"The President Told Me To"

A timely and important article has just been published in the Virginia Law Review: Lauren S. Emmerich, The President Told Me To: The Public Authority Defense in the Trump Era. Excerpt:

. . . The president does not have the authority to authorize forcible entry into the Capitol Building or to authorize assault or destruction of property. In other words, the president cannot just authorize violations of general criminal law.

This straightforward conclusion is precisely why the actual authority standard is the correct one. It operates to limit the civilian’s just-following-orders defense to only those cases where the official truly could have authorized the conduct, thereby avoiding abuse of the defense and widespread deputization to engage in violence. This requirement aligns the defense with entrapment by estoppel and the superior orders defenses, both of which require actual authority by the one advising or ordering and both of which have adopted limits to prevent abuse. Bringing the public authority defense in line with those doctrines simplifies the universe of reliance defenses and sets forth clear principles for its applicability. Although Barker initially appeared promising to many defendants when it laid out a potentially lenient reliance standard, it is very likely limited to its facts. Should President Trump, or any other president, direct others to take unlawful actions, those individuals should heed the example of the January 6 defendants and know that a “following orders” defense will not be available to them. Instead, it is personal responsibility that will preserve the rule of law.

Not military justice, but . . .

On October 21, 2025, the European Court of Human Rights handed down its decision in Naser v. Denmark, Application No. 46571/22 (Eur. Ct. Hum. Rgts. 4th Section). At issue was whether Iraqi nationals who were allegedly tortured and otherwise abused by Iraqi government personnel had a claim against Denmark based on a Danish unit's presence in the area. The court's decision followed three investigations by Denmark's independent Military Prosecution Service and litigation in the Danish civilian court system. In the end, the court held that Denmark had no liability on any of the several claims the applicants had asserted. The court's press release states:

Decision of the Court

Article 3 (prohibition of torture and inhuman or degrading treatment/investigation)

The Court had to determine whether the applicants fell under Denmark’s jurisdiction under Article 1 of the Convention. Where a State, through its agents, exercised control and authority over an individual, and thus jurisdiction, the State was under an obligation under Article 1 to secure to that individual, rights and freedoms guaranteed under the Convention.

The Court examined whether, based on the facts, the Danish State, through its agents, had exercised control over the applicants. Having heard extensive evidence, both the High Court and the Supreme Court had concluded that the Iraqi forces had had full control of the operation. More specifically, no Danish forces had participated in the detention of the applicants. Moreover, neither Danish forces nor the forces under their operational control had subjected the applicants to inhuman treatment.

Having regard to the very detailed and thorough assessments carried out by the High Court and the Supreme Court based on the extensive evidence presented to them, the Court found that the applicants had failed to substantiate any elements or shortcomings which could lead it to depart from the domestic courts’ findings of fact.

The Court was not satisfied that the applicants had been within the jurisdiction of Denmark for the purposes of Article 1 of the Convention. It followed that the applicants’ complaints of ill-treatment under Article 3 were inadmissible.

The Court went on to examine the applicants’ complaints concerning the Danish authorities’ investigation into their allegations. It noted that three independent investigations had been carried out, which had found on all three occasions that there had been no reason to bring charges against Danish soldiers. Each time new information had come to light about alleged ill-treatment of the detained persons during the operation, whether via the media or by the disclosure of new evidence, it had immediately prompted an investigation or a re-investigation of the case.

The Court found it doubtful that the applicants had been within the jurisdiction of Denmark in respect of the procedural obligation under Article 3 to carry out an effective investigation, but even if they had been, there was no indication that the Danish authorities had failed to carry out an effective investigation or as argued by the applicants, that the investigation had been flawed.

The procedural aspect of Article 3 was inadmissible.

Article 6 (right to a fair trial)

The Court noted that the applicants had been granted free legal aid for the proceedings before both the High Court and the Supreme Court and they had been represented throughout by counsel. They had not pointed to any decisions of the domestic courts refusing to allow them to give evidence, nor had they specified what evidence they had allegedly been prevented from submitting in a timely manner. In the Court’s view the applicants had not substantiated their assertion that not having had access to free legal aid to cover their travel expenses to be present during the entire trial had been arbitrary or disproportionate. As regards the non-disclosure of certain information, the Court noted that it had primarily been names that had been redacted and the applicants had failed to explain and substantiate why or how that very limited redacted information had been essential for their case.

The Court concluded that the applicants had been given access to a court, at two levels of jurisdiction, for their compensation claim, and that the proceedings had been fair, the adversarial principle and the principle of equality of arms having been complied with.

Article 13 (right to an effective remedy)

There existed no arguable claim under Article 13 of the Convention, the Court finding no indication that the Danish authorities had failed to carry out an effective investigation as required by Article 3 of the Convention. This part of the complaint was inadmissible.

Onr judge concurred, but noted that the court had written more than it should have, since the required jurisdictional link between the events and Denmark had not been established. It seems a fair point.

St. Crispin's Day

 

Hasan--death penalty--Fort Hood shootings

MSN is repeating an article by Laura Mitchell in the Charlotte Observer, that, Hegseth Seeks Authorization for Military Execution. The article reports that.

"The Army confirmed it has initiated procedural measures to enact Hasan’s death sentence, upheld after all legal appeals were exhausted in April. (Emphasis added.)"

Not all his legal appeals are exhausted.

Our post at CAAFlog explains more about his further legal appeals and the likelihood that Hasan will be executed soon.

Where are we in Hasan

We mention that Gray was convicted and sentenced to death in 1987-88 and his sentence was affirmed on appeal through the military appellate process--he is yet to be executed.

Civilian to be tried again by Lebanon's military court, this time in person

This time the accused is a popular singer, Fadel Shaker. He had already been tried in absentia. Excerpt from this report from LBCI:

The four absentia convictions against Chaker include the 2013 Aabra events. The judicial body annulled charges of direct participation in the killing of Lebanese army officers and personnel but convicted him of involvement in murder and terrorist acts, sentencing him to 15 years of hard labor.

In another case, Chaker was sentenced to five years for harming Lebanon’s relations with another state and inciting sectarianism. He received a seven-year sentence for money laundering aimed at financing terrorist acts. 

The fourth case resulted in a 15-year sentence for involvement in terrorism through providing logistical support.

Human rights jurisprudence strongly disfavors the trial of civilians in military courts.

U.S. military justice by the numbers: NJPs now outpace courts-martial 24 to 1

The U.S. military services reported their military justice statistics for FY 2024, as required by Article 146a of the UCMJ. The 2024 numbers are available here. 

One trend is that court-martial numbers continue their decrescendo while nonjudicial punishment (NJP, the disciplinary sanctions authorized by UCMJ article 15) remains prevalent. By the numbers: 

Service	Strength	NJP	CMs	NJP:CM ratio	GCM	SPCM-BCD	SPCM JA	SCM
Army	449,746	17,993	641	28:1	438	118	47	38
Navy	332,671	DNR	173	n/a	62	87	9	15
Air Force	320,947	3909	331	12:1	169	101	12	49
Marines	172,300	5066	229	22:1	75	95	15	44
USCG	DNR	DNR	9	n/a	5	2	1	1

The Navy did not report NJP numbers in 2024. If their numbers were the same as in 2023, 6231, they would have had a ratio of 36:1 NJP to courts-martial. 

Overall, assuming that the Navy's numbers stayed the same, and not counting the U.S. Coast Guard, the services had 33,199 NJPs and 1374 courts-martial in 2024. 

That is a ratio of more than 24:1. NJPs continue to trend up while courts-martial continue their decline; the ratio was 20:1 just two years earlier in FY 2022. 

By the numbers

Things continue to hum here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza. We've run the numbers:

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High Commissioner's statement on Bangladesh disappearances trials

Following is text of a statement from the Office of the High Commissioner for Human Rights:

UN Human Rights Chief Volker Türk said today the initiation of proceedings against those accused of carrying out enforced disappearances and torture under the previous government in Bangladesh was an important step towards accountability.

“This marks the first time that formal charges have been brought for enforced disappearances in the country. It is a significant moment for victims and their families,” High Commissioner Türk said.

Last week, the country’s International Crimes Tribunal submitted formal charges of crimes against humanity in two cases related to enforced disappearances and torture alleged to have occurred at the Task Force for Interrogation Cell and the Joint Interrogation Cell, respectively. The Tribunal also issued arrest warrants for mostly former, but also some serving, military officers, including a number of former Directors-General of the Directorate General of Forces Intelligence, as well as former officials of the Rapid Action Battalion.

On Saturday, Bangladesh’s army announced that it had detained over a dozen of its officers accused of serious crimes committed under the previous administration. It is crucial that the army promptly produces these detained officers to a competent civilian court, for fair and transparent criminal proceedings.

“I urge full respect for the most scrupulous standards of due process and fair trial, as guaranteed in international law. The protection of victims and witnesses in these sensitive and significant cases must be ensured,” the High Commissioner said.

One of the key recommendations of the UN Human Rights Office’s Fact-Finding Report into last year’s deadly student-led protests was that those responsible for serious violations of human rights, some of which may also constitute international crimes, must be held to account in accordance with international standards.

The crime of enforced disappearances is now formally recognised in Bangladesh for the first time following ratification in August 2024 of the Convention on Enforced Disappearances and an amendment to the International Crimes Tribunal Act.

The High Commissioner also urges the authorities to prioritise the handling of the large number of other pending cases – with some dating back to the previous administration and others since then. It is crucial to ensure due process and fair resolution in each case, and to release promptly anyone who has been arbitrarily detained.

This includes survivors of enforced disappearances and others facing unfounded charges, including journalists and those perceived to be supporters of the former regime. Many of them continue to face criminal charges, including under the draconian Anti-Terrorism Act.

The High Commissioner has also urged the authorities not to pursue the death penalty in any of the cases before its courts, irrespective of the seriousness of the charges.

“Beyond ensuring individual accountability, the best way forward for Bangladesh is a comprehensive process of truth-telling, reparation, healing and justice. Such a process must address the legacy of serious human rights violations and ensure that these abuses can never happen again. I also call on the interim Government to deal with ongoing concerns promptly in line with international law,” Türk said.

To the extent that some of the accused are active dutry military personnel, the only reason for not referring their cases to the military courts must be a lack of confidence in those courts.

SECDEF v. JAGs -- a disturbing panorama

CNN's Natasha Bertrand reports here on the administration's dim view of JAGs and their role. Excerpt:

“[Pete] Hegseth’s rhetoric and policies are perceived as a bit unhinged and counterproductive, but the way forward is just to eat it and put your head down and act in accordance with his new policies,” said one current Army JAG. “No JAG is trying to rock the boat or get noticed.”

Instructional error in a he-said/she-said case

The Court Martial Appeal Court of Canada's decision in Houde v. H.M. The King, 2025 CMAC 2 (Guy Cournoyer, J.A.), finds instructional error where the military judge told the members that the complainant's credibility would be determinative. Excerpt:

Main issue: [the complainant’s] credibility

Introduction

1. In my view, the main issue you will have to determine during your deliberations relates to the credibility you will give to the testimony of the prosecution’s only witness, the [complainant]. If you believe the witness’s testimony, it should not be very difficult for you to answer the questions I will list later on concerning the essential elements of the offences.

***

After considering the general principles that were previously explained—the presumption of innocence, the burden of proof, the assessment of the evidence, the application of reasonable doubt to the credibility issue—and after considering the accused’s testimony in light of the analytical framework described, you will be able to arrive at a finding on the credibility of the [complainant’s] testimony and on the facts she has related.

[39] These instructions are highly problematic. They direct the panel’s attention to only one issue: the complainant’s credibility. As a result, these instructions explain to the panel that if it believes the complainant, the appellant must inevitably be found guilty because the panel [translation] “will not find it very difficult” to answer questions [translation] “concerning the essential elements of the offence.”

[40] It should be recalled that although a complainant’s credibility is important, it is not the main issue during a criminal trial. The issue at the end of a trial where contradictory versions were presented is not “credibility, but reasonable doubt”: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 at para. 65; R. v. S.B., 2023 ONCA 784 at para. 59; Wilson v. R., 2013 NBCA 38 at para. 36, A.1; R. v. C., 2004 NSCA 135 at para. 19; R. v. Mah, 2002 NSCA 99 at para. 41; R. v. P. N., 2013 NLCA 16 at para. 15.

Restoring military courts in Ukraine?

Should Ukraine restore its military courts? That is among the timely questions posed in an excellent new article: Olena Ovcharenko, Anatoliy Kozachenko, Roman Kabalskyi & Oleksandr Savchuk, Judiciary in Ukraine and Challenges of Wartime:The Protection of Human Rights in Extraordinary Conditions and Prospects of Restoring Military Courts, 2025 Isr. L. Rev. 1. Abstract:

The purpose of this study is to discuss possible solutions to stated problems and to reflect on the prospects for the resumption of military justice in Ukraine. The research formulates solutions for overcoming the negative consequences for the judiciary of the armed aggression by Russia against Ukraine. With regard to the limited institutional and human resources of international tribunals such as the International Criminal Court, the main burden of the investigation and trial of cases arising from military legal relations will be placed on the Ukrainian judicial system. International tribunals play a more global role, which is imposing responsibility on the organisers of armed aggression against Ukraine and placing sanctions on the military and political leaders of the aggressor country. For the judiciary of Ukraine, the best way to resolve this significant problem is to restore the system of military courts, which were voluntarily liquidated in 2010. The restoration of military courts will make it possible to unload pressure from the system of courts of general jurisdiction, to ensure prompt resolution of hundreds of thousands of cases of compensation for damage caused to citizens and businesses as a result of the hostilities, as well as the just trial of criminal proceedings for military and war crimes.

Seeking balance.

Sumaila Ogbaje, Buratai seeks balance between military discipline, constitutional rights. New Diary, 9 October 2025.

Former Chief of Army Staff (COAS), retired Lt.-Gen. Tukur Buratai, has called for a careful balance between the demands of military discipline and the constitutional rights of personnel under Nigeria’s evolving democratic system. 

Buratai made the call in Abuja at the public presentation of the book “Annotation of Cases on Court Martial,” co-authored by Maj.-Gen. Mahmoo Wambai and Mr Ali Omachi (Esq) on Thursday.

He said Nigeria’s court-martial system, rooted in British military tradition, had undergone a profound transformation over the decades, mirroring the nation’s political and legal evolution.

“The imperative for military discipline must now be balanced with the constitutional rights of personnel and the scrutiny of civilian appellate courts,” he said.

Buratai highlighted landmark judgments such as Eweka v. Nigerian Army and Gideon Uweri v. Nigerian Army as milestones that reinforced fair hearing and delineated court-martial jurisdiction within democratic norms.

According to him, these rulings reflect the growing tension and harmony between the rule of law and the demands of command and control in a professional force.

“A fair and just military justice system is the bedrock of disciplined armed forces and a stable democracy.

“For the military, court martials remain indispensable for enforcing conduct and professionalism; for democracy, they demonstrate that the Armed Forces are firmly under the rule of law,” he said.

Military Justice System Modernization Bill proposed in Canada

From the Department of National Defence's announcement:

. . . The Military Justice System Modernization Act addresses key recommendations made by former Supreme Court Justices Louise Arbour and Morris J. Fish. This legislative proposal continues the constant evolution and modernization of the Military Justice System to meet the Canadian Armed Forces (CAF) needs to maintain discipline, efficiency and morale.

The proposed legislation is grouped into four key areas:

1.  The removal of the CAF’s investigative and prosecutorial jurisdiction over Criminal Code sexual offences committed in Canada.

This proposed change addresses Recommendation 5 of the Honourable Louise Arbour’s Report of the Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces (IECR), which states that, “Criminal Code sexual offences should be removed from the jurisdiction of the CAF. They should be prosecuted exclusively in civilian criminal courts in all cases. Where the offence takes place in Canada, it should be investigated by civilian police forces at the earliest opportunity.”

The proposed legislation provides exclusive jurisdiction to civilian authorities to investigate and prosecute sexual offences in Canada.

Recommendation #5 is the only recommendation from IECR exclusively implemented through legislation. Progress to implement all 48 IECR recommendations is either complete or underway with oversight provided by the External Monitor, Madame Jocelyne Therrien, who has provided regular progress reports.

2.  This proposed legislation also addresses eight recommendations (2, 7, 8, 10, 13, 14, 15, 16) from the Report of the Third Independent Review Authority to the Minister of National Defence of the National Defence Act by former Supreme Court Justice Morris J. Fish. These amendments seek to, among other things:

Revise the appointment process of the Canadian Forces Provost Marshal, to be retitled the Provost Marshal General, the Director of Military Prosecutions and the Director of Defence Counsel Services;

Broaden the eligibility criteria for military judge appointments to include non-commissioned members;

Affirm the Judge Advocate General’s commitment to the respect for the independence of military justice authorities in the exercise of its superintendence of the administration of military justice;

Expand the class of persons who may make an interference complaint and provide that a member of the military police or person performing policing duties or functions under the Canadian Forces Provost Marshal’s supervision must make such a complaint in certain circumstances; and

Rename the title of the Canadian Forces Provost Marshal to the Provost Marshal General to align with the titles of other senior designations in the CAF, such as the Surgeon General, the Chaplain General, and the Judge Advocate General.

These legislative amendments continue the modernization of the military justice system to allow it to remain effective, accountable, and aligned with the operational needs of the CAF.

3.  The proposed amendments also seek to exclude military judges from the summary hearing system, and expand access to Victim Liaison Officers, under the Declaration of Victims Rights, to individuals acting on behalf of a victim

4.  Amendments to the National Defence Act are also proposed to align provisions related to sex offender information and publication bans with the amendments made to the Criminal Code in An Act to amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act. These proposed changes are essential to ensure the military justice system remains constitutional and aligned with the Criminal Code and the civilian criminal justice system.

The New York Times reports on "America's Vigilantes"

The New York Times Magazine has posted a string of investigative articles under the broad heading "America's Vigilantes." You can find it here. One article is titled Five Takeaways About the Culture of Lawlessness in the U.S. Special Forces.