CAAFlog » Military Justice Scholarship

A kind reader recently brought my attention to an article regarding consent published in the Ohio State Journal of Criminal Law by Rutgers Law Professor Vera Bergelson. That article is entitled The Meaning of Consent, 12 Ohio St. J. Crim. L. 171 (2014).

Professor Bergelson first posits that there are two methodologies for understanding the nature of consent.

The first method, the attitudinal method, argues that “consent means one’s subjective state of mind, ‘attitudinal’ consent.” The Meaning of Consent at 172. As an example of this method, which focuses on the internal thoughts of the victim, the article points to a New York case, People v. Bink, 84 A.D.2d 607 (N.Y. App. Div. 1981). There, a prisoner reported that Bink was planning to sexually assault him the next morning. The putative victim declined the State’s offer of protection, and instead asked that guards watch and catch Bink “in the act.” The encounter occurred, observing guards did not intervene to stop the incident, and Bink was convicted of a sexual offense. His conviction was reversed, however, because, though the victim’s external conduct may not have disclosed it, the victim actually lacked the required attitudinal non-consent because he had “wanted to be assaulted.” K. Ferzan, Clarifying Consent: Peter Westen’s ‘The Logic of Consent’, 25 Law & Phil. 193, 214 (2006).

The second method, the performative method, asserts that consent requires “explicit permission by words or conduct to another’s act.” The Meaning of Consent at 174. As an example of this method, focusing on the perception of the accused as to the victim’s external behavior, Professor Bergelson points to a California case, People v. Burnham, 176 Cal. App. 3d 1134 (Ct. App. 1986). There, in private, a husband beat his wife to force her into having sex with strangers. Later, to those strangers, she feigned consent and appeared a willing participant in sexual conduct. The husband was convicted of spousal rape and the strangers were not charged.

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A bit over 18 months ago, this column featured an article that was written by Air Force Judge Advocate Rodrigo Caruço and published by Vermont Law School: In Order to Form a More Perfect Court: A Quantitative Measure of the Military’s Highest Court’s Success as a Court of Last Resort, 41 Vt. L. Rev. 71.

In my original coverage, I explained that Major Caruço’s work first quantifies the extent to which CAAF’s decisions have tended towards error correction as opposed to the declaration of legal principles. After surveying comparable appellate courts in the civilian jurisdiction, his article posits that a healthy court of last resort – as CAAF should be – predominately engages in principle declaration – which CAAF does not.

My coverage of Major Caruço’s article posited that his measurement of the extent to which CAAF engages in the correction of errors rather than fulfilling its purpose of principle declaration may be an indicator of that court’s health, but it might better be seen as a measure of the overall health (or dysfunction) of the military justice system. My premise being that, in a healthy criminal justice system, a court of last resort should not have to correct many errors because those errors should have been corrected by subordinate reviewing courts and authorities. Instead, the court of last resort should be free – in a way that CAAF may not be – to focus its docket on cases which allow for the “declaration of legal principle by creation, clarification, extension, or overruling.” See J. Dickinson Phillips, Jr., The Appellate Review Function: Scope of Review, 47 Law & Contemp. Prob. 1 (Spring 1984).

Major Caruço’s work was recently featured in the University of Miami School of Law’s legal scholarship blog, the Journal of Things We Like (Lots) – JOTWELL.  Specifically, Professor Stephen I. Vladeck, of the University of Texas School of Law, penned a piece for JOTWELL entitled Why Military Justice Doesn’t Get Enough Academic Attention. In it he praised Major Caruço’s article as being a rare example of quality among “the paucity of good military justice scholarship[.]”

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An article entitled Ordered to Self Incriminate: The Unconstitutionality of Self-Report Policies in the Armed Forces, 78 A.F. L. Rev. 125, was recently published in the Air Force Law Review by Air Force Academy Assistant Professor of Law, Carman A. Leone (Major, USAF).

Professor Leone’s article offers a compelling argument that the Army, Air Force, and Coast Guard’s regulations requiring members to self-report their arrests by civilian authorities all run afoul of the Fifth Amendment.

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For the rest of the world, “a facility for quotation covers the absence of original thought.” Dorothy Sayers, Gaudy Night, 1935. To non-lawyers, quoting is viewed as “saving one the trouble of thinking for oneself, always a laborious business.” A.A. Milne, If I May, 1920.

But, in our profession, perhaps because of the common law’s reliance on stare decisis, an idea expressed as a direct quote from a published case is almost uniformly regarded as being better than one expressed using the author’s own voice. And, what’s better than that? An idea expressed as a direct quote from a case which was itself a direct quote from another case, complete with ‘internal quotations marks’, a team of [brackets] to reflect changes, ellipses thrown in here and there, all tied together with a string site that extends to the end of the page. Whatever the virtue of a quote-driven profession may be, the result is that our writing is painful to read.

Jack Metzler, the government lawyer behind the Twitter handle @SCOTUSplaces, has a proposed solution to the chaos – a new parenthetical: (cleaned up).

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Air Force Colonel Jeremy S. Weber recently published an article in the Cleveland State Law Review entitled, “Whatever Happened to Military Good Order and Discipline?” 66 Clev. St. L. Rev. 123 (2017).

Colonel Weber’s article starts by exploring the marked decline in the use of the Uniform Code of Military Justice’s “general article,” Article 134, Uniform Code of Military Justice (UCMJ), which criminalizes “all disorders and neglects to the prejudice of good order and discipline.” Id. at 153-156. Colonel Weber posits that commanders have been less willing to use the “general article” to punish offenders for several reasons.

First, the general article has never been perceived as particularly fair:

Its broad scope has long been recognized as the ‘most comprehensive and potentially most subject to abuse; hence its traditional British nickname, “the Devil’s Article.’”

Id. at 131 (citation omitted).

But, there may be another reason as well – a more fundamental one. Commanders may not be holding their subordinates to the “good order and discipline” standard because nobody really knows what that phrase means.

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Over on Just Security Christopher Fonzone has a recent post that’s a mostly helpful summary and introduction to his longer American Constitution Society (ACS) Issue Brief entitled What the Military Law of Obedience Does (and Doesn’t) Do.  Allow me to differ with him on a few points based on my own recent analyses related to this topic (here and here), as well as my experience as a military lawyer.

Part of Mr. Fonzone’s post could cause serious misunderstandings.  Specifically, he says that military law “makes clear that members of the military have a dual obligation to both obey ‘lawful’ orders and disobey ‘manifestly’ or ‘patently’ illegal ones.”  Actually, military law requires disobeying of all unlawful orders, whether or not they are “manifestly” illegal or not. I think the confusion arises because of how a legal inference operates in military law.

Here’s what the Manual for Courts-Martial (an executive order authorized by 10 U.S.C. §836) says about obedience to orders in ¶14 b(2)(a)(i):

An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime. (Italics added)

Put another way, there’s an inference of legality for all but “patently” illegal orders.  That is not, however, the same thing as implying that even orders known to be illegal can be obeyed so long as they are not “manifestly” or “patently” illegal.  To the contrary, actual knowledge of the illegality would overcome the inference, and obligate the military member to disobey the order.

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Last week, Senior United States District Court Judge James L. Graham issued an order allowing part of a long-running civil rights test case, John Doe v. The Ohio State University, to go forward to a jury. John Doe is an expelled medical student who is suing a Ohio State University Sexual Violence Support Coordinator, in her personal capacity, for money damages, under 42 USC § 1983 (a Bivens action). His theory is that, as a public employee, Spiert had a duty to protect his Constitutional right to due process. John claims that Speirt violated that right when she allowed his disciplinary board to be misled by false testimony from her client, the person he is alleged to have sexually assaulted.

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Lieutenant Colonel John L. Kiel, Jr., is the Chair and Professor of the Criminal Law Department at the Army Judge Advocate General’s School in Charlottesville, Virginia.  His article in January’s edition of The Army Lawyer is entitled, They Came in Like a Wrecking Ball: Recent Trends at CAAF In Dealing with Apparent UCI, 2018 Army Law. 18.

In his article, Professor Kiel explores how, lately, senior judge advocates have not only failed to curb unlawful command influence, they have furthered it. His piece focuses on two recent cases this blog has covered extensively: United States v. Boyce, 76 M.J. 242 (C.A.A.F. 2017) (CAAFlog case page) and United States v. Barry, No. 17-0162/NA (CAAFlog case page).

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About three years ago, the New York Times reported:

An unusual coalition of largely older and conservative former military men and younger, left-leaning law students [from the University of Chicago Law School], [have launched] a joint campaign for one of the most unlikely causes: clemency for troops convicted of killing civilians in Iraq and Afghanistan.

That unlikely team has represented and obtained the early release of a number of high-profile wartime convicts, including SGT Evan Vela (CAAFLog case page), 1LT Michael Behenna (CAAFLog case page), SGT Michael P. Williams (covered by the LA Times, here), PFC Andrew Holmes (covered on this blog, here); SSgt Lawrence Hutchins III (CAAFLog news page) (covered by the Washington Times, here); Pvt Corey Clagett (covered by Fox News, here); and SPC Franklin Dunn (profiled, here). [Update: Input from a reader has provided greater clarity concerning the services which the above-referenced coalition, United Patriots, has provided to these men. The menu of services offered may have differed depending on the case.  Some men may have received only monetary support from United Patriots, some may have received only support by civilian pro bono counsel, and some men, as the New York Times reported, may have received the assistance of law students from the University of Chicago School of Law.]

The effort to obtain pardons or other clemency for men convicted of wartime murder is back in the news (here and here).  Behenna has followed-up his parole with an effort to obtain a pardon. That effort has gained the approval of the Attorney General for the State of Oklahoma, who has written a favorable letter to the President.

This renewed push for leniency may be partially inspired by the pardon of Kristian Saucier, a Navy sailor who pleaded guilty to illegally retaining photographs of classified areas of a nuclear submarine. On March 10, the President announced that pardon by Tweet:

Congratulations to Kristian Saucier, a man who has served proudly in the Navy, on your newly found Freedom. Now you can go out and have the life you deserve!

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Human history shows that warfighters require ethical guidelines. In The Republic, Plato implored that Greek soldiers:

[Should] not burn the houses, nor . . . maintain that all the inhabitants of each city are their foes, men, women and children, but only a few, those who caused the quarrel. [T]his is how our citizens must behave toward their enemies[.]

Our modern military is guided by similar aspirational statements, including having produced a manual for ethical warfare that is more than a thousand pages in length. But, perhaps a more powerful exercise is to actually remember times when we have failed to meet the standards of our own humanity.

To that end, on Wednesday, March 14, from 11:30 a.m. until 1:15 p.m., the George Washington University Law School will host a presentation to remember that, 50 years ago, U.S. Forces systematically murdered hundreds of Vietnamese civilians – men, women, children, and infants – in a hamlet of the greater Son My village known to those Americans as My Lai (4), or “Pinkville.” The speaker will be the Regimental Historian and Archivist of the United States Army Judge Advocate General’s Corps, Mr. Fred L. Borch, Colonel (Retired). Those wishing to attend need to RSVP by March 11 by email to

Much has been written about the events at My Lai since the Cleveland Plain Dealer first published photographs of the killings leaked by war photographer and Army Sergeant, Ron Haeberle. The Army’s extensive 1970 official report of investigation into the matter was completed by Lieutenant General William Peers. This excerpt from Volume I, Chapter 2 of the Peers Inquiry summarizes the nature of the atrocity:

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In 1983, Congress gave Staff Judge Advocates (“SJAs”) veto power over general court-martial prosecutions. Specifically, Article 34, UCMJ, 10 U.S.C. 834, was amended to stop convening authorities from sending any specification to trial by general court-martial without first being advised by their SJA, in writing, that “the specification is warranted by the evidence.”

That statutory change was intended to be a check on commanders’ discretion. In his Jan 2016 Article, The SJA’s Article 34 Veto: A Force Awakening?, 224 Mil. L. Rev. 289 (2016), Military Trial Judge CAPT Gary Felicetti explains:

The dominant issue in 1983 was more justice for the accused. . . . Both the Supreme Court and the general public distrusted the court-martial process. [Accordingly,] the SJA [was given] de facto veto power over referral of any specification to a general court-martial.

224 Mil. L. Rev. at 297-300.

This was an unprecedented power, and an opportunity to allow trained lawyers to steer the military justice system towards public approval. It was an opportunity squandered.

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Cornell Law Professor Michael Heise, Venderbilt Law Professor Nancy King, and University of Chicago Law student Nicole Heise recently published an article entitled Criminal State Appeals Revealed, 70 Vand. L. Rev. 1939 (2017). Their work offers a detailed accounting of factors which tend to increase [the] chance of successful criminal appeals.

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This past June, the Department of Defense announced a six-month delay on enlistments for transgender individuals, but imposed no restrictions on those already serving. Associated Press, Pentagon OKs 6-month delay in transgendered enlistments, 1 Jul 17.

Apparently dissatisfied with that policy, in July, the President used Twitter to send out this early-morning message:

After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you

Donald J. Trump (@realDonaldTrump), 26 Jul 17, 5:55-6:08 a.m., Tweet 1, Tweet 2Tweet 3.

The Department of Defense’s response to this three sentence missive by the Commander in Chief came the next morning when the Chairman of the Joint Chiefs of Staff released a letter, shared with multiple media outlets, asserting, some might say defiantly:

I know there are questions about yesterday’s announcement on the transgender policy by the President. There will be no modifications to the current policy until the President’s direction has been received by the Secretary of Defense and the Secretary has issued implementation guidance.

In the meantime, we will continue to treat all of our personnel with respect. As importantly, given the current fight and the challenges we face, we will all remain focused on accomplishing our assigned missions.

Barbara Starr (barbarastarrcnn), CNN Pentagon Correspondent, 27 Jul 17, 7:59 a.m., Tweet; Indrees Ali (@indreesali114), Reuters Foreign Policy Correspondent, 27 Jul 17, 7:46 a.m., Tweet 1, Tweet 2.

In August, the White House followed up with a written memorandum ordering the Department of Defense to continue barring new enlistments of transgender individuals beyond 1 Jan 18 (the date the Department’s own delay was due to expire), while putting off until March 2018 the question of whether transgender individuals already in the service may continue serving. Presidential Memorandum for the Secretary of Defense and Secretary of Homeland Security, 25 Aug 17.

This order, the Department of Defense accepted. Memorandum: Military Service by Transgender Individuals – Interim Guidance, 14 Sep 17. However, the United States District Court for the District of Columbia found it wanting as regards the key provisions of the President’s memorandum, ordering the Department of Defense:

[T]o revert to the status quo with regard to accession and retention that existed before the issuance of the Presidential Memorandum—that is, the retention and accession policies established in the June 30, 2016 Directive-type Memorandum as modified by Secretary of Defense James Mattis on June 30, 2017.

Order, Doe v. Trump, Civil Action no. 17-1597 (D.D.C. 30 Oct 17). The Department of Defense announced in December that it would comply with the Court’s order. Adam Weinstein, DoD To Allow Transgender Enlistments As Courts Tear Apart Trump’s Ban, Task and Purpose, 11 Dec 17.

A new article published by the Harvard Law Review, entitled Tweets on Transgender Military Servicemembers, 131 Harv. L. Rev. 934 (2018), covers these turns of events, and particularly queries why the Department of Defense did not obey the President’s initial Tweeted instructions.

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In late 2015, the Associated Press reported that the military justice system operates without the same “openness designed to provide accountability” to the civilian justice system. Associated Press, “Opaque military justice system shields child sex abuse cases,” 24 Nov 2015. In contrast to civilian proceedings, which are “open to the public, as are court filings, including motions and transcripts,” the AP complained that its access to information from the military justice system requires “many [Freedom of Information Act (FOIA)] requests, appeals and fees, and often months of waiting.” Id.

Shortly after the AP’s report, at least six U.S. Senators, from both major political parties, demanded that the Department of Defense lift the “cloak of secrecy” in military justice. They asserted that the secrecy “calls into question the integrity of the institution and hides the system’s shortcomings.” They also asserted that the military justice system “is rife with bias, lack of transparency and no accountability.” Associated Press, “Senators demand transparency in the military justice system,” 8 Dec 2015. Ann Lopez, “Senators demand reform in handling of military sexual assault cases,” WSHU Public Radio, 25 May 2016.

More than two years later, the allegation of opacity against the military justice system remains, and the assertion that FOIA offers a sufficient means by which the public interest can be vindicated is being challenged in federal district court.

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Ours was the first revolution in the history of mankind that truly reversed the course of government, and with three little words: “We the people.” “We the people” tell the government what to do, it doesn’t tell us. “We the people” are the driver, the government is the car. And we decide where it should go, and by what route, and how fast.

* * *

I hope we once again have reminded people that man is not free unless government is limited. There’s a clear cause and effect here that is as neat and predictable as the law of physics: As government expands, liberty contracts.

Ronald Reagan’s Farewell Address to the Nation, Reagan Presidential Library and Museum (January 11, 1989).

In an article soon to be published in the William and Mary Bill of Rights Journal, Harvard Case Writing Fellow Brittany Dietch, identifies the peremptory challenge – the ability to remove jurors from a criminal case without cause – as being an area where government power has expanded. In her article, The Unconstitutionality of Criminal Jury Selection, Ms. Dietch argues that, in accordance with Reagan’s above-cited maxim, the advent of the government’s ability to exercise peremptory challenges has been accompanied by a corresponding, and unconstitutional, contraction of liberty.

In making that argument, Ms. Dietch’s article first defines the purpose of juries (and, ostensibly, court-martial panels):

The purpose of a jury is to guard against the exercise of arbitrary power – to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge.

The Unconstitutionality of Criminal Jury Selection at 2, fn. 5 (quoting Taylor v. Louisiana, 419 U.S. 522, 530 (1975) (oyez)). In short, the purpose of a jury (or a court-martial panel) is “to protect the defendant from governmental overreach,” whether the actor doing the overreaching is a prosecutor or a judge. The Unconstitutionality of Criminal Jury Selection at 2. Given that purpose, Ms. Dietch argues that allowing the government to stand on equal footing as the defendant when determining who should sit on a jury or a court-martial panel is in “conflict [with] the Founders’ intentions.” Id. at 3. She concludes:

Simply stated, the government should not be entitled to select the very jury [or court-martial panel] that is supposed to serve as a check against its power.


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