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Today is the second day of the International Society for the Study of Military Law and the Law of War’s Rhodes Conference on Military Jurisdiction. It’s been a decade since the Society’s first such conference, and much of the conversation so far has focused on the changes those ten years have wrought and rising interest in military justice worldwide.  In Europe in particular, the trend has been toward shrinking military jurisdiction in favor of increasing civilian capacity—through education, reform, and better communications technology—to enforce military justice.

 

Yesterday, accomplished speakers from the Belgian and French ministries of defence described the extent of efforts to not only limit, but nearly abolish, the jurisdiction of military courts.  Reports from legal officers, jurists, and scholars described major shifts in military prosecutorial authorities, judicial review, and jurisdiction in nations including Australia, Cameroon, Canada, Ireland, Palestine, and Tunisia.

 

In response to this trend away from comprehensive military jurisdiction, members of the audience raised many questions, including whether discipline in the field can be maintained without a portable military justice system and whether a civilian bench can provide adequate oversight.  Eugene R. Fidell, a longtime supporter of the Society and member of its Board, chaired a session on recent revisions in military justice and commented on the U.S. experience with civilian judicial review. He noted the often broad deference to the military practiced by the U.S. Supreme Court and suggested that justices without military experience were apparently more, not less, likely to defer to military decisions.

 

This morning’s sessions begin a few minutes, so I’ll close by noting the 9th circuit’s opinion vacating the district court’s opinion in the Log Cabin Republican challenge to “don’t ask/don’t tell” ends another chapter in civilian review of military action.

As of Sept. 12, 2011, the National Institute of Military Justice blog will join CAAFlog in a new blog venture, NIMJ blog CAAFlog. We look forward to an exciting collaboration between contributors to both blogs. We also hope to inspire more interaction among our readers, who now have access to a single source of current news and commentary on military justice worldwide. We encourage you to visit NIMJ blog CAAFlog often and join us in following military justice worldwide. The NIMJ blog archive, and some of our online resources, are also available on the new site. Please direct any questions to nimjemail@gmail.com. Thanks for your support, and we’ll see you at NIMJ blog CAAFlog.

h/t Opinio Juris, Kevin Heller comments on, “CMCR invents the war crime of conspiracy,” he begins:

Even I thought the Court of Military Commission Review couldn’t reach such an absurd conclusion. . . . The CMCR’s reasoning is, not surprisingly, a complete joke.

As reported by the Atlantic, included at the end of the Senate’s version of the National Defense Authorization Act is a measure that would require that all terrorist suspects be placed under immediate military custody rather than being placed with civilian law enforcement agencies.

As it stands, the President can decide whether to place a terror suspect with the military or with law enforcement agencies, and the latter is often preferred because of their expertise in interrogation and intelligence gathering.

This measure was inserted by Sen. John McCain, who has criticized the use of law enforcement agencies in these situations because they allow terrorist suspects to be “lawyered up” despite the pressing need for intelligence. This measure has been criticized because it would force agencies like the FBI to suspend productive interrogations in order to hand suspects over to the military, and it would “pave the way for the military to conduct law-enforcement activities on American soil,” which contravenes the Posse Comitatus Act of 1878. Critics also say that the measure is broad enough to encompass American citizens who are suspected of terrorist offenses.

Jeh Johnson, the Pentagon’s General Counsel, expressed concern about “overmilitarizing our approach to the current terrorist threat,” while Republican aids insist that the military is “better-suited” because it can “detain [terror suspects] indefinitely and interrogate them without advising [them] of the right to remain silent or giving them access to a lawyer.”

This measure will be debated late-September.

Several times over the past couple of months, I’ve written about the military council in Egypt’s plans to end the use of military tribunals to try civilians. On Monday, a top general said that that “as quickly as possible” this practice will come to and end, but no firm deadline has ever been set.

Ironically, a demonstration is reportedly planned for Friday to protest the use of military tribunals, even though the council justifies the use of military tribunals as the only way to handle repeated demonstrations in the country in the absence of an independent and impartial judiciary.

From SANTIAGO, Chile AP) — A police sergeant accused of killing a teenager during Chile’s social protests will face military justice despite objections Wednesday from student leaders and human rights advocates.

The Connecticut Law Tribune has an interesting piece.


A Lesson From Mexico About Military Courts

In July, the Mexican Supreme Court decided a case that arose from the 1974 “disappearance” of a civilian by Mexican military personnel. At issue was whether those responsible could be prosecuted in a military court or whether they had to be prosecuted in the civilian courts. Following a 2009 decision of the Inter-American Court of Human Rights, the Mexican court ruled in Rosendo Radilla Pacheco that human rights violations by soldiers must be tried in the regular common law courts. According to Chief Justice Juan Silva Meza, “Under no circumstances should the military tribunal operate in cases of human rights violations involving civilians.” Alberto Herrera, head of Amnesty International’s Mexican branch, cautioned, “We can transfer all the cases we want, but if civilian justice doesn’t function, none of this will amount to much.”

The preliminary hearing of Lt. J.G. Paul A. Sprenger begins today. In August, he was arraigned on charges of burglary, assault on a police officer, harassment, resisting or interfering with arrest, and criminal mischief. He is suspected of attempting to break into Tongass Towers in Ketchikan, Alaska.

Sprenger has been temporarily relieved of his duties and reassigned while the investigation is pending.

Three Marines based in Hawaii are accused of beating and taunting Harry Lew hours before be killed himself in April of this year.

These Marines allegedly forced Lew to perform “excuciating excersises in his full combat gear,” poured sand on his face, kicked him, and threatened to beat him up – all because he would fall asleep while manning a guard post. Lew’s father believes that allegations of his son’s poor performance on the job was just an “excuse to beat him up.”

At a hearing on Sept 8, a judge will decide whether to recommend charges.

Testimony during the second court-martial of Canadian Cpl. Matthew Wilcox is revealing that the kind of weapons abuses that allegedly resulted in Wilcox shooting and killing Cpl. Kevin Megeney are somewhat routine at Kandahar Air Field. For example, although all weapons inside the base must be unloaded, this rule is “consistently violated by Canadian and other coalition troops . . . on a daily basis.”

Capt. James Young, an infantry instructor, partially blames the “incredibly busy, congested and complex environment” at KAF. Currently, 10,000 soldiers occupy the base which was built for only half that many people.

Details on the testimony of Master Cpl. Andrew Noseworthy can be found here.

The court-martial of Staff Sgt. Frank Wuterich, accused of leading a team of Marines in a raid that killed 24 Iraqis in 2005, will proceed without further delay. Wuterich wanted his former lawyer who had left for private practice to return to represent him, but the NMCCA decided that he had “sufficent representation” and “it is time to place this matter before a trial court for a verdict.”

Six other Marines charged in this matter had their charges dismissed, and one was found not guilty.

In two recordings published on dailymotion.com, Former Chief of General Staff Işık Koşaner is heard making several contraversial statements, including recounting that the military had violated the law in its fight against the PKK and confirming the authenticity of certain documents that describe the Sledgehammer Coup Plot. This week, it was reported that Koşaner admitted the voice belonged to him.

Many of the published conversations are from discussions he had with other high-level state officials and speeches he made during his visits to various units. Some are calling for an inquiry into some of the statements, but Koşaner insists that he made most those statements only in an effort to help the military “learn from its mistakes.”

More details can be found here.

Last week, in a letter that Behenna wrote to his supporters, he criticized the “unchecked and ‘under the table’ injustice that runs rampant in our military justice system.”

Behenna’s full letter can be read here on a website created by his parents and dedicated to his defense.

Like the U.S., the British and Australian forces in Iraq have had their share of detainee and prisoner abuse allegations.  It appears that the British government will soon release the results of an official inquiry to determine whether there were systemic abuses.  Now The Sunday Telegraph reports:  

A three-year inquiry into how a prisoner died in British custody in Iraq will clear the Army of operating a systematic regime of torture.

According to The National

The report in The Sunday Telegraph – whose accuracy was later confirmed by government officials – said the inquiry will criticise the brutal conduct of individual soldiers and the “numerous failures” of officers to tackle the problem.

 Publication of the report, scheduled for September 8, is expected to lead to calls for a full public inquiry by lawyers representing 40 Iraqis who claim to have been tortured by British forces.  

Sir William Gage, a retired Appeal Court judge, chaired the three-year inquiry, which focused on the death of Baha Mousa, 26, a Basra hotel worker, and the abuse of nine other Iraqis arrested with him six months after the invasion.

(Emphasis added.)
[N]ext month’s report will not end legal action over British Army conduct in Iraq; so The Telegraph opines.

Human rights lawyers, who represent up to 40 Iraqis who claim to have been tortured as well as the family of Baha Mousa, are expected to call for a full public inquiry and may bring legal action in an attempt to force one.

It will be interesting to see if these litigants fare better than those who have attempted to sue in U. S. courts. 


Here are some additional points from The Guardian.


Gage is expected to point to a catalogue of failings that led to the death of 26-year-old Mousa, who was arrested with nine other Iraqis at the Haitham hotel in Basra by soldiers of the 1st Battalion The Queen’s Lancashire Regiment (QLR).


Mousa died after 36 hours in detention. A postmortem found he had suffered asphyxiation and at least 93 injuries to his body, including fractured ribs and a broken nose. Sir Michael Jackson, Britain’s top general at the time, described the episode as “a stain on the character of the British army”.

Miami Herald reports:

Rear Adm. David B. WoodsThe Pentagon has quietly installed a Navy aviator who lost classmates in the 9/11 attacks as the 11th commander of its Guantánamo detention center in Cuba.

Here is a 2011 biography of RADML Woods