Sunday, June 25, 2017

Consent is not enough

President Miriam Naor
Supreme Court of Israel
The High Court of Justice in Jerusalem has rejected a government appeal seeking to overturn a ruling concerning the power of military officials to conduct consent searches of soldiers' telephones unless they have a warrant. The Jerusalem Post has the story. Excerpt:
The High Court of Justice rejected a military prosecution appeal on Monday that sought to overturn a previous court ruling barring warrantless searches of soldiers’ cellphones. 
The decision led by the court’s president Miriam Naor did not take a stance on the military prosecution’s argument – that only a soldier’s consent is needed to search his or her cellphone, not a warrant.
However, Naor said that legislation should be considered, not an appeal in the courts, if warrantless searches are necessary. 
The High Court said that a previous ruling by a military court of appeals in November 2016 stands. The decision requires the military police to obtain a warrant to search soldiers phones, even if the soldier consents to the search.
“The fundamental question before us is whether the consent of the suspect is adequate in order to authorize investigators to search a mobile phone – this question will remain theoretical and will not affect the outcome of the procedure,” the court’s decision said.

Kings Point and sexual misconduct

Newsday, the Long Island newspaper, has this report on steps being taken to deal with sexual misconduct at the U.S. Merchant Marine Academy. Cadets at Kings Point are not subject to the Uniform Code of Military Justice, but the issues that can arise replicate those at the other service academies. MMA is located in the Department of Transportation's Maritime Administration. Excerpt from the article:
After Newsday’s inquiries about reforms to the sexual assault response program, academy officials said last week that the school is in the process of hiring a Special Victims Counsel.
The 74-year-old school, which comes under the U.S. Department of Transportation, does not conform to the Uniform Code of Military Justice, the rules and regulations that define the justice systems at the academies for the Army, Navy, Air Force and Coast Guard. That has put USMMA in a unique position, potentially hampering efforts to improve the reporting and judicial process for assault victims on the Kings Point campus, lawmakers and advocates said. 
USMMA, with its accreditation placed on warning by the Middle States Commission on Higher Education in June 2016, is under increased scrutiny to address its efforts to prevent sexual assault and sexual harassment, as well as to correct weaknesses in governance and leadership. The commission’s decision on whether the academy’s leaders have done enough to return to good standing is expected later this week. 
Changing the Merchant Marine student culture from one that blames the victim to one that advocates for the victim was among the recommendations in an independent study released in January by Logistics Management Institute of Virginia. The 138-page audit, commissioned by the Transportation Department, described victims’ lack of trust in the system and noted that the absence of independent legal counsel for victims worked to “hinder the effectiveness of the Academy’s response to sexual assault.” 
Among other reforms the academy should undertake, the report said, were creating a policy that prohibits retaliation and ostracism; establishing a 24-hour helpline for confidential reporting of sexual assault, both on campus and during the intensive Sea Year training program, modeled on the helpline used by the other service academies; and setting up a forum for victims to exchange information with leadership and other victims.

The litigation track bill

“Because JAGs transfer so frequently, most do not gain the necessary experience to try cases, defend the accused, or represent a survivor adequately,” she said in a statement. "Moreover, JAGs are encouraged to have a broad range of experience, which means that a JAG who has very little experience trying cases may be assigned to a complex sexual assault case. Our service members deserve better. Our bill will change that and model the military justice system after the civilian system where lawyers become experts in their fields.”

Sen. Kirsten Gillibrand (D-N.Y.) on a bill that would require all branches of the U.S. armed forces to create a specialized litigation career track for judge advocates. Sen. Joni Ernst (R-Iowa) co-sponsored the bill.

Another conscientious objector jailed in South Korea

Even though the issue of conscientious objection is pending before the Constitutional Court, the Supreme Court of the Republic of Korea has once again overturned the acquittal of a conscientious objector. The Korea Herald has the story here:
In the latest case, the 22-year old man identified by the surname Shin was tried for refusing to join the military after he received his draft letter in December 2015. The first court to try Shin had found him innocent, saying that forcing him to serve military duty against his religious beliefs was “demolishment of existential value” of Shin as a person. However, the appeals court sentenced him to an 18 month imprisonment, saying that that religion cannot be considered a justifiable reason for refusing military service under current laws, and social system. 
“Conscientious objection does not qualify as ‘justifiable reason’ for exempting from punishment under current laws,” the Supreme Court said in its ruling. 
“The UN Human Rights Committee recommendation against penalizing conscientious objectors is not legally binding,” it continued.

Friday, June 23, 2017

CAAF Rules Guide 16th (LexisNexis 2017)

LexisNexis has published the 16th edition of the Guide to the Rules of Practice and Procedure for the United States Court of Appeals for the Armed Forces, by Dwight H. Sullivan and the editor of this blog. Details can be found here. Available in print and ebook formats. $188.