CAAFlog » Year in Review » Top Ten Stories of 2017

For a retired member of the armed forces, court-martial jurisdiction is like Hotel California:

You can check out any time you like,
But you can never leave!

Military retirement isn’t retirement in the ordinary meaning of the term; it’s just a change in status. Under Article 2(a)(4), 10 U.S.C. § 802(a)(4), the Uniform Code of Military Justice applies to regular retirees who are entitled to pay. That category includes servicemembers who complete 20 (or more) years on active duty and accept retirement, and also those who are medically retired after less time. See United States v. Bowie, 34 C.M.R. 411, 412 (C.M.A. 1964).

Prohibitions against things like contempt towards the President and other officials (Article 88), using marijuana (Article 112a), intentionally writing a bad check (Article 123a), and service discrediting conduct (Article 134) continue to apply to these servicemembers during their retirement. Jurisdiction is worldwide and – ever since the Supreme Court’s decision in  Solorio v. United States, 483 U.S. 435, 439-441 (1987) – applies to conduct that is otherwise totally unrelated to military service.

But the exercise (and even the acknowledgement) of such jurisdiction was rare. That changed in 2017 with events that put court-martial jurisdiction over retirees in the headlines and make it our #1 Military Justice Story of 2017.

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In 2012 we wondered if petitions for certiorari in military cases were an endangered species. At that point a decade had passed since the last grant of a petition filed by a servicemember, and that was just a summary remand (535 U.S. 1014). Two decades have passed since the Supreme Court last conducted a plenary review of a case brought by a servicemember. See Edmond v. United States, 520 U.S. 651 (1997) (holding that Sec. of Trans. may appoint civilians to the Coast Guard CCA). The Solicitor General, however, has a better track record, getting certiorari more recently in United States v. Denedo, 556 U.S. 904 (2009) (the #8 Military Justice Story of 2008).

The number of petitions increased after 2012, but a successful petition for certiorari in a military case is a rarity. So much so that we idolize it with a little statue we call the Golden CAAF. Here it is in the hand of Marcus Fulton circa 2008, before it was awarded to the Navy-Marine Corps Appellate Government Division for their role in the grant in Denedo:

In 2017 we awarded the Golden CAAF II for a tripartite grant in Dalmazzi v. United States, Cox v. United States, and Ortiz v. United States, to University of Texas School of Law professor Stephen Vladeck, who is lead counsel. He introduced it to UT mascot Bevo, and forwarded a picture:

The Supreme Court’s grant of certiorari is our #2 Military Justice Story of 2017.

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Less than two months ago the Supreme Court reiterated that:

The terms waiver and forfeiture – though often used interchangeably by jurists and litigants – are not synonymous. Forfeiture is the failure to make the timely assertion of a right; waiver is the intentional relinquishment or abandonment of a known right.

Hamer v. Neighborhood Hous. Servs., 138 S. Ct. 13, 199 L.Ed.2d 249, 254 n.1 (Nov. 8, 2017) (quoting United States v. Olano, 507 U. S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U. S. 458, 464 (1938)) (marks omitted).

It’s a timely reminder.

Over and over again in 2017, military courts and lawyers said that the mere failure to make an argument or objection – whether due to inattentiveness, ignorance, or otherwise – waived the issue, and the year ended with CAAF granting review in multiple cases challenging that conclusion.

That makes waiver mania the #3 Military Justice Story of 2017.

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The #4 Military Justice Story of 2017 is CAAF’s decision in United States v. Mitchell, 76 M.J. 413 (C.A.A.F. Aug. 30, 2017) (CAAFlog case page).

Sergeant (E-5) Mitchell was charged with various offenses at a general court-martial, and the prosecution wanted to use evidence obtained from his cell phone in its case. But there was a wrinkle; the cell phone was searched using access granted by Mitchell after he requested an attorney.

Mitchell’s defense counsel moved to suppress, asserting that the Fifth Amendment right to counsel was violated when investigators  pressed Mitchell to decrypt his phone after he requested an attorney, and the military judge agreed. The prosecution appealed. The Army CCA affirmed the military judge’s ruling in a short opinion, and the prosecution continued its appeal to CAAF with a certification by the Judge Advocate General of the Army.

The case attracted attention from the Electronic Frontier Foundation, the American Civil Liberties Union, and the ACLU of the District of Columbia, all of whom supported Mitchell as amicus curiae. CAAF agreed. Holding that continued questioning of a suspect after he invokes his right to counsel violates the Fifth Amendment, and applying the military specific Mil. R. Evid. 305(c)(2), CAAF affirmed the suppression ruling.

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Once a case is before a court-martial, it should be realized by all concerned that the sole concern is to accomplish justice under the law. This does not mean justice as determined by the commander referring a case or by anyone not duly constituted to fulfill a judicial role. It is not proper to say that a military court-martial has a dual function as an instrument of discipline and as an instrument of justice. It is an instrument of justice and in fulfilling this function it will promote discipline.

The Powell Report at 12.

This goal hasn’t stopped a rotating cast of senior officials, policymakers, and special interest groups from doing everything they can to push the military justice system in their preferred direction. But in 2017, the military justice system pushed back. That makes influence our #5 Military Justice Story of 2017.

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On November 1, 2017, Marine Corps Brigadier General John Baker was confined to his quarters (a room in a trailer) at U.S. Naval Station Guantanamo Bay. Air Force Military Judge Colonel Vance Spath ordered the confinement after finding General Baker in contempt (for conduct that clearly did not meet the applicable definition of contempt).

Two days later, at about 11:30 a.m. eastern on November 3, 2017, Army Military Judge Colonel Jeffery Nance sentenced Sergeant Bowe Bergdahl to reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge – but no confinement – for Bergdahl’s desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and misbehavior before the enemy in violation of Article 99.

The facts as we know them suggest that General Baker was still confined at the time Bergdahl’s no-confinement sentence was announced. The convening authority sua sponte deferred Baker’s remaining confinement a few hours later, shortly before 1 p.m. eastern.

The incongruity – if not outright absurdity – of General Baker’s confinement and Sergeant Bergdahl’s liberty is the #6 Military Justice Story of 2017.

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The Fourth Amendment protects people and their property from unreasonable searches and seizures, and demands that warrants be supported by probable cause. It’s not a particularly heavy burden on the Government, as “probable cause deals with probabilities,” and so “requires more than bare suspicion, but something less than a preponderance of the evidence.” United States v. Leedy, 65 M.J. 208, 213 (C.A.A.F. 2007).

But CAAF found that Government agents lacked even that when they seized the accused’s property in United States v. Nieto, 76 M.J. 101 (C.A.A.F. Feb. 21, 2017) (CAAFlog case page), and the accused himself in United States v. Darnall, 76 M.J. 326 (C.A.A.F. Jun. 28, 2017) (CAAFlog case page), making probable cause the #7 Military Justice Story of 2017.

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“Wrongdoing must be conscious to be criminal,” reiterated the Supreme Court in Elonis v. United States, 135 S. Ct. 2001, 2009 (2015), and military lawers took note. CAAF grappled with the mental state – the mens rea – required to violate the UCMJ in three cases in 2016.

But in 2017 the court addressed it again, issuing a decision that is likely to be a significant and lasting precedent on the issue. That makes mens rea the #8 Military Justice Story of 2017.

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“Traditionally,” wrote Justice Black in 1957, “military justice has been a rough form of justice.” But clemency always played a big role. For centuries – dating at least to the Articles of War established in 1806 – American military commanders had the final say over whether any court-martial sentence would actually be executed.

But that power was significantly curtailed in 2014, when Congress amended Article 60 in the wake of the Wilkerson court-martial. Other clemency powers, however, remain within the UCMJ. They include a Presidential clemency power in Article 71(a), and Secretarial clemency powers in Articles 71(b) and 74. The Article 74 Secretarial clemency power is particularly significant because it may be delegated to commanding officers (and in some services it is delegated all the way to the general court-martial convening authority). The President also has the independent, constitutionally-based power to grant reprieves and pardons.

Two significant acts of clemency in military justice cases make commutations and clemency the #9 Military Justice Story of 2017: The commutation of the death sentence for Private Loving, and the commutation of Private Manning’s 35-year sentence for espionage.

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The #10 Military Justice Story of 2017 is CAAF’s decision in United States v. Commisso, 76 M.J. 315 (C.A.A.F. Jun. 26, 2017) (CAAFlog case page).

Army Sergeant First Class (E-7) Commisso was a somewhat unsympathetic appellant. In 2013 he became romantically – or, perhaps, unromantically – involved with a Marine Private First Class (E-2) he met while undergoing physical therapy. His case had many of the hallmarks of a modern politicized military sexual assault prosecution: rank disparity, a he-said/she-said allegation, and even distribution of revealing photos of the alleged victim.

Before the case was tried in 2014, the allegations were repeatedly briefed during monthly meetings of a local Sexual Assault Review Board (SARB). CAAF described the purpose of the SARB as “to ensure that sexual assault victims received their legal entitlements throughout the court-martial process,” and the court observed that the “briefings contained only the putative victim’s version of the alleged criminal acts.” 76 M.J. at 319. Three SARB participants were selected to be part of the ten-member general court-martial panel that heard Commisso’s case, and they remained on the panel when it convicted Commisso of numerous offenses and sentenced him to confinement for one year, reduction to E-1, and a bad-conduct discharge.

That those three members were selected for, and remained part of, the panel after such one-sided exposure to the allegations was troubling in its own right, but there was something worse. The three members (two Colonels and a Lieutenant Colonel) concealed their involvement in the SARB and their prior knowledge of the case until after the trial was over.

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Later this month, for the tenth year in a row, we will count down the top ten military justice stories of the year.

Please nominate the stories you think belong on the list, either in the comments or by email to