Wednesday, January 07, 2009

Court-Martial News Roundup

For all the roundup haters, stay tuned CAAFlog will have analysis of Conliffe later tonight. I suggest you stay up until 2 a.m. to make sure he hasn't posted while you were stewing over a non-CAAF story.

As Stars and Stripes reported today (actually tomorrow), here, premeditated murder charges were referred Monday against Master Sgt. John E. Hatley "in two separate incidents allegedly involving the shooting of Iraqi detainees in Iraq in 2007." For those that actually follow the roundups, you'll remember our previous reporting about Hatley and his involvement with other NCOs in detainee killings in Iraq. See coverage here and here. As we previously reported, Hatley and Sgt. 1st Class Joseph P. Mayo and Sgt. Michael P. Leahy Jr. are charged in one of the shooting deaths in which several others have been charged or pled guilty. Hatley and Leahy are the only two soldiers charged in the separate killing in January 2007.

Ending the strange saga of a Navy corpsman that once faced a potential GCM for wearing an unauthorized Purple Heart, Chief Petty Officer Robert White was sentenced to 45 days, reduction to E-5, and forfeitures for wearing the unauthorized ribbon. As Navy Times reported, here, White had been selected for E-8 before it was discovered his E-5 girlfriend entered the medal in his record without any official approval. Chief White apparently bought the ribbon at the Exchange himself. There are other interesting facts in the story, but I'll let you decide whether to click the link.

I thought this was an interesting story from the BBC, so I'll add it here. UK military leaders have started enacting reforms in the UK courts-martial system. Among the reforms that have been rolled out is the first ever civilian to head a Service Prosecuting Authority, which is the independent convening authority for all serious offenses in the UK military. The new Joint Prosecuting Authority will have jurisdiction over all serious crimes in the UK army, air force, and navy. For a complete review of the changes brought about by the UK Armed Forces Act of 2006, see the UK Ministry of Defence page here.


Phil Cave said...

The military legal development in Great Britain is of interest for a number of reasons.
1. Some of us are old enough to remember the food fight between DoD General Counsel and the TJAGS. The GC wanted to take over the whole enchilda, but the TJAGs successfully defended their rice. Interesting in light of the later differences of opinion between the uniform and non-uniform lawyers in DoD vis a vis certain aspects of the conduct of the war in Iraq. Some of the investigative documents seen through FOIA make interesting reading.
2. The primary reason for the GB change is related to public and government concerns/perceptions about the failure of the Army to get convictions of Soldiers accused of murder and other similar crimes in Iraq and Afghanistan, or in some instances the wrongful prosecution and harassment of Soldiers doing their duty. It's of note if you consider it in the context of DHS's comment a few weeks back(?) about the trend in the various U.S. prosecutions; Haditha, etc.

Anonymous said...

If you get rid of the ability of convening authorities to decide which breaches of discipline require imposition of court-martial proceedings and which ones do not require the same, you may as well just scrap the entire system. Very few criminal offenses cannot be prosecuted by some civilian court (make sure all military installations jurisdiction is concurrent), and use NJP/ADSEP for the military offenses.

I understand why the TJAGs fought this fight previously and they should continue to fight the suggestion that we be more like Canada or now GB. While much has been said regarding the purpose of the military justice system (is the purpose to do what is traditionally thought as justice, or is it merely a tool to assist commanders maintain good order and discipline in pursuit of mission accomplishment?) removing convening authority charging discretion will ultimately serve neither.

If it is not apparent already, I believe the commanders need to have the authority to decide which cases should go forward and which cases should not. There already exists the ability of each succeeding higher commander in the chain of command from withholding UCMJ authority entirely or on a case-by case basis from subordinate commanders. Thus, as long as we lawyers are not asleep at the helm, the charging decisions should be, in general, appropriate as is.

But what I go back to is the history and purpose of discipline in the armed services initially. Initially it was for one purpose, to maintain discipline in order to accomplish the mission. It most definitely has evolved to also attempt to satisfy other criminal justice (as opposed to military justice) goals. However, those must always be subordinate to the primary purpose, and that purpose involves a commander weighing the alleged offenses, the probable resolution, the command climate, the effect of not imposing discipline, and the current mission, to make the determination.

I’d say those with the best argument for changing the system come not from the defense bar, but from victim advocates who indicate that we too often do not attempt courts in many cases. I would normally point out that our system, as a percentage, attempts prosecutions in cases that the civilians would not touch, but that matters little when what we do is scrutinized by Congress looking for re-election causes to champion as opposed to the civilian system, with the scrutiny coming in the poll and where what matters is the DA’s conviction % (bang for the buck). But I digress.

I like many of you believe some improvements to the system are in order, but removing the discretion of commanders to charge offenses will be the beginning of the end of the JAGC and ultimately disserve the military as a whole.

Mike "No Man" Navarre said...

Anon 0720:

Excellent comment. I think there is a middle ground somewhere around Solorio, where military offenses go through the criminal justice system and unrelated offenses go to the state court or USDC. I don't know that it is workable, but it is a middle ground. I haven't read enough about the UK Armed Forces Act of 2006 to know what offenses fall under the SPA's jurisdiction, the website said something about "serious offenses.". Maybe a NIMJ member with info can post something . . .

Anonymous said...

Phil: "successfully defended their rice"?????

Dew_Process said...

The Canadian Forces system is in-between, where the Convening Authority must first send a case to the Director of Military Prosecutions who makes the "final" decision on whether or not a court-martial is appropriate, level of court and charges. Similar to civilian DA's.

The JAG's actually make legal decisions, rather than recommendations to the CA.

The Code of Service Discipline [Canada's UCMJ] and Queens Regulations & Orders prescribe service offences; provide for summary trials and courts martial; and outline trial and appeal procedure. The National Defence Act and Queens Regulations &Orders also address the values and basic principles of service life which distinguish the military from civilian society. These principles include:

Duty: An unlimited liability for service combined with a requirement to be present for duty when ordered;

Obedience to authority: The obligation to obey all lawful commands, including those which might lead to death or serious injury and the potential to be penalized for failing to do so;

Subordination to those in authority;

Enforcement of discipline;
Welfare of subordinates.

Now in Canada, it is the CA who makes a recommendation for a Court-Martial, and the Director of Military Prosecutions - not under the command's chain, that makes the decision.