“From the beginning,* there was clear Congressional intent, solid support from Army leaders and commanders, and a collaborative effort among Army staff and Judge Advocates to define goals, allocate resources, and establish a clear mission and vision,” [Brig. Gen. Christopher A.] Kennebeck said.
From this Army JAG press release (emphasis added)
* Except that the Army leadership, like that of the other services, opposed the Gillibrand bill that created the special trial counsels (footnote added).
The Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault ion the Armed Forces has issued its January 2025 Report on Enforcement of Crime Victims' Rights. Executive summary:
The Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) studied the enforcement of crime victims’ rights in the military, as codified in Article 6b of the Uniform Code of Military Justice (UCMJ). The DAC-IPAD’s study focused on four issues: (1) a crime victim’s standing to assert their Article 6b rights at the trial court, (2) jurisdiction of the Court of Appeals for the Armed Forces (CAAF) over a crime victim’s petition for a writ of mandamus, (3) the time frame for the Courts of Criminal Appeals (CCAs) of the Military Departments and the CAAF to rule on a crime victim’s petition for a writ of mandamus, and (4) the appellate standard of review applicable to a crime victim’s petition for a writ of mandamus.
As part of its review, the DAC-IPAD compared the enforcement mechanisms in Article 6b with those in the federal Crime Victims’ Rights Act (CVRA), the statute upon which Article 6b is based. In doing so, the DAC-IPAD identified several differences between the enforcement mechanisms of the two statutes and considered whether there were military-specific reasons why the rights of crime victims in military courts-martial proceedings should be less robust than the rights of crime victims in federal courts. To help evaluate these differences, the DAC-IPAD heard the perspectives of military government and defense appellate counsel, military victims’ counsel, and civilian victims’ rights experts.
The DAC-IPAD recommendations include a legislative proposal incorporating several amendments to Article 6b. T hese amendments would provide crime victims new standing to assert their rights initially at the trial court and would provide a new standard for appellate review of a victim’s petition for a writ of mandamus that is similar to the standard directed by the CVRA in federal court review of victims’ petitions. In addition, the DAC-IPAD recommends that Congress amend Article 6b to provide CAAF discretionary jurisdiction to review a victim’s petition for a writ of mandamus without the need for the victim to rely on certification from the Judge Advocate General of a Military Service to establish jurisdiction.
Adopting these reforms will bring much-needed clarity and meaningful effect to victims’ rights established by Congress ten years ago and will more closely align the rights of crime victims in military courts-martial with the rights of victims in federal court.
The Independent has this fine report on Uganda's misuse of its court-martial and the paralysis in its Supreme Court, which seems unable to bite the bullet about the impermissibility of trying civilians (including retirees such as Dr. Kizza Besigye) in military court. The article includes a useful summary of developments in other countries.
The Orders Project was founded in 2020 to help connect military personnel with questions about the lawfulness of orders with civilian attorneys who can advise them. On Friday, The Orders Project became part of the National Institute of Military Justice, a Washington-based NGO established in 1991. Information about The Orders Project can now be found here. Military personnel seeking a referral and attorneys, law firms, and law school clinics willing to receive referrals should contact The Orders Project.
A Spanish military court has refused to punish an attorney who discussed procedural aspects of a pending military prosecution at a press conference. According to this El Mundo report, it's a matter of free speech and opinion and the right to information.
And what will happen if they are pardoned? Military.com has this detailed account by Konstantin Toropin, Thomas Novelly, and Drew F. Lawrence. They write: "The military has already been slow to deal with troops charged with and convicted of crimes during the attack: The Navy and Marine Corps still have Jan. 6 participants serving in their ranks. But [President-Elect Donald J.] Trump's promise to issue pardons has put the services in a further bind."
That question is likely to reach the Supreme Court of the Philippines. Details here. Excerpt:
Malacañang on Thursday maintained that the court martial has “continuing” jurisdiction over Senator [Antonio] Trillanes IV, as the opposition lawmaker battles President Rodrigo Duterte’s order to the military to arrest him.
Duterte earlier this week issued Proclamation 572 voiding the amnesty given to Trillanes for taking part in uprisings in 2003 and 2007 against the administration of then president Gloria Macapagal-Arroyo.
Trillanes questioned the proclamation, saying the military no longer has jurisdiction over him and that his amnesty application went through the proper process.
Presidential Spokesperson Harry Roque said the voiding of Trillanes’ amnesty “means his status now will be his status before the granting of amnesty.”
“In view of this, the Armed Forces of the Philippines has stated that the court martial proceedings against Senator Trillanes will continue. As some of you may recall, he was charged both for offenses tried before civilian courts and service-related offenses that are punished under the Articles of War. The Court Martial has continuing jurisdiction over violations of the Articles of War. Violations of the Articles of War cannot be tried by civilian courts,” Roque said in a statement.
“As to the fact that Senator Trillanes resigned from military service, the act of resignation does not undo the violations of the Articles of War that he committed while he was in military service.”
The Constitutional Bench of the Supreme Court of Pakistan asked some penetrating questions in the Military Courts Case. For example:
Justice Musarrat Hilali also expressed doubts, stating, “The officer conducting the trial does not deliver the verdict. Instead, the case is forwarded to a senior officer who decides without hearing the trial. How can someone uninvolved in the hearing deliver a fair decision?”
Justice Jamal Mandokhail remarked, “I have spent 34 years in this field and still do not consider myself fully accomplished. Does the military officer conducting trials have the necessary experience and expertise to deliver a death sentence?”
Defence counsel Khawaja Haris responded, stating, “The procedure for military trials will be fully explained in the second part of my arguments.”
Justice Mandokhail further observed, “The Army Act applies solely to the military. We must consider whether military officers are afforded basic rights and justice.”
Justice Musarrat Hilali raised a critical question, asking, “Please also clarify who writes the decisions in military courts. To my knowledge, the case is heard by one officer, but the punishment or reward is decided by the commanding officer. How can someone who has not heard the case decide the outcome?”
The Ministry of Defence's lawyer explained, “The decisions are written with assistance from the Judge Advocate General (JAG) branch.
There is so much to report today that this post will simply offer links. Three items of particular interest to readers of Global Military Justice Reform:
In the case, for an
interconnected offence, a member of the Indo-Tibetan Border Police (ITBP) was
merely severely reprimanded while members of the Central Industrial Security Force
(CISF) were removed from service.
Citing caselaw on the subject,
the High Court observed:
“From a reading of the
aforesaid decision, what emerges is that when several individuals are involved
in the same incident, parity regarding punishment is to be maintained, which
should not be disproportionate while comparing the role of each individual, who
are parties to the same transaction or incident.”
The judgment and a detailed exposition on the case has been reported by Verdictum and can be accessed here.
The U.S. Court of Appeals for the District of Columbia Circuit yesterday granted an administrative stay of proceedings in the 9/11 military commission case to afford it time for briefing and argument on the government;'s petition for mandamus or prohibition. The court's order in In re United States, No. 25-1009, states in part:
FURTHER ORDERED that proceedings before the Military Commission concerning pretrial agreements entered into by Khalid Shaikh Mohammad, Walid bin ‘Attash, and Mustafa al Hawsawi be administratively stayed pending further order of the court. The purpose of this administrative stay is to allow the court time to receive full briefing on the mandamus petition, to hear oral argument on an expedited basis, and to render a decision on the petition and stay motion. The administrative stay should not be construed in any way as a ruling on the merits of that petition or motion. See D.C. Circuit Handbook of Practice and Internal Procedures 33 (2024). It is
FURTHER ORDERED that any responses to the mandamus petition, not to exceed 7,800 words, be filed by 5:00 p.m. on January 17, 2025. See Fed. R. App. P. 21(b); D.C. Cir. Rule 21(a). Respondents are encouraged to coordinate and, if possible, to file a joint response. Petitioner may file a reply, not to exceed 3,900 words, by 5:00 p.m. on January 22, 2025. The parties should also file, by 5:00 p.m. on January 17, 2025, a joint appendix containing any transcripts and documents cited by the parties and not already submitted as attachments to the petition. The parties are directed to file eight paper copies of the petition, any responses, any reply, and the joint appendix. The copies must bear the appropriately colored covers. See Fed. R. App. P. 32. The parties will be informed later of the date and time of oral argument.
More video of the proceedings of Uganda's court-martial can be found here. The Minister of Justice and Constitutional Affairs is critical of the recent contempt sentence summarily meted out to a defense attorney.
Brigadier General of Military Justice Mariana de la Cruz Sánchez has become head of the Military Public Defender's Office of the Mexican Ministry of National Defense. Congratulations! Details here.
Contributions to the 2d International Military Justice Forum (Stellenbosch 2023) have been published in the Revue Internationale de Droit Pénal. You can them here.
The United States has filed a petition for mandamus and prohibition with the U.S. Court of Appeals for the District of Columbia Circuit in the 9/11 pretrial agreements case, In re United States, No. 25-1009, following the decision of the U.S. Court of Military Commission Review. Carol Rosenberg has the story here. The case is being super-fast-tracked since a hearing on the accuseds' pleas is scheduled for Friday.
In the end, Spandau Prison in Berlin held a single prisoner, Rudolf Hess. As of today, there are 15 prisoners at Guantánamo. As Carol Rosenberg writes, all but six are either facing military commission trials or have been convicted. That means there are only nine people simply being detailed. For a remarkable obituary, in case you missed it, consider this account (also by Ms. Rosenberg) of the life of Tina S. Kaidanow, the U.S. negotiator who died late last year.
The Uganda Law Council has granted Martha Karua, a leading lawyer in Kenya, a temporary practicing certificate that will allow her to represent two civilians, Dr Kizza Besigye and Obeid Lutale, in Uganda's general court-martial. Details here. The trial begins today.
Still no word from the country's Supreme Court, which has before it a case that will decide the validity of the statute that permits civilians to be tried by court-martial.
The Supreme Court of Pakistan's Constitutional Bench finally commenced its hearing on the Military Courts Case. It seems not to be going well for the government. And leaders of the Lahore High Court bar think the entire Supreme Court should be hearing it. We'll keep following this critical litigation. The hearing resumes on Wednesday.
That question will be decided on Monday by the Uganda Law Society. Details here. The attorney's application for a practice certificate had previously been denied for technical reasons.
January 14 will mark, amazingly, the 11th anniversary of Global Military Justice Reform. The Editor will spare readers the data this time around. Suffice it to say that the blog is read around the world. The posts keep going up, with smart offerings from our many contributors. Heartfelt thanks to them, co-editor Rory Fowler, and everyone who has commented (well, not those who pester the newsroom with spam and anonymous comments).
Thanks to each and every one of you. Keep the posts and comments coming. Please recommend Global Military Justice Reform to friends, colleagues, in-laws -- anyone who may have an interest.
Things to watch for this year:
The Supreme Court of Pakistan's Constitutional Bench will hear the intra-court appeals in the Military Courts Case on January 7. 2025.
Noor Ul Huda writes helpfully here for Jurist about the frustrating state of play in Pakistan's Military Courts Case. Excerpt:
Concerns have also been raised regarding the fairness of the military trials. A lawyer named Shafqat Awan, who represented PTI protestors in the Pakistan Air Force Base Mianwali attack, stated that a judge had dismissed a related case due to false evidence. Despite being released by the trial court, two of these individuals were subsequently sentenced in military courts. This raises questions about how procedural fairness can be ensured. Moreover, it appears that different individuals are subjected to different judicial processes; some are tried under anti-terrorism laws while others face military courts under the Army Act of 1952 and the Official Secrets Act. It is unclear how serious offences like attacking military installations fall under the Official Secrets Act, which is primarily intended to address espionage and the unauthorized disclosure of classified information, as previously came under discussion during the Cypher Case of former Prime Minister Imran Khan.
The U.S. Navy-Marine Corps Court of Criminals ended 2024 with a bang. The unanimous decision in United States v. Negron, No. 202300164, a high-profile unlawful command influence case, makes lively reading.
