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.”