"Double" jeopardy

Under the UCMJ, a U.S. servicemember can be prosecuted at court-martial even when a state court has tried him--there is no U.S. Constitutional double jeopardy bar--two different sovereigns. This rule allows for court-martial even if the servicemember is tried and acquitted in a state civilian trial. Hennis (CAAF) is a good example. He was tried and acquitted of murder three times in a civilian court. Years later, advances in DNA led to a court-martial, a conviction, and he is awaiting a death sentence.

If the crime is handled in federal district court, then double jeopardy applies for (only) offenses handled in federal court--a court-martial and a federal district court are the same sovereign. There are cases of prosecutions in federal court and at court-martial, where the court-martial charges were not prosecuted in federal court, even when the charges arise from the same general conduct. However, United States v. Rice, 80 M.J. 36 (C.A.A.F. 2020), presents a cautionary tale. 

There is a Memorandum of Understanding between the Department of Defense and the Department of Justice that addresses who will prosecute when both parties to the memorandum have an interest in prosecution. 

Anyway, this brings us to a recent decision from the Supreme Court of India.

The Supreme Court on Wednesday (April 15) observed that once the defence forces have elected a continuation of criminal proceedings over the disciplinary proceedings, then acquittal in a criminal proceeding would bar the subsequent initiation of the disciplinary proceedings against a defence personnel. Setting aside the Delhi High Court's Division bench judgment, a bench of Justice Dipankar Datta and Justice KV Viswanathan restored the honour of an ex-Air Force personnel, with granting consequential service benefits nearly after three decades, who was subjected to a disciplinary inquiry post-acquittal in a criminal proceeding.

A U.S. servicemember prosecuted in state or federal court, regardless of an acquittal, may be administratively removed from the service, based on that conviction or acquittal. There are several "disciplinary" processes available to a commander, Service Secretary, or the President, depending on the person's rank.

A servicemember can be processed for an administrative discharge characterized as "service" Under Other Than Honorable Conditions (OTH). He is entitled to Fifth Amendment due process through a hearing, counsel, and the opportunity to present evidence. An OTH carries both stigma and adverse employment and social consequences — this is not a Dishonorable Discharge adjudged at a court-martial, but the effects are the same. The basis is for separation is the commission of serious misconduct. Whether there is an acquittal is largely irrelevant because it's the underlying conduct that matters. Acquittal is generally not considered a finding of innocence, especially where the standard of proof in an administrative hearing is by a preponderance of the evidence.

For a convicted officer sentenced to confinement, the President can drop him from the Rolls and sever his connection to the military--even if retired at the time of the conviction. Another option may be a reduction in rank upon or in retirement. Grazioplene is  a useful example. A major general convicted of serious offenses, committed while on active duty, after retiring, was reduced to the rank of second lieutenant in retirement (the lowest officer grade). See 10 U.S.C. § 1161(b), read with 10 U.S.C. § 1167 (see para. 1161(a)(3)). Note that in Clinton v. Goldsmith, 526 U.S. 529 (1999). The Supreme Court described the drop-from-rolls action as an executive/personnel action, not part of the court-martial findings or sentence, and held that the Court of Appeals for the Armed Forces lacked jurisdiction to enjoin it under the All Writs Act.

The Supreme Court of India also "ordered the grant of a farewell for him." Interesting that the court can order a retirement ceremony and follow-on party.

Click here to download judgment:

https://www.livelaw.in/supreme-court/air-force-act-disciplinary-proceedings-cant-be-initiated-against-officer-discharged-in-criminal-trial-on-same-charge-supreme-court-530476

Annual reports of the TJAGs

All but one of last year's annual reports are now available. Caseloads continue to decline.

Project Outreach

The U.S. Air Force Court of Criminal Appeals recently made a Project Outreach visit to Syracuse University's College of Law. Here's a worthwhile report. Excerpt:

Those who participate in Project Outreach write amicus briefs and present live oral arguments, duties that help them make the leap from classroom to courtroom.

Second-year law students Ava Dussmann and Hannah Rice were part of the amicus curiae for the U.S. Government (i.e., the appellee). On track to become Air Force judge advocates, or JAGs, they found the experience eye opening. Real people. Real cases. No room for error.

“I was grateful for the opportunity to step into this world that has been a dream of mine for such a long time and work with an amazing team of students, professors and practitioners in the field,” Dussmann says. “Through this opportunity, we got to research and learn about the contours of the Uniform Code of Military Justice.”

Rice adds that sitting before three Air Force colonels, arguing a real case with classmates who might someday be her colleagues, is when “theory turned into practice.”

High and tight cut in Austrian ruling

Times change, they say. Consider this account of a recent decision of the Constitutional Court of Austria: hair requirements cannot discriminate between women and men in the armed frorces. Excerpt:

Austria’s Constitutional Court struck down the military’s strict short-hair requirement for male soldiers in Vienna on Thursday. The policy must be scrapped and replaced with a grooming code that complies with constitutional standards for both men and women. The judges concluded the contested provisions conflicted with equality protections and interfered with personal rights. 

The decision ends a longstanding mandate that male professional soldiers and conscripts keep their hair short enough not to touch the collar. The case reached the court after a soldier challenged the policy following an order that he pay a €2,200 fine for wearing his hair in a ponytail, according to BTA. The court determined that the stricter standards for men could not be justified and had to be removed as inconsistent with the principle of equal treatment.

Wikipedia has this article on "high and tight." Want to know more about military hairstyles? Check this out.

Are you asking for a friend?

Here's a useful primer on conscientious objection in the U.S. Armed Forces. Excerpt:

In a volunteer force, that requirement can be difficult to meet in practice. Service members who willingly entered military service must show that their objection is not tied to a specific conflict or circumstance, but reflects a broader opposition to all war. That distinction can be challenging to establish, particularly when the claimed change in belief arises after an entirely voluntary enlistment or in proximity to deployment.

The requirement that objections apply to “war in any form” reflects a policy judgment. Allowing selective objection would undermine the military’s ability to deploy forces consistently and could create inequities among service members.

Timing is another important limitation. While individuals can apply for conscientious objector status after entering service, late claims may be scrutinized more closely, especially if they arise around a deployment or disciplinary action. That does not automatically disqualify the claim, but it may affect how sincerity is evaluated.

Where should this case be tried? (another in a series)

South Korean military personnel are accused of having participated in a failed attempt to impose martial law. Should the case be tried in civilian court or a court-martial? The special prosecutor is appealing a transfer of the case to the military justice system. What to do? Excerpt:

According to the special counsel and other sources on Tuesday, the dedicated insurrection trial division — the 38-1st Criminal Division of the Seoul Central District Court (Presiding Judge Jang Seong-jin) — transferred the cases of three military generals and five colonels to the Central Regional Military Court. The defendants include former Army 1st Corps 2nd Armored Brigade Commander Brig. Gen. Ku Sam-hoe and former Ministry of National Defense Innovation Planning Director Brig. Gen. Bang Jeong-hwan, all facing charges including engaging in critical insurrection duties.

The court explained its reasoning for the transfer, stating, "The dedicated insurrection trial division law only stipulates exclusive jurisdiction over insurrection cases and does not contain explicit provisions regarding judicial authority." The court added, "Judicial authority over these cases lies with the military court."

The special counsel team said Tuesday, "We have requested the Ministry of National Defense to refer the cases to the insurrection special counsel under Articles 7(1) and 7(2) of the Insurrection Special Counsel Act, so that the dedicated insurrection trial division of the Seoul Central District Court can hear them for swift and efficient prosecution."

Memo to Spanish Army sergeants: do not abuse your subordinates

Thus spake the Military Chamber of the Spanish Supreme court in this case. Excerpt from the news account:

The first comment for which he was convicted occurred at the end of a shooting exercise, when the sergeant told the soldier, "Get in the truck, your comrades are going to give you a bukkake ." The second incident took place after the soldier had shaved the back of her neck and her superior asked her "if she had become a lesbian and if she was now using dildos."

HH Judge Jeff Blackett, “The legality of the use of armed force against Iran”

In a recent post, HHJ Jeff Blackett, OBE, has commented on the lawfulness of the joint Israeli and American use of force against Iran.

The essay advances a doctrinal and normative claim about the lawfulness of the use of force against Iran. Doctrinally, the argument is that the United States and Israel could lawfully resort to force on two distinct bases: first, self-defense under Article 51 of the U.N. Charter beginning on February 28, 2026; and second, Security Council authorization following the adoption of Resolution 2817 on March 11, 2026. Normatively, it contends that the Charter should not be interpreted through an unduly narrow, historically fixed reading that fails to account for contemporary threats such as proxy warfare, transnational terrorism, and nuclear proliferation.

The essay frames the Article 51 argument around three asserted predicates. For Israel, it points to Iranian support for armed attacks by Hamas, Hezbollah, and the Houthis. For the United States, he relies on Iran-sponsored attacks against Americans and U.S. facilities. For both states, it adds Iran’s alleged continued pursuit of nuclear weapons, coupled with openly hostile rhetoric toward the United States and Israel. On this view, Iran’s conduct satisfies the threshold for self-defense not merely through direct state action, but also through substantial involvement in proxy violence and through the scale of the danger posed by a developing nuclear capability.

The essay then places considerable weight on Resolution 2817, which we should read as a resolution condemning Iranian attacks on neighboring Gulf states, threats to close the Strait of Hormuz, and affirming the inherent right of individual and collective self-defense. The essay further suggests that the absence of Security Council condemnation of prior U.S. and Israeli actions implies retrospective validation and furnishes a legal basis for continued or broader multinational action. That is a notably expansive reading of the resolution’s legal effect, and it is central to the claim that force was lawful both before and after March 11.

The major theme is an institutional critique. The argument goes that the Charter’s collective-security design has not functioned as intended because the veto has often impeded rather than enabled peace enforcement. There is emphasis on the failure of the Military Staff Committee and the collapse of the Charter’s expectation that member states would maintain forces available for rapid U.N. action. These structural failures help explain why states have increasingly relied on self-defense rationales rather than awaiting Security Council consensus. We, therefore, are presented with contemporary law on the use of force as a product not only of treaty text, but also of state practice developing in response to institutional paralysis.

The legal analysis of self-defense relies heavily on the evolution of “armed attack” and “imminence.” The International Court of Justice’s reasoning in Nicaragua supports the proposition that a state may commit an armed attack through proxies, irregulars, or substantial involvement with non-state actors. Also, post-9/11 practice argues that terrorist attacks can trigger Article 51. From there, the essay endorses an expanded conception of anticipatory self-defense, drawing on the Caroline formula but arguing that imminence should now be assessed not only temporally, but also by reference to the gravity of the threatened harm, the adversary’s capabilities, and the nature of the potential attack.

At the same time, the essay expressly limits the scope of its intervention. While the legality of resort to force is addressed, how hostilities are conducted is not; for example, even a lawful initial use of force does not immunize a state from later violations of the law of armed conflict. In sum, the essay offers a modernization thesis: Article 51 must evolve through state practice to remain operationally relevant in an era defined by proxy violence, terrorism, and existential strategic threats.

Comment on Convoluted Paths

"ON DAY NUMBER 1, EVERYONE ASSOCIATED WITH A CASE SHOULD KNOW WHAT DAY WILL BE NUMBER 120."

United States v. Carlisle, 25 M.J. 426, 428 (C.M.A. 1988); see also United States v. Wilson, 72 M.J. 347, 358 (C.A.A.F. 2013) (Cox, S.J., dissenting).

A court martial stayed for delay - a convoluted path

Last Wednesday, the Court Martial Appeal Court of Canada (CMAC) upheld a stay of prosecution for delay.  While this judgment is unlikely to have a marked impact on jurisprudence in Canadian military law, it may impact the manner in which the Canadian Military Prosecution Service (CMPS) governs itself. 

In R v Jacques, 2026 CMAC 3, Chief Justice Mary Gleason (on behalf of a unanimous bench) dismissed both the appeal by the Director of Military Prosecutions (DMP) - on behalf of the Minister - and the cross-appeal by Major Jacques (retired).

And it is illustrative that Major Jacques was still serving when the process began, but was retired by the time that the appeal was heard.

This matter has a relatively long history.  It is, perhaps, not as long as some well-aged grievances in the Canadian Forces grievance process, but the judgment of the CMAC marks the (likely) end of a process that has taken nearly 7 years.
 
This judgment concerns the application of the framework established by the Supreme Court of Canada (SCC) under R v Jordan, 2016 SCC 27 (the "Jordan framework") as applied at court martial.  This framework is used to assist in determining if an accused has been denied trial within a reasonable amount of time, thereby contravening the accused right under s 11(b) of the Canadian Charter of Rights and Freedoms (Charter).

Hazing in Argentina

    Michael Verón, 26 years of age, became a victim of a "welcome" ritual on his military base in the province of Misiones in Argentina, where he became a paraplegic and lost consciousness for 21 days.  The event occurred on June 8, 1922, when the victim, who suffered a serious, irreversible, spinal cord injury after having been subjected to abusive and humiliating practices known as the "promotion baptism," could no longer feel his extremities or move.  The "baptism" involved the victim taking on the expense of making a barbecue for everyone, and then forcing him to drink too much alcohol and food, and then to fling himself repeatedly into a swimming pool with very little water.

In this context, Verón, when speaking in public, said that he could no longer remember whether he fell into the pool, or was pushed or whether they threw him into it.  His injuries occurred in the swimming pool when he was obliged to throw himself into the pool for the third time.  Each activity was ordered as part of the ritual. He said that there has to be a final stop to these brutal rituals within the military.

A total of 25 members of the base were submitted to the Disciplinary Council of the Army. The investigation ended with 15 members of the military getting light sanctions, another 7 received 60 days  arrest and 4 were removed from their posts, having been held to have principal responsibility for the ritual.

A similar case occurred with the death of Matías Chirino (22) on June 18, 2025.  He died of bronchial aspiration during a similar ritual and the members of the military responsible were tried for homicide.  The federal court has also taken up the case of Verón, but since he is not dead those responsible are being tried for responsibility for the victim's "serious injuries."  The military has assumed charge of his medical care and four years later he is still unable to move or feel his legs.

Stiffer penalties coming in Taiwan

Taiwan is considering stiffer penalties for certain national security offenses by military personnel. Reporting here from the Taipei Times. Excerpt:

The Ministry of National Defense is addressing Taiwan’s light sentences for national security contraventions through legal reforms and by improving internal military security, while pushing amendments to the Military Trial Act, Minister of National Defense Wellington Koo said today.

Koo’s statement comes after the Control Yuan yesterday urged stricter punishments for military personnel convicted of contravening national security regulations by spying for China, saying that the average sentence is 12.7 times shorter than in other democratic countries.

The ministry has proposed amendments to the Criminal Code of the Armed Forces increasing the penalties for expressing “loyalty” to the enemy and for “conspiracy” and “premeditation,” Koo said.

2026 CAAF CLE and training program

This year's USCAAF CLE and Training Program will be held at Antonin Scalia Law School in Arlington, VA, on May 13-14. The program looks both interesting and worthwhile. You can find it here. Registration information can be found here.

A note on the prosecution of civilians by DRC military courts

Legality of Prosecutions Brought by the Military Prosecutors' Office Against Civilians in the DRC: Analysis in Light of the Constitutional Principle of Legality by François Lukangila N'subi and Jules Mupenda Kangamina can be downloaded here. Abstract:

This article examines the legality of prosecutions initiated by the military auditor against civilians in the Democratic Republic of Congo in light of the constitutional principle of legality and the right to one's natural judge. It demonstrates that, under the Constitution and the Military Judicial Code, military courts are, in principle, not competent to prosecute civilians, except in narrowly defined and legally established exceptions.

Through a legal, doctrinal, and jurisprudential analysis, the study highlights recurring abuses in judicial practice, where civilians are prosecuted by military prosecutors for ordinary criminal offenses that clearly fall under the jurisdiction of civil courts. The article emphasizes that the military prosecutor's office is a specialized institution primarily tasked with maintaining discipline within the armed forces and related services.

The study further exposes the illegality of certain practices involving the collection of judicial fees by military magistrates, particularly transactional fines and bail for provisional release, which are explicitly prohibited by military law. Such practices constitute a violation of the principle of equality before the law and may give rise to disciplinary, civil, and criminal liability. Ultimately, the article calls for strict enforcement of constitutional and legal provisions governing military jurisdiction, in order to safeguard fundamental rights, ensure legal certainty, and strengthen the rule of law in the Democratic Republic of Congo.

Sde Teiman (another in a series)

Michael Sfard writes here for +972 about the dénouement of the Sde Teiman affair in Israel. "The truth is that the reason for abandoning the facade of law enforcement is not evidentiary difficulties or harm to procedural fairness, but rather a change in the constellation of pressures applied to the Israeli legal system as a whole."

A habit Pakistan cannot break

Pakistan is now subjecting civilians to military coufrt trials in the Gilgit-Baltistan autonomous province. Details here. News18 reports:

The Inspector General of Police (IGP) for the region has formally declared that any protesters challenging the presence or authority of the Pakistan Army will now face the jurisdiction of military tribunals. This directive effectively criminalises legitimate dissent, turning political protest into an “army crime" and sparking a wave of legal and international outrage.

The insecurity of the current administration has been laid bare by the targeting of high-profile local figures. Among those now facing the weight of this military-legal machinery is Ehsan Ali, a 70-year-old veteran lawyer and activist. Ali was arrested following a speech delivered during an Iftar gathering—a traditional religious and social event—proving that the state now views even community dialogue as a direct threat to its stability. By branding a septuagenarian lawyer a military-grade threat, Rawalpindi is effectively imposing a form of “martial law by stealth" on a territory that Pakistan itself technically classifies as disputed, yet governs with colonial-era rigidity.

Who's on first?

Remember how the Supreme Court of Uganda invalidated the trial of civilians by court-martial. Now, a year later, numerous cases remain in limbo. Details here. Excerpt:

Adding complexity, the UPDF Amendment Act 2025 reintroduced provisions allowing military courts to handle cases under exceptional circumstances.

While the government argues the amendments improve transparency and independence within military courts, critics contend they contradict the Supreme Court ruling and risk expanding military jurisdiction over civilians.

For detainees caught in this legal limbo, the consequences are severe. Many remain incarcerated without clear legal status, as military courts no longer have jurisdiction but civilian courts have not yet assumed responsibility.

Legal experts warn that urgent intervention is required, either through legislative clarification, administrative coordination, or clear directives from the Judiciary and DPP, to prevent further erosion of public trust in Uganda’s justice system.

Can India's Armed Forces Tribunal hold the government in contempt for disobeying final orders?

Not if you ask the Delhi High Court. In this RawLaw article, the author summarizes (and provides a. downloaded copy of) the High Court's Feb. 23, 2026 decision in Union of India v. Dev. Excerpt from the article:

This ruling significantly clarifies the scope of contempt jurisdiction under the Armed Forces Tribunal Act. It prevents judicial overreach while safeguarding enforceability of tribunal orders.

The decision underscores that statutory tribunals cannot assume powers not conferred by Parliament. At the same time, it ensures that members of the Armed Forces are not left remediless, as High Courts retain contempt jurisdiction to enforce AFT orders.

Right to counsel of choice in Russian Army

There has been an important appellate ruling in a Russian court-martial case. A soldier who was accused of fraud and injuring himselfr (with mines!) had his conviction overturned because the trial proceeded without his chosen defense counsel. A lawyer provided by the army defended him instead. OC Media's Elizaveta Chukharova writes that "[t]he appellate court overturned the verdict, announced on 12 November 2025, citing procedural violations: [Nikolai] Khozumov had not been allowed to participate in the hearing with a lawyer of his choosing. Khozumov has been sent back to pre-trial detention awaiting a new trial."

The appellate court later overturned the verdict, citing a violation of the right to defence. The ruling states that the court refused to postpone the hearing despite the defendant’s relatives having retained a lawyer who was unable to attend at the scheduled time. Instead, the court appointed a state lawyer. The appellate court found this to be a procedural violation and ordered a retrial.

The appellate ruling also outlines other aspects of the case. In particular, the defence insisted on changing the preventive measure of pre-trial detention for Khozumov. In the appeal, the lawyer argued that the court of first instance had not presented sufficient evidence that the defendant might try to evade justice or obstruct the investigation.

The defence pointed to the suspect’s permanent residence, employment, positive character references, and lack of a criminal record. The lawyer also stated that the foreign trips cited by the court were related to business activities. However, the appellate court found these arguments unconvincing and upheld the measure of pre-trial detention.

No word yet on the outcome of the retrial. 

Giving reasons

Volume 63, No. 2 (2025) of the Military Law and the Law of War Review includes an interesting article by Liron A. Libman and Amichai Cohen titled Why do we enforce the law against IHL violations? Reason-giving in Israeli court-martial judgments. Abstract:

This study investigates the perceived purpose of enforcing International Humanitarian Law (IHL, also known as the Laws of Armed Conflict) by examining the underlying values cited in judicial reasoning. While traditional accounts of IHL’s development emphasize humanitarianism, critical theories point to state self-interest, such as the need to control emerging huge national armies in the second half of the 19th century.

To test how these theories are reflected in practice, we conducted a systematic content analysis of 60 years of Israeli courts martial judgments. We analysed how frequently different values (e.g., humanitarian concerns vs. force control) were invoked across different offence categories and over time.

Our findings reveal a significant distinction: humanitarian values are prominent in rulings on offences against life and physical integrity, whereas concerns for controlling military forces dominate property offence cases like pillage. This may imply that neither military self-interest nor humanitarianism can exclusively explain IHL rules and their enforcement. Furthermore, the values cited changed significantly over time, and explicit references to international law were scarce. These trends suggest judges adapt their reasoning to the prevailing Zeitgeist of judicial culture and populist sentiment. This methodology offers a promising approach for uncovering the hidden interests shaping IHL’s application.

TikTok military justice

A military judge in Somalia has become a TikTok star, as reported in this video. As the video notes, however, Human Rights Watch has questioned the Somalian military courts' practice of trying civilians suspected of terrorism.

Tragic fallout In Israeli alleged detainee abuse case

U.S. Supreme Court Justice Justice Benjamin N. Cardozo once noted that, "[t]he criminal goes free when the constable has blundered." 

In Israel, it seems that much more than a constable's blunder recently led to the dismissal of war crimes charges in the most controversial attempt to hold soldiers accountable for alleged war crimes during the Israel v. Gaza War. To wit, "Israel's military on Thursday said it was dropping charges against five soldiers accused of beating and sexually abusing a Palestinian detainee in an alleged assault partially caught on camera."

Prior to this dismissal, there was extraordinary public pressure (plus that from hardliners within the Netanyahu government and seemingly the prime minister himself) to ignore and thereby condone the disturbing detainee sexual abuse allegedly committed -- and captured on camera -- by five IDF troops on Palestinian prisoners at Sde Teiman prison. 

During this uproar, in response to pressure to ignore Israel's obligations under the law of war to investigate and hold soldiers accountable for war crimes, the top IDF military lawyer (MAG) leaked the video of the abuse (action she later admitted to), leading to her arrest for obstruction of justice (an Orwellian twist, given that it appears she was one of the courageous few actually pursuing justice).

Hence Cardozo's observation that the  "criminal goes free" has seemingly come to pass regarding the recent dismissal of indictments as reported here, further straining the IDF's reputation as law-abiding. This entire saga is one that demands deep attention, as it reveals dynamics that echo in the US as well as other nations, pitting those who excuse criminality by warfighters against those that understand that crimes such as detainee abuse (besides being inherently wrong) are morally corrosive to one's armed forces, and can sabotage long-term peace.

After Senator Kelly's comments on military orders

Eugene R. Fidell, Steven J. Lepper and William D. Baumgartner, Military Law on "Contemptuous Words" Should be Reformed. Just Security, 13 March 2026.

From the article.

Last month, in a scathing opinion, federal district court judge Richard J. Leon, an appointee of President George W. Bush, ordered Hegseth to cease efforts to punish Kelly for exercising the freedom of speech. Judge Leon concluded that while the speech of active duty military personnel may be constrained in certain circumstances, no such limitations exist for military retirees. In language certain to reverberate in the White House, Pentagon, and Congress, the judge silenced Hegseth for trying to silence Kelly:

Defendants respond that Senator Kelly is seeking to exempt himself from the rules of military justice that “Congress has expressly made applicable to retired servicemembers” Horsefeathers! While Congress has chosen to apply the Uniform Code of Military Justice to military retirees as well as active-duty servicemembers, that choice has little bearing on the scope of First Amendment protections for retirees. The First Amendment “is a limitation on the power of Congress,” not the other way around!

Anyone reading this ruling – including us – must now ask whether Article 88 can or should continue to extend to retired military officers.

On the one hand, it could be argued that Article 88 is too narrow because the mischief it seeks to deter can be committed by military personnel who are not commissioned. Thus, if the goal is to set a proper example for subordinates and to respect the dignity of the offices and legislative bodies protected by Article 88, one would think that warrant, noncommissioned (NCO), and petty officers – particularly senior or “staff” NCOs and petty officers (pay grades E-7 through E-10) – also ought to come within its sweep.

On the other hand, it could be argued with at least equal force that no substantial purpose is served by subjecting retired officers to the free-speech-suppressing effects of Article 88. Judge Leon pointed out that retirees “are not fully immersed in the ‘specialized society’ of the active armed forces.” He continued, “Speech from retired servicemembers—even speech opining on the lawfulness of military operations—does not threaten ‘obedience, unity, commitment, and esprit de corps’ in the same way as speech from active-duty soldiers” (emphasis in original).

Academic freedom and U.S. JAG schools

Some reports have surfaced of academic activities at U.S. JAG schools that would raise questions about academic freedom had they occurred in civilian institutions. 

First, I spoke with one officer who was urged to not pursue an academic paper topic at one of the JAG schools because the viewpoint expressed was misaligned with JAG Corps preferences. 

Next, I heard from an expert last year who was invited, then disinvited, from speaking at a JAG school, while a second speaker to the same event was not disinvited to the same event. Both had sterling qualifications. The difference was that the first had spoken out against the lawfulness of boat strikes and Venezuela and Iran invasions. The second had publicly spoken out in favor of those operations. The JAG school gave no reasons for the selective disinvite, but the circumstances indicate that it was based on viewpoints.  

Finally, a few years ago, a civil society organization I am president of, the National Institute of Military Justice, was invited, then disinvited, from an academic event at a service JAG school. Again, no reason was given for the disinvitation except that higher-ups had ordered it, leaving us to conclude that it was based on our viewpoints on certain topics that are not in lockstep with those of JAG leadership. 

Is this a First Amendment issue? Federal courts interpreting the Free Speech Clause ordinarily apply the very high standard of strict scrutiny when the government discriminates based on the content of speech or the viewpoint of the speaker. In the examples above, the circumstantial evidence seems strong that the government was discriminating based on the viewpoints of the speakers. 

However, an exception to the high scrutiny given to content-based restrictions comes from the government speech doctrine. If the government is merely expressing its own views (government speech), then there is no restriction on speech at all, so strict scrutiny is avoided. Courts could find that the government speech doctrine applies to service JAG schools' selections of which speakers are heard and which topics their government students can write about. And because the JAG schools are military schools, courts could also draw from precedents such as Parker v. Levy that are more deferential to speech restrictions in military contexts.

While some viewpoint plasticity can be expected in the JAG schools from adminisration to administration as priorities change, have the JAG schools now gone too far? 

There could be an issue with accrediting bodies. The American Bar Association has standards requiring its member institutions to adhere to standards of academic freedom, with the most pronounced exceptions available only for religious institutions. At least one service JAG school, the Army's in Charlottesville, Virginia, is ABA-accredited. 

Another argument for JAG schools to embrace academic freedom is that it is in the self-interest of JAGs and the commanders who attend JAG courses to be exposed to robust debate over current national security issues of the day, and not just conform instruction to the political preferences of the current administration. When senior lawyers and officials in the George W. Bush administration unlawfully authorized and condoned detainee torture, JAGs were among those who courageously resisted. Had the service JAG schools not been able to openly debate these issues as they were occurring, this principled resistance may have been less likely to surface. 

A policy of academic freedom would mean that on several of the most pressing issues the U.S. military faces today--the use of National Guard forces in U.S. cities, Article 2(4) of the UN Charter and the crime of aggression, the weight and meaning that should be afforded to Office of Legal Counsel opinions--JAG schools could deepen their students' appreciation of the issues by seeing them fully, not just receiving one side's gloss. To limit speakers and paper-writers to only expressing only pro-administration viewpoints may ultimately leave JAGs less prepared to perform their duties. 

Price-gouging in Egypt

Under the category of "now I've heard everything," Egypt is considering giving military courts jurisdiction over civilian price-gouging. Of course.

Excerpt:

Egypt President Abdel Fattah al-Sisi said on Friday he has instructed officials to study the possibility of referring those who manipulate commodity prices to military courts, describing the current economic climate as a “state of near-emergency.” 

Speaking during an Iftar event organised by the Egyptian Military Academy, Sisi warned against the exploitation of global and regional circumstances to raise prices or manipulate the needs of the public. “Rest assured that, by the grace of God, we are fine,” the president said, while urging citizens to continue exercising responsibility and understanding based on study and facts.

An afterword about the Fat Leonard case

Rear Admiral Bruce Loveless, USN (Ret) (and now Ph.D.), has written this gripping account of his experience as one of the erstwhile defendants in the ultimately cratered "Fat Leonard" case. This is essential reading from a perspective one rarely sees.

"It Takes Two to Tango"

Who knew?

But that's in the title of a recent University of Amsterdam doctoral dissertation by Bas van Hoek. The full title is It Takes Two to Tango: A Legal Analysis of the Dual Oversight Regime Governing the Use of Force by the Netherlands Armed Forces. You can find it online here. The author offers five recommendations:

The assessment of the legal oversight system against the international legal framework shows that parts of the system are inadequately designed, meaning the system’s effectiveness cannot be sufficiently guaranteed. To improve the effectiveness of the legal oversight system with respect to the use of force by the Netherlands armed forces so that it conforms more adequately to the rule of law, considering the obligations and standards set by international law, the following recommendations can be put forth.

• Develop a vision about accountability, in the meaning of legal oversight, in military operations and link it to the concept of command and control. Communicate this vision in education and training, particularly to officers and non-commissioned officers, and set it down in writing. The notion of accountability deserves at least a reintroduction in military doctrine with an explanation what is meant by this.
• Consider revising the policy within the MOD and the PPS of investigating every incident involving civilian casualties. Develop a policy that clarifies the interplay between LOAC and HRL as regards the substantive norms on the use of force and its impact on the obligation to investigate the use of force. This policy should also address how this affects the use of both the military accountability mechanism and the law enforcement mechanism.
• Consider developing a basis in law for the fact-finding investigation conducted by the RMC under the authority of the PPS. Doing so involves establishing rules on the purpose Chapter 7: General conclusions 171 of the investigation, the use of coercive powers, the position of military personnel under investigation, the position of victims or next-of-kin, and the relationship with disciplinary and criminal investigations.
• Examine whether the concept of ‘just culture’ can be applied to the military accountability regime.
• Develop a protocol between the MOD and the PPS on coordination and cooperation in investigations into the use of force.

Divergent data in India

What gives withv the caseload data for India's Armed Forces Tribunal. Is the backlog the nearly 38,000 cases reported by the court or the 6904 cases reported by the government in Parliament? The Wire has the story here. Excerpt:

Commonwealth Human Rights Initiative’s  (CHRI) director and RTI activist Venkatesh Nayak found in responses to his queries to the AFT that if total pending cases across all benches and over two decades were added up, the number reaches 37,864. This figure is not just substantially higher than what the Union government declared but also higher than the AFT’s own declaration just a few months earlier, in another set of RTI responses to Nayak.

The mismatch between the figures of the Union government and the AFT came to light in December 2025, when the tribunal’s Central Public Information Officer, in RTI responses to Nayak, said the pendency was 27,962 cases as of September, 2025. The Wire had first reported the inconsistencies in AFT’s pendency figures, including the mismatch with the figures provided in the government’s reply in parliament. In fact, the report showed that parliament had recorded 18,826 pending cases in February 2021 and that this figure steadily rose after this date.

End of a 13-year ordeal

María Serrano, a member of Spain's Civil Guard has been acquitted in what is now the final phase of a 13-year legal whistleblowing ordeal. The decision comes when a senior officer pursued charges against her as a private party after the prosecution decided not to press the case. Details in this report  Excerpt:

The final ruling thus brings to a close a long process that has affected both her professional career and her personal life. During these years, Serrano reported suffering reprisals, including disciplinary proceedings, transfers, and loss of her specialization within the Seprona (Nature Protection Service). She even lost the housing assigned to her at the Montequinto barracks and endured extended periods of medical leave.

Not military justice, but . . . (another in the series)

The UK's Independent Inquiry Relating to Afghanistan has a user-friendly website here. Hats off to the Inquiry for going the extra mile on transparency, including translation into Dari and Pashto. "On 15 December 2022, the Government established an independent statutory inquiry to investigate matters arising from the deployment of British Special Forces to Afghanistan between mid-2010 and mid-2013. Lord Justice Sir Charles Haddon-Cave chairs the Inquiry."

Decaying legal culture in DoD

Prof. Jack Goldsmith writes here about the "decaying legal culture" in the Defense Department. Excerpt:

Secretary of Defense Pete Hegseth came to office openly hostile to his department’s legal culture and determined to change it. He is succeeding. One result is persistent lawbreaking by the Department of Defense in derogation of the rule-of-law culture that the department has fostered since Vietnam. The courts, which have done an admirable job of checking the administration’s legal violations, cannot help here, since these matters are beyond judicial review. That leaves Congress, which, largely due to Republican control, has been sadly passive in Trump 2.0. When the reckoning comes, the Armed Services Committees in Congress will have a lot of explaining to do.

Can a state regulate practice in veterans cases?

Held, Louisiana's effort to cap fees and impose other requirements is both unconstitutional and preempted by federal law. The opinion of Judge Brian A. Jackson in Military Veterans Advocacy, Inc v. Landry, Civil No. 24-446 (M.D. La. Feb. 6, 2026), can be found here. Military.com has this summary.

Rotting from within

While Russia has turned a blind eye (with exceedingly rare exception) to widespread war crimes committed by its troops during its war against Ukraine, it apparently is now taking a stronger position at least for some, some of the time, regarding the corruption rotting its armed forces from within. Here's a recent detailed NYT piece on the Russian military fraud prosecution of a colonel whose unit is accused by Ukraine of numerous war crimes in Bucha at the beginning of the full-scale invasion. The colonel is apparently pleading guilty to fraud, bribery and weapons trafficking charges, though he protests that the charges are retaliation for his video "accusing a former Ministry of Defense official of incompetent leadership and forcing troops into mass-casualty missions known as 'meat grinder' assaults." 

According to the Times, "[a]t least 12 high-ranking Russian military officials and generals, as well as dozens of lower-ranking officers, have been indicted on corruption charges in the past couple of years."  

For more on the horror of serving in the Russian military today and those "meat grinder" assaults  mentioned by the above-mentioned colonel, see this excellent and disturbing piece regarding Russian brutality vis a vis its own. I do believe how military treats its own has a correlation to how it treats its enemies and civilians .... brutality within encourages brutality to the external world.

Comparison of the Indonesian Military Legal System with the Malaysian Military Legal System

This post's title is the title of an article by Anis Fauzan, Walidul Halim, and Irwan Triadi, in 2 J. of Law Perspectives Rev. 39 (2026). Abstract:

This study addresses the problem of how differences in legal traditions influence the structure and enforcement of military law in Indonesia and Malaysia. It aims to examine and compare the legal foundations, institutional structures of military courts, and the characteristics of law enforcement applied to members of the armed forces in both countries. The research employs a normative juridical method with a comparative law approach by analyzing statutory regulations, particularly Law Number 31 of 1997 on Military Courts in Indonesia and the Armed Forces Act 1972 (Act 77) in Malaysia, as well as relevant legal literature and doctrines. The findings reveal that the principal differences between the two systems derive from their respective legal traditions—Civil Law in Indonesia and Common Law in Malaysia—which shape the organization of military courts, jurisdictional design, and procedural mechanisms for adjudicating military offenses. Indonesia relies on a codified and hierarchical military judicial structure, whereas Malaysia integrates common law principles within its court-martial system. Nevertheless, both systems share a fundamental objective, namely maintaining discipline, hierarchy, and command effectiveness within military institutions. In conclusion, despite structural and procedural distinctions, the military legal systems of Indonesia and Malaysia pursue similar normative goals. This study contributes to the development of comparative military law and offers a reference for strengthening military legal reform in Indonesia in alignment with the principles of the rule of law, military professionalism, and legal supremacy.

Wartime military courts proposed for Estonia

Some Estonian parliamentarians with military backgrounds are pressing to establish military courts for use in wartime, according to this report. Excerpt:

Under the plan, the national defense court would begin operating during a state of war. It would handle, under expedited procedure, all kinds of defense-related matters, including failure to report for mobilization, desertion, looting or the requisitioning of property.

Daimar Liiv, a member of the legal section of the Assembly of Reserve Officers and a judge at Tallinn Administrative Court, explained that the peacetime court system is too slow and thorough to resolve situations that arise during wartime.

"In wartime conditions, we cannot apply the same system of legal protection that we currently use through standard procedures. Decisions must be made quickly and judges must be prepared — not only morally, but also in terms of skills — to prepare such decisions. This is my professional assessment: judges currently operate in peacetime mode and cannot envision how this work should function under wartime conditions or whether the legislation is suitable," Liiv said.

Military Police "rushed to judgment" - Hiestand Public Interest Investigation

Last week, on 12 February 2026, the Chair of the Military Police Complaints Commission (MPCC) released two reports relating to errors and wrongdoing by Canada's military police in the investigation of sexual assault allegations against an officer, Major Cristian Hiestand, who subsequent to his arrest in December 2021, tragically committed suicide.  These reports were the products of two distinct, yet related, Public Interest Investigations (PII) conducted by the MPCC.

• The "Hiestand PII" (MPCC‑2022‑017 and MPCC‑2022‑041)
• The "Warsame PII" (MPCC-043)

The "Hiestand PII" arose from complaints submitted by Major Hiestand's family in Spring and Summer 2022.  Initially, the MPCC declined to conduct a PII.  However, on 21 November 2022, following reporting by Murray Brewster of the Canadian Broadcasting Corporation (CBC) in September 2022, the (then) Acting Chair of the MPCC reversed her earlier decision and directed that a PII would be conducted.  However, the PII was commenced in earnest only after the Canadian Forces Provost Marshal's (CFPM) Professional Standards (PS) section completed its own internal investigation.

The Hiestand complaints focused on the conduct of the Canadian Forces National Investigation Service (CFNIS), including their interviews (or failure to interview) witnesses and the arrest of Major Hiestand.

Congratulations, Dr. Pascal Levesque

This month, the Chair of Canada's Military Police Complaints Commission (MPCC), Tammy Tremblay, announced that our very own friend and colleague, Dr. Pascal Levesque, has joined the MPCC as a Part-Time Member.  As many contributors and readers of the Global Military Justice Reform Blog are likely aware, Dr. Levesque is an accomplished scholar and lawyer.  He served as a legal officer in the Canadian Forces for 15 years, serving in a number of roles.  His LLM thesis examined the celerity of Canada's court martial system and his PhD was published as: Frontline Justice: The Evolution and Reform of Summary Trials in the Canadian Armed Forces (Montreal: McGill-Queen’s University Press, 2020).

Dr. Levesque has practiced law for over 30 years and served as chair of the Advisory Committee on Criminal Law of the Barreau du Québec from 2017 to 2020.  Dr. Levesque will bring his knowledge, skill, and integrity to the MPCC, further reinforcing a statutory tribunal created to help ensure integrity and competence in military policing in Canada.

His bio with the MPCC can be found here: 
Pascal Lévesque, Ph.D.

Congratulations, Pascal!

DoD's "war" on good law schools

Above the Law reports here on the Defense Department's war on America's good law schools. Too woke? Excerpt:

Having watched the Department of Justice lose scores of career prosecutors and reduce itself to taking applications over DMs and bringing dance photographers out of retirement, the Department of Defense decided to get in on the action by cutting future military lawyers off from the country’s best law schools. You could say the DOD saw the DOJ become a national laughing stock of legal incompetence and said, “hold my beer,” except you can’t imagine Secretary of Defense Pete Hegseth putting down a beer that easily. Continuing the DOD’s performative anti-intellectual purge — which began with its public break with Harvard University — the Pentagon has informed active-duty service members that over 30 elite universities are now deemed “moderate to high risk” and therefore ineligible for DOD tuition assistance programs.

Not military justice, but . . .

A panel of the U.S. Court of Appeals for the Fourth Circuit today upheld the Defense Department's prohibition on inducting applicants who test HIV-positive. Judge Paul V. Niemeyer wrote for a unanimous court in Wilkins v. Hegseth, No. 24-2079. Excerpt:

[S]ince the Military’s categorical prohibition on the entry of HIV-positive individuals into the Military passes rational basis review in several respects, such agency action is not arbitrary and capricious so as to violate the APA.  The Military’s policy to deny HIV-infected persons from joining the Military well satisfies the rational basis review under the equal protection component of the Due Process Clause, particularly in the military context, when the Military is making a judgment about raising and supporting armies. . . . 

Improper argument

In United States v. Matti, No. 25-0148 (C.A.A.F. Feb. 27, 2026) (per Maggs, J.), the U.S. Court of Appeals for the Armed Forces attached the following Appendix concerning improper argument by counsel:

Because of the persistent problem of trial counsel using improper arguments during courts-martial, the Court offers the following non-exhaustive compendium of instances when this Court has identified areas of concern. Perhaps it will provide some helpful guidance regarding the types of improper argument that trial counsel must avoid, that defense counsel should consider objecting to, and that military judges ought to monitor.

Improper Arguments in General

1. Expressing Personal Beliefs and Opinions. “It is improper for a trial counsel to interject herself into the proceedings by expressing a ‘personal belief or opinion as to the truth or falsity of any testimony or evidence.’ ” United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005) (quoting United States v. Horn, 9 M.J. 429, 430 (C.M.A. 1980)). This is because “ ‘when the prosecutor conveys to the [members] his personal view that a witness spoke the truth, it may be difficult for them to ignore his views, however biased and baseless they may in fact be.’ ” Id. at 180-81 (quoting United States v. Modica, 663 F.2d 1173, 1178-79 (2d Cir. 1981)).

2. Engaging in Improper Vouching. Vouching may “occur[] when the trial counsel ‘plac[es] the prestige of the government behind a witness through personal assurances of the witness’s veracity,’ ” including “the use of personal pronouns in connection with assertions that a witness was correct or to be believed.” Id. at 180 (second alteration in original) (quoting United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993)); see also United States v. Voorhees, 79 M.J. 5, 12 (C.A.A.F. 2019); Horn, 9 M.J. at 429-30 (improper to use phrase “I think” when “analyzing the evidence of record . . . and in suggesting what weight ought to be given by the court to various evidence” as such “opinions are merely a form of unsworn, unchecked testimony and tend to exploit the influence of his office” (citation modified)); United States v. Knickerbocker, 2 M.J. 128, 129 (C.M.A. 1977) (describing the following as “impermissible argument”: “ ‘I think that having listened to all of the evidence in this case, there is very little doubt, in fact in my mind there is no doubt whatsoever, that the man sitting over there at the defendant’s table . . . was in fact the individual who was involved in this matter as a principal.’ ”).

3. Offering Personal Views. Trial counsel cannot make “ ‘substantive commentary on the truth or falsity of testimony or evidence’ ” or “ ‘comment[] on the defendant’s guilt and offer[] unsolicited personal views on the evidence.’ ” Fletcher, 62 M.J. at 180 (first quoting United States v. Washington, 263 F. Supp. 2d 413, 431 (D. Conn. 2003); and then quoting United States v. Young, 470 U.S. 1, 7 (1985)). Such comments “may confuse the [members] and lead them to believe that the issue is whether or not the prosecutor is truthful instead of whether the evidence is to be believed.” Id. at 181 (citing Modica, 663 F.2d at 1181).

4. Referring to Matters Outside the Record. When trial counsel departs from record evidence, “an accused’s right of confrontation [is] abridged, and the opportunity to impeach the source [is] denied.” United States v. Clifton, 15 M.J. 26, 29 (C.M.A. 1983). This misconduct manifests in a variety of scenarios. See, e.g., United States v. Norwood, 81 M.J. 12, 21 (C.A.A.F. 2021) (“Arguing an inflammatory hypothetical scenario with no basis in evidence amounts to improper argument . . . .”); Clifton, 15 M.J. at 30 (critiquing “discours[ing] on the practices and fantasies of rapists, and . . . the attitudes of unrelated rape victims”).

5. Commenting on the Accused’s Invocation of Constitutional Rights. “[I]t is improper for a prosecutor to ask the court members to infer guilt because an accused has exercised his constitutional rights.” United States v. Carpenter, 51 M.J. 393, 393 (C.A.A.F. 1999).

Contemptuous words prosecution in Manila

A Philippine Army officer will face a general court-martial under the country's equivalent to Article 88 of the Uniform Code of Military Justice. According to this account in the Manila Bulletin, Colonel Audie Mongao (left) posted on social media his withdrawal of support from President Ferdinand Marcos Jr.

Lt. Gen. Antonio Nafarette, PA commanding general, said he already approved general court martial proceedings to try Mongao for alleged violation of Articles of War 63 which penalizes “disrespect toward the President, Vice-President, Congress of the Philippines, or Secretary of National Defense.”

Article of War 63 states that any officer who uses contemptuous or disrespectful words against the President, Vice-President, the Congress of the Philippines, or Secretary of National Defense, “shall be dismissed from the service or suffer such other punishment as a court-martial may direct.”