Supreme Court review and typographical errors

Congress provided in 1983 for direct Supreme Court review of decisions of the [now] U.S. Court of Appeals for the Armed Forces where that court has granted a petition review. Setting aside the handful of cases that are subject to mandatory CAAF review (cases certified by the Judge Advocates General and capital cases), unless CAAF grants discretionary review, a court-martial appeal cannot be taken to the Supreme Court by petition for a writ of certiorari.

Against that backdrop, consider this December 12, 2017 order in an Army case, from CAAF's Daily Journal:

Petitions for Grant of Review - Summary Dispositions

No. 18-0042/AR. U.S. v. Michael A. Knopik. CCA 20160811. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

* It is directed that the decision of the United States Army Court of Criminal Appeals be corrected to reflect Appellant's middle initial as "A" vice "E."

Because the court granted review, albeit only in order to direct the lower court to correct a typographical error (wouldn't a phone call from one Clerk's Office to another have sufficed?), the entire case, including two Grostefon issues, is now eligible for Supreme Court review. Had there been no typo, it would not be.

The prosecution rests.

Death of Brigadier General James P. Cullen, 72

BG James P. Cullen, USA (Ret)

Brigadier General (Ret) James P. Cullen of the Army Judge Advocate General's Corps died last week. He is mentioned in this editorial in today's New York Times. Excerpt:

A leader of that group [of flag and general officers who publicly opposed the use of torture] was James Cullen, a retired brigadier general who had begun Army life as a private during the Vietnam War. He became a lawyer, serving for many years in the Judge Advocate General’s Corps, and later in private practice. In alliance with the human rights group, he and his once-uniformed colleagues lobbied major politicians to support a ban on coercive interrogations. General Cullen died in Scarsdale, N.Y., last week at age 72. His death is a reminder of how former military men and women of conscience and courage can provide helpful support for the civilian leadership — and, if necessary, be a bulwark against the worst instincts that at times grab hold of it.

More reform of New Zealand's military justice system

Click here for the text and other detail about the Military Justice Legislation Amendment Bill, which passed its first reading in New Zealand's unicameral Parliament on 7 December 2017.   The purpose of the Bill is "to update the military justice system and to align it with the criminal justice system by enhancing victims’ rights, amending the Armed Forces Discipline Act 1971, the Court Martial Act 2007, and the Court Martial Appeals Act 1953".  The parliamentary page to which I have provided a link gives you access to the Bill itself as well as YouTube videos of all the speeches in respect of the Bill, providing an interesting snapshot of varying political perspectives on military justice in New Zealand.

Any person can make a submission to Parliament's Foreign Affairs, Defence and Trade committee about this Bill.  You do not even have to be a New Zealander and it can be done on-line!

Pakistan files today with International Court of Justice

Pakistan is today filing its reply in the International Court of Justice's Jadhav Case (India v. Pakistan). According to this report in The Nation, a senior Pakistani official stated:

“We will provide evidence to the ICJ to prove his role in the killings of so many Pakistanis. His case at the ICJ should be dismissed.”

Another official said Pakistan’s response was based on the Vienna Convention and country’s ambassador in the Netherlands will submit the reply. Attorney General Ashtar Ausaf Ali is overseeing the high-profile case on behalf of Pakistan.

The official said Pakistan’s response included concrete evidence of Research and Analysis Wing agent Kulbhushan Jadhav’s confession of involvement in terror-related activities and rejection of India’s stance submitted with the ICJ.

“Pakistan’s argument is that the ICJ has no jurisdiction to hear the case of a terrorist who has orchestrated bloodshed in Pakistan. We are hopeful we will win our case,” he said.

The case may reveal details of the procedures employed by Pakistan's military courts. India's merits submission cannot be found on the ICJ's case web page. According to this report, at the Human Rights Council last month in Geneva, "India recommended that military courts in Pakistan should be barred from trying civilians and allow their monitoring by international observers and human rights organisations."

Should Special Victims Counsel be reined in?

J. Solomon Bashi

New York lawyer and Army National Guard Captain J. Solomon Bashi, writing in his personal capacity, has this op-ed on FedSmith.com about the role of Special Victims Counsel. In his view, "[t]he Secretary of Defense should issue a directive prohibiting the SVC from participating in the trial, including making motions in limine or evidentiary objections. Such a directive would remove any suggestion that the SVC program harms due process by clarifying that the SVC’s role is limited to that of solely an attorney representing a witness. The only time an SVC should be allowed to make motions in court should be situations when a third-party attorney could normally do so, such as a motion to quash or modify a subpoena."