Tuesday, November 21, 2017

Military commissions convening authority ruling on Brigadier General Baker's contempt proceeding

Brig. Gen. John G. Baker, USMC
From Defense Department Public Affairs:
Convening Authority Rules on Military Commission's Contempt Proceedings Against Brig. Gen. Baker
The Office of Military Commissions (OMC) Convening Authority (CA) has reviewed the contempt proceedings against Brigadier General John G. Baker, United States Marine Corps, Military Commissions Defense Organization. The CA has determined that the findings of the military judge are correct in law and fact. The CA is forwarding the findings and record of proceedings to the appropriate authority overseeing Brig. Gen. Baker's service as a Judge Advocate within the Department of the Navy, the DoD Standards of Conduct Office, and the DoD General Counsel's Office, and the Staff Judge Advocate to the Commandant of the United States Marine Corps for an administrative ethics review. The CA is not requiring that Brig. Gen. Baker pay the original $1,000 fine or serve the remaining confinement term, which was initially 21 days.
With regard to the underlying security concerns that led to the attempted resignation of defense counsel in the case of United States v. Al-Nashiri, the CA will also recommend to the Joint Detention Group at Guantanamo Bay that a "clean" facility be designated or constructed which would provide continued assurances and confidence that attorney-client meeting spaces are not subject to monitoring, as the commission proceeds.
The CA noted that it was within the military judge's authority to rule upon the defense counsels' request to withdraw from the case. The presiding judge, US Air Force Colonel Judge Vance Spath, found that there was "no good cause" to withdraw after reviewing both the classified and unclassified information concerning the defense's motion.
During the Oct. 31 proceeding, Judge Spath said, "On 20 September 2017, again after consideration of all the classified and unclassified filings. there wasn't any basis to find there had been an intrusion into attorney-client communications between this accused and this defense team."
The CA acknowledged that the classified nature of the proceedings have shaped the commission's proceedings. The declassification of relevant documents concerning this matter needs to be expedited to ensure the now-classified analysis can be shared with the appropriate parties to reinforce the integrity of the process. The CA will work with the necessary declassification authorities to improve this area of concern.
Editor's comment: Referring General Baker for an ethics review is appalling and yet another self-inflicted wound for the military commissions.

Nominations are now open for Global Military Justice Reform's 2017 Man of the Year. General Baker comes to mind. Anyone else?

Military law and discipline at the danwei level in the People's Liberation Army

“First, we must keep in mind that the military must unswervingly adhere to the Party’s absolute leadership and obey the Party’s orders. Second, being able to fight and win a war [is] absolutely necessary for a strong military. Third, the PLA must maintain its discipline. The military must be governed strictly according to laws.”[1]

Modern military forces the world over are usually governed by a body of national military law that is intended to promote and maintain a high level of military discipline among those who are charged with the responsibility of the national defence. A large and growing English-language literature explores these national laws of many countries around the world, with the curious exception of the People’s Republic of China – and this, despite the size of China’s armed forces and the rising influence of the state (and Party) they serve. Such scholarly attention as the subject has garnered has focussed on the operation of Chinese military courts, with scant attention paid to the role of law in the maintenance of military discipline at the unit (danwei) level. In China, the Regulations on Discipline of the Chinese PLA is one of the key instruments for maintaining discipline at the unit level within the PLA. Discipline regulations were first instituted in the PLA in 1951 replacing the venerable Three Main Rules of Discipline and Eight Points for Attention that were the earliest formal rules applied from 1928 in the Chinese Workers’ and Peasants’ Red Army, the forerunner of the PLA. The Regulations have been modified or supplanted on several occasions since, and the most recent iteration was adopted by the Central Military Commission in May of 2010, coming into force the following month. The current version of the Regulations on Discipline has not previously appeared in English translation, but excerpts are now available [here] on the website of China Law Translate.

The Regulations consist of 179 Articles divided into seven chapters dealing, in Chapter II, with rewards such as medals and commendations, and in Chapter III with punishment. (The formal application of both rewards and punishments in the maintenance of military discipline in China predates the empire. The civil reforms of Lord Shang in the pre-Imperial state of Qin introduced a system of rewards and punishments that became a hallmark of Qin military discipline, and was continued in the army of the new empire after 221 BCE.) The remaining chapters deal with introductory matters (Chapter I), special measures (Chapter IV), complaints and appeals (Chapter V), the duties of leading cadres and discipline inspection (Chapter VI) and supplementary provisions (Chapter VII).

The Regulations apply to all officers, civilian cadres, non-commissioned officers and soldiers of the PLA, as well as to reservists when engaged in hostilities. They also apply to cadets attending military academic institutions and to members of the People’s Armed Police Force, the branch of China’s armed forces with particular responsibility for internal security.

For your military justice bookshelf (or stocking-stuffer)

Major General Michael Scott, CB, CBE, DSO, Scapegoats: Thirteen Victims of Military Injustice (Skyhorse 2015), xiv + 322 pp, $24.99. No. 3 is the unfortunate Vice Admiral John Byng, RN (1704-57). Can you guess the other dozen?

Nepal Army raises double jeopardy issue

The Nepal Army has appealed the murder conviction of three Army officers who were convicted in civilian court following earlier military legal proceedings that handed down six-month sentences. Excerpt from this My República report:
On April 17, 2017, Kavre District Court had convicted Colonel Boby Khatri and Captains Sunil Prasad Adhikari and Amit Pun in the murder of the teenage girl during the Maoist insurgency and slapped life terms on them. The court acquitted Major Niranjan Basnet, who was also accused, stating that the evidence against him was insufficient. 
Khatri, Adhikari and Pun are no longer in the army.

The writ petition has moved the apex court to annual the Kavre district court verdict, arguing that it goes against a precedent set by the Supreme Court and flouts the universal principle against double jeopardy. The writ petition has also claimed that Kavre district court lacked the jurisdiction to hand down such a verdict.

The writ petition has stated that the three army officers had already undergone the punishment handed down by a military court of inquiry and the district court in pronouncing its own verdict had breached its jurisdiction.

Trouble in Gambia: soldiers held without trial

Agence France Presse reports from Banjul:
When strongman Yahya Jammeh left The Gambia for exile after 22 years, new foreign minister Ousainou Darboe pledged the tiny nation would become the “human rights capital of Africa”.

His remarks came days after Jammeh’s forced departure in January, and followed the release of droves of political prisoners from the country’s notorious jails — the face of years of flagrant rights abuses under the mercurial leader.

But as the first anniversary approaches of the December 1 election that would eventually spell regime change for Banjul, AFP has learnt that a dozen soldiers are currently being held in Gambian detention far beyond the remit of the constitution, in some cases for months.