tag:blogger.com,1999:blog-4070126256373578912.comments2024-03-20T17:53:33.153-04:00Global Military Justice ReformEugene R. Fidellhttp://www.blogger.com/profile/14694139458443207131noreply@blogger.comBlogger1075125tag:blogger.com,1999:blog-4070126256373578912.post-18226935643321089402024-03-20T15:18:03.036-04:002024-03-20T15:18:03.036-04:00"The author appears not to have read the room..."The author appears not to have read the room and is profoundly uninformed . . . ."<br /><br />Totally agree, Phil.Donald G Rehkopf, Jr.noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-73260116383977109192024-03-19T11:53:08.258-04:002024-03-19T11:53:08.258-04:00The author appears not to have read the room and i...The author appears not to have read the room and is profoundly uninformed about CAAF's current and future jurisdiction. [https://www.law.cornell.edu/uscode/text/10/867] CAAF is limited to appeals from court-martial convictions. It does not and is not likely to gain jurisdiction over the various administrative cases and issues about which he forecasts a "gloom and doom" increase in the federal court docket. A quick look at the Annual Reports will show an absence of support for the argument. Whenever someone has tried to challenge a collateral effect of a conviction in the military appellate courts, usually by extraordinary writ or complaints about post-trial confinement conditions, the CAAF has eschewed jurisdiction, interest, or told the person to go to --- a federal court judge.<br /><br />A quick look at the questions presented and granted at CAAF will show that most of CAAF's work is related to statutory interpretation, constitutional issues, and evidentiary issues (of evidentiary rules largely adopted from the rules in federal district court). Let's not be dismissive or disrespectful of judges who engage in that work, just in a different forum. Judge Sentelle was able to navigate, then CMA, cases while assigned to a number of appeals and wrote one or two majority opinions. His most recent appearance was in Chin, 75 M.J. 220 (2016), or read his opinion for the court in United States v. Rushatz, 31 M.J. 450 (1990), or how about his opinion in Lonetree, 1992 CMA LEXIS 1028, the Marine Corps embassy "spying" case.<br /><br />Lastly, it is troubling that some suggest judicial independence should shift with the winds of national security. In a sense, that is exactly what the UCMJ was intended to prevent.<br />Phil Cavehttps://www.blogger.com/profile/06086682991693654964noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-48078669879635925332024-03-15T11:10:18.340-04:002024-03-15T11:10:18.340-04:00Burke & Matisek stop short of suggesting ways ...Burke & Matisek stop short of suggesting ways and means of enforcing Article 88 against "retired military leaders." I'd be interested in hearing what others might suggest.John Paul Joneshttps://www.blogger.com/profile/05593456510652841071noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-70840375434009252832024-03-14T12:56:39.676-04:002024-03-14T12:56:39.676-04:00Here's a link: https://journals.sagepub.com/...Here's a link: https://journals.sagepub.com/doi/epub/10.1177/0095327X241234253Donald G Rehkopf, Jr.noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-69436418559950198232024-03-04T07:36:18.806-05:002024-03-04T07:36:18.806-05:00P.S. The defendants are said to have gone missing....P.S. The defendants are said to have gone missing. https://www.standardmedia.co.ke/health/national/article/2001490871/25-ex-soldiers-go-into-hiding-after-court-of-appeal-deals-them-blowEugene R. Fidellhttps://www.blogger.com/profile/14694139458443207131noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-57006093851873977302024-02-20T06:48:43.892-05:002024-02-20T06:48:43.892-05:00The NZDF has issued this statement in response to ...The NZDF has issued this statement in response to the decision of the Court of Appeal: https://www.nzdf.mil.nz/media-centre/news/update-on-recent-court-of-appeal-ruling/Eugene R. Fidellhttps://www.blogger.com/profile/14694139458443207131noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-9527555828056856512024-01-18T08:07:35.052-05:002024-01-18T08:07:35.052-05:00Thank you! Thank you! Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-945573814234966892024-01-15T21:00:31.403-05:002024-01-15T21:00:31.403-05:00For those with long memories, the facts are remini...For those with long memories, the facts are reminiscent of the 1956 Ribbon Creek Incident at Parris Island. See https://en.wikipedia.org/wiki/Ribbon_Creek_incidentEugene R. Fidellhttps://www.blogger.com/profile/14694139458443207131noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-89273599577119398002024-01-01T08:23:26.569-05:002024-01-01T08:23:26.569-05:00Thanks Gene!Thanks Gene!Pascal Lévesquehttps://www.blogger.com/profile/15708349994971868363noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-79912752652477116532024-01-01T08:22:47.524-05:002024-01-01T08:22:47.524-05:00Happy New Year! Peace, health, and happiness! May ...Happy New Year! Peace, health, and happiness! May 2024 be intellectually insightful and fruitful for global military justice reform!Pascal Lévesquehttps://www.blogger.com/profile/15708349994971868363noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-9538683420287481072023-12-20T02:37:26.461-05:002023-12-20T02:37:26.461-05:00Many thanks to Pascal Lévesque for this excellent ...Many thanks to Pascal Lévesque for this excellent post.Eugene R. Fidellhttps://www.blogger.com/profile/14694139458443207131noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-18721924733323889842023-11-29T06:53:17.363-05:002023-11-29T06:53:17.363-05:00Compare Helen Lacey, The Politics of Mercy: The Us...Compare Helen Lacey, The Politics of Mercy: The Use of the Royal Pardon in Fourteenth Century England. PhD Thesis, Univ. of York Center for Medieval Studies, March 2005.<br /><br />The fundamental contention of this study is that the royal prerogative of mercy played a pivotal role in later medieval society, both in influencing the day-to-day application of the law in the royal courts, and in shaping relations within the political community. In<br />light of the recent neglect by historians of the role of the royal pardon, this study suggests that medieval notions of mercy and grace deserve a more thorough and nuanced appraisal than they have so far received.<br /><br />https://etheses.whiterose.ac.uk/10964/1/423728.pdfPhil Cavehttps://www.blogger.com/profile/06086682991693654964noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-8310330503455948662023-11-26T02:04:48.204-05:002023-11-26T02:04:48.204-05:00As regards, Constitution of India, Article 34 deal...As regards, Constitution of India, Article 34 deals with indemnity, after imposition of martial law. This has not happened in India in the last 75 years and the possibility that the rein of a civilian territory would ever be handed over to the armed forces does not arise. [For more detailed analysis please see: “Martial Law in India: Historical, Comparative and Constitutional Perspective” (2020) by K. Ratnabali and U. C Jha.]<br /><br />Wg Cdr U. C. Jha (Retd)<br />U C Jhahttps://www.blogger.com/profile/13371613828490826856noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-85764266489303452182023-11-26T00:15:52.790-05:002023-11-26T00:15:52.790-05:00The Armed Forces Special Powers Act of India does ...The Armed Forces Special Powers Act of India does not deal with any trial whether in civil or criminal courts. It gives additional powers to the members of the armed forces when they are tasked to aid civil powers in a ‘disturbed area’. <br /><br />Wg Cdr U C Jha (Retd)U C Jhahttps://www.blogger.com/profile/13371613828490826856noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-3571729073562289932023-11-26T00:09:35.267-05:002023-11-26T00:09:35.267-05:00In India, under the Army Act section 2(i), only in...In India, under the Army Act section 2(i), only in exceptional circumstances, i.e., at the time of war, the following persons become subject to the Act, and could be tried by a military court: “Persons not otherwise subject to military law who, on active service in camp, on the march or at any frontier post specified by the Central Government by notification in this behalf, are employed by, or are in the service of, or are followers of, or accompany any portion of the regular Army.”<br /> <br />These persons commonly known as ‘followers’ are not ordinarily subject to AA unless they have been enrolled under it, but in the interest of discipline and security it is obviously necessary that when they accompany any portion of the regular Army should be subject to military discipline on active service and in certain other circumstances. However, no such person has been tried by a military court in India in the past 75 years or so.<br /><br />Military courts in India cannot try a civilian.<br /><br />Wg Cdr U C Jha (Retd)<br />U C Jhahttps://www.blogger.com/profile/13371613828490826856noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-24787768022319360352023-11-22T08:53:42.955-05:002023-11-22T08:53:42.955-05:00Correction - In India, the Armed Forces Special Po...Correction - In India, the Armed Forces Special Powers Act (AFSPA) does not provide for the trial of civilians in military courts. There is no other legal provision too which permits court-martial of a person otherthan subject to the defence service Acts. The only enabling provision if of Martial Law under Article 34 of the Constitution of India, which has no precedence since India became Independant. Ajeennoreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-29430471182267956862023-11-17T12:11:04.758-05:002023-11-17T12:11:04.758-05:00I have a huge respect for Rory Fowler’s contemplat...I have a huge respect for Rory Fowler’s contemplations about military justice and I am mindful that he is one of the best minds that has come out of Canada’s Judge Advocate General branch. I, on the other hand, am an ageing student of history and philosophy, and my opinion runs counter to Mr. Fowler’s. <br /><br />He believes that “CFSPDB certainly should be the subject of regular review to ensure that costs are minimized, and that it operates efficiently and effectively, the maintenance of a system of military justice will have expenses associated with that.”<br /><br />However, I believe that the Canadian Forces Service Prison and Detention Barracks, which is normally unoccupied, should be closed and converted into a homeless shelter and the 28 staff, as they are apparently unneeded, could be retired and the $2.2 million dollars and the costs of operation and maintenance of the facility could be used to defray the $1 billion which the Canadian government wishes to claw back from the defence budget.<br /><br />It is time for federal government decision-makers to take a long, hard look at the Canadian military justice system to determine if it is relevant in 21st century Canada. This system comprises four distinct components: the Military Police, the Military Prosecution Service, Defence Counsel Service, and military judges. <br /><br />Historically, Military Police have handled security patrols, custody of prisoners of war, managing stragglers, and vehicular traffic control to provide clear access to the battle area. During the Second World War, investigations and their follow-on requirements were the domain of members of the Royal Canadian Mounted Police who “transferred” to the Military Police during the war but returned to their police responsibilities following “VE Day.”<br /><br />Canada is not at war. If our experience in Afghanistan is an indicator, we can transport a suspect from the theatre of operations to Canada for trial within a day or two, as so clearly demonstrated in the case of Captain Robert Semrau.<br /><br />So, do we need to retain a system that is intended for use in the theatre of operations created when it took weeks to transport an accused back to Canadian soil? <br /><br />I submit that in the 21st century, there should be one system of justice for all Canadians. The only exceptions should be for bona fide need, and there no longer seems to be a need for traditional military justice. <br />Tim Dunnehttps://military-justice.canoreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-46078155966475905202023-11-17T10:03:24.230-05:002023-11-17T10:03:24.230-05:001. The name of the facility is the Canadian Force...1. The name of the facility is the Canadian Forces Service Prison and Detention Barracks.<br /><br />2. Detention is still very much a punishment under the Code of Service Discipline. While it cannot be imposed for service infractions tried by summary hearing, it can be imposed as a sentence at court martial. And it has been imposed by courts martial recently.<br /><br />3. Dismissal and Dismissal with Disgrace can be imposed as sentences and will automatically lead to a compulsory release under Item 1(a) on the Table to art 15.01 of the QR&O. However, if it is not imposed as a sentence at court martial, Dismissal is not an 'administrative option'. And, while release under a different 'Item' may well arise and be justified if a CF member is convicted of one or more service offences, that is a separate decision that is not made under the Code of Service Discipline.<br /><br />4. While the CFSPDB certainly should be the subject of regular review to ensure that costs are minimized, and that it operates efficiently and effectively, the maintenance of a system of military justice will have expenses associated with that. Similarly, courts martial are not inexpensive. But that is part of the cost of maintaining a system that is fair. And effective review starts with getting the underlying principles and facts correct.Rory Fowlerhttps://www.blogger.com/profile/07686499120593905650noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-3900702695905552952023-11-15T09:51:35.387-05:002023-11-15T09:51:35.387-05:00Scott, I'm so glad to see your comment and que...Scott, I'm so glad to see your comment and questions. CAAF has entertained "merits" petitions since the 1950s. They are very rarely granted, but from time to time CAAF will specify an issue. Ut will even grant review to correct typographical errors. Remember, once a petition is filed, even without assigned errors, the court's Central Legal Staff goes over the record, looking for errors. In my view, this is not right (after all, all petitioners have free appellate defense counsel), but it is the court's practice.Eugene R. Fidellhttps://www.blogger.com/profile/14694139458443207131noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-20825567449850570982023-11-15T09:31:28.103-05:002023-11-15T09:31:28.103-05:00Interesting, I did not know you could submit a mer...Interesting, I did not know you could submit a merits petition to CAAF. Are such petitions ever granted? I guess they would have to be granted on a specified issue, but it's unclear how that would even happen. Is someone at CAAF reading the whole record looking for issues to specify? Maybe reading only the lower court opinion? Scott Hockenberrynoreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-78112192413954159252023-11-15T01:12:35.902-05:002023-11-15T01:12:35.902-05:00Pushback in the Pakistan Senate:
https://www.brec...Pushback in the Pakistan Senate: <br />https://www.brecorder.com/news/40273318Eugene R. Fidellhttps://www.blogger.com/profile/14694139458443207131noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-30893827353654903012023-11-08T10:02:51.978-05:002023-11-08T10:02:51.978-05:00Longtime NIMJ stalwart BG David M. Brahms, USMC (R...Longtime NIMJ stalwart BG David M. Brahms, USMC (Ret) was a technical consultant for "A Few Good Men."Eugene R. Fidellhttps://www.blogger.com/profile/14694139458443207131noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-41403703669686786322023-11-01T14:26:27.622-04:002023-11-01T14:26:27.622-04:00A treatise on the CinC Clause. Here's the lin...A treatise on the CinC Clause. Here's the link: https://www.yalelawjournal.org/article/deciphering-the-commander-in-chief-clause Don Rehkopfnoreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-86041481209674733272023-10-23T07:25:20.498-04:002023-10-23T07:25:20.498-04:00Thank you very much Eugene and Frank. I am honoure...Thank you very much Eugene and Frank. I am honoured to join such an impressive team of experts! Merci beaucoupGwenaël Guyonhttps://www.blogger.com/profile/14779127920928022387noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-50140978608956166842023-10-14T09:20:07.481-04:002023-10-14T09:20:07.481-04:00Gwenaël is also the newest international fellow at...Gwenaël is also the newest international fellow at NIMJ. Félicitations!Franklin Rosenblattnoreply@blogger.com