Category Archives: Military Law

Apparent Unlawful Command Influence: An Unworkable Test for an Untenable Doctrine

Article 37 of the Uniform Code of Military Justice (UCMJ) prohibits unlawful command influence (UCI) in military prosecutions. The prohibition of UCI, Vincent A. Marrazzo argues, is a critical component of the military justice system, ensuring both fairness and public confidence in the military prosecution process.

Marrazzo contends, however, that the Court of Appeals for the Armed Forces (CAAF) has expanded UCI doctrine far beyond the textual confines of Article 37. In particular, the development of “apparent UCI”—which allows CAAF to set aside a finding or sentence for the mere appearance of UCI even if the apparent UCI did not materially prejudices the substantial rights of the accused—directly contravenes the Article 37’s requirement that such prejudice must exist in order to set aside a finding or sentence of a court-martial and also Article 37’s requirement that UCI must be intentional.

Although the doctrine of apparent UCI serves laudable goals, it is also in direct conflict with the text of the UCMJ. Ultimately, Marrazzo, concludes, a doctrine of apparent UCI may be desirable, but it is up to Congress, not the courts, to revise the UCMJ.

Guantanamo Detention in the Time of COVID-19

The COVID-19 pandemic has brought new attention to what many familiar with Guantánamo Bay have known for years: the military prison lacks the infrastructure, expertise, and equipment to manage and address emergent health issues, including a serious viral outbreak.

In this article, defense attorney and former Judge Advocate in the US Air Force Annie Morgan discusses the unique issues complicating detainee medical care, such as the age and health of detainees, the military’s lack of adequate equipment and personnel for COVID-19, and the domestic law prohibiting the transfer of detainees to the United States for medical treatment.

Morgan then highlights three solutions to address the inadequate medical care available to detainees, both during the COVID-19 pandemic and afterward. First, that there should be increased virtual contact between detainees and their lawyers and NGO representatives. Second, that there should be more agile deployment capabilities for specialist personnel and equipment. And finally, that the military should develop a transport plan for emergency medical treatment, either by pursuing congressional carve-outs from the general domestic ban, or by working with third-party countries to provide treatment.

Symposium on Military Justice | October 2021

National Institute of Military Justice logo

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

Thirty Years of Military Justice: Introduction to Symposium Edition | Rachel E. VanLandingham

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