Sunday, December 17, 2017

Mutiny, he wrote

The 1966 BBCtv production of Benjamin Britten's Billy Budd (based on the posthumously published novel by Herman Melville) is available here on YouTube. Not exactly holiday fare (it ends badly for the Handsome Sailor).

Explain this, please

Is there some reason the names of the trial defense counsel are replaced with initials in this November Art. 62, UCMJ decision of the U.S. Navy-Marine Corps Court of Criminal Appeals? Oh, and how come the military judge is referred to as "MJ" even though his name is given on page 1?

Not military justice, but . . .

By a 5-2 vote, the Florida Supreme Court last Thursday dismissed rule making petitions that would have permitted spouses of military personnel stationed in the state to practice law without passing the bar examination. The decision directs the Florida Bar and the Board of Bar Examiners to submit a revised joint proposal:
The Bar and the Board are directed to file a joint petition within ninety days of the date of this order that imposes additional restrictions on those requesting authorization to practice law in Florida as the spouse of a member of the United States Armed Forces. Such restrictions must include a time limit on the duration of the authorization and must require that all persons who receive authorization associate, either through participation in a law firm or through mentorship, with a member of the Bar who is eligible to practice law in Florida for the duration of the authorization.
Justice C. Alan Lawson (joined by Justice Charles T. Canady) would have approved the petitions "for the good and sufficient reason that they appropriately give form to the gratitude that we should all share for the sacrifices made each day by those serving in our Armed Forces, and by their families."

Not to detract from the spirit of the season, but if you were on a state supreme court, would you allow such an exception? Is gratitude to military personnel a cogent reason to dispense with requiring an attorney who is a military spouse to take and pass the bar examination?

Navy JAG Corps turns 50

Who knew? December 8 marked the half-century point for the U.S. Navy Judge Advocate General's Corps. Read all about it here.

Congratulations!

Military justice changes coming in the Bay State

Governor Charlie Baker has proposed S. 2236, a bill that would establish a Massachusetts Code of Military Justice. At present the Commonwealth is one of the few states without its own military justice code. The measure has been referred to committee and can be downloaded from the General Court's website. It is described as putting the state's troops on the same footing, whether they are in federal (Title 10) or state (Title 32) status. Scott Merzbach of the Daily Hampshire Gazette has the story here. Excerpt:
Lt. Col. Shannon McLaughlin, state judge advocate for the Massachusetts National Guard, said in a phone interview Thursday that she is excited about how the changes will affect the 8,131 members in the state.

“This makes sure our operations are accurately represented by the law,” McLaughlin said.

McClaughlin said Massachusetts is one of a handful of states that doesn’t have its own uniform code governing conduct, meaning members are at risk of having military crimes prosecuted in different ways depending on whether the member is serving in a federal or state capacity.

Based on the American Bar Association’s Model State Code of Military Justice, the proposal will provide consistency and establish a series of military crimes that parallel those found in the federal Uniform Code of Military Justice. It also establishes procedures for the convening and conduct of courts-martial for specific military offenses.

“It gives our commanders ability to instill good order and discipline among the troops,” McLaughlin said.

Should a National Guard member commit a non-military crime, prosecution would still be handled in state court by a district attorney.
Proposed Article 2(b) provides:
Subject matter jurisdiction is established if a nexus exists between an offense, either military or non-military, and the state military force. Courts-martial have primary jurisdiction of military offenses as defined in article 1(a)(14) of this code. A proper civilian court has primary jurisdiction of a non-military offense when an act or omission violates both this code and local criminal law, foreign or domestic. In such a case, a court-martial may be initiated only after the civilian authority has declined to prosecute or dismissed the charge, provided jeopardy has not attached. Jurisdiction over attempted crimes, conspiracy crimes, solicitation, and accessory crimes must be determined by the underlying offense.

Saturday, December 16, 2017

No to the legalization of the militarization of Mexico

On Friday, December 15, 2017, the Mexican Congress passed a law on Internal Security that regularizes the presence of the Army and Navy in the fighting of drugs, organized crime, terrorism, corruption, money laundering, arms trafficking, etc. within Mexico.  Former President Felipe Calderon of the PAN, in 2006, was the first Mexican president to order thousands of soldiers to fight the drug cartels in Michoacán.  Since then more than 750,000 military troops have substituted for the police in hundreds of municipalities throughout the country.  The Government today is in the hands of the PRI and with support from the PAN was able to win approval for this law in the Senate and the Chamber of Deputies despite widespread protests from police experts, the media and national and international human rights organizations.  The law now awaits promulgation by President Pena Nieto.

The law appears to be an act of desperation on the part of a government with an apparently uncontrollable and escalating homicide rate.  During the first 9 months of 2017 there were 18,505 homicides, more than 68 per day, higher than the rate in 2011, when the drug war was in full swing.  Since 2006, official statistics reveal that over 200,000 people have been killed in the drug war and 31,000 have disappeared.  The police are seen as incompetent or corrupt so the government has turned to the military to solve the problem.

Critics charge that since the military was first invoked in 2006, their intervention has only served to increase the killing and abuses in the country and this law is feared as a militarization "by law" of the country, with no future plan as to how the police will be strengthened or when the military will return to their barracks.

Friday, December 15, 2017

International Society to meet in Lisbon in May 2018

The International Society for Military Law and the Law of War will hold its XIXth Congress in Lisbon. The Congress will have peace operations as its focus. The Society writes:
This Congress will be held at the Altis Grand Hotel in Lisbon (Portugal) from 15 to 18 May 2018.

The central theme is: War, Peace and the Rule of Law

Our central theme closely connects to the publication of the Society's Leuven Manual on the International Law Applicable to Peace Operations with Cambridge University Press later this month of December. The Leuven Manual reflects the current status of the law and associated best practices, and will support senior level commanders and legal advisors in planning and executing peace operations. A copy of the Leuven Manual will be given to all participants during the Congress as part of the package covered by the registration fee.
Further details will appear here in due course.

Sgt. Jenkins dead at 77

Sgt. Charles R. Jenkins
Former U.S. Army Sgt. Charles R. Jenkins, who was convicted in 2004 of desertion and aiding the enemy after crossing into North Korea in 1965, has died in Japan at age 77. His New York Times obituary refers to him as a "Cold War enigma." Excerpt:
At his court-martial, he pleaded guilty to desertion and aiding the enemy. He was demoted to private, stripped of back pay and benefits and given a 30-day jail sentence along with a dishonorable discharge.

“I was released five days early, for good behavior,” he wrote [in “The Reluctant Communist: My Desertion, Court-Martial, and Forty-Year Imprisonment in North Korea,” a 2008 autobiography co-authored by Jim Frederick].
His wife and two daughters survive him. 

Gambia court-martial continues

The treason court-martial in Gambia is ongoing, with additional reports of courtroom proceedings here and here. Three things leap out. First, the reporting is detailed, rather than generic, although there isn't any analysis. Second, the proceedings seem familiar in the sense that they broadly resemble what one would expect in a court-martial or, for that matter, a civilian criminal trial in a common law country. And third, the proceedings have been open to the media (and the media are willing to dedicate the resources). The authorities deserve credit for transparency.

Thursday, December 14, 2017

What will Pakistan do in response to UN recommendations?

Dawn reports:
The federal government asked the concerned ministries and departments to take "requisite legislative, policy and administrative measures" in accordance with the recommendations of the United Nations (UN), calling for the termination of military courts and limiting the role of the army in civil spheres, DawnNews reported on Thursday.
The UN recommendations are those set forth in the Human Rights Committee's August 23, 2017 Concluding Observations as part of Pakistan's Universal Periodic Review. The Concluding Observations stated in pertinent part:
Military courts

23. The Committee is concerned by the extension of the jurisdiction of military courts to cases transferred from the antiterrorism courts and to persons detained under the Actions (in Aid of Civil Power) Regulation. The Committee is also concerned that the courts have convicted at least 274 civilians, allegedly including children, in secret proceedings and sentenced 161 civilians to death. It is also concerned that some 90 per cent of convictions are based on confessions; that the criteria used for the selection of cases to be tried by these courts are not clear; that defendants are not given the right to appoint legal counsel of their own choosing in practice, nor an effective right of appeal to the civilian courts; and that the charges against the defendants, the nature of evidence and the written judgments explaining the reasons for conviction are not made public. The Committee is further concerned that the military courts have allegedly convicted at least five “missing persons” whose cases were being investigated by the Commission of Inquiry on Enforced Disappearances (arts. 2, 6, 7, 9, 14 and 15).

24. The State party should (a) review the legislation relating to the military courts with a view to abrogating their jurisdiction over civilians and their authority to impose the death penalty and (b) reform the military courts to bring their proceedings into full conformity with articles 14 and 15 of the [International] Covenant [on Civil and Political Rights] in order to ensure a fair trial.

Supreme Court review and typographical errors

Congress provided in 1983 for direct Supreme Court review of decisions of the [now] U.S. Court of Appeals for the Armed Forces where that court has granted a petition review. Setting aside the handful of cases that are subject to mandatory CAAF review (cases certified by the Judge Advocates General and capital cases), unless CAAF grants discretionary review, a court-martial appeal cannot be taken to the Supreme Court by petition for a writ of certiorari.

Against that backdrop, consider this December 12, 2017 order in an Army case, from CAAF's Daily Journal:
Petitions for Grant of Review - Summary Dispositions
No. 18-0042/AR. U.S. v. Michael A. Knopik. CCA 20160811. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*
* It is directed that the decision of the United States Army Court of Criminal Appeals be corrected to reflect Appellant's middle initial as "A" vice "E."
Because the court granted review, albeit only in order to direct the lower court to correct a typographical error (wouldn't a phone call from one Clerk's Office to another have sufficed?), the entire case, including any Grostefon issues, is now eligible for Supreme Court review. Had there been no typo, it would not be.

The prosecution rests.

Death of Brigadier General James P. Cullen, 72

BG James P. Cullen, USA (Ret)
Brigadier General (Ret) James P. Cullen of the Army Judge Advocate General's Corps died last week. He is mentioned in this editorial in today's New York Times. Excerpt:
A leader of that group [of flag and general officers who publicly opposed the use of torture] was James Cullen, a retired brigadier general who had begun Army life as a private during the Vietnam War. He became a lawyer, serving for many years in the Judge Advocate General’s Corps, and later in private practice. In alliance with the human rights group, he and his once-uniformed colleagues lobbied major politicians to support a ban on coercive interrogations. General Cullen died in Scarsdale, N.Y., last week at age 72. His death is a reminder of how former military men and women of conscience and courage can provide helpful support for the civilian leadership — and, if necessary, be a bulwark against the worst instincts that at times grab hold of it.

Wednesday, December 13, 2017

More reform of New Zealand's military justice system

Click here for the text and other detail about the Military Justice Legislation Amendment Bill, which passed its first reading in New Zealand's unicameral Parliament on 7 December 2017.   The purpose of the Bill is "to update the military justice system and to align it with the criminal justice system by enhancing victims’ rights, amending the Armed Forces Discipline Act 1971, the Court Martial Act 2007, and the Court Martial Appeals Act 1953".  The parliamentary page to which I have provided a link gives you access to the Bill itself as well as YouTube videos of all the speeches in respect of the Bill, providing an interesting snapshot of varying political perspectives on military justice in New Zealand.

Any person can make a submission to Parliament's Foreign Affairs, Defence and Trade committee about this Bill.  You do not even have to be a New Zealander and it can be done on-line!

Pakistan files today with International Court of Justice

Pakistan is today filing its reply in the International Court of Justice's Jadhav Case (India v. Pakistan). According to this report in The Nation, a senior Pakistani official stated:
“We will provide evidence to the ICJ to prove his role in the killings of so many Pakistanis. His case at the ICJ should be dismissed.”

Another official said Pakistan’s response was based on the Vienna Convention and country’s ambassador in the Netherlands will submit the reply. Attorney General Ashtar Ausaf Ali is overseeing the high-profile case on behalf of Pakistan.

The official said Pakistan’s response included concrete evidence of Research and Analysis Wing agent Kulbhushan Jadhav’s confession of involvement in terror-related activities and rejection of India’s stance submitted with the ICJ.

“Pakistan’s argument is that the ICJ has no jurisdiction to hear the case of a terrorist who has orchestrated bloodshed in Pakistan. We are hopeful we will win our case,” he said.
The case may reveal details of the procedures employed by Pakistan's military courts. India's merits submission cannot be found on the ICJ's case web page. According to this report, at the Human Rights Council last month in Geneva, "India recommended that military courts in Pakistan should be barred from trying civilians and allow their monitoring by international observers and human rights organisations."

Tuesday, December 12, 2017

Should Special Victims Counsel be reined in?

J. Solomon Bashi
New York lawyer and Army National Guard Captain J. Solomon Bashi, writing in his personal capacity, has this op-ed on FedSmith.com about the role of Special Victims Counsel. In his view, "[t]he Secretary of Defense should issue a directive prohibiting the SVC from participating in the trial, including making motions in limine or evidentiary objections. Such a directive would remove any suggestion that the SVC program harms due process by clarifying that the SVC’s role is limited to that of solely an attorney representing a witness. The only time an SVC should be allowed to make motions in court should be situations when a third-party attorney could normally do so, such as a motion to quash or modify a subpoena."

Monday, December 11, 2017

Sex offenses: an "unremitting problem" for the Canadian Forces

Global Military Justice Reform contributor Canadian Forces Major (Ret) Tim Dunne has this article in The Lawyer's Daily. He writes:

"The court martial process is daunting and confusing even for military members. For a civilian victim or witness it is comparable to entering another world."

100 years ago today

Sig Christenson
Senior reporter Sig Christenson of the San Antonio Express-News has written a smart and vivid account of the Houston Riots courts-martial, one hundred years later. (Today marks a century since 13 soldiers were hanged.) His article not only describes the mutiny that led to the courts, but also the significant legal fallout -- as well as the executions. Excerpt:
The riot and its aftermath rocked the Army, prompting one major reform almost immediately and a quiet reassessment of the use of black soldiers in a racist military and society that could not tolerate them as equals.

Under the Articles of War, a document going back to the Revolution, soldiers had no right to appeal in a time of war, but that was changed not long after the executions.

Infuriated over the hangings, then-acting Judge Advocate General Brig. Gen. Samuel T. Ansell in 1918 prohibited the execution of any death sentence before a review and determination of legality. A review board for all serious courts-martial soon became the Army’s first appellate structure. Congress later formalized it by statute and in so doing created the foundation for today’s Army Court of Criminal Appeals.
The article also points out, on the other hand:
“The noble experiment of incorporating black officers and men into the Army literally blew up in their faces,” John Manguso, retired director of the Fort Sam Houston Museum, wrote in a document used for a panel discussion years ago. “Despite competent and gallant service of black soldiers in the (First) World War, only the problems and difficulties were remembered.

“As a nation, we were to repeat many of the same mistakes in World War II. As the result of (Houston’s) night of violence, all Americans lost a great opportunity, and a quarter-century would pass before any further effort was made to allow black Americans to take their rightful place in the defense of the nation.”

Theatre review: The Court Martial of Admiral Montojo

Rear Admiral
Patricio Montojo y Pasarón
Global Military Justice Reform's theatre reviewer Dwight ("Broadway Dwight") Sullivan* sends this:
December 9 was a magical day to be in New York City. Winter’s first snow fell on thousands of revelers clad in Santa suits for “SantaCon” – an annual pub crawl whose organizers aptly describe it as “charitable, non-commercial, non-political, nonsensical.” Unfortunately, the day’s magic didn’t extend to the theater. A reading of “The Court Martial of Admiral Montojo” at the Manhattan Repertory Theatre revealed the script to be cliché laden and unhistorical. 
At 5:40 on Sunday morning, May 1, 1898, Commodore George Dewey turned to the captain of USS Olympia and said, “You may fire when you are ready, [Charles Vernon] Gridley.” The forward turret of the Olympia boomed, launching an eight-inch shell toward the Spanish fleet 5,000 yards away. The Battle of Manila Bay had begun. By 12:30 that afternoon, “the Spanish colors were down, white flags were flying in many places, the batteries were silenced and the Spanish ships were sunk, burnt and abandoned.” Commander Nathan Sargent, USN, Admiral Dewey and the Manila Campaign 41 (1947). The United States had won an overwhelming victory in the first major engagement of the Spanish-American War. While the calendar hadn’t quite reached the 20th Century, the American Century had begun. 
But every battle won is also a battle lost. The glory that fleetingly attached to Commodore Dewey was mirrored in ignominy for his defeated opponent, Rear Admiral Patricio Montojo, who commanded Spain’s Pacific Squadron. As Dewey noted in his autobiography, “Naturally, the Spanish government attempted to make a scape-goat of poor Admiral Montojo, the victim of their own shortcomings and maladministration, and he was soon afterward ordered home and brought before a court-martial.” George Dewey, Autobiography of George Dewey, Admiral of the Navy 233 (1913). 
In September 1898, before leaving Manila to be court-martialed in Madrid, Montojo sent a letter asking for Dewey’s assistance. “I have to defend myself from the calumny which may be  raised against me,” the Spanish admiral wrote. Id. at 308 (reprinting in full Montojo’s letter to Dewey). “[F]or this purpose it would be of the greatest utility and much force if I were able to offer the highly valuable testimony of the authorized opinion of yourself, the distinguished Commander-in-Chief of the squadron which I had the honor of engaging.” Id. After offering a defense of his conduct during the battle, Montojo noted, “I know that my temerity in making this request of you is very great; but invoking the fact that we belong to the same profession and remembering that you have more than once had the kindness to praise my conduct, I force myself to believe this will be well received.” Id. at 309. After asking Dewey to arrange for the transfer of Spanish prisoners of war from Philippine forces to American custody, Montojo concluded, “For my part, after begging your pardon a thousand times for the liberty which I am taking, I hope that you will kindly grant my request, for which your faithful servant will be eternally grateful.” Id
Admiral Dewey provided a gracious reply that began: “It gives me pleasure, replying to your letter of the 26th instant, to record my testimony in favor of a gallant foe.” Id. (setting out in full Dewey’s reply to Montojo). After noting some specific facts, Dewey wrote, “I have no hesitation in saying to you what I have already had the honor to report to my government, that your defense at Cavite was gallant in the extreme. The fighting of your flagship, which was singled out for attack, was especially worthy of a place in the traditions of valor of your nation.” Id. at 309-10. Dewey concluded, “I beg to assure you that I very much regret that calumnies have been cast at you, and am confident that your honor cannot be dimmed by them.” Id. at 310. 
The playwright Dennis Posadas was so struck by this respectful exchange between two recent foes that he made it the centerpiece of his play, “The Court Martial of Admiral Montojo.” Unfortunately, he was not sufficiently impressed to place the exchange in its actual historical context, instead inventing a fictitious account of the letters’ origins in the service of drama but that produced, instead, merely melodrama. 
The audience members at the Manhattan Repertory Theatre’s reading barely outnumbered the cast of 10, including the director, Ken Wolf, who served as the narrator. The actors did an admirable job; they had rehearsed the piece only once, and that just before the actual presentation. Bottles of water or, in one case, Snapple were at their feet as they sat in folding chairs on the small stage. Most often, the actors would stand as they delivered their lines, reading them from red binders. The director read not only the narrator’s pieces, but also the stage directions. 
Despite the lack of sets, costumes, and props, Peter Quinones delivered a powerful performance in the role of Admiral Montojo. When his character’s anger flashed, Quinones’ booming voice filling the room. Jamil Zraikat was also a standout in the smaller role of Coronel Castenada – one of the court-martial judges. The hasty production did, however, highlight a common theme of recent times: the civilian/military divide. Cast members struggled with the pronunciation of some terms and geographical locations that would be common knowledge for servicemembers, such as “littoral” and “Corregidor.” 
Unfortunately, the script wasn’t worthy of the cast’s talents; it was clichéd in both its words and its themes. The play starts with an encounter between the prosecutor and the defense counsel. When the prosecutor fails to browbeat the defense counsel into a plea bargain, he sneers, “The kid gloves are off.” Much more similarly insipid dialog followed. The script also had the actors speaking in a weird mix of English and Spanish. While most of the dialog was in English, actors would discordantly shift into Spanish for common words such as “señor,” “si,” “gracias,” and “adios” and for military ranks. In addition to its cardinal sin of historical  revisionism, the script also makes smaller mistakes regarding dates, places, and people, resulting in a narrative dog’s breakfast. 
The playwright did a particularly poor job developing the only significant female role, Evita Mallorca, the fiancée of Admiral Montojo’s defense counsel. She is shallow and feckless but, as the script’s triteness demands, ultimately reunites with the Navy lawyer after his moral courage has reversed an injustice. 
I’m often perplexed by script writers’ insistence on changing the facts of real events for dramatic effect rather than just using the actual events as inspiration for a wholly fictitious story in which the author is free to insert dramatic moments that didn’t occur in real life. Here, however, the mystery is why the playwright didn’t stick closer to the actual facts, which are far more interesting and complex than the author’s concoctions. 
If I can flag down one of those SantaCon St. Nicks, I’ll tell him that all I want for Christmas is a revised script based on the actual court-martial of Rear Admiral Montojo.
* Views expressed are Dwight's alone, and should not be imputed to any government agency.

For anyone who, after (or despite) reading Dwight's review, wants to know more, here is the casting call -- happily now overtaken by events. According to this briefest of items below the fold on page 1 of the July 1, 1898 New York Times (newsstand price 3¢), the decision to court-martial Admiral Montojo was made by the Spanish cabinet. There is a link to the two admirals' exchange of correspondence on this web page.

Adm. Dewey's willingness to speak up for his sometime adversary is reminiscent of the case of Capt. Charles Butler McVay III, the posthumously exonerated captain of the ill-fated cruiser USS Indianapolis. Commander Mochitsura Hashimoto, captain of the Japanese submarine I-58 that sank her, testified, according to The Times, that "the torpedoes would have found their mark even if the Indianapolis had been zigzagging."

BZ to our hardy reviewer for braving the elements, sitting through the play, and preparing this lively account.

Sunday, December 10, 2017

Transparency watch

The website of the Court Martial Appeal Court of Canada includes a February 23, 2017 Notice to the Profession concerning access to digital audio recordings of the court's proceedings. It reads:
As of February 23, 2017, the Court Martial Appeal Court of Canada will create and keep an audio recording of all hearings using a digital audio recording system (DARS). This does not apply to hearings by teleconference, which may be recorded in the Court’s discretion. 
Copies of the audio recording of a proceeding will be made available to the parties upon request. Media organizations and members of the public will be authorized, upon request, to listen to an audio recording, if they were entitled to be present in the courtroom for that proceeding. A court order is required before media organizations and members of the public are able to obtain a copy of an audio recording. 
In the case of oral reasons for judgment, the reasons will be redacted from the audio recording. 
Where there are access restrictions applicable during the hearing (e.g., as a result of a confidentiality Order or publication ban), the protected information will, where practicable, be redacted from the audio recording so as to allow for access. The audio recording will not be released if it is impracticable to redact the protected information. 
Exceptionally, there may also be situations where protected communications (e.g., between solicitor and client) are inadvertently recorded. Parties and their legal counsel should exercise prudence when such discussions close to the hearing room microphones, which are sensitive. Any concerns with respect to a recording should be brought as soon as possible to the attention of the Court. 
Request Process – Complete the form in the Annex and submit it to the Registry (in person or by fax). See the Registry Offices page of the Court web site (http://www.cmac-cacm.ca) to find your local Registry office. The Registry will contact you once the audio recording is available. 
Restrictions on Use of Audio Recordings of Court Martial Appeal Court of Canada Proceedings – Copyright in audio recordings shall vest in and remain the property of Her Majesty the Queen in Right of Canada. Reproduction, broadcast or distribution of any audio recording of Court Martial Appeal Court of Canada proceedings is prohibited.
One would think the public interest would be served by making the audio of hearings available as a matter of routine, as other courts have increasingly founds ways to do. This includes the U.S. Court of Appeals for the Armed Forces, as this website page shows. The Supreme Court of Canada posts archived webcasts here and has a form for requesting video recordings or webcasts here. FAQs are provided here. Perhaps a way can also be found around the crown copyright, so that, in a proper case, the media could post links to or otherwise disseminate recordings of CMAC hearings.

200 years ago

Vice Admiral William Bligh, RN
Next time you are in London, you may want to visit the grave of Vice Admiral William Bligh, of HMS Bounty. He died on December 7, 1817. Information on his gravesite at the Garden Museum (formerly the Church of St. Mary-at-Lambeth) appears here.

Friday, December 8, 2017

Free speech in Malaysia

Major (as he then was) Zaidi Ahmad
Do you remember Zaidi Ahmad? He's in the news yet again, as witness this New Straits Times report:
A non-government organisation (NGO) is urging police action against former Royal Malaysian Air Force (RMAF) officer major Zaidi Ahmad for allegedly making slanderous comments about Prime Minister Datuk Seri Najib Razak on WhatsApp.

International University Alumni Association secretary Naseron Ismail lodged a police report on the matter at the Dang Wangi district police (IPD) headquarters on Tuesday afternoon.

Naseron told the media outside the IPD that in a WhatsApp group named “Debate PRU14 Analisis” Zaidi posted a comment which humiliated Najib, whom he referred to as “a thief of billions of ringgit of the rakyat's money.”

“In his post, he also claimed that Najib slept during the 31st Asean Summit in Manila recently. His statement belittled Najib's credibility as our nation's leader.

"I am in the same WhatsApp group as Zaidi. I asked him to clarify his statement. He (responded by) mocking me," he said.

Naseron told Zaidi in the WhatsApp group that he would lodge a police report over the comments.

"I was really unhappy (over his comments). I am afraid that (they) would influence other people," he said, adding that Zaidi could be investigated under the Sedition Act 1948 and the Malaysian Communications and Multimedia Commission Act.

Naseron said he made a police report as a deterrent against all individuals who want to make slanderous remarks on social media.

"This should be stopped, as it will give a bad impression of the nation, especially with the upcoming election period," he added.
Can't have that happening, can we? 

Tomorrow, Off-Off-Broadway

Will you be in New York tomorrow? You can catch a free reading of a play about the court-martial of Spanish Rear Admiral Patricio Montojo and the support he received from Admiral George Dewey. According to Broadway World:
The play version of The Court Martial of Admiral Montojo will debut with a free off-off-Broadway reading on Saturday, December 9 3pm at the Manhattan Rep Theatre at 17-19 West 45th Street, NYC.

Military courts, according to the Federal Judicial Center

Here is what the Federal Judicial Center says about military courts:
Article I, §8 of the Constitution gives Congress the power to “make Rules for the Government and Regulation of the land and naval Forces.” Congress has long employed this power to authorize courts martial to enforce discipline and punish crimes within the military ranks. As part of the military command structure, courts martial proceedings do not have the same procedural safeguards of civilian courts. An 1859 decision of the Supreme Court of the United States determined that these courts did not wield the “judicial power” of the United States and as such were not federal courts established under Article III of the Constitution. These same attributes of military tribunals made the extension of their power to civilians controversial, and an 1865 Supreme Court decision held military tribunals could not try civilians where Article III courts were in operation.

During the second half of the twentieth century, Congress revised the composition and makeup of the military justice system to increase procedural safeguards without altering the distinctive character of the courts. In 1950, for instance, Congress established the Uniform Code of Military Justice and, with it the Court of Military Appeals (renamed the United States Court of Military Appeals in 1968 [82 Stat. 176]). This court consisted of three judges (five under the current statutory scheme) appointed from civil life by the President of the United States by and with the advice and consent of the Senate to fifteen year terms. No more than two of the three judges could be affiliated with the same political party. Similarly, in 1968 Congress required military judges to preside over general courts martial and required the Judge Advocate General of each service to establish a Court of Military Review.

In 1989 Congress provided for appeals via writ of certiorari from the Court of Military Appeals to the Supreme Court of the United States (103 Stat. 1569). In 1994, it changed that court’s name again to the United States Court of Appeals for the Armed Forces and the Courts of Military Review for each service to the Courts of Criminal Appeals.
Did you notice anything incorrect or obsolete?

An anniversary, but not a happy one

Pres. Desi Bouterse
Meanwhile, back in Suriname . . . we read:
Dec. 8, will mark the 35th anniversary of the killing of 15 of Suriname’s most prominent citizens for allegedly opposing military rule, two years after it had toppled the then-elected government because authorities resisted efforts by soldiers to form a labor union.

Survivors of the mass murders, opposition politicians and civil society will organize candlelight vigils and other activities to mark one of the darkest periods in modern Surinamese history, but even as they do they can take some hope that a court is now preparing to hand down sentences on approximately 20 suspects for the 1982 murders.

Wednesday, December 6, 2017

Civilian offense, civilian trial

A U.S. Navy commander is on trial in California state court on charges including attempted rape, as reported here in the San Diego Union-Tribune. The victim is a Navy helicopter pilot instructor and the offenses are alleged to have been committed at her off base apartment. The article observes: "The case is being tried in state court rather than military court because San Diego police brought the case to the District Attorney’s Office, an office spokeswoman said." This may incorrectly imply that the case could only have been brought in one court, whereas in fact the defendant could have been (and in theory still could be) prosecuted in both a court-martial and state court, under the dual sovereignty doctrine. Military prosecution would be constitutional under Solorio. Human rights principles, however, limit military criminal jurisdiction to military offenses. The 2006 Draft UN Principles Governing the Administration of Justice Through Military Tribunals provide: "The jurisdiction of military courts should be limited to offences of a strictly military nature committed by military personnel."

DoD IG report on court-martial reporting

Corey Dickstein has written this article for Stars and Stripes on a report by the Department of Defense Inspector General regarding the armed services' failures to submit required reports of court-martial results to the Federal Bureau of Investigation. Excerpt:
Thirty-one percent of courts-martial results that should have barred individuals from owning a firearm went unreported to the FBI by the U.S. military services in 2015 and 2016, the Pentagon Inspector General concluded in a report released Tuesday.

Investigators for the Inspector General found 780 convictions of felony-level offenses that were never reported to federal law enforcement officials responsible for maintaining the database used to determine whether individuals can purchase a gun. Additionally, the IG found fingerprints were not submitted to the FBI in 601 of 2,502 cases, the watchdog group wrote in its report.
The article includes a link to the full IG report.

Tuesday, December 5, 2017

Court-martial of a retiree

A Canadian court-martial has convicted a Navy commander of having an inappropriate relationship with a subordinate. Details here from the Times Colonist. The interesting thing is that the accused had been medically retired last year. Contemporary human rights norms disfavor the exercise of court-martial jurisdiction over retired military personnel.

Discontent in the ranks: a report from India

The National Herald has this report cataloguing complaints by Indian Army enlisted personnel. Excerpt:
A growing clamour of jawans complaining against orderly or batman or sahayak-system in military and para-military forces—thanks to smart-phones and social media revolution—marked year 2017. 
Even though Indian Navy and Air Force have abolished the orderly system, the military and para-military forces refuse the change. Notably, neighbouring countries like China, Pakistan and Bangladesh employ civilians as helpers in armed forces. UK—from whom India inherited the practice—did away with orderlies after World War II like many other European countries. USA uses ‘enlisted aides’ for Generals. 
Currently, many jawans have been facing internal inquiries for taking to social media for airing their grievances despite a warning by Army Chief General Bipin Rawat earlier this year. Unfazed, the disgruntled jawans continued to share videos showing soldiers recruited in combat roles doing menial jobs that range from washing and ironing clothes of an officer’s family, polishing shoes, cooking and serving food at the homes of officers, baby-sitting, watering plants, walking pet dogs and even escorting the officer’s family members, all through the year.
The discrepancy among service branches seems unsustainable. Also noteworthy is the impact of personal tech and social media on traditional expectations of discipline.

Monday, December 4, 2017

Is this a retaliatory prosecution?

Lance Naik Yagya Pratap Singh is an Indian Army soldier whose video complaining about poor food and other matters went viral a few months ago. He was to have retired on November 30. Instead, he was handed a charge sheet that day, and will be tried by a court-martial, according to this report. Excerpt:
[C]laiming threat to his life, he has written a letter to Fatehgarh SP demanding security. “I had written a letter dated June 16, 2016, and demanded that orderly system must be abolished in the Army. The Army hasn’t probed the matter and several attempts have been made at my life. After November 30, I will become a civilian therefore it’s your responsibility to secure my life,” the letter reads. His letter also mentions names of four senior officers from who have allegedly threatened him of dire consequences. 
Earlier in January, the Lance Naik had raised voice against the British era practice—which the Army has refused to do away with—of posting jawans as orderlies with officers. “On June 15, 2016, I wrote to the Prime Minister, President, Home Ministry, the Supreme Court and the Human Rights Commission. This was about exploitation of jawans by senior officers,” said Yagya Pratap in a video released to the media by his wife, Richa Singh, adding that “subsequently, our office received a letter from PMO and it took our brigade by storm. Thereafter, my senior officers have started harassing me.” 
“But in my letter, I hadn’t written anything against the Army. I didn’t pass on any sensitive document of the Army such as location of ammunition depots, maps or any kind of sensitive information,” he said, adding, “I just wrote a letter in which I urged that soldiers trained to defend the country shouldn’t be compelled to polish their officers’ shoes or walk their pet dogs. This practice needs to be done away with.”

Good courtroom coverage from Gambia

It is an unfortunate fact that much reporting on courts-martial is thin on specifics, giving little sense of what was actually said and done in the court. A recent exception is this report on a multi-defendant case being tried in Gambia. Bravo to FOROYAA reporters Yankuba Jallow and Hatab Nyang.

Follow-up on the news

Remember the Royal Marines weird hazing case reported here?

The two accused Marines were acquitted after a week-long court-martial. Details here.

Not military justice, but

Adv. Rakefet Peled
An Israeli court has handed down an interesting decision on whether a military photographer is entitled to photo credit for a picture taken in the line of duty or whether it is sufficient to credit the IDF's spokesperson. Rakefet Peled, a partner in the Tel-Aviv IP firm Gilat Bareket & Co., writes under the headline "Are Moral Rights Denied from Servicemen?" Except:
In September 2017 the Jerusalem District Court held that the Israel Defense Force (IDF) had no obligation to designate the name of a soldier photographer in publications including photographs taken during a soldier’s military service and that assigning credit to the IDF spokesperson alongside the picture is sufficient. Considering the recent trend of Israeli courts to strengthen moral rights of artists, this ruling is particularly interesting because it practically exempted the IDF from the obligation to assign credits to authors.
In Ron Ilan v. Miskal Publishing House the claimant had served as a photographer in the military’s photography unit , and the defendants, a book publisher, had published a book that contained pictures taken by the claimant during the Yom Kippur War, without his name being mentioned as the work’s author; rather, the publishing company gave general credit to the IDF spokesperson only.

The publisher argued that since the IDF spokesperson, specifically instructed it to give general credit only to the IDF spokesperson and not to any particular photographer, it could not be held to commit any wrong. The IDF spokesperson’s position (claimed in a third party notice) was that there were various reasons to justify the guidelines whereby only the IDF spokesperson was to be mentioned and not the individual soldier, including the facts that the military provides the photography training and equipment, that the military finds importance in the mission to photograph and not the artistic quality of the photography, and that giving credit could lead to artistic competition among photographers, which would result in them focusing on the artistry of pictures instead of serving the military’s goals.

Acknowledging the premise that the creator is entitled to receive credit, the court rejected the argument that a person who enlists into the military waives his/her moral rights in any work. The court held that military conscription and corps enlistment do not represent an implied agreement to waive the moral rights of the soldier. Nonetheless, it was held that the obligation to assign credit to the author according to the law is not absolute and its scope is dependent on “the degree and extent appropriate under the circumstances.” The court ruled that, for military photographers, it was sufficient to assign credit to the IDF spokesperson and hence rejected the suit filed against the publishing company.

The court relied on four considerations in its decision: (1) the fact that the publishing company fully complied with the guidelines of the IDF spokesperson, who had requested that no individual credit be given to the photographer; (2) the fact that this was a work created by a military serviceman, who, as an enlisted service member, has no expectation to receive individual credit; (3) policy considerations of there being a real concern that specific credit given to individual military photographers would adversely affect the military corps’ activity as well as the unit’s cohesion. The court also pointed out the concern that giving individual credit would lead to preferences for images more likely to gain wide exposure and that have artistic breadth versus pictures serving military needs, and even remarked that revealing the photographer’s name could possibly put such person at risk ; and (4) in the specific case at hand the claimant was not a professional photographer and no damage was caused to his career by omitting his name.
[Footnote omitted.] The author goes on to note that the district court's decision is inconsistent with earlier case law. Perhaps it will be appealed.

When senior police officials are tried by court-martial