We’ve previously reviewed how to kill a zombie:  with a sharp blow to the head.  Until last year, it wouldn’t have even occurred to us that there was a military due process zombie that needed killing; no such zombie had been seen lurching about since bell bottoms were in style and Starsky and Hutch were driving around in their striped Torino.  Then came Untied States v. Vazquez, 71 M.J. 543 (A.F. Ct. Crim. App. 2012), and it was as if zombie Paul Michael Glaser was back in the driver’s seat.  But today’s Vazquez opinion to bludgeoned the zombie’s noggin:

AFCCA mistakenly relied on the concept of “military due process,” an amorphous concept as used by the AFCCA that appears to suggest that servicemembers enjoy due process protections above and beyond the panoply of rights provided to them by the plain text of the Constitution, the UCMJ, and the MCM. They do not.

Vazquez, No. 12-5002/AF, slip op. at 15.  Thwack!  There is no freestanding concept of miltary due process that allows judges to create rights not established by the Constitution, a statute, or a regulation.  Kabong!  One dead zombie legal theory.  I don’t think it will be getting up again.

4 Responses to “U.S. v. Vazquez smashes a zombie’s skull”

  1. soonergrunt says:

     One dead zombie legal theory.  I don’t think it will be getting up again. 
    But that’s the problem with zombies, isn’t it?  It takes out your allies, it turns your friends against you, and you fight it with everything you’ve got.  You think that you’ve finally killed the thing for good and ever, and then LOOK OUT IT’S RIGHT BEHIND YOU!!!!!!

  2. Dew_Process says:

    The “teaching” moment of Vazquez is that for reasons unstated (and unknown to the readers), the trial DC did not make an objection or seek a mistrial on the grounds of a Confrontation Clause violation.  So in that context, the CAAF majority is probably correct.
    But, considering the almost unique powers granted to CCA’s in Art. 66, UCMJ, if AF CCA felt that appellant did not have a “fair trial,” then why isn’t that conclusion binding on CAAF?
    The zombie lives (albeit burrowed deep into middle earth for the moment) because CAAF is off the wall here.  By concluding that AF CCA “failed to consider” Weissin the context that
    “. . . the balance struck by Congress in Article 29(b), UCMJ, is unconstitutional as applied to a particular individual.” (Slip opn. 17)
    CAAF blew it.  Article 29(b), was enacted long before the Confrontation Clause revolution started in Crawford,and thus is imho “unconstitutional as applied” to Vazquez.  But, absent the defense at trial arguing a confrontation violation, the result for Vazquez remains the same.
    What if AF CCA instead of using the phrase “military due process,” had used the phrase, “modern Confrontation Clause jurisprudence . . . .”  I personally find it troubling that in its discussion of the Confrontation Clause [slip opn. 18-21], that not oneof the cases cited by CAAF post-dates the 2004 decision in Crawford.
    I’m with SG on this – the zombie lives.

  3. Atticus says:

    It’s a bit disingenuous for CAAF to take such a stand.  The UCMJ and the MCM are full of “military due process.”  There are many places therein where an accused enjoys higher rights than he would under the Constitution in state or federal court. Article 31 and open discovery are just two.

  4. Dwight Sullivan says:

    Atticus, but isn’t that the point?  Congress and/or the President gave the accused those rights.  CAAF doesn’t begrudge for a moment affording the military accused greater rights where the constitutionally authorized body (or the President acting as its delegate under Article 36) has accorded those rights.  Here, the UCMJ expressly allowed the procedure that the military judge used.  So the question is whether the courts could recognize a right contrary to the congressionally established procedure.  No, held CAAF.  Unless the congressionally established procedure offends the constitution, the courts can’t authorize a departure.  And here, Weiss precluded a finding that the constitutionally established procedure offends the constitution.  I don’t see that is disingenuous in the slightest.  Rather, it is an example of judicial modesty — neutrally applying the law provided by the governing documents — the Constitution, the UCMJ, and the MCM.  In my mind, that’s precisely what judges are supposed to do.