Order on Downum certificate for review notification issue (C.A.A.F. Aug. 27, 2024)

No. 24-0156/AR. United States, Appellant v. Ross E. Downum, Appellee. CCA 20220575. On consideration of Appellant’s motion to amend its certificate for review, Appellant’s motion to supplement the record, and Appellee’s motion for appellate discovery, the Court notes the following:

1. Article 67(a)(2), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(a)(2) (2018), directs this Court to review the record in “all cases reviewed by a Court of Criminal Appeals which the Judge Advocate General, after appropriate notification to the other Judge Advocates General and the Staff Judge Advocate to the Commandant of the Marine Corps, orders sent to the Court of Appeals for the Armed Forces for review.” (Emphasis added.) Rule for Courts-Martial (R.C.M.) 1204(a)(2) implements Article 67(a)(2), UCMJ, with the same requirement of “appropriate notification.” 

2. On April 30, 2024, according to representations that neither party disputes, the Chief of the Government Appellate Division, U.S. Army, sent a notice to the chiefs of the government appellate divisions of the other services informing them of the Army Judge Advocate General’s intent to certify three issues to this Court pursuant to Article 67(a)(2), UCMJ.

3. On May 13, 2024, the Army Judge Advocate General signed a certificate for review in this Court requesting review of these issues. The certificate for review included the following statement: “Pursuant to Article 67(a)(2) the other Judge Advocates General and the Staff Judge Advocate to the Commandant of the Marine Corps were notified of my consideration to certify the issues.”

4. On May 15, 2024, again according to representations that neither party contests, Appellant learned that the service leadership of two services had not acquired actual knowledge of the certified issues as of May 13, 2024, the date on which the Army Judge Advocate General had signed the certificate for review. All the Judge Advocates General and the Staff Judge Advocate to the Commandant of the Marine Corps had been directly notified, and thus acquired actual knowledge, of the certified issues by May 20, 2024.

5. On May 22, 2024, Appellant moved to file an amended certificate for review. The text of the proffered amended certificate for review is identical to the certificate for review filed on May 13, 2024, but indicates that it was signed by the Judge Advocate General of the Army on May 20, 2024.

6. On May 28, 2024, Appellee filed an answer opposing Appellant’s motion to amend the certificate for review and proposed further inquiry into whether the prerequisites for jurisdiction under Article 67(a)(2), UCMJ, had been met. On May 31, 2024, Appellant filed a reply to this answer in which it asserted that the prerequisites for jurisdiction had been met.

7. On June 14, 2024, this Court ordered supplemental briefing on several specified issues, including: “Are the requirements of ‘appropriate notification’ in Article 67(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(2) (2018) and Rule for Courts-Martial 1204(a)(2), satisfied by routing notification to the Government Appellate Division Chief of each respective service?”

8. Appellant argued in its supplemental brief that it had provided appropriate notification, asserting that sending notice through appropriate personnel satisfies the requirement of notifying the Judge Advocates General of the other services and the Staff Judge Advocate to the Commandant of the Marine Corps. Appellee argued in his supplemental brief that notice to the chiefs of the government appellate divisions of the other services was not “appropriate notice” because these chiefs “are not part of the offices of the judge advocates general.” Appellee therefore requested this Court to dismiss the appeal.

Having received the supplemental briefing and considered these procedural steps, this Court reaches the following conclusions:

Appellee has not filed a separate motion to dismiss the certificate for review for lack of jurisdiction but has merely asked for that remedy in his pleadings. Ordinarily, motions must be filed separately before this Court and cannot be incorporated into other pleadings. C.A.A.F. R. 30(d). This Court, however, has an independent duty to determine whether it has jurisdiction even if the issue is not properly raised by the parties. M.W. v. United States, 83 M.J. 361, 363 (C.A.A.F. 2023) (citing Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)). The Court therefore considers Appellee’s request to dismiss the appeal in conjunction with our review of Appellant’s motion to amend.

Article 67(a)(2), UCMJ, and R.C.M. 1204(a)(2) require a Judge Advocate General seeking to certify issues to this Court to provide “appropriate notification to” the senior leaders of the other services. The Court cannot equate “notification to” with “actual knowledge of” because these are well-recognized as distinct legal concepts. Compare Notification, Black’s Law Dictionary 1280 (11th ed. 2019), with Knowledge, id. at 1043. In addition, if a requirement of actual knowledge of the certified issues were required, the qualifier “appropriate” would be rendered superfluous. The Court therefore interprets the phrase “appropriate notification to” simply to mean that the text of the proposed certified issues must be sent to addresses or through personnel that are appropriate for contacting the senior leaders of each of the other services.

In this case, Appellee argues that the notices were not sent to appropriate addresses or personnel when they were sent to the chiefs of the government appellate divisions of the other services. Appellee, however, has cited no statute, rule, or regulation requiring notification to be sent to a different address. Appellee has also cited nothing to indicate that the Judge Advocates General of the other services or the Staff Judge Advocate to the Commandant of the Marine Corps desired the Army Judge Advocate General to send notice to a different location. Accordingly, the Court has no basis for concluding that the notification in this case was not appropriate. The Court therefore rejects Appellee’s request that the Court dismiss the certificate for review. The Court further has no need to address the other specified issues. And because the initial certificate for review correctly stated that appropriate notification had been sent, the Court also perceives no need for amending the certificate for review. Accordingly, it is ordered that Appellee’s request to dismiss the appeal is denied, that Appellant’s motion to file an amended certificate for review is denied, and Appellant’s motion to supplement the record and Appellee’s motion for appellate discovery are denied as moot.

Civilians tried by military court in Myanmar

Under human rights jurisprudence, the trial of civilians by military courts is strongly disfavored. Myanmar's military rulers haven't gotten the memo, as witness these cases.

Other nations that engage in this practice include Lebanon, Uganda, Pakistan, Tunisia, and Egypt.

End testing for marijuana?

Jasper Burns explores the issue here for Military.com.

Executed in 1919 for rebellion, should this Merxican general get a new court-martial?

Felix Santana Angeles, writing here, thinks so. Excerpt:

Ángeles' defense demonstrated that the Military Court Martial had no jurisdiction in the prosecution of the detainee, as he was a civilian who had ceased to perform his military duties, there was no arrest warrant against him, he did not have armed forces at his disposal, he did not generate hostile activity against the military who detained him, and he was not fighting against the Constitution.

For its part, the sentence states that the Extraordinary Court Martial was competent to judge, warning that "it was childish to deny the military character to individuals who have made their profession in the militia and have served in the military branch, enjoying military prerogatives and rights; the military character of an individual should not be ignored, except when the Secretariat has expressly ignored it," thus leaving as fundamental evidence the telegram that indicates "General Felipe Ángeles is being prosecuted for the crime of rebellion," making clear his character as an active military man.

Justice under the Hudson's Bay Company

For a fascinating tale see Paul C. Nigol, Discipline and Discretion in the Mid-Eighteenth-Century Hudson's Bay Company Private Justice System, chapter 5 of Laws and Societies in the Canadian Prairie West, 1670-1940 (Louis A. Knafla & Jonathan Swainger eds., UBC Press 2005). Excerpt:

Autonomous decision making was an important characteristic of the private justice system of the HBC. Governors, because of their lack of proximity to London and the obvious communication problems that accompanied this, were given a great deal of latitude in their dealings with insubordinate company servants as well as First Peoples. Although the charter, legislation, and company orders and instructions laid out rather rigid remedies for behaviour that could be regarded as illegal, the personalities of the officers influenced the private justice system to a greater degree. Therefore, what is referred to as a private justice system can also be considered a personal justice system in the context of justice at the various posts, factories, and forts of the HBC.

Algerian judges dismissed

According to this LaPatrieNews account, a number of Algerian militarty judges have been terminated. Unfortunately, the report does not provide an explanation for the terminations. Excerpt:

The President of the Republic Abdelmadjid Tebboune, Minister of National Defense, has terminated the functions of several magistrates working at the military court of justice.

Indeed, in the latest issue of the Official Journal No. 56 of August 14, 2024, decisions were published relating to the termination of functions of military magistrates, including 18 military judges, a military investigating judge, a military investigating prosecutor and a deputy military prosecutor of the Republic.

Not military justice, but . . .

A Salon.com op-ed by the Editor on military service and elective office can be found here. Excerpt:

[M]oral courage may well be called for in other contexts as well, such as the world of business, education, scholarship, and work as an attorney or judge. I would argue that the real question, when it comes to qualification for elective office, is not whether one has worn the uniform, seen combat, or sustained wounds, but whether one has displayed the broader traits that cross the civil-military divide. These include not only moral courage, but dedication to the Constitution and laws of the land, personal integrity, leadership, setting an example for others, empathy, and plain old good judgment. A civilian who has never considered military service is every bit as capable of patriotism and selfless conduct as a career soldier. In short, simply having worn the uniform is not a compelling credential for elective office; you would need to know a great deal more before deciding how much weight it deserved – and who the competition was.

Forces L. Rev.

Watch next year for the fist issue of the Forces Law Review.  Details here from the Chandigarh Tribune.

Briefs in South African judicial independence case

The briefs in O'Brien v. Minister of Defence & Veterans Affairs, No. CCT 14/23, can be found here. Lt.-Col. K.B. O'Brien's application seeks an order in the following terms:

First challenge: Boards of inquiry

3.1 It is declared that, on a proper interpretation of sections 101 and · 102 of the Defence Act 42 of 2002, members of the executive are not permitted to convene boards of inquiry to investigate military judges and senior military judges ("military judges") and the content and merits of their judgments and rulings.

3.2 In the alternative to paragraph 3.1, sections 101 and 102 are unconstitutional and invalid to the extent that they permit members of the executive to convene boards of inquiry to investigate military judges and the content and merits of their judgments and rulings.

Second challenge: Renewable assignments of military judges

3.3 It is declared that on a proper interpretation of section 15 of the MDSMA, the Minister, acting on the recommendation of the Adjutant General, is not empowered·to assign military judges for renewable periods.

3.4 In the alternative to paragraph 3.3, section 15 of the MDSMA is unconstitutional and invalid to the extent that it empowers the Minister, acting on the recommendation of the Adjutant General, to assign military judges for renewable periods. 

3.5 It is declared that the existing practice of assigning military judges for renewable periods of one to two years is unconstitutional and unlawful.

Third challenge: Removal of military judges

3.6 Section 17 of the Military Discipline Supplementary Measures Act 16 of 1999 {"the MDSMA") is unconstitutional and invalid to the extent that it empowers the Minister, acting on the recommendation of the Adjutant General, to remove a military judge and that the Minister may do so without any independent inquiry into the fitness of the military judge to hold office.

General

3. 7 The declarations of constitutional invalidity sought in paragraphs 3.1, 3.4 and 3.6 above are suspended for a period of 24 months to allow Parliament to correct the defects. 

Described as a First

Aamar Latif, In 1st, Pakistan army arrests former intel chief, initiates court martial proceedings. Anadolu Agency, 12 August 2024.

The Pakistani military on Monday announced that former head of the Inter-Services Intelligence (ISI) Lt. Gen. (retd) Faiz Hameed has been taken into custody and court martial proceedings has been initiated against him.

This is the first time that a former ISI chief has been arrested in the country's 77-year history.

“Complying with the orders of the Supreme Court of Pakistan, a detailed court of inquiry was undertaken by the Pakistan Army to ascertain the correctness of complaints in the Top City (land) Case made against Lt Gen Faiz Hameed (Retd). Consequently, appropriate disciplinary action has been initiated against Lt Gen Faiz Hameed (Retd), under provisions of the Pakistan Army Act,” the army’s media wing said in a statement.

This is not the first time a retiree has faced court-martial. 

Initial research raises a question of jurisdiction. The Army Act 1952, suggests that,

(2) Every person subject to this Act under clause (a) or clause (b) 1 [or clause (e)] of sub­section (1) shall remain so subject until duly retired, released, discharged, removed or dismissed from the service.

If he is a civilian, this leads to the larger discussion about the ongoing dispute about civilians being prosecuted in courts-martial (it's Wikipedia, but a start). In the U.S. he likely would not be subject to jurisidiction based on the statutory language under United States ex rel. Toth v. Quarles.

For a summary of U.S. military jurisdiction over retired officers, see the Congressional Research Service and a Georgetown Law article. 

Is the victim's lawyer required to keep secret what transpired in the summary proceeding?

 In December 2023, two soldiers died having disappeared during a military exercise.  The disappeared were involved in an exercise traversing water in Cerro Muriano (Cordoba, Spain) and after a search were discovered and declared to have "drowned" in an accident.  

The two soldiers were Miguel Angel Jimenez Andujar, 34, married and a native of Cordoba and Carlos Leon Rico, 23, single and born in the  municipality of Viso del Alcor.

Luis Romero, lawyer for Carlos Leon Rico's family argued that the  secret of the proceedings ("secreto sumarial") did not bind him in the same terms as the rest of the parties to the case.  Romero challenged the military court and stated "I am going to keep talking to the press," arguing that he was exercising his right to freedom of expression.  The judge is prosecuting six members of the military for the death of the two soldiers in Cerro Muriano.

The lawyer was reprimanded for having given information to the press on the case which is still pending and then presented an appeal which was rejected.  The Supreme Court of Spain has established that the "secreto sumarial" includes all the elements of the investigation that lead to the proof of the crime.

Judicial independence in the South African National Defence Force

The Constitutional Court of South Africa has taken under advisement the important case of O'Brien v. Minister of Defence & Military Veterans, No. CCT 14/23, heard on August 8, 2024. The Supreme Court of Appeal's decision under review can be found here. The International Commission of Jurists is an amicus curiae. Here is an excerpt from its description of the case:

The case addresses questions around the functional and effective judicial independence within the military courts in South Africa, which the ICJ submits is inadequately protected. One adverse impact is that military courts have not been able to protect the rights of survivors of gender-based violence alleged to have been committed by members of the South African military. The applicant, Lieutenant Colonel Kevin O’Brien, was previously a military judge whose appointment was not renewed in 2014. Lt-Col O’Brien last sat as a military judge in 2017 and has since been an instructor at the School of Military Justice. He is challenging several provisions of law concerning the military courts in relation to procedures for appointment and removal, which involve undue participation of political authorities and thereby serve to undermine the status and function of these courts as independent.

“The power granted to the Minister to remove military judges, without oversight, is antithetical to the independence of military courts and judges and amounts to the effective management and a degree of control of military courts by the executive.”, said Kaajal Ramjathan-Keogh, ICJ’s Africa Programme Director.

The ICJ has successfully petitioned the Court to allow it to adduce evidence of a government issued report documenting the extent of harm by the South African military in respect of sexual harassment, sexual exploitation, sexual abuse, and sexual offences.

“As the government itself has acknowledged, there is a serious problem with gender-based violence perpetrated within and at the hands of the South African military. The inadequate independence of military courts therefore significantly reduces the avenues for accountability for survivors of abuse,” said Ramjathan-Keogh.

In its written submission, the ICJ connects the inadequacies of judicial independence with the potential failures of the military courts to ensure accountability for survivors of such abuses within and at the hands of members of the South African National Defence Force. The ICJ underscores that under international standards cases of torture and ill-treatment, including rape and other sexual violence should be adjudicated by ordinary civilian courts, but where military courts do act, they must be effectively independent from political entities.

In summary, the ICJ’s submissions raise the following key points:

• International law and standards applicable to South Africa must give effect to human rights obligations in respect of the independence of the independence of the judiciary, and international standards on judicial independence are applicable to military tribunals.
• Sections 15 and 17 of the Military Discipline Supplementary Measures Act 16 of 1999, which grant the Minister of Defense and Military Veterans the discretionary power to appoint military judges on a temporary basis or remove them without any oversight, is non-compliant with the principles of judicial independence, and is therefore in breach of South Africa’s international legal obligations.
• The investigation of military judges and/or revision of their judicial decisions through a board of inquiry, under sections 101 and 102 of the Defence Act No. 42 of 2002, is a clear violation of the principle of judicial independence.
• One of the many consequences of South Africa’s failure to secure the independence of military courts is a failure to ensure accountability for victims and survivors of sexual violence allegedly perpetrated by members of the SANDF. This, therefore, also constitutes a failure to comply with South Africa’s international obligations to prevent and redress all forms of gender-based violence.

Another must-read from Dan Maurer

Prof. Dan Maurer (Ohio Northern University) writes on Lawfare: Governing Military Norm-Defiance in a Norm-Defying Presidency. Excerpt:

The public perception of a rigidly hierarchical military obeying orders mechanistically from the national command authority during war is a well-entrenched portrayal. Within the military profession, however, the issue of following orders is considerably more nuanced.

A situation in which a service member has reason to disobey an order is not uncommon and, under some circumstances, expected. In fact, the military justice system provides an affirmative defense to what normally would be the crime of disobeying orders. Rule for Courts-Martial 916(d) states that acting “pursuant to orders” is a legitimate defense against charged misconduct, “unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful” (emphasis added). This means, in practice, an affirmative duty to obey only lawful orders. Rule 916(d) precludes a “just following orders” defense when charged with, for example, killing unarmed prisoners of war—an offense all service members are trained to know violates the laws of war (in this case, a grave breach of the Third Geneva Convention).

But this duty and its corollary affirmative defense are severely qualified. There is a cliché in the armed forces: The “military officer belongs to a profession upon whose members are conferred great responsibility, a code of ethics, and an oath of office. These grant him moral autonomy and obligate him to disobey an order he deems immoral.” Even military leadership doctrine promotes this: “Army forces reject and report illegal, unethical, or immoral orders or actions.” But this is only partially true. An order could be unlawful, unethical, and immoral all in one. In such a case, however, the only legally permissible grounds for disobeying it is the order’s illegality, not its unmooring from ethics and morals. An order could therefore be lawful, but still unethical or immoral. In such a case, there are no legal grounds for disobeying it, though doing so may exemplify “moral courage.” In other words, there is no duty to disobey (and no affirmative defense against) an unethical or immoral command from a civilian authority, as judged by the military recipient of the order.

Zoom panel discussion tomorrow: "The Guantanamo Plea Deals"

Friday, noon eastern: "The Guantanamo Plea Deals"

Speakers:

Eugene Fidell
Alka Pradhan
Richard Kammen
Rodrigo M. Caruço

Last week saw the announcement of plea agreements in three major Military Commissions cases that took the death penalty off the table, only for the deals to be rescinded days later when the Secretary of Defense withheld the cases to his level and announced that the deals were off.

Sponsored by the National Institute of Military Justice and Center for International and Comparative Law at Mississippi College School of Law.

Meeting link: https://zoom.us/j/97098984116

Military court tries civilians in DRC

MediaCongo reports here on the rape trial of 10 civilians before a Democratic Republic of Congo military court.

Human rights jurisprudence strongly disfavors the prosecution of civilians by military courts. It is forbidden under the African Charter on Human and Peoples' Rights.

Here there be train wrecks . . .

To be sure, there are some mainstream pundits who have expressed disagreement with [Secretary of Defense Lloyd J.] Austin’s decision to cancel the plea bargain. But none of them question the very notion that a retired military general is making a major decision in a case involving criminal justice. That’s because the mainstream press, along with many Americans, has come to accept the normality and permanence of the judicial system that the Pentagon established in Cuba after the 9/11 attacks.

But the fact is that Austin’s role in a criminal prosecution is weird — extremely weird. A retired military general serving as U.S. Secretary of Defense has no more legitimate role in America’s criminal-justice system than he does in America’s public-school system.

From this Future of Freedom Foundation blog post by Jacob G. Hornberger.

Train Wreck at Guantánamo

Just up on Just Security: Train Wreck at Guantánamo.

Public Hearing

The Joint Service Committee on Military Justice will hold a public hearing at the U.S. Court of Appeals for the Armed Forces, 450 E St., N.W., Washington, DC, on proposed changes to the Manual for Courts-Martial on August 14, 2024 at 10:00 a.m. You can attend in person or virtually. Details can be found here.

Call for Speakers for a NIMJ Panel: "The Guantanamo Plea Deals"

Last week saw the announcement of plea agreements in three major Military Commissions cases that took the death penalty off the table, only for the deals to be rescinded days later when the Secretary of Defense withheld the cases to his level and announced that the deals were off.

NIMJ will host a public zoom panel discussion this Friday at noon U.S. EST on the Guantanamo plea deals, the switcheroo, and the current state of play of the Military Commissions.

To promote a robust and diverse exchange of views, NIMJ invites its members and members of the public to speak on this panel. Email NIMJ President Frank Rosenblatt at frosenblatt@mc.edu by this Wednesday at 5pm EST with a short summary of your expertise and perspective. Selected speakers will be notified by Wednesday evening.

Zoom link for Friday: https://zoom.us/j/97098984116

Coast Guard Day, 1790-2024

Courtroom intimacies: Responses to everyday violence in the British military’s justice system

Here is the abstract of a Cardiff University doctoral dissertation by Hannah Richards. The full text of her thesis will be available in a year.

This thesis examines the everyday workings of a Military Court Centre to demonstrate how specific imaginaries of military service, (sexual) violence, and justice are brought into being within the British military. Curious about how the institution’s justice system claims ownership over ‘everyday’ offences that are not unique to a military context, this thesis asks what imaginaries of military justice are reproduced in the Court Centre, how are military personnel enlisted in their remaking, and how are these imaginaries resisted and unsettled? Drawing on observations of 15 hearings, and over 150 hours spent at one of the UK’s permanent Military Court Centres, this thesis responds to these questions by exploring how the spatial, temporal, and intimate dynamics of the Court Centre both resist and reproduce ideas of military exceptionalism. Thus far, research on how British military justice responds to ‘everyday’ offences has been restricted to the historical evolution of the internal justice system, and doctrinal legal studies and jurisprudence. In contrast, critical, feminist-informed empirical studies of military justice are scarce. Drawing together literatures from Critical Military Studies, Feminist Legal Studies, and Political Geography, this thesis provides the first in-depth, qualitative analysis of the Military Courts. Ultimately, it argues that everyday entanglements between imaginaries of military justice and the soldiering subject within the Court Centre work to reinvigorate an understanding of the military as an exceptional institution, in turn reproducing epistemic and material violences that otherwise remain hidden. Yet, this thesis also shows how the Court Centre can be viewed as an affective terrain of resistance and intimacy in which lives are not just disciplined and curtailed, but also lived in ways that unsettle dominant configurations of military power.

Landmark decision of the Caribbean Court of Justice

At issue in the July 26, 2024 decision of the Caribbean Court in Justice in Barbados Defence Force v. Harewood, [2024] CCJ 15 (AJ) BB, was whether s 75 of the Barbados Defence Act, which criminalizes conduct prejudicial to good order and military discipline, is too vague. According to this Barbados Today account:

In dismissing the BDF’s appeal, the CCJ considered whether section 75 of the Act complied with constitutional standards of legal certainty and due process. Justice Peter Jamadar, delivering the court’s reasons, said: “The language of section 75 is expressed with sufficient clarity to be capable of objective assessment and self-regulation.”

He added: “International military guidelines contain examples of what may constitute an offence falling under the section. Also, the open-endedness of the offence is academically acknowledged and its utility in a military context is accepted.”

But the CCJ found that the specific charge against [David Anthony] Harewood lacked sufficient detail. Justice Jamadar ruled: “In the current case, the particulars of charge four lacked sufficient particularity. In a section 75 charge, the constitutional requirements of due process, the protection of the law, and fundamental fairness must be satisfied in the statement of the particulars of the offence, given the broad and general wording of the statutory offence.”

CCJ President Justice Adrian Saunders in a concurring opinion, emphasised the unique nature of military justice: “The Constitution of Barbados recognises, even if implicitly, the uniqueness of court-martials [sic] and the resulting specialised procedures and rules that exist for the prosecution of service members for transgressions committed in the course of service.”

Justice for 9/11 Act

On August 1, 2024, Sen. Tom Cotton (R-Ark.) introduced the Justice for 9/11 Act. Comments are invited (real names only, please).

Sen. Cotton served in the U.S. Army, He is a graduate of Harvard College and Harvard Law School.