Sunday, November 19, 2017

Who should investigate this Cypriot case?

The Attorney General of Cyprus will be investigating allegations that a National Guard commanding officer assaulted one of his soldiers. A military investigative report will be turned over to civilian authorities. Details here.

Senator Gillibrand reintroduces reform measure

Sen. Kirsten Gillibrand
Senator Kirsten Gillibrand has again introduced her bill to shift the disposition power from commanders to lawyers outside the chain of command, according to this report. Excerpt:
"We're not seeing the system get better," New York Senator Kirsten Gillibrand (D-NY) said.

This is the fifth time New York Senator Kirsten Gillibrand has introduced her bill called the Military Justice Improvement Act.

She said she hasn't been given a vote on the bill in nearly two and a half years.

"It is something that people think is debatable, it is something that people think is unanimous and a lot of people don't want to take on the generals. When the generals say no they want to leave it the way it is and I think that is the wrong instinct," Gillibrand added.

Saturday, November 18, 2017

Lieber writing prize

Via OpinioJuris:

The American Society of International Law’s Lieber Society on the Law of Armed Conflict awards the Francis Lieber Prize to the authors of publications that the judges consider to be outstanding in the field of law and armed conflict. Both monographs and articles (including chapters in books of essays) are eligible for consideration — the prize is awarded to the best submission in each of these two categories.

Submissions, including a letter or message of nomination, must be received by 10 January 2018. Three copies of books must be submitted. Electronic submission of articles is encouraged. Authors may submit their own work. All submissions must include contact information (e‑mail, fax, phone, address) and relevant information demonstrating compliance with eligibility criteria. The Prize Committee will acknowledge receipt of the submission by e‑mail.

Thursday, November 16, 2017

Military justice and World Philosophy Day

The Taipei Times reports on a World Philosophy Day panel. Excerpt:
The “pursuit of reasoning” has become popular in Taiwanese society and it is timely to re-emphasize the importance of philosophy because it provides “good tools” through which people can reflect on the issues they encounter in their daily lives, said Claire Lin (林靜君), event coordinator and deputy head of the Philosophical Education Development Organization. 
There has been more reflection on the relationship between individuals and society, especially since the high-profile death of army corporal Hung Chung-chiu (洪仲丘), which raised awareness of social justice, Lin said. 
The 24-year-old conscript died of heat exhaustion on July 4, 2013, after being forced to do strenuous exercise in a confined facility. 
Hung’s death raised questions about human rights violations in the military, sparked mass protests in the nation and led to the prosecution of several military officers and non-commissioned officers and major legal reforms, such as the abolition of military courts during peacetime.

"We do owe society a notice"

“When we discharge one of these people, he’s no longer our problem,” said Lt. Gen. Richard Harding, formerly the service’s top legal officer. “But these people who resort to dispute resolution at the end of a weapon, when we boot them out of the service, we do owe society a notice.”

From this Stars and Stripes article about the Devin P. Kelley case by Nancy Montgomery

Wednesday, November 15, 2017

Single code urged for Indian Armed Forces

Global Military Justice Reform contributor Wing Commander (Ret) U C Jha has written this op-ed for Daily News & Analysis, urging India to move to a single disciplinary code for its armed forces. Excerpt:
The three service Acts differ on various safeguards available to military personnel. These Acts are unable to answer the needs of the modern soldier and are quite at odds with the liberal interpretation of the Indian Constitution. The existence of the separate Acts makes the use, interpretation, and amendment more complicated. It would be easier to modernise and amend a common code for the services than to do so individually. Following the creation of India’s tri-service Strategic Forces Command and uniformity in the functioning of the three services at various levels, there is a need for a uniform disciplinary code for the three services. A uniform code would be more appropriate in view of the fact that the three services are increasingly deployed on joint operations in India and abroad, for which they train together. A modern and fair system of service law is as important to supporting operational effectiveness as having the best-trained and equipped forces as possible.
The argument is unanswerable, but how long will it take to achieve the goal? One question that might be raised is whether the proposed common code would also cover forces such as the Indian Coast Guard, the Border Security Force or the other Central Armed Police Forces. 

Monday, November 13, 2017

Good news for US practitioners

LexisNexis Adds All Content from US Department of Defense Boards for the Correction of Military Records to Lexis Advance

Addition helps veterans and advocates address service records and discharge status preventing access to needed veteran care and services

NEW YORK, November 9, 2017 – LexisNexis Legal & Professional today announced that it has added the US Department of Defense (DOD) Boards for the Correction of Military Records to its flagship Lexis Advance offering, creating the only online resource for veterans and their advocates to search military record change information from each branch of the military, comprehensively and all in one place. The action is part of the company’s ongoing Pro Bono Task Force work to support American military veterans.

“All of us at LexisNexis are proud to help veterans by providing them and their representatives the tools and resources they need to address military service and discharge records that prevent veterans from accessing vital care and services,” said Kermit Lowery, retired US Army JAG Officer and current vice president of legal for the North American Legal Research Solutions business of LexisNexis.

The unique set of content added by LexisNexis contains more than 127,000 decisions and changes addressing errors or removing injustices to individual military records and discharge status of service members in the United States Army, Air Force, Navy (including Marine Corps) and Coast Guard between 2008 to the present. It is sourced from the DOD BCMR Board of Decisions and is now, for the first time, offered in a combined, searchable database on Lexis Advance through the Premier Federal Core Agency & Admin Materials collection.

Access to a unified database of this information is a helpful new tool for individual veterans and the lawyers, organizations and others who advocate for them. The ability to conduct a single search, find and assess changes to military records and discharge status across all branches of the military helps advocates find precedent and see trends and patterns into what worked to achieve a record change or discharge upgrade when it was legitimately warranted. This is particularly important for veterans suffering from Post-Traumatic Stress Disorder (PTSD) or Traumatic Brain Injuries (TBI) who may have been discharged under less than honorable circumstances, preventing their access to VA health care services, VA home loans, educational benefits and temporary shelter if homeless.

“Any veteran suffering from PTSD and TBI has legitimate health concerns, and they should be treated as such,” said Lowery. “For those facing challenges getting the care and services they need based on their discharge status, if we can help them and their legal advocates find ways to open up access to those services where warranted, we feel we are doing the right thing by the men and women who serve our country,” said Lowery.

About the LexisNexis Pro Bono Task Force
The LexisNexis Pro Bono Task Force is a group within LexisNexis responsible for managing the company's pro bono activities to maximize the value realized from those activities, both by the company and by the group beneficiaries. The Pro Bono Task Force identifies appropriate pro bono opportunities, encourages LexisNexis employees to use their two paid pro bono volunteering days per year with approved pro bono organizations, coordinates the donation of equipment and services to approved pro bono organizations, and develops programs and policies to foster the long term success of the company's pro bono initiative.

Prof. Corn interview on the SEAL Team 6 case from Mali

Prof. Geoffrey Corn
South Texas College of Law's Professor Geoffrey Corn's excellent Vox interview about the SEAL Team 6 case out of Mali can be found here. He provides a clear account of the process, including the interservice aspects. Excerpt:
The biggest difference is who decides whether a case gets sent to trial. In most civilian jurisdictions, a prosecutor will recommend a charge to a grand jury — like the Paul Manafort case. The grand jury is going to decide if they think there’s enough evidence to support sending a case to trial.

In the military, prosecutors will advise the commander. But it is the commanding general or admiral who will decide whether or not a case should be sent to a felony-level trial, what we call a “general court-martial.”

The prosecutor doesn’t make that decision. The prosecutor tries the case and makes a recommendation, but the general or admiral isn’t bound by that recommendation. It’s like going to the mayor of your city and asking what cases should be sent to trial.

Where should this case have been tried?

A member of Ukraine's border security force, following orders, shoots at a car to stop it, killing a passenger. He is tried in a civilian court and sentenced to 13 years in prison. On appeal, the judgment is overturned and a new trial ordered. Now a member of parliament is arguing that the country has to reinstate military courts, according to this account.
"Such precedents do not add public confidence in the judicial system, which is why it is now necessary to reform it decisively. From my point of view, it was the case of Serhiy Kolmohorov that showed the need to return to the legislative settlement of military justice activities. Civilian courts have not right and should not bring in verdict or make decisions in military cases," [Iryna] Friz said.

Sunday, November 12, 2017

Shhhh. Court's in session

Tasnim News Agency reports that Bahrain has new rules ensuring the secrecy of military courts. Details here. Excerpt:
Head of Bahrain's Military Judiciary Brigadier Yusuf Rashid Flaifel said that the High Military Court has issued a decision prohibiting the circulation of any information, data or news by any audio-visual, electronic or written media, BNA reported.

Saturday, November 11, 2017

The Texas gunman's court-martial

The Associated Press writes here, in the Fresno Bee, about the military justice system and the U.S. Air Force court-martial of Texas mass murderer Devin P. Kelley. What did the members (jurors) know in his case? Why isn't it easier to get the record of trial? Excerpt:
The Air Force has so far released only a handful of pages from Kelley's trial record. The service is planning to release more.

Typically, however, transparency in connection with military trial records is minimal. While all of the services make brief courts-martial results public, documents from the proceedings, such as the charges, courtroom transcripts and pretrial agreements, are available only through the federal open records law, the Freedom of Information Act. That's a potentially time-consuming process and there are no assurances the requested documents will be released.
Do the victims' families have a cause of action against the government for negligence in failing to report Kelley's conviction? Vice News has this report. 

Thursday, November 9, 2017

Is there life after active duty?

Langdell Hall, Harvard Law School
Ask Jenna Reed, an LL.M. candidate at Harvard (and Marine Corps Reserve judge advocate, about to pin on Major), featured here.

Should the latest church shooter have been able to get guns?

Task & Purpose has a useful run-through by Adam Weinstein of the legal issues surrounding Devin P. Kelley's ability to purchase guns. Bottom line:
The upshot is that in a nation of roughly 320 million people and 300 million firearms, with a longstanding tradition of individual gun rights and a lot of anger, there are more ways for people with malign intent to get guns than there are to stop them.

Wednesday, November 8, 2017

Contempt at the military commissions

Prof. David Glazier
Prof. David Glazier of Loyola Law School in Los Angeles has done excellent work over the years delving into the history of military commissions. Here, on Lawfare, is his timely take on the particular question of contempt in a military commission. His concluding observation:
The Guantanamo commissions confront a number of highly complex legal issues—many of which would be entirely avoidable by simply shifting the trials to federal courts—such as identifying the origin dates and lawful scope of the so-called “war on terror,” establishing the degree to which constitutional and international due process and criminal procedure rules apply to the trials and determining what substantive limitations on subject matter jurisdiction may be mandated by the law of war. Many commentators, myself included, have expressed serious doubts that the commissions are up to the task and predict that final judgments in any of the high profile cases will necessarily be delayed by many more years of litigation and appeals. The unauthorized confinement of an American general resulting from a military commission judge's inability to correctly apply a longstanding U.S. military law rule further undermines the tribunal's' credibility.

Tuesday, November 7, 2017

Standards for violating human rights

Egypt's Constitutional Court has articulated standards for when civilians may be tried by military courts, according to this article in AhramOnline. Excerpt:
Article 204 of Egypt's 2014 constitution stipulates that "Civilians cannot stand trial before military courts except for crimes that represent a direct assault against military facilities, military barracks, or whatever falls under their authority; stipulated military or border zones; its equipment, vehicles, weapons, ammunition, documents, military secrets, public funds or military factories."

Law 136/2014, which was amended in 2016, stipulates that crimes committed against public facilities such as power plants, electricity towers, gas lines, railways, roads and bridges or any other public property fall under the jurisdiction of the military court system until 2021.

The court today set three main conditions for civilians to be referred to military courts according to the Law 136/2014.

First, the crime must be directly committed on a facility secured by the armed forces.

Second, the facility in question must be under the actual and direct protection of the armed forces at the time of the crime.

Third, the violation must come under crimes punishable by the penal code and Law.
Human rights jurisprudence strongly disfavors the use of military courts to try civilians.  

A basic question is raised in Pakistan

How's this for an eye-catching editorial title? "Are military courts needed?" You can find the answer--which is No--here in the Daily Times. Excerpt:
Pakistan’s military courts operate with absolute impunity. It is not uncommon for the authorities to randomly release information just about punishments meted out to individuals without any accompanying details about their arrests, trial and evidence used to convict them. And then, there is no real right to appeal. Pakistan is the only country in South Asia to allow military courts to try civilians.
Have any steps been taken to upgrade Pakistan's civilian justice system? Weaknesses there were the rationale for instituting military courts in the first place. Parliament: anybody home? 

Grievance reforms needed in India

Global Military Justice Reform contributor Wing Cdr (Ret) U C Jha has written here for Daily News & Analysis about the need for reform of the Indian armed forces' grievance system. Excerpt:
A military person who deems himself wronged by any superior/commanding officer may complain to the higher authorities for the redress of his grievances. The Regulations of the three services provide different procedures for the processing of complaints. The complaints by the officers are addressed to the Central Government, while that of the other ranks to the respective service chiefs. The intermediate authorities in the chain of command can interview the complainant, investigate the matter and forward the complaint, along with detailed paragraph-wise comments to the next superior authority. The complainant is not informed about the comments of the intermediate authorities on his grievance application. This amounts to a violation of the principles of natural justice because the comments furnished by the intermediate authorities to higher authorities are essential to the complainant, so as to enable him to know what has been commented against him/her by the said military authority while forwarding the complaint.
His conclusion: "the Government must ensure that the grievance redressal system is updated and remains in tune with the times."

Monday, November 6, 2017

Notification (or not) of court-martial results

The New York Times reports here on the Air Force's apparent failure to report Devin P. Kelley's court-martial conviction, thereby allowing him to purchase firearms. Excerpt:
A day after a gunman massacred parishioners in a small Texas church, the Air Force admitted on Monday that it had failed to enter the man’s domestic violence court-martial into a federal database that could have blocked him from buying the rifle he used to kill 26 people. 
Under federal law, the conviction of the gunman, Devin P. Kelley, for domestic assault on his wife and toddler stepson — he had cracked the child’s skull — should have stopped Mr. Kelley from legally purchasing the military-style rifle and three other guns he acquired in the last four years. 
“The Air Force has launched a review of how the service handled the criminal records of former Airman Devin P. Kelley following his 2012 domestic violence conviction,” the Air Force said in a statement. 
The statement said Heather Wilson, the Air Force secretary, and Gen. David Goldfein, the Air Force chief of staff, had ordered the Air Force inspector general to “conduct a complete review of the Kelley case.” 
The Air Force also said it was looking into whether other convictions had been improperly left unreported to the federal database for firearms background checks.
One assumes the other services will be reviewing their own court-martial reporting practices as well. 

Texas shooter's court-martial

Devin P. Kelley, who yesterday murdered over two dozen churchgoers in Texas, had been convicted in 2012 by a U.S. Air Force general court-martial for assaulting his wife and child. The per curiam decision of the Court of Criminal Appeals can be found here. The Court of Appeals for the Armed Forces denied discretionary review in 2014.

Why is this case being tried in military court?

Uganda is at it again. Police officers, a foreign military retiree and another foreign civilian are to be tried by court-martial, according to this article by Sulaiman Kakaire in The Observer. Excerpt:
Last week, Okoth Ochola, the deputy inspector general of police, surrendered two senior police officers and seven lower-ranking personnel to CMI [Chieftaincy of Military Intelligence]. They were later on charged with kidnapping and being in illegal possession of firearms contrary to the UPDF Act.

Those charged include; the commandant of Police Professional Standards Unit, Senior Commissioner of Police Joel Aguma; Senior Superintendent of Police Nixon Agasirwe, former commander of Police Special Operations; Sgt Abel Tumukunde of the Flying Squad, Assistant Superintendent of Police James Magada from Crime Intelligence; Faisal Katende under the Flying Squad and Amon Kwarisima.

Civilians charged were Rene Rutagungira, a retired soldier in the Rwandese military, and Bahati Mugenga Irunga, a Congolese national.

The accused are alleged to have kidnapped and forcefully repatriated Lt Joel Mutabazi, a former bodyguard of Rwandan president Paul Kagame, who had been granted political asylum in Uganda. Mutabazi and Jackson Kalemera were among several other refugees repatriated back home where they faced threats to their lives.
A constitutional challenge is being prepared.

Part VI of Uganda's Police Act 1994 establishes police disciplinary courts with jurisdiction over  police officials. Under s. 49, their proceedings do not preempt normal criminal prosecution.

Human rights jurisprudence strongly disfavors the trial of civilians by court-martial.

The price of military ju$tice

Some interesting data out of New Zealand, thanks to this article by Kirsty Lawrence in Stuff:
Almost 100 courts martial have been held in the past 17 years, with the cost to taxpayers stretching well past $1 million.

And a disciplinary crackdown at Linton Military Camp in Manawatū is a small, but high-profile part of that.

Figures released under the Official Information Act show the Defence Force has held 99 courts martial across the three sectors – army, navy and air force – since 2000.

The cost of holding these courts martial was $1.7 million, at an average cost of $17,200.
One wonders what the comparable cost data are in the United States and other countries. 

Sunday, November 5, 2017

"Where justice goes to die"

Phillip Carter has written a powerful column for Slate about the latest military commissions wreckage. "A minor derailment of the Guantanamo trials turned into a full-fledged train wreck." Excerpt:
What’s clear after this incident [the I'm-not-giving-you-a-hearing contempt trial of chief defense counsel Brig. Gen. John G. Baker] is that the Guantanamo war courts have gone off the rails and broken down so completely that they cannot be repaired. They now labor under the weight of ethical dilemmas like this, years of delay, and confusion about basic rules that make any effort to move them forward impossible.
It is difficult to see when -- no, whether -- Americans who lost loved ones in the 9/11 attacks will find closure.

From military to civilian court in Turkey

This news account reports on a 2011 soldier-on-soldier homicide case that began in military court and will end in a civilian one "because the country abolished military high courts by amending the constitution after a failed coup attempt." The accused had been sentenced to four and a half years' confinement for involuntary manslaughter, but the Military Court of Cassation upheld an appeal by the victim's family.

Saturday, November 4, 2017

Let my people go

Under the pressure of a potentially adverse habeas corpus decision by U.S. District Judge Royce C. Lamberth,  U.S. Marine Corps Brigadier General John G. Baker, chief defense counsel for the military commissions, has been released from arrest in quarters -- for the time being. Politico has the story here.

Memo from the Chief of Army Staff: send more cases

The Chief of Army Staff of Pakistan has expressed concern that not enough cases are being sent to military courts. No cases have been referred since January. Details here.

Human rights jurisprudence strongly disfavors the trial of civilians by military tribunals.

Editor's question: who is in charge here, the government or the army?

Friday, November 3, 2017

Baker v. Spath (D.D.C.)

Hon. Royce C. Lamberth
Senior Judge (D.D.C.)
A decision on the petition for a writ of habeas corpus in Baker v. Spath is expected to be handed down at 2:00 p.m. today at the U.S. District Court for the District of Columbia.

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Thursday, November 2, 2017

Baker v. Spath

Here is the petitioner's brief in Brigadier General John G. Baker's habeas corpus case, Baker v. Spath. The case has been assigned to Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia. A hearing has been scheduled for 5:00 p.m. today.
Hon. Royce C. Lamberth
Col. Vance Spath, USAF
Brig Gen John G. Baker, USMC

Wednesday, November 1, 2017

Brigadier General Baker found in contempt

Brig Gen John G. Baker, USMC
A military judge today found U.S. Marine Corps Brigadier General John G. Baker, the chief defense counsel of the Guantánamo military commissions, in contempt. General Baker has been sentenced to 21 days' confinement and a $1000 fine. The judge refused to afford him the right to speak at the hearing. Details here.

An unofficial, unauthenticated transcript of the contempt proceedings can be found here.

It also seems there may be further activity with respect to a proposal to impose a gag order on commission counsel and the media. Details here.

Tuesday, October 31, 2017

A classified conflict of interest

Carol Rosenberg
Carol Rosenberg writes from Guantánamo that military commission prosecutors have moved to cite three civilian defense counsel for contempt for withdrawing from a case without the court's permission. The prosecutors also want Marine Brigadier General John G. Baker, who is the chief defense counsel and permitted the lawyers to withdraw, to testify about the matter, details of which remain classified.

David Luban writes here on Just Security about "The Guantánamo Ethics Mess." He writes:
The heart of the issue is whether a lawyer can be forced to continue a representation that no U.S. jurisdiction’s ethics rules permit. Hopefully, Judge Spath would agree that the answer is no. But then why not address the issue at Military Commission headquarters in Alexandria, Virginia, not in Cuba?

Opposition leader sentenced by military court in Cameroon

Amnesty International has reported on the results of a military trial in Cameroon:
A military court in Cameroon has sentenced an opposition party leader to 25 years in prison after an unfair trial, Amnesty International said today.
Aboubakar Siddiki, President of the main opposition party in northern Cameroon, ‘Mouvement patriotique du salut camerounais’, was today convicted of charges including hostility against the homeland, revolution and contempt of the President, despite no credible evidence being presented to the court. In the same trial, Abdoulaye Harissou, a well-known notary, was also sentenced to three years prison for non-denunciation. However, the court finally dropped all charges against three journalists - Baba Wame, Felix Ebole Bola and Rodrigue Tongue –who were charged in 2014 with ‘non-denunciation’ of information and sources in relation to the same affair.
Human rights jurisprudence strongly disfavors the trial of civilians by military courts. 

Sunday, October 29, 2017

A professional responsibility crisis no longer looms at Guantánamo--it's here

Richard Kammen
Carol Rosenberg, the Miami Herald's dean-for-life of the Guantánamo press corps, has the story about the latest developments in the military commissions. Excerpt:
A Pentagon shuttle departed for Guantánamo Sunday morning without three civilian lawyers who quit the USS Cole case, setting the stage for a showdown Monday with the military judge who ordered them to the remote U.S. Navy base in Cuba.

Veteran death-penalty defense attorney Rick Kammen and colleagues Rosa Eliades and Mary Spears resigned from the team Oct. 11 over a classified ethical conflict. The judge said, under his reading of the rulebook, they cannot leave the case without his permission.
“The military judge has ordered U.S. citizens to go to what the government claims is a foreign country to provide unethical legal services to keep the façade of justice that is the military commissions running. This order is illegal and neither I nor the other civilians are going to Guantánamo,” Kammen told the Miami Herald Sunday morning. “The fundamental problem, of course, is government misconduct and the judge’s willingness to tolerate this misconduct, which gives rise to the requirement that we withdraw as Mr. [Abd al Rahim] al-Nashiri’s lawyers.”
The underlying circumstances need to be made public if the public is going to have a prayer of understanding what's going on.

Rough seas for HMS Vigilant

There's big trouble aboard a British submarine. According to this account by Clive R. Wootson Jr. in the Washington Post:
According to the Sun, Cmdr. Stuart Armstrong, the sub’s captain, has been relieved of duty amid the investigation, which includes a photo that surfaced of the woman he was allegedly intimate with wearing the captain’s uniform. The No. 2, Lt. Cmdr. Michael Seal, also faces disciplinary action.

Other members of the crew have threatened to resign over the widespread breaches in Royal Navy rules.

The Daily Mail did some math on what the recent developments mean for one of the free world’s strongest deterrents to nuclear war: “Around 10 percent of HMS Vigilant’s 168-strong crew have either been kicked out, quit, are under investigation or have been removed in what is believed to be one of the biggest sex and drugs scandals to hit the Navy.”

Marine Corps recruit abuse courts-martial

The Beaufort Gazette reports here on the impending Camp Lejeune trial of a Marine Corps drill instructor. Reporter Wade Livingston does a deep dive, all the way back to the notorious "Ribbon Creek incident" in 1956. Excerpt:
In the upcoming week, in perhaps the highest-profile court-martial spotlighting Marine Corps recruit training since [Sgt. Matthew] McKeon’s, Gunnery Sgt. Joseph Felix will stand trial at Camp Lejeune, N.C., for allegedly abusing two Muslim recruits, one of whom — Raheel Siddiqui — leaped to his death on March 18, 2016, after a reported altercation with Felix, his DI.
Felix’s court-martial — and that of his former battalion commander, Lt. Col. Joshua Kissoon, scheduled for March 2018 — is no doubt a significant moment for the Corps, one that will again raise questions about how Parris Island makes Marines. Some see parallels between McKeon’s actions and Felix’s alleged behavior — a continuation of a culture of cruelty made possible by a permissive command climate. Others see the incidents as anomalies and distinctly separate events. Still others say that now, just as in 1956, the Corps is in crisis.
And while the death of Siddiqui — the 20-year-old Pakistani-American and former high-school valedictorian from Taylor, Mich. — has spawned other hazing and recruit-abuse investigations and prompted more changes to recruit training, it’s unclear what place the tragedy will hold in the Corps’, and Parris Island’s, history.

Saturday, October 28, 2017

A Vietnam-era tale

Novelist Lucian K. Truscott IV (USMA '69) tells an interesting Vietnam-era anecdote in this piece from Salon. Excerpt:
The easiest way to get me out of the Army was to charge me with insubordination and court martial me. But the officer to whom I had been insubordinate was Major General Rogers, and he didn’t want to testify at a court martial in which he could be questioned about the details of the insubordination I was charged with. They knew I would take the opportunity of the court martial to put the Army’s drug policy — and the way Rogers was implementing it — on trial. So the word was passed down to the brigade commander to get me on something under the Army’s catch-all charge. “Conduct unbecoming” could be anything they said it was. 
It just so happened there was a Specialist Fourth Class (Spec-4) who had recently been caught with marijuana, so the brigade commander told my battalion commander to offer him a deal. They would drop the charges against him if he reported that I had flashed a peace sign at him instead of saluting when we passed in the battalion area. The Spec-4 got word to me through one of the cooks in the mess hall that I was being set up. Sure enough, I was called into the battalion commander’s office and charged with conduct unbecoming an officer and a gentleman. The charge was that I had formed a “V” with my forefingers and flashed the peace sign when the Spec-4 saluted me. And what do you know, but they had pressured two of the other lieutenants in my company to say that they had witnessed this grave offense against the Uniform Code of Military Justice.
Read the rest for the dénouement and this gifted writer's thoughts on whether Article 133, UCMJ (conduct unbecoming) should apply to the Commander in Chief. 

Full circle in Bahrain

Civilians are being tried by military courts again in Bahrain. With depressing symmetry, Bahrain put four civilians on trial in a military court again this week, almost exactly six years after it stopped the practice as part of a much vaunted “reform” program.

Human Rights First senior advisor Brian Dooley, writing here in Huffington Post

Friday, October 27, 2017

For your military law bookshelf

Fred L. Borch, the prolific Regimental Historian and Archivist of the U.S. Army JAG Corps, has an interesting new book out, published in August by Oxford University Press: War Crimes Trials in the Netherlands East Indies, 1946-1949. It seems that if you quote promotional code ALAUTHC4 there is a 30% discount ($50.40).

Congratulations on this important contribution to the literature, Fred!

Thursday, October 26, 2017

Acquittal rates in Canada

Global Military Justice Reform contributor (and Ottawa law professor and practitioner) Col. (Ret) [Maître] Michel Drapeau speaks here with CBC News on the conviction/acquittal rate for Canadian Forces sex assault prosecutions. 

A court-martial in India

The Times of India reports that a soldier who crossed the Line of Control in 2016 and was held prisoner by Pakistan for four months before being turned over to Indian authorities pleaded guilty yesterday to having done so willfully. A general court-martial sentenced him to rigorous imprisonment for two months and 29 days and loss of two years' pension credit. The adjudged sentence is subject to confirmation before it becomes final. Thereafter it will be subject to appellate review. Daily News & Analysis reports:
Though the soldier maintained that he inadvertently crossed the LoC, there were reports that [Chandu BabulalChavan had deserted his post during the surgical strikes carried out in September last year. 
Pakistan had handed over Chavan in January this year. The soldier had returned through the land transit route of Attari-Wagah border. The BSF [Border Security Force] handed him over to the Army which took him to an undisclosed location. 
The 22-year-old, who was posted with 37 Rashtriya Rifles, had surrendered to Pakistani forces, the Inter-Services Public Relations, Pakistan Army's media wing had said in a statement. 
They, in fact, alleged that the Sepoy crossed over willfully over 'his grievances of maltreatment against his commanders'.
Chavan belongs to Borvihir village in Dhule district of Maharashtra. His grandmother suffered a cardiac arrest and died after the family was informed that he was captured by the Pakistan Army.

Tuesday, October 24, 2017

The Decaux Principles and the House of Lords

Lord Thomas of Gresford OBE QC
Lord Thomas of Gresford OBE QC asked the following question in the House of Lords on October 23, 2017:
My Lords, I, too, welcome the Minister’s Answer and the prospect of a review. I want to ask her about the United Nations’ 2006 Decaux principles. On 7 June this year, the United Nations special rapporteur on the independence of judges and lawyers, in his report to the United Nations Human Rights Council, called on states to ensure that the jurisdiction of military tribunals is limited to military offences committed by active members of the military, in order to protect an individual’s ordinary rights to fair trial and due process. Does the Minister agree that Section 42 of the 2006 Act, which provides for military tribunals trying civil cases, is inconsistent with principle 8 of the Decaux principles: that military courts may try military personnel only for offences of a strictly military matter?
The text of the entire discussion -- "Reviewing the Armed Forces Act 2006 and serious offences committed by members of the armed forces" -- in the House of Lords can be found here. Video can be found here, beginning at 15:00:50.

For your military justice bookshelf

Wing Cdr (Ret) U C Jha, IAF
Global Military Justice Reform contributor Wing Cdr (Ret) U C Jha has written a new edition of his book on the Armed Forces (Special Powers) Act: Indian Military Domestic Deployment: Armed Forces Special Powers Act and Human Rights. Details here. Congratulations!

Monday, October 23, 2017

Comparative conviction rates: probative?

CBC News has run a substantial article about the prosecution of sex assault in the Canadian Forces. One point the piece makes is that there conviction rate for courts-martial is about half that of civilian courts. But the military data base is small -- arguably too small to permit meaningful conclusions to be drawn. Excerpt:
"The rate of conviction isn't a measure of success in any prosecution service, whether it's a military prosecution service or a civilian criminal justice system across the country," said Col. Bruce MacGregor in an interview with CBC News.
His annual reports, tabled in Parliament, show that between April 1, 2014, and March 31, 2017, there were 17 courts martial where the accused faced one or more charges of sexual assault.
Those resulted in four guilty verdicts, eight not guilty findings, four cases in which charges were stayed and one case that was withdrawn.
That amounts to a conviction rate of slightly more than 23 per cent.
In civilian courts, the rate of conviction for sexual assault was 43 per cent in 2014-15, according to Statistics Canada.

Military justice system review planned in UK

BT reports:
An independent review of the British military justice system, including the controversial use of majority verdicts in courts martial, is to be carried out, the Government has announced.

The Tory administration said the move was aimed to ensure the system “was effective as it can be for the 21st century”.

It follows calls for the court martial system to be brought into line with the civil courts, with the right for the most serious cases, such as rape and murder, to be tried by a jury and overseen by a judge.
The consultation will apparently not be conducted in public. Editor's note: that sounds like a self-inflicted wound in an era of transparency.

Sunday, October 22, 2017

Why was this case sent to a military court?

Suspected members of a terrorist cell have been charged in a Bahraini military court. Details here. Only a few months ago the country amended its legislation to permit such courts to try civilians. Doing so violates contemporary human rights norms.

Thailand's military courts

The Bangkok Post has published a tough column by Alan Dawson on a visit to one of Thailand's military courts, under the title "The Intimidation Game." Contrary to contemporary human rights norms, these courts can try civilians. Excerpt:
The military prosecutors don't allow lawyers in their courts but agreed to let two people from iLaw attend. They did not actually shackle them and use duct tape to ensure their silence. The iLaw representatives, however, had to wear special badges at all times, like yellow stars. This was not because they are Jews but because they are worse -- members of a human rights group.

Saturday, October 21, 2017

Military Justice Act of 2016 program at GWU

Sponsored by ABA Standing Committee on Armed Forces Law, ABA Standing Committee on Law and National Security, ABA Criminal Justice Section, ABA GPSOLO: Military Lawyers Committee, National Institute of Military Justice, and Judge Advocates Association

November 1, 2017 | 11:30 a.m.  2:30 p.m.
Light lunch at 11:30 a.m. | Event begins at 12:00 p.m.


The George Washington University Law School Student Conference Center, Lisner Hall (2nd Floor) 2023 G St. NW, Washington, DC 20052

Opening Presentation: Legislative Background of the Military Justice Act of 2016
COL (Ret. U.S. Army) Patricia Ham, Executive Director, Military Justice Review Group

Moderator: Professor David A. Schlueter, Saint Mary’s University School of Law

Panel 1: Disposition: Offense through Trial; Articles 32 & 33; Pre-Trial Agreements
  1. COL William Smoot, Chief, Criminal Law Division, U.S. Army OTJAG
  2. LTC Sara Root, Chief, Mobile Training Team MJA 2016, U.S. Army OTJAG
  3. MAJ Wes Braun, Chief Joint Service Policy & Legislation, Military Justice Division, U.S. Air Force Legal Operations Agency
  4. LT Alexandra Nica, JAGC, Criminal Law Division, OJAG
Panel 2: Sentencing: Members, Judge Alone, and Sentencing Standards
  1. COL Peter Yob, Special Victim Program Manager, U.S. Army OTJAG
  2. LTC Jay Thoman, Chief, Criminal Law Policy Branch, U.S. Army OTJAG
  3. MAJ Wes Braun, Chief Joint Service Policy & Legislation, Military Justice Division, U.S. Air Force Legal Operations Agency
  4. LT Alexandra Nica, JAGC, Criminal Law Division, OJAG
Closing Presentation: The New Transparency: DoD Pacer-like System; Data Collection Ms. Eleanor Vuono, Member, Military Justice Review Group

RSVP by October 30, 2017 to