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.

There’s a new issue of the Navy’s JAG Magazine — or, as I prefer to call it, JAGMAG — online here.  Check out the spotlight on CAAF Clerk Bill DeCicco on page 25.

Volume 66 of the Air Force Law Review has been distributed in print form, though it doesn’t appear to be available online yet.

The issue includes Lt Col Jeremy Weber’s Herculean review of every online opinion from all four CCAs over a five-year period to study the exercise of their sentence appropriateness power.  Lieutenant Colonel Jeremy Stone Weber, Sentence Appropriateness Relief in the Courts of Criminal Appeals, 66 A.F. L. Rev. 79 (2010).  Among his interesting findings was that over the five-year period, the four CCAs combined provided relief on the basis of sentence comparison in a grand total of one case.  See United States v. Lambert, No. NMCCA 200401410 (N-M. Ct. Crim. App. Nov. 27, 2006).  Here are the stats on the number of times the CCA found a sentence inappropriately severe over those five years:  ACCA–0; NMCCA–6; AFCCA–11; CGCCA–2.  There were several additional cases in which CCAs granted Tardif relief for unreasonable post-trial delay without regard to prejudice or in the absence of prejudice:  ACCA–11; NMCCA–37; AFCCA–4; CGCCA–5.

The issue also includes a background piece about the Supreme Court’s Goldman v. Weinberger decision.  While Goldman isn’t a military justice case, the article explains that the case arose from two Air Force courts-martial in which Capt Goldman testified while wearing a yarmulke.  Samuel J. Levine, Untold Stories of Goldman v. Weinberger:  Religious Freedom Confronts Military Uniformity, 66 A.F. L. Rev. 205 (2010).

Also in the non-military justice category, my treasured former colleague Maj Tim “Monty” Cox has an article in the issue:  Major Timothy M. Cox, Promoting Integrity from Without:  A Call for the Military to Conduct Outside, Independent Investigations of Alleged Procurement Integrity Act Violations, 66 A.F. L. Rev. 225 (2010).

Here’s a link to the Army JAG School Criminal Law Department’s updated home page.  (We’ve added it to the links section to the right for future use.)  The updated web page includes a blog under the clever title, 31(b)log.  But access to the blog is limited to those with an Army Knowledge Online account.  Unfortunately, I couldn’t make the AKO sign-up site perform its advertised mission today, so I still haven’t seen the blog.

The October issue of the Army Lawyer is now online here, with much of interest to the military justice wonk.

The issue includes this article by LCDR Stephen Reyes, JAGC, USN, concerning whether a “learned counsel” requirement should apply to military lawyers detailed to represent a capital accused.  Left Out in the Cold: The Case for a Learned Counsel Requirement in the Military, Army Law., Oct. 2010, at 5. 

The issue includes this article by Maj Wilbur Lee, USMC, on the liberal grant mandate.  The Liberal Grant Mandate: An Historical and Procedural Perspective, Army Law., Oct. 2010, at 17.

And the issue includes this article by MAJ Stefan Wolfe, USA, on PTAs.  Pretrial Agreements: Going Beyond the Guilty Plea, Army Law., Oct. 2010, at 27.

NIMJ has posted a call for nominations for the Kevin J. Barry Award for Excellence in Military Legal Studies for an outstanding article published in calendar year 2010.  I’m sure it will come as a surprise to neither of our regular readers that I’ve nominated MAJ Franklin D. Rosenblatt’s article, Non-Deployable:  The Court-Martial System in Combat from 2001 to 2009, Army Law., Sept. 2010, at 12.

The 1 January 2011 issue of NIMJ’s Military Justice Gazette is now available here.

Brent Newton–an adjunct faculty member at the Georgetown University Law Center and American University’s Washington College of Law–has written a law review article about the current state of legal education that’s getting quite a bit of buzz.  Brent E. Newton, Preaching What They Don’t Practice:  Why Law Faculties’ Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy, 62 S.C.L. Rev. 105 (2010) (available here).

The lion’s share of Mr. Newton’s article is devoted to the argument that law review articles have become “increasingly useless” to judges and practicing lawyers.  Id. at 118.  He charges that law review articles are written, at best, for an audience of fellow theoretical law professors and, at worst, for “the mirror.”  Id. (quoting Andrew P. Morriss, The Market for Legal Education & Freedom of Association: Why the Solomon Amendment‖ is Constitutional and Law Schools are Not Expressive Associations, 14 Wm. & Mary Bill Rts. J. 415, 473 (2005)).  And he quotes Professor Schlag’s contention that “American legal scholarship today is dead–totally dead.”  Pierre Schlag, Spam Jurisprudence, Air Law, and the Rank Anxiety of Nothing Happening (A Report on the State of the Art), 97 Geo. L.J. 803, 804 (2009)).

But one place where legal scholarship has managed to remain relevant to practitioners is the military.  Despite its faults (and it certainly does have faults), the body of scholarship published by the military’s various law journals is comprised almost entirely of what Mr. Newton would call “practical” articles instead of “theoretical” ones.  I just reviewed a colleague’s brief that made extensive use of an article published in one of the military law journals.  that article helped frame the argument my colleague advanced in his brief.  I’ve previously lauded other articles in military law journals that similarly guided practitioners, such as MAJ Froehlich’s outstanding article, The Impact of Melendez-Diaz v. Massachusetts on Admissibility of Forensic Test Results at Courts-Martial, from the February Army Lawyer.  And shortly before reading Mr. Newton’s article, I read MAJ Rosenblatt’s brilliant and fascinating article in the September Army Lawyer,  Non-Deployable:  The Court-Martial System in Combat from 2001 to 2009. If you haven’t read MAJ Rosenblatt’s article, READ IT NOW.  It’s that important, it’s that interesting, and it’s that well-done.

Okay, have you read it?  MAJ Rosenblatt makes an outstanding case that the UCMJ doesn’t work as intended in a deployed environment, advancing the memorable “Burger King Theory” to help make his case.  Qualms about the UCMJ’s deployability certainly aren’t new — as the 1983 WALT Report demonstrates.  See Lieutenant Colonel E. A. Gates & Major Gary V. Castla, Report to the Judge Advocate General by the Wartime Legislation Team, 104 Mil. R. Rev. 139 (1984); see also Colonel Ted B. Borek, Legal Services During War, 120 Mil. L. Rev. 19 (1988).  But MAJ Rosenblatt provides fresh observations based on deep research into the manner in which the UCMJ actually worked (or didn’t work) in the deployed settings in Afghanistan and Iraq.

While MAJ Rosenblatt makes an outstanding case that changes must be made, I’m left unconvinced by several of his specific recommendations.  His recommendation concerning expanded use of VTC for witnesses on the mertis seems sound.  He also recommends restrictions on a deployed servicemember’s right to be represented at court-martial by a civilian counsel and eliminating the right to refuse non-judicial punishment for servicemembers receiving hostile fire pay.  Recall that earlier this year, three SEALs refused NJP for acts allegedly committed in Iraq, all three hired civilian counsel, two of the three were actually tried in Iraq, and all three were acquitted.  Recall also that their cases were widely publicized and the decision to prosecute them was strongly criticized by 40 Members of Congress.  I sat through most of the third trial and I’m firmly convinced that justice was done.  As I wrote at the time, I was not merely unpersuaded beyond a reasonable doubt, but unpersuaded by a preponderance of the evidence that SO2 McCabe was guilty of any of the charged offenses.  Of course, I have no way of knowing what would have happened if those SEALs had been denied the right to refuse NJP or if they had been compelled to go to trial represented by military counsel alone rather than by a team of experienced civilian counsel and military counsel.  Perhaps had they had no NJP refusal right, the relevant commander wouldn’t have punished them.  But it is interesting to note that the three SEALs all risked far greater punishments and a federal conviction by insisting on a trial by court-martial.  They obviously didn’t feel secure trusting their careers to the NJP process.  Now obviously we shouldn’t make policy based on what happened in three particular cases.  But those cases do give me great pause when reading MAJ Rosenblatt’s recommendations. MAJ Rosenblatt’s article also discusses specific Army NJP regulations.  The article doesn’t appear to appreciate that the manner in which NJPs are conducted in the Army and Air Force are more protective of the servicemember’s rights than are NJP proceedings in the Marine Corps and Navy, nor that the consequences of an NJP may be greater for Marines and Sailors than for Soldiers.  A statutory expansion of the exception to the NJP refusal right would presumably affect servicemembers from all branches, but the effect on those in the Department of the Navy would likely be more severe than for their Army and Air Force counterparts. 

Despite my concerns about MAJ Rosenblatt’s prescribed cure, he certainly convinced me that the patient is sick.  Some treatment is needed; I hope MAJ Rosenblatt’s article will be a catalyst for determining the optimal treatment and then implementing it.  If so, then MAJ Rosenblatt’s article will further demonstrate the relevance of military justice scholarship.

There have been a number of articles and notes published in civilian law reviews this year about the amendment to Article 2(a)(10) that subjected civilians accompanying U.S. forces in the field during contingency operations to court-martial jurisdiction.  I don’t think we’ve noted all of them, so here’s a bibliography of those I know of:

Laura A. Dickinson, Military Lawyers, Private Contractors, and the Problem of International Law Compliance, 42 N.Y.U. J. Int’l L. & Pol. 355 (2010)

Won Kidane, The Status of Private Military Contractors Under International Humanitarian Law, 38 Denv. J. In’l L. & Pol’y 361 (2010)

Katherin J. Chapman, Note, The Untouchables:  Private Military Contractors’ Criminal Accountability Under the UCMJ, 63 Vand. L. Rev. 1047 (2010)

Matthew Dahl, “Runaway Train”:  Controlling Crimes Committed by Private Contractors Through Appliation of the Uniform Code of Military Justice, 14 Barry L. Rev. 55 (2010)

Adam Ebrahim, Note, Going to War with the Army You Can Afford:  The United States, International Law, and the Private Military Industry, 28 B.U. Int’l L.J. 181 (2010)

Andres Healy, Note, The Constitutionality of Amended 10 U.S.C. § 802(a)(10):  Does the Military Need a Formal Invitation to Reign in “Cowboy” Civilian Contractors?, 62 Fla. L. Rev. 519 (2010)

John S. Kemp, Note, Private Millitary Firms and Responses to Their Accountability Gap, 32 Wash. U. J.L. & Pol’y 489 (2010)