MILITARY JUSTICE GAZETTE

NATIONAL INSTITUTE OF MILITARY JUSTICE

No. 117
INSIDE NIMJ Visit NIMJs blog at www.nimjblog.org to read timely information on military law matters. This will be the final Military Justice Gazette, at least for the foreseeable future. Please continue to read about news in the world of military justice and upcoming events and publications at NIMJs blog at www.nimjblog.org. NIMJ is currently entering a transitional phase. Three years ago, NIMJ received a generous multiyear grant award from three major foundations. With that funding, NIMJ hired three full-time staff and several students as part-time staff. The funding also allowed NIMJ to publish books and reports, improve its Web site, organize and participate in numerous conferences and panel discussions, host media events, and convene the Second Commission on Military Justice. It has been a productive and exciting three years. Unfortunately, NIMJ has not been able to secure additional funding. While NIMJ will be losing its full-time staff, it will continue many of its operations, including the blog and filing amicus briefs at various courts in important cases involving military law. As many readers may know, NIMJ functioned for over fifteen years without full-time staff, so this is not unusual for us. The Boards of Directors and Advisors will continue to serve NIMJs mission. On August 1, 2011, NIMJ will move into its third decade of advancing the fair administration of military justice and fostering improved public understanding of the military justice system with new leadership at the helm. After two decades as NIMJs President, Eugene R. Fidell, one of NIMJs co-founders, is stepping down from his position. Gene, who is a Coast Guard veteran and is Of Counsel with Feldesman Tucker Leifer Fidell, will continue to sit on the organizations board of directors and plans to remain active in NIMJs work as he continues as the Senior Research Scholar in Law and Florence Rogatz Lecturer in Law at Yale Law School.

Published by the
Washington, D.C.

July 1, 2011

Gene leaves NIMJ in great shape as he turns the reins over to current NIMJ Vice-President Elizabeth L. Hillman. Beth is a professor at University of California Hastings College of the Law. She attended Duke University on an Air Force ROTC scholarship and served as a space operations officer and professor at the US Air Force Academy before leaving the military to attend law school at Yale. With Gene Fidell and Dwight Sullivan, she has authored the only US textbook on military justice. Victor Hansen will succeed Beth as NIMJ VicePresident. He is a professor at New England Law l Boston. A career Army officer, Vic served as a judge advocate for most of his uniformed life. He has military capital litigation experience. Vic previously taught at The Army Judge Advocate Generals School and has published a number of articles on military law topics. NIMJ Advisor Diane Marie Amann has been appointed the Emily and Ernest Woodruff Chair in International Law, a position created 20 years ago for Louis Sohn, at the University of Georgia School of Law, where in the fall 2011 semester she will teach courses on the Laws of War and Public International Law. Amann joins the Georgia faculty from the University of California, Davis, School of Law, where she was a Professor of Law, Martin Luther King Jr. Hall Research Scholar, and the founding Director of the California International Law Center at King Hall. Congratulations to Captain Kathleen A. Duignan, who was appointed to the United States Coast Guard Court of Criminal Appeals. Captain Duignan served as the Executive Director of NIMJ in 2006-07. Publication: NIMJ will publish Military Commission Reporter Volume 2, Pamphlet 3 online shortly. The Military Commission Reporter includes every publicly available opinion and decision from the military commissions and the Court of Military Commission Review.

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MILITARY JUSTICE UPDATE

M.J. GAZ.

No. 117

MILITARY COMMISSIONS UPDATE All was quiet at Camp Justice at the U.S. Naval Base at Guantanamo Bay. With President Obamas recent announcements regarding commissions and detention discussed in Military Justice Gazette No. 116, the military commissions will likely recommence soon and NIMJ will be there to observe and provide expert commentary. The government re-preferred charges against Nashiri, alleged mastermind of the USS Cole bombing and in the 9/11 case.

Civilian Extraterritorial Jurisdiction Act NIMJ Advisor member Geoff Corn testified at a hearing before the Senate Judiciary Committee on CEJA, titled Holding Criminals Accountable: Extending Criminal Jurisdiction to Government Contractors and Employees Abroad. The Committee page provides links to witness testimony. The Committee recently passed this measure.

NIMJ advisor Geoff Corn testifying at Senate Hearing

U.S. v. Bozicevich: Sergeant Joseph Bozicevich was found guilty of two counts of premeditated murder in the 2008 slayings of his squad leader and another soldier at a patrol base in Iraq. He was spared the death penalty when the panel didnt return a unanimous findings verdict. Bozicevich now faces a sentence of life in prison, either with or without the possibility of parole. Sentencing has been delayed until August. U.S. v Ali: The Army Court of Criminal Appeals heard oral argument in Ali. The case addresses the constitutionality of Art. 2(a)(10), UCMJ, the provision that allows the court-martial of civilian contractors accompanying the force in the field during contingency operations. Ali, a civilian and an Iraqi and Canadian dual-citizen, was courtmartialed in Kuwait. An NIMJ observer provided comment on the arguments. Declining Court-Martial Numbers: In June, the Navy Times reported on the decline of courts-martial. T]he Navy tried 252 cases at general court-martial in fiscal 2000, a figure that fell to 108 in fiscal 2010. A total of 755 cases were tried at special court-martial in fiscal 2000, a number that plummeted last fiscal year to 127.

The Department of Defense announced the appointment of Army Brig. Gen. Mark Martins to be the chief prosecutor, Office of Military Commissions. Martins will succeed Navy Capt. John Murphy, who has served as chief prosecutor since May 2009. I would personally like to commend Capt. Murphy for his hard work, record of performance, and tremendous dedication as chief prosecutor, and for his service to the nation for the past two years, said the General Counsel of the Department of Defense, Jeh Johnson. Brig. Gen. Martins co-led the interagency Detention Policy Task Force created by President Obama. As part of that review, the task force recommended reforms to the military commissions process. The Court of Military Commission Review upheld the conviction of Salim Hamdan in its long-awaited opinion in the Courts first post-commission appeal. The court is expected to deliver an opinion in Bahlul by the end of the summer. Both Bahlul and Hamdan appealed their convictions on a number of constitutional grounds. NIMJ filed amicus briefs in both cases.

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FOREIGN MILITARY LAW

M.J. GAZ.

No. 117

Canada: The Court Martial Appeal Court of Canada held that requiring Canadian military judges to serve five year renewable terms was unconstitutional in LeBlanc v. Regina, 2011 CMAC 2. The Court ruled that military judges must be given tenure. The Court reasoned that [W]e are at a point wheremilitary judges exercise the full powers of superior and provincial courts of criminal jurisdiction, with the exception of the power to try a person charged with the offence of murder, manslaughter and child abduction under sections 280 to 283 of the Criminal Code committed in Canada. Other judges have security of tenure, which is a component of judicial independence. The court held that the Canadian Charter of Rights and Freedoms requires that military judges be similarly protected.

President...................................... Eugene R. Fidell Vice-President ......................Elizabeth L. Hillman Secretary-Treasurer ...........................Hardy Vieux General Counsel .................. Stephen A. Saltzburg Deputy General Counsel ........... Brian C. Baldrate Chairman of the Board ............ Ronald W. Meister Executive Director..... Michelle M. Lindo McCluer Assistant Director .................... Jonathan E. Tracy Program Coordinator ........................ Irina Vayner Copyright 2011 NIMJ & American University. All rights reserved.

Nepal: In Bhuwan Prasad Niraula & Ors v. Constituent Assembly, Legislative Parliament & Ors, the Supreme Court of Nepal ordered the government to reform Nepals entire military justice system. The court held that Nepals military justice system is not in line with an independent judiciary or with international practices in military justice. The Court ordered the government to form a special taskforce to review the military justice system. Eugene R. Fidell and NIMJ, joined with the International Commission of Jurists in filing an amicus curiae brief. EVENTS The Melbourne Law School is holding a symposium titled "Military Justice in the Modern Age" on November 4-5, 2011. The international symposium is being held to mark the 10th anniversary of the Asia Pacific Centre for Military Law.