Military trials of civilians -- a critical juncture for Pakistani democracy

Rida Hosain tells the tale ably here in Dawn. Excerpt:

Thus, government representatives have been given a say in selecting the judges who will sit on the Constitutional Bench. Litigants cannot choose their own judges. It is destructive for judicial independence for the government to be given such a power in the selection of judges to hear constitutional cases. There is a real risk that the government representatives on the commission will select judges they perceive as sympathetic to the government to sit on the Constitutional Bench.

The irony here is that it is the federal government that defended the trial of civilians by military courts; it is also the federal government that appealed the decision declaring military courts for civilians unconstitutional. It would, therefore, be completely inconsistent with judicial independence for the federal government to have a say in the judges that will hear constitutional cases to which it is a party.

Amid all the tussle between the power corridors and the judiciary, what is most unfortunate is that a year after the historic decision declaring military courts for civilians unconstitutional, civilians in military custody still await justice. These civilians are not in judicial custody. They do not have a right to apply to the court for bail. Their freedom and liberty are entirely dependent on the fate of the appeal.

Pakistani democracy hangs in the balance.

Ex-Lt Col Stuart Scheller to speak at Montana State

If you are in Bozeman on Nov. 8, you can hear ex-Lt Col Stuart Scheller discuss "Courageous Leadership." Details here. Excerpt:

“Standing up for what one feels is right, even in the face of potential job loss, defines true character,” said Todd Bucher, director of Veterans Services at MSU. “It is in these moments of courage that we not only honor our values but inspire others to do the same. The cost of silence can be far greater than the risk of speaking out.”

Located in Romney Hall, MSU’s Travis W. Atkins Veteran Support Center is a dedicated space for student veterans. It houses the Office of Veteran Services and is a place for MSU student-veterans to get support, study and build community.  

Bucher said the evening will offer insight into the importance of accountability in leadership and command.

“Do not miss this unique opportunity to hear from Lt. Col. Scheller—a voice of courage and accountability,” said Bucher. “Join us in celebrating the power of leadership that inspires change.”

Tomorrow is St. Crispin's Day

Consider this link, starring the great thespian Mark Rylance. Not military justice, but nourishment for all those who labor against long odds in the courtroom (and elsewhere). Consider this remarkable miniseries version of The Speech. (H/T to Fran Morriss for the link.)

The text:

WESTMORLAND. O that we now had here

But one ten thousand of those men in England

That do no work to-day!

KING. What's he that wishes so?

My cousin, Westmorland? No, my fair cousin;

If we are mark'd to die, we are enough

To do our country loss; and if to live,

The fewer men, the greater share of honour.

God's will! I pray thee, wish not one man more.

By Jove, I am not covetous for gold,

Nor care I who doth feed upon my cost;

It yearns me not if men my garments wear;

Such outward things dwell not in my desires.

But if it be a sin to covet honour,

I am the most offending soul alive.

No, faith, my coz, wish not a man from England.

God's peace! I would not lose so great an honour

As one man more methinks would share from me

For the best hope I have. O, do not wish one more!

Rather proclaim it, Westmorland, through my host,

That he which hath no stomach to this fight,

Let him depart; his passport shall be made,

And crowns for convoy put into his purse;

We would not die in that man's company

That fears his fellowship to die with us.

This day is call'd the feast of Crispian.

He that outlives this day, and comes safe home,

Will stand a tip-toe when this day is nam'd,

And rouse him at the name of Crispian.

He that shall live this day, and see old age,

Will yearly on the vigil feast his neighbours,

And say "To-morrow is Saint Crispian."

Then will he strip his sleeve and show his scars,

And say "These wounds I had on Crispin's day."

Old men forget; yet all shall be forgot,

But he'll remember, with advantages,

What feats he did that day. Then shall our names,

Familiar in his mouth as household words—

Harry the King, Bedford and Exeter,

Warwick and Talbot, Salisbury and Gloucester—

Be in their flowing cups freshly rememb'red.

This story shall the good man teach his son;

And Crispin Crispian shall ne'er go by,

From this day to the ending of the world,

But we in it shall be rememberèd—

We few, we happy few, we band of brothers;

For he to-day that sheds his blood with me

Shall be my brother; be he ne'er so vile,

This day shall gentle his condition;

And gentlemen in England now a-bed

Shall think themselves accurs'd they were not here,

And hold their manhoods cheap whiles any speaks

That fought with us upon Saint Crispin's day.

More civilians tried in secret in Uganda

Uganda is still at it, employing its general court-martial to prosecute civilians. Details on the latest closed proceedings here. The country is subject to the African Charter on Human and Peoples' Rights, which forbids the trial of civilians by military courts.

A case challenging the practice has been hung up at the Supreme Court for several years.

Former CANSOFCOM soldier brings legal action

A former special forces soldier is suing the Canadian federal government, alleging he was shunned by his unit and pushed out of the military after he denounced Canadian troops' alleged involvement in the killing of unarmed people in Afghanistan.

The action was commenced before the Superior Court of Justice for Quebec.

This will likely remind many of similar matters arising in the United States, United Kingdom, and Australia.  There will undoubtedly be much more discussion on this matter, including discussion of issues arising from justiciability and potential motions or defences that the federal government might bring.

For the moment, here is the recent coverage from Matthew Lapierre from the CBC:

"Former special ops soldier says he faced 'retaliation' for reporting alleged killing of Afghan civilians", 16 October 2024

Pakistan's human rights record under review

Pakistan's human rights record will come under scrutiny this week in Geneva, according to this press release from Amnesty International. Among the issues: the trial of civilians by military courts. Excerpt:

In its submission to the UN Human Rights Committee, Amnesty International outlined a raft of ongoing human rights violations in the country. The organization especially highlighted the escalating blasphemy-related violence across the country and the use of vague and coercive blasphemy laws.

Amnesty International also noted that the use of military courts to try civilians denies people their right to a fair trial. The continued military detention of 85 participants of the 9 May 2023 protests and prisoners such as Idris Khattak remains a major concern.

New Chief Justice for the Court Martial Appeal Court of Canada

Yesterday, 15 October 2024, the Prime Minister of Canada announced the appointment of the Honourable Mary J. L. Gleason, a judge of the Federal Court of Appeal and a judge of the Court Martial Appeal Court of Canada, as the new Chief Justice of the Court Martial Appeal Court of Canada.

Following the retirement of the previous Chief Justice, the Honourable Richard Bell, the Honourable Elizabeth A. Bennett, a judge of the British Columbia Court of Appeal and a judge of the Court Martial Appeal Court of Canada, served as Acting Chief Justice.

Chief Justice Gleason has sat on various panels for appeals to the Court Martial Appeal Court of Canada, including: R v Déry, 2017 CMAC 1; R v Déry, 2017 CMAC 2; R v Wellwood, 2017 CMAC 4; and R v O'Dell, 2024 CMAC 5.

Congratulations on your appointment, Chief Justice Gleason.

A foreign president for Barbados ordinary court-martial

From Stabroek News:

Commandant of the Guyana National Reserve (GNR) Lieutenant Colonel Lloyd Souvenir of the Guyana Defence Force (GDF) recently served as President of an Ordinary Court Martial, convened to try Sub Lieutenant Nakeida Gibson of the Barbados Defence Force (BDF), according to a release from the GDF.

The case, which proceeded under the auspices of the BDF, marked a critical examination of military conduct, the release said. Sub Lieutenant Gibson faced charges of, Conduct to the Prejudice of Good Order and Military Discipline, Neglect to the Prejudice of Good Order and Military Discipline, Civil Offence contrary to Section 76(1) of the Defence Act.

FOIA

Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia has handed down an important Freedom of Information Act decision that will be of particular interest to military practitioners. Her opinion in War Horse News, Inc. v. U.S. Dep't of the Navy can be found here. At issue is a request for information contained in a Marine Corps database for reporting and tracking officer misconduct and substandard performance cases. Judge Chutkan was not buying what the government was selling.

Job opportunity

If you are really interested in military justice, this is the job for you:

Associate Deputy General Counsel for Personnel and Health Policy

The incumbent is the primary military justice policy advisor for the Office of the Secretary of Defense. Main duties include serving as the DoD Office of General Counsel advisor to the Joint Service Committee on Military Justice, liaising with the Executive Office of the President concerning executive orders to amend the Manual for Courts-Martial, preparing and revising DoD issuances dealing with military justice topics, preparing and reviewing legislative proposals on military justice topics, supervising the preparation of reports to Congress on military justice topics, serving as a non-voting member of the Military Sentencing Parameters and Criteria Board, and serving as an advisor to the Interservice Special Victims’ Counsel Coordination Committee. The incumbent also performs other duties as assigned. The is a GS-15 excepted service position within the DoD Office of General Counsel.

The application deadline is October 23. If you are interested in the position, please send your resume to dwight.h.sullivan.civ@mail.mil. Note that your resume will also be placed in the DoD OGC Resume Bank.

Push for reform in Bangladesh

The Dhaka Daily Sun reports:

Former [Bangladesh] army officers have called for the establishment of a commission to reform military law and prevent political interference in the armed forces.

They argue that the military should be depoliticised, those dismissed for political reasons under the previous Awami League government should be reinstated, and financial support should be provided to those who have completed their service.

The news report continues: 

The keynote address highlighted that the impartiality and professionalism of the armed forces have been repeatedly compromised to serve the interests of the ruling elite, as military law and regulations have been misused. It further noted that many talented officers were unfairly convicted in military courts and dismissed without pensions.

Global Military Justice Reform will be following this emerging story.

Litigator Libations

The U.S. Air Force's Defense Counsel Assistance Program (DCAP) has a lively biweekly podcast called Litigator Libations. Run by Darrel "the DCAP" Johnson, it's also available here. Seventy episodes have been uploaded since 2021. "The Air Force DCAP providing updates and tips on defensive litigation in military justice including discussing recent appellate decisions and advocacy tips." Check it out!

End o' Term

During the Term that ernded on September 30, the U.S. Court of Appeals for the Armed Forces handed down full opinions in 30 cases. One argued case from the Term is hanging fire.

The court ruled on numerous petitions for grant of review as well as original petitions for extraordinary relief, writ-appeal petitions, petitions for a new trial, and procedural motions (many of which sought extensions of time). We know of no original or reciprocal attorney disciplinary matters during the Term. 

On September 30, the court issued revised Rules of Practice and Procedure that went into effect on October 1. It also entered the usual Notice concerning the Rules Advisory Committee:

Pursuant to Rule 45 of the Rules of Practice and Procedure, United States Court of Appeals for the Armed Forces, the following persons are, this 30th day of September, 2024, hereby appointed as members of the Rules Advisory Committee, effective October 1, 2024, for a term expiring on September 30, 2027:

Mr. Dwight H. Sullivan, Esq., Mr. Thomas E. Booth, Esq., Mr. Seth D. Berlin, Esq. 

The following members, whose terms expire on the dates indicated below, remain on the Rules Advisory Committee:

 To expire on September 30, 2025:

 Prof. Alan B. Morrison (Chair), Ms. Michelle Lindo McCluer, Esq., Ms. Carol K. Joyce, Esq.

To expire on September 30, 2026:

Mr. William A. DeCicco, Esq., Ms. Rebecca S. Snyder, Esq., Mr. Solomon L. Wisenberg, Esq.

The Clerk of the Court is an ex officio member of the Committee and serves as its Reporter.

The Court expresses its deep appreciation to John P. Taitt for his distinguished service as a member of the Rules Advisory Committee.

According to USASpending.gov, the court's obligated amount for FY24 was $15,692,849 as of August 30. Of that, 57.49% ($9,021,524) went to Personnel Compensation and Benefits.