Chile's Supreme Court of Justice has issued a report on pending legislation that would remove from military court jurisdiction offenses relating to drug trafficking and organized crime. Those offenses will be heard in the civilian courts. The court's only apparent concern, judging by this news account, was that a different approach might be warranted in time of war.
Daniel Maurer writes on Just Security: US Servicemembers’ Exposure to Criminal Liability for Lethal Strikes on Narcoterrorists. Excerpt:
I see only one viable route to a prosecution: President [Donald J.] Trump fails to grant the servicemembers pardons while still in office and a future administration pursues the cases (with no statute of limitations for murder).
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Trump’s order to the military to kill alleged narcoterrorists on boats in international waters without any legitimate legal ground was morally abhorrent. But it also exposes the servicemembers participating in these attacks to a range of criminal punishments under two distinct legal regimes: federal criminal law (under both 18 U.S.C. § 1111 and the war crimes statute); and the UCMJ (murder and other military offenses like “service-discrediting conduct” and “dereliction of duty”). However, the disinclination of federal prosecutors to hold servicemembers accountable for following an order by the President and for which Trump himself is immune makes the prospect of criminal accountability highly improbable. But that should not cloud this simple truth: the President and Defense Secretary issued an illegal order; that order propagated down the chain-of-command; plans were formulated, mission orders were issued, and the targets were destroyed obediently following that original unlawful command. In this way, the commander-in-chief himself has prejudiced good order and discipline within the armed forces, placing U.S. servicemembers in the position of having to contemplate whether they’d escape justice.
After some months' delay, the Supreme Court of Pakistan has finally released the opinions of the 5-justice majority in The Military Courts Case. The opinion of the court by the Senior Judge, Justice Amin-ud-Din Khan, can be found here. The concurring opinion of Justice Muhammad Ali Mazhar can be found here. The earlier-released dissent by Justice Jamal Khan Mandokhail for himself and Justice Naeem Akhter Afghan can be found here.
The court's bottom line is to uphold the trial of civilians by court-martial, albeit with the hope that the government will enact legislation within 45 days affording accused persons the right to appellate review in the High Court. So far as we can tell, no such legislation has been enacted even though the 45-day deadline has long since expired.
George W. Croner has written a timely Just Security piece, Could Trump Use the Uniform Code of Military Justice to Stifle Protected Speech of Military Personnel? One key point requires a little more information. Not all military retirees are subject to the UCMJ -- only those who are covered by Art. 2(a)(4)-(6), UCMJ:
(4) Retired members of a regular component of the armed forces who are entitled to pay.
(5) Retired members of a reserve component, or retired members of the Space Force who qualified for a non-regular retirement and are receiving retired pay, who are receiving hospitalization from an armed force.
(6) Members of the Fleet Reserve and Fleet Marine Corps Reserve.
Politico has this piece about the Pentagon's crackdown on hostile social media commentary about murdered Turning Point head Charlie Kirk. Watch this space for major First Amendment issues. Precedent from the U.S. Court of Appeals for the Armed Forces may be an obstacle to disciplinary action under the Uniform Code of Military Justice.
