Category Archives: Military Law

Symposium on Military Justice | October 2021

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Hosted by National Institute of Military Justice (in honor of NIMJ’s 30th anniversary)

The following pieces are from the “30 Years of Military Justice” symposium held on Oct. 28, 2021, with keynote speaker Senator Kirsten Gillibrand (D-NY), and in partnership with Georgetown University Law Center’s Center on National Security and the Law, the Journal of National Security Law & Policy, and the Georgetown National Security Law and Military Law Societies.

Keynote Address | Sen. Kirsten Gillibrand

Military Retiree Court-Martial Jurisdiction: Trials and Tribulations | Philip D. Cave & Kevin M. Hagey

The Good Officer? Evaluating General Milley’s Constitutional Dilemma | John C. Dehn

Tort Remedies in Military Prisons and Brigs | Brenner M. Fissell & Max Jesse Goldberg

Reassessing the Ahistorical Judicial Use of William Winthrop
and Frederick Bernays Wiener
| Joshua Kastenberg

Preliminary Hearings in the United States Military | Franklin D. Rosenblatt

Unequal Justice: Why Congress Should Expand the Supreme Court’s Jurisdiction to Review the Courts-Martial System

In 2018, the Supreme Court held that it has appellate jurisdiction to review decisions of the Court of Appeals for the Armed Forces (CAAF) under 28 U.S.C. §1259. However, CAAF is the final court atop the “courts-martial system” and §1259 limits Supreme Court review of courts-martial cases to those where CAAF has already reviewed or granted some relief. In fiscal year 2020, CAAF granted review in just 10.9% of cases where it received a petition.

Kyle Yoerg argues that service members should have a right to appeal to the Supreme Court even if CAAF denies a petition for review. The following three reasons underlie his argument. First, service members currently have inferior access to the Supreme Court than do civilians in other jurisdictions in the United State. This includes defendants in state court and even suspected enemy combatants detained at Guantanamo. Second, CAAF traditionally reviews error correction cases where the Supreme Court is unlikely to grant certiorari. Finally, enhanced Supreme Court review will not adversely affect military readiness.

Yoerg ultimately concludes that the Equal Justice for Our Military Act, an amendment to 28 U.S.C. § 1259 originally proposed in 2009, is the appropriate vehicle to expand service member access.

Military Justice Since 1950: A Pyrrhic Victory?

By Eugene R. Fidell

With the major changes Congress enacted in the Military Justice Act of 2016,[1] perhaps it would be useful to try to sketch the arc of American military justice and its place in the national legal firmament since the Uniform Code of Military Justice (UCMJ) was enacted in 1950.[2] These comments are preliminary and reflect my personal views based on many years’ involvement with the military justice system. Not everyone will identify and arrange the data points the same way.

In the past, efforts have been made to characterize various periods, e.g., judicialization[3] or civilianization.[4] I would offer four basic phases, with leading figures for the first three. Like the Middle Ages, the Romantic Era, or the Industrial Revolution, these phases do not necessarily have bright-line start- or end-dates. In fact, they plainly overlap one another.

First, the period of reaction. I associate this initial period with Felix E. Larkin, for whom much of the credit for the UCMJ must go.[5] This period begins after World War II and ends with enactment of the Code five years later. This is largely a period of reaction to the abuses that were experienced in the administration of military justice during the war.[6] There were three primary features—

  • Creation of a civilian court of appeals[7]
  • Outlawry of unlawful command influence (UCI)[8]
  • Imposition of a single criminal code for all branches of the armed forces—although the services retained (and continue to retain) very substantial autonomy despite the ostensibly “uniform” code[9]

Second, the period of institution-building. I associate this period with Chief Judge Robert E. Quinn, the former Rhode Island Governor who led the Court of Military Appeals during its formative years.[10] The chief features of this period are—

  • The doctrine of “military due process”[11]
  • The related “Brosman doctrine” according to which the court was “freer than most” in picking the best rule of decision[12]
  • The court’s suprising willingness to entertain petitions for review that raise no legal issues
  • The related profligate use of the power to specify issues not raised by the parties[13]
  • Resistance to efforts by the Judge Advocate General’s corps to trim back the court’s powers[14]
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