What can a military union do?

That is the question before South Africa's Supreme Court of Appeal in a case that is now under submission. Details can be found here. Excerpt:

Earlier the high court held in favour of Sandu [the South African National Defence Union] on all the issues.

These include the banning of demonstrations, presenting of petitions and a military union's right to affiliate to a union federations, and those preventing unions representing members during grievances and disciplinary proceedings.

Co-counsel for Sandu, Matthew Chaskalson, submitted these were among the core functions of a union.

Chaskalson submitted that whatever threat to discipline the defence force might see in regard to affiliation, as the defence force contended, was not well founded.

"It's not justifiable to ban this."

On Tuesday, questions on the justification of a "powerful body within the military outside of military command" was also raised by the bench in relation to affiliation.

Concerns related to conflict of interest by soldiers when they were called by the President for duty during civil unrest situations, which could be supported by other trade federations.

Russian Military Court Sends Russian General To Penal Colony

Ah, strange bedfellows indeed. You know times are indeed "interesting" when a Russian ultranationalist pro-war blogger with three million followers laments Russia's lack of rule of law -- not because of war crimes committed by Russian service members in Ukraine; not due to Russia's violation of the United Nation's Charter in its unlawful war of aggression; and not due to the myriad disappearances and murders that the Russian State has been alleged to have orchestrated over the years.

Nope, this Russian ultranationalist finally misses the good 'ole rule of law because his favorite Russian general has just been sentenced to five years in a Russian penal colony by a Russian military court (hence the nexus to this Global Military Justice Reform site). This general's conviction on corruption charges, per this article, appears to be  retaliation for his criticism of the top Russian brass (and/or perhap his popularity amongst his troops threatens those in power). 

May this case be a reminder that ALL military courts -- by definition those  part of a military justice system under the command and control of the military organization they are nested within, such as in the United States, which operates military courts unworthy of U.S. service members due to the system's lack of independence -- are uniquely susceptible (and frankly, seemingly prone) to transformation to vehicles of persecution instead of legitimate prosecution. 

Government brief in opposition to certiorari in "short-martial" case

The Solicitor General's brief in opposition to the petition for certiorari in Wheeler v. United States, No. 24-678, can be found here.

Betting here in the glass-enclosed newsroom high above Global Military Justice Reform Plaza is that the Supreme Court will grant certiorari--and affirm.

Uganda SITREP

LegalBrief has assembled a useful collection of pieces about Uganda's constitutional drisis, arising from government resistance to the Supreme Court's landmark decision in Kabaziguruka.

Hide and seek at Charlottesville

George Orwell

The following appears on the home page for the U.S. Army's Military Law Review:

In alignment with Department of Defense (DoD) Instruction 5400.17 and recent Executive Orders issued by the President, the U.S. Army has reviewed and adjusted its digital content to ensure compliance with DoD policies and priorities.

As a result, certain articles and images have been removed or are in a process of being removed or modified to maintain consistency with federal guidance and uphold the integrity of our official communication channels. Content will be archived in accordance with DA PAM 25–403.

The U.S. Army remains committed to transparency, professionalism, and adherence to DoD directives while continuing to engage with our community in a manner that reflects our core values.

Complaint filed with East African Court of Justice

The complaint, concerning Uganda's use of military courts to try civilians, Besigye v. Att'y Gen. of Uganda, can be found here. 

The court's website is currently unavailable.

Amnesty International statement on Uganda's struggle over military courts

Amnesty International has issued this statement (originally an Al Jazeera op-ed) on Uganda's government's resistance to the decision of the Supreme Court on the use of military courts to try civilians. It's about suppressing dissent. Excerpt:

Following the court order and widespread outcry, Besigye and Lutale were transferred to a civilian court on February 21. Besigye called off his hunger strike. They remain in detention, as does their lawyer. However, their transfer without release, in a process begun by an illegality, remains flawed. Despite the transfer of their case, scores of more civilians have their cases still pending before military courts, with little hope that they will be transferred to civilian courts.

For this reason, 11 groups including Amnesty Kenya, the Pan-African Lawyers Union, the Law Society of Kenya, the Kenya Human Rights Commission and Kenya Medical Practitioners, Pharmacists, and Dentists Union (KMPDU) call for their immediate release.

As Uganda approaches elections, it is evident that the military courts are now a tool in President Museveni’s shed for use to silence dissent. It is time for Uganda to heed the Supreme Court ruling – for now though, military justice is on trial, too.

Meanwhile, a High Court judge has released on bail a civilian who had been in detention for 1500 days pending trial in the country's court-martial on a murder charge. Details here.

Sorry, he's too busy

Have you noticed the Supreme Court of Pakistan's leisurely pace in The Military Courts Case? Consider this exchange from yesterday (from this Dawn report):

During the hearing, the bench sought clarity on the provision of the right to appeal for those convicted by military courts for their alleged involvement in the May 9 violent protests.

In response, Additional Attorney General (AAG) Chaudhry Aamir Rehman informed the court that Attorney General for Pakistan (AGP) Mansoor Usman Awan was still busy deliberating with stakeholders, which might take another couple of days.

At this, Justice Jamal Khan Mandokhail expressed displeasure over the delay, questioning why such a straightforward issue was not being promptly addressed. Justice Musarrat Hilali also remarked that the AGP only needed to seek instructions and inform the bench of the government’s stance on the right to appeal.

Dunya News has quotes:

Justice Mandokhail asked about the AG’s stance and whereabouts.

The additional attorney general replied that the attorney general would need two to three more days.

Justice Mandokhail expressed frustration, saying, “What kind of joke is this? Why are you unnecessarily delaying the case? Is there no intention of completing it?” Justice Hilali added, “The attorney general himself had said he would only need ten minutes—it was just about discussing the right to appeal.”

Aamir Rehman stated that the attorney general appeared only on court orders, and otherwise, Haris represented the federation.

Justice Mandokhail then questioned, “If the attorney general has already delegated his right to Khawaja Haris, why should we even listen to him?”

With that, the SC adjourned the hearing until tomorrow.

A really strange lawsuit in Uganda

"Now I've seen everything." Consider this report from Kampala, in the aftermath of the Supreme Court's Kabaziguruka decision. An attorney is seeking a judicial order preventing Parliament from debating a pending bill that would permit the trial of civilians by court-martial. The bill is surely unconstitutional, but blocking debate?

Busy court-martial docket in Russian Federation

The Russian Federation's military court docket has been busy, judging by these numbers. Excerpt:

Russia's garrison military courts issued 13,699 criminal convictions against service members in 2024, the highest figure since at least 2010, independent media outlet Verstka reported on April 15, citing official data from the Supreme Court's judicial department.

The surge in convictions in 2024 marks a 76% year-over-year increase, reflecting growing internal discipline issues within Russia's Armed Forces during the country's ongoing full-scale invasion of Ukraine.

In 2023, military courts issued 7,779 verdicts, while 2022 saw 4,191 convictions. Data provided by Verstka dated back to 2010, when the record stood at 8,632.

Ex-Military Nursing Officers are “ex-servicemen”: Supreme Court of India

The Supreme Court of India has held that Military Nursing Service (MNS) officers cannot be denied “ex-serviceman” (“ESM”/veteran) status for re-employment.

A released Short Service Commissioned officer of the MNS, Captain Gurpreet Kaur, had cleared the examination for the Punjab Civil Services in 2021 under the ESM category reservation but her candidature was rejected on the ground that she was not an “ESM”. Aggrieved, she had approached the High Court wherein she pointed out that the MNS was an “Armed Force of the Union” under the statute and the Rules covered Short Service Officers released on completion of terms of engagement with gratuity under the definition of ESM.

The High Court had finally held that MNS is an “Armed Force of the Union” and Punja
b ESM Rules recognise all armed forces officers released on completion of terms with a gratuity as ESM. The State was directed by the High Court to appoint her in civil service with notional seniority.

The High Court judgment was however challenged in the Supreme Court of India.

The top court has dismissed the appeal and upheld the right of MNS officers to be treated as ESM. The Supreme Court has also held that the MNS is an integral part of the military and the Armed Forces.

The MNS is the only all-woman branch of the Armed Forces.

More on the case can be seen at the website of The Tribune.

The conundrum of judicial accountability and independence in military courts from a comparative perspective (book chapter)

Coming soon: https://www.taylorfrancis.com/chapters/edit/10.4324/9781003557852-15/conundrum-judicial-accountability-independence-military-courts-comparative-perspective-arianna-vedaschi-micol-ferrario?context=ubx

From the abstract on the publisher's website:

The judicial accountability and independence of military courts have always been hugely debated, especially insofar as they frequently have links with other powers (mainly the Executive) and are often composed of the military personnel. Through the lens of comparative constitutional law, this chapter explores whether, and to what extent, these issues characterise the military justice systems of major advanced Western democracies. Through the analysis of the Italian case study, the chapter suggests some bolsters that could be introduced in the existing models to ensure that military courts – which are called to adjudicate very complex and sensitive issues – comply with the basic principles of the Judiciary that must characterise all the legal systems based on the rule of law.

Uganda: defiance of Supreme Court decision

The government of Uganda is moving forward with a bill that could unravel the recent decision of the Supreme Court barring military trials of civilians. Opponents say they will fight such a measure "every step of the way."

Israeli reservists and retired officers sign letter of protest over conduct of Gaza War

The New York Times reports that hundreds of Israeli Air Force reservists and retirees signed a letter protesting the conduct of the war in Gaza. 

Signatories include a former chief of staff and former senior military leaders. 

The Israeli prime minister's office rebuked the statement, saying it weakens the country while at war. Reservists who signed the letter while of active duty would be relieved. 

The letter urges that Israel's renewed war effort in Gaza following a creaky ceasefire endangers Israeli hostages, and that all efforts to protect the hostages, including ending current bombardments, should be employed. 

This is an unusually large display of dissent that lays bare the current tension between the Israeli military and political leadership.

New Zealand Defence Force and COVID-19 Policy

On Friday 11 April 2025, the Supreme Court of New Zealand (SCNZ), New Zealand's apex court, handed down its judgment in Chief of Defence Force v Four Members of the Armed Forces, 2025 NZSC 34 [CDF v Four Members].  The judgment concerned an appeal of a judicial review of elements of the New Zealand Defence Force (NZDF) policy on compulsory vaccination against COVID-19. 

A summary commentary was offered by the "The Post", a metropolitan newspaper published in New Zealand's capital, Wellington: "Defence Force wins vaccine battle in Supreme Court".

Notwithstanding that the global pandemic subsided many months ago, this judgment remains pertinent for a variety of reasons, particularly for countries that share an Anglo Common Law tradition combined with the unique Crown-soldier relationship found in the United Kingdom, Canada, Australia, and New Zealand.  (And the relevance extends beyond the fact that those four countries spell "defence" correctly.)

As a Canadian, this judgment is particularly informative in light of the similarities that can be drawn not only between the legal regimes of Canada and New Zealand, but also in how COVID-19 vaccination policies were promulgated in the armed forces of those two nations.  Unlike what transpired in New Zealand, litigation concerning the COVID-19 vaccination policies in the Canadian Forces (CF) did not reach our apex court (or even the Federal Court of Appeal).

In Canada, although there were attempts to challenge the CF's policy regarding vaccination against COVID-19, the notable examples consisted principally of premature attempts to challenge the policy before the applicants had exhausted the CF grievance process (Neri v Canada, 2021 FC 1443) and an attempt to bring an action on behalf of 330 claimants (but which was manifestly not a class action) that suffered from multiple shortcomings (Qualizza v Canada, 2024 FC 1801).  

There were multiple grievances brought by CF members under circumstances similar to what arose in New Zealand.  Initially, these Canadian grievances benefitted from generally favourable 'Findings and Recommendations' (F&R) from the Military Grievances External Review Committee (MGERC).  However, it appears that the Chief of the Defence Staff (CDS) in Canada largely rejected these F&R.  Unlike in New Zealand, members of the CF did not raise these matters in litigation that reached the appellate level.

Consequently, the judgment in CDF v Four Members is illustrative of what may have arisen in Canada, had select personnel brought the matter before the Federal Court and successive appellate courts. 

The trajectory of this case is also noteworthy.  On first instance, the results of the judicial review before the High Court favoured the Crown.  Churchman J held that that the purpose of the various instruments establishing the vaccination requirement was to maintain the operational efficacy of the Armed Forces in New Zealand by limiting the spread of COVID-19.  That objective was sufficiently important to justify a limitation on the rights to refuse medical treatment and to manifest religion and belief.

Although the New Zealand High Court drew conclusions comparable to similar judgments in Canada, the Court of Appeal reversed that decision.  Although the Court of Appeal accepted that there was sufficient justification for the limits on the rights protected by ss 11 and 15 of the New Zealand Bill of Rights Act [NZBORA] arising from the COVID-19 vaccination being placed in the baseline schedule for vaccinations, it found that the CDF had not demonstrated sufficient justification for adopting the policies described in the relevant Temporary Defence Force Order (TDFO) and related policy instruments.

The Court of Appeal did not find that the whole of the TDFO was invalid.  The appeal had been argued at a level of generality which meant it could not identify specific parts which were valid. It also recognised that time had moved on and other regulatory settings had changed. For that reason the Court directed that the CDF reconsider the TDFO in light of its judgment.

The Court of Appeal faulted the CDF for failing to consider alternative means of addressing the need to maintain the efficacy of the Armed Forces during the pandemic.  The Court of Appeal placed significant weight on evidence that the United Kingdom had adopted a less restrictive approach for its Armed Forces and held that the incremental limits imposed by the TDFO had not been justified. 

The Court of Appeal concluded that the TDFO had not been shown to be a reasonable limit on the rights of the Armed Forces members who had challenged the policy.  The litigation was brought under the NZBORA, and the Court of Appeal had to consider the appropriate remedy.  The Court concluded that the specific policy provisions, standing alone, would likely not raise any concerns under the NZBORA.  The Court also recognised that events had moved on since the TDFO was issued in May 2022.  It concluded that a review of the TDFO was timely, if not overdue.  The Court did not set the TDFO aside but ordered that it be reconsidered in light of the Court’s judgment, reasoning that it would be wrong “to engage in an inappropriately granular way with the performance by the CDF of his responsibilities in relation to the Armed Forces”.  In the meantime, an interim order was made to protect the respondents pending the review.

On further appeal, the SCNZ held that the Court of Appeal failed to afford the CDF sufficient deference (or margin of appreciation) regarding the (temporary) policies implemented to address a global pandemic.  Again, what is noteworthy in this case from a Canadian perspective, is the extent to which the SCNZ relies upon Canadian jurisprudence both in the interpretation of the NZBORA and regarding principles of deference in public and administrative law.

The SCNZ observed that, when reviewing legislation for proportionality and for consistency with protected rights under s 5 of the NZBORA, New Zealand courts usually adopt the structured methodology developed by the Supreme Court of Canada in R v Oakes, [1986] 1 SCR 103 and subsequent cases.  Similarly, when examining deference to statutory decision-makers, the SCNZ relied upon Canadian jurisprudence, including Dunsmuir v New Brunswick, 2008 SCC 9, in addition to domestic judgments and, as in Canada, permitted a relatively healthy margin of appreciation to military decision-makers "... with respect to operational effectiveness and military discipline ...", holding that the "... CDF is the decision-maker appointed under the legislation and likely to be in a much better position than the court to evaluate the relevant considerations."

Though speculative, I suggest that, had CF members sought judicial review of decisions by the Chief of the Defence Staff in Canada, in considering and determining grievances relating to the CF's COVID-19 vaccination policies, the results would likely have been comparable to CDF v Four Members.

This judgment merits review by practitioners who are concerned with statutory decision-making relating to the Crown-soldier relationship in Anglo Common Law jurisdiction, particularly within the context of the deference afforded to such decision-makers and the functionality of judicial review.

The Pakistan Democracy Act

From Friday Times,

The Pakistan Democracy Act was recently introduced in the United States Congress. On the face of it, the bill appears to be a human rights measure. In substance, it is a political document. It attempts to single out Pakistan on the pretext of democratic backsliding and human rights violations. Such bills are not uncommon in U.S. foreign policy practice. But this one comes at a very sensitive time in Pakistan’s constitutional history.

The Supreme Court of Pakistan is currently hearing a set of petitions challenging the trial of civilians through court-martial under the Pakistan Army Act, 1952. This issue has emerged in the aftermath of the events of May 9, 2023, when political protests turned violent. Some protesters stormed and damaged properties associated with the Pakistan Army, including the residence of the Corps Commander in Lahore. The federal government and military authorities have sought to try these civilians by way of court-martial.

The matter before the Supreme Court is of foundational importance. It is not about whether the country is in a state of war or peace. Nor is it about the general legality of the court-martial system. The real question is whether, under the Constitution of Pakistan, civilians involved in acts of political protest—even if violent—can be deprived of their right to a fair and public trial before the ordinary courts of law.

There is no ambiguity in the facts. The individuals being prosecuted are not armed militants or enemy combatants. They are political workers and supporters of an opposition political party. The demonstration, even if it turned disorderly, was political in nature. The attack on the Corps Commander’s residence, though unjustifiable, was not an act against a military installation in the operational or strategic sense. It was not an act of sabotage against a functioning military base. The locations targeted were symbolic representations of military power, not military targets in the conventional legal sense.The idea that such actions justify court-martial is deeply problematic. International human rights law imposes clear restrictions on the use of military justice systems against civilians. Article 14 of the International Covenant on Civil and Political Rights (ICCPR), to which Pakistan is a signatory, guarantees the right to a fair trial before a competent, independent, and impartial tribunal established by law. The UN Human Rights Committee has repeatedly held that court-martial of civilians is not permissible unless strictly required and narrowly limited, such as in situations of armed conflict or direct military engagement.

Another day, another hearing

The Supreme Court of Pakistan is still at it in the Military Courts Case, judging by this report from Dawn. Excerpt:

Justice Hilali remarked during today’s hearing, “How can you talk about fair and transparent trials, [when] decisions are made in military courts under the shade of Kalashnikovs. What problem will arise if the government gives civilians the right to appeal?”

JAGs under fire

The role and independence of the various U.S. JAG Corps are front and center. Here are two timely Lawfare reads:

From Dan Maurer: 

https://www.lawfaremedia.org/article/congress-must-protect-the-role-of-jags-in-the-military

And from Sarah Elaine Harrison:

https://www.lawfaremedia.org/article/a--sweeping-overhaul--of-the-jag-corps-poses-likely-dangers

and in a lighter vein (as well as off-topic) from Salon, this from The Editor:

https://www.salon.com/2025/04/06/one-small-part-of-pete-hegseths-wardrobe-is-a-big-tell/

An inside view of Italian Military Justice

Report Difesa has a lengthy interview with Filippo Verrone (at left), President of the Military Court of Naples and of the National Association of Military Magistrates. Here's an excerpt (Google imperfect translation):

President Verrone, how has the military judiciary changed since the time of military service to today. Has there also been a change in the crimes that were committed before compared to those of today?

Of course, yes. The crimes that were linked to the obligation of military service are no longer there, such as desertion. But there are others.

Our activity is numerically smaller than in the past. Today it has become a numerically smaller job in terms of the number of crimes but qualitatively much more complex both for the type of crimes committed and for all the other aspects, even non-criminal, of an investigation of a conviction, since public employees are involved. Everything must be carefully examined because the work and career progression of the soldier is also at stake.

For this reason there has been a recent legislative intervention: the non-suspension of the soldier from work except by the first degree conviction.

Precisely because a criminal trial for a soldier is something that leaves a mark!

And so from here arises, in my opinion, the need for a special jurisdiction that not only knows the mechanisms of this particular activity, but above all that reaches a decision within a reasonable time.

Will this case never end?

Dawn reports here on yet another day of meandering discussion in Pakistan's Military Courts Case. Excerpt:

The counsel touched upon the status of court martial and explained that the military courts did not fall under Article 175(3) of the constitution that asks for the separation of judiciary from the executive. He argued that the military courts established under the PAA were not subordinate to any high court and therefore did not come under the domain of Article 175(3) of the Constitution.

When Justice Mandokhail asked if the military courts did not come under Article 175(3), then under which constitutional provision would they fall especially when Article 175 exclusively talks about the judiciary.

The Constitutional Bench resumed the hearing today. 

Nevada National Guard

Each (U.S.) state National Guard has some form of military justice statute. The Codes vary from state to state (some states have adopted the ABA Model Code). Enforcement can differ. For example, Delaware conducts a court-martial within the Guard, whereas West Virginia prosecutes "UCMJ" violations in civilian court.

You can find out more specifics per state at NIMJ's "State Codes."

A general review suggests many state UCMJs are out of date. There have been several major changes to the UCMJ over the last five years and the state legislatures haven't caught up.

Nevada National Guard members have fewer legal protections than civilians, most other states’ Guard members, and members of national military branches such as the Army and Air Force.

The right to demand a court-martial instead of accepting certain administrative punishments was taken out of state law in 2019 at the urging of the Nevada National Guard, just four years after it held the opposite position.

. . .

"Currently, Nevada is one of only a few states where National Guard members lack the right to demand a court-martial," Wagar said. "This lack of due process undermines the principles of justice and erodes trust in the military justice system."

 From the Reno Gazette Journal.

Most interesting is the cost estimate for adopting the right to refuse Article 15 punishment, which ranges from zero to $1.2 million for just three courts-martial.

Gray said this shows that the Nevada National Guard’s official estimate to the Legislature of three court-martials a year costing about $1.2 million does not stand up to scrutiny because it’s extremely rare for a military service member to ever request one.

Gray shared a letter he received Wednesday from Maj. Gen. David Baldwin, who has led the California National Guard since 2011. Baldwin wrote that during his more than 40 years in the Guard, he’s been involved with hundreds and possibly thousands of cases where the accused had the option to turn down a nonjudicial punishment in favor of a court-martial — and only one ever did.

We suspect (partly on our own experiences advising servicemembers) that the number of Article 15 turndowns in the active duty force is similarly few.

TT High Court ruling in Coast Guard promotion case

There's been an interesting decision in the High Court of Trinidad and Tobago. At issue is whether stric t seniority governs promotions in the Coast Guard, or whether merit -- here, experience -- can trump it. The decision is not yet on the court's website, but here is a detailed account from T&T Newsday. Excerpt:

In a ruling on March 28, Justice Ricky Rahim quashed the CDS’s decision not to promote Hayden De Four while ordering the Defence Force boss to consider his qualifications, experience and training within 30 days and inform him 14 days after.

The State was ordered to compensate De Four for the CDS’s unfair and irrational actions and breach of his constitutional rights. The CDS and the Attorney General were also ordered to pay De Four’s legal costs.

In his lawsuit, De Four claimed he was unfairly denied promotion to Fleet Chief Petty Officer (FCPO) in December 2022. His attorneys, Arden Williams, Don Marie Adolphe and Mariah Ramrattan, argued promotions in the TTCG were always based on seniority and, as the most senior officer, he had a legitimate expectation of advancement.

Instead, the position was given to a junior officer.

In its defence, the CDS and AG said promotions to FCPO are also determined by experience and not seniority alone. They argued that the other officer was better suited because of his training and experience in the Marine and Integrated Project Team department.

They also contended De Four was never promised a promotion and was not treated unfairly.

Executing Humphrey's Executor

Students of military justice will want to consider this paragraph from p. 53 of Judge Patricia A. Millett's dissent from today's decision of the U.S. Court of Appeals for the District of Columbia Circuit in Harris v. Bessent, No. 25-5037:

    Agencies are not the only entities at risk under the majority opinion’s new regime. Given the primarily adjudicatory nature of the MSPB and the NLRB, it is difficult to understand how the majority opinion’s rule does not eliminate removal restrictions on non-Article III judges, including judges of the Court of Federal Claims, the Bankruptcy Courts, the Court of Appeals for Veterans Claims, and the Court of Appeals for the Armed Forces. Apparently all of those adjudicators can now be fired based not on any constitutional decision by the Supreme Court or this court, but simply on the government’s application for a stay citing nothing more than the President’s inability to fire those officials as the requisite irreparable injury.

Whither Uganda's military courts?

There's a lively debate going on in Parliament over the proper legislative response to the Supreme Court of Uganda's Kabaziguruka decision. This article from NilePost summarizes the opposition's views, in contrast with those of the government.

Woke military

The Woke Military: A Question of Paternity. Here's Bruce T. Smith's lede on Real Clear Defense: "The woke military is the bastard child of a thousand fathers. Several of those 'fathers' were the ones wearing JAG badges." The author continues:

The simple truth is this: many military Judge Advocates, “JAGs,” whose clients were their respective service branches, either endorsed or failed to prevent the sixteen-year woke assault on the armed services. That’s likely why SecDef [Pete] Hegseth fired the Army and Air Force Judge Advocates General in February.

Whether the failures were those of just a few woke idealogues, scaredy-cat careerists, or members of a wider-spread social justice movement, the responsibility to prevent the politicization of the military rested with the lawyers whose sworn duty it was to counsel adherence to the law.

In this essay, it is not my intention to indict the majority of hardworking, patriotic military lawyers who follow the law every day. Rather, my aim, here, is to scrutinize a small but influential minority of Judge Advocates who put ideology and politics above both the law and their duties to their respective armed services. Whether they acted actively or passively, alone or in small groups, a cadre of woke JAGs throughout the DoD may very well have been the single greatest facilitators of left-driven ideological mischief in the military.

See what you think?

A British court-martial in Boston

In Women in the American Revolution, Dr. Sarah Pearlman Shapiro writes for the venerable American Philosophical Society about records of British courts-martial, including a sexual assault case in occupied Boston in 1775. Excerpt:

Among the rows and rows of microfilm reels at the David Center for the the American Revolution at the American Philosophical Society are the “Courts Martial Proceedings and Board of General Officers' Minutes.” From Gibraltar to Boston, these administrative records detail punishments meted out for infractions ranging from desertion and theft to mutiny and assault. Court martial records provide glimpses into soldiers’ violent behavior and conduct against local women. These instances of assault were not new to colonial women. Rather, these documents contain testimony from women across the spectrum of unfreedom, often omitted in the archive. [Anne] Moore’s recorded experience is emblematic of many women assaulted at the hands of both British and Continental Army soldiers. Even when women were not victims, court martials included the testimony and, therefore, their perspective. Maintaining order within the ranks required interviewing witnesses regardless of status, race, and political affiliation. 

Planning to sue the government for a military client?

President Donald J. Trump has issued this memorandum on Preventing Abuses of the Legal System and the Federal Court to the Attorney General and the Secretary of the Department of Homeland Security. It reads in part:

I further direct the Attorney General to take all appropriate action to refer for disciplinary action any attorney whose conduct in Federal court or before any component of the Federal Government appears to violate professional conduct rules, including rules governing meritorious claims and contentions, and particularly in cases that implicate national security, homeland security, public safety, or election integrity.  In complying with this directive, the Attorney General shall consider the ethical duties that law partners have when supervising junior attorneys, including imputing the ethical misconduct of junior attorneys to partners or the law firm when appropriate.

I further direct that, when the Attorney General determines that conduct by an attorney or law firm in litigation against the Federal Government warrants seeking sanctions or other disciplinary action, the Attorney General shall, in consultation with any relevant senior executive official, recommend to the President, through the Assistant to the President for Domestic Policy, additional steps that may be taken, including reassessment of security clearances held by the attorney or termination of any Federal contract for which the relevant attorney or law firm has been hired to perform services.

I further direct the Attorney General, in consultation with any relevant senior executive official, to review conduct by attorneys or their law firms in litigation against the Federal Government over the last 8 years.  If the Attorney General identifies misconduct that may warrant additional action, such as filing frivolous litigation or engaging in fraudulent practices, the Attorney General is directed to recommend to the President, through the Assistant to the President for Domestic Policy, additional steps that may be taken, including reassessment of security clearances held by the attorney, termination of any contract for which the relevant attorney or law firm has been hired to perform services, or any other appropriate actions.

What are the implications for court-martial defense counsel and attorneys who represent (or have in the past eight years represented) military clients in proceedings for federal court habeas corpus or other forms of collateral review? 

Advice to Taiwan

The Editor has written this op-ed for the Taipei Times, offering some unsolicited advice on the current proposal to revive courts-martial.

More information about plans to revive military courts in Taiwan

Further information about emerging plans to amend the Military Trial Act and revive military courts in Taiwan can be found here. Excerpt:

“The government would also make major revisions to the part of the previous military court system that was widely criticized and inconsistent with the Constitution. Once reinstated, the military court should be a system allowing fair trials, protecting human rights with due processes and fulfilling the requirements in the constitution, while maintaining order and discipline in the military. Professionals in the military trial system should receive training and adjudicate independently,” [spokesperson Michelle] Lee said.

Asked about the difference in penalties that would be imposed on retired military personnel and those on active duty, Lee said that they would undergo different trial procedures, adding that judges would decide the types of criminal trials that a person should undergo based on facts.

Contradictions in rulings between the military and civilian courts could be avoided through investigation of evidence and the three levels of the court system, she said.

Finnish court convicts Russian national of war crimes committed in Ukraine

Translation of article appearing in Le Monde, 14 March 2025, by Anne-Françoise Hivert.

“The conviction of a Russian neo-Nazi in Finland for war crimes committed in Ukraine, a trial that could set a precedent : Vojislav Torden, leader of a paramilitary group, was sentenced to life imprisonment for crimes committed in the separatist region of Donbass in September 2014.

“By Anne-Françoise Hivert (Malmö, Sweden), regional correspondent)

“His trial began in December 2024. On Friday, March 14, Vojislav Torden, born Ian Petrovski, was sentenced to life imprisonment by the Helsinki District Court. Accused of being a leader of the neo-Nazi paramilitary group Rusich, the 38-year-old Russian was found guilty of four war crimes committed near Luhansk, in the Donbass province of eastern Ukraine, in 2014.

“In Kyiv, the Ukrainian Prosecutor General's Office welcomed the court's decision, which "marks a key step in the fight against impunity for perpetrators of serious violations of international humanitarian law." Unsurprisingly, the Russian Embassy in Finland, for its part, denounced the "bias of the Helsinki court, which handed down a clearly politicized sentence against a Russian citizen."

“The acts alleged against Vojislav Torden took place on September 5, 2014, in the separatist region of Luhansk, where Ukrainian soldiers from the Aidar battalion were ambushed at a checkpoint by several pro-Russian paramilitary groups. Leading them to believe that they belonged to Ukrainian forces, the separatists allowed the convoy, made up of a truck and a car carrying 26 Ukrainian soldiers, to advance before opening fire. Twenty-two soldiers were killed and four wounded.

“Although the Helsinki court ruled that "the evidence did not establish with certainty that the Rusich group was solely responsible for the ambush," Torden was found guilty of the four other charges against him. Notably, he was convicted of executing a Ukrainian soldier who was wounded in the attack and authorizing the mutilation of another, who died from his injuries. His men had carved their group's symbol into his cheek.

Chief Judge of U.S. Court of Military Commission Review on the politicization of military justice

Col. (ret.) Lisa Schenck, who is Chief Judge of the U.S. Court of Military Commission Review, writes here in Stars and Stripes that "politicization of the military has a long history."

Our military and military justice system should not be used as a tool to score political points. Any changes to military policy going forward should be based on an educated, measured approach rather than hasty reactions to biased media coverage and false perceptions. Our service members deserve better.

An opening salvo in a Hegsethian effort to repeal the Gillibrand legislation? 

The floor is open. Real names only, please, for comments.

State military justice (Nevada)

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.)

Would you mind being more specific, colonel?

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. 

On Taiwan's impending revival of military courts

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.

The pause that doesn't refresh

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.

What's up at India's Armed Forces Tribunal

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:

• Establishing streamlined procedures to reduce case disposal timelines, particularly for court-martial appeals.
• Advocating for the creation of additional courts at the Principal Bench in New Delhi and the Regional Bench in Chandigarh.
• Enhancing the efficiency of Circuit Benches to provide better access to justice for veterans in areas without Regional Benches.
• Promoting legal awareness among veterans ensuring the proper implementation of policies and circulars related to post-retirement benefits and pensions, in line with individual entitlements.

A major concern is the flood of government appeals.

Full circle in Taiwan?

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.

On winning the battle but (maybe) losing the war

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.

Military justice in Wisconsin

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 of Pakistan has filed a statement in the Military Courts Case. The one-page statement is not available, but Dawn's summary is mealy-mouthed and surprising:

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 and the rule of law

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.

Tempus fugit, but not in this court

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.

What will Uganda do about the Supreme Court's decision on military courts?

The Kampala Observer has this helpful roundup of the political response to the Supreme Court's recent decision barring courts-martial of civilians. Stay tuned; it looks like efforts will be made to evade the decision. Excerpt:

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 BILL

The 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.

Killing the lawyers

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.

NIMJ Statement of Concern

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

Another proposed misuse of military courts (this time from Afghanistan)

Afghanistan International reports here on a strange demand for the court-martial of a civilian official. Excerpt:

Documents obtained by Afghanistan International reveal that Mohammad Yousuf Wafa, the Taliban governor of Balkh, has filed a formal complaint with the Taliban Supreme Court, calling for a military trial of Abbas Stanekzai, the group’s deputy foreign minister.

Wafa accused Stanekzai of “disrespecting” Taliban leader Hibatullah Akhundzada and opposing his decrees.

According to an official letter from the Office of the Governor of Balkh, dated 20 January, Wafa urged the court to prosecute Stanekzai for his criticism of Akhundzada’s policies. The letter alleges that Stanekzai’s remarks, made during a religious ceremony in Khost province, amount to “opposition to the orders of the Taliban leader” and should be met with judicial action.

The complaint outlines seven instances of what Wafa describes as “indirect disrespect” and defiance of the Taliban leader. He argued that, under Islamic law, obedience to the leader is obligatory and that disobedience carries divine consequences.

In his letter, Wafa requested that the Supreme Court conduct a military trial against Stanekzai, asserting: “I demand the trial of the aforementioned [Stanekzai] and seek nothing but a Sharia-based judicial process in defence of the Islamic system. The military court can be in Balkh or any other province as deemed appropriate.”