The September issue of the Army Lawyer is now online here and it’s chock full o’ military justice articles.  Unfortunately I won’t have time to read them tonight, but the article I’m most eager  to study is Major Franklin D. Rosenblatt, Non-Deployable: The Court-Martial System in Combat from 2001 to 2009, Army Law., Sept. 2010 at 12.

7 Responses to “September issue of Army Lawyer online”

  1. Phil Cave says:

    Pans the Code Committee because it’s not in the hands of operators and doesn’t understand the Joint Service Committee which makes the rules and is in the hands of the operators.

  2. John O'Connor says:

    Lots of good stuff here.

    The Rosenblatt article on combat courts-martial is an especially good read. I’ve long been of the view that courts-martial need to be expeditionary in nature — that any procedures and requirements that make it impossible or nearly impossible to conduct a court-martial on a ship in the middle of the ocean or in a GP tent somewhere (where counsel’s available legal materials basically fit in a box) should be scrutinized closely to see how much they add to the truth-seeking function.

    And I always find anything Fred Borch writes in the Army Lawyer well worth the read. His short article here is no exception.

    Also, hats off to Major Laura Kesler for her interesting book review on lawyers in the war on terror. She was instrumental in getting my firm involved in one of the habeas challenged to the court-martial of civilian contractors (Adolph v. Gates) and it’s good to see she has moved on to bigger and better (or at least different) things.

  3. Amen says:

    I am glad he put on paper in a scholarly format what many of us who have deployed have been chattering about over the years, specifically WRT expanding the NJP vessel exception to include a hostile fire exception. I recall a NJP refusal SPCM in Iraq where the MJ approved production of CONUS civilian witnesses. The case, DC, and client were retrograded to CONUS for adjudication. On the eve of trial in CONUS, a sister service then refused to send back material witnesses from Iraq to testify b/c they were essential to the war effort. A simple NJP case resulted in enormous expense and inconvenience without ever achieving resolution. We trust commanders to make life or death decisions in combat, we should also trust them to properly exercise NJP authority. Abuses can be limited through (1) restricting the subject matter jurisdiction for Article 15’s arising under the hostile fire exception to misconduct that occurs in theater (thereby ensuring commanders don’t sit on garrison misconduct so they can adjudicate it in theater without affording the member a right to refuse); and, (2) expanding the NJP appeal process to ensure all appeals are routed to the GCMCA and his SJA, not just the next commander in the chain.

  4. Anonymous says:

    You know it’s all well and good to be expeditionary when you have competent counsel and judiciary, but when you don’t, it seems to me it causes more issues than it solves.

    The misconduct that is being handled with a Chapter and a Summary C-M overseas is not all that different from what it would be CONUS at a SPCM. A BCD is not that different from an OTH, and one month of jail is not much different from 4-6.

    The former process is quicker, gets rid of problem Soldiers faster, while the Soldier gets to not have a Federal conviction on his record for things like drunk on duty or use of marijuana/hash.

    Perhaps the answer is not that combat C-Ms should be expedited, perhaps the answer is that the solutions used overseas should be used more often at home.

  5. Snuffy says:

    If an NJP appeal goes to the GCMCA, why dont I just do an SCM and an adsep? That SCMCA wants to keep it as close as possible while leaving the GCMCA out of it.

  6. Dew_Process says:

    Unless it’s a capital case, depositions work – in most cases better for both sides. Because it’s an unfamiliar process to most TC’s and SJA’s, like recording/transcribing Article 32’s, there seems to be an institutional “objection” to a process that not only saves money, but generally makes scheduling trial much easier.

  7. kyle says:

    Snuffy,

    The accused is permitted to turn down a SCM, as well. If you want an OTH at the adsep, then the accused gets a board, which sometimes is just as much trouble as a court martial.

    While I do not agree with the policy of the vessel exception, if the Navy gets one for NJP turn downs, then I think that the Army should have a combat exception to make the uniformed services…………more uniform……