Government immunity for wrongful death of military personnel

The United States Court of Appeals for the Sixth Circuit has issued its decision in Siddiqui v. United States, No. 18-2415. The very first paragraph at least begins to tell the tale (the underlying facts of which many readers will recall):

This case resulted from the tragic death of Raheel Siddiqui, a private in the United States Marine Corps who fell to his death during basic training. His parents, Ghazala and Masood Siddiqui, sued the United States under the Federal Torts Claims Act (FTCA), alleging that the Government negligently misled Private Siddiqui into enlisting, assigned him to the command of officers already under investigation for abusing another Muslim recruit, failed to protect him from discriminatory abuse that led to his death, and failed to investigate fully the circumstances of his death. Because the doctrine announced in Feres v. United States, 340 U.S. 135 (1950), bars suits for tort claims arising from injuries incident to military service, we are bound to AFFIRM the district court’s dismissal of the case for lack of subject matter jurisdiction.

The unanimous opinion, which is not even recommended for publication, is short. Read the whole thing. Unless the Supreme Court, with two new Justices, is willing to revisit Feres, Congress has to step in.

Why is this case in military court?

Bloomberg News reports that an Algerian military court has ordered the arrest of a former defense minister on charges of conspiring against the army and disrupting public order.

Oh.

This just in from Kyiv

"In general, we need a military justice. Anatoliy Matios [chief military prosecutor] says we need a whole vertical: starting with military detectives, military prosecutors, and ending with military courts. I am absolutely not sure this is right, I've always been an opponent of this: both military courts and military justice system as a whole. I don't think there is an urgent need for this. Perhaps a military prosecutor's office will also be one of the areas that will be subject to change."

Deputy chief of the Office of the President of Ukraine Ruslan Riaboshapka

quoted here

Egypt's military courts -- mission creep?

Mada Masr has this intriguing and dismaying report on the effort to expand the influence of and normalize Egypt's voracious military courts. Excerpts:

According to a number of judges and legal experts who spoke to Mada Masr on condition of anonymity, the constitutional amendments and the ensuing legislation entrench the Armed Forces firmly within Egypt’s judicial system, bestowing more authority on what is already the most powerful actor in the country. The changes also greatly expand the application of military trials for civilians, essentially normalizing what was once an exceptional practice.

*   *   *

The Court of Cassation source says the changes to the status of the military judiciary are part of a broader effort to undermine judicial independence. The president now has greater powers over the selection of the heads of Egypt’s top judicial bodies and will also determine appointments, promotions and other judicial aspects as head of the Council of Judicial Bodies.

“What they want will happen and nobody will object. Whether it’s the incorporation of the military judiciary into the civil judiciary, or essentially granting the president veto power over all judicial affairs, from appointments to promotions to assignments and so on,” says the deputy head of the Court of Cassation.

The first moves toward bringing the military justice system under the umbrella of Egypt’s civil judiciary and expanding the military’s authority to try civilians came during the drafting of the 2012 constitution, according to one of the 10 legal experts who drafted the 2014 constitution.

At the time, the head of the military judiciary called on the 2012 Constituent Assembly drafting the constitution to move articles related to the military judiciary — including a provision allowing for military trials of civilians — from the section on the Armed Forces to the section on the judiciary.

*  *  *

Overall, the constitutional amendments and the laws put forward help entrench the military judiciary within Egypt’s judicial system. Yet the deputy head of the Constitutional Court says that the changes go even further by giving the military “constitutional control” of the functions of the judiciary and the police.

The head of an administrative court puts it more bluntly: “The independence of the judiciary has ended.”

What goes around . . .

Ottawa: The Canadian Lawyers' Daily publishes an article titled "Armed Forces prosecutors seek to compel deputy chief military judge to assign judge to try top military judge". On July 16, 2019, the Director Military Prosecutions (DMP) filed an Application before the Federal Court of Canada to compel via a mandamus, the current Deputy Chief Military Judge to assign one of the other three (3) military judges to preside over the court martial of his boss, the Chief Military Judge.

Exactly a month earlier, the Deputy Chief Military Judge, Lieutenant-Colonel Louis Vincent d'Auteuil, had concluded that he and his fellow judges were all conflicted and, as a result, could not preside over the court-martial of Chief Military Judge, Colonel Mario Dutil.

As cited by Lawyers' Daily, the DPM's position is that it was improper for the Deputy Chief Military Judge make such a wide determination.

“It is the position of the Canadian Military Prosecution Service, as expressed in the application to the Federal Court that, in making conclusions on the ability of other judges to hear the case, the deputy chief military judge went beyond his authority,  It is the purview of any judge assigned to a case to make his or her determination as to whether they can act with impartiality.”