CAAFlog » Military Justice Scholarship

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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President Trump entered office in January of this year with 103 federal judicial vacancies to fill. As of the writing of this article, there are now 143 vacancies, with 48 nominees pending before the Senate. An article published a couple of days ago in Foreign Policy by two faculty members of the United States Military Academy, Lieutenant Colonel Shane Reeves, and Major Ronald Alcala, offers “a modest proposal” to attack the backlog: appoint retired military judges to the federal bench.

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A common argument by those who favor of having commanders retain prosecutorial discretion in the military justice system is that:

The key to successfully getting both one soldier as well as hundreds of men and women to risk their lives for their country is an organizational structure. This frame work is cemented together by leadership skills and reinforced by the commanders’ ability to impose punishment.

Rachel E. VanLandingham, Discipline Justice and Command in the U.S. Military: Maximizing Strengths and Minimizing Weaknesses in a Special Society, 50 N. Eng. L. Rev. 21, 47 (2015).

A piece published in the New England Law Review by President of Mills College, Dr. Elizabeth Hillman, entitled On Unity: A Commentary on Discipline, Justice, and Command in the U.S. Military: Maximizing Strengths and Minimizing Weaknesses in a Special Society, 50 N. Eng. L. Rev. 65 (2015) takes issue with that premise.

The article starts by positing:

Unity of command and coercive discipline is much less of a reality in the armed forces of the twentieth and twenty-first centuries than in past militaries. The lessening significance of coercion in military life has been driven not only by studies of combat effectiveness and human behavior, but also by changes in the way the U.S. meets its demand for military personnel.

Id. at 68. Dr. Hillman notes that, rather than coercion, “solidarity in modern armies is seen as dependent on the collective connections between the members of individual units, not on the power of commanding officers. . . . Individuals fight on behalf of the state primarily because of the bonds of their military community rather than command authorities.” Id. at 69. Rather than coercion, good order and discipline in modern militaries is achieved by “’microphysics of power’ rather than sovereign legal authority.” Id.

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There are renewed calls to take prosecutorial discretion away from military commanders. Last month, Senator Kristen Gillibrand (D-N.Y.) released a report arguing that sexual assault in the military is “pervasive” and that, to combat the problem, prosecutorial discretion should be vested in “independent military prosecutors.” Snapshot Review of Sexual Assault Report Files (September 2017). The Senator asserts that this change in prosecutorial authority is necessary to “maintain[] good order and discipline[.].” Id. That same rationale – maintaining good order and discipline – is regularly cited by those who argue the opposite – that commanders must retain prosecutorial discretion. Reconciling those views requires consideration of the possibility that the two camps are using different definitions of “good order and discipline.”

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The saga of Sergeant Bowe Bergdahl has inspired much discussion among lawyers and laypersons alike. This blog has covered the Bergdahl case’s development assiduously. A particularly animated discussion has developed around the question of whether the President’s commentary regarding the case has impermissibly tainted the military justice system’s ability to afford Sergeant Bergdahl a fair trial.

In an effort to reassure the public that the military justice system is made of sterner and more independent stuff than its critics might suppose, the White House recently issued a missive declaring:

The President expects all military personnel who are involved in any way in the military justice process to exercise their independent professional judgment, consistent with applicable laws and regulations.

This blog characterized that press release as being a “predictable statement of the obvious.”

A recent article by University of New Mexico Law Professor Joshua Kastenberg offers a vantage point from which to observe the unfolding controversy. His article in the Southwestern Law Review is entitled Command Responsibility in the Twenty First Century: The United States Basic Framework and Future Military (and Quasi-Military) Operations, 46 Sw. L. Rev 379 (2017). The article describes the character of Presidential command authority, the obligations that come with it, and the means of making a President accountable for it.

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The Military Code of the United States “stands alone among our public statutes in its retaining many provisions and forms of expression dating back from two hundred to five hundred years[.]”  Winthrop, Military Law and Precedents, 24 (2d Ed., 1920). However, throughout our history, one of the constants of military law has been change. The more significant changes have often been accompanied by the publication of scholarly works designed to describe those reforms and to provide relevant context. For example, Winthrop published the tome cited above in 1920 – just as Congress finished its four-year long enterprise of completely revising the Articles of War.

In the same spirit, Volume 49 of the St. Mary’s Law Journal will include an article entitled “Reforming Military Justice: An Analysis of the Military Justice Act of 2016” by Professor David A. Schlueter.

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Law Professor Christian Dahlman, of Lund University, Sweden, recently published an article entitled Unacceptable Generalizations in Arguments on Legal Evidence, Argumentation 31, 83-99 (March 2017), which he hopes “will enhance the clarity” of the evidence assessments made by legal decision makers, and “make them more reasoned.” Id. at 86.

The article starts by explaining that every argument regarding legal evidence comes with an inherent generalization, which may or may not be expressly stated.

Some generalizations are so trivial and uncontroversial that judges and jurors do not even think about them as premises in the argument. Other generalizations are problematic, and there are some arguments that trade on generalizations that are unacceptable.


Professor Dahlman spends his time exploring four ways that arguments might trade on unacceptable generalizations.

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In an upcoming essay, Vanderbilt Law Professor Nancy J. King posits that:

[State appellate courts are plagued by] a failure to correct wrongful convictions, the absence of supervision of lower courts’ handling of certain categories of issues of particular public concern, and unnecessary delay.

Criminal Appeals, in Academy for Justice, A Report on Scholarship and Criminal Justice Reform (Erik Luna ed., forthcoming 2017).

To support her contention that, in the States, the normal appellate process is insufficient, Professor King points to a 2013 study looking at hundreds of non-capital defendants who were convicted but later exonerated by DNA evidence. That study found that “courts provided no help to 90% of them.” Id.

To explain the helplessness of those State appellate courts, Professor King points to three culprits. First, she takes aim at “the deferential legal standards courts use[] to review trial-court decisions.” Id. at 4. She next points out that, because the evidence required to prove procedural errors is often not part of the record on appeal, “the normal mechanisms for judicial review” (which usually oblige appellate courts to consider only matters in the record of trial) do not adequately address claims like ineffective assistance of counsel, juror misconduct, or the government’s failure to disclose or preserve exculpatory evidence. Id. at 4-5. The final reason direct appeal failed so many innocent accused is that “some of those convicted of crimes they did not commit could point to no flaw in the proceedings that led to their convictions, even though new evidence supported their innocence.” Id. at 5.

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Last week, this column featured an article from Professor Emeritus Edward J. Imwinkelried concerning the “disturbing” prevalence of bad science which has been permitted to come before the fact-finder in American criminal trials. This week’s column features an article exploring potential solutions to that problem. The Harvard Law Review, as part of its Modern Courts Commentary Series, recently published a commentary by William and Mary Law School Professor Allison Orr Larsen entitled Judicial Factfinding in an Age of Rapid Change: Creative Reforms from Abroad.

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The UC Davis Legal Studies Research Paper Series recently released an article entitled Revising State Post-Conviction Relief Statutes to Cover Convictions Resting on Subsequently Invalidated Expert Testimony by former Army JAG, and prominent evidence law scholar, Professor of Law Emeritus Edward J. Imwinkelried.  The article posits:

Invalid expert testimony has become a disturbingly recurrent theme in the wrongful conviction studies.

Id. at 3.

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As CAAF continues to deliberate on the interlocutory prosecution appeal in United States v. Mitchell, No. 17-0153/AR (CAAFlog case page) (argued on Tuesday, April 4, 2017), involving suppression of the contents of the accused’s cell phone because military investigators continued to question him after he requested an attorney and that questioning led to the phone’s decryption, a Marine judge advocate’s student note in the Georgetown Law Technology Review is of interest.

In Cracking the Code: The Enigma of the Self-Incrimination Clause and Compulsory Decryption of Encrypted Media, 1 GEO. L. TECH. REV. 247 (2017) (available here), Jason Wareham concludes that:

the act of decrypting a hard drive is protected by the Fifth Amendment, as the act of decryption, not just the sharing of the password, is itself testimonial. Decrypting is testimonial logically because it provides access to files no other person can know of or otherwise access. The act of encryption is an admission proving both the existence of the accused’s files, and the accused’s possessory relationship to these files. Since only the person who encrypted an item would have the key to decrypt it (presuming the knowledge-based password), it shows possession, dominion, or control. Finally, the accused’s act of production would be a necessary link in the authentication for the files should the prosecutor seek to have the evidence admitted in court, as no one but the accused would be able to confirm that the files produced are indeed the accused’s files.

Wareham suggests that “the jurisprudence governing compulsory decryption is poised to devolve into an indiscernible morass,” and that “there is no discernible rule, standard, or analysis emerging for the use of the act of production or foregone conclusion doctrines as applied to encryption.” So, two are suggested:

First, as a legal principle, practitioners, governments, and courts alike should accept that compelling an individual to either produce a password or to compulsorily decrypt their digital files in a private knowledge-based-key scheme is presumptively a testimonial act. . . .

[Second] if the decrypted files are not cumulative then they add something to the government’s case. If they add something to the government’s case, then the decrypted files are a link in the chain of evidence against the accused. If the decrypted files are a link and the decryption comes from the accused, then his self-incrimination right has been infringed because he was compelled to join that chain.

CAAF may well avoid this morass in Mitchell by applying the plain and relatively-simple language of Mil. R. Evid. 305(c)(2) that any evidence derived from an interrogation after a suspect requests counsel is inadmissible unless counsel was provided. I suggested this approach in my argument preview.

Over 120 years ago, in Brown v. Walker, 161 U.S. 591, 596 (JUSTIA) the Supreme Court explained that the Founders created the Fifth Amendment’s right against self-incrimination as a “protest against the inquisitorial and manifestly unjust methods of interrogating accused persons which has long obtained in the continental system.” Specifically, the Court noted:

[The Fifth Amendment was created to protect an accused from] the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials . . . [which] made the system so odious as to give rise to a demand for its total abolition.

Id. at 597.

Seventy years later, the Supreme Court found that the Fifth Amendment’s purpose – abolishing “inquisitorial” police practices – had yet to be satisfied. Accordingly, the Court issued its decision in Miranda v. Arizona, 384 U.S. 436 (1966) (oyez).

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The Military Justice Act of 2016 (MJA) was this blog’s #1 Military Justice Story of 2016, and will revolutionize the practice of military justice come January 2019. That revolution includes changes to the military justice system’s sentencing regime. One of the most aggressive changes is found in § 5301 of the MJA, which completely rewrites Article 56 to include language designed to temper a court-martial’s exercise of sentencing discretion.

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