Congratulations and best wishes to Colonel Jackie Thompson, who will be promoted to Brigadier General, and will take leadership over the defense office.
See note here. Dist. Ct. for the Dist. of ColumbiaThe plaintiffs in this case include eighteen federal civilian employees[1] and two active-duty Marines[2] (collectively, "Plaintiffs"). By virtue of their federal civilian and military employment, Plaintiffs are subject to the recent COVID-19 vaccine mandates imposed under President Joseph R. Biden's Executive Order 14043 and Secretary of Defense Lloyd Austin's August 24, 2021 order for the vaccination of military personnel. Plaintiffs now challenge these vaccine mandates on constitutional and statutory grounds and request emergency injunctive relief preventing their enforcement. Dear Editor: LtCol Korsak deserves our respect and support as a community of lawyers. What he appears to have done was his job. His actions are or should be, the norm. Article 1137, U.S. Navy Regulations requires the reporting of offenses, and I suspect the other Services have something similar. Oh, wait, there seems to be an AFI 51-401 of some relevance--duh. So, as I scroll down I get to para. 4.1. 4.1. Individual Responsibilities. All military and civilian personnel who, in the course of their duties, discover information that might reasonably be viewed as a violation of the law of war will report that information to their immediate commander. Such reports may be made through other channels, such as Security Forces, judge advocate, Air Force Office of Special Investigations, or inspector general. Contractors shall similarly require reporting through the chain of command by contractor personnel. If the immediate commander appears to be involved or reporting to that commander is otherwise not feasible, personnel must report the incident to the next higher command authority. In instances where it is unreasonable to report within the chain of command, personnel shall report to the servicing staff judge advocate, Inspector General, Air Force Office of Special Investigations or to a sister Service counterpart of one of these offices. I am struck by the phrase, "might reasonably be viewed[.]" This strikes me as not requiring proof BRD or BaP. That he then took his concerns to the IG and Congress is protected activity (and encouraged by an AFI on point). See also 10 U.S.C. § 1034. As to the correctness of his legal interpretations and advice, I don’t know. Nor do you. Until there is a full public accounting for the strike and its aftermath, I think we should be careful about dumping on LtCol Korsak for following AF regulations and doing his duty. To repeat one of my favorite quotes from Charles Dickens, in Hard Times, “Now what I want is, Facts.. . . Stick to Facts Sir!” Sincerely, Phil Cave.Speaking for himself to himself. "The Baghuz strike was one of the largest civilian casualty incidents of the war against the Islamic State, but it has never been publicly acknowledged by the U.S. military. The details, reported here for the first time, show that the death toll was almost immediately apparent to military officials. A legal officer flagged the strike as a possible war crime that required an investigation. But at nearly every step, the military made moves that concealed the catastrophic strike. The death toll was downplayed. Reports were delayed, sanitized and classified. United States-led coalition forces bulldozed the blast site. And top leaders were not notified." NYT link here. Update from Task & Purpose, here. Comment: Korsak is a hero. This incident demonstrates, yet again, "the downsides of high trust in the military." The problem is not a new one. Here are some comments I have received/seen offline: "Considering LOAC is up there with good order and discipline as the military’s go to argument for command prosecution authority, this seems to eviscerate that argument. Along with everything from My Lai to Haditha." "Special Operations Command needs to be shut down due to track record of impunity for war crimes - AND across DOD prosecutorial discretion shifted to independent lawyer command for ALL crimes including war crimes " Brenner FissellEIC United States District Court, D. KansasThis matter is a petition for a writ of habeas corpus filed under 28 U.S.C. § 2241. Petitioner is confined at the Joint Regional Correctional Facility at Fort Leavenworth, Kansas. Petitioner challenges his conviction by general court-martial. Pros se petitions from those confined at the USDB and JRCF are quite common. The 10th Circuits "full and fair consideration" standard on a federal habeas is tough, and so most petitions from there are pro se. I may be wrong, but I think this is the first in many years where the petitioner has asked for release pending decision. Perhaps this is a case where the court already perceives the petitioner will lose on the merits. Court of Military AppealsUnited States v. Howe. Appellant was charged and convicted of using contemptuous words against the President of the United States and conduct unbecoming an officer. Charges of public use of language disloyal to the United States with design to promote disloyalty and disaffection among the troops and civilian populace, were dismissed pretrial. Appellant was sentenced to a dismissal, TF, and two years at-hard-labor. The CA commuted one year of confinement. On appeal, he challenged his conviction on First Amendment grounds and other legal issues. The Army Board of Review affirmed the findings and sentence. CoMA denied a petition for review and a petition for reconsideration of the denial. There was no direct avenue to the Supreme Court, and there wouldn't be if the case arose today. See also Col Jeremy S. Weber, USAF, The Curious Court-Martial of Henry Howe. 55 Tulsa L. Rev. 109 (2019). The author reviews the character and events leading up to the, so far, only conviction of an active duty officer for violating Article 88, UCMJ. Howe was not on duty and wore civilian clothes. A newspaper report shortly after the demonstration noted that spectators did not notice Howe was a military member. In the interview for this article, Howe stated he believed his actions were in compliance with Army regulations. A review of Army regulations in effect at the time seems to support his position. AV2 v. Cook. Summary Disposition No. 22-0009/AR. AV2, Appellant v. John H. Cook, Colonel, U.S. Army, Appellee and Clinton Murray, Master Sergeant, U.S. Army, Real Party in Interest. CCA 20210409. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is denied. The ACCA opinion does not appear on its public website. Air Force Court of Criminal AppealsIn re KC. In this writ petition, the AFCCA denied the petition finding no abuse of discretion by the miiltary judge. At a Dubay hearing, the government sought to have all witnesses testify remotely. The MJ denied the motion. The complaining witness, contends that her travel to the United States from Australia for the hearing violates: her “right to be reasonably protected from the accused,” see Article 6b(a)(1), UCMJ, 10 U.S.C. § 806b(a)(1); her “right to be treated with fairness and with respect for [her] dignity and privacy,” see Article 6b(a)(8), UCMJ, 10 U.S.C. § 806b(a)(8); and her “right to proceedings free from unreasonable delay,” see Article 6b(a)(7), UCMJ, 10 U.S.C. 806b(a)(7). Petitioner argues that requiring in-person testimony violates her Article 6b, UCMJ, rights because: (1) it will subject her to ongoing fear of TSgt Leipart and his family; (2) requiring her to travel halfway around the world for a hearing during the COVID-19 pandemic is cruel and “defies tenets of basic dignity and fairness;” and (3) delaying the hearing is unreasonable when remote testimony is a viable option. The Dubay issue is whether the CW committed fraud upon the court--a factual and credibility issue. Army Court of Criminal AppealsMilitary CommissionsHere is a link to the transcript for the sentencing hearing in Khan. Unofficial/Unauthenticated Transcript of the Majid Shoukat Khan Motions Hearing Dated 10/29/2021 from 9:52 AM to 4:38 PM CheersA number of great poets and writers came from the experience gained in the trenches of WW-I, among them was Wilfred Owen. He happened to meet up with some others at the famous Craiglockhart Hospital. Having recovered sufficiently, he was returned to duty. On November 4, 1918, he was killed, terminating a promising writing career. His mother received the telegram announcing his death in the afternoon of November 11, 1918. Sgt. Henry Gunther, USA, is reported to be the last soldier from any of the belligerent armies to die on the battlefield (although many died later of their wounds). He died at 1059, November 11, 1918. He was the son of German immigrants to America. Thousands more soldiers, 1,100 of them in one unit, would die during the morning before the Armistice took effect. Augustin-Joseph Victorin Trébuchon, 15 minutes before the Armistice, appears to be the last poiuli to die. I thought we might take a break from current disputes and remember the past. Between August 1914 and 31 March 1920, just over 3,000 men were sentenced to death in British army courts martial. Offences included desertion (by far the most common capital crime), cowardice, murder, espionage, mutiny and striking a superior officer. In roughly 90% of cases, the sentence was commuted to hard labour or penal servitude. Recourse to this most extreme application of military discipline varied among First World War combatants. Britain seems to have fallen somewhere between France - whose much larger army suffered roughly 700 executions - and Germany, whose High Command seems to have deployed firing squads less regularly than its British counterpart. (Yes, sics everywhere.) Th[e following] essay will survey some essential features of military justice in World War One and present some of the key evidence that has emerged from current research about judicial practices. The essay restricts itself to the impact of military justice on soldiers; it excludes any consideration of military justice applied to civilians or to prisoners of war (POWs). After a brief overview of the military codes and procedures in effect during the war, the essay describes the range of punishments available to military authorities, with special attention given to the most controversial aspect of military justice, the use of the death penalty and executions. This is followed by a section on desertion – one of the most frequently prosecuted serious military offences – which offers a convenient way of comparing and contrasting the military justice systems of several of the belligerent countries. Finally, the legacy of military justice in World War One, in particular with regard to the German case, is examined. Steven R. Welch, Military Justice. International Encyclopedia of the First World War, October 8, 2014. “Dans ce pays-ci, il est bon de tuer de temps en temps un amiral pour encourager les autres.” Votaire, Candide. Int'l Collectors Library at 61. You may be familiar with Admiral Byng's execution about which Voltaire gives us the memorable phrase. Voltaire had been present on the quarterdeck of Byng's flagship when the admiral was executed by his own Marines. There had been general displeasure at the admiral's lack of performance in relieving the British garrison on the island of Minorca, and it had been thought necessary to set an example for others. Which brings us to World War I. Much modern writing about military justice during that time has focused on the executions and, ultimately successful, efforts to obtain pardons for many of those executed. The to "encourage others" theme is a common link. The Shot at Dawn Campaign was just one initiative in the UK. Pardon for Soldiers of the Great War Act 2000 was NZ's reaction. And I see there is at least one Shot at Dawn memorial in the UK. We talk a lot about GoD, so I was struck by this comment. “Discipline is a subjective concept and cannot in itself be quantified. However, an indicator of a division’s discipline may be suggested by the number of its soldiers being subject to a court martial.” The conclusion from the article is that tying discipline rates to military efficiency and effectiveness is not easy and any actual conclusion is ambiguous. Discipline in the BEF: An analysis of executions in the British Divisions, 1914-1918. Western Front Association. The writer's conclusion might also extend to the effectiveness of the military justice system to affect discipline. The ANZACs were, allegedly, notoriously ill disciplined, but were considered amongst the most effective of units. See here, here, and here. (Interestingly, the British already had a similar experience with the Australians during the Second Boer War. See, e.g., Peter Fitzsimmons, Breaker Morant. Hachette, Aust. 2021.) Finally, the executions were not justified because they had no deterrent impact. The practice and threat of executions did not prevent men from deserting. The practice was so arbitrarily applied that commanders could not use them as a credible threat. Soldiers did not consider the punishment when deserting, or if they did, they took a calculated risk and determined that if caught they would escape the firing post. With a commutation rate of 90 per cent, this was a wise gamble. Executions did not keep men in the field; this was achieved through sound leadership that balanced strength, kindness and creature comforts, including rations, cigarettes and a steady stream of mail from home. Face to Face: Were the First World War executions of 25 CEF members justified? Legion, Military History Magazine (Canada). Jospin’s reference to a system of military discipline as harsh as battle itself expresses what could be termed the conventional view of military justice in World War One, one well-represented in many scholarly and popular accounts of the war. According to this view, military justice was not only extraordinarily severe, but was often brutally inhumane and unjust, an essential element in a broader set of coercive disciplinary practices designed to intimidate the common soldier and force him to continue fighting in a war of attrition and mass slaughter to the bitter end. From this perspective, soldiers of the various belligerent countries appear as helpless victims of military justice systems that had little regard for the individual or for the principle of justice, but were instead instruments used primarily to maintain discipline and achieve deterrence through harsh and often arbitrary punishment. Welch, who concludes, Overall, the current state of research tends to validate the conventional view of generally harsh military justice in World War One. Revisionist studies have offered some useful qualifications (such as a more favourable evaluation of British and Canadian commanders as a result of examinations of their commutation practices) but have not succeeded in fundamentally undermining the conventional view. Previous research has been heavily concentrated on the highly charged issues of death sentences and executions. While these are very significant issues and do reveal much about the character of military justice, they represent only one aspect of military justice. Future research needs to focus more broadly on the ways in which the various military justice systems affected the overwhelming majority of soldiers who were not among the relatively small group condemned to death. Such studies would provide a much more solid basis for evaluating the role of military justice in maintaining or undermining obedience and morale. "Miscellaneous Docket - Summary Disposition
No. 22-0009/AR. AV2, Appellant v. John H. Cook, Colonel, U.S. Army, Appellee and Clinton Murray, Master Sergeant, U.S. Army, Real Party in Interest. CCA 20210409. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is denied." "About two-thirds of women and half of men in the Air Force experienced “interpersonal violence” within a period of two years, and most who reported it did not believe that their senior leaders were doing anything about it, according to the results of a survey released Tuesday.
The voluntary survey of 68,000 people was carried out over six weeks in the fall of 2020. Air Force officials said they were struck by the gap between how senior officials thought they were doing in responding to incidents that included bullying, harassment and assault, and how rank-and-file troops felt about their commanders’ performance. “It seems to be uniformly true that people at the lower levels who have experience with these things are telling us that there is a problem, and that senior leadership is not receiving that there is that problem,” Air Force Secretary Frank Kendall said in a phone call with reporters. “So, we’ve got an issue right there. At the end of the day, all of this is about leadership.”" Link here. Comment: A bad news cycle for the AF. The military is failing to comply with federal law in sexual assault cases, new watchdog report finds
"In many of the cases, 'the assigned prosecutor was an inexperienced, junior prosecutor without specialized training in special victim cases,' according to the report, which is expected to be released publicly this week after review by the branches of the military. That failure to assign specially trained prosecutors meant investigators and commanders 'may not have received the best legal advice with respect to critical investigative steps and case adjudication decisions,' the report adds. The Air Force fared the worst: 94% of survivors were represented by prosecutors not trained to handle sexual assault and domestic violence cases. The Army and Navy both failed to provide prosecutors who were adequately trained in 59% of cases; the Marine Corps fell short of the requirement 30% of the time." CBC News reports in this article that the newly appointed Canadian Minister of National Defense, Anita Anand, is directing that the investigation of allegations and prosecution of sexual criminal offenses or misconduct within the Canadian Armed Forces (CAF) move into the civilian justice system.
(Update) Rory Fowler on the above. Court of Appeals for the Armed ForcesBy order of the Chief Judge, the United States Court of Appeals for the Armed Forces will be closed all day on Friday, November 26, 2021.
For purposes of computation of time and motions to enlarge time under the Court's Rules of Practice and Procedure, November 26, 2021, will be considered a day when the Court is officially closed. "Col. Katheryn Ellis, the former commander of the 14th Medical Group, told Task & Purpose that on Oct. 12 she was told by the commander of the 14th Flying Training Wing, Col. Seth Graham, to issue an order for two of her civilian employees to get vaccinated against the novel coronavirus. However, Ellis believed Graham’s order conflicted with her own religious beliefs, as well as a request for a religious exemption from the COVID-19 vaccine mandate which she filed on Sept. 17. Ellis did not feel comfortable sharing the specifics of her beliefs “other than they are sincerely held,” she said, but this was the first time a vaccine violated those beliefs. “To clarify, my religious beliefs prevent me from taking the vaccine, actively promoting the vaccine, and from administering the vaccine to others myself (I’m a nurse),” Ellis said in a text message. “These objections were included in my religious accommodation request.”" Link here. (Update) The Air Force has not approved any requests from active-duty airmen and Space Force guardians who requested exemption from mandatory COVID-19 vaccinations on religious grounds, according to new statistics released by the service on Wednesday. The service is currently reviewing 4,933 religious exemption requests. David Roza, The Air Force has not approved any religious waivers for the COVID vaccine. Task&Purpose, Nov. 3, 2021.
"The stats show that 95.9% of the active-duty force has been fully vaccinated, while an additional 1% has been partially vaccinated." The military justice system has problems. Here’s how to fix them.
Steven Arango and Brandon Essig "The military justice system is underfunded and under-resourced, especially when compared to the federal justice system." Comment: The authors, who practiced in the Marine Corps, prosecuted crimes in a jurisdiction with a population of ~180,000. The smallest federal USAO is likely that covering Wyoming--population ~580,000. Per DOJ, "The attorney staff in the criminal division [of the District of Wyoming] is comprised of a Criminal Chief and 13 Assistant United States Attorneys (AUSAs)." Does anyone know how many TCs there are in the Marine Corps? Emily Eslinger writes on Robert U. Nagel et al., Culture, Gender, and Women in the Military: Implications for International Humanitarian Law Compliance, 15 (Georgetown Institute for Women, Peace and Security 2021). A recent report published by the Georgetown Institute for Women, Peace and Security presents an updated look at women’s experience in the military and the harms caused by the military’s male-dominated culture. However, the findings come as no surprise. For example, one section of the report focused on the continuing culture of an enabling environment for sexual assault and harassment, citing that one in ten female enlisted soldiers experienced sexual assault in the past year. [1] Congress has given the military over $2 billion over the last ten years, in addition to countless laws, panels, committees, and reports, to address sexual assault. Yet, as the Georgetown report confirms, none of these measures have truly moved the ball forward in addressing the military’s epidemic of sexual misconduct. The Georgetown report highlights that women in the military have experienced “long-standing disadvantages regarding promotions because of limited experience in a combat arms specialty.” [2] And while efforts are being made to recruit, retain, and integrate more women into the forces, “influence and decision-making continue to be gendered because men still make up the majority of officers.” [3] The high occurrence of sexual harassment and assault, paired with a perceived “broken system that fails survivors and shatters their trust”, further discourages women from staying in the military or joining in the first place. [4] The Georgetown report noted that in 2018, more than 20,000 service members were victims of sexual assault, yet fewer than 8,000 reported it. [5] A 2021 RAND report found that the services lose “at least 16,000 manpower years prematurely subsequent to sexual assault and sexual harassment in a single year.” [6] Finally, female civilians and their families aware of this culture of rampant sexual harassment and assault in the military do not want to join or have their loved ones join and put themselves at risk. The report calls on ending impunity for sexual misconduct as essential to achieving equitable military forces and adequate representation of women in senior leadership positions. In particular, the report identifies removing prosecutorial discretion from military commanders and into the hands of independent Judge Advocates, highly trained in military justice, as a necessary step. This consensus exists across organizations advocating for women in the military and has garnered bipartisan support in Congress. They have seen that commanders are not getting better at choosing the cases to go to court-martial despite all the studies, policies, and training. Some opponents of the change argue that commanders already have a JA advising them in military justice cases, and the majority of commanders do listen to this advice. However, the unreviewable choice to prosecute still lies within the commander’s sole discretion under the current system. In opposition to the view that commanders almost always follow the advice of the JA, a recent article by Law360 found: Commanders often don’t prosecute cases over criminal offenses because they know the accused and don’t believe the victims’ allegations, according to ex-military attorneys and sexual assault victim advocates. Other reasons they pointed to include racial bias or a conflict of interest — commanders don’t want their reputations to be hurt or to lose a good soldier. [7] This article called on readers to liken the situations to a civilian’s boss deciding whether they should be charged for rape, murder, or kidnapping. The “jury” is made up of their coworkers. [8] With that perspective, it is hard to see how a commander could avoid bias in making such a decision. The 2022 NDAA would instead place this responsibility in the hands of experienced lawyers, O-6 and above, in a military justice billet, whose sole responsibility would be to decide whether cases involving sexual assault and other felony-level crimes should go court-martial. The DoD and some members of Congress believe prosecutorial discretion should be removed from commanders only in sexual misconduct cases. However, Senator Kirsten Gillibrand and some military justice experts argue singling out these types of cases would only further marginalize women and illicit the perception that women are receiving special treatment. Additionally, this change is the least biased option for both victims and defendants of any serious crime. The United Kingdom, for example, implemented this change to protect the defendant’s rights after a murder case in which the commander was convinced the defendant was guilty. The United States is now the last of our allies to remove prosecutorial discretion from the chain of command. No other nation has found the change to affect good order and discipline adversely. -------------- [1] Robert U. Nagel et al., Culture, Gender, and Women in the Military: Implications for International Humanitarian Law Compliance, 15 (Georgetown Institute for Women, Peace and Security 2021). [2] Id. at 10. [3] Id. at 12. [4] Id. at 16. [5] Id. [6] Andrew R. Morral et al., Effects of Sexual Assault and Sexual Harassment on Separation from the U.S. Military, 24 (RAND Corporation, 2021). [7] Sarah Martinson, Military Justice System Problems Go Beyond Sexual Assaults, Law360 (Oct. 17, 2021). [8] Id. Emily Eslinger. |
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