No, you may not do that, Colonel!

Here's the inviting lede from today's decision of the Australian Defence Force Discipline Appeal Tribunal in Mikus v. Chief of Army, [2020] ADFDAT 1 (Dec. 22, 2020):

In the Australian Army, it has never been lawful for a superior to strike a subordinate.

The present appeal offers a useful opportunity to recall just how longstanding this prohibition is, and the reason for it.

And here is where the Appeal Tribunal wound up:

88 The issue before the Tribunal is therefore whether it was open (in the sense described in SKA and Libke), on the whole of the evidence, for the DFM to be satisfied, beyond reasonable doubt, that the appellant had, as alleged, slapped the complainant’s buttocks. For the reasons set out above for concluding that there has been no substantial miscarriage of justice, it was.

89 It was submitted that the inherent unlikelihood of a Commanding Officer, who had a reputation of being reserved, engaging in the conduct alleged was a significant factor weighing against its probability. That may be, but four witnesses gave direct, consistent evidence of it. It is also clear that LT COL Mikus was disinhibited on this occasion: he had, on his own evidence, consumed seven – eight alcoholic drinks, immediately following a lengthy flight from the Middle East via Darwin and Sydney to Brisbane and then a two-hour road trip from Brisbane to Cabarlah (all in company with his RSM); he asked SIG Callum Edwards whether he was planning to “hook up” with either of the Edwards twins; he was prevailed upon to remove his mess jacket and wear a hi-vis jacket, and to dance with his soldiers; perhaps most tellingly, he was prepared to pick up and carry his female subordinate CAPT Harrison-Wolff out of the room when leaving, in response to her complaint that she had sore feet. The argument that this was highly improbable conduct for a Commanding Officer is countered by the direct evidence, and the evidence of his disinhibition. In making these observations, we have expressly taken into account the evidence, mentioned by the DFM in his Liberato direction, that LT COL Mikus was, for a time, engaged in conversation with fellow Lieutenant Colonels at the Gordon VC Club. That evidence did not include any contradiction by direct observation of the incident on the dance floor as related by the prosecution witnesses.

90 The Tribunal recognises that, in this day and age, there may be occasions when it is appropriate for officers, including a Commanding Officer, to attend all ranks social functions, notwithstanding the longstanding prudent practice of separate messing arrangements for officers, senior non-commissioned officers and other ranks. However, on the evidence, the situation on the dance floor that evening for officers, who had already been at a separate Officers’ Mess function, was truly fraught.

91 The Chief of Army rightly submitted that in distinction to Pell and Boyson, this was not a case in which, despite credible evidence supporting the prosecution case, there was such evidence pointing to its improbability as to raise a reasonable doubt. It was well open on the whole of the evidence for the DFM to be satisfied, beyond reasonable doubt, that LT COL Mikus had, as alleged, slapped the complainant’s buttocks. This is not a case in which the DFM ought to have had a reasonable doubt.

Appeal dismissed.

Cheating scandal at West Point

USA Today has the story here. Why does this keep happening?

Pakistan's military courts -- a status report

Dawn has this helpful report on the state of pending Supreme Court and High Court cases that challenge decisions of Pakistan's military courts. Excerpt:

A bench headed by then chief justice Waqar Seth on Oct 18, 2018, accepted 75 other writ petitions of military court convicts and had set aside their convictions and sentences mostly including death penalties. Subsequently, the court on June 16, 2020, accepted 198 writ petitions filed mostly by close relatives of the military court convicts, majority of whom were sentenced to death or life imprisonment on account of different acts of terrorism.

The Supreme Court had suspended the said judgments of the high court of 2018 and 2020 over appeals filed by the government and the main appeals have still been pending. Similarly, several appeals filed by convicts, who were not provided relief by the high court earlier, have also been pending before the Supreme Court.

Recently, a PHC bench comprising Justice Lal Jan Khattak and Justice Mohammad Ibrahim Khan took up for hearing around 140 petitions on Dec 8 against military courts’ convictions. The bench had adjourned hearing of these cases to Jan 14, 2021, with the direction to the ministry of defence to produce record in these cases for perusal of the petitioners’ lawyers on Dec 12 and Dec 19.

Pakistan is one of a handful of countries that have used military courts extensively to prosecute civilians. This violates human rights jurisprudence.

Happy Holidays (& stay safe)

Extremism and hate groups: watch for a legislative proposal and other action

Acting Secretary of Defense Christopher C. Miller has issued a memorandum on Actions to Improve Racial and Ethnic Diversity and Inclusion in the U~S. Military. Among the action items:

Recommendation 14: Prohibit Extremist or Hate Group Activity.

• The USD(P&R), in conjunction with the USD for Intelligence and Security (USD(I&S)), will review current policy, laws, and regulations concerning active participation by Service members in extremist or hate group activity and develop a report, with recommendations, concerning initiatives to more effectively prohibit extremist or hate group activity. The report will leverage the ongoing efforts of the interagency working group on extremism. By March 31, 2021, the USD(P&R), in conjunction with the USD(I&S), will provide a plan of action and milestones for completing this review and subsequent report by June 30, 2021.

Recommendation 15: Update the Uniform Code of Military Justice to Address Extremist Activity.

• The DoD Office of the General Counsel (OGC), in coordination with the Office of the Assistant Secretary of Defense for Legislative Affairs, will draft legislative language for consideration within the Executive Branch, to propose to Congress to update the Uniform Code of Military Justice (UCMJ) to address extremist activity within the military. By July 30, 2021 , based on the findings and recommendations of the report on extremist and hate group activity directed above, DoD OGC will provide a plan of action and milestones required to modify the UCMJ.