Gene Fidell called my attention to this article from the Autumn 2010 issue of Parameters called, “The Death of Military Justice.”  William J. Gregor, The Death of Military Justice, Parameters, Autumn 2010, at 1.  The article is sloppy, panicked, and uninformed.  Not surprisingly, it is also wrong.

The article’s author, Dr. Gregor, isn’t a lawyer.  I wonder whether either he or Parameters bothered to run the article past a lawyer before publication, because the article’s central thesis rests upon an erroneous legal assumption.  In 1993, Congress made certain findings to support adoption of the Don’t Ask, Don’t Tell statute.  Nat’l Defense Authorization Act for Fiscal Year 1994, 107 Stat. 1547, Pub. L. No. 103–160, Title V, § 571(a)(1) (1993).  Some of these findings were consistent with and/or restated preexisting legal precedent.  Dr. Gregor’s key mistake is that he believes the statute which will soon repeal those findings results in the overturning of the preexisting legal precedents with which they are consistent.  See Don’t Ask, Don’t Tell Repeal Act of 2010, 124 Stat. 3515, Pub. L. No. 111-321.  He cites precisely nothing to support that thesis.

Let’s take his central argument.  Dr. Gregor argues that the repeal of the following finding will result in the overturning of Solorio v. United States, 483 U.S. 435 (1987), and the return of O’Callahan v. Parker, 395 U.S. 258 (1969):  “(9) The standards of conduct for members of the armed forces regulate a member’s life for 24 hours each day beginning at the moment the member enters military status and not ending until that person is discharged or otherwise separated from the armed forces.”  The repeal of that finding, Dr. Gregor argues, “returns the military to the O’Callahan rules.”  Gregor at 6.  It does no such thing.  Any legal argument that the repeal of finding (9) will reinstate O’Callahan would be accurately dismissed as frivolous.  Solorio didn’t rest on finding (9) — a fact that is obvious, since the Supremes announced their Solorio decision six years before Congress adopted the Section 654 findings.  Rather, Solorio rested on “an unbroken line of decisions from 1866 to 1960″ holding that “the proper exercise of court-martial jurisdiction over an offense” rested “on one factor:  the military status of the accused.”  Solorio, 483 U.S. at 439.  That line of cases, Solorio‘s holding, and the statutes under which court-martial jurisdiction is determined will remain intact once the statutory prerequisites for Section 654’s repeal are satisfied.

The article’s argument that “it is obvious that rescinding Section 654 overturns” Parker v. Levy, 417 U.S. 733 (1974), Gregor at 8, is similarly fanciful.  Dr. Gregor, meet Chicken Little.

The article also makes several credibility-damaging small mistakes, including the misspelling of former USAF First Lieutenant Kelly Flinn’s name (page 9) and referring to “the Uniformed Code of Military Justice” (page 2).  (Doesn’t Parameters have editors?)  Of greater concern, the article appears to intentionally ignore an inconvenient fact.  Dr. Gregor states that, after first holding in United States v. Beeker that the use and possession of controlled substances was service-connected for O’Callahan purposes, “the Court of Military Appeals renounced the decision seven years later, holding that O’Callahan and Relford v. Commandant mandated the conclusion that off base drug offenses committed by a servicemember could not be tried by court-martial.”  Gregor at 9 (footnote omitted).  Would you agree that the author of an academic article making that claim should also inform the reader that in 1980, COMA reexamined that issue and determined that even off-base, off-duty drug use by a servicemember is generally service connected, a holding that remained in place when Solorio was decided?  See United States v. Trottier, 9 M.J. 337, 340-51 (1980).  Well, Dr. Gregor didn’t inform his readers of that fact.  And it’s almost certain that he knew that fact.  In support of his proposition that COMA had held drug use not to be service connected, Dr. Gregor cited footnote 17 of SCOTUS’s Solorio opinion.  Footnote 17 noted both COMAs 1976 reveral of Beeker and its decision four years later in Trottier once again concluding that drug use generally is service connected.  Solorio, 483 U.S. at 450 n.17. 

Failure to present known facts inconsistent with the author’s thesis isn’t the article’s only departure from the normal rules of academic discourse.  The article also makes dubious claims without providing any supporting citations.  For example, Dr. Gregor states that “some members of Congress now want to set aside U.S. military precedent and follow foreign military practice, making servicemembers ‘sometimes soldiers.'”  Gregor at 9.  Really?  Who?  When did any Member of Congress say such a thing?  And what documents such statements?  I can ask, but Dr. Gregor isn’t telling.  He makes this and other supposedly factual statements without providing any supporting reference.

In reality, the repeal of the Section 654 congressional findings will have no effect beyond the demise of Dont’ Ask, Don’t Tell, notwithstanding Dr. Gregor’s breathless warning that the repeal “will radically change the American system of military justice and discipline.”

14 Responses to ““The Death of Military Justice”?”

  1. Rob M says:

    Not to mention, aren’t Congressional findings descriptive rather than prescriptive, i.e. the current situation as Congress “finds” it to be, not a legislative pronouncement of how it shall be? Simply repealing the “findings” doesn’t mean, for example, that suddenly there is now a constitutional right to serve in the military where none existed before. For that matter, I’m pretty sure I can find at least one other part of Title 10 that “bind[s] the servicemember to the standards of conduct of the armed forces for 24 hours a day.”

    My entry in the “dumbest part of the article” contest is: “since Section 654 was rescinded, the military will not have authority to assess an officer’s conduct if it does not occur in his or her place of duty.” (If only that were true, the things I could get away with…)

  2. Charles Gittins says:

    Stupid article with BS support. But, I have to say, I agree with the premise that the repeal of DADT will be a major problem for good order and discipline in the armed forces. Moreover, it will render unenforceable the prohibition against sodomy, particularly, consensual sodomy, which is still a violation of the UCMJ.

  3. Rob M says:

    One thing about the Parameters formatting rules, they require/prefer very few endnotes.* That’s one way to do it and I’m sure there are benefits to that technique, but it seems like at least in this case that policy was conducive to poor scholarship.

    *I was tempted to leave this as a blind assertion, just for irony, but here’s the authority for this statement: http://www.carlisle.army.mil/usawc/Parameters/aut… (“Reduce the number of endnotes to the minimum consistent with honest acknowledgment of indebtedness, consolidating notes where possible. Lengthy explanatory endnotes are discouraged.”)

  4. Ama Goste says:

    Don’t forget that the Ft. Hood tragedy is somehow wrapped up in the DADT repeal too, in the author’s confused mind.

  5. Not me says:

    Charles,

    Your statement ignores the fact that consensual sodomy with no service connection is already not enforceable per Lawrence v. Texas and U.S. v. Marcum. Shockingly, the services have not fallen apart since Marcum. DADT is a bad law that has been poorly enforced. It does NOT prohibit gay people from serving. It only says “if we catch you, you’re out.” Talk about bad for good order and discipline. It encourages servicemembers to lie to their superiors (about something that is really not anyone’s business).

    I believe that the death of the Military Justice system will be not from gay service members but from the services themselves who tend to see punishment as a mission best carried out by some other court as a cost saving measure. Whether such a result is correct remains to be seen.

  6. Michael Keyes says:

    Charles,

    I’m curious, why do you think that repeal of DADT will make the prohibition against sodomy unenforceable? Isn’t it already unenforceable?

    I guess that in one respect you are correct since the term “sodomy” in the UCMJ also includes oral sex even between married couples. When was the last time that was enforced? I suspect that a lot of heterosexuals have been in violation of Art. 125.

    Here is a Stars and Stripes article on this subject: http://www.stripes.com/news/panel-urges-ending-uc

  7. Anon says:

    FYI, Patrick Murphy, the congressman who offered the provision, is a former active-duty Army JAG officer.

  8. Christopher Mathews says:

    I don’t see why it’s a stretch to conclude that repeal “will radically change the American system of military justice and discipline” when the article itself demonstrates that it has already lowered the standards of scholarship and editorial review.

    /snark

  9. Stewie says:

    Well, I’m more curious about the first half of Charles’ assertion, that repeal of DADT will result in “major problems for good order and discipline.”

    Evidence, facts, or analysis? Such a blanket assertion certainly isn’t self-evident, and the surveys conducted thus far seem to indicate the opposite, particularly among younger servicemembers who don’t care nearly as much about this issue as the more senior folks, and one would assume good order and discipline wouldn’t be a problem with the latter cohort.

  10. Ama Goste says:

    Mikeyes, Article 125 lives, even post-Lawrence. The case is US v. Marcum. I was at the CAAF argument:
    http://www.armfor.uscourts.gov/opinions/2004Term/…. The case narrows the legitimate charging of Article 125 after Lawrence, but it’s still being charged in cases in which the consenting individuals are of different ranks, in the same chain of command, or (often) engaged in the sodomy in a dorm room, especially if a third party was in the room at the time of the event.

  11. Stewie says:

    True Ama, but at the end of the day isn’t that really just a fraternization (or violation of enlisted regs) 134 PGOD mentality behind it?

    It’s not the sex, it’s the ______. (In this case, instead of lying, it’s inappropriate relationship based on rank disparity).

    Which is why getting rid of 125 altogether makes sense, what’s the point? Unless you want to hammer someone for it I guess given the maximum possible punishment (although that isn’t going to happen).

  12. Mike No Man Navarre says:

    Ama, mikekeyes et al.:

    While I agree with Ama that Art. 125 is still technically \”alive,\” so were Al Gore\’s chances of winning the election after his defeat at in Bush v. Gore. Art. 125 these days looks more like Art. 134, there needs to be some service discrediting or PtoGOD element–which are not in the text of Art. 125.

    All that being said, not sure how you get from there to the thesis in the article, which CAAFlog ably deconstructs.

  13. Ama Goste says:

    I totally agree with you, Stewie. I didn’t say I think Art 125 is necessary or that the services haven’t stretched the Marcum reasoning pretty far. Still, the services (somewhat surprisingly) charge it more often than you’d think.

  14. Dew_Process says:

    Dr. Gregor, is a West Point grad, and retired Army LTC. His prior writings / Congressional testimony includes the doom and gloom that will befall the U.S. military if “women” are allowed to be integrated into the “traditional” military.

    In 1993, he testified in favor of the exclusion of homosexuals in the military before the House Armed Services Committee, so the repeal of DADT, must really irk him. But, that’s no excuse for shoddy “scholarship,” period.