Trust shattered and dereliction of duty by Coast Guard brass (in other words, business as usual for military justice)

Earlier this  summer the U.S. Coast Guard's  senior military leader apologized for her agency's hiding a damning report from the public and Congress that detailed sexual assaults gone unchecked at the U.S. Coast Guard Academy. This report, hidden for years, revealed that military leaders at the Coast Guard Academy were more worried about institutional reputation than in holding criminal perpetrators to account at the time of alleged assaults, and more worried about how the Academy would look (and how their own careers would progress) if the report came to light, thus burying it for years.

In her mea culpa a few months ago for these gross leadership failings, the U.S. Coast Guard's Commandant made empty promises of change, just like so many other top military brass have done over the past decade-plus when facing hard evidence that their senior military leaders are incapable of and unwilling to (1) hold sexual assaulters to account and (2) hold one another accountable for leadership failures in the disciplinary realm. The Commandant followed the standard practice of pledging reform and transparency, even explaining  that “[t]rust and respect thrive in transparency but are shattered by silence.” 

That trust is, or at least should be, now completely shattered. And certainly the Coast Guard Commandment deserves zero respect for her complicity in covering up patterns of leadership failings in the sexual assault realm. This indictment is due because another hidden report has just surfaced, this time going beyond the Academy to detail troubling patterns of sexual assault and harassment throughout the Coast Guard; it also reveals (as did the Academy report) numerous leadership failings and a cultural refusal to hold perpetrators accountable, and a similar institutionalized refusal to hold leaders accountable for such derelictions of their disciplinary duties.

France, mère des arts, des armes et des lois (with apologies to Joachim du Bellay)

Want to liven up the dinner conversation at the O Club? Drop in a reference to Mercy at War: Military Violence and the Politics of Royal Pardon in Fifteenth-Century France, by Dr. Quentin Verreycken. From the website:

This article examines the construction of military criminality and the granting of pardons to soldiers in late medieval France. By the beginning of the fifteenth century, the offences perpetrated by men of war were a recurrent problem of public order for royal government. Criminal records as well as narrative sources used a rich terminology to qualify the military abuses suffered by the population, which distinguished criminal soldiers from ordinary offenders. Although these abuses were repeatedly denounced by political literature and were supposed to be severely punished according to legislation, the king of France frequently granted pardon letters to soldiers, allowing them to escape criminal prosecution in exchange for the continuation of their services. Far from being simply the result of a lax attitude of the king, these pardons reflected the fragile balance of royal power in the fifteenth century, which required the king to conciliate the exercise of justice and the conduct of warfare. Exploring the politics of royal pardon towards criminal soldiers and the reactions they provoked, the article demonstrates how the French Crown dealt with military offenders at the end of the Hundred Years’ War and during its aftermath.

Pertinent to some of former Presidrnt Donald J. Trump's court-martial pardons?

Military Legal Power, Unchecked

Professors Brett J. Kyle and Andrew G. Reiter have written an important new article: Military Legal Power, Unchecked. It appears in the Winter 2023 issue of the NACLA Report on the Americas. From the website summary: "Across Latin America, the militarization of public security and judicial systems threatens to deepen repression and impunity. Can civilian courts rein in military justice once and for all?" In summary, there are steps forward -- and backward. Sadly, the full text of the paper is not freely available; you'll either have to pay for it or have access to an institutional account with the publisher.

Pakistani praise for U.S. military commissions (can you guess why?)

"In the aftermath of the 9/11 attacks, the United States established military commissions to prosecute individuals involved in acts of terrorism against the country. Operating under the Military Commissions Act, these commissions aimed to provide a legal framework for trying individuals associated with al-Qaeda and other terrorist organizations. Despite facing legal and procedural challenges, the military commissions have successfully rendered justice in numerous high-profile cases, emphasizing the US commitment to holding terrorists accountable under a specialized legal framework." [Emphasis added.]

From this Pakistan Today op-ed

Caveat lector

Readers concerned about the Pakistani litigation on the threatened use of military courts to try civilians will recall this recent post reproducing excerpts from two articles by an Islamabad-based writer and the Editor's email to him in response. In the interest of completeness, the full correspondence follows so that readers may draw their own conclusions (read from the bottom up):

Dear Mr. Eugene:

I acknowledge receiving your message. I have raised questions regarding certain 'facts,' which, unfortunately, you have chosen to overlook.

Farrukh

____

Dear Dr. Saleem,

In answer to your questions:

1. The United States Supreme Court has found it unconstitutional to prosecute civilians by court-martial. See, e.g., United States ex rel. Toth v. Quarles, https://supreme.justia.com/cases/federal/us/350/11/; Reid v. Covert, https://supreme.justia.com/cases/federal/us/354/1/.

The Court has not yet ruled on the constitutionality of the rarely-employed provision of the Uniform Code of Military Justice that permits the court-martial of civilians who are serving with or accompanying an armed force in the field in time of a declared war o[r] contingency operation. To be sure, civilians may be subject to military trial by occupation courts, but that is irrelevant to the issue currently before the Supreme Court of Pakistan.

2. I find no reference to military courts in the Indian statute you cite. If I missed it, please point me to the pertinent section(s).

3. Yes, and it is totally improper. Egypt is a party to the African Charter, which is interpreted to forbid such trials.

4. No, but you should review ¶¶ 34-38 (Principle No. 6) of the 2018 "Yale Draft," https://www.court-martial-ucmj.com/files/2018/06/The-Yale-Draft.pdf.

I'm not sure I follow your point about being "practical" rather than delving into "theoretical or academic aspects." We are, after all, dealing with the Rule of Law, and I remain curious about the sources on which you relied when listing countries in your recent columns.

Sincerely,

Gene Fidell

_____

Dear Mr. Fidell,

I trust this email finds you in good health. I appreciate your email, which I have read not once but a few times over. 

Rather than delving into the theoretical or academic aspects, please allow me to approach the subject from a practical standpoint. I have a few questions that I believe will help clarify the context:

1. Has the US ever conducted trials of civilians in military tribunals?

2. Were civilians accused in the 1993 Bombay Bombings tried under TADA in India?

3. In Egypt, have civilians been subjected to trials under the 'Law on the Protection of the Armed Forces'?

4. Is there a specific prohibition on civilian trials in military courts under the International Covenant on Civil and Political Rights?

Your insights have significantly increased my understanding of the matter, and I am grateful for the knowledge you have shared.

Thank you once again for your time and expertise.

Best regards,

Farrukh

_____

Dear Dr Saleem,

I teach Military Justice at Yale Law School and edit the Global Military Justice Reform blog. In that connection, I read with interest two recent articles in which you list a number of countries, including the US, as trying civilians in military courts. I believe that list is misleading in several respects and gives a mistaken impression of the state of human rights law and practice. As I am sure you will agree, for example, a number of the States whose practice you cite -- e.g., Myanmar -- cannot by any stretch of the imagination be called democratic or governed by the Rule of Law.

You wrote that US "summary courts" can try civilians for rioting, and cite the federal riot statute. But that statute does not refer to summary courts or military courts. As for our military commissions, these can try only enemy combatants, and our Supreme Court held in Ex parte Milligan in 1866 that civilians could not be tried by military commission if the civilian courts are open. Our courts-martial can try civilians only in time of a declared war or a "contingency operation" if the accused serves with or accompanies an armed force in the field. The US Supreme Court has not ruled on whether even that highly restricted provision is constitutional.

In Martin v. United Kingdom, the European Court of Human Rights materially limited the circumstances in which a State can try a civilian in a military court under the European Convention.

Turkey used to try civilians by military courts, but that was disapproved by the European Court in Ocalan v. Turkey. I have read the 2016 Decree-Law to which you have referred; I did not find in it any provision for the military criminal trial of civilians, and no such provision is mentioned in the Venice Commission's report on it, which can be found at https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-ad(2016)037-e. A 2008 article indicates that Turkish military courts no longer have jurisdiction over civilians. https://dergipark.org.tr/tr/download/article-file/627016. You refer to further legislation after the 2016 Decree-Law. Can you point me to something specific on this question?

In Uganda, the Constitutional Court has held that the statutory provision conferring court-martial jurisdiction over civilians is unconstitutional. An appeal has been pending before the Supreme Court for a long time.

For its many signatories, the African Charter has been interpreted to forbid any exercise of military jurisdiction over civilians.

The Inter-American Court of Human Rights, which applies to, among other States, Colombia, Mexico, Venezuela and Brazil (each of which you cite), has repeatedly disapproved the use of military courts to try anyone other than serving personnel.

Ukraine does not currently have military courts.

I do not believe India's Armed Forces (Special Powers) Act confers criminal jurisdiction over civilians on that country's military courts.

If I am missing something on this important question, I'll welcome further information.

Sincerely,

Eugene R. Fidell