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Scholarship Saturday: The Canadian Supreme Court has favorably rated the independence of that Nation’s court-martial system

Past articles in this column have covered developments that explore the question of judicial independence in the military justice system. In February of this year, we discussed arguments made before the International Court of Justice wherein India called it a “manifest failing” that military judges in Pakistan’s court-martial system are not “independent of the executive.” India asserted having a judge outside of the executive branch, even in courts-martial, is one of the “indispensable elements of due process . . . in present times with the evolution of human rights jurisprudence.” (Scholarship Saturday: Whether courts-martial are suitable forums for the trial of serious offenses)

Then in April of this year, we covered the D.C. Circuit’s decision in Al-Nashiri, wherein that Court held that it was an “intolerable” conflict of interest for a judge sitting on a military commission to be seeking employment from the agency prosecuting that proceeding. (Scholarship Saturday: Questions regarding military judicial independence in the wake of Al-Nashiri)

Furthering the line of inquiry regarding what it means to be “independent” in the military justice system, New York University’s national security law blog, Just Security, recently published an article penned by the retired Judge Advocate General for the Canadian Forces, Ken Watkin, Brigadier General (Ret), entitled “‘Fiat Justitia’: Implications of a Canadian Military Justice Decision for International Justice.” General Watkin’s article covers the Canadian Supreme Court’s recent decision in R. v. Stillman, a case which bears importance given the fact that “military justice system compliance with human rights norms has increasingly been the subject of international debate and scrutiny.”

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Scholarship Saturday: Justice – a new focus for a military criminal law system plagued by unlawful influence?

Yesterday, the blog Lawfare published a timely piece written by Army judge advocate, Major Dan Maurer, entitled Trump’s Intervention in the Golsteyn Case: Judicial Independence, Military Justice or Both?  In the article, Major Maurer tries to make sense of a variety of recent developments impacting the military justice system.

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First Presidential “Debate” Features MilJus – A Glaring Factual Inaccuracy About MilJus. But MilJus All the Same

[First I know it wasn’t a debate, so don’t hit send on that hate mail you are drafting]

From the Republican Presidential candidate, per NPR (here):

The Pentagon has to set up a “court system within the military,” . . . One today “practically doesn’t exist … Right now, part of the problem is nobody gets prosecuted. You have reported and — the gentleman can tell you, you have the report of rape and nobody gets prosecuted. There are no consequences. … Look at the small number of results. I mean, that’s part of the problem.”

So what the heck has the Mil Jus system been doing for the last five years?  Because all I see them doing is dealing with the issue of sexual assault.

So this post squarely falls into the category of “Rants” because I just can’t take the fact that we have a Presidential candidate that has absolutely no accountability for rolling out a blatant falsehood. The Republican candidate is the political equivalent of Tommy Flanagan on this issue. It is not like the numbers aren’t available either.  See here and here and here . . . and that’s just 2015 numbers, you get the point.  So here are the numbers:

Of the 6,083 initial complaints filed last year, about 1,500 were “restricted,” meaning the victim was a service member who reported the assault but refused to participate in any criminal investigation and only sought healthcare and victims’ support services.

In 2015, military criminal investigators reviewed 4,584 “unrestricted” reports from victims who were willing to participate in a potential prosecution. . . .

After completing investigations, 2,783 cases were sent to military commanders.

. . . .
Commanders launched court-martial proceedings against the alleged perpetrator in 926 cases. Among those, 159 were closed because the alleged perpetrator resigned from the military, and 111 were closed because the case was dismissed in pretrial proceedings.
Of the 543 cases that ultimately went to court-martial, 130 resulted in not-guilty verdicts.
Of the 413 troops convicted at court-martial, 161 resulted in charges unrelated to sex assault.
In 254 cases, a service member as convicted of a sexual assault-related offense.

[edit:  So if the candidate is going to lob out this “nobody gets prosecuted” statement, what’s his solution?  That’s what campaigns are about.]  Let’s look at what the conservative Heritage Foundation and friend o’ CAAFlog, Cully Stimson, said about removing command authority as a way to achieve better success in sexual assault cases in the military:

The facts also do not support this argument. None of our allies has a caseload as large as the armed forces of the United States. Despite this caseload, our current U.S. system remains more effective than those of our allies. For example, the Army installation at Fort Hood alone has a higher conviction rate than Canada Defense Forces and is equal to the Israeli Defense Force in courts-martial for sexual assault offenses.  Most of America’s allies reported that removing the authority to prosecute from the chain of command has slowed prosecutions, and they saw no increase in the number of convictions under the new system.

Article here.  Is that what this candidate is proposing?  Please someone hold this candidate accountable when he just speaks untruths or at least force him to posit a solution to the problem.

Opposing views on civilianizing military justice

A pair of articles published by the War on the Rocks blog debate whether the military justice system can handle serious cases.

Professor James Joyner and retired Marine LtCol James Weirick write Sexual Assault in the Military and the Unlawful Command Influence Catch-22:

For minor offenses — many of which aren’t crimes in the civilian world — the uniqueness of the military occupation, exigencies of location, and considerations as to whether an individual is otherwise a “good soldier” make the longstanding practice of commanders having a heavy influence vital for “good order and discipline.”

But felonies are a different matter. There, the aim is punishing transgression and separation of a bad egg from not only the military ranks but society at large. The civilian courts, lacking the conflict of interest inherent in military command, are simply the better venue for dealing with that.

The shared experiences of our allies — the United Kingdom, Canada, and Australia — have demonstrated that removing felonies from their systems of military justice has increased the fairness and transparency of criminal trials, while maintaining the commander’s ability to ensure good order and discipline.

Retired Air Force Major General Charles Dunlap responds with: Civilianizing Military Justice? Sorry, it Can’t – and Shouldn’t – Work:

Consider that the Supreme Court has observed (albeit in a different context) that the “complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments” adding a key reflection: “it is difficult to conceive of an area of governmental activity in which the courts have less competence.” Yet these are the very areas in which military discipline is so important.

Separate out “military” offenses from “civilian” offenses? Been there, done that. The Supreme Court finally gave up in 1987, finding that the military justice system had jurisdiction over all offenses committed by those in uniform. This could be an implicit recognition that in the extraordinarily complex task of preparing people to kill other human beings in the name of the state, the disposition of “civilian” misconduct cannot be separated from overall troop development and combat readiness. Savvy military leaders keenly understand the holistic nature of their leadership responsibilities, along with the imprudence of outsourcing discipline to civilians not equipped to deal with it appropriately and who do not bear the responsibility for battlefield success that is so intrinsically linked to a well-disciplined force.


Military Justice News for Tuesday, October 28, 2014

A case in the Air Force out of Dover AFB. Civilian prosecutors dropped a child sexual abuse case, but the military pushed forward. Air flforce Times has the report on SGTbJesus Munoz’s acquittal here. The Sergeants attorney’s spin:

“We presented housing and deployment records” at the trial, Waddington said. When the child testified, “he admitted he and his mother had been practicing a long time what he should say [on the stand]. … He said that if he didn’t come up with something, [he] was going to get in a lot of trouble.”

Patrick Air Force base public affairs had not responded Monday to an Oct. 24 request to speak to the prosecutor on the case.

Does this make the system look better or worse that it takes cases civilians refuse to prosecute and then the prosecution loses the case?  Because it happens in the sexual assault area a lot.

Iraq war deserters still in Canada, Winnipeg News reports here.

The Air Force is investigating how Chief Master Sergeant Eric Soluri was promoted three times after being convicted and serving jail time for a domestic violence offense. AF Times report here.

MSGT Timothy Hennis files ex write at CAAF, FayObs report here. Hennis, for our occasional reader, was tried three times for the murder of Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty.  She was raped and killed in the Eastburn family’s home outside Fort Bragg on 9 May 1985.  The Eastburns’ three- and five-year-old daughters were also murdered.  Their infant baby was left alone in her crib.  The baby’s cries two days after the murders alerted neighbors that something was wrong.  Law enforcement officials quickly focused on Timothy Hennis, a soldier at Fort Bragg who had been to the Eastburns’ home to pick up a dog a few days before the murders.  In 1986, Hennis was tried by the state of North Carolina for the three murders and rape.  He was convicted and sentenced to death.  The North Carolina Supreme Court reversed the conviction, holding that the trial court erred by allowing the prosecution to present numerous grizzly crime-scene and autopsy photographs during the guilt/innocence stage.  State v. Hennis, 372 S.E.2d 523 (N.C. 1988).  Two justices dissented.  Id. at 528-31.  In 1989, Hennis was retried by the State of North Carolina and acquitted.  After advances in DNA revealed new evidence implicating Hennis, the military recalled him from the retired list to try him–his recall and the question of jurisdiction is the source of his ex writ–where he was convicted and sentenced to death.   See the rest of the story at our Top 10 post here.

Thanks to all of our zombie contributors for correcting my hastily posted prior version–it is your week and all.

Military Justice News for July 27, 2013

Manning court martial closing arguments wrap up, AP (via WaPo) here, NBC News Blogs here, BBC here, and WaPo here. Judge Lind now has the case and could call attorneys back with a verdict at any time.

Military Justice News for Apr. 30, 2013

A general court-martial at Joint Base Elmendorf-Richardson will hear testimony on involuntary manslaughter and negligent homicide charges against Ar,y SPC Marshall Drake, SF Chronicle coverage here.  The charge stem from a Christmas Day barracks shooting of another soldier. The incident led the CG at JBER to ban alcohol in the barracks.

PFC Kimberly Rivera, who fled to Canada before a second deployment to Iraq, was sentenced to ten months confinement and a BCD after pleading guilty at her court-martial yesterday reports the Colorado Springs Gazette, here. WaPo coverage here.

I haven’t commented on the hunger strike at Gitmo, but now that the AMA has raised questions about force feeding, I wonder if there is a legal challenge coming? Coverage here (Reuters) and here. H/t DefenseNews EB.

Military Justice News for Apr. 29, 2013

A soldier that left for Canada is charged with desertion at Ft.  Carson.  See Denver Post coverage here of PFC Kimberly Rivera’s charges.

Rivera went to Canada in February 2007 after saying she could no longer support the mission in Iraq,where she had served a year earlier,The Associated Press reported.

Rivera applied for permanent residency,but Canadian immigration officials ordered Rivera,a mother of four,and her family to leave the country or face deportation in January 2009. Rivera was arrested at the U.S. border last year and taken into military custody.

The Colorado Springs Gazette reports, here, that a now former USAFA cadet was found guilty of abusive sexual contact and given a sentence of time served and a dismissal. The former Cadet, Jamil Cooks, was said to have been slated to be a starter in the USAFA football team in 2012, before this incident, report here.

San Fran organization decides tapping PFC Manning as gay pride celebration grand marshall would be a mistake. See Guardian report here. H/t PC.

Ali op

Here’s the Solicitor General’s opposition to the cert petition in Ali v. United States, No. 12-805, dealing with the permissibility of court-martialing a civilian contractor accompanying U.S. forces in a combat zone.

The cert petition is available here.

The Questions Presented by the cert petition are:

1. Whether Congress’s decision not to create federal district court jurisdiction for the trial of a class of civilians supporting military forces overseas provides sufficient constitutional justification for subjecting such civilians to trial by court-martial.

2. Whether a citizen of a foreign country serving as a civilian contractor in support of the United States military’s mission overseas is entitled to Fifth and Sixth Amendment rights in connection with criminal prosecution by the United States.

Here are the QPs as presented by the SG’s opp:

Under 10 U.S.C. 802(a)(10), “persons serving with or accompanying an armed force in the field”  during a “declared war or a contingency operation” may be tried for violations of the Uniform Code  of Military Justice (UCMJ) in a court-martial.  Petitioner, a citizen of both Iraq and Canada who  served as a civilian interpreter with a U.S. Army unit in Iraq, was charged in a court- martial  with three violations of the UCMJ. He pleaded guilty and was sentenced to 115 days of confinement  previously served. The questions presented are as fol- lows:
   1. Whether Congress lacked the power under Arti- cle I of the Constitution to authorize  the  exercise of court-martial jurisdiction over petitioner.
   2. Whether the exercise of court-martial jurisdiction over petitioner violated the Fifth and Sixth  Amendments.

Manning Plea Coverage

Lots of coverage of PFC Manning’s pleas today. BBC (here), WaPo (here), and CNN (here) are just a few. Judge Lind accepted the pleas, which did not include pleas to the espionage and aiding the enemy charges.  Max punishment on the offenses he pleaded to today is 20 years. No word on the G’s decision on the remaining charges.

Military Justice News for Feb. 21, 2013

AF Times, here, and the San Antonio Express News, here, report that the military judge in the latest Lackland military training instructor case has suppressed key evidence in the case due to an illegal search. The report says that the government retrieved text messages from TSGT Samuel Wicks mobile phone without a warrant after his ex-girlfriend stole the phone from his office. No word yet on an Art. 62 appeal or the viability of the charges which include inappropriate but non-sexual (at least that’s how I am reading it) relationships with three recruits and an unspecified indecent act. [Update] Am I reading the SN-E story correctly that Judge Ellers dismissed all the charges?  Anyone on the ground at Lackland able to say what the ruling actually was . . . or even provide us a copy?

Sentencing for one of the Canadian officers involved in the training range death im Afghanistan resulted in no jail time. The officer, a Major, was demoted and given a “severe” reprimand. CBC report here. Sentencing in the case of the retired warrant officer recalled to face manslaughter charges is next month.

An Art. 39a session will be held today in the BGEN Sinclair case at Ft. Bragg. The Fayetteville Observere reports, here, that the military judge could rule of the trial counsel disqualification issue today. Trial is set to begin May 13th with a current witness list that looks more like an Army GO directory–including the Army Chief of Staff.

Military justice news for February 12, 2013

Here is a link to WaPo coverage of allegations by Gitmo defense lawyers about eavesdropping on attorney-client communications.

More coverage here of Lackland instructor SSGT Craog Leblanc’s court-martial here. Leblanc’s counsel brought a UCI motion yesterday claiming unlawful command influence by the Army Chief of Staff:

Jordan’s motion said Welsh had hurt LeBlanc’s chances to have a fair trial by telling the House Armed Services Committee that instructors who have had liaisons with trainees should be booted out of the Air Force.

Saw this when reading the LeBlanc story and it raises a recurring lesson learned, drinking with recruits never ends well:

A Navy recruiter was arrested Monday afternoon on a charge of sexual assault of a 19-year-old woman who visited the Alamo Heights recruiting office in December.

Juan Jose Pena, 28, was taken into custody at Joint Base San Antonio-Fort Sam Houston, according to an Alamo Heights Police Department news release.

The alleged victim went with another woman to the recruiting office in the 5200 block of Broadway on Dec. 21 because she wanted to talk about her enlistment plans, police said. Pena asked the two women to stay at the office and drink with him.

Both women stayed and became intoxicated, police said, and during that time, Pena allegedly raped the recruit.

Closing arguments wrapped up the court-martial of a retired Canadian warrant officer in Manitoba for charges related to a range training death in Afghanistan. Coverage here (CBC News).

A UN investigation found evidence of torture in Afghan prisons, see NYT report here. The investigation poses problems for US detention efforts as various conventions/treaties prohibit the transfer of battle field detainees if there is credible evidence they will be tortured by the receiving country (that’s a tortured summary, but you get the picture).

Military Justice News for Feb 11, 2013

Here, AP via San Antonio Express-News, is a link to a preview of this week’s Lackland AFB instructor court-martial. SSGT Craig LeBlanc is accused of sexual misconduct with AF trainees:

Charges against him include obstruction of justice and making a false official statement. He also is accused of using his post as a military instructor to sexually assault and pursue a sexual relationship with one female trainee and have a wrongful sexual relationship with another.

Closing arguments are scheduled for today in the case of a retired Canadian warrant officer recalled for a manslaughter trial stemming from a range accident in Afghanistan. Canadian Press report here.

The Boston Globe reports, here, on efforts to update the 2001 AUMF, the source of so much of the President’s “wartime” authority for military commissions, drone strikes, etc.

Military Justice News for Jan. 29, 2013

Canadian military officials can recall and try retired servicemembers too.  See reports here (The Canadian Press via and here (AP via Yahoo News).

Two more training related courts-martial from Lackland start today. AP (via Texas News 13) report here.

More from the Sinclair Innocence website as reporters dig into text messages from the accuser and other information on the site. Army Times report here.

More coverage of MAJ Hasan maneuvers to nix the potential death penalty for the Ft. Hood shootings.  Report here.

Military Justice News for Aug. 31, 2012 [Updated]

PORTER CO Fired After Collision
Another Navy CO fired, this one not exactly unexpected after the USS PORTER collided with a Japanese flagged tanker outside of the Straits of Hormuz.  Navy Times report here.

SEAL Author May Land in Court Over Bin Laden Raid Tell All
From Defense News, here, DoD is contemplating legal action against the former Navy SEAL whose account of the Bin Laden raid was recently published and released nationwide. Apparently the DoD General Counsel has sent a pre-litigation letter to the publisher noting various agreements the Sailor made not to disclose classified information.

Update:  MAJ Hasan Clearly Has Death Wish

Hasan was in Court yesterday in full beard.  Local news reports, here, the exchange he had with the Military Judge:

Military Judge Col. Gregory Gross asked Hasan if he had any comment about his refusal to shave his beard right after Gross held Hasan in contempt for appearing in court unshaven and Hasan responded that because of almighty Allah and because of his Muslim religion he is wearing the beard.

Keep that up and the DP is even more certain, if it isn’t already signed, sealed, and delivered.  I refer back to my comment yesterday on what the govenrment should do about all this.  More coverage here and here.

Deserter Ordered Deported by Canada

Canada ain’t all it is cracked up to be for deserters any longer.  Canadian deportation proceedings report here.

Manning Trial Scheduled for Six Weeks in February and March 2013

Judge Lind scheduled trial for February 4 to March 15, 2013 for PFC Bradley Manning.  Coverage here and here.  Covereage oy yesterday’s hearing here.  Another pre-trial hearing is scheduled for Oct. 17-18, 2012.