. He died on April 28. The 1973 decision of the U.S. Court of Military Appeals in United States v. Calley can be found here. Excerpt from the obituary:

Nearly  56 years after the killings of as many as 500 women, children and older men by Americans who attacked with automatic weapons, grenades and bayonets; raped girls and women; mutilated bodies; killed livestock, and burned the village, My Lai (pronounced Mee Lye) still reverberates as one of the worst outrages of a brutal and divisive war.

Tribute to the late Col (R) Fran Gilligan

LTG Joseph B. Berger III, The Judge Advocate General of the Army, has released the following tribute:

It is with deep sadness that we inform you of the passing of COL (Ret.) Francis "Fran" A. Gilligan of Arlington, VA. He passed away on July 6, 2024, at the age of 84 from pancreatic cancer. He was in his 67th year of federal service.

COL (Ret.) Gilligan enlisted in the New York National Guard as a 17-year-old in 1957, then commissioned through ROTC as an Infantry Second Lieutenant from Alfred University in 1961. COL (Ret.) Gilligan delayed his entry onto active duty to attend law school in law school, he was selected for the new Excess Leave Program, and received a Regular Army Commission on September 5, 1963. In addition to his law degree, he earned his Master of Law degree and Doctor of Juridical Science from George Washington University in 1970, and received a Master in Military Art and Science degree from the Command & General Staff College in 1978. He was also a graduate of the U.S. Army War College.

COL (Ret.) Gilligan served in the Army Judge Advocate General's Corps for 27 years and held numerous positions, to include trial counsel, defense counsel, appellate counsel, 101st Airborne Division Staff Judge Advocate, Deputy Commandant of TJAGLCS, Chief of Criminal Law for Department of the Army and Chairman of the Joint Service Committee, and the Army's Chief Trial Judge. After his prestigious military career, COL (Ret.) Gilligan served for 15 years as the Senior Legal Advisor at the Court of Appeals for the Armed Forces (CAAF). Most recently, he served as the Director of Training at the Office of Military Commissions for almost 18 years.

COL (Ret.) Gilligan was widely known throughout DoD as a military justice expert and a prolific author, having written 10 books, over 40 articles, and numerous Army publications on criminal law, evidence, and related topics. A lifelong educator, COL (Ret.) Gilligan taught law students, lawyers, and judges at numerous institutions, to include TJAGLCS, the Army War College, the Universities of Maryland and Virginia, Catholic University Law School, and George Washington University Law School.

COL (Ret.) Gilligan is survived by his beloved wife, Barbara, of 63 years; his two daughters, Cheryl, and her spouse, Phil Natsios, and Kelly, and her spouse BG (Ret.) Paul Bontrager; four grandchildren (and spouses); and seven great grandchildren. He will be buried at Arlington National Cemetery with full military honors at a future date. The family requests that memorial gifts go to the George Washington University School of Law as a final acknowledgment of COL (Ret.) Gilligan's lifelong commitment to service and education.

Please keep the Gilligan family in your thoughts during this most difficult time.

Fran was one of the leading scholars of American military justice of his generation. Among other achievements, he was co-author (with Col (R) Fredric I. Lederer) of LexisNexis's invaluable Court-Martial Procedure.

For your military justice library

Congratulations to GWU's Lisa M. Schenck on the publication of the 4th edition of West's Modern Military Justice: Cases and Materials. Details and a big excerpt can be found here.

USS Somers -- book review

Steven Pfaff has written this [paywalled] International Journal of Maritime History review of The Curse of the Somers: The Secret History behind the U.S. Navy’s Most Infamous Mutiny by James P. Delgado.

Can the Army quit racial disparities?

"The Jim Crow Army Must Have a Scapegoat," tells of Lieutenant Leon Gilbert's court-martial for refusing an order during the Korean War. The article provides the context of the time. While President Harry S Truman ordered the intergration of the services in 1948, Lieutenant Gilbert still belonged to a segregated unit. The quagmimre in Korea, with the occasional American retreat, resulted in African American Soldiers receiving a higher share of the blame for a lack of mettle.

Lieutenant Gilbert refused to follow orders to return to battle then received a quick court-martial. The all white panel sentenced him to death. Many contemporaries saw it as inordinate punishment. President Truman commuted the sentence. 

The article paints an interesting portrait of Lieutenant Gilbert, as it appears he made a similar decision in World War II, but received more compassion. So there's an element of mental health issues, and the difficult decisions people must make when they risk their own life. 

The article also calls to mind, obviously, America's disparate treatment of African Americans within the criminal justice system and how that carries over to our military. While things have gotten better in the sense of official acknowlegment of the problem, we're still not where we need to be.

Anyway, interesting article. Go read it!

Speed bump for reform in Chile

The Supreme Court of Chile has submitted its report on a bill to amend the Code of Military Justice, raising questions about the measure. Details here (use Google Translate). Excerpt:

For the plenary session of ministers, although the project is part of the efforts to restrict the jurisdiction of the military courts, the basis of the motion is incompatible with the purposes of supporting the exclusion of conscripts from the status of military personnel, as well as the establishment of a rule of jurisdiction based on this logic.

The Supreme Court notes that, given the above, the bill presents areas of concern that merit review, especially regarding the understanding of conscription as an eminently military quality, given the duties of obedience and discipline that assist conscripts and that are framed within the military legal system.

It also concludes that the motion presents systemic difficulties that render the proposal inconsistent, in the terms already elaborated above.

Military court appeals in Iraq

Following is the abstract for Methods of appealing judgments and decisions issued by military courts, by Dr. Baraa Munther Kamal and Yasser Raad Abdullah, both of Tikrit University, Iraq. The article appears in the Tikrit University Journal for Rights.

The conclusion of the pleading and the pronouncement  of  the  ruling  in  the  criminal  case  is  not  the  last stage that the case goes through, as this represents the end of the role  of  the  court  competent  to  hear  the  case  from  a  procedural standpoint,  and  the  beginning  of  a  new  stage  represented  by  the post-trial  stage,  in  which  the  appeal  against  the  ruling  issued  is one  of  the  important  matters  from  those  who  authorized  it.  The law  provides  the  right  to  appeal  before  a  higher  court  than  the court  that  issued  the  ruling,  and  the  wisdom  seems  clear  in opening the door to appeal against rulings in order to avoid errors that may mar the ruling, whether procedural or substantive errors. Appeal   is   also   an   important   guarantee   that   provides   higher judicial  oversight  over  the  courts  that  have  jurisdiction.  When considering  lawsuits,  the  appeal  represents  the  legal  treatment  of errors that may occur in the criminal judgment and cause harm to the  parties  in  the  relationship,  which  could  be  the  result  of  the court’s  error  in  following  the  proper  procedures,  or  failure  to estimate the value of the evidence on which the court relied.There  are  two  types  of  appeal  methods:  ordinary  methods  and extraordinary ones. The ordinary methods are represented in Iraqi law by one type, which is the objection to the absentia judgment, according   to   which   the   case   is   reconsidered   again,   and testimonies,  statements  or  experts  are  heard  and  the  procedures related  to  the  parties  to  the  criminal  case.  As  for  the  methods Extraordinary ones are the ones that cannot be used and appealed against criminal rulings and decisions except in special cases that are  mentioned  exclusively,  and  what  should  be  raised  regarding matters  related  to  the  law  and  its  application  only.  Also,  this method  should  not  be  resorted  to  if  there  is  room  for  reviewing rulings  through  ordinary  methods.  These  methods  are  cassation, correcting  the  discriminatory  decision,  and  retrial.  Penal  laws often  combine  ordinary  and  extraordinary  methods  of  appeal, including  the  Code  of  Criminal  Procedure  No.  (23)  of  1971 (amended).  As  for  the  Military  Code  of  Criminal  Procedure,  it stipulates  the  methods  of  appeal  in  Chapter  Six  of  it,  which  are cassation,  correcting  the  discriminatory  decision,  and  retrial.  It does not stipulate objection to the ruling in absentia as one of the methods  of  appeal,  but  rather  stipulates  it  in  Chapter  Five  under the name of trial in absentia.

Port Chicago

Port Chicago: 

Eighty years after explosions ripped through the Port Chicago naval facility in California, killing 320 sailors, Coast Guard personnel and civilians, the secretary of the Navy announced Wednesday the full exoneration of African American sailors who were charged in 1944 with mutiny and refusing orders to return to work in dangerous conditions loading ammunition.

Navy Secretary Carlos Del Toro said in an interview that the decision to exonerate the sailors came after a Navy investigation found legal errors made during the 1944 courts-martial trial of 258 Black sailors who had been subjected to threats of execution for refusing to return to work after the July 17, 1944, explosions.

Bastille Day

 le 14 juillet

Not beach reading

Changes to the Manual for Courts-Martial have been proposed. Our sister ship -- CAAFlog -- has a link. The Federal Register notice can be found here.

Irish law regarding sexual offenses

Gov.ie tells us that:

The Minister for Justice, Helen McEntee TD, and Minister of State at the Department, James Browne TD, have welcomed the passage through the Oireachtas of a Bill which strengthens the law on sexual offences and improves protections for victims of sexual offences and of human trafficking.

Of special note: "Ensure people subject to military law who commit specified sexual offences will be dealt with by An Garda Síochána and the civilian courts rather than by courts-martial[.]"

News from Oslo

The Norwegian Military Prosecution Service (Generaladvokaten) was abolished as of July 1, 2024, in a reform that was pending for more than a decade. The head of the Service – Sigrid Redse Johansen – now works in the civilian Prosecutor General’s Office (Riksadvokaten) while the military prosecutors (krigsadvokater) have been transferred to the Armed Forces to handle disciplinary matters.

Another account of the latest hearing in Islamabad

Dawn has this detailed account of Monday's proceedings in the Military Courts Case before the Supreme Court of Pakistan. It is shocking how long the court has taken with this matter, particularly since it involves so many people who are not only being held in jail but are under sentences of death. The court will take up the matter again on July 11. Will the justices finally get to the merits?

Will you be near Pittsburg, California?

19 July 2024, in Pittsburg, to be precise.

According to Wikipedia: The Port Chicago disaster was a deadly munitions explosion of the ship SS E. A. Bryan on July 17, 1944, at the Port Chicago Naval Magazine in Port Chicago, California, United States. Munitions being loaded onto a cargo vessel bound for the Pacific Theater of Operations detonated killing 320 sailors and civilians and injuring 390 others.

A month later, the unsafe conditions prompted hundreds of servicemen to refuse to load munitions, an act known as the Port Chicago Mutiny. Fifty men‍—‌called the "Port Chicago 50"‍—‌were convicted of mutiny and sentenced to 15 years of prison and hard labor, as well as a dishonorable discharge. Forty-seven of the 50 were released in January 1946; the remaining three served additional months in prison.

Now there is a stage play, 19 July 2024, in Pittsburg, California.

Join us in commemorating the 80th anniversary of Port Chicago Remembrance Day with the captivating theatrical performance of PORT CHICAGO 50.

 PORT CHICAGO 50 is a powerful and poignant play that brings to life the story of fifty African American sailors who stood up against racial injustice during World War II. Set against the backdrop of the Bay Area's Port Chicago Naval Magazine explosion of 1944, the play delves into the sailors' courageous refusal to return to illegally-hazardous working conditions under Jim Crow segregation, an act of defiance that led to their court-martial and ultimately helped spark the desegregation of the US Navy. Through compelling performances and evocative storytelling, PORT CHICAGO 50 sheds light on a pivotal moment in American history, celebrating the bravery and resilience of these unsung heroes.

The Houston Riot was a prior instance of racial issues facing the military.

The Houston race riot of 1917, also known as the Camp Logan Mutiny, was a mutiny and riot by 156 soldiers from the all-black 24th Infantry Regiment of the United States Army, taking place on August 23, 1917, in Houston, Texas. The incident occurred within a climate of overt hostility from members of the all-white Houston Police Department (HPD) against members of the local black community and black soldiers stationed at Camp Logan. Following an incident where police officers arrested and assaulted black soldiers, many of their comrades mutinied and marched to Houston, where they opened fire and killed eleven civilians (including minor, Freddie Winkler) and five policemen. Five soldiers were also killed.

In accordance with policies of the time, 118 soldiers were tried in three courts-martial. 110 were convicted, of whom 19 were executed and 63 were sentenced to life imprisonment. Gregg Andrews, author of Thyra J. Edwards: Black Activist in the Global Freedom Struggle, wrote that the riot "shook race relations in the city and created conditions that helped to spark a statewide surge of wartime racial activism".

In November 2023, the Army set aside all 110 convictions.

There is a movie: ‘The 24th’ Tells the Overlooked Story of a Texas Race Riot That Led to the Largest Murder Trial in U.S. Military History."

On 26 July 1948, President Truman issued Executive Order 9981, Desegregating the Military.

More recently, we have U.S. DoD Internal Review Team Report on Racial Disparities in the Investigative and Military Justice System. From the Strategic Context:

Yet almost 75 years later, the Services continue to struggle with racial disparities in the military.14 Racial disparities have been shown to have far-ranging impacts on military promotions and leadership assignment processing.15 The IRT’s review is focused on the racial disparities that continue to exist in DoD’s investigative and military justice systems.

The Military Trials Case resumes

The Supreme Court of Pakistan today resumed its consideration of the case challenging the trial of civilians by military courts. A summary of the day's proceedings before the seven-member bench can be found here.

The hearing will resume on July 11.

By the numbers

It's a quiet morning here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza. What better time to run the numbers?

Posts, 7423

Comments, 1080

Hits, 1,843,032

Jurisdictions, 195

Town Halls, 26

Contributors, 26

Co-Editors, 2

Many thanks to all concerned.

Should Taiwan's military justice system be restored?

Here is an op-ed by a professor who thinks it should be. Excerpt:

The establishment and application of a country’s military strength hinges on the government’s national security strategy and war preparedness. The power of the military is determined by balance in war preparedness, capable soldiers and a sound court martial system.

Only when there is a military court system in place that operates properly during peacetime can military strength be maintained during wartime. If members of the armed forces desert, disobey orders or do anything that infringes on military discipline, the survival of the nation is jeopardized. This cannot be tolerated or the military’s morale and cohesion would be undermined and it would not be able to stand and fight.

If that is the case, what is the point of having a military at all?

At this critical time, with the Chinese People’s Liberation Army imposing military pressure in the Taiwan Strait, military personnel who are well-versed in the culture and military affairs surely know how to make proper arrangements regarding investigating, detaining and sentencing military offenders.

Maintenance of military discipline must be emphasized to cater to the needs of individual regiments.

The restoration of the court martial system must be considered, especially the restoration of military prosecutors.

"A republic, if you can keep it"

Happy Fourth of July

A positive change in Algeria?

Nadia Tahanout has written this article on Judicial jurisdiction in crimes endangering national security between military courts and ordinary courts, 4 J. Knowledge & Sci. Horizons No. 1 (2024). Abstract:

Military justice is specialized in examining all military crimes as defined by its laws, including those affecting national security, in addition to offenses stipulated by criminal law committed by civilians. This study aims to delineate the jurisdiction of military courts within the framework of these serious crimes, especially after the Algerian legislature changed its stance and amended the military judiciary law under law 18-14, revoking the third paragraph of article 25, which expanded the jurisdiction of military courts in trying civilians committing crimes endangering national security. Post-amendment, this jurisdiction is now within the purview of regular criminal courts, affirming the litigants' right to a fair trial.

Amnesty International report on Lebanon's military court

Sahar Mandour writes here about what it's like in Lebanon's military court. Excerpt:

Sahar Mandour is Amnesty International’s Researcher on Lebanon and has been attending a historic torture trial at the country’s Military Court examining the death in custody of Syrian refugee Bashar Abed Saud, following claims of torture at the hands of State Security Agency members. The fifth session and expected verdict is scheduled for 5 July. She’s determined to seek justice, truth and reparation for Bashar’s family. Here, she recounts her insights into a trial process dominated by the Military.

As I stood in front of the Military Court on 16 December 2022, I felt a mixture of bravery and fear. I felt brave, because I had made a formal request to the Military to attend this court session, and fearful, as I didn’t receive approval but decided to show up anyway and request it in person. Although court sessions are supposed to be open to the public, in practice, showing up without prior approval could be viewed as defiant and put me on their radar. . . .

By the fourth session, all the defendants had been released from detention, including the “angry officer” accused of carrying out the beating.

The judge informed the prosecution that Bashar’s family had dropped charges against the officers. There have been whispers that Bashar’s family had been intimidated into dropping the charges. Who could blame them?

As we await the verdict on 5 July, one thing is patently clear: this trial is not about justice for Bashar and his family, but more an internal disciplinary process for the military to protect and punish, differentiate between “honest mistakes” and shameful behaviour, and reaffirm that military discipline is above critique.

There is never any justification for torture. Suspected perpetrators of torture must be held accountable in independent and impartial proceedings that meet international fair trial standards. The Military Court does not meet these requirements and its jurisdiction over criminal cases, like the jurisdiction of any military court or commission, should always be limited to trials of military personnel for breaches of military discipline. For Lebanese authorities to be serious about eliminating torture in detention facilities, they must refer such cases to ordinary civilian courts, regardless of the accusations against victims of torture, whether terrorism, arm smuggling, drug use, or simple agitation in an interrogation room.

Retroactive promotions

The Trinidad & Tobago Defence Force has been ordered to afford retroactive promotion to two officers. Details here. The court's opinion is not yet available on the judiciary website. Excerpt from T&T Newsday:

Both officers are also to receive their accrued salaries and benefits and were also awarded vindicatory damages for the breach of their rights.

In both cases, the judge said the award of vindicatory damages was ordered to act as a deterrence. In Rudder.Fisher’s case, she added, “There must be some sense of outrage about the insensitive and laissez-faire approach the relevant authorities took in failing to treat the claimant’s complaint which he had been actively pursuing for years.

“Further, it is important that the court signals to the defendants that a breach of the claimant’s rights under sections 4(b) and (d)of the Constitution is significant and therefore it should serve to act as a deterrence from further breaches.”

She added, “In my opinion, the declarations which the claimant has sought are not sufficient to vindicate the clear breach of his constitutional rights as the defendants’ actions caused him to lose seniority without justification.

“I was satisfied that there was significant distress caused to the claimant in the instant case as his loss of seniority was significant.

NIMJ pop-up @ 12:30 p.m. today

CAAFlog, our sister affiliate at the National Institute of Military Justice, is hosting a pop-up discussion about the recent general court-martial of Major General Phillip A. Stewart of the U.S. Air Force. Details here. See you there.

Time: Jul 1, 2024 12:30 PM Eastern Time (US and Canada)

Zoom

https://villanova.zoom.us/j/7841656237?omn=99036743966

Meeting ID: 784 165 6237