Thursday, January 30, 2014

An exciting milestone

As of 11:00 p.m., Global Military Justice Reform has had 2000 hits from 31 countries.

Update, Feb. 8, 2014: we now have readers in 43 countries.

Shuffle the deck of cards?

His Honour Judge (ret)
Gilles Letourneau
In Canada, pursuant to ss. 60 and 273 of the  National Defence Act (Act), civilian criminal courts and military tribunals have concurrent jurisdiction to try ordinary criminal law offences committed by persons subject to the military Code of Service Discipline, even when they are committed outside Canada. This is due to the fact that s. 130 of the Act transforms all ordinary criminal law offences into service offences, i.e., disciplinary offences. This duality of jurisdictions begs the traditional thorny questions: who should prosecute what, when, where, why, how and under what conditions? While the answers to these questions are important for the following reasons, they are not easily found.

First, prosecutions before military tribunals for what has become disciplinary offences allow an accused to raise the special pleas of autrefois acquit and autrefois convict in bar of a subsequent trial. A plea of res judicata is also available.

Second, persons tried by military tribunals are deprived of their constitutional right to trial by jury. Instead they can be tried by a panel five of members of the chain of command. As a matter of sheer common sense it is easier to obtain a unanimous verdict from five persons who share the same training and institutional baggage than from twelve (12) different persons from all walks of life with no common institutional baggage.

Third, contrary to what prevails in Australia, there exists in Canada neither the equivalent of s. 63 of the Australian Defence Force Discipline Act 1982, which requires the consent of the Commonwealth Director of Public Prosecutions (CDPP) before an enumerated number of serious crimes can be prosecuted by the Director of Military Prosecutions, nor, where a s. 63 consent is not required, a Memorandum of Understanding (MOU) between the civilian and the military authorities determining the conditions under which military authorities can prosecute ordinary criminal law offences before military tribunals. The conduct alleged may be of so serious a nature that the public interest may be best served by prosecution of the alleged offender before a civilian criminal court: s. 36 of the MOU.

In the Canadian federal system, there are 11 civilian Attorneys General: one at the federal level for the prosecution of federal offences, and a provincially appointed one in each of the 10 provinces, constitutionally invested with the power to prosecute crimes contained in the Criminal Code of Canada.

The provincial Attorneys General are responsible for the administration of criminal justice in their respective province and are the ultimate guardians of justice and the public peace. They possess vast discretionary powers to enforce the laws and prosecute their violations. Yet they have abandoned in practice their prosecutorial powers to the military authorities when ordinary criminal law offences are committed by persons subject to the Code of Service Discipline.

The provincial Attorneys General in Canada should shuffle the deck of cards and repatriate, assume and exercise their powers to prosecute before civilian criminal courts ordinary criminal law offences committed by members of the Canadian Forces (CF). The military could still enforce discipline before their service tribunals for the inappropriate behaviours, but no criminal record would ensue from the military prosecutions and no special pleas in bar of trial would be available. In plain words the rule would be the same as it is for other disciplinary proceedings: a criminal prosecution does not preempt disciplinary proceedings and vice versa.

If for whatever reasons the Attorneys General are not willing or able to fully assume their role, they should at least exercise a control over the prosecution of ordinary criminal law offences committed by members of the CF by establishing the conditions and circumstances under which serious ordinary criminal law offences could be prosecuted before military tribunals and deprive accused of their constitutional right to a trial by a jury. A member of the CF is, like a police officer, a Canadian in uniform. Why should he or she be deprived of the right to a jury trial when the police officer is not? They both assume the role of protecting the public. Why such a drastic differential treatment? The time has come for the Attorneys General to pick up the deck of cards and shuffle it.

Lecture and discussion in The Hague: assessing developments in Israeli military juvenile courts

On Friday, February 7, 2014, the Hague Academic Coalition, in cooperation with gate48 and A Different Jewish Voice, will present a lecture by Gerard Horton, founder of Military Court Watch, titled "Assessing developments in the Israeli military juvenile courts." His talk will be followed by comments from Anat Sultan-Dadon of the Israeli Embassy at The Hague and Prof. Jaap Doek, with Prof. Karin Arts as moderator. The event will run from 4:00 to 6:00 p.m., at the T.M.C. Asser Institute, R.J. Schimmelpennincklaan 20-22, The Hague. The program announcement states:

"According to UN figures, since June 1967, at least 730.000 Palestinian men, women and children from the West Bank have been prosecuted in Israeli military courts and imprisoned. This works out at around 1 in 4 men and includes 500 to 700 children as young as 12 years. Reports of ill-treatment and the denial of basic fair trial rights’ standards within the system are widespread. According to Israeli and Palestinian NGO’s, in the overwhelming majority of cases, children are arrested at friction points in the West Bank, most notably, where an Israeli settlement or road used by the army and settlers has been built close to a Palestinian village in violation of international law. Although Israeli settlers living in the West Bank are also technically subject to military law, in practice they are prosecuted under civilian law with far greater rights and protections. This in turn gives rise to the discriminatory application of law based on race, nationality or origin in cases involving identical offences committed in the same territory.

"The lecture will begin with an overview of the system with reference to a typical arrest and the military objectives behind it. The focus will then shift to the main developments in the military courts since the establishment of a juvenile court in September 2009, which will be considered and assessed. The lecture will conclude with a look at some simple and practical measures that, if implemented, would make a substantive difference."

Please RSVP by Feb. 3 to Admission is free.

Wednesday, January 29, 2014

Code Committee meeting

U.S. Court of Appeals for the
Armed Forces Courthouse
The Code Committee created by the Uniform Code of Military Justice will meet at the U.S. Court of Appeals for the Armed Forces, 450 E St., N.W., Washington, DC, at 10:00 a.m. on Tuesday, March 11, 2014. Given the reforms enacted as part of the National Defense Authorization Act for Fiscal Year 2014 and the pendency of other reform proposals in Congress, this could be an unusually interesting meeting. The Code Committee's meetings are open to the public.

Tuesday, January 28, 2014

Appeals in absentia

Chief Judge James E. Baker
In an interesting decision, a 3-2 majority of the United States Court of Appeals for the Armed Forces has dismissed a petition for discretionary review on the ground that the accused had not personally authorized the filing of the petition. Of particular note in United States v. Moss, 73 M.J. ___ (C.A.A.F. 2014), is Chief Judge James E. Baker's recognition of the tension between allowing trials in absentia but not appeals in absentia. He commented (at p. 8) that "trials in absentia are the sort of trials that undermine the credibility of foreign military justice systems." Senior Judge Andrew S. Effron joined in the dissent.

Does your system permit courts-martial in absentia? Can there be an appeal if the appellant is a fugitive? Must the appellant have personally authorized the appeal?

Monday, January 27, 2014

Army Times article on Response Systems Panel meetings

Today's Army Times has an article concerning the hearings conducted by the Response Systems to Adult Sexual Assault Crimes Panel, including whether the panel's subcommittees should meet behind closed doors. The full panel's next public hearing will be on January 30, 2014 in Washington, D.C.

A criminal record for a simple disciplinary offence!

His Honour Judge (ret)
Gilles Letourneau
In Canada prosecutions before disciplinary boards for disciplinary offences such as conduct prejudicial to the profession do not create a criminal record. The same act, however, may give rise to a criminal prosecution where, upon conviction, the accused will inherit a criminal record. In Canadian military law, the situation is different. Some disciplinary offences prosecuted before service tribunals, although not criminal in any way, may upon conviction saddle an accused for life with a criminal record.

Pursuant to the newly enacted, but not yet in force, s.249.27 of the Strengthening Military Justice in the Defence of Canada Act, S.C. 2013, ch.24, behaviours such as conduct prejudicial to good order and discipline, absence without leave, false statement in relation to an absence without leave, insubordination and drunkenness will generate a criminal record if the sentence imposed is higher than a severe reprimand, a reprimand, a minor punishment or if the fine exceeds basic pay for one month. While generally the existence of a record is linked to the nature of the offence and its objective gravity, here it depends on the severity of the sentence. As a result of Supreme Court of Canada decisions, the scope of review of the severity of sentences by the Court Martial Appeal Court of Canada is quite narrow and limited. Thus a soldier to whom a fine slightly higher than basic pay for one month has been imposed is unlikely to be successful in his attempt to reduce the fine and avoid the devastating effects of a criminal record such as the impossibility to work for or to obtain a contract from the Federal Government, restrictions on his travels, stigma, refusals of entry in other countries, etc.

The aim of the Code of Service Discipline is to enforce discipline and good behaviour in the profession of arms just like the aim of the lawyers' and doctors' Code of Ethics is to ensure good behaviour and discipline in the legal and medical profession.

Should convictions for disciplinary offences give rise to a criminal record when the accused is deprived of his constitutional right to a trial by jury? Is the provision overreaching and, as a result, unfair? Can it withstand a constitutional challenge?

Friday, January 24, 2014

MSNBC Show on Military Justice Reform, 1:00 p.m., Sunday, Jan. 26, 2014

MSNBC announced tonight that its show Taking the Hill will air a program on Military Justice Reform this Sunday, January 26, 2014, at 1:00 p.m. (ET). Sen. Kerstin Gillibrand will be on the show and taking questions.

Postscript: here is Sen. Gillibrand's interview with Taking the Hill's Patrick Murphy.

Actual and perceived independence of military judges

Under Canadian military law military judges have a rank. The highest rank is held by the Chief Military Judge who stands in the hierarchy as Colonel. His rank is inferior to that of the Judge Advocate General who is not a judge and who, with his lawyers, argue cases before him. His rank is also inferior to some 150 officers. He has to salute them. Yet all these superior officers, including the JAG, the Chief and Vice-Chief of the Defense Staff, are subject to the Code of Service Discipline and fall under his judicial jurisdiction. In addition, grievances by military judges are decided by the Chief of the Defense Staff.

This ranking, especially the inferior ranking of the military judges, does little to boost soldiers' and public confidence in the administration of military justice. Nor does the grievance process applicable to military judges. Through numerous cases, fiercely opposed by the JAG's office, and resulting decisions from the Court Martial Appeal Court of Canada, military judges have been granted judicial independence in terms of appointment, remuneration and security of tenure.

Should military judges have a rank? Should they not be classified apart and simply called "Judge" and "Chief Military Judge," thereby leaving no doubt as to their independence from the chain of command and erasing any perception that, after all, they might not be as independent as it appears? In the same vein, should not grievances by military judges be decided outside the chain of command?

Thursday, January 23, 2014

Reform of the Israeli Military Justice System

From the Law Library of Congress's 2013 report, Military Justice System: Adjudication of Sexual Offenses: Israel:

Several changes have taken place in recent years that impacted the adjudication of sexual offenses within the IDF.  These include the way in which the determination of whether to pursue an adjudication is made and the forum for such a determination.  Unlike the adjudication of other violations of military law, the decision of whether to adjudicate sexual offenses in disciplinary proceedings can only be made by the MAG’s attorneys and not by commanders.

An additional development in adjudication of “lighter” sexual offenses in disciplinary proceedings is the requirement that presiding adjudication officers (AOs) be at least at the rank of Lieutenant Colonel and have either a legal education or special training in handling sexual harassment cases at the IDF School of Military Justice.  Israel’s Military Advocate General (MAG) maintains a database of AOs who are qualified to adjudicate sexual harassment cases.  The selection of the AO for such disciplinary proceedings from the database is made by the MAG and not by a commander.

Additional changes occurred based on the Supreme Court’s judicial review and the requirements established by the Court to follow rules that exist in criminal litigation.  Whereas decisions of the Appeals Court Martial (ACM) may be subjected to review by the Israeli Supreme Court upon special authorization only when there arises “[a] legal question [that presents an] important, difficult or novel [legal issue],”the MJL does not expressly provide for Supreme Court review of commanders’ decisions in disciplinary proceedings.  However, the Supreme Court has extended its jurisdiction to disciplinary decisions based on general principles of due process.  In a case involving IDF disciplinary adjudication, the Court voided a commander’s decision to convict and sentence a soldier based on procedural defects found in the disciplinary adjudication—defects that, according to the Court, deprived the soldier of his right to due process.

MK and Brig
Gen (Res) Miri Regev
The IDF has faced new challenges as a result of an increased focus on holding disciplinary adjudications to the same requirements that apply to criminal adjudications.  A private member bill by Knesset Member (KM) Miri Regev to reform the MJL and meet these challenges is now pending.  The bill proposes to establish a third mechanism for military adjudication by establishing military disciplinary courts in addition to the existing military courts and disciplinary proceedings.  The bill proposes that offenses under the Law for the Prevention of Sexual Harassment, 5758-1998, be adjudicated by the proposed military disciplinary courts. [Footnotes omitted.]

Should a bare majority suffice for conviction?

His Honour
Judge Jeff Blackett
Contrasting UK military procedure with civilian practice in England, Wales and Scotland, the Judge Advocate General, His Honour Judge Jeff Blackett, suggested to the BBC last year that it was "an area of concern" that British military law permits conviction by a 3-2 vote and does not permit the accused to learn the actual vote of the board. He noted as well that New Zealand had moved to a unanimity requirement in recent military justice reform legislation. What is the rule in your country? Should civilian and military voting requirements for conviction be different? 

Prosecution of children before service tribunals

His Honour (retired)
 Judge Gilles Letourneau
Under Canadian military law, the accompanying family of a member of the Canadian Forces or persons under contract with the Canadian Forces are subject to the military Code of Service Discipline. A minor may and will be prosecuted before and tried by a service tribunal. Should that child be deprived of the benefits of the Youth Criminal Justice Act such as diversion from the penal system? Is this differential and likely more punitive treatment of a child justified when the Canadian civil courts retain jurisdiction over offences committed by persons subject to the Code of Service Discipline, even when committed abroad? Should not children be referred to the civilian system of justice? Should not the Attorneys General who are responsible for the administration of justice ensure that the legislation mandates the transfer of children to civilian youth courts to make sure that prosecution of children before military tribunals do not occur?

Wednesday, January 22, 2014

Speak up, please (and pass the word)

Now that the blog is up and running, let's make it a two-way street. The comments feature has been turned on. At least for the time being, comments will be moderated and must include your real name. Please do comment, and pass the word to others. Stand by, as well, for some guest bloggers.

Nexus Redux

Chief Justice Edmond P. Blanchard
There was an important decision on January 21 by the Court Martial Appeal Court of Canada. In a unanimous ruling, the court, per Chief Justice Edmond P. Blanchard, made it clear that there must be a "military nexus" (what U.S. practitioners used to call "service connection") in order for a court-martial to try a civilian-type offense under § 130 of the Code of Service Discipline. The case is Moriarity v. The Queen; Hannah v. The Queen, 2014 CMAC 1. The court acknowledged Solorio v. United States, 483 U.S. 435 (1987) (which abandoned the service-connection requirement of O'Callahan v. Parker, 395 U.S. 258 (1969)), but observed (¶ 64) that "the American jurisprudence in this area is founded on constitutional provisions that are different than our own and where the status of the accused is the key jurisdictional concern -- not the nature of the offence." The decision embraces Lamer, CJC's observation in R. v. Généreux, [1992] 1 S.C.R. 259, that "[t]he purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military" (emphasis supplied). Although it puts to rest an important issue, the decision benefits neither of the appellants, as they had not raised the absence of a military nexus for any of the offenses of which they were convicted.

Gabriela Knaul, the UN Special Rapporteur on the Independence of Judges and Lawyers, wrote in 2013:

"98. As a specialized jurisdiction aimed at serving the particular disciplinary needs of the military, the ratione materiae jurisdiction of military tribunals should be limited to criminal offences of a strictly military nature, in other words to offences that by their own nature relate exclusively to legally protected interests of military order, such as desertion, insubordination or abandonment of post or command."

"99. States should not resort to the concept of service-related acts to displace the jurisdiction belonging to the ordinary courts in favour of military tribunals. Ordinary criminal offences committed by military personnel should be tried in ordinary courts, unless regular courts are unable to exercise jurisdiction owing to the particular circumstances in which the crime was committed (i.e. exclusively in cases of crimes committed outside the territory of the State). Such cases should be expressly provided for by the law."

What is the law (and actual practice) in your country?

Sunday, January 19, 2014

Open Justice: Must the Names of Soldiers Acquitted in a Court-Martial be Made Public?

Royal Courts of Justice
On December 17, 2013, the Divisional Court of the Queen's Bench Division made public the final version of its judgment in R. v Marines A-E [2013] EWCA Crim 2367, holding among other things that the names of two Royal Marines who had been acquitted of murder had to be made public. Mr Justice Holroyde, dissenting in part, noted that "if the necessary balancing exercise had been conducted, the judge in my view could legitimately have concluded that the [European Convention on Human Rights] Article 8 rights of Marines B and C (who had been found not guilty of any crime) should prevail over the Article 10 right of the media (who had been able to report the trial in full, and are now able to name the convicted murderer). Thus the failure to address the balancing exercise was a serious error. I would therefore have quashed the order in relation to Marines B and C and remitted their cases to the judge to conduct the balancing exercise." In an ironic twist for a case having to do with (and strongly affirming) the principle of open justice, the majority took umbrage at the fact that the draft judgment provided to counsel had been disseminated: "We made our decision in this case available before we handed it down. It was communicated far more widely than we had permitted. It is of the utmost importance that those to whom draft judgments are provided abide by the terms on which they are provided: see CPS v P [2007] EWHC 1144 (Admin). A court will always take a very serious view of any breach. It will treat it as a contempt of court with the penal sanctions that apply." Query: when, if ever, should the names of the accused in a public trial by court-martial be kept out of the media?

Is There a Right to be Tried by Court-Martial?

Every so often one runs across a case in which a soldier claims a right to be tried by court-martial. It's happening in Pakistan, where former President and Army chief Pervez Musharraf has appealed the denial of his objection to being tried for high treason by a special court instead of a court-martial. His appeal will be decided by a two-justice division bench of the Islamabad High Court. Readers in Pakistan: please keep us posted on the appeal.

Asian Human Rights Commission Statement on Impunity

On Jan. 17, 2014, the Asian Human Rights Commission issued a statement concerning impunity for military and police personnel in Myanmar/Burma. According to the Commission: "Three low-ranked soldiers attacked Zaw Min Oo and his companion on a riverbank in Pyi during 2013 nearby the Nawaday Bridge over the Irrawaddy River (AHRC-UAC-122-2013). Zaw Min Oo died in the attack while his companion survived by feigning death. She ran to call for help and in a short time local search parties had located the men, whom they took to the police. The police initiated criminal proceedings but the commander of the battalion where the men were stationed came and took them from police custody. Although investigating police, including from the specialised Criminal Investigation Department, told the family and other persons involved that they have enough evidence to prosecute and are sure that the three soldiers are the perpetrators of the crime, the army has refused to hand them over. Instead the battalion conducted a court martial that absolved the men of any responsibility in the crime. The court martial was closed off from the family or other persons concerned with their interests, and according to them all the authorities have refused to deal with them or keep them informed of what has happened to the alleged murderers. Even the men’s whereabouts are uncertain, with some reports suggesting they are still being at their battalion camp, others that they have been transferred elsewhere." The statement concluded by observing that "the legal barriers to prosecution of these persons, in the case of the police through the Criminal Procedure Code and in the case of the military through military regulations and orders, need to be removed so as to enable ready prosecution of accused persons in cases of this sort." Where should cases like this be prosecuted: in a court-martial or in a civilian court? What would justify keeping the public from observing the trial?

Bangladesh Rifles Mutiny Case

It happened before this blog began, but readers will want to be aware that sentences were handed down on November 5, 2013 in the civilian court case arising from the 2009 Bangladesh Rifles mutiny. According to the Daily Star, there were 152 death sentences, 161 life sentences, and 262 sentences of 3-10 years imprisonment. Two hundred seventy-seven defendants were acquitted in the mass trial conducted by the Metropolitan Sessions Court in Dhaka, with both civilian and military defendants. Appeals by both the defense and the prosecution are anticipated, and the proceedings have been faulted by UN High Commissioner for Human Rights Navi Pillay. Thousands of other soldiers had previously been sentenced by military courts to up to seven years imprisonment on lesser charges. The paramilitary border force was renamed the Border Guard Bangladesh in 2010.

Saturday, January 18, 2014

Where Should This Case be Tried: Court-Martial or Civilian Court?

Mirwaiz Umar Farooq, chair of the Awami Action Committee in Kashmir, has called for Indian Army personnel currently charged before a court-martial to be tried in civilian court instead in order to improve transparency. "Addressing a public gathering at Shangus in south Kashmir’s Islambad district, Mirwaiz said that countless incidents like Mach[ch]il have occurred in Kashmir during which innocent civilians were killed, adding, however till date not a single army personnel was held responsible or punished for the crime he committed." The case grows out of a 2010 encounter at Machhil Fake.

Military Justice Reform in Taiwan

On January 13, Amnesty International released this statement on implementation of last year's legislation to reform the Taiwanese military justice system. The legislation took effect on January 13, having been enacted at warp speed as a result of public outrage over the July 4, 2013 exhaustion death of Army Cpl. Hung Chung-chiu in a military disciplinary detention facility: it was passed on August 6 and signed into law on August 13. According to the China Post, the new law subjects military personnel to the civilian justice system in peacetime. Cases involving abuse of subordinates, illegal punishment, murder, sexual assault, robbery and drugs were transferred immediately to civilian prosecutors and courts. Transfer of other cases was deferred for five months. In November, the Supreme Military Court and Northern District Military Court filed a challenge to the constitutionality of the legislation with the Council of Grand Justices, Taiwan's Constitutional Court. Readers in Taiwan: please let us know when the Grand Justices decide the case.

Thursday, January 16, 2014

Goodbye to George III

Sen. Kerstin Gillibrand
Should commanders have the power to compel (or block) the prosecution of serious criminal offenses (i.e., those other than minor disciplinary infractions)? This article in Slate discusses the current U.S. debate. The Senate will soon vote on the question. What is the law in your country? What should it be?

Wednesday, January 15, 2014

Indian Express Op-Ed by Navdeep Singh

Navdeep Singh, a leading Indian practitioner, has a worthwhile op-ed in the January 15, 2014 Indian Express, titled Compromise of Judicial Independence: AFT and Other Tribunals. Maj Singh is a High Court lawyer, founding President of the Armed Forces Tribunal Bar Association, and creator of the Indian Military Services Benefits and Issues blog.

Report to the General Assembly by Special Rapporteur Gabriela Knaul

Last summer, Gabriela Knaul, the UN Special Rapporteur on the independence of judges and lawyers, submitted an important report focusing on the administration of justice through military tribunals. The report, which deserves more attention than it has received, makes a variety of recommendations "with the aim of assisting States in ensuring that, where military justice systems exist, military tribunals administer justice in a manner that is fully compliant with international human rights law and standards." The recommendations appear in paragraphs 92-110, and cover such pivotal issues as independence and impartiality, subject matter jurisdiction, jurisdiction over civilians, treatment of serious human rights violations, and fair trial and due process guarantees. How does your country's system stack up?

Tuesday, January 14, 2014

Matthew 7:7

A reader asked if she could receive Global Military Justice Reform posts automatically. This feature has been added in the lower right hand corner of the page. Simply enter your email address.

Welcome aboard!

In only a short time, the blog has acquired a following around the world, with readers in Afghanistan, Algeria, Australia, Bangladesh, Belgium, Brazil, Canada, Chile, China, Colombia, Costa Rica, Denmark, Egypt, Finland, France, Germany, Greece, Haiti, Hungary, India, Indonesia, Israel, Lebanon, Malaysia, Nepal, Netherlands, New Zealand, Nigeria, Pakistan, Peru, Philippines, Poland, Romania, Russia, South Africa, South Korea, Spain, Sweden, Switzerland, Taiwan, Thailand, Turkey, Uganda, Ukraine, United Arab Emirates, United Kingdom, United States, Venezuela, and Vietnam. Welcome aboard! Please send information and links about military justice developments -- progressive or not -- in your country, and pass the word to interested colleagues.

Global Seminar on Military Justice Reform

On October 19, 2013, Yale Law School hosted the Global Seminar on Military Justice Reform, with financial support from the Oscar M. Ruebhausen Fund. Background readings for the seminar, which addressed reform issues in several countries, can be found in the seminar's Reading Room.

Monday, January 13, 2014

Why George III?

You may have been wondering why a portrait of George III is prominently displayed on this blog, and why three Georges appeared on the post before this one. This is not a case of picking on someone. It's simply that George III was on the throne at the time of the 1774 Articles of War that were the model for the 1775 American Articles of War. Since the 1774 Articles continue to cast a long (and in important respects retrograde) shadow across the military justice systems of the United States and some other countries whose systems may be traced to the classic command-centric British model, the blog will award one or more Georges to features or developments that fail to reflect contemporary standards for the administration of justice. Positive developments, on the other hand, will receive one or more Ansells (named for Brigadier General Samuel T. Ansell, who labored in the cause of reform). Here's one now . . .

Department of Unfinished Business: Military Judicial Terms of Office

Sometimes reading in one field can be thought-provoking in a seemingly unrelated field. In this vein, my mind turned to Military Justice the other day when, preparing for my Federal Indian Law course, I came across the following in a report by the Indian Law Resource Center, Restoring Safety to Native Women and Girls and Strengthening Native Nations: A Report on Tribal Capacity for Enhanced Sentencing and Restored Criminal Jurisdiction (Fall 2013):

"The length of judicial terms of office varies widely among tribal court systems. Of the twelve tribes surveyed, one indicated a term as short as one year for associate justices, and two indicated that they have no defined terms of office. The Navajo Nation has a two-year probationary period after which the Judicial Committee of the Navajo Nation Council can recommend a permanent appointment until the judge is 70. Most other tribal court judges serve terms of three to six years. Many tribes have different term lengths for different types of judges or courts." Id. at 80 & nn.526-30 (footnotes omitted).

The 566 federally-acknowledged tribes are entitled to maintain court systems, and roughly half do so. Many tribes are working to improve their judiciaries, and tribal judicial independence has unfortunately been an issue from time to time over the years.

Given the varied tribal judicial terms of office arrangements described above, what is the situation in the United States armed forces? The Supreme Court held in Weiss v. United States, 510 U.S. 163 (1994), that the Constitution does not require military judges to have the protection of fixed terms of office (of any duration). Nothing in the UCMJ provides fixed terms for trial or appellate military judges. The Army and the Coast Guard years ago gave their judges three-year terms by regulation, while judges in the Navy, Marine Corps and Air Force continue to serve on an at-will basis. Significantly, judges in one branch can and do preside over trials of members of other branches.

The current military judicial tenure hodgepodge is indefensible.

Now back to Indian tribes. They enjoy sovereign rights. Each is independent, with its own laws, so the inter-tribal variation indicated above is not surprising. The armed forces, however, are all subject to the same Uniform Code of Military Justice. Numerous countries with military justice systems have recognized the connection between terms of office and judicial independence.

Isn't it time Congress fixed this aspect of our system? Until it does, our system merits three Georges.

Sunday, January 12, 2014

Welcome to the Global Military Justice Reform blog

Developments in the field of military justice have been coming at an extraordinary pace for the last several years, both in the United States and around the world. Some of these developments have been wise, some have not. In some respects, there has been remarkable resistance to change. The purpose of this blog will be to identify and comment on developments in the reform of military justice from a national and global perspective. The content reflects only my views. The blog will be a work in progress, and the only thing that is certain is that it will change over time. For the moment, the comment feature has been disabled. If you have any suggestions or know of significant relevant developments, please email me. Above all, I hope you find this blog useful.