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.