Safeguarding the role of America's military lawyers

Protect Democracy United's Zachary T. West has written this primer -- well worth study. Excerpt:

THE JUDGE ADVOCATE GENERAL (JAG) Corps is critical to maintaining good order and discipline across the U.S. military, providing legal assistance to servicemembers and their families, and ensuring lawful combat operations. Yet this institution is facing unprecedented challenges, including the no-cause firing of the Army and Air Force’s top JAG officers and the Pentagon’s announcement that it would reassign judge advocates to serve as temporary immigration law judges and backfill vacancies in U.S. Attorney’s offices. This paper discusses the history and purpose of the JAG Corps, recent challenges to its independence and ability to serve as a trusted advisor, and how Congress can strengthen U.S. military readiness by protecting the JAG Corps from improper influence and misuse.

Juridictions militaires

A reader has asked for a link to the French Senate report cited here. Here is a working link for Italy. If any readers can find other pertinent Senate links, please add them in a comment.

Fidell and Rosenblatt on the Military Justice Review Panel

This blog's editor and Franklin Rosenblatt wrote "The Armed Forces Need the Military Justice Review Panel" in Just Security about the Pentagon's disregard of the review body required by law in favor of more secretive and malleable internal review bodies. 

Among these is defense secretary Pete Hegseth's recent announcement of an internal "special" panel reviewing military justice. The authors argue that this development

[I]s highly concerning. Rather than some new handcrafted DoD entity, it is crucial that the Military Justice Review Panel (MJRP) be restored as required under statute. Any further erosion of confidence in the country’s military justice system–for that will be the outcome of Hegseth’s internal effort–will have a profound negative impact on the U.S. military’s good order and discipline, and morale, and detract from the country’s national security. 

The authors conclude:

If the Trump administration does not reinstate the MJRP, Congress should vigorously object to the creation of Hegseth’s “special review panel” and demand that the MJRP, created by a still-in-force federal statute with a mandate to report to Congress, be revived immediately. Confidence in the country’s adherence to the rule of law and in the U.S. military justice system has never been more critical.

What's in store for DoD's military justice review?

Who even knows?, asks practitioner Cody Harnish in this video. DoD has still not released hard copy of the governing document.

Sen. Mark Kelly's case -- is there a "there" there?

Prof. Ryan Burke writes here on the case of Senstor Mark Kelly. His cconclusion:

[A]fter all the noise, we are left with the same conclusion: there is no there, there. No legal order actually at issue. No sedition. No Article 88 violation. No singular statement that can be traced to Senator Kelly as a standalone call for misconduct. Just a spliced, multi-voice video and a sprawling overreaction.

The Pentagon would do well to step out of this self-created fog and return its focus to matters that actually threaten the country. Because this is not one of them. This is, once again, much ado about nothing – the latest entry in a growing catalog of Pentagon follies that never should have escaped the cutting room floor.

Except for the suggestion that this is much ado about nothing, it's hard to disagree. But the implications of Secretary of Defense Pete Hegseth's vendetta again Sen. Kelly are far from nothing. The implications for free speech, whether by senators or retirees, are grave.

Where should this case be tried (this time it's Burkina Faso)?

There's a dispute in Burkina Faso over whether a case currently in civilian court really ought to be in the military court. Details here. Not quite sure we follow, but this is what was argued:

"In this case, you are dealing with a common law offense committed by members of the military." Secondly, the defense counsel pointed out that the events occurred during the soldiers' regular duty. "They were on a security mission at the Palace Hotel in Ouagadougou," he maintained. In light of the aforementioned elements, the legal question that arises is whether the law reserves jurisdiction over this type of case to another court.

To address this, Mr. Minoungou cited the law governing the military justice code, specifically Article 34, which stipulates, among other things, that military courts have jurisdiction over offenses committed by military personnel. "This case falls under the jurisdiction of the Military Court," he concluded. He noted that in 1994, members of the gendarmerie were not subject to the jurisdiction of the Military Court, according to Article 41 of the military justice code. Following this date, particularly with the law of July 4, 2017, Article 41 was repealed.

In 2023, the defendants' counsel continued, a law was passed amending the military justice code. "But this law did not address the jurisdiction of the Military Court regarding cases involving gendarmes... One cannot choose to bring a matter of employee dismissal before the Criminal Court. Similarly, a land dispute will not go before the Military Court. In this particular case, the matter does not fall under the jurisdiction of the criminal chamber of the Regional Court," he concluded.

The offense occurred in 2020. Does that suggest a problem? 

Summary court-martial: British legacy in the Indian military legal system

Summary courts-martial were a part of post-1857 mutiny reforms in India. It never existed under the British military legal system. Historically, they owe their origin to the Punjab Irregular Forces which came into prominence after the 1857 mutiny. It was found that the Punjab Irregular Forces, which were under the Local Government, were far more disciplined as compared to the regular forces. The Irregular Forces, created in 1851 to protect the NW frontier of British India, were not under the Commander-in-Chief and were also not subject to Native military law in the British India. The reason for this was traced to the paramount position secured to commanding officers who were allowed to deal promptly and directly with military offenders and enforce discipline among the troops commanded by them. Such officers often held drum-head court-martial and passed sentences and inflicted punishments on them in the way in which a general officer commanding in the field across the frontier exercised extraordinary powers (under military commissions) over persons who were not amenable to military law. The system was associated with the name of Colonel Coke, who, while Deputy Commissioner of Kohat, raised and commanded the 55th Coke’s Rifles. It had come into existence through the then frequent union on the frontier of the functions of Deputy Commissioner, Political Officer, and Military Commandant in the same person. The combination of power enabled the commanding officer to award the punishment to a military offender and thereafter to issue a warrant for the execution of the sentence which was respected by the civil and prison officials as emanating from him in his civil and magisterial capacity.

It was realized during the post-Mutiny reforms that to strengthen the hands of commanding officers, similar summary powers must be given to them to discipline the Native regular forces. With this object summary powers were first introduced by Act No. VI of 1860 and continued under Articles 81 and 82 of the Act XXIX of 1861. In these two Acts, it was stated that a trial under these Articles shall be deemed a Court Martial and the words “court martial” in the Articles of War shall be deemed to include a commanding officer/detachment commander holding a trial. The term summary court-martial was formerly used under Article 72 of the Act of 1869. The Indian Articles of War (Amendment) Act XII of 1894, categorized the summary and summary general court-martial as “extra-ordinary courts-martial,” while general, district and regimental courts-martial were termed as “ordinary court-martial.” 

Questions about Chilean military justice reform bills

On May 4, 2026, the full Supreme Court of Chile approved reports on bills that would alter that country's military justice system. You can find the reports here and here. This press account indicates, unfortunately without precision, some of the court's concerns (cleaned-up Google translation):

The bill seeks to reform and update the Code of Military Justice in accordance with international standards, with the objective of adapting current regulations to fundamental guarantees and the needs of the country. This effort responds to the need to maintain a specialized system for judging matters pertaining to military justice while ensuring consistency with democratic principles and advances in human rights.

To that end, the measure primarily involves two major reforms: those that relate to the organic part of the Military Justice Code and those that modify procedure, without prejudice to introducing a new statute of rights for accused military personnel.

The reform is commendable since it seeks to update military regulations in accordance with international recommendations received by the State. Furthermore, there is a clear trend toward aligning the military legal framework with the principles and norms governing criminal procedure reform.

However, the bill raises concerns that need to be reviewed.

From a procedural perspective, a more exhaustive and comprehensive regulation of the principles governing precautionary measures is needed, as well as the grant of jurisdiction to military courts over crimes that are not part of the military legal system.

From an organizational perspective, the jurisdiction of military courts over common law crimes warrants review because it constitutes a potential intrusion into the civilian justice system. The same can be said regarding the centralization of military justice, which may raise concerns about efficiency and workload.

Finally, the explicit establishment of the protection remedy in all cases where this action has been brought in favor of individuals against illegal and arbitrary acts or actions carried out by the military authority is open to criticism. This expansion of the jurisdiction of courts-martial could generate significant concerns, as it threatens the historic jurisdiction of ordinary courts to the detriment of potential victims of violations or threats to their fundamental rights.

Amnesty International statement on Pakistan's misuse of military courts

Amnesty International has issued this statement on Pakistan's use of military courts to try civilians:

On the first anniversary of the Supreme Court of Pakistan’s ruling that trials of civilians by military courts are constitutional, Isabelle Lassee, Amnesty International’s Deputy Regional Director for South Asia, said:

“The Supreme Court’s 2025 decision has fundamentally undermined the right to a fair trial and the right to liberty in Pakistan. Such courts flout virtually every protection guaranteed under international human rights law.

“A civilian before a military court is first subjected to a secret trial without procedural safeguards, conducted by army officials that lack independence and impartiality. If convicted, they are denied the right to appeal, despite orders by the Supreme Court that this protection be guaranteed. Those serving convictions, including 9 May protesters still serving their sentences and activists such as Idris Khattak, are being deprived of the right to have their convictions and sentences independently and impartially reviewed. They are not given access to the court’s reasoned judgements and, in many instances, they have not been provided with any written order at all, as part of a deliberate tactic to prolong their unlawful detention.

“Amnesty International calls on the Pakistani authorities to end this injustice by banning military trials of civilians and overturning all unlawful civilian convictions by these courts. Authorities must ensure that all those convicted are provided with a meaningful right to appeal to a competent, independent and impartial tribunal.”

Vacancies on India's Armed Forces Tribunal

The Armed Forces Tribunal Bar Association (Regional Bench) has filed a petition with the Supreme Court of India concerning the government's failure to fill vacancies on the AFT.  Details here. Excerpt:

The advocate appearing for the petitioner said out of the 11 benches of the Armed Forces Tribunal (AFT), only three would be functional by the end of the year if the vacancies were not filled.

The plea sought a direction to the Centre to complete the process of selection and fill the vacancies in the AFT in a time-bound manner so as to comply with Section 5 of the Armed Forces Tribunal Act, 2007.

Section 5 of the Act deals with the composition of the tribunal and its benches.

The petition has also sought a direction that the present judicial and administrative members of the tribunal shall continue to remain in office, subject to their consent for continuance, till such time the necessary appointments are made.

Bait-and-switch in Pakistan

Remember that case in which a constitutional bench of the Supreme Court of Pakistan upheld (5-2) military trials of civilians despite the absence of a constitutional amendment -- on condition that the government provide a right of independent appellate review. The majority in Shuhada Forum, Balochistan v. Justice (R) Jawwad S. Khawaja, 2025 SCP 165, afforded the government 45 days in which to institute that remedy.

Guess what? Nothing has been done. This article from The Express Tribune tells the depressing tale. Excerpt:

Barrister Asad Rahim Khan argued that even the limited appellate safeguard was insufficient from the outset.

"Even as far as sops went, however, this one too was withheld. After all, the decision's main consequence was not to provide an additional floor of appeal. It was to validate military tribunals of civilians outside a declared state of exception, and outside a constitutional amendment – the first time in our history," he noted.

He further stated that implementation of even these limited safeguards had been further complicated by the creation of the FCC, which he described as an aberration within a common law system that has weakened binding precedent.

Barrister Sameer Khosa said the judgment of the Constitutional Bench of the Supreme Court required the federal government to provide an appeal to the convicts, but the government has not even pretended to offer one.

Barrister Rida Hosain, who assisted one of the petitioners challenging military trials, says that the Supreme Court accepted that there was no independent right to appeal under the Army Act. Under the military law, the right to appeal lies to a court of appeal consisting of the Chief of Army Staff or one or more officers designated by him. The appellate forum is composed of serving military officers who remain subject to the same command structure. An appeal, within the military structure, is an appeal to a hierarchy that has an institutional interest in defending its own processes. 

"Despite a time-bound directive, the Government has failed to take steps to initiate legislation. Those convicted by military courts are left without access to an independent appellate forum. The consequences of inaction are stark. Civilians have been deprived of their liberty by military courts without any independent appeal. The failure to legislate destroys the constitutional promise of due process and protection against wrongful deprivation of liberty. It places citizens at the mercy of a system that is structurally incapable of independent appeal. The government’s inaction reflects its sheer disregard for judicial orders", she adds.

Jurisdictional boundaries issue at Indonesia's Constitutional Court

Where is the boundary between military and civilian court jurisdiction? That is a current issue before the Indonesian Constitutional Court, according to this account. Excerpt:

Dr. Nanik Prasetyoningsih, SH, MH, an expert in Constitutional Law at Universitas Muhammadiyah Yogyakarta (UMY) , also shared his views. According to Nanik, the main problem does not lie in the existence of military justice. However, problems arise because the jurisdictional boundaries between this special forum and ordinary courts are not yet clearly defined.

"The main problem lies in the blurring of the boundaries between jurisdictions based on the status of the perpetrator and the type of crime," Nanik said in an online interview on Saturday (May 2).

He explained that legal practice in that country has traditionally focused on the perpetrator's status. If the perpetrator is a TNI soldier, the case is automatically referred to that group. However, in a modern state governed by the rule of law, a more appropriate criterion is the type of violation and its relation to the function of self-defense.

The urgency of separating common crimes

According to Nanik, the court's authority should be limited to offenses directly related to military duties. He emphasized that soldiers who violate common law should be tried in district courts.

"If the crime involves murder, drug trafficking, corruption, or domestic violence, then, constitutionally, it would be more appropriate to examine it through the general legal system," Nanik emphasized.

Furthermore, Nanik highlighted a phrase in the law that grants broad authority to prosecute criminal offenses without clear limits. This creates legal uncertainty, as the boundaries of this authority are very imprecise.

Where should this case be tried? (this time it's Indonesia)

The New York Times reports here on a nasty case from Indonesia: an acid attack on a human rights activist. The case has been moved to military court. Excerpt:

Mr. Prabowo promised a thorough investigation.

“This is a barbaric act, we must pursue it,” the president said in remarks released  a week after the attack. “We must investigate. Who ordered them, who paid.”

Days later, the general who headed the military’s main intelligence arm, the Strategic Intelligence Agency, quietly resigned. He is not known to be facing any charges.

But on March 31, the police announced that the case had been transferred to the military, which meant that military prosecutors would have the ability to limit the scope of the investigation and determine what information is made public.