The March edition of the Army Lawyer includes a typically fascinating “Lore of the Corps” sketch by JAG Regimental Historian Fred Borch.  This month’s sketch tells the interesting story of Army JAG Colonel Hubert Miller.

This issue also includes this article by COL Mark A. Bridges about the overlooked art of voir dire.  And speaking of voir dire, the issue also includes this article: Major Philip Staten, Clarifying the Implied Bias Doctrine:  Bringing Greater Certainty to the Voir Dire Process in the Military Justice System, Army Law., March 2011, at 17.  

Interesting student piece in the Columbia Law Review, here, on the scope of the advice of cousnel and “superior orders” defenses as it would apply to interrogators who may someday be alleged to have committed torture.  The article is Hobel, Mark W.S., So Vast an Area of Legal Irresponsibility”? The Superior Orders Defense and Good Faith Reliance on Advice of Counsel, 111 Colum. L. Rev. 574 (Apr. 2011).  From the conclusion section:

[The Detainee Treatment Act] section 1004(a) . . . extends a version of the defense to U.S. interrogators, but, if interpreted broadly, would immunize interrogators in a manner reminiscent of Nuremberg’s “complete” superior orders defense. Finally, Part III suggests that a focus on the techniques and conduct at issue, through the lens of an objective test for “manifest unlawfulness” may be the best option for preserving individual responsibility when officials and agents may be tempted to seek “advance pardons” from government lawyers.

In the final estimation, political realities will likely foreclose prosecution of interrogators whose reliance on legal guidance caused them to cross the line that separates interrogation from torture. Given the active role of counsel at all levels of the national security bureaucracy, however, it is imperative to delineate the proper scope and application of the legal defenses agents will raise when their actions, duly authorized by superiors and conducted after consultations with legal counsel, nevertheless break the law.

H/t JNSLP.

The February 2011 edition of the Army Lawyer is available here.  Of interest to military justice wonks is CPT Gary E. Felicetti’s Surviving the Multiplicity/LIO Family Vortex, Army Law., Feb. 2011, at 46, available here.  I look forward to studying this article in light of CAAF’s recent Arriaga opinion, which didn’t follow an elements subset approach to determining whether one offense is an LIO of another.  But the first thing I’m going to read is Fred Borch’s Lore of the Corps article, “The Largest Murder Trial in the History of the United States”:  The Houston Riots Courts-Martial of 1917, Army Law., Feb. 2011, at 1, available here.

Chief Judge Effron has issued an incredible wealth of jurisprudence during his time on CAAF.  Sadly, the end of his term is approaching.  CAAF is an Article I court and its judges serve not for life, but until “September 30 of the year in which the fifteenth anniversary of the appointment occurs.”  UCMJ art. 142(b)(2)(A), 10 U.S.C. 942(b)(2)(A).  For Chief Judge Effron, that will be 30 September of this year.  Judge Baker, as the next-most-senior Judge, will become Chief Judge upon the expiration of Chief Judge Effron’s term.  And President Obama will be able to nominate a replacement, who will then go before the Senate to decide whether to confirm the nomination.

The featured article on the Journal of National Security Law & Policy‘s website is this piece by Yale Law professor and NIMJ President Gene Fidell called, “The Next Judge.”  The article discusses criteria that should be considered in selecting Chief Judge Effron’s replacement.  Professor Fidell offers provocative thoughts about how issues of diversity and judicial viewpoint might be considered in the selection process.  He also offers these questions he would ask if he were interviewing prospective nominees:

1. What does the individual think about the court’s low caseload, low grant rate, and unique ability to preclude Supreme Court review?

2. What does the individual think about the surprising frequency of petitions for grant of review that cite no issues?

3. What does the individual think about Project Outreach, under which the court hears arguments at law schools, civilian venues, and military installations?

4. What does the individual think about the utility of the Code Committee?

5. What approach would the individual take to achieving cost reductions and providing electronic public access to the court’s dockets?

The journal is published by the Pacific McGeorge School of Law (which, appropriately enough, just hosted a CAAF Project Outreach argument) and the Syracuse University’s Institute for National Security and Counterterrorism.

h/t NIMJ blog

The January 2011 edition of the Army Lawyer is now available here.  It includes this fascinating essay by the Army JAG Corps’ Regimental Historian, Fred Borch, about the military trial, which was later discredited, trying German soldiers for their involvement in the Malmedy Massacre.  Also of interest to military justice wonks will be this article on discovery by LTC Eric Carpenter.  And here’s a short piece on using Thomas for legislative research.

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.”

Check out the latest edition of NIMJ’s Military Justice Gazette here.

 MAJ Derrick W. Grace’s piece in the December Army Lawyer is my favorite kind of law review article — it reports new empirical research that expands our collective knowledge.  See MAJ Derrick W. Grace, Sharpening the Quill and Sword:  Maximizing Experience in Military Justice, Army Law., Dec. 2010, at 24.  MAJ Grace sent a survey”to all Senior Defense Counsel and Chiefs of Justice,” receiving 107 anonymous responses detailing the military justice experience of the judge advocates in those billets.  Id. at 24 n.3.  Among the findings: 

• “53% of TCs tried less than ten total cases; 78% prosecuted less than five contested courts-martial.”  Id. at 25. 

• “Forty-three percent of defense counsels responding to the survey have less than one year of MJ experience; 39% have tried fewer than five total courts-martial; and 62% have less than five contested cases (81% have less than 10).”  Id. at 26. 

• “Senior trial counsels (STC), senior defense counsels (SDC), and chiefs of military justice (COJ) possess much more experience, on average, than the TC and DC, but even their statistical data is troublesome. Seventy percent of STCs have less than ten contested courts-martial and 30% have less than two years MJ experience; 22% have less than five contested cases; and 44% have less than ten contested cases. Eleven percent of SDCs have less than one year total MJ experience; 11% have less than five contested cases; and 55% have less than ten contested courts-martial.” Id.

Among the changes the article proposes to deal with the Army’s dearth of military justice experience are:

• “[P]lac[ing] experienced litigators on all contested courts-martial” to ensure proper mentorship of inexperienced counsel. Id. at 31.

• Making some senior military justice positions “‘coded’ billets” requiring specified Additional Skill Identifiers. Id. at 32.

• Placing warrant officers in charge of post-trial processing. Id. at 33.

• Creation of “regional military justice practitioner (RMJP) position[s] at major installations with area jurisdictions.” Id.

The article also concludes that [p]erhaps the best way to ensure that the JAG Corps is providing quality military justice counsel is to implement a military justice career track similar to the Navy’s.” Id. at 34.

The December 2010 issue of the Army Lawyer is now online here.  Military justice wonks will be interested in Fred Borch’s addendum to last month’s Lore of the Corps sketch about the court-martial of PFC Dale Maple.  The addendum (scroll to the end of this link) discusses PFC Maple’s life (and death) after his court-martial.

Military justice wonks will also be interested in MAJ Derrick W. Grace’s article, Sharpening the Quill and Sword:  Maximizing Experience in Military Justice.  I’ll proably have more to say about MAJ Grace’s interesting article over the weekend.

As noted on NIMJ’s blog here, last week NIMJ bestowed its 2011 Kevin J. Barry Writing Award for Excellence in Military Legal Studies.  The winner is American Univesity Washington College of Law Profess0r Stephen I. Vladeck for his article, The Laws of War as a Constitutional Limit on Military Jurisdiction, available here.  Two additional articles were recognized with honorable mentions.  One was MAJ Franklin D. Rosenblatt’s article, Non-Deployable: The Court-Martial System in Combat from 2001 to 2009, which I had nominated, available here.  The other was LCDR Stephen C. Reyes’ article, Left Out in the Cold: The Case for a Learned Counsel Requirement in the Military, available here.

The Fall 2010 issue of the Military Law Review is now online here.  While I haven’t had a chance to read it yet, several of the articles appear to be fascinating. 

The lead article is Samuael Brenner’s, “I Am a Bit Sickened”:  Examining Archetypes of Congressional War Crimes Oversight After My Lai and Abu Ghraib, 205 Mil. L. Rev. 1 (2010).  The next article is Major Christian L. Deichert’s Is Germany the New Canada?  One American Deserter’s Request for German Asylum, 205 Mil. L. Rev. 94 (2010).  The next article is Major James T. Hill, Achieving Transparency in the Military Panel Selection Process with the Preselection Method, 205 Mil. L. Rev. 117 (2010).  And while not directly onpoint for military justice purposes, military lawyers will nevertheless be interested in the fabulous Professor Jack Goldsmith’s Solf-Warren Lecture in International and Operational Law, Reflections on Government Lawyering, 205 Mil. L. Rev. 192 (2010).

The November issue of the Army Lawyer is now online here.  This issue contains this fascinating “Lore of the Corps” sketch by Regimental Historian Fred Borch concerning a 1944 court-martial for desertion and aiding the enemy.  Fred L. Borch III, Tried for Treason:  The Court-Martial of Private First Class Dale Maple, Army Law., Nov. 2010, at 4.  The issue also includes this article advocating a statutory procedure under which a deployed accused’s right to civilian counsel can be abrogated.  Major John W. Brooker, Target Analysis:  How to Properly Strike a Deployed Servicemember’s Right to Civilian Defense Counsel, Army Law., Nov. 2010, at 7.

We previously noted the very interesting Volume 66 of the Air Force Law Review, which includes Lt Col Jeremy Weber’s Herculean review of the CCAs’ exercise of their sentence appropriateness powers, along with an article by my treasured former colleague Maj Tim “Monty” Cox.  The issue is now available online here.

The current issue of the Journal of Legal Education includes this article by Gene Fidell called, “Military Justice Instruction in Civilian Law Schools.”

Here is a link to a superb piece on the constitutionality of Art. 2(a)(10), UCMJ, titled Contractors and Courts-Martial, 77 Tenn. L. Rev. 751 (2010).  The author, CAAFlog frequent commenter John O’Connor, opines that there are at least three analytical principles to be divined from the Supreme Court’s civilian courts-martial cases, in particular United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955), to determine if Art. 2(a)(10) passes constitutional muster:

First, . . . that Congress’s constitutional power to regulate the land and naval forces seemingly carried with it a power to court-martial only actual servicemembers.  Second, the constitutional preference for civilian justice over military justice required that any court-martial jurisdiction be confined to “the least possible power adequate to the end proposed.”  Third, in assessing whether a court-martial was the necessary forum, it would not suffice to argue that if a court-martial lacked jurisdiction there would be no recourse· against the accused. If Congress could create federal criminal jurisdiction over an offense, its failure to do so would not strengthen the case for court-martial jurisdiction.

After an extensive review of historical courts-martial practice and SCOTUS precedent, the article finds that Art. 2(a)(10) likely does not pass the mustard, explaining that:

[E]xisting judicial precedent creates a significant, and perhaps insurmountable, obstacle to the enforcement of Article 2(a)(10). Moreover, even if a court were to cast aside existing precedent as dicta, or the Supreme Court repudiated existing case law in this area, there is little in the historical practice or in the historical understanding of Congress’s powers to support the constitutionality of Article 2(a)(10) in the context of modern warfare.

While I agree that as currently drafted Art. 2(a)(10) would face significant constitutional hurdles if the power were exercised today, I don’t agree with JO’C that ”the circumstances that historically have been found sufficient to permit the court-martial of civilians largely do not exist today, and might never exist again.” Rather, I think that based on the current state of warfare and those points that the SCOTUS and military law historians agree upon, there is a small set of circumstances where Art. 2(a)(10) would both (a) serve a purpose in maintaining good order and discipline in a military force in the field and (b) satisfy other historic conditions for exercising military jurisdiction over civilians.  Those are . . . let’s see if Army Lawyer is amenable to a rebuttal article.