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Military Justice News – Oct. 10, 2011

Co-authored by Mike “No Man” Navarre

Egyptian Unrest May Lead to Military Trials of Civilians

The Atlanta Journal-Constitution reports, here, that the “worst sectarian violence” since the Egyptian uprising began took place on Sunday after a peaceful protest against attacks on churches turned into a riot resulting in the deaths of 26 people.  There has been some confusion about what this outbreak of violence means for the trial of protesters in military courts. AlMastry AlYoum reports that while the head of the Supreme Council of the Armed Forces said that arrested protesters will not be tried in military courts, the Justice Minister clarified that those crimes which took place in “the military domain” still fall under their jurisdiction. In the case of many of these protesters, this includes those that used violence against members of the military and in some situations unarmed civilians.

Canada’s Military Justice System Gets a Face-lift

The Minister of National Defence in Canada introduced legislation aimed at strengthening the judicial independence of military judges, providing more flexible sentencing guidelines, and improving the representativeness of the court martial panel.  As a Canadian Defence Forces background piece on the new legislation, here, summarizes, the bills come in response to the recent decision of the Court Martial Appeal Court of Canada in R. v. Leblanc and adopt recommendation from a nearly decade old report by former Canadian Supreme Court Chief Justice Antonio Lamer.  As we previously noted, here, the court determined that the provisions in the National Defence Act and the Queen’s Regulations and Orders for the Canadian Forces regarding the appointment and retirement of military judges “do not sufficiently respect judicial independence as required by section 11(d) of the Canadian Charter of Rights and Freedoms.”  The bills were prepared during a six month grace period before the Court’s opinion invalidating portions of the Code of Service Discipline went into effect.   The bills can be viewed here.

ArmyTimes on “Sexting” And Military Justice 

According to the Army Times, here, defense attorneys have seen a “spike in inquiries from service members accused of crimes or violations stemming from [sexting].”  The report notes that while sexting — the exchange of sexually explicit images and messages via digital media – is legal between adults, like any other activitiy permitted in civilian life, in the military it can constitute fraternization or lead to charges under the UCMJ or other action if deemed inappropriate under the circumstances.  The article also notes that some “single service members and couples embrace discreet sexting as a means to maintain a romantic connection through long deployments and other times of extended separation.”  With the apparent increase in sexting among troops, the Army may respond with a policy to address the activity because none currently exists.

Trends in international military justice

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.

Wilcox court-martial reveals routine weapons abuses at KAF

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.

Casey Anthony and Military Prosecutions

While the rest of the focus in DC is on the debt crisis, here is my reaction to other recent “big” news–the Casey Anthony verdict:

During the past couple of weeks of over-hyped coverage of the Casey Anthony murder acquittal and her subsequent release from jail, politicians with whom I usually agree have used outrage at the verdict as justification for expanding the use of military trials for suspected terrorists. Recent legislation even seeks to strip citizenship before trial so the defendant is eligible for a military commission.

It is apparent that most favoring such proposals have no knowledge of the traditional military justice system, much less the military commissions. Having attended two military commissions at Guantanamo Bay and spent years prosecuting and defending military cases, please indulge my filling in the gaps.

In their current form, military commissions are untested, seldom-used tribunals of limited jurisdiction, but politicians tout them as if they were the gold standard for prosecuting cases. First, they forget all accuseds in military commissions have uniformed attorneys represent them at government expense, while civilian defendants must show an inability to afford counsel in order to have the government pay their attorney’s fees. Second, the law governing the commissions allows the prosecution of only a handful of crimes, and the most often-charged offenses at these trials may not survive appellate review. Civilian charging options are far broader and have withstood the test of time, thereby preventing victims and their family members from having to relive the horrors of 9/11 and other crimes in yet another trial, should the appeals courts continue to strike down aspects of the commissions system.

One additional point missing from this debate is the matter of sentencing. In civilian court, we often see terrorists sentenced to life in prison without the possibility of parole. The federal judicial system has mandatory minimum sentences, while “no punishment” is the minimum sentence available for nearly all military offenses, including those tried in military commissions. In the six (yes, only six completed trials in nine years) military commissions held to date, the court members have sentenced only one person to life in confinement. One-third of those sentenced were freed years ago, and one more, Omar Khadr, is set for release to Canada this fall.

The Anthony case does highlight a key part of all trials in America—court verdicts are not pre-determined. At the close of the evidence, one can never predict with certainty whether the case will end with a guilty verdict. This is true for military cases also. The jury or panel, as a military jury is called, is always the X factor in a trial. In fact, in the first military commission tried at Guantanamo Bay, the panel acquitted Usama bin Laden’s driver/bodyguard of the most serious charges against him and sent him home to Yemen mere months later.

Nobody in the post-9/11 world wants the responsibility for failing to stop another attack, and that has prompted our fear of the unpredictability that characterizes a free nation’s court systems. There is a means of ensuring convictions for every suspected terrorist. We could just forego trials entirely and confine for life anyone accused of such crimes, or we could go through the charade of a trial whose verdict we know will be guilty because we require such outcomes. Of course, that would place us in league with nations like Iran, which continues to hold two American hikers without trial.

Is that the America the Founders created and today’s military members defend? I hope not.

Canada’s Federal Court rules for U.S. Army deserter [updated]

Here’s a link to an Federal Court of Canada decision from Monday overturning a denial of refugee status for a U.S. Army deserter.  [UPDATE:   I understand that as a result of the opinion, Vassey will receive a new review of his refugee status request by a different panel of the Immigration and Refugee board.]  

The court concluded that the Immigration and Refugee Board had insufficiency analyzed expert opinions onVassey’s behalf concerning the U.S. military justice system’s fairness in handling desertion cases.  The case involved a conflict of experts on the U.S. military justice system, with Donald G. Rehkopf, Jr., Professor Eugene Fidell, Marjorie Cohn, and Kathleen M. Gilberd on Vassey’s side opposing Professor Victor Hansen on the Canadian government’s side. 

The court reasoned: 

Given that the applicant would not be able to present evidence of his motive for desertion nor of the illegality of the conduct that he was required to perform in Afghanistan which could demonstrate a breach of the Geneva Conventions on the rules of armed conflict, this goes directly to the availability of state protection.

. . . .

The applicant argued before Board that there is no state protection for the discriminatory application of prosecutorial discretion. The applicant presented evidence before the Board indicating that while the large part of deserters are administratively discharged, those who speak out publicly against the war in Iraq were selected to be court-martialled and prosecuted for desertion. This Court recognized the disproportionate prosecution for desertion of those who have spoken out against the wars in Iraq and Afghanistan.

[T]he UNHCR handbook, as well as [Canadian case law], hold that where prosecutorial discretion is used to inflict a disproportionately severe punishment on a deserter because of his or her political opinion, this may amount to persecution.

The opinion was written by Justice André F.J. Scott, a Harper appointee.

h/t Delta Papa

MIlitary Justice News from Around the Globe

Australia Evidence: Cadets had consensual relationship before alleged rape in 2-decade-old case.

Bahrain
Time profiles harsh military court sentences for political activists.

Canada
Two soldiers were charged in a fellow soldier’s training incident death in Afghanistan.  “The charges against Major Darryl Watts and Warrent Officer Paul Ravensdale each include one count of manslaughter for Corporal Joshua Caleb Baker’s death, four counts of unlawfully causing bodily harm for the four soldiers who were injured, and negligent performance of a military duty.”

Egypt
The brother of the new al-Qaeda leader faces a military court.  Mohammad al-Zawahri, who was held for over a decade before the recent political upheaval in Egypt will be retried on charges related to his own al-Qaeda membership.

India
Defense presents information in Sukna land scam case of Lieutenant General (retired) Awadesh Prakash.

Mexico
Navy denies recent forced disappearances.

Nepal
This article provides background on sexual minorities in the Nepalese military and the recent judicial repudiation of the military justice system.

Rwanda
A military court held Lt. Col. Ngabo Rugigana will remain in provisional detention as an investigation into whether he threatened national security.

South Korea
Two Marines face charges in the shooting deaths of four fellow military members.  One is the alleged triggerman, while the other is believed to have helped him obtain weapons for the incident.

Suriname
President Desi Bouterse claims there’s no conflict of interest in nominating individuals to sit as military judges because he doesn’t select the judges. By the way, Bouterse’s own court-martial for murder begins/resumes in December.

Syria
An Army deserter claims he received orders to shoot unarmed protestors.

UK
A court-martial found a Royal Navy medic conscientious objector guilty of disobeying an order for refusing arms training.  The court sentenced Michael Lyons to dismissal from the service, 7 months in confinement, and a demotion in rank.

It seems US service members aren’t the only ones who face charges of obtaining allowances to which they’re not entitled.  A Royal Navy officer’s court-martial is underway for just that.  Who knew the Brits paid for boarding school for military dependents?

UPDATED: Court martial process deemed partly unconstitutional

The Montreal Gazette reports that parts of the Canadian military court process were deemed unconstitutional today by the Court Martial Appeal Court of Canada.  The court questioned the independence of judges under the current system.  The court ruled the frequency of tenure renewal for military judges, who are appointed on five-year terms, could affect the appearance of impartiality during military court procedures. It struck down the renewable five-year terms and the process for reappointment.  Justice Gilles Letourneau said the military judges must appear “constitutionally independent of the chain of command and the Executive.”  The court ruled its “declaration of invalidity” will be suspended for six months to allow government to make the necessary changes to legislation to move the decision forward. 

Update:
Here is a link to the decision.

Court Martial Appeal Court of Canada holds judicial term and tenure aspects of Canadian court-martial system are inconsistent with the Canadian Charter of Rights and Freedoms

Canadian military judges serve for five year renewable terms.  The Court Martial Appeal Court of Canada today held that arrangement is unconstitutional.

Here’s a link to today’s Court Martial Appeal Court of Canada’s decision in LeBlanc v. Regina, 2011 CMAC 2.  The lead opinion (which was joined in full by the other two members of the three-judge panel) concludes that “the appointment process for military judges for five-year, renewable terms breaches the guarantees provided under paragraph 11(d) of the Charter.”

The lead opinion reasoned, “[W]e are at a point where . . military judges exercise the full powers of superior and provincial courts of criminal jurisdiction, with the exception of the power to try a person charged with the offence of murder, manslaughter and child abduction under sections 280 to 283 of the Criminal Code committed in Canada.”

The opinion observed that “Judges of superior courts of criminal jurisdiction enjoy a constitutional guarantee of security of tenure” and that “[s]ecurity of tenure for judges is, along with administrative independence and financial security, a component of judicial independence.”

In finding the tenure provisions for military judges unconstitutional, the lead opinion observed:

For civil and criminal courts and the judges who sit on them, it was decided that the three components of judicial independence, including, particularly with regard to security of tenure, the requirement of the granting of an office during good behaviour, are constitutionally required in order to comply with the right to a hearing by an independent and impartial tribunal. It seems inconceivable to me, and I say this with all due respect for the contrary view, that military judges,who exercise the same functions and have essentially the same powers as superior and provincial courts of criminal jurisdiction, should be subject to the whims, the unknowns, the uncertainty and anxiety of having their positions come up for renewal every five years. In fact, they are the only judges with such jurisdiction to be subject to short, renewable terms of employment.

The opinion continued:

Before a General Court Martial composed of a panel of members of the chain of command, the accused, who will be led from the hearing room in handcuffs to serve a life sentence without the possibility of parole for 20 or 25 years, must have the assurance, indeed the firm conviction, that the presiding military judge enjoyed the security of tenure necessary to ensure the fairness of the proceedings he or she has been subject to. The accused person must also be able to be confident that the sentence he or she received was imposed by a military judge who enjoys the constitutional protection required to ensure the legitimacy of the sentence. I do not believe that five-year renewable terms for military judges provide the necessary constitutional protection, especially if you consider the added fact that it was considered necessary to give such protection to civilian judges exercising the same functions.

The lead opinion concluded that military judges’ retirement age should be the same regardless of rank.

While expressing holding several statutory provisions to be unconstitutional, the lead opinion suspended those statutes’ invalidation “for a period of six months from the date of this judgement in order to allow Parliament to make the necessary legislative corrections.” 

h/t NIMJ blog

Outside Review for Canadian MJ System

Retired Chief Justice of the Ontario Supreme Court, The Honourable Patrick J. LeSage, will review the past 15 years or so of changes to Canada’s National Defence Act in an effort to ensure the military justice system isn’t too far out of step of the civilian system and is fair overall.

United States v. Khadr, 2011 ONCA 358

On May 6, 2011, the Ontario Court of Appeal, in an opinion by Sharpe, J.A. (left), upheld an order refusing to extradite Abdullah Khadr (brother of Omar Khadr) to the United States. The decision is available here. The extradition judge had made the following key findings:

“1. Khadr was captured in Islamabad, Pakistan by the ISI at the behest of the United States, who paid a $500,000 bounty for his arrest.
“2. Khadr was initially sought by American officials solely for intelligence purposes and not for criminal prosecution purposes.
“3. I am satisfied that Khadr’s detention by the ISI was both arbitrary and illegal, according to the law of Pakistan.
“4. During his initial three days of detention, Khadr was mistreated and physically abused, but not on the level of severity he alleges in his affidavit. I am satisfied that the United States intelligence agency did not have actual knowledge that Khadr would be abused when it paid the bounty for his arrest. However, I am equally satisfied this agency ought to have known that there was a credible risk he would be mistreated.
“5. Khadr’s rights to consular access without delay were denied by Pakistan. The United States and Pakistan collaborated in this delay in order to facilitate the completion of American intelligence interrogations.
“6. I am satisfied for reasons previously stated that the United States intelligence agency pressured the ISI to delay Khadr’s repatriation to Canada for a period of six months. The delay was caused by American dissatisfaction with the decision to return Khadr to Canada without charges being laid. This delay was contrary to Canadian officials’ expectations and wishes that Khadr be repatriated. It was a source of frustration: Canadian officials had fully expected Khadr to be released and had made preparations for his return to Canada.”

Canadian court martial begins for second time

A Canadian court martial began for the second time in the killing of a tentmate in Kandahar, Afghanistan.  The Canadian Press reports that a new court martial for a former soldier charged in the fatal shooting of a fellow reservist in Afghanistan began today.  Matthew Wilcox was found guilty in July 2009 of criminal negligence and negligent performance of duty in the death of Cpl. Kevin Megeney.  However, the Court Martial Appeal Court of Canada set aside the guilty verdict last year after Wilcox’s lawyers argued the makeup of the military jury was unfair.  Wilcox’s legal team argued the military panel hearing the case should have consisted of five members, instead of only four. One member on the panel was excused due to a conflict with a work commitment but he wasn’t replaced with an alternate.  During the first trial, the prosecution put forward the theory that Wilcox and Megeney were playing a game of “quick draw” in their tent at the Kandahar Airfield base when Wilcox’s loaded pistol accidentally fired, hitting Megeney in the chest.

State Dept. spokesman defends confining Manning but blasts his treatment

Per BBC World News, U.S. State Department spokesman P.J. Crowley defended the continued detention of PFC Bradley Manning, saying Manning “is in the right place.”

Responding to questions from his audience at M.I.T., however, Crowley lambasted Manning’s treatment as “ridiculous and counterproductive and stupid.” Asked if his remarks were on the record, Crowley replied “sure.”

It will be interesting to see whether DoD has any comment about the remarks.

Fall 2010 Military Law Review online

The Fall 2010 issue of the Military Law Review is now online here.  While I haven’t had a chance to read it yet, several of the articles appear to be fascinating. 

The lead article is Samuael Brenner’s, “I Am a Bit Sickened”:  Examining Archetypes of Congressional War Crimes Oversight After My Lai and Abu Ghraib, 205 Mil. L. Rev. 1 (2010).  The next article is Major Christian L. Deichert’s Is Germany the New Canada?  One American Deserter’s Request for German Asylum, 205 Mil. L. Rev. 94 (2010).  The next article is Major James T. Hill, Achieving Transparency in the Military Panel Selection Process with the Preselection Method, 205 Mil. L. Rev. 117 (2010).  And while not directly onpoint for military justice purposes, military lawyers will nevertheless be interested in the fabulous Professor Jack Goldsmith’s Solf-Warren Lecture in International and Operational Law, Reflections on Government Lawyering, 205 Mil. L. Rev. 192 (2010).

Clarification on Colonel Russell Williams and Canadian Military Jurisdiction

A friend of NIMJblog’s who has served as a uniformed attorney in Canada’s military provided us with clarification as to the jurisdictional limits of military jurisdiction in Canada after my post about the murderous Colonel Williams last week. David McNairn provided this note:

Under s. 70 of Canada’s National Defence Act (NDA), the military justice system has no jurisdiction over three types of offences committed in Canada: murder, manslaughter and certain child abduction offences. These offences, if committed in Canada, must be tried and dealt with in the civilian criminal justice system. If, on the other hand, these offences are committed outside of Canada by a person subject to military law, they can be tried and dealt with in the military justice system.

In the case of Col Williams, his matter was dealt with in the civilian system even though one of the victims was a female service member who was employed at the base where he was the commander. Had the offence occurred outside of Canada (e.g., at a Canadian military installation in another country), Williams could have been charged with murder and tried in the military justice system.

Another small point. Section 130 of our NDA gives the military justice system concurrent jurisdiction over any offence under a federal law. In Canada jurisdiction over criminal law and procedure rests with the federal Parliament. With the exceptions noted above, the military justice system has concurrent jurisdiction over virtually any criminal offence. The jurisdiction is even broader in the sense that, in addition to criminal offences, the military’s concurrent jurisdiction extends to any offence under a federal law which covers a host of other things as well.

As a practical matter, you won’t find any prosecutions of Income Tax Act offences in the military justice system. Generally, you won’t find a matter in the military justice system unless there is some disciplinary aspect to it. For example, an off duty soldier caught for drunk driving on a weekend would be dealt with in the civilian justice system (notwithstanding concurrent jurisdiction over the offence), whereas if he were caught driving drunk while operating a military vehicle there is a good prospect that he would be court martialed.

This follow-up correspondence reminds me to mention that we always appreciate additional information about our posts, particularly if they provide pertinent background information or explanations of policies with which you are familiar. Please send these to nimj@wcl.american.edu.

Killer Canadian Commander Profiled on Dateline

I fell asleep about 3/4 of the way through this episode which presented a profile of the deaths and rapes of Canadian women (including an Air Force member) that police ultimately linked to the commander of Canada’s largest Air Force base. It’s a chilling tale of horrors, especially watching Colonel Russell Williams’ cool demeanor in his police interrogation. What’s more–Colonel Williams even flew Queen Elizabeth.

It’s worth noting that the civilian justice system prosecuted Colonel Williams. Although Canada does have a separate military justice structure, the military courts lack jurisdiction over some crimes–such as murder.