American judge advocates can expect to be assigned to duty as temporary immigration judges. Honk if you think they will need a lot of training to become competent in the complex specialized field of immigration law. Honk twice if you have doubts that the armed forces have 600 spare judge advocates. New York Times story here.
Most Americans, including even many military lawyers, have never heard of the Houston Riot of 1917 and the ensuing mass Army courts-martial, leading to 110 convictions, 19 executions, and 63 life sentences. The convictions were set aside in 2023. This summer, a new book, Black Soldiers, White Laws: The Trqgedy of the 24th Infantry Division in 1917 Houston, by John A. Haymond, was published by Grove Atlantic. It's an excellent addition to the military justice bookshelf. Importantly, it not only tells the story of the mutiny (was it really a mutiny?) and the trials, but sets the stage by describing the background of race relations in the Army and in the country as a whole. The book does a good job of describing the legal arrangements in force at the time, and the author plainly benefited from the experience and professional knowledge of a range of subject matter experts.
For contemporary practitioners, numerous aspects of the proceedings are shocking. For example, there was only one defense counsel at the main trial, and he was not an attorney. The NAACP had a volunteer lawyer ready to assist, but he arrived only a few days before the trial, and the accuseds declined his assistance, reportedly because they were told that adding him at that late date would annoy the court-martial because it would have implied an insulting lack of confidence in the detailed [non-lawyer, white] defense counsel.
The case led to some improvements in American military justice, but it remains a terrible chapter in the military justice system's history.
Amendments to the Colorado Code of Military Justice, approved in June by Governor Jared S. Polis, will take effect on September 1. The bill summary can be fond here.
The Delhi High Court has directed all courts within its jurisdiction to prioritize cases invoilving military and paramilitary personnel. Details here. Excerpt:
The circular, issued by Registrar General Arun Bhardwaj on August 7, on the directions of the Chief Justice, cites provisions under the Army Act, 1950, Navy Act, 1957, and Air Force Act, 1950, which provide for special treatment in litigation involving armed forces personnel. The Indian Soldiers (Litigation) Act, 1925, amended in 2018, also provides additional protection for serving soldiers.
The Chief Justice instructed all district and sessions courts in Delhi to ensure early hearings and expeditious disposal of civil, revenue, and criminal cases related to members of the armed forces. Further, the directive extended to cases involving paramilitary personnel, ensuring their matters are heard on priority.
* * *
Justice Surya Kant, who conceived and spearheaded the initiative, told NDTV that NALSA is coordinating with the defence department to ensure Army soldiers are given legal help and can focus on their jobs, which is critical for national security.
"Soldiers brave everything from harsh terrain to enemy fire to protect the country, and the judiciary wants to ensure it can do everything possible for them and their families. We have launched the 'Veer Parivar Sahayata Yojana 2025'. Soldiers of the Army and paramilitary forces are posted in remote areas and on the borders. Often, they can't even talk to their families on the phone and can't get leave. In such a situation, if there is a case against them or their family, they should not be deprived of anything. So, at NALSA, we decided to come up with a scheme in which they get legal aid, legal assistance, and legal advice," he said.
Ke Ben of the China University of Political Science and Law's School of Law has written this 2025 article on the country's military procuratorate for the Journal of Politics and Law. Abstract:
The China Military Procuratorate has been reshaped by two major reforms. The 2016 overhaul of the military judicial system created a vertically led, relatively independent procuratorial hierarchy. In 2018, however, the Military Discipline Inspection Commission absorbed all duty crime investigative powers, tilting the balance of legal oversight. Based on the military judicial reform experiences of various countries around the world, this article recommends three corrective steps: (1) formally affirm the procuratorate’s status as a branch of state judicial power; (2) restore dual vertical leadership under the Supreme People’s Procuratorate and the Central Military Commission; and (3) give the procuratorate statutory authority to supervise the Discipline Inspection Commission. These measures offer practical guidance for strengthening PLA legal supervision and supply a comparative model for global military justice reform and anti corruption efforts.
The author concludes:
From the reform experiences of military justice institutions across countries, we can observe that military power has an inherent tendency toward arbitrariness and expansion – a tendency closely tied to the operational and managerial demands faced by military organizations. Many armed forces have sought to establish judicial bodies subordinated to the military in order to control justice within the ranks. Yet in a democratic state there should be no such “state within a state.” Military judicial organs ought to serve as the last defender of justice, not as tools for disciplining service members on behalf of the command.
Comparative practice shows that carefully designing power boundaries and procedures can minimize these risks: first, insulate the chain of command from investigative and prosecutorial discretion in criminal cases, vesting decisions on whether and how to prosecute in career prosecutors subject to civilian rules; second, place military cases under the unified rules of ordinary justice and meaningful external review, at a minimum ensuring genuine final-review channels – parliamentary oversight, constitutional or supreme court scrutiny – so that military justice always operates within the visibility and accountability of the national legal order; third, retain narrowly tailored military exceptions in extraordinary times but specify clear triggering conditions, time limits, and reversion paths to prevent the normalization of exceptions.
Looking back at China’s Military Procuratorate, it has undergone a shift from leadership by military political organs to dual leadership by the Supreme People’s Procuratorate and the Central Military Commission’s Political and Legal Affairs Commission. Confronted with a military supervisory commission that holds investigative powers over duty-related crimes, and drawing on comparative reforms, this article proposes three pathways: clarifying the legal character of powers, re-shaping the organizational model, and exercising oversight over the military supervisory commission. The Military Procuratorate is a highly specialized institution that must, on the one hand, remain embedded in the state judicial architecture and, on the other, accommodate the demands of military operations. Tracing reforms since 2016, this article identifies issues such as the weakening of the legal-supervision function and recommends strengthening military rule of law by entrenching the Procuratorate’s status in legal supervision and improving mechanisms for overseeing military supervisory bodies. These discussions not only illuminate China’s military-law reforms but also offer a reference point for other countries grappling with judicial independence and checks and balances within the armed forces.
Dr Andrew Johnson's 2025 paper can be obtained here. Abstract:
The nineteenth-century British Royal Navy was the unquestioned master of the world’s oceans, having won such standing after over a century of near-uninterrupted warfare. However, while the strategies, tactics and technology of the navy evolved dramatically during this period, the laws that governed its many thousands of sailors and officers remained virtually unchanged from the earliest days of the sailing navy. Despite minor amendments throughout the eighteenth century and a more thorough revision in 1749, both capital and corporal punishments were frequently employed as punishment for minor offences in a system that made England’s ‘Bloody Code’ look positively humane. The 1860 Naval Discipline Act provided the first substantive overhaul of the original Articles of War, but the impact of the Act and its amendments on courts martial have received little scholarly attention. Using parliamentary records, orders and correspondence from the Admiralty, and statistical data collected from thousands of court martial records, this dissertation argues that the legislative changes of the 1860s had an immediate effect on courts martial in the Royal Navy as the disciplinary authority of individual officers became increasingly limited in favour of a ‘uniformity of punishment’ enforced by the Admiralty. This legislative reform also cemented changing attitudes towards harsh punishments begun a half-century earlier, as both the noose and the lash were used far less frequently once the disciplinary concerns brought about by active war were no longer relevant. Viewing how charges and sentences changed on the global scale, it becomes clear that the “arbitrary and cruel punishments” of previous centuries had at last given way to a more formalised expression of discipline, enforced by courts martial in a manner not unlike the civilian courts of the day.
A military court has convicted a New Zealand soldier of attempted espionage for a foreign power – the first spying conviction in the country’s history.
The soldier was caught offering to pass military base maps and photographs to an undercover officer posing as an agent for a foreign nation, the court-martial heard.
The man’s name, the country he attempted to spy for and the name of the undercover officer who snared him were all suppressed by the court.
On 20 December 2024, the South African Constitutional Court handed down its judgment in O’Brien N.O. v Minister of Defence and Military Veterans and Others 2024 ZACC 30, affirming that military courts and judges established in the country must operate independently without interference from political or other quarters. Drawing on international law and standards at length, the Court ruled that the fundamental principle of judicial independence applies to military courts in the same manner as “ordinary” courts. More specifically, the judgment addressed: (1) the constitutionality of legislative provisions that empowered the executive to appoint and remove military judges; and (2) the judicial independence of military courts.
The Court rejected the government’s arguments that military courts were not courts and that military judges were not judges within the meaning of sections 166(e) and section 174(7) of the Constitution, respectively. The Court considered, first, that the military courts in South Africa were given wide criminal jurisdiction to try members of the SANDF for serious offences committed under the Code, the common law, and statute and the power to impose substantial sentences of imprisonment. The Court observed:
When one examines how the military courts operate, their rules and powers, and the ultimate effect of their orders, the inescapable conclusion is that military judges are indeed judicial officers (para 59).
The Court observed that military courts fall within the definition of “courts” in section 166(e) of the Constitution, as “any other court established or recognised in terms of an Act of Parliament”. Hence, the Court concluded that military judges were “judicial officers” appointed in terms of an Act of Parliament, in this case, the Military Discipline Supplementary Measures Act. Therefore, similarly to other courts, the principle of judicial independence applied.
Furthermore, the Court found that the regime of temporary short-term appointments of military judges impeded judicial independence finding that:
Military judges are the only full-time judicial officers who are appointed for short, renewable terms, notwithstanding their significant geographical and penal jurisdiction. This is constitutionally unpalatable.
Former Pakistani batter Basit Ali has called for a court-martial of the national cricket team following Pakistan’s shocking 202-run defeat to West Indies in the third One Day International, which led to a 1-2 series loss.
From this article in The Current
The system of
reserving more vacancies for men as compared to women had led to women with
much higher merit and scores being left out while less meritorious males were allowed
to join JAG.
The judgment has
been explained by LawBeat in the following terms:
The Supreme Court said restrictions on fundamental rights under Articles 14, 15 and 16 can only be imposed as provided in Section 12 of the Army Act, 1950. This section allows the government to specify branches in which women can serve but does not permit limiting their numbers once they are allowed in a branch. The court said the Army cannot reserve positions for men in the name of ‘extent of induction’ once women are permitted to join a branch. The bench rejected arguments based on physiological differences or potential combat deployment, noting that such reasoning had already been rejected in the Babita Puniya case. It said the JAG branch is part of the Combat Support Arms and Services, not Combat Arms, and women already serve in identical operational conditions as men. The court called the 50:50 male-female intake policy ‘facially neutral but discriminatory in practice’ because it prevents meritorious women from selection. It said indirect discrimination occurs when a neutral rule has a disproportionately negative effect on a group, here women candidates.
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[He] was relieved of his duties as REDCEN San Diego’s commanding officer by [the C]ommander, Naval Information Force Reserve, or CNIFR, “due to a loss of confidence in his ability to command,” the Navy said in a brief release.
The Navy term for this action is a Detachment for Cause (DFC). The Air Force and Army call the personnel action a Relief for Cause. Navy folks will understand why the term "Relief" is not used--too confusing when we routinely use Relief when the Officer of the Deck or commanding officer is relieved. Anyway, back to the story. For those of us who represent persons DFC'd or RFC'd, the following article rings true in many respects.
On the same day as the Sullivan article, we read, Michael Furay, A Loss of Confidence. RealClear Defense, 12 August 2025.
It is difficult to rise to command in the United States Navy. The military remains, by and large, a meritocracy aimed at ensuring that only the best attain “command at sea” of the nation’s submarines, aircraft squadrons, and ships. Of all officers commissioned as ensigns in 1983, only 3% attained that goal. The road they travelled was intensely competitive, difficult, and littered with the thousands who failed to meet the Navy’s given standard of “sustained superior performance at sea,” further defined as “performance exemplified by a consistent record of exceeding expectations while demonstrating leadership and expertise at sea.”
As for the promotion system used to winnow the field, it features annual, ranked assessment of fitness in the performance of duty, along with rigorous multiple administrative and statutory boards. For those who do successfully attain and succeed in their first, or O5 command, only a relative few will subsequently be selected for a second, or O6 command, more commonly known as “major command.” “Major,” which is an even larger combatant command, is the last gate through which a few of these officers will pass prior to selection to flag rank. The entire aim of this system is to ensure that not only do the most qualified get to command the Navy’s combat units, but that the best of the best are prepared to become admirals.
Yet, despite whatever expectation might arise based upon this culling, many will fail dramatically once in command. Every year a number of these elect will be relieved of their duties via “Detachment for Cause” (DFC). A DFC indicates that an officer did something so fundamentally egregious that they were shown the door. In view of the gauntlet an officer must run to even get to command in the first place, as well as the fact that these dismissals inevitably become national news, one might sensibly ask why exactly, on average, 16 of our “best and brightest” fail each year. . . .
The number of officers in command at sea at any one time varies; however, in 2023 there were a total of 70 submarines, 103 aircraft squadrons, and 281 battle force ships, totaling some 454 commands. In that same year, 16 commanding officers were DFC’d. While as a percentage, the number of officers fired in any given year may be statistically low, it is a topic of enormous anxiety to Navy leadership. In 2004, following an observed increase in the number of commanding officers being detached, the Vice Chief of Naval Operations directed the Naval Inspector General to conduct an in-depth review of commanding officer DFC cases between the years 1999 and June 2004. The intent of the “Commanding Officer Detach for Cause Study,” was to determine whether there were unanticipated or unidentified systemic factors that contributed to the removals. [The study, covering a 4.5 year period, found that 78 officers were detached for cause during the examined period, averaging 16 per year. Since then, while the number of commanding officers fired, year-to-year, has varied, 16 has remained a generally consistent benchmark. In other words, between 3 and 4% of commanding officers are fired annually.]Captain Furay deployed on every tour and to operational areas in the Middle East, Western and Eastern Asia, Europe, and South America while serving on numerous cruiser and destroyer-type ships. He commanded an Aegis destroyer, and an Aegis cruiser as Air Warfare Commander. He also completed multiple Pentagon tours and attained a master’s from the Kennedy School at Harvard.
Today's New York Times has this review by Manohla Dargis of "An Officer and a Spy," a movie by Roman Polanski that is only now being released in the United States. Check out this preview. Excerpt:
It’s difficult to overstate the magnitude of the Dreyfus Affair, which bitterly divided France between progressives and reactionaries, and seized the world’s attention. The journalist Ida B. Wells observed that white Americans expressed outrage over Dreyfus but not over murdered Black Americans. Theodor Herzl, a founder of Zionism, claimed that the trial made him a Zionist. The case led to anti-Jewish riots in France and in French-controlled Algeria, and fueled the antisemitism of Vichy France during World War II. And while it inspired Zola’s famous defense, it may have also cost him his life. He died in 1902 under mysterious circumstances.
This looks like a must-see.
On August 5, 2025, the ABA's Standing Committee on Law and National Security released The Role of The Judge Advocates General and of Judge Advocates: A Primer. Here is the introduction:
The pending confirmations of the incoming service Judge Advocates General, as well as recent events, highlight the need for discussion and clarity concerning the role of judge advocates in the United States military and the importance of objective, apolitical legal advice to commanders and defense officials. Section one of this paper addresses the role of the Judge Advocates General within the administrative chain of command. Section two addresses the principal roles of judge advocates. Section three addresses the role of judge advocates in providing legal advice to commanders within the operational chain of command. Section four concludes the paper by identifying multiple reasons why adherence to law in and out of combat leads to better national security results and sustained public support for the military and its missions.
The primer has not been approved by the ABA's House of Delegates or Board of Governors and "should not be construed as representing the position of the Association or any of its entities" (presumably including the Standing Committee). The authors are Judge James E. Baker, Major General John D. Altenburg, Jr., USA (Ret.), Colonel David E. Graham, USA (Ret.), and Rear Admiral James E. McPherson, JAGC, USN (Ret.).
The Washington Post reports today that Fort Bliss, a U.S. Army base in El Paso, Texas, is preparing to hold undocumented migrants.
The Trump administration’s plan to install large-scale detention facilities on U.S. military bases is taking shape, with Fort Bliss preparing to detain at least 1,000 undocumented immigrants starting this month on the Mexican border, U.S. Immigration and Customs Enforcement officials said Wednesday.
The sprawling Army post in El Paso is expected to hold 5,000 people in tentlike facilities at full capacity, which would turn it into the largest detention facility in the United States for civil detainees. Last month, Defense Secretary Pete Hegseth also approved the temporary use of Camp Atterbury in Indiana and Joint Base McGuire-Dix-Lakehurst in New Jersey to house several thousand migrants before they are deported.
Can those detained on U.S. military bases challenge their detention? The question involves the constitutional right to habeas corpus. The Constitution states: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases in Rebellion or Invasion when the public Safety may require it." U.S. Const., art. I, sec. 9.
Because the habeas right and its suspension clause appear in Article I, which covers the powers of Congress, it has been generally assumed that only Congress can suspend habeas. This is why it was so controversial when President Abraham Lincoln acted on his own authority to suspend habeas during the Civil War. See Curtis Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice at 176 (2024). In 1863, Congress ratified Lincoln's suspension retroactively. See 12 Stat. 755 (Mar. 3, 1863).
But Presidents can suspend habeas when Congress delegates its suspension authority to the President. Congress has done this seven times since the Civil War. See Amy Coney Barrett, Suspension and Delegation, 99 Cornell L. Rev. 251, 252 (2014). Each was a specific grant, not an open-ended delegation.
Using delegated suspension authority, Presidents have suspended habeas three times: during Reconstruction in South Carolina in 1871 when the Ku Klux Klan was overwhelming civil authority; in the Philippines in 1905 to suppress an insurrection when the U.S. occupied the territory; and in Hawaii in 1941 after Pearl Harbor. See Bradley at 177.
Notably, Congress has never suspended habeas or delegated habeas-suspension authority in the post-9/11 era. The U.S. Supreme Court held that the President could not suspend the writ on his own, Hamdi v. Rumsfeld, 425 U.S. 507 (2004), and that the detention regime in Guantanamo Bay unlawfully deprived detainees of their habeas rights since there had been no suspension or delegation. Boumediene v. Bush, 553 U.S. 732 (2008). Hamdi was 8-1; Boumediene a closer 5-4, with some justices less inclined to extend habeas rights beyond U.S. territory.
That backdrop helps frame the habeas right by those who may end up in military detention in the United States or Guantanamo Bay. Four key takeaways:
First, migrants detained on military bases in the United States have the habeas right to seek judicial review of their detention in federal courts.
Second, neither the President nor executive officials can suspend the habeas right on their own. No claim of emergency or public safety will suffice for this; the President needs Congress's permission.
Third, while the Supreme Court could eventually overturn its Boumediene precedent to limit habeas abroad (indeed, this is a stated objective of many in the conservative legal movement), Hamdi rests on firm ground.
Finally, Congress has the power to act to either suspend habeas or delegate suspension authority to the President. But neither seems likely since Congress has not exercised those muscles in decades, and there is no demand signal for it from the White House.
Will the High Court of Uganda grant bail to Dr. Kizza Besigye and his colleague Hajj Obeid Lutale Kamulegeya They are being held on charges of treason after the Supreme Court invalidated military trials of civilians (and after parliament amended the statute)? We'll know tomorrow, by email, according to this story.
Justice Eileen C. Moore writes here about UCMJ jurisdictiion over retirees. Short version, for retired regulars, among others, you may still be subject to court-martial, even for post-retirement offenses.
1. Annual Report of the
Military Police Complaints Commission
In a
press release,[2] the
MPCC announces that it has issued its annual report for 2023-2024.[3]
1.1. Key
Findings and Challenges
In 2024,
the MPCC received an increasing number of complaints about military police
conduct,[4]
resulting in a significant workload for the commission. Despite this, the MPCC states
it improved its efficiency and timeliness in processing complaints. However,
the commission faced challenges due to resistance from the OPM of the CAF,
which hindered the MPCC's ability to exercise its oversight mandate.
1.2.
Operational Highlights & Statistics[5]
In 2024, the MPCC:
The MPCC's annual report includes statistics on complaints received,
processed, and investigated. These statistics provide insight into the types of
complaints received and the outcomes of investigations.
1.3.
Resistance to Oversight[6]
According
to MPCC, the OPM's resistance to its oversight took the form of refusing to
disclose information, restrictive interpretations of the MPCC's mandate, and a
decline in accepted recommendations. This resistance - writes the MPCC - has
persisted and worsened over time, with the OPM interpreting the National
Defence Act[7] in
a way that avoids civilian oversight. The MPCC is concerned that this
resistance may undermine the commission's ability to fulfill its mandate.
1.4.
Recommendations for Legislative Reform[8]
The MPCC proposes several recommendations to improve the effectiveness of its mandate and to strengthen public trust in the military police. Among these recommendations are:
Consequently,
the MPCC proposed a Bill in 2024 to the Minister of National Defence and
stakeholders.[9]
For readers who would like to know more, the essence of the legislative reform
proposals in the Bill are explained in a comprehensive matrix.[10]
1.5.
Public Confidence and Trust
Overall,
the MPCC emphasizes the importance of maintaining public confidence and trust
in the military police. The commission believes that independent civilian
oversight is crucial in ensuring that military police conduct is transparent,
accountable, and respectful of human rights. The MPCC's efforts to improve its
processes and address challenges are aimed at maintaining the trust and
confidence of the public, complainants, and military police members.
2. Public Interest
Hearing into a Simulation Exercise
More than a month later, the MPCC
announced[11]
that it will hold a public interest hearing to investigate the conduct of
members of the military police during a simulation exercise of an active
shooter at the Canadian Forces Base Longue-Pointe in Montreal. According to the
complaint, the exercise allegedly went awry, and a civilian employee was
detained and treated inappropriately.
2.1. Context
The simulation exercise was
intended to prepare military personnel and the military police to respond to
active shooter situations. However, it appears that the exercise degenerated,
and the civilian employee was subjected to inappropriate treatment, according
to the complaint.
2.2. Objective of the
Hearing
The hearing aims to determine the
circumstances surrounding the incident and identify responsibilities. The MPCC indicated
that it will examine the conduct of the military police members involved in the
incident and assess whether their actions were justified.
2.3. Importance of the
Hearing
According to MPCC, the hearing is
important to ensure that the CAF and the military police act responsibly and
respectfully towards civilians, even in the context of simulation exercises.
The MPCC indicated it will work to provide an objective and impartial report on
the circumstances surrounding the incident.
2.4.
The Hearing is Indicative of a Broader Issue: MPCC’s
Jurisdiction
But prior to the hearing, there was a debate between MPCC and OPM on whether an inquiry should be conducted and, if so, by which organization. Here is a chronology to help understand the issue:
Conclusion
The MPCC public
hearing will likely shed more light on the matter. Considering the debate prior
to the hearing, the MPCC might face other challenges in the future, although no
case has been filed in Federal Court.
Key aspects to watch out for include:
It's worth keeping an eye on this case to understand potential implications for Canada's military police. Transparency and accountability are essential for maintaining public trust in law enforcement institutions.
