Brian Finucane, U.S. Recognition of a Commander’s Duty to Punish War Crimes, 97 International Law Studies 995 (2021). 

"This article explores the United States' recognition of the doctrine of command responsibility. The doctrine has been invoked by those alleging that President Trump’s pardons of U.S. personnel convicted or accused of war crimes could amount to war crimes themselves. The article focuses on a commander’s duty to punish war crimes by his subordinates. It examines the United States’ past recognition of the duty to punish as an element of command responsibility under the law of war. The principle that a commander has an obligation to punish war crimes by his subordinates is not a progressive development of the law promoted by the advocacy community. Instead, the duty to punish stands out as an ancient legal norm interwoven into the domestic law of the United States and which the United States has incorporated into international legal instruments. The lesson from this history is clear, if not always appreciated: commanders who fail to punish their subordinates for war crimes may themselves be war criminals."

CAAF upheld an MJ's ruling that certain hearsay statements were not admissible under the "forfeiture of wrongdoing" exception to the hearsay rule. Read the opinion here.

"On an Article 62, UCMJ, appeal, the lower court is not authorized to make factual determinations to support a simple difference of opinion between it and the military judge."

Why "Contingencies of Proof?" precisely no one has asked.  This picture provides the answer.  Our tour of military justice heritage sites has taken us to Kentucky.  Bourbon has been consumed.  The higher the standard of proof, the more candid our posts.

[Standard disclaimer: This post is made purely in my personal capacity. It should not be imputed to anyone or anything else.]

In this house at Point Pleasant, Ohio, on April 27, 1822, Hiram Ulysses Grant was born. As an uncharacteristically clever historical marker at the site explains, “Grant later attended the military academy at West Point, where his name was changed to Ulysses S. Grant due to an administrative error. The army informed Grant that this was and would remain his name.”

The “Contingencies of Proof” road trip is a journey to explore military justice history. Grant offers numerous tie-ins. But rather than concentrating on Grant’s time as a general officer, this post explores his exercise of the pardon power while serving as the United States’ 18th President.

A general order issued on Oct. 10, 1873, announced that President Grant “commands it to be made known that all soldiers who have deserted their colors, and who shall, on or before the 1st day of January, 1874, surrender themselves at any military station, shall receive a full pardon, only forfeiting the pay and allowances due them at the time of desertion; and shall be restored to duty without trial or punishment on condition that they faithfully serve through the term of their enlistment.” Reprinted in 20 Op. Atty’ Gen. 330, 345 (1892).

The persistent problem of desertion is a thread running through this road trip. At our first stop in Beaver, Pennsylvania, we saw Major Wyllys use a big stick to address the problem: he ordered that three captured deserters be summarily executed. Secretary of War Henry Knox described that display “as a terror to the rest of the troops.” 30 J. Continental Congress 433 (1786). The executions apparently produced the desired general deterrent effect; Major Wyllys reported to Secretary Know that “[n]o desertions have happened since.” Id. at 120. General Grant, on the other hand, used the carrot: pardon and restoration to those deserters who would return to duty.

Grant was far from the first former general to use the pardon power in a military context as President. That distinction belongs to President Washington.

On July 26, 1796, Secretary of War James McHenry wrote a remarkable letter to President Washington. It concerned a court-martial conviction of Lieutenant Simon Geddes (sometimes spelled “Geddis”), though the offense of which he was convicted is, unfortunately, not mentioned. He noted that he had received a request from officers at West Point to release Geddes from arrest. Secretary McHenry cited article II, § 2 of the Constitution as providing the President with a pardon power that extended to court-martial convictions, adding that “Congress cannot pass any regulations for the government of the land and naval forces which may intrench upon, invalidate or nullify this power to pardon offences against the United States.”

On August 12, 1796, Washington issued the first presidential pardon for a court-martial conviction. He wrote: “Whereas at a General Court Martial held at West Point, May 12th, 1796, for the trial of Lieutenant Geddes, of the Corps of Artillerists and Engineers, . . . the Court sentenced the said Lieutenant Geddes, to be dismissed from the service of the United States. Be it known that I George Washington, President of the United States in consideration of the youth and inexperience of Lieutenant Geddes and for divers other good causes, have thought fit to pardon, and hereby do pardon, Lieutenant Geddes aforesaid, of the offence whereof he has been convicted, and do declare that the sentence of the Court aforesaid be hereafter held as nought, and that the said Lieutenant Geddes be reinstated in his command in the Corps of Artillerists and Engineers.”

There is a lot more to the story of Lieutenant Geddes. Later that same year, he fought a duel with another lieutenant arising from his court-martial conviction. Geddes shot his adversary in the chest, killing him instantly. For that, Geddes was dismissed from the Army.

In contrast to the brevity of Lieutenant Geddes’ Army career, the President’s authority to exercise the pardon power for military offenses, first exercised in his case, lives on. And as in the case of President Grant’s pardon of Army deserters, it would sometimes be exercised even before a conviction.
​
The exercise of that pardon power has, at times, been controversial. President Grant’s exercise of that authority demonstrated its utility when properly used.

Today’s first stop was at the boyhood home of William Howard Taft—the only person to serve as Commander-in-Chief and Chief Justice of the United States. As Chief Justice, Taft was deferential toward military processes. The case of Rogers v. United States, 270 U.S. 154 (1926), is illustrative.

Faced with the requirement to reduce the size of the Army after World War I, Congress devised a scheme to sort officers into two classes. Class A officers were retained on active duty. Class B officers were sent home, but not before having an opportunity to tell a five-officer court of inquiry why he should be retained. The court’s decision, however, was only advisory.


Major Rogers, a Class B artillery officer, was a party to such a court of inquiry. He testified on his own behalf, as was his right under the statute, and had a slew of officers standing by to testify for him too. Midway through his testimony, however, the presiding officer told him, “That will be all.” 

When Rogers’s counsel attempted to call witnesses, the presiding officer wasn’t having it. Chief Justice Taft recounted the exchange thus:

“‘It is the suggestion of the court, merely a suggestion, you understand, that counsel rest his case.’

 Counsel for the plaintiff thereupon stated to the court that he had more evidence that he desired to submit, whereupon the presiding officer stated:

‘I wish to repeat that it is the suggestion of the court that counsel rest his case.’

Thereupon the counsel for the plaintiff again stated to the court that he had other evidence, and that there were six witnesses in the building whom he desired to call, and a seventh witness who was in the city and waiting to be called by telephone. The presiding officer thereupon stated emphatically, striking his hand forcibly on his desk:

‘I wish to reiterate that it is the suggestion of the court that counsel rest his case.’

The plaintiff thereupon closed his case. At the time, plaintiff had, in the same building wherein the court was sitting, six witnesses, and a seventh witness, an army officer, waiting to be notified by telephone to appear.”

270 U.S. at 158-59.

Apparently the court’s prickly attitude toward receiving evidence wasn’t rooted in antipathy toward Major Rogers. The court found that Rogers should be retained. The Army disagreed, however, and put Rogers on the retired list. Rogers went to the Court of Claims and then the Supreme Court.

Chief Justice Taft was dismissive of Rogers’s claim that the court had wrongly curtailed his right to present evidence:

“He had counsel who presumably knew his rights under the statute, and if such evidence was deemed material and important, we must assume that the counsel would have asserted his right and insisted on the production of the evidence.”

270 U.S. at 162.
​
I think most counsel, in the face of a general officer pounding the table and telling him to wrap up, would decide to rest. But such is waiver.

The program for Symposium: Thirty Years of Military Justice has now been announced, and an RSVP link is live.

​View both here.

Reminder: there are slots available for papers received through open submission by the end of this month at symposium@nimj.org 

Fort McIntosh sat on a bluff high above the north bank of the Ohio River. The fort was built in 1778 under the direction of Brigadier General Lachlan McIntosh. As he wrote in December of that year, “I erected a good, strong fort for the reception and security of prisoners and stores up in the Indian side of the Ohio, below Beaver Creek.” Eight years later, that “good, strong fort” would play an important role in the development of the American military justice system.

Article 1 of Section XIV of the 1776 Articles of War adopted by the Second Continental Congress provided, “A general court-martial in the United States shall not consist of less than thirteen commissioned officers . . . .” But by 1786, the entire U.S. Army consisted of fewer than 1,000 soldiers led by about 40 officers. Some of those soldiers were stationed at Fort McIntosh under the command of Major John Palsgrave Wyllys.

Desertion was a serious problem in the Army of that era. Fort McIntosh was no exception. In 1786, a captain noted that 69 of the fort’s soldiers had deserted. That represented a huge portion of the fort’s garrison; in 1785, approximately 200 soldiers were stationed there. To deter further desertions, Major Wyllys convened a five-member court-martial to try two captured deserters. After the court-martial convicted them and sentenced them to death, Wyllys wrote to Secretary of War Henry Knox to inform him of the case and seek permission to carry out the death sentence. Major Wyllys again wrote to Secretary Knox the following month, noting that even while those two condemned soldiers were held in irons awaiting execution, three more soldiers deserted. Those deserters were tracked down, captured, and immediately executed at Major Wyllys’s direction – apparently without even the pretense of a court-martial.

Secretary Knox brought these developments to the Continental Congress’s attention, noting that “the small number of troops at present in the service of the United States, and their dispersed situation, render it difficult, and almost impossible to form a general court-martial, of the numbers required by the articles of war; therefore desertion and other capital crimes may be committed without it being practicable to inflict legally the highest degree of punishment provided by the laws.”

Congress directed that the two condemned soldiers be released due to the illegality of their trial. Congress also directed that a court of enquiry be held and that Major Wyllys be arrested.

Four months later, Secretary Knox informed Congress of the court of enquiry’s results. After delivering the facts, Secretary Knox concluded “that Major Wyllys was involved in one of those exigencies, which arise in the affairs of men, where the motives and intentions constitute in equity, the character of the action, and therefore it being apparent that his conduct was dictated by a regard for the public service, it is justifiable on military and political principles.” Congress apparently agreed, voting a week later to release Major Wyllys from arrest.

But absolving Major Wyllys was not all Congress did. Even while the court of enquiry was still considering the case, Congress voted to change the number of members required for a general court-martial. Under the revised Article 1 of Section XIV, “General Courts-Martial may consist of any number of Commissioned Officers from five to thirteen inclusively; but they shall not consist of less than thirteen where that number can be convened without manifest injury to the service.” Congress explained that without such a change, “crimes may be committed by Officers and Soldiers, serving with small detachments of the forces of the United States, and where there may not be a sufficient number of Officers to hold a general Court-Martial according to the rules and Articles of War, in consequence of which Criminals may escape punishment, to the great injury of the discipline of the troops and the public service.”

Major Wyllys was killed in action in October 1790 at the Battle of Harmar’s Ford, near what is now Fort Wayne, Indiana. But the military justice reform he provoked lived on. The 1920 Articles of War dropped any necessity requirement for a general court-martial to include fewer than 13 members, providing simply that such a court may consist of any number of commissioned officers “not less than five.” The 1948 Elston Act added a provision that an enlisted accused could require that at least one-third of a court-martial panel be enlisted members, but retained the five-member minimum for general courts-martial. And so it remained until the Military Justice Act of 2016.

Fort McIntosh has long since disappeared. A long, narrow park now occupies part of the land on which it once stood. That park is a military justice heritage site.

Marcus Fulton and Dwight Sullivan embark this morning on a multi-day military justice themed road trip. The will be posting pictures of their travels, along with some discussion of the relevance of the sites they are visiting.

The series will be called: Contingencies of Proof. 

Here is a teaser from their first stop:

​"Order Granting Petition for Review
 
No. 21-0312/NA. U.S. v. Wendell E. Mellette, Jr. CCA 201900305. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:
 
I.  M.R.E. 513 EXTENDS THE PYSCHOTHERAPIST-PATIENT PRIVILEGE TO A "CONFIDENTIAL COMMUNICATION" BETWEEN PATIENT AND PSYCHOTHERAPIST OR ASSISTANT. DID THE LOWER COURT ERR BY CONCLUDING DIAGNOSES AND TREATMENT ARE ALSO SUBJECT TO THE PRIVILEGE, INVOKING THE ABSURDITY DOCTRINE?
 
II. DID THE NMCCA DEPART FROM SUPREME COURT AND CAAF PRECEDENT BY NOT REVIEWING THE EVIDENCE AT ISSUE—DIAGNOSES AND TREATMENT, INCLUDING PRESCRIPTIONS—IN CONCLUDING: (1) THE MENTAL HEALTH EVIDENCE WAS BOTH PREJUDICIAL AND NON-PREJUDICIAL; AND (2) FAILURE TO PRODUCE IT WAS HARMLESS BEYOND A REASONABLE DOUBT WHERE THE UNKNOWN EVIDENCE COULD HAVE NEGATED THE EVIDENCE THE NMCCA CLAIMED TO BE "OVERWHELMING" EVIDENCE?
 
Briefs will be filed under Rule 25."

Link here: 

"​By refusing to call upon one of its eight senior judges to fill out the bench for cases on the petition docket, CAAF is making the unfair military appellate system Congress has put in place even more unfair."

CAAF released the opinion in US v. Brubaker-Escobar​, which can be read here.

​"We hold that in any court-martial where an accused is found guilty of at least one specification involving an offense that was committed before January 1, 2019, a convening authority errs if he fails to take one of the following post-trial actions: approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part. However, depending upon the date that the charges were preferred or referred and depending upon the sentence that was adjudged, such an error does not necessarily deprive a Court of Criminal Appeals of jurisdiction."

NYT: Inside the Afghan Evacuation: Rogue Flights, Crowded Tents, Hope and Chaos

"Not all refugees made their way to Doha by military transport.

The arrival of a private charter plane in Doha on Tuesday was a surprise to Ambassador Holtz, the veteran ambassador in Qatar who oversaw the evacuation efforts in the city.

In an email, she wrote: “Apparently the flight has landed with 300 people of unknown nationalities,” adding that the U.S. Central Command “didn’t want the Wing Commander to land the plane because it didn’t have ‘status.’ It had already landed.”

... Erin M. Barclay, a deputy assistant secretary of state, wrote that the plane was chartered by a Washington law firm known as the Federal Practice Group, “which we have not facilitated landing rights for nor have we received a final manifest for.” ... A spokesman for the law firm, who declined to be quoted by name, said he believed the flight was arranged by the firm’s founder, Eric S. Montalvo, a former U.S. Marine."

Comment: Great job, Eric. 

Global Military Justice Reform's Town Hall 19 will be held at 9:00 a.m. (US East Coast time) on Monday, Sept. 13. The topic will be the case of Lieutenant Colonel Stuart Scheller of the U.S. Marine Corps. Please join us and share this invitation with others who may be interested.

The zoom link is:

https://us02web.zoom.us/j/88415834267?pwd=VXB5aWFaRWpzemxwVGI2RjF1QSthdz09

​Or here GMJR. We have military justice experts from around the world visit, feel free to join the discussion.

​No. 21-0304/MC. U.S. v. Christopher J. Nelson. CCA 202000108. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
 
DID THE MILITARY JUDGE AND THE COURT BELOW ERR IN FINDING THAT APPELLANT VOLUNTARILY PROVIDED HIS SMART PHONE PASSCODE TO LAW ENFORCEMENT WHEN THE LAW ENFORCEMENT OFFICIAL CONDUCTING THE INTERROGATION ASSERTED THAT HE POSSESSED A SEARCH AUTHORIZATION FOR THE PHONE AND APPELLANT ONLY PROVIDED HIS PASSCODE BECAUSE APPELLANT BELIEVED HE HAD "NO CHOICE?"

NMCCA decision.

United States v. Dixon. The MJ sentenced Appellant to one year, a BCD, and a reprimand after he was found guilty of housebreaking and communicating a threat. On appeal the court examined six AOEs.

• Legal and factual sufficiency to communicating a threat.
• Legal and factual sufficiency to housebreaking.
• The recklessness mens rea communicating a threat violates the First Amendment.
• Improvident guilty plea because unlawful entry is not a lesser-included offense of housebreaking.
• Post-trial error.
• Denial of Pierce credit.

Case remanded to correct post-trial error, so Appellant has to wait to find out if his other claims of error have merit and get relief (he has served the one year--trial was in 2019--which moots his Pierce credit issue if nothing else).

The dissent argues the CAA is neither ambiguous or incomplete and would proceed to the merits of the AOEs. Relying on his prior writings, Judge Lewis finds

United States v. Tellor. Making his second visit after remand for post-trial error corrections, Appellant raised nine issues to no avail.
​

• MJ abused his discretion by allowing hearsay testimony.
• MJ abused his discretion when he allowed the victim to exceed the permissible scope of her unsworn statement.
• MJ abused his discretion by erroneously excluding impeachment evidence offered by the Defense.
• Trial counsel’s sentencing argument was improper.
• Was outside influence was improperly brought to bear on any court member.
• Did Appellant’s commander’s disparaging post-trial comments to Appellant—not included in the record of trial or allied papers—unlawfully increased Appellant’s punishmen.
• Was there cumulative error on the sentence.
• Sentence severe.
• Relief for the conditions of his post-trial confinement.

United States v. Davis (a mystery case on the NMCCA website). A military judge sentenced Appellant  to 10 years, a DD, and RIR after he pled guilty to twice distributing CP, and one each of receiving, possessing, and indecently visually recording CP.

In this case the defense "affirmatively declined" to object, even though the MJ asked if there was an objection.

United States v. Hart. The appellant has pleaded guilty to "advocating supremecist and extreme doctrine," as well as illegal possession of a firearm and ammunition, and illegally dealing in firearms. (All based on NCIS reporting.) It appears he was sentenced to 23 months and a DD.

Prof. Colin Miller reminds us that In August, three proposed amendments to the Federal Rules of Evidence were released for public comment. The public comment period closes on February 16, 2022. And tells us he will cover these proposed amendments. The first is a proposed amendment to Federal Rule of Evidence 106 (the rule of completeness). (More next week.)

​Republic of Korea. According to theYonhap News Agency. 

Travis Tritten, Lawmakers Try to Ban Dishonorable Discharges for Troops Who Refuse Mandatory COVID-19 Vaccines:

"House lawmakers have backed legislation prohibiting dishonorable discharges for troops who refuse the COVID-19 vaccine, as the Navy gave its sailors 90 days to get the shot this week and the Army and Air Force were poised Thursday to enforce their own timetables.Legislation sponsored by Rep. Mark Green, R-Tenn., an Army veteran, requires only honorable discharges for anyone who is separated from the military over refusing to be vaccinated. It was added to the fiscal 2022 defense authorization bill, passed by the House Armed Services Committee on Thursday.
"No American who raises their hand to serve our Nation should be punished for making a highly personal medical decision," Green said in a statement after the committee vote. The U.S. Food and Drug Administration fully approved the Pfizer-BioNTech vaccine in August after allowing emergency use beginning in December 2020, saying it is safe and effective for those 16 years old and over."