Should Nevada restore National Guard personnel's right to turn down nonjudicial punishment and demand a court-martial? That's the question raised by a current legislative proposal. The Reno Gazette Journal has the story, in detail, here.
How much do you think it would cost for Nevada to be capable of conducting a couple of courts-martial? (No peeking.)
Lt Col Christopher T. Stein of the U.S. Air Force writes:
This is a defining moment for the military and the JAG Corps.
The secretary has thrown open the door for bold reform, and now it is up to us to walk through it. That means cutting the layers of bureaucratic micromanagement, eliminating unnecessary compliance tasks, returning nonlegal functions to their proper career fields, and rightsizing the force.
It means a refocusing on the law: Let the JAGs be lawyers again, anchored by constitutional principles, not adrift with shifting political winds. Our job is not to perpetuate the mistakes of the past but to ensure the military is ready to meet the challenges of the future. We can either cling to outdated structures or seize this opportunity to build a stronger, more effective legal force that is uncompromising in integrity and fearless in execution.
Comments are invited. Given the current volatile political situation, the usual rule against anonymous comments is hereby waived. Comments will, however, continue to be moderated.
National Changhua University's Prof. Liu Chao-lung writes:
. . . [H]uman rights issues should also be taken into account. Cases handled by the new military trial system should be limited to offenses concerning military duties.
Serving military officers contravening the Criminal Code of the Armed Forces, committing crimes such as offenses against allegiance to the nation, would face military trials. However, service members committing general crimes should be handled by the civilian judiciary. Needless to say, military trials should not be applied to civilians.
The restored military trial system should be evidence-based and uphold procedural justice to avoid wrongful cases, which occurred in the absence of these conditions in the past.
From the DAC-IPAD website:
All DAC-IPAD Operations have been paused until further notice. We remain committed to our mission and will provide updates as soon as possible. Thank you for your patience.
From the Military Justice Review Panel website:
All MJRP operations have been paused until further notice. We remain committed to our mission and will provide updates as soon as possible. Thank you for your patience.
Justice Rajendra Menon, President of the Armed Forces Tribunal, has given an informative interview about developments at the court and his bucket list for the balance of his term. Here's the list:
Will Taiwan be reviving its military courts? This Taipei Times article suggests it may be in the works. Excerpt:
President William Lai’s (賴清德) proposal to reinstate military courts could be a boon to legal efficiency and discipline, a former military judicator said yesterday.
Lawyer Chen Chia-hung (陳佳鴻), formerly an armed forces judicator, said that military tribunals might relieve civilian courts of backlogged cases by swiftly dealing with breaches of military law cases.
That would allow speedy and proper trials for cases that would otherwise undermine the discipline and image of the armed forces, he said.
Or, "out of the frying pan and into the fire"? These may be the apt metaphors when considering the recent Kabaziguruka decision of the Supreme Court of Uganda barring the military trial of civilians. In the case of Dr. Kizza Besigye, whose court-martial for "treachery" was pending, it means that he now stands charged with rthe capital offense of treason, to be tried in civilian court. Andrew M. Mwenda writes in The Independent:
This is where Besigye’s lack of strategy becomes evident. If he wants to expose Museveni as a tyrant, the best proof was for Besigye to be tried in a military court martial. This was the more attractive because the Chief of Defense Staff (CDF) who is the head of the military (and therefore oversees the court martial) and is also the son of the president, has already convicted Besigye and sentenced him to death on Twitter (X). This was the golden opportunity to keep the trial in the court martial only to expose the tyranny he claims to be fighting. If the court martial sentenced him to death, exactly what the CDF had already done, his case would have been complete.
Now, for political reasons, it would be most unlikely that Museveni would hang Besigye. In fact, it is very likely that the court martial would have given Besigye a lenient sentence since he was accused of “treachery” – whatever that means. However, Besigye’s best strategy was not to seek proper justice with due process. Doing so defeats his claim that he is in a political struggle against a tyrant who disrespects the rule of law, disregards due process and runs roughshod over the rights of citizens.
A revolutionary in Besigye’s shoes would have turned the court martial into his political rostrum. He would have declared his political aim as liberating Uganda from tyranny. He would have said there is no other way to liberate Uganda except through armed insurrection and political assassination. Then he would conclude by saying he is willing to die in the struggle to liberate the country from the tyranny and incompetence of family rule.
Wisconsin's state code of military justice includes a provision like Article 138, UCMJ. What if the governor decides to take no action on an Art. 138 complaint? Doesn't Gov. Tony Evers have to look into things, decide whether the complaint is meritorious, and provide some kind of explanation, be it ever so brief, of his ultimate decision? Consider this report from Wisconsin Watch.
The Supreme Court Bar Association (SCBA) stated before the Constitutional Bench (CB) on Thursday that the provisions of the Pakistan Army Act (PAA) 1952 being deliberated upon today had already been upheld by earlier courts which found them to be within the framework of the Constitution and therefore cannot now be termed unconstitutional or illegal.
At the same time, the SCBA in a statement said it believes that civilians should not be subjected to trial before military courts.
The SCBA's website is not currently accessible. (Perhaps it has been hacked or disabled.) The association's position puts it at odds with the Lahore High Court Bar Association.
The court will resume its leisurely proceedings on Monday at 11:30 a.m.
JAGs alone can't defend the rule of law, Prof. Dan Maurer argues in this Lawfare post. Excerpt:
To be sure, nothing can undo the damage of summarily relieving the three TJAGs left on the Department of Defense and the service JAG Corps. Like earlier leadership “massacres” (Thursday or Saturday), this too will be fodder for public debate and academic study, and will have negative downstream effects for those remaining—who are still expected to uphold the principles of the “dual profession” of arms and law. To the extent that [Secretary of Defense Pete] Hegseth’s relief of the TJAGs makes that harder, and existing occupational duties limit the provision of key advice to commanders unnerved by legally questionable orders, there is cause for alarm.
Yesterday and today, the Supreme Court of Pakistan's Constitutional Bench continued the hearing on intra-court appeals in the Military Courts Case. One of the petitioners' counsel concluded his argument yesterday; now others are being heard.
Perhaps some reader can comment on how long a day's hearing typically lasts in this court. The news reports include a few of the colloquies, but one can't tell if the justices are on the bench for one hour or, say, four. Predictions as to when the arguments might finally be completed are also welcome.
Following the ruling, the NRM caucus voted recently in favor of new amendments to the UPDF Act, including a provision allowing the trial of civilians who illegally acquire specified firearms in the Court Martial. Government chief whip Denis Obua confirmed this resolution.“We resolved that misconduct by serving military personnel will first be tried by the General Court Martial, with the right to appeal through civilian courts. Similarly, civilians who illegally acquire specified firearms will also be tried first by the Court Martial, with the right to appeal through civilian courts,” said government chief whip Denis Obua in a brief statement.NRM CAUCUS AND THE UPDF AMENDMENT BILLThe caucus decision followed a high-level meeting at State House Entebbe, where members resolved to withdraw the UPDF Amendment Bill 2024 from Parliament. The bill had originally sought to reform the Uganda Peoples’ Defence Forces Act by aligning it with evolving government policies, changes in command structures, and new administrative provisions.Additionally, it aimed to improve the welfare of defence Forces personnel by addressing gaps in healthcare services, transferring their pension from the ministry of Public Service to the ministry of defence and Veteran Affairs, and strengthening disability compensation mechanisms for military officers and enlisted personnel.However, the Supreme court’s decision rendered some aspects of the bill legally untenable, necessitating a review before it could proceed in Parliament. The Supreme court’s ruling stemmed from a constitutional appeal filed by former Nakawa Municipality MP Michael Kabaziguruka, who challenged the military courts’ authority over civilians.
 |
| SECDEF |
Lesley Wexler and Anthony Ghiotto have writted a Justia post titled Let's Kill All the Lawyers: The Friday Night Massacre of Judge Advocates General. Excerpt:
This potential chilling effect is likely to extend well below the TJAG level. Judge advocates advise at all levels of command. And TJAGs exercise statutory control and responsibility over all judge advocates within their departments. Such responsibility includes the authority to deploy and reassign subordinate judge advocates. Suppose one of the new TJAGs is a Trump administration loyalist who refuses to establish any roadblocks to the administration’s use of the military. A junior judge advocate may identify a potentially unlawful order that flows down to a junior commander. The junior judge advocate may be up for promotion, may not be eligible for retirement, may be assigned to a location where their spouse may be able to work or where her child may be able to receive special services. This junior judge advocate may fear that if she gives independent legal advice that runs afoul of their TJAG, she could be punished with a new assignment, a deployment, or other adverse career consequences. Of course, the fear of retaliation will not deter all junior judge advocates. Think of Lieutenant Alaric Piette, a Navy JAG Corps defense attorney, who repeatedly objected to irregular military commission proceedings on behalf of his death penalty eligible client. Piette knew such actions were deeply unpopular not only with the presiding Judge Vance Spath, but with many in the military as well. Many suspect his superiors failed to promote him as a result—a stiff penalty in an up or out system. Such courage should not be taken as inevitable, particularly in a setting likely to be much more punitive than even the one Piette faced.
On rare occasions, the Board of Directors of the National Institute of Military Justice has issued public statements on current events. The board today released the following statement:
NIMJ Statement of Concern about Secretary Hegseth’s Political Interference with Military Justice
The board members of the National Institute of Military Justice (NIMJ) are deeply distressed about Defense Secretary Pete Hegseth’s removal of the top uniformed lawyers in the Army, Navy, and Air Force prior to the expiration of their statutory four-year terms.
While military officers have been relieved before, the Secretary’s firing of The Judge Advocates General (TJAGs) is wholly unprecedented. When pressed by the media for a reason for such an extraordinary move, Secretary Hegseth said he fired these top military lawyers because they might be “roadblocks to anything that happens.”
We recognize that TJAGs are not entitled to autonomy nor are they immune from legitimate scrutiny from civilian leadership, and that at times there may be valid reasons for firing such an officer on an individualized basis. But the reasons for doing so matter, and these reasons must be expressed publicly. Here, it appears that there was no legitimate rationale for these firings—rather, they were motivated purely by partisan concerns.
Secretary Hegseth’s justification raises more concerns than it answers. Among other issues, it rekindles the specter of unlawful command influence, which has been called “the mortal enemy of military justice.”
The American military justice system has continuously battled against efforts of those tempted to put thumbs on the scales. A system that is fair—and is seen to be fair—is an essential reason why Americans allow their sons and daughters to join the military. A fair military justice system is a national security priority.
A fair military justice system requires structural independence. Those who play roles in the process must be able to do so without fear of recrimination. This includes the top service lawyers, who play important roles in training, leading, and supervising the military lawyers who are integral to the military justice system.
Since 1991, NIMJ has advocated for the fair administration of justice in the armed forces, as a non-partisan group of experts who are independent from the government. We do not always agree with the decisions of the TJAGs. In this case, we are concerned that their firing without sound justification sends the unwelcome message to those in the military justice system that they, too, might be arbitrarily fired simply for doing their jobs.
Board of Directors
National Institute of Military Justice
