Sunday, September 24, 2017

Military officers holding civil offices

Prof. Steve Vladeck
Global Military Justice Reform contributor (and University of Texas law professor) Steve Vladeck has this Lawfare post on a brace of cases in which the Supreme Court is asked to rule on the impact of an obscure but important federal law. [Full disclosure: the editor is a co-counsel.] Excerpt:
We often take for granted the principle of civilian control of the military—and the related but distinct corollary disfavoring military control of civilian affairs. Much like the better-known (and eight years younger) Posse Comitatus Act, the civil office ban codified at [10 U.S.C.] § 973(b)(2) is an important statutory codification of this larger principle—or, at least, has been for its first 147 years on the books. What’s at stake in the petitions the Supreme Court is set to consider on Monday is not just the fate of the four military officers whose service as CMCR judges has been called into question, but the fate of the civil office ban writ large. Lots of other cases have generated (and will generate) more headlines, but these petitions present what is unquestionably the most important civil-military relations question that the Justices have confronted in decades, no matter how it ought to be resolved.

Friday, September 22, 2017

Parliamentary question about Canadian summary trials

On 21 September 2017, Canadian Senator Colin Kenny asked the Senate's Government Leader a question about Canadian military summary trials:

National Defence

Military Judicial Process

Hon. Colin Kenny: Thank you, Your Honour. Honourable senators, I have a question for the Leader of the Government in the Senate.
My question is about the Canadian military summary trial process and the denial of Charter rights to members of the Canadian Armed Forces.
Under the summary trial process, the commanding officer of the accused individual presides over the tribunal. The summary trial process, such as it is, has no rules of evidence. It also allows the presiding officer to infer guilt should the accused refuse to answer questions that may incriminate him or her. It totally lacks the right to protection from self-incrimination. It does not require a transcript or proceedings, which makes an appeal impossible.
Finally, the assisting officer — a person assigned to be helpful to the accused — is not a lawyer and does not have the benefits of solicitor-client privilege. And the most egregious is the ability of the presiding officer to sentence the accused to confinement for up to 30 days in a ship or a barracks with the possibility of a criminal record.
What plans does the government have to bring this military legal process of the Canadian Forces into line with the Canadian Charter of Rights and Freedoms and those afforded to other Canadians?
Hon. Peter Harder (Government Representative in the Senate): I thank the honourable senator for his question. I will endeavour to seek an answer from the appropriate authorities and raise it personally with the ministers.

Wednesday, September 20, 2017

Network for Military Prosecutors

Did you know that the International Association of Prosecutors has created a Network for Military Prosecutors. Information about NMP can be found here. According to the website:
The responsibility for the prosecution of cases concerning military personnel varies across jurisdictions. In some countries, prosecuting offences committed by military personnel is left to the respective military Justice system whilst others choose to entrust the civilian Justice system with this important task. 
The Network of Military Prosecutors seeks to embrace and provice a forum for discussions and exchange of experiences for prosecutors involved with military prosecutions, whether they are civilian or military.
How NMP can benefit you:
The NMP aims to benefit military criminal law practitioners from civilian or military jurisdictions. This network is unique because the IAP is the only global organization of prosecutors that comprise prosecutors from the military and the civilian justice systems. 
NMP is available to all members of the IAP dealing with military criminal cases, including prosecutors belonging to organisational members. 
Members of the IAP will enjoy password protected access to a range of resources and networking opportunities: 
  • A prosecutor directory helping you locate peers around the world; 
  • A discussion forum facilitating the exchange of information and best practice;
  • Background information on the criminal justice systems in those jurisdictions dealing with military criminal cases;
  • A means to identify new trends in international law; 
  • A forum to discuss and exchange case law and legislation; 
  • A means to enhance international cooperation.
Thanks go to Lars Stevnsborg, the Danish Military Prosecutor General, for the information. 

Tuesday, September 19, 2017

White nationalism and military service

What to do when active duty military personnel engage in white nationalist activity in a civilian setting? The question is currently confronting the U.S. Marine Corps, as this article reports. Excerpt:
Staff Sgt. Joseph Manning, of the Marine Corps Engineer School at Camp Lejeune, was charged with first-degree trespassing after unfurling a banner with the letters “YWNRU” — short for “You Will Not Replace Us,” the favorite maxim of the white nationalist group Identity Evropa established by Marine vet Nathan Damigo in 2016. Manning had mounted the flag in Graham, North Carolina, across from town’s historic courthouse during a rally by Alamance County Taking Back Alamance County, a neo-Confederate group. 
Manning, a Purple Heart recipient who served in both Iraq and Afghanistan, is currently “in the process of being administratively separated,” a Training and Education Command spokesman told Marine Corps Times. Sgt. Michael Chesny, the EOD technician from Marine Corps Air Station Cherry Point who drove hours with Manning across North Carolina to participate in the stunt, has already been slapped with an administrative punishment.
If local authorities prosecute, what if anything should the Marine Corps do? 

Military justice bookshelf

Pres. James A. Garfield
Read a good law review article lately?

Here's one military justice mavens won't want to miss: Col. James A. Young, USAF (Ret), The President, His Assassin, and the Court-Martial of Sergeant John A. Mason, 77 A.F. L. Rev. 1 (2017), available here.