An interesting career

"William John King had deserted a total of five times in his career in the army. He had (re-)joined the same regiment six times. This was, perhaps, by force, by choice, or because he had no other opportunities available to him. He had spent 6 years and 176 days in India. He had been sent to France in the BEF for 15 days, received a gunshot wound in his right arm, and then been sent home for 20 days. He returned to France for 48 days, before being sent home for 2 years and 65 days, before being sent back to France to fight for 96 days, and finally return to the depot for 1 year and 64 days. He had been court martialled four times. He was detained at the depot three times and imprisoned three times. Ultimately, he had served his 12 years, but had remained in the army between 1902 and 1930 (a total of 28 years). He forfeited his entire service, and it was only reckoned from 10 December 1918 until 24 September 1930, a total of 12 years. He received an army pension as a result only for that period. He was awarded the Victory Medal as part of the BEF16and also the 1914 Star Medal (TNA 1921)17. Perhaps, as previously stated, the time in the army had afforded him the luxuries that he would not have been able to access outside of the army, given his social status and lack of opportunity. The fact that his pension was only reckoned from 1918, therefore, must be seen in the light of the advantages that he had gained while serving: food and accommodation, and perhaps some sense of structure, and employment (although with his own personal adoption of flexibility towards that, from time to time)."

From Andrew Milne, The Typography of Forgetting: The Unsettling of Dominant Social Narratives in the Resurfacing of a Military Deserter in Family Memory, Genealogy 8(2) 60 (2024).

Manxmen of the World, unite!

It's a quiet evening here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza. What a nice surprise, therefore, when Blogger reported that we had a hit today from the Isle of Man. To our mysterious visitor (not the first from the Isle), all we can say is "Fastyr mie."

David McBride, ADF whistle-blower, pleads guilty and is sentenced

David McBride, a former Australian Defence Force (ADF) legal officer has been sentenced to 5 years, 8 months following a guilty plea to three charges, including theft of secret documents and sharing them with news media.  He will be eligible for parole in 27 months.  The maximum sentence he faced was life imprisonment.

Mr. McBride pled guilty to the charges after preliminary applications for potential legal defences failed.  In particular, the trial judge, Justice David Mossop, indicated in an earlier ruling that he would not instruct the jury that they could consider McBride's proposed argument that he acted out of a sense of duty to the Australian public.

The Australian Director of Human Rights Watch, Daniela Gavshon, suggested that McBride’s sentencing was evidence that Australia’s whistleblowing laws needed exemptions in the public interest:

“It is a stain on Australia’s reputation that some of its soldiers have been accused of war crimes in Afghanistan, and yet the first person convicted in relation to these crimes is a whistleblower not the abusers ..."

This matter has received global news coverage, including from the BBC, and CNN, as well as the Australian Broadcasting Corporation, the news outlet with which McBride shared the secret information.

His counsel have announced that they will appeal (and that fund-raising through social media platforms has provided sufficient financing to appeal).

‘Should civilians be tried in Military Courts?’

‘Should civilians be tried in Military Courts?’ That is the title of an article in The Independent (Uganda), 14 May 2024.

The Supreme Court will deliver its judgment on notice in the case where the government is challenging the Constitutional Court’s decision barring military courts from trying civilians. This pending case was filed as an appeal by the Attorney General following a successful petition by Former Nakawa Member of Parliament Michael Kabaziguruka.

In 2021, the Constitutional Court Majority of Justices ordered that the files for all civilians facing trial before the General Court Martial be transferred to civil courts through the office of the Director of Public Prosecutions within 14 days.

Kabaziguruka first petitioned the Constitutional Court in 2016, challenging the trial of civilians in military courts after being arraigned before the Makindye General Court Martial on charges of treachery, alleging an attempt to overthrow the government of Uganda. He argued that his trial before the military court was unconstitutional and that he had been denied the right to a fair hearing.

Based on this, the Majority of the Constitutional Court justices ruled that although the Court Martial is a competent court, its powers are limited to serving officers of the Uganda People’s Defense Forces. They ordered that all civilians serving sentences imposed by military courts have their files transferred to the High Court Criminal Division for either retrial or handling as the court deems fit. The same justices ruled that a civilian can then be charged as an accomplice.

Chilean president threatens to veto military courts measure

"During my government, military courts will not be reestablished,” said President Gabriel Boric this Thursday, regarding the discussion in Congress regarding the draft Rules for the Use of Force for members of the Armed Forces and police in exceptional contexts. .

Although the opposition's indication proposing that military justice be the one to investigate RUF crimes was declared inadmissible in the Chamber of Deputies, voices have emerged that propose reinstating it in the discussion in the Senate.

In an interview with Cooperativa radio this Friday morning, when asked if La Moneda is willing to apply a veto if the opposition proposal advances, the Undersecretary of the Interior, Manuel Monsalve, did not rule it out.

From this article in La Tercera

Watch this space.

2017 Army retiree tried by court-martial for preretirement offenses in Hawaii, Florida

Here's the Army's announcement:

A retired Soldier, recalled to active duty, was sentenced on Wednesday by a military judge to 108 months of confinement for the sexual abuse of a minor.

Staff Sgt. William Rivers, 55, pled guilty and will serve 80 months based on terms of a plea agreement. In addition to the prison term, the military judge reduced Rivers to the rank of private E-1 and imposed a bad conduct discharge.

Rivers sexually abused his stepdaughter over multiple years in Hawaii and Florida before he retired from the military in 2017. He was recalled to active duty specifically for the purpose of this general court-martial.

Rivers was arrested at Camp Humphreys, South Korea, by the Army Criminal Investigation Division in December 2023 where he was working as a contractor. During the course of the investigation, the Naval Criminal Investigative Service obtained evidence where Rivers admitted to sexually abusing the victim for several years across multiple duty locations.

On May 8, Rivers plead guilty to five specifications of sexual abuse of a child. He has remained in custody near Fort Moore since his arrest in December 2023 in South Korea.

“The outcome of this case shows that the Army will pursue justice even after an offender retires from the service,” said Maj. Steven Poland, lead prosecutor, Second Circuit, Army Office of Special Trial Counsel.

“While the process may take a significant amount of time and resources, it is important for victims to know that we will do everything in our power to hold their abusers accountable for their actions. The victim in this case was strong and patient, I am glad she was able to seek justice and hope she continues to heal.”

“Mr. Rivers deserves to be brought to justice for his crimes,” said Special Agent in Charge Tim Mahew of the NCIS Far East Field Office. “NCIS and our partners remain committed to protecting innocent children in communities where our service members' families live and work.”

The investigation was conducted by the NCIS – Iwakuni, Japan Resident Agency, Army CID – Korea Field Office, and prosecuted by Maj. Steven Poland, Second Circuit, Army OSTC, with assistance from Maj. William Wicks, Third Circuit, Army OSTC, and Cpt. Scott Gronsky, Office of the Staff Judge Advocate, U.S. Army Maneuver Center of Excellence, Fort Moore, Ga.

Query: did the defense challenge court-martial jurisdiction over retirees? If not, why not? And why was the case not prosecuted by civilian authorities in Hawaii and Florida? Did they turn it down? Was there a statute of limitations problem? Some other reason?

Inter-Services Organisations (Command, Control & Discipline) Act implemented in India

The Government of India has issued the implementation notification for the Inter-Services Organisations (Command, Control & Discipline) Act, 2023 with effect from 10 May 2024.

The Act was passed with a view to streamline discipline for Inter-Services Organisations where personnel of the Army, Navy and the Air Force serve together. It may be noted that the necessity of this Act arose since the defence services have separate Acts in India, not a joint code, and therefore powers needed to be clarified and vested in officers commanding mixed body of troops rather than the ones mentioned in the separate respective Acts. 

For example, the Army Act may vest certain powers in the General Officer Commanding-in-Chief holding the rank of Lt Gen with respect to certain troops, but an Inter-Services Organisation (Joint/Purple organisation) may practically be having a Vice Admiral at the helm as the Commander-in-Chief. 

A related 2021 opinion piece jointly authored by the Editor-in-Chief along with another editor of this blog, on the subject of the desirability of a common disciplinary code in India can be accessed here. 

The Act can be accessed here.

The official press release by the Government of India can be accessed here.

Pakistan's military courts case

Dawn has published this exceptional piece of long-form reporting, May 9: Mayhem and Military Trials--A Year On. The feature article includes, among other things, a useful summary of the country's repeated misuse of military courts to try civilians. Numerous aspects of the military justice system fall far short of contemporary standards, including but not limited to the unavailability of an independent and impartial appellate court with full power to conduct plenary direct review.

Looking back at New Zealand military law's treatment of homosexuals from the 1940s to the 1960s

In a new article, New Zealand’s Military and the Disciplining of Sex between Men, 1940–1960 published in the University of Texas Press periodical, Journal of the History of Sexuality, Professor Chris Brickell from the University of Otago provides some interesting, if troubling, reflections on the approach which was taken by both the New Zealand military and civilian authorities to homosexual conduct by members of the Armed Forces during World War II and the immediate post-war period. Prof. Brickell correctly points to the ambivalence of many senior leaders and the inconsistent responses which resulted, despite fairly well developed official policy reflecting the prevailing law and societal attitudes. Even in the 1980s, as a young midshipman, I was instructed on the proper steps to take if confronted by "unnatural acts", which involved some quite forensic procedures. This created a degree of unease among my cohort. Homosexuality was regarded as a security risk, because foreign agents might use undisclosed homosexuality to blackmail an officer or sailor into divulging classified information. Of course, this entirely overlooked the fact that such blackmail was only possible because the system compelled LGBTQ personnel to conceal their sexual orientation.

I was also serving in one of HMNZ ships when the Human Rights Act 1993 came into force, prompting humorous banter in the Wardroom that "the closets would bust open" on the appointed day. Of course, nothing of the sort happened. What did happen was incremental changes in the culture (and policy) of the NZDF which has led to the much more enlightened approach to sexual orientation we see today. It has taken our community a while to realise that, while the professionalism and courage of our comrades in arms are important, their sexual orientation really isn't.

Criminal justice reform finds its way to the VA

Great news for veterans with bad paper for minor offenses. According to Stars and Stripes, "Veterans who left miliary service with an other-than-honorable discharge or after a special court-martial for misdemeanor offenses will be eligible for the first time for veterans’ health care and benefits following a rule change announced Thursday by the Department of Veterans Affairs."

This appears part of an American trend over the last 10 years, of more leniency for miscreants. As a soft hearted man, I'm happy for the veterans who can take advantage of the change. But I'm a little concerned for Trial Defense Attorneys in the Uniformed Services who are more limited in preventing bad paper. It will be tougher to play the heartstrings of separation authorities, board members, and military judges when asking to take it easy on servicemembers so they won't lose much needed VA benefits. Guess we will just have to think of different arguments then. 

Clarification needed in Vietnamese military court practice

Bui Van Duy, of the People's Poilice Academy, Hanoi, has published Some Problems in Applying the Vietnam Criminal Procedure Code 2015. Several of the issues examined conern the jurisdiction of the military court.

Russia's continued assault on the law of war

Russia continues to flaunt international humanitarian law (the law of war) by prosecuting Ukrainian prisoners of war for privileged acts of warfare. The lengthy list of such Russian trials of Ukrainian fighters is defective in two ways: first, the law of war provides broad immunity for lawful acts of warfare and second, prosecutions of unlawful acts committed by enemy fighters must meet fair trial guarantees. 

While media accounts of the details of claimed offenses tried in Russian courts are scarce, it's worth knowing that the law of war provides broad swaths of immunity from criminal accountability for acts of warfare -- violence -- by members of military units under responsible command as long as such acts are not otherwise prohibited by the law of war (such as torturing or killing prisoners, intentionally targeting civilians, etc.)  The latest Russian sham trial of Ukrainian soldiers resulted in an 18-year prison sentence for an unfortunate member of the Ukrainian military's Azov Battalion. While this unit is not without its own controversy, per media accounts this unit is part of the Ukrainian military under responsible command, and its members entitled to combatant immunity for lawful acts of warfare. 

Finally, while the law of war demands that war crimes (serious violations of the laws and customs of war) be criminally prosecuted, prosecutions of prisoners of war for such crimes must be conducted in judicial proceedings that provide fair trial guarantees and are the same proceedings in which the prosecuting state (here, Russia) would prosecute its own military members. Neither requirement appears to be met as Russia continues to further subvert and degrade the law of war, and the rule of law in general, in its heinous war of aggression against Ukraine and global stability. 

Military Justice at the Unit Level (MJUL) - Version 2.0

In mid-April 2024, the Office of the Judge Advocate General (OJAG) of the Canadian Forces (CF) published a new version of the manual for the Military Justice at the Unit Level (MJUL): Military Justice at the Unit Level Policy 2.0.

This is a significant development in light of the shortcomings of the first volume.

There are shortcomings with the MJUL generally, and some of these shortcomings are inherent in the legislative structure of the MJUL and the principles upon which it is based.  But those problems cannot be corrected by a revised policy manual.

What the policy manual can do - or, more accurately, what can be accomplished through an improved policy manual - is an improvement on the direction offered to the Officers Conducting Summary Hearings (OCSH) under this summary justice regime.

The Canadian Forces Provost Marshal (CFPM) Resists Oversight

On Friday 3 May 2024, Murray Brewster of the CBC published an online report commenting on the recent Annual Report from the Military Police Complaints Commission (MPCC).  The Chair of the MPCC, Tammy Tremblay, a retired Lieutenant-Colonel and Legal Officer from the Office of the JAG, was appointed Chair of the MPCC in January 2023.  This is her first annual report, and a summary and links to the online PDF version of the report may be found here: MPCC Annual Report for 2023.

Murray Brewster's reporting, entitled "Watchdog agency accuses chief of military police of blocking investigations", discussed the criticism in the MPCC report that was tabled before Parliament last week.  In particular, Mr. Brewster reported:

Tremblay described the situation as unacceptable and called it "an erosion of the MPCC's ability to exercise civilian oversight of the military police."

"The CFPM has, at times, refused to disclose information to which the MPCC is legally entitled and that it requires to fulfill its legislative mandate," Tremblay wrote in the annual report.

She called on the federal government to amend the National Defence Act to compel disclosure.

"Independent oversight of law enforcement is crucial to police legitimacy and effectiveness; one cannot exist without the other," Tremblay wrote.

Her scathing assessment comes as the House of Commons defence committee reviews transparency at the Department of National Defence.

[As an aside, it is common for news agencies to describe the MPCC as the 'Military Police Watchdog', a term that, while certainly evocative, tends to overly-dramatize the nature and function of the MPCC.]

Misinformation

Qamar Bashir

Consider the following, from this op-ed by a writer who previously served as press secretary to the President of Pakistan:

Interestingly, the abuse and condemnation of the army on social media platforms are not unique to Pakistan. For example, in countries like the United States, United Kingdom, India, and others, the military has been subjected to criticism and abuse on social media on account of political differences, human rights concerns, and accountability issues. These countries have also implemented various remedial actions.

. . . [T]he Uniform Code of Military Justice (UCMJ) includes provisions that address disrespectful behavior towards the military.

Mr. Bashir seems to be under the impression that the UCMJ applies to civilians. Even as to military personnel, he's wrong. Next time, do read the statute.

Hafetz & Fidell on a certain court-martial

Prof. Jonathan Hafetz's latest Law on Film Apple podcast offers a conversation with the Editor about the recent remake of The Caine Mutiny Court-Martial. You can find it here. The show notes explain:

"The Caine Mutiny (1954) is based on Herman Wouk’s bestselling Pulitzer Prize winning novel of the same name. The film, directed by Edward Dmytryk and produced by Stanley Kramer, portrays the fictitious events on board the U.S.S. Caine, a Navy destroyer-minesweeper in the Pacific during World War II. Executive officer, Lt. Stephen Maryk (Van Johnson), relieves the seemingly unstable Lt. Commander Philip Francis Queeg, Captain of the USS Caine, of his command after Queeg (Humphrey Bogart) endangers the ship and its crew during a cyclone. The ship returns to the U.S. and Maryk is court-martialed for mutiny. He is represented by Navy lawyer, Lt. Barney Greenwald (José Ferrer), who despite disapproving of Maryk’s actions, believes Maryk was misled by the ship’s communications officer, Lt. Tom Keefer (Fred MacMurray), into believing Queeg was mentally unfit for command. Maryk is acquitted after Greenwald effectively places Queeg on trial by his exposing Queeg’s erratic and paranoid behavior. The Caine Mutiny Court-Martial (2023), directed by the late William Friedkin, is based on Wouk’s adaption of his own 1951 novel for the stage. In contrast to the 1954 film, The Caine Mutiny Court-Martial covers only the court-martial. The cast includes Jake Lacy as Maryk, Jason Clarke as defense attorney Greenwald, Monica Raymund as prosecutor Lt. Commander Katherine Challee, the late Lance Reddick as the presiding judge Captain Luther Blakley, and Kiefer Sutherland in a phenomenal performance as Queeg. The films are not only gripping courtroom dramas, but also explore larger themes around military justice, ethics, and morality.  With me to discuss these films is Eugene (Gene) Fidell, a visiting Lecturer in Law at Yale Law School and co-founder of the National Institute of Military Justice."

Two errata: the Editor mistakenly referred to a mutiny aboard HMS Tyger, but should have referred to HMS Wager. The unfortunate accused in the USS Somers mutiny was Midshipman Philip Spencer, not Sinclair.

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.

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.