Military Justice by The Advocacy Foundation, Inc.

The e-Advocate Legal Missions International Romans 13:1-14 | Deuteronomy 20:1-4 Ephesians 6:10-18

Military Justice Vol. I, Issue II – Inaugural Series

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Military Justice

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Biblical Authority Romans 13:1-14 (NIV) Submission to Governing Authorities 13 Let everyone be subject to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. 2 Consequently, whoever rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves. 3 For rulers hold no terror for those who do right, but for those who do wrong. Do you want to be free from fear of the one in authority? Then do what is right and you will be commended. 4 For the one in authority is God’s servant for your good. But if you do wrong, be afraid, for rulers do not bear the sword for no reason. They are God’s servants, agents of wrath to bring punishment on the wrongdoer. 5 Therefore, it is necessary to submit to the authorities, not only because of possible punishment but also as a matter of conscience. 6

This is also why you pay taxes, for the authorities are God’s servants, who give their full time to governing. 7 Give to everyone what you owe them: If you owe taxes, pay taxes; if revenue, then revenue; if respect, then respect; if honor, then honor.

Love Fulfills the Law 8

Let no debt remain outstanding, except the continuing debt to love one another, for whoever loves others has fulfilled the law. 9 The commandments, ―You shall not commit adultery,‖ ―You shall not murder,‖ ―You shall not steal,‖ ―You shall not covet,‖ and whatever other command there may be, are summed up in this one command: ―Love your neighbor as yourself.‖ 10 Love does no harm to a neighbor. Therefore love is the fulfillment of the law.

The Day Is Near 11

And do this, understanding the present time: The hour has already come for you to wake up from your slumber, because our salvation is nearer now than when we first believed. 12 The night is nearly over; the day is almost here. So let us put aside the deeds of darkness and put on the armor of light. 13 Let us behave decently, as in the Page 4 of 54

daytime, not in carousing and drunkenness, not in sexual immorality and debauchery, not in dissension and jealousy. 14 Rather, clothe yourselves with the Lord Jesus Christ, and do not think about how to gratify the desires of the flesh. ______

Deuteronomy 20:1-4 (NIV) Going to War 20 When you go to war against your enemies and see horses and chariots and an army greater than yours, do not be afraid of them, because the LORD your God, who brought you up out of Egypt, will be with you. 2 When you are about to go into battle, the priest shall come forward and address the army. 3 He shall say: ―Hear, Israel: Today you are going into battle against your enemies. Do not be fainthearted or afraid; do not panic or be terrified by them. 4 For the LORD your God is the one who goes with you to fight for you against your enemies to give you victory.

______

Ephesians 6:10-18 (NIV) The Whole Armor of God 10

Finally, be strong in the Lord and in his mighty power. 11 Put on the full armor of God, so that you can take your stand against the devil’s schemes. 12 For our struggle is not against flesh and blood, but against the rulers, against the authorities, against the powers of this dark world and against the spiritual forces of evil in the heavenly realms. 13 Therefore put on the full armor of God, so that when the day of evil comes, you may be able to stand your ground, and after you have done everything, to stand. 14 Stand firm then, with the belt of truth buckled around your waist, with the breastplate of righteousness in place, 15 and with your feet fitted with the readiness that comes from the gospel of peace. 16 In addition to all this, take up the shield of faith, with which you can extinguish all the flaming arrows of the evil one. 17 Take the helmet of salvation and the sword of the Spirit, which is the word of God. 18

And pray in the Spirit on all occasions with all kinds of prayers and requests. With this in mind, be alert and always keep on praying for all the Lord’s people.

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Table of Contents ______

Military Justice Biblical Authority I.

Introduction

II.

The Uniform Code of Military Justice

III.

Army JAG

IV.

Navy JAG

Air Force JAG

VI.

Marine Corps JAG

VII.

Coast Guard Legal Division

VIII. The Military Justice Improvement Act of 2013 IX.

US Military Court System Schematic

Attachment A Landmark Cases is US Military Justice

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Introduction

Military Justice

is the body of laws and procedures governing members of the armed forces. Many states have separate and distinct bodies of law that govern the conduct of members of their armed forces. Some states use special judicial and other arrangements to enforce those laws, while others use civilian judicial systems. Legal issues unique to military justice include the preservation of good order and discipline, the legality of orders, and appropriate conduct for members of the military. Some states enable their military justice systems to deal with civil offenses committed by their armed forces in some circumstances. Military justice is distinct from the imposition of military authority on a civilian population as a substitute for civil authority. The latter condition is generally termed martial law, and is often declared in times of emergency, war, or civil unrest. Most countries restrict when and in what manner martial law may be declared and enforced. The United States Constitution authorized the creation of a system of military justice. Article I, Section 8 permits the U.S. Congress to "make rules for the government and regulation of the land and naval forces." Congress issued these rules first in 1806 as the Articles of War. Military justice during the American Civil War was governed by the 1863

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Lieber Code. The Articles of War were superseded in 1951 by the Uniform Code of Military Justice (UCMJ). The UCMJ is federal law, found in Title 10 United States Code Chapter 47, and implemented by the Manual for Courts-Martial, an executive order issued by the President of the United States in his capacity as Commander-in-Chief of the United States armed forces. Court-martial convictions in the United States may be appealed through military courts of appeal to the United States Court of Appeals for the Armed Forces (CAAF), a federal appellate court consisting of five civilian judges appointed by the President of the United States. CAAF decisions are subject to direct review by the Supreme Court of the United States. The offenses covered by the UCMJ include those encompassed by "high crimes and misdemeanors" which covers officials generally, and includes perjury of oath, abuse of authority, bribery, intimidation, misuse of assets, failure to supervise, dereliction of duty, conduct unbecoming, and refusal to obey a lawful order. It also includes ordinary crimes, but perhaps with different standards of proof and punishment than for civilians, on the grounds that more is expected of military personnel by their oaths of office. Many of the terms used date back to that era of law.

The Judge Advocate General Corp

Corps

Judge Advocate General's Corps, also known as JAG or JAG Corps, refers to the legal branch or specialty of a military concerned with military justice and military law. Officers serving in a JAG Corps are typically called Judge Advocates. Only the chief attorney within each branch is referred to as the "Judge Advocate General"; however, individual JAG officers are colloquially known as JAGs.

Judge Advocates serve primarily as legal advisors to the command to which they are assigned. In this function, they can also serve as the personal legal advisor to their commander. Their advice may cover a wide range of issues dealing with administrative law, government contracting, civilian and military personnel law, law of war and international relations, environmental law, etc. They also serve as prosecutors for the military when conducting courts-martial. In the United States military, they are charged with both the defense and prosecution of military law as provided in the Uniform Code of Military Justice. Highly experienced officers of the JAG Corps often serve as military judges in courts-martial and courts of inquiry.

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The Uniform Code of Military Justice The Uniform Code of Military Justice (UCMJ), is the primary legal code through which all internal military justice matters of the United States are governed. The UCMJ applies to all members of the Military of the United States, including military retirees as well as members of other federal uniformed services (such as NOAA Corps and the Public Health Service Commissioned Corps) when attached to the military. The UCMJ was created by an act of the United States Congress in 1951 in order to establish relatively consistent systems of military justice in all branches of the nation's armed forces. However, in cases involving very minor disciplinary infractions, each service has somewhat differing procedures. Such cases are governed by UCMJ Article 15 and are called non-judicial punishment, Captain's Mast (Navy), or Office Hours (Marines). In addition to the Uniform Code of Military Justice, personnel are subject to the terms of the Constitution, other federal laws, and individual state laws where applicable (e.g., whenever the service member is in the United States, unless on a military base with exclusive federal jurisdiction). When a violation of the UCMJ occurs, the matter is handled by the command of the servicemember. When a violation of a federal or state law occurs, the matter may be handled by local state or federal authorities.

Court-Martial The forum through which criminal cases are tried in the United States' armed forces is the court-martial. This term also applies to the panel of military officers selected to serve as the finders of fact or "jury". In other words, they fulfil the role of a civilian jury in trying criminal cases. The Uniform Code of Military Justice outlines three distinct types of courts-martial.

General Court-Martial ď&#x201A;ˇ ď&#x201A;ˇ

Jurisdiction over crimes committed by any person, including civilians, covered by military law at the time the crime was committed Forum for most serious charges such as homicide, sexual assault, drug distribution, or desertion Page 12 of 54

   

Officers detailed to the court are defense counsel, trial counsel (prosecutor) and military judge A court martial panel (or "jury") comprises five or more service members, at least one-third of whom are enlisted if requested by an enlisted accused Accused service member may request trial by judge alone in lieu of trial by a panel of members, except where the death penalty may be adjudged Maximum sentence that a General Court-Martial can impose is the maximum specified in the specific UCMJ Article (crime) the accused is convicted of, including death

Special Court-Martial  

   



Jurisdiction over crimes committed by any person, including civilians, covered by military law at the time the crime was committed Forum for intermediate offenses such as battery, assault, larceny (theft), minor drug-related offenses, unauthorized absence, disrespect, disobedience, and similar crimes Officers detailed to the court are defense counsel, trial counsel (prosecutor), and military judge Special Court-Martial panel comprises three or more members, at least one third of whom are enlisted if requested by an enlisted accused Accused service member may request trial by judge alone in lieu of trial by a panel of members Regardless of what crime is charged at a Special Court-Martial, the maximum sentence that can be adjudged is 12 months confinement, forfeiture of two-thirds pay for 12 months, reduction in rank, bad conduct discharge, and a fine A Special Court-Martial cannot dismiss an officer

Summary Court-Martial     



Jurisdiction over crimes committed by enlisted personnel only Forum for minor offenses such as petty theft Summary Court-Martial comprises a single officer whose pay grade should not be below O-3 Maximum sentence is one month confinement, forfeiture of two-thirds pay, reduction in rank to E-1 Summary Courts-Martial may not adjudge punishments of confinement with hard labor or reduction except the next inferior pay grade for accused who are in the pay grade of E-5 or greater Can be refused by the accused, in which case the matter is normally referred to a Special Court-Martial

Appeals Process The Uniform Code of Military Justice provides for several tiers of appeal. All cases are reviewed by the commander convening the court (the convening authority) who, as a Page 13 of 54

matter of command prerogative, may approve, disapprove, or modify the findings and/or sentence. The commander may not approve a finding of guilty for an offense of which the accused was acquitted nor increase the sentence adjudged. A convicted service member may submit a request for leniency to the convening authority prior to the convening authority's approval of the court-martial sentence. Each military service has a Court of Criminal Appeals, which is composed of panels of three appellate military judges:    

Army Court of Criminal Appeals Navy-Marine Corps Court of Criminal Appeals Air Force Court of Criminal Appeals Coast Guard Court of Criminal Appeals

These courts review all cases in which the approved sentence includes death, a punitive discharge, or confinement for at least a year, and all cases referred to it by the service Judge Advocate General. The court of criminal appeals "may affirm only such findings of guilty and the sentence or such part of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recognizing that the trial court saw and heard the witnesses". Article 66(c), UCMJ.

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The Court of Appeals for the Armed Forces (CAAF) consists of five civilian judges appointed by the President of the United States, with the advice and consent of the U.S. Senate, to 15-year terms. The CAAF must review cases from all of the military services in which the court of criminal appeals has affirmed a death sentence, cases the Judge Advocates General order sent to the court, and cases appealed from the court of criminal appeals by the accused in which the CAAF finds good cause to grant the petition for review. Unlike the service courts of criminal appeals, the CAAF "shall take action only with respect to matters of law". Article 67(c), UCMJ. Decisions of the CAAF are "subject to review by the Supreme Court by writ of certiorari". Article 67a, UCMJ; this merely confirms Article III, Section 2 of the United States Constitution, granting the Supreme Court appellate jurisdiction in all U.S. cases where it does not have original jurisdiction. Cases not meeting the criteria for review by the service courts of criminal appeals are reviewed in the office of the service Judge Advocate General. Article 69, UCMJ. A death sentence "may not be executed until approved by the President. In such a case, the President may commute, remit, or suspend the sentence, or any part thereof, as he sees fit. That part of the sentence providing for death may not be suspended". Article 71(a), UCMJ.

Other Practice Areas Besides prosecuting, defending, and presiding over courts-martial, military attorneys advise commanders on issues involving a number of areas of law. Depending on the service, these areas may include the law of war, the rules of engagement and their interpretation, and other operational law issues, government contract law, administrative law, labor law, environmental law, international law, claims against the government (such as under the Federal Tort Claims Act), and information law (such as requests for information in the possession of the military under the Freedom of Information Act). Military attorneys also advise individual service members, military retirees, and their families regarding personal civil legal problems they may have, including drafting wills, fending off creditors, and reviewing leases.

Special Training In addition to being licensed attorneys in any state or territory of the United States, all military attorneys undergo specialized training to qualify as judge advocates, allowing them to act as trial or defense counsel at military courts-martial. Specialized training takes place at one of three military law centers:   

The Judge Advocate General's Legal Center and School (U.S. Army) in Charlottesville, Virginia. (link) Naval Justice School in Newport, Rhode Island. (link) Air Force Judge Advocate General's School at Maxwell Air Force Base, Montgomery, Alabama. (link)

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Most Judge Advocates will take additional classes at more than one of these facilities during their time in the JAG Corps. Naval Justice School is the primary training center for Navy, Marine and Coast Guard JA's. The Army's JAG School is the only military law center that has full American Bar Association accreditation. Its graduate course, leading to a Master of Laws degree, is open to Judge Advocates from all service branches. Upon completion of their legal training at the Army's JAG School, graduates attend six weeks of Direct Commissioned Office's training at Fort Benning, Georgia. This course emphasizes infantry officer leaderships skills and combat training.

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Army JAG The Judge Advocate General's Corps of the United States Army is the legal arm of the United States Army. The Corps is composed of Army officers who are also lawyers and who provide legal services to the Army at all levels of command, and also includes legal administrator warrant officers, paralegal noncommissioned officers and junior enlisted personnel, and civilian employees. The Judge Advocate General is a lieutenant general. All military officers are appointed by the U.S. President subject to the advice and consent of the Senate, but the Judge Advocate General is one of the few positions in the Army explicitly provided for by law in Title 10 of the United States Code, and which requires a distinct appointment. Officers who have already been appointed to another branch of the Army are administratively dismissed and simultaneously recommissioned anew as judge advocates, rather than merely transferring branches.

The Judge Advocate General General George Washington founded the U.S. Army JAG Corps on 29 July 1775, with the appointment of William Tudor as the Judge Advocate General. The Army Judge Advocate General's Corps is the oldest of the judge advocate communities in the U.S. armed forces â&#x20AC;&#x201C; as well as the oldest law firm in the United States. The Judge Advocate General, who is referred to as TJAG (pronounced "tea-jag"), serves a term of four years. Lieutenant General Flora D. Darpino, appointed on 4 September 2013, is the thirty-ninth Judge Advocate General and the first female to serve in that grade. The appointment of then-Major General Scott C. Black, to the grade of lieutenant general on 11 December 2008 brought the billet into parity with the Army's Surgeon General and Chief of Engineers.

Mission Judge advocates occupying the position of staff judge advocate (SJA) serve on the special and personal staff of general officers in command and who are general courtmartial convening authorities (in other words, who have the authority to convene a general court-martial). Staff judge advocates advise commanders on the full range of legal matters encountered in government legal practice and provide advice on courtsmartial as required by the Uniform Code of Military Justice. Subordinate judge advocates prosecute courts-martial, and others, assigned to the independent United States Army Trial Defense Service and United States Army Trial Judiciary, serve as defense counsel and judges. The almost 2,000 full-time judge advocates and civilian attorneys who serve The Judge Advocate General's Corps comprise the largest group of attorneys who serve the U.S. Army. Several hundred other attorneys practice under the Chief Counsel of the United States Army Corps of Engineers and the Command Counsel of the United States Army Materiel Command. Page 18 of 54

Judge advocates, legal administrators and military paralegals are deployed throughout the United States and around the world, including Japan, South Korea, Germany, Kosovo, Iraq, Afghanistan, Kuwait, and Qatar. They provide legal assistance to soldiers, adjudicate claims against the Army, advise commands on targeting decisions and other aspects of operational law, and assist the command in administering military justice by preparing non-judicial punishment actions, administrative separation actions, and trying criminal cases at court-martial. In addition to the active component judge advocates, there are approximately 5,000 attorneys who serve in the US Army Reserve and the Army National Guard. Several hundred Reserve and National Guard attorneys were called to active duty to serve in support of Operation Iraqi Freedom and Operation Enduring Freedom.

Legal Center and School The Judge Advocate General's School began in World War II at the University of Michigan to train new judge advocates as the Judge Advocate General's Department rapidly expanded. It was disestablished for a time after the war but, after a short stay at Fort Myer in Arlington, Virginia, was reestablished at the University of Virginia in 1951.

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The Judge Advocate General's Legal Center and School (TJAGLCS) is located on the North Grounds at the University of Virginia in Charlottesville, Virginia, adjoining, but distinct from, the University of Virginia School of Law. The Commandant of the Judge Advocate General's School is authorized by Congress to award a Master of Laws degree. The school is the only federal institution to have American Bar Association accreditation as one of America's law schools. Judge advocates from all five armed forces of the United States and international students attend the annual Judge Advocate Officer Graduate Course in which the master's degree is awarded. The Legal Center and School also trains the Army's new judge advocates, provides continuing legal education for judge advocates and lawyers from throughout the United States government. In addition to lawyers, TJAGLCS also trains newly selected legal administrator warrant officers, paralegal noncommissioned officers and court reporters (new judge advocate enlisted soldiers attend AIT at Fort Lee, Virginia). The school also trains those officers appointed as military judges, irresepective of service. TJAGLCS is not a member of the Association of American Law Schools (AALS), but has paid a fee to receive AALS services.

Army judge advocate, legal administrator and paralegal qualifications Prior to entry into the JAG Corps, all Army judge advocates must have graduated from an ABA-accredited law school and be admitted to practice law by the highest court of a state or federal district. While some judge advocates have prior enlisted or commissioned experience, most are direct commissioned and have no prior military training or experience. Initial entry training into the JAG Corps is composed of two phases: ď&#x201A;ˇ ď&#x201A;ˇ

6 week Direct Commission Course (DCC) at Fort Benning, Georgia 11 week Judge Advocate Officer Basic Course (JAOBC) at The Judge Advocate General's Legal Center and School (TJAGLCS)

As of the summer of 2013, JAOBC Phase I, formerly conducted at Fort Lee, Virginia is no longer a requirement for JAOBC students. Students now report directly to DCC in Fort Benning, and upon completion of DCC travel to Charlottesville for JAOBC. From 2006 until the end of 2009, students attended the JAOBC Phase I at Fort Lee, Virginia, followed by the JAOBC in Charlottesville. Students then attended a 4 week DCC at Fort Benning, Georgia or Fort Sill, Oklahoma, followed immediately by the 6 1/2 week Basic Officer Leaders Course, or BOLC II. BOLC II was discontinued at the end of 2009. JAG Corps warrant officer legal administrators are accessed from the enlisted population through a competitive accession board of officers. That board of officers make a recommendation to The Judge Advocate General using an order of merit list of Page 20 of 54

recommended selections, The Judge Advocate General has final authority on the process. To be considered by the board, they must have at least an associate degree; five years experience as a paralegal (MOS 27D); recommendations from their staff judge advocate, legal administrator and their senior/chief paralegal; and completion of several correspondence courses. Once accessed, the warrant officer candidate will complete 4â&#x20AC;&#x201C;6 weeks of warrant officer candidate school at the Warrant Officer Career College located at Fort Rucker, Alabama. Their follow-on schooling will be at The Judge Advocate General's Legal Center and School, Charlottesville, VA for 6 weeks. JAG Corps enlisted paralegals must earn qualifying scores on the ASVAB, and be able to maintain a SECRET security clearance.

Insignia The branch insignia consists of a gold pen crossed above a gold sword, superimposed over a laurel wreath. The pen signifies the recording of testimony, the sword represents the military character of the JAG Corps, and the wreath indicates honor. The insignia was created in May 1890 in silver and changed to gold in 1899. The regimental distinctive insignia (commonly but erroneously referred to as a "crest") contains the branch insignia on a shield of azure (dark blue), bordered argent (silver), the regimental colors. The "1775" on the ribbon below the shields refers to the year of the Corps' establishment.

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Navy JAG The Judge Advocate General's Corps also known as the "JAG Corps" or "JAG" is the legal arm of the United States Navy. Today, the corps consists of a worldwide organization of more than 730 Judge Advocates, 30 limited duty officers (law), 500 enlisted members and nearly 275 civilian personnel, serving under the direction of the Judge Advocate General of the Navy. The headquarters of the Judge Advocate General's Corps of the United States Department of the Navy is located at the Washington Navy Yard in Washington, D.C.

History

In 1775, the Continental Congress enacted the Articles of Conduct, governing the ships and men of the Continental Navy. However, soon thereafter, all of these ships were sold and the United States Navy and Marine Corps were disbanded. In July 1797, Congress, after authorizing construction of six ships, enacted the Rules for Regulation of the Navy as a temporary measure. Then, in 1800, Congress enacted a more sophisticated code adopted directly from the British Naval Code of 1749. There was little or no need for lawyers to interpret these simple codes, nor was there a need for lawyers in the uncomplicated administration of the Navy prior to the American Civil War.

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During the Civil War, however, Secretary of the Navy Gideon Welles named a young assistant U.S. Attorney in the District of Columbia named Nathaniel Wilson to present the government's case in complicated courts-martial. Without any statutory authority, Secretary Welles gave Wilson the title of "Solicitor of the Navy Department," making him the first House counsel to the United States Navy. By the Act of March 2, 1865, Congress authorized "the President to appoint, by and with the advice and consent of the Senate, for service during the rebellion and one year thereafter, an officer of the Navy Department to be called the 'Solicitor and Naval Judge Advocate General.'" The United States Congress maintained the billet on a year-to-year basis by amendments to the Naval Appropriations Acts. In 1870, Congress transferred the billet to a newly established Justice Department with the title of Naval Solicitor. In 1967, Congress decided to establish the Judge Advocate General's Corps within the Department of the Navy. The legislation was signed into law by President Lyndon B. Johnson on December 8, 1967, and redesignated Navy lawyers as staff officers within the Navy, similar to physicians and chaplains. Prior to this change, all Navy lawyers were Line Naval Officers. Prior to 2005, JAG Corps personnel primarily worked in one of three offices: Navy Legal Service Offices providing defense and legal assistance to eligible personnel; Trial Service Offices providing courts-martial prosecution, court reporting and administrative trial support; and Staff Judge Advocates providing legal advice to U.S. naval base commanders. In 2005, the Judge Advocate General of the Navy approved a pilot program which resulted in the merger of the Navy's Trial Service Offices and Staff Judge Advocates into new commands known as Region Legal Service Offices. Additionally, the JAG Corps has attorneys and paralegals on aircraft carriers, amphibious assault ships and flag ships as well as in support of Seabee battalions and special operations commands.

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The Insignia The official insignia of the JAG Corps consists of two gold oak leaves, curving to form a semicircle in the center of which is balanced a silver "mill rinde" [sic], In ancient France, the fer de moline, or millrind, was a symbol of equal justice for all under the law. The two counterbalancing oak leaves are identical and connote the scales upon which justice is weighed. Oak leaves denote a corps, and symbolize strength, particularly the strength of the hulls of the early American Navy, which were oak-timbered. In the milling of grains, the millrind was used to keep the stone grinding wheels an equal distance apart to provide consistency in the milling process. It, thus, symbolizes that the wheels of justice must grind exceedingly fine and exceptionally even. In the 16th century, this symbol was adopted in England as a symbol for lawyers. The millrind can also be found in both the Staff Corps Officers Specialty Insignia and in the Enlisted Rating Insignia (LN Legalman).

U.S. Navy Ranks and Insignias for JAG Officers Judge Advocate General's Corps, U.S. Navy Vice Admiral Judge Advocate General of the Navy

Rear Admiral Deputy Judge Advocate General of the Navy

Rear Admiral (lower half)

O-9

O-8

O-7

Captain

Commander

Lieutenant Commander

Lieutenant

Lieutenant (junior grade)

Ensign

O-6

O-5

O-4

O-3

O-2

O-1

Legalman Legalmen are trained paralegals who assist Navy and Marine lawyers and work in Navy legal offices. Page 25 of 54

Judge Advocate General of the Navy The Judge Advocate General of the Navy (JAG) and the Deputy Judge Advocate General of the Navy (DJAG) are appointed positions. They are both nominated by the President and must be confirmed via majority vote by the Senate. The JAG and DJAG are appointed to a four-year term of office but they usually serve for three. The JAG and DJAG have historically been officers in the service of the Navy. However statute states that a Marine officer can be appointed to either position as long as he meets the requirements stated in the section. By statute the JAG is appointed as a three-star vice admiral or lieutenant general while holding office and the DJAG is appointed as a twostar rear admiral or a major general. Other than age and years of military service, there is no other statute of limitations on how many times a JAG or DJAG can be renominated for appointment to that position if the President so chooses.

Offices Headquarters 

Judge Advocate General Corps HQ, Washington Navy Yard, Washington, D.C.

Defense Service Offices (DSO) North       

DSO North Headquarters, Washington Navy Yard, Washington, D.C. DSO North Detachment, Naval Support Activity Naples, Italy DSO North Branch Office, Naval Support Activity Bahrain, Bahrain DSO North Detachment, Naval Station Rota, Spain DSO North Branch Office, U.S. Naval Academy, Maryland DSO North Detachment Groton, Naval Submarine Base New London, Connecticut DSO North Detachment Great Lakes, Naval Station Great Lakes, Illinois

West   

DSO West Headquarters, Naval Station San Diego, California DSO West Bremerton, Naval Station Bremerton, Washington DSO Central Branch Office Fort Worth, Naval Air Station Joint Reserve Base Fort Worth, Texas

Pacific  

DSO Pacific Headquarters Yokosuka, United States Fleet Activities Yokosuka, Japan DSO Pacific Sasebo, United States Fleet Activities Sasebo, Japan Page 26 of 54

 

DSO Pacific Guam, Naval Base Guam, Guam DSO Pacific Pearl Harbor, Pearl Harbor Naval Shipyard, Hawaii

Southeast         

DSO Southeast Headquarters, Naval Station Norfolk, Virginia DSO Southeast Detachment Mayport, Naval Station Mayport, Florida DSO Southeast Detachment Pensacola, Naval Air Station Pensacola, Florida DSO Southeast Branch Office Jacksonville, Naval Air Station Jacksonville, Florida DSO Southeast Branch Office Gulfport, Naval Construction Battalion Center Gulfport, Mississippi DSO Southeast Remote Office New Orleans, Naval Air Station Joint Reserve Base New Orleans, Louisiana DSO Southeast Remote Office Millington, Naval Support Activity Mid-South, Tennessee DSO Southeast Remote Office Kings Bay, Naval Submarine Base Kings Bay, Georgia DSO Southeast Remote Office Guantanamo Bay, Guantanamo Bay Naval Base, Cuba

Region Legal Service Offices (RLSO) Capital Region  

RLSO Naval District Washington, Washington Navy Yard, Washington, D.C. RLSO Northeast Detachment Great Lakes, Naval Station Great Lakes, Illinois

Southeast     

RLSO Southeast Jacksonville, Naval Air Station Jacksonville, Florida RLSO Southeast Detachment Mayport, Naval Station Mayport, Florida RLSO Southeast Detachment Pensacola, Naval Air Station Pensacola, Florida RLSO Southeast Detachment Guantanamo Bay, Guantanamo Bay Naval Base, Cuba RLSO Southeast Detachment New Orleans, Naval Air Station Joint Reserve Base New Orleans, Louisiana

Mid-Atlantic    

RLSO Mid-Atlantic, Naval Station Norfolk, Virginia RLSO Mid-Atlantic Branch Office Oceana, Naval Air Station Oceana, Virginia RLSO Mid-Atlantic Branch Office Little Creek, Joint Expeditionary Base Little Creek Fort Story, Virginia RLSO Mid-Atlantic Detachment Groton, Naval Submarine Base New London, Connecticut Page 27 of 54

West   

RLSO West, Naval Station San Diego, California RLSO West Branch Office Ventura County Naval Surface Warfare Center Port Hueneme, California RLSO West Branch Office Lemoore Naval Air Station Lemoore, California

Northwest    

RLSO Northwest, Naval Station Bremerton, Washington RLSO Northwest, Branch Office Naval Station Everett, Washington RLSO Northwest, Branch Office Naval Station Bangor, Washington RLSO Northwest, Branch Office Naval Air Station Whidbey Island, Washington

Pacific  

RLSO Pacific Pearl Harbor Naval Shipyard, Hawaii RLSO Pacific Detachment Yokosuka United States Fleet Activities Yokosuka, Japan

Europe Africa and Southwest Asia    

RLSO Europe Africa and Southwest Asia Naval Support Activity Naples, Italy RLSO Europe Africa and Southwest Asia Detachment Rota, Spain Naval Station Rota Spain RLSO Europe Africa and Southwest Asia Detachment Sigonella, Sicily Naval Air Station Sigonella, Italy RLSO Europe Africa and Southwest Asia Detachment Bahrain Naval Support Activity Bahrain, Bahrain

Trial Judiciary Offices      

Northern Circuit, Washington, D.C. Central Circuit, Norfolk, Virginia Eastern Circuit, Camp Lejeune, North Carolina Southern Circuit, Pensacola, Jacksonville, Mayport, Florida Western Circuit, San Diego, California; Bremerton, Washington; Camp Pendleton, California WESTPAC Circuit, Pearl Harbor, Hawaii; Okinawa, Japan; Yokosuka, Japan

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Air Force JAG The Judge Advocate General's Corps also known as the "JAG Corps" or "JAG" is the legal arm of the United States Air Force.

History The United States Air Force became a separate military service in September 1947. On 25 June 1948, the Congress established an office of The Judge Advocate General (TJAG) in the United States Air Force. On 8 July 1949, the Air Force Chief of Staff designated 205 attorneys Air Force Judge Advocates. Thus, ironically, there were Air Force Judge Advocates three months before there was an Air Force Judge Advocate General. Following the promulgation of enabling legislation, the Air Force Judge Advocate General's Department was established on January 25, 1949 by Department of the Air Force General Order No. 7 (as amended by General Order No. 17, 15 May 1949). While this event was clearly the birth of the Department, it really represented an interim step, providing the Air Force authority to administer its military justice system within the existing Air Force structure of the time until other legislation (what became the Uniform Code of Military Justice) could be developed and enacted. The department was originally a part of the Air Force Personnel Branch, but became a separate entity reporting directly to the Air Force Chief of Staff in February 1950. The first Air Force judge advocate general, Major General Reginald C. Harmon, believed it important for Air Force JAGs to remain a part of a functionally interconnected military department. For that reason, the concept of a separate corps was discarded in favor of the department that existed until 2003. In 2003, the Judge Advocate General's Department was renamed to the Judge Advocate General's Corps by order of the Secretary of the Air Force, Dr. James G. Roche. In December 2004, the Air Force Judge Advocate General, Thomas J. Fiscus, accepted non-judicial punishment under Article 15 of the UCMJ, for conduct unbecoming of an officer and obstruction of justice related to numerous unprofessional sexual relationships with subordinates. Upon his retirement, Fiscus was reduced two grades, to colonel. Major General Jack Rives, the Deputy Judge Advocate General, became the Air Force Judge Advocate General as of February 2006. On 23 July 2008, General Rives was confirmed as a Lieutenant General, becoming the first TJAG to hold that rank. On 15 December 2009, the President nominated Brigadier General Richard C. Harding to serve as the 16th Judge Advocate General. On 2 February 2010, the Senate Armed Services Committee endorsed the nomination and the Senate voted to confirm the nomination. Lieutenant General Rives retired on 5 February 2010, accepting the position of Executive Director and Chief Operating Officer of the American Bar Page 30 of 54

Association, and now-Lieutenant General Richard Harding became The 16th Judge Advocate General of the Air Force. His formal investiture and promotion ceremony occurred on 23 February 2010. General Harding's term as The Judge Advocate General ended on 31 January 2014. On 22 May 2014, the Senate confirmed Brigadier General Christopher F. Burne to serve as the 17th Judge Advocate General in the grade of Lieutenant General. He was promoted and began duties as The Judge Advocate General on the following day.

JAG School The Air Force Judge Advocate General's School was founded in 1950 and has been located in the William Louis Dickinson Law Center, at Maxwell Air Force Base in Montgomery, Alabama since 1993. The school provides instruction to new judge advocates and paralegals, in addition to offering approximately 30 continuing legal education courses. The School publishes scholarly legal journals such as The Air Force Law Review, semiannually and The Reporter, quarterly. The School also produces The Military Commander and the Law, a publication that is invaluable not only to judge advocates, but commanders and first sergeants in handling the myriad of legal issues that arise with a squadron or wing, and for the continued enforcement of good order and discipline.

Judge Advocates General of the Air Force             

Major General Reginald C. Harmon (1948–1960) Major General Albert M. Kuhfeld (1960–1964) Major General Robert W. Manss (1964–1969) Major General James S. Cheney (1970–1973) Major General Harold R. Vague (1973–1977) Major General Walter D. Reed (1977–1980) Major General Thomas B. Bruton (1980–1985) Major General Robert W. Norris (1985–1988) Major General Keithe E. Nelson (1988–1991) Major General David C. Morehouse (1991–1993) Major General Nolan Sklute (1993–1996) Major General Bryan G. Hawley (1996–1999) Major General William A. Moorman (1999–2002) Page 31 of 54

    

Major General Thomas J. Fiscus (2002–2004); served as major general, retired as colonel Major General Jack L. Rives (2004-2006); performed the duties of TJAG Major General/Lieutenant General Jack L. Rives (2006–2010) Lieutenant General Richard C. Harding (February 2010–January 2014) Lieutenant General Christopher F. Burne (May 2014–Current)

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Marine Corps JAG The Judge Advocate Division United States Marine Corps' serves both to advise the Commandant of the Marine Corps and Headquarters, Marine Corps on legal matters, and to oversee the Marine Corps legal community. The head of the Division is the Staff Judge Advocate (SJA) to the Commandant of the Marine Corps (CMC). Military attorneys (or judge advocates) in the Marine Corps work under the supervision of the SJA to the CMC to advise Marine commanders regarding legal issues including the laws of war, and to prosecute and defend courtsmartial. Marine Corps lawyers are line officers, unlike their counterparts in the United States Navy and Army, which means they can fill any officer billet in the Fleet Marine Force.

Subdivisions The Judge Advocate Division of Headquarters, U.S. Marine Corps includes the following branches:       

JAI - Information, Plans and Programs JAL - Legal Assistance JAM - Military Law JAO - International and Operational Law JAR - Research and Civil Law JAS - Judge Advocate Support CDC - Chief Defense Counsel of the Marine Corps

Staff Judge Advocates to the Commandant The list of SJAs to the CMC includes:        

Colonel Charles B. Sevier; 1966-1968 Colonel Marion G. Truesdale; 1968–1969 Brigadier General Duane L. Faw; 1969–1971 Brigadier General Clyde R. Mann; 1971–1973 Brigadier General John R. De Barr; 1973–1976 Brigadier General Robert J. Chadwick; 1976–1978 Brigadier General James P. King; 1978–1980 Brigadier General William

      

Brigadier General David M. Brahms; 1985–1988 Brigadier General Michael E. Rich; 1988–1990 Brigadier General Gerald L. Miller; 1990–1993 Brigadier General Michael C. Wholley; 1993–1996 Brigadier General Theodore G. Hess; 1996– 1999 Brigadier General Joseph Composto; 1999–2001 Brigadier General Kevin M. Sandkuhler; 2001–



Major General John R. Ewers

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

H. J. Tiernan; 1980–1983 Brigadier General Walter J. Donovan; 1983–1985

 

2006 Brigadier General James C. Walker; 2006–2009 Major General Vaughn Ary; 2009-2014

Marine Corps Judge Advocates Marine Corps judge advocates, or JAs, are licensed attorneys who are also officers in the Marine Corps. Each JA is a line officer in the Marine Corps, and goes through the same initial training as any other Marine officer. Upon graduation from TBS, the Marine attends Naval Justice School where they are instructed in the fundamental principles of military justice, civil and administrative law, and procedure, with practical application of those principles to the problems inevitably arising within every command, in order to assist in the attainment of a high standard of legal practice and administration of the naval justice and naval disciplinary systems, as well as the naval civil and administrative law system. Upon graduation from the school, the Marine is designated as a Judge Advocate (MOS 4402) and will begin their tour in the Fleet Marine Force as an attorney. As line officers, Marine JAs can and occasionally serve in non-legal assignments, including the command of combat units.

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Coast Guard Legal Division The Coast Guard Judge Advocate General oversees the delivery of legal services to the United States Coast Guard, through the Office of the Judge Advocate General in Washington, the Legal Service Command, offices in the Atlantic and Pacific Areas, nine Coast Guard Districts, the Coast Guard Academy, three training centers, and a number of other activities and commands. Legal services are delivered by Coast Guard judge advocates and civilian counsel in ten legal practice areas: criminal law/military justice, operations, international activities, civil advocacy, environmental law, procurement law, internal organizational law, regulations and administrative law, legislative support and legal assistance.

Military Justice The Coast Guard is subject to the Uniform Code of Military Justice. Coast Guard judge advocates serve as defense counsel and prosecutors for military courts-martial and as military judges at the trial and appellate level. Judge advocates assigned as appellate counsel (both for the government and defense) brief and argue cases before the Coast Guard Court of Criminal Appeals, the United States Court of Appeals for the Armed Forces, and the Supreme Court of the United States. Coast Guard attorneys serve as Staff Judge Advocates to Coast Guard commanders providing advice on military criminal matters.

Operations Coast Guard attorneys act as legal counsel and enforcement guidance in key Coast Guard mission areas, including maritime homeland security, enforcement of laws and treaties, particularly drug trafficking laws, fisheries laws, customs laws, environmental laws, and immigration law, intelligence, search and rescue, icebreaker operations, intelligence law; national security and defense operations, marine environmental protection; port safety and security, including Captain of the Port functions and homeland security, maritime defense zone responsibilities, and other Coast Guard missions as well as in the following general areas: vessel inspection and commercial vessel safety; merchant vessel personnel, including review of appeals by merchant seamen of suspension and revocation orders entered by Administrative Law Judges; investigations of marine casualties and violations of law by merchant mariners; appeal adjudication for civil penalty cases; determines the navigability of U.S. waters.

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International Activities Coast Guard attorneys serve as advisers or representatives of the United States at most of the several bodies of the International Maritime Organization (IMO), headquartered in London, including the Assembly, the Facilitation Committee, the Marine Safety Committee, the Safety of Navigation subcommittee and the Radiocommunications and Search and Rescue subcommittee and the Legal Committee. The principal and alternate U.S. Representative to the IMO Legal Committee are Coast Guard attorneys. A Coast Guard judge advocate is assigned as liaison to the United States Department of State, and another is attached to the United States Department of Defense Institute for International Legal Studies. Judge advocates have also served in Iraq and Afghanistan and deploy for international training missions with the Coast Guard and the Department of Defense.

Civil Advocacy, Claims, and Litigation Coast Guard attorneys actively manage an extensive claims program under several federal statutes. These involve not only adjudicating claims made against the agency, but also collecting monies owed the government due to penalties assessed for violations of federal law, for damage to Coast Guard property, and for cleanup and recovery costs. Coast Guard attorneys are actively involved in a wide variety of civil Page 38 of 54

litigation, from simple tort defense to constitutional challenges. Coast Guard judge advocates are assigned to litigating divisions in the United States Department of Justice, and other judge advocates serve as full and part-time special assistant United States Attorneys in several locations.

Procurement Law Coast Guard attorneys in the Office of Procurement Law at the Coast Guard headquarters, in the Surface Forces Logistics Center (formerly the Maintenance and Logistics Commands), and in some field legal offices, provide contract law advice to management, technical, and contracting officials at all levels of the Coast Guard. This ranges from daily advice to field-level contracting officers to advice on major construction, acquisition, and procurements. Advice is provided from the earliest planning stages of procurement through contract negotiation and award as well as through contract administration, which may include action on claims and contract litigation.

Environmental and Property Law Legal services are provided in support of Coast Guard compliance with federal, state and local environmental requirements. Lawyers advise field commanders, program managers and Headquarters units, regarding federal, state and local requirements that may affect or constrain Coast Guard activities. They represent the Coast Guard, either directly or through the Department of Justice, in environmental enforcement actions against the Coast Guard, environmental citizen suits, and challenges to Coast Guard activities brought under environmental statutes. Legal counsel is provided on matters involving the acquisition, maintenance and disposition of real property including leases and licenses.

Internal Organizational Law This practice area encompasses a wide range of legal subjects with perhaps the largest number of clients of any of the practice areas. Coast Guard attorneys provide legal advice on issues including federal fiscal law, gift acceptance and standards of ethical conduct for government employees, management, acquisition and disposal of real property, military and civilian personnel law, civil rights, health care, privacy and the release of information. To some extent, Coast Guard attorneys do this work wherever they are. Attorneys at the Office of General Law at Headquarters and at the Maintenance and Logistics Commands provide advice and represent the Coast Guard on matters involving the Merit Systems Protection Board, Equal Employment Opportunity Commission, and labor relations. The Office of Military Justice is involved in two personnel law areas: the Board of Correction of Military Records and representation of Coast Guard members in physical disability cases.

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Regulations and Administrative Law Responsible for the legal sufficiency, format, style, and publication of Coast Guard rulemaking documents and notices in the Federal Resgister and placement in the Code of Federal Regulations of all Coast Guard public regulatory documents and related rulemaking matters under the statutory authority of the Commandant of the Coast Guard. The office provides legal counsel, review, drafting assistance and other support services for all rulemaking activities by Coast Guard Headquarters and field managers. Serves as Legal Counsel to the Coast Guard Marine Safety and Security Council, which is the senior oversight body for Coast Guard rulemaking actions and provides Executive Secretary and administrative services to the council. This office is also responsible for legal advice on matters dealing with the Federal Advisory Committee Act.

Legislation Drafting, reviewing and coordinating the clearance of the legislative program for the Coast Guard, usually in the form of the annual Coast Guard authorization bill for future fiscal years. The office coordinates agency review of pending legislation, Congressional testimony, proposed executive orders, and other agencies' reviews of pending legislation. Draft departmental reviews letters and provide Coast Guard comments regarding draft statements of Administration policy on pending legislation.

Legal Assistance The Coast Guard, as do the other military services, provides personal legal services to eligible beneficiaries. This program, provided in accordance with Section 1044 of Title 10 of the United States Code, makes attorneys available to provide advice, counsel and in some cases representation on many civil legal matters including estate planning, financial issues, landlord/tenant and personal real property, domestic/family law, application of the Servicemembers Civil Relief Act and other federal laws impacting military personnel in the civilian community, and taxes.

Judge Advocate Generals of the Coast Guard           

RADM Steven D. Poulin (April 2014-Present) RADM Frederick J. Kenney (Jan 2011–April 2014) Mr. Calvin M. Lederer (acting) (April 2010 - January 2011) RADM William D. Baumgartner (2006 – 2010) RADM John E. Crowley (2003 - 2006) RADM Robert F. Duncan (2001 - 2003) RADM Jay S. Carmichael (1999 - 2001) RADM Johne E Shkor (1998 - 1999) RADM Paul M. Blayney (1996 - 1998) RADM John E. Shkor (1993 - 1996) RADM Paul E. Versaw (1991 - 1993) Page 40 of 54

       

RADM Joseph Vorbach (1986 - 1991) RADM E.H. Daniels (1981 - 1986 RADM C.F. DeWolf (1978 - 1981) RADM G.H.P. Bursley (1976 - 1978) RADM R.A. Ratti (1973 - 1976) RADM William L Morrison (1968 - 1973) Kenneth F. Harrison (1938 - 1967) Joseph P. Tanney (First Chief Counsel - 1938)

Deputy Chief Counsels/Deputy Judge Advocate Generals of the Coast Guard    

Mr. Calvin M. Lederer (2002–Present) Mr. Robert S. Horowitz (1997 - 2002) Mr. Rue Hesel ( - 1997) Capt William L Morrison (1967 - 1968)

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The Military Justice Improvement Act of 2013 The Gillibrand Sexual Assault Bill

Senate Bill 1752, more commonly known as the Military Justice Improvement Act (MJIA), was introduced by New York Senator Kirsten Gillibrand in 2013 as an attempt to reform procedures for determinations to proceed to trial by court-martial for certain offenses under the Uniform Code of Military Justice and for other purposes. The focus of the bill is to address the way that sexual assault in the United States military is handled through the military justice system and the chain of command. ______ Looking to end the epidemic of sexual assault in the military, a bipartisan coalition of 55 Senators - 43 Democrats, 11 Republicans and 1 Independent - came together to reverse the systemic fear that victims of military sexual assault have described in deciding whether or not to report the crimes committed against them due to the clear bias and inherent conflicts of interest posed by the military chain of commandâ&#x20AC;&#x2122;s current sole decision-making power over whether cases move forward to a trial. While this common sense proposal was filibustered on the Senate floor, the fight to pass this critically needed reform continues. The carefully crafted Military Justice Improvement Act (MJIA) S.1752, moves the decision whether to prosecute any crime punishable by one year or more in Page 43 of 54

confinement to independent, trained, professional military prosecutors, with the exception of crimes that are uniquely military in nature, such as disobeying orders or going Absent Without Leave. The decision whether to prosecute 37 serious crimes uniquely military in nature, plus all crimes punishable by less than one year of confinement, would remain within the chain of command. According to the FY2012 SAPRO report released last year by the Defense Department: 

An estimated 26,000 cases of unwanted sexual contact and sexual assaults occurred in FY2012, a 37% increase from FY2011.



25% of women and 27% of men who received unwanted sexual contact indicated the offender was someone in their military chain of command.



50% of female victims stated they did not report the crime because they believed that nothing would be done with their report.



Of the 3,374 total reports in 2012, only 2,558 reports were unrestricted, which means they were actionable. Of those unrestricted reports, 27 percent were for rape, 35 percent were for abusive and wrongful sexual contact, and 28 percent were for aggravated sexual assault and sexual assault. The remaining cases were for aggravated sexual contact, nonconsensual sodomy, indecent assault and attempts to commit those offenses.



Across the Services, 74% of females and 60% of males perceived one or more barriers to reporting sexual assault. 62% of victims who reported a sexual assault indicated they perceived some form of professional, social, and/or administrative retaliation.

Another report released by the Defense Department last year showed that more than 1 in 5 female servicemembers reported experiencing unwanted sexual contact while serving in the military. Even the current top military leadership admits the current system ―has failed‖ and as Commandant of the Marine Corps General James F. Amos stated this year, victims do not come forward because ―they don’t trust the chain of command.‖ The problem of sexual assault in the military is not new, neither are the pledges of ―zero tolerance‖ from commanders, which date all the way back to then-Secretary of Defense Dick Cheney in 1992. Many of our allied modern militaries have moved reporting outside of the chain of command, such as Britain, Canada, Israel, Germany, Norway and Australia. At a September 2013 hearing, military leaders from Australia, the United Kingdom, Israel and Canada testified on how changes they’ve made to their justice systems — including the one up for debate in the Senate — haven’t caused problems for their commanders.

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The Military Justice Improvement Act also: ď&#x201A;ˇ

Provides the offices of the military chiefs of staff with the authority and discretion to establish courts, empanel juries and choose judges to hear cases (i.e. convening authority).

ď&#x201A;ˇ

This legislation does not amend Article 15. Commanding officers will still be able to order non-judicial punishment for lesser offenses not directed to trial by the prosecutors.

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US Military Court System Schematic

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References 1.

http://en.wikipedia.org/wiki/Military_justice

http://en.wikipedia.org/wiki/Judge_Advocate_General%27s_Corps

http://en.wikipedia.org/wiki/Judge_Advocate_General%27s_Corps,_United_State s_Army

http://en.wikipedia.org/wiki/Judge_Advocate_General%27s_Corps,_U.S._Navy

http://en.wikipedia.org/wiki/United_States_Air_Force_Judge_Advocate_General %27s_Corps

http://en.wikipedia.org/wiki/United_States_Marine_Corps_Judge_Advocate_Divis ion

http://en.wikipedia.org/wiki/United_States_Coast_Guard_Legal_Division

http://en.wikipedia.org/wiki/Military_Justice_Improvement_Act

http://www.gillibrand.senate.gov/mjia

10.

http://www.loc.gov/rr/frd/Military_Law/pdf/MCM-2012.pdf

11.

http://www.au.af.mil/au/awc/awcgate/ucmj.htm

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Notes ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________

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Attachment A Landmark Cases In US Military Justice

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Hamdan v. Rumsfeld 548 U.S. 557 (2006), Hamdan v. Rumsfeld, 548 U.S. 557 (2006), is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949." Specifically, the ruling says that Common Article 3 of the Geneva Conventions was violated. The case considers whether the United States Congress may pass legislation preventing the Supreme Court from hearing the case of an accused combatant before his military commission takes place, whether the special military commissions that had been set up violated federal law (including the Uniform Code of Military Justice and treaty obligations), and whether courts can enforce the articles of the 1949 Geneva Convention. An unusual aspect of the case was an amicus brief filed by Senators Jon Kyl and Lindsey Graham, which presented an â&#x20AC;&#x153;extensive colloquyâ&#x20AC;? added to the Congressional record as evidence that "Congress was aware" that the Detainee Treatment Act of 2005 would strip the Supreme Court of jurisdiction to hear cases brought by the Guantanamo detainees. Because these statements were not included in the December 21 debate at the time, Emily Bazelon of Slate magazine has argued their brief was an attempt to mislead the court. On June 29, 2006, the Court issued a 5-3 decision holding that it had jurisdiction, that the administration did not have authority to set up these particular military commissions without congressional authorization, because they did not comply with the Uniform Code of Military Justice and the Geneva Convention (which the court found to be incorporated into the Uniform Code of Military Justice).

Background The plaintiff was Salim Ahmed Hamdan, a citizen of Yemen who worked as a bodyguard and chauffeur for Osama bin Laden. Hamdan had formerly worked in Afghanistan on an agricultural project that Bin Laden had developed. Hamdan was captured by militia forces during the invasion of Afghanistan in the fall of 2001 and turned over to the United States. In 2002, he was sent by the US to its new Guantanamo Bay detention camp at its Naval Base in Cuba. In July 2004, Hamdan was charged with conspiracy to commit terrorism, and the Bush administration made arrangements to try him before a military commission, established by the Department of Defense under Military Commission Order No. 1 of March 21, 2002. He was assigned a defense counsel, LCDR Charles D. Swift from the Navy JAG, who with a legal team filed a petition for Hamdan in US District Court for a writ of habeas corpus, challenging the constitutionality of the military commission, and saying that it lacked the protections required under the Geneva Conventions and United States Uniform Code of Military Justice.

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Following the United States Supreme Court ruling in Hamdi v. Rumsfeld (2004), which established that detainees had the right of habeas corpus to challenge their detention, Hamdan was granted a review before the Combatant Status Review Tribunal. It determined that he was eligible for detention by the United States as an enemy combatant or person of interest. The defendants in this case included many United States government officials allegedly responsible for Hamdan's detention; the short name of the case includes only the first-named defendant, then-Secretary of Defense Donald Rumsfeld.

District and Appeals Court Rulings After reviewing Hamdan's habeas petition, Judge James Robertson of the United States District Court for the District of Columbia ruled in the detainee's favor. He found that the United States could not hold a military commission unless it was first shown that the detainee was not a prisoner of war. On July 15, 2005, a United States Court of Appeals for the District of Columbia Circuit threejudge panel: Arthur Raymond Randolph, John G. Roberts, Jr. and Stephen F. Williams, unanimously reversed the decision of the District Court. Judge Randolph, who wrote the decision, cited the following reasons for the legality of the military commission: 1. Military commissions are legitimate forums to try enemy combatants because they have been approved by Congress. 2. The Geneva Convention is a treaty between nations and as such it does not confer individual rights and remedies. 3. Even if the Geneva Convention could be enforced in U.S. courts, it would not be of assistance to Hamdan at the time because, the war against al-Qaeda was not between two countries, and the Convention guarantees only a certain standard of judicial procedureâ&#x20AC;&#x201D;a "competent tribunal"â&#x20AC;&#x201D;without speaking to the jurisdiction in which the prisoner must be tried. 4. Under the terms of the Geneva Convention, al Qaeda and its members are not covered. 5. Congress authorized such activity by statute. 6. The judicial branch of the United States government cannot enforce the Convention, thus invalidating Hamdan's argument that he cannot be tried until after his prisoner-of-war status is determined.

Supreme Court Decision On 7 November 2005, the Supreme Court issued a writ of certiorari to hear the case. The petition was filed on behalf of Hamdan by Neal Katyal of Georgetown University Law Center and Lt. Commander Charles Swift of the U.S. Navy, an alumnus of Seattle University School of Law. The Seattle law firm, Perkins Coie, provided the additional legal counsel for Hamdan. The case was argued before the court on 28 March 2006. Katyal argued on behalf of Hamdan, and Paul Clement, the Solicitor General of the United States, argued on behalf of the Page 2 of 11

government. Chief Justice Roberts recused himself because he had previously ruled on this case as part of the three judge panel on the United States Court of Appeals for the District of Columbia Circuit. Critics called for Justice Antonin Scalia to recuse himself, since he had made allegedly improper comments about the decision of the case prior to hearing oral arguments ("I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy") but he chose not to do so. The Supreme Court announced its decision on 29 June 2006. The Court reversed the ruling of the Court of Appeals, holding that President George W. Bush did not have authority to set up the war crimes tribunals and finding the special military commissions illegal under both military justice law and the Geneva Conventions.

Justice Stevens' Oopinion for the Court Associate Justice John Paul Stevens wrote the opinion for the Court, which commanded a majority only in part. The Stevens opinion began with the issue of jurisdiction, denying the U.S. government's motion to dismiss under Section 1005 of the Detainee Treatment Act of 2005 (DTA), which gave the D.C. Circuit Court of Appeals "exclusive" jurisdiction to review decisions of cases being tried before military commissions. Congress did not include language in the DTA that might have precluded Supreme Court jurisdiction, making the government's argument to the Court unpersuasive. The government's argument that Schlesinger v. Councilman, 420 U.S. 738 (1975), precludes Supreme Court review was similarly rejected. Councilman applied to a member of the U.S. military who was being tried before a military "court-martial." In contrast, Hamdan is not a member of the U.S. military, and would be tried before a military "commission," not a courtmartial. To the court, the more persuasive precedent was Ex parte Quirin, in which the court recognized its duty to enforce relevant Constitutional protections by convening a special Term and expediting review of a trial by military convention. The opinion explicitly stated that, because DTA did not bar it from considering the petition, it was unnecessary to decide whether laws unconditionally barring habeas corpus petitions would unconstitutionally violate the Suspension Clause. The opinion then addressed the substantive issues of the case. It explicitly did not decide whether the President possessed the Constitutional power to convene military commissions like the one created to try Hamdan. Even if he possessed such power, those tribunals would either have to be sanctioned by the "laws of war," as codified by Congress in Article 21 of the Uniform Code of Military Justice (UCMJ), or authorized by statute. As to the statutory authorization, there is nothing in the Authorization for Use of Military Force (AUMF) "even hinting" at expanding the President's war powers beyond those enumerated in Art. 21. Instead, the AUMF, the UCMJ, and the DTA "at most acknowledge" the President's authority to convene military commissions only where justified by the exigencies of war, but still operating within the laws of war. As to the laws of war, to the majority these necessarily include the UCMJ and the Geneva Conventions, each of which require more protections than the military commission provides. The

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UCMJ, Art. 36 (b), which requires that rules applied in courts-martial and military commissions be "uniform insofar as practicable." Stevens found several substantial deviations, including: 

 

The defendant and the defendant's attorney may be forbidden to view certain evidence used against the defendant; the defendant's attorney may be forbidden to discuss certain evidence with the defendant; Evidence judged to have any probative value may be admitted, including hearsay, unsworn live testimony, and statements gathered through torture; and Appeals are not heard by courts, but only within the Executive Branch (with an exception not here relevant).

These deviations made the commissions violate the UCMJ. The majority also found that the procedures in question violate the "at least" applicable Common Article 3 of the Geneva Conventions. It found that the D.C. Court of Appeals erred in concluding that the Conventions did not apply: 1. It erroneously relied on Johnson v. Eisentrager, which does not legally control in Hamdan's case because there was then no deviation between the procedures used in the tribunal and those used in courts-martial; 2. It erroneously ruled that the Geneva Conventions do not apply because Art. 3 affords minimal protection to combatants "in the territory of" a signatory; and 3. Those minimal protections include being tried by a "regularly constituted court," which the military commission is not. Because the military commission does not meet the requirements of the Uniform Code of Military Justice or of the Geneva Convention, it violates the laws of war and therefore cannot be used to try Hamdan. The Court did not hear the question that had decided the district court opinion, namely that Hamdan was entitled to a GCIII Art. 5 hearing instead of a Combatant Status Review Tribunal. Hamdan observes that Article 5 of the Third Geneva Convention requires that if there be “any doubt” whether he is entitled to prisoner-of-war protections, he must be afforded those protections until his status is determined by a “competent tribunal.” . Because we hold that Hamdan may not, in any event, be tried by the military commission the President has convened pursuant to the November 13th Order and Commission Order No. 1, the question whether his potential status as a prisoner of war independently renders illegal his trial by military commission may be reserved.

Plurality Sections Because Justice Anthony Kennedy did not join Stevens’ opinion as to several parts, largely on the grounds of judicial parsimony (that is, having decided that the military commissions had no foundation, the core question of the case was decided and the Court did not need to go further), those sections were without a majority in support. Page 4 of 11

In one of these sections, Stevens addressed the issue of whether military commissions can try conspiracy charges. He argued that military commissions are not courts of general jurisdiction, which are able to try any crime; that the court has traditionally held that offenses against the law of war are triable by military commission only when they are clearly defined as war crimes by statute or strong common law precedent (cf. Quirin). Finally, he found that there was no support in statute or court precedent for law-of-war military commissions trying charges of "conspiracy," either in the Geneva Conventions, in the earlier Hague Conventions or at the Nuremberg Trials.

Addressing the Dissents As is common in opinions to which there are dissents, Stevens' opinion addressed the major arguments in dissent. For example: 

 

The majority opinion says that Justice Scalia's argument concerning the jurisdictionstripping statute (section 1005e(1)) ignores the effective date provision of that very statute (section 1005(h)) The majority opinion says that the government's contention that the war started September 11, 2001 undercuts Justice Thomas' argument that it started in 1996. The majority opinion notes that language in the Congressional Record that the Scalia dissent cites was inserted into the Record after the legislation had been enacted, by Senators Lindsey Graham (R-SC) and Jon Kyl (R-AZ), and includes falsified quotations attributed to other persons.

Justice Breyer's Concurrence Justice Breyer wrote a one-page concurring opinion, joined by Justices Kennedy, Souter, and Ginsburg. Breyer contended that the commissions are not necessarily categorically prohibited, as long as Congress approves them: ...Congress has denied the President the legislative authority to create military commissions of the kind at issue here. Nothing prevents the President from returning to Congress to seek the authority he believes necessary. ... Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine — through democratic means — how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.

Justice Kennedy's Concurrence Justice Kennedy wrote an opinion concurring in part, joined as to parts I and II by Justices Souter, Ginsburg, and Breyer. In Part One of Kennedy's concurrence, he raises his concern for the separation of powers; specifically, how one branch can control all the elements of a case, including avenues of review and appeal. Page 5 of 11

Part Two describes the differences between the procedures of the military commissions and the procedures prescribed by the UCMJ (fewer jury members, different rules of evidence, et al.). These differences demonstrate that the commissions do not operate under the rules of military courts-martial, and raise issues of neutrality with respect to the military judges involved. The negation of fairness safeguards renders the commission a judicial entity which is not a "regularly constituted court", as required in the Geneva Convention. In sum, Kennedy writes that the commission exceeds congressional bounds, though the Congress is free to re-write the law as they see fit. The third and final Part lists some of Kennedy's reservations. He would not say that the defendant must be present at all stages of the trial. There should be a reluctance to consider the applicability of Article 75 of Protocol I, since America never signed it and thus it is not binding. Kennedy writes that he feels it was not necessary to delve into the validity of the conspiracy charge, and he expresses no view on the merits of the other limitations of the commission noted in Part V of the Decision.

Justice Scalia's Dissent Justice Scalia wrote a dissenting opinion that focuses primarily on issues of jurisdiction, and was joined by Justices Thomas and Alito. Scalia calls the Court's conclusion to hear the case "patently erroneous." His first argument relies on the part of the Detainee Treatment Act (DTA) (effective December 30, 2005) that states "[N]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." ยง1005(e)(1), 119 Stat. 2742. Scalia's opinion is that this clause suffices to deny the Supreme Court jurisdiction over the case, calling the majority's reading of the effectiveness provisions of ยง1005(h), a "mess". He cites Bruner v. United States and other cases granting "immediate effect in pending cases, absent an explicit statutory reservation." He wrote that in interpreting the language in the DTA, the majority ignored Supreme Court precedents which established that a statute excluding jurisdiction applies to pending cases unless it has clear language saying it does not. Scalia claimed that the majority had made this interpretation "for the flimsiest of reasons". He was referring to the majority's use of Senate floor debate records to bolster their interpretation, writing that it "makes no difference" that the language in support of his position was inserted into the Congressional Record after the law was voted upon. He also accuses the majority of ignoring the President's Signing Statement. Furthermore, he anticipates that expanding the jurisdictions able to hear writs of habeas corpus from Guantanamo Bay would create excessive load on the court system. In addition, Scalia states that the original military tribunal was not shown to be inadequate. Regarding the application of the Suspension Clause of the Constitution, Scalia points to Johnson v. Eisentrager. In its second major argument, Scalia's opinion argues that petitioners such as Hamdan held outside the territorial jurisdiction of the United States lack the right to the writ of habeas corpus. Page 6 of 11

He points in a footnote to Hamdi v. Rumsfeld, under which he claims Hamdan "is already subject to indefinite detention" "after an adverse determination by his CSRT." Finally, Justice Scalia chastises the Court for taking equity jurisdiction of the case and draws an analogy with Schlesinger v. Councilman, 420 U.S. 738 (1975). In that case, the Supreme Court declined passing judgment on the decision of a military court-martial before it finished its work; Scalia argues that likewise, the military commissions in Cuba have not yet ended their work regarding Hamdan and therefore should not be subject to judicial oversight.

Justice Thomas's Dissent Justice Clarence Thomas read his dissent from the bench when the decision was announced, the first time he did so since his dissent in Stenberg v. Carhart, 530 U.S. 914 (2000). In his dissent he asserted that the courts had no jurisdiction for this case for the reasons described in Scalia's dissent above; that Hamdan is an illegal combatant and therefore not protected by the Geneva convention; that the Geneva convention doesn't prohibit the special court council proposed; and that the President already had authority to set up the special court council proposed. Citing his dissent in Hamdi v. Rumsfeld, Thomas briefly reprised the roles granted by the Constitution to the three different branches in time of war. He argued that under the framework established in Ex parte Quirin and Youngstown Sheet & Tube Co. v. Sawyer, President Bush's decision to try Hamdan before a military commission "is entitled to a heavy measure of deference," inasmuch as Congress had authorized the President to use all necessary and appropriate force to prevent future acts of terrorism when it passed the Authorization for Use of Military Force. Thomas disagreed strongly with the plurality’s determination that the legality of the charges against Hamdan are doubtful because he was charged "not with an overt act for which he was caught redhanded...but with an 'agreement' the inception of which long predated...the [relevant armed conflict]." He lambasted the plurality for second-guessing the Executive’s judgment, arguing that the Court’s disagreement was based upon "little more than its unsupported assertions" and constituted "an unprecedented departure from the traditionally limited role of the courts with respect to war and an unwarranted intrusion on executive authority." Thomas further disagreed with the plurality’s assumption that the date of the enactment of the AUMF constituted the start of war, suggesting that Osama bin Laden's declaration of jihad in August 1996 could be considered a declaration of war. Under this view, the enactment by Congress of the AUMF did not mark the beginning of the conflict with al Qaeda, but rather authorized the Executive to use force to combat it. Additionally, Thomas wrote that under the common law of war, which is "flexible and evolutionary in nature," war courts are permitted a degree of latitude in their jurisdiction. In holding otherwise, the plurality failed to properly defer to the judgment of the Executive and military commanders. Referring to the Court’s recent decision in Rapanos v. United States, Thomas noted with some incredulity that while the Justices that in the instant decision "disregard[ed] the commander-inPage 7 of 11

chief’s wartime decisions," they had no trouble deferring to the judgment of the Corps of Engineers in upholding the agency’s "wildly implausible conclusion that a storm drain is a tributary of the waters of the United States." "It goes without saying," Thomas added, "that there is much more at stake here than storm drains." Thomas likewise disagreed with the plurality’s holding that even if the government had charged Hamdan with a crime that was clearly cognizable by military commission, the commission would still lack power to proceed because it does not comply with the terms of the UCMJ and the four Geneva Conventions signed in 1949. He again emphasized that the jurisdiction of military commissions is not prescribed by statute but is rather "adapted in each instance to the need that called it forth." Thomas argued that the Court’s conclusion that Article 36 of the UCMJ amounts to an attempt by Congress to curb the Executive’s power is "contrary to the text and structure of the UCMJ" and also inconsistent with prior decisions of the Court. Addressing Hamdan’s claims under the Geneva Convention, Thomas argued that these are foreclosed by the Court’s holding in Johnson v. Eisentrager, where the majority noted that the respondents could not assert "that anything in the Geneva Convention makes them immune from prosecution or punishment for war crimes." Further, even if Hamdan’s claim under Common Article 3 was not foreclosed by Eisentrager, it is nevertheless meritless insofar as the President has accepted the determination of the Department of Justice that Common Article 3 of Geneva does not extend to al Qaeda detainees. Thomas asserted that the Court’s duty in this instance to "defer to the President’s understanding of the provision at issue" is made even more acute by the fact that he is acting pursuant to his authority as Commander-in-Chief.

Justice Alito's Dissent In a seven page dissent, Alito sided with Thomas and Scalia's explanation of why they believe the courts had no jurisdiction for this case. He explained why he believed the military commission in this case was legal. Alito disagreed with the holding of the Court which found that military commissions did not meet the definition of "a regularly constituted court" as required in Common Article 3 of the Geneva Conventions. Alito argued that Common Article 3 was satisfied in Hamdan because the military commissions: 1. qualify as courts, 2. were appointed and established in accordance with domestic law, and 3. any procedural improprieties that might occur in particular cases can be reviewed in those cases. Alito specifically disagreed with the opinions supporting the judgment which held that the military commission before which Hamdan would be tried is not "a regularly constituted court," and that the military commission is "illegal," because the commission's procedures allegedly would not comply with 10 U.S.C. § 836. Alito wrote that the military commission was "regularly" or "properly" constituted, using the example of the various types of local, state, federal and international courts and how "although these courts are 'differently constituted' and differ substantially in many other respects, they are all 'regularly constituted.'"

Page 8 of 11

Alito stated that Geneva Convention Common Article 3 does not specifically rule out military commissions, and further points to the commentary in Article 66, which was the article the Court used in support of its opinion. Alito argued that even if Common Article 3 recognizes a prohibition on "special tribunals," which Article 66 does prohibit, such a prohibition is not applicable to Hamdan's tribunal because the military commissions were "regular." Further, because the Bush Administration might conduct the hundreds of such tribunals according to the same procedures, Alito concluded that "it seems that petitionerâ&#x20AC;&#x2122;s tribunal, like the hundreds of others respondents propose to conduct, is very much regular and not at all special." Alito wrote that "the commissions were appointed, set up, and established pursuant to an order of the President, just like the commission in Ex parte Quirin, 317 U. S. 1 (1942), and the Court acknowledges that Quirin recognized that the statutory predecessor of 10 U.S.C. Â§ 821 'preserved' the Presidentâ&#x20AC;&#x2122;s power 'to convene military commissions.'" Alito disagreed with Kennedy's assertion that "an acceptable degree of independence from the Executive is necessary to render a commission 'regularly constituted' by the standards of our Nation's system of justice," arguing that Kennedy "offers no support for this proposition (which in any event seems to be more about fairness or integrity than regularity)," and further arguing that the commission in Quirin was no different from the present case. Finally, Alito wrote that the commission procedures as a whole do not provide a basis for deeming the commissions to be illegitimate. He points to two procedural rules, which the Court found fault with: First, the rule "allowing the Secretary of Defense to change the governing rules 'from time to time';" and second, the rule that "permits the admission of any evidence that would have 'probative value to a reasonable person'". Alito asserts these rules cannot make the commissions illegitimate. On the first rule Alito argued that not all changes during the course of a trial prejudice the defendant, and that some may even help the defendant. In addition, "If a change is made and applied during the course of an ongoing proceeding and if the accused is found guilty, the validity of that procedure can be considered in the review proceeding for that case." On the second rule, Alito argued that this rule does not violate the international standard incorporated into Common Article 3, because "rules of evidence differ from country to country" and "much of the world does not follow aspects of our evidence rules, such as the general prohibition against the admission of hearsay."

Reaction to the Decision The impact of the decision on the petitioner (Hamdan) was that he can still be tried; however, his trial must be in a court, such as a military court-martial, or possibly a commission that has courtlike protections. Shortly thereafter, the Military Commissions Act of 2006 may have raised again the issue of which court would hear cases such as Hamdan's. The U.S. Department of Justice has filed notice with several federal judges, and given notice to hundreds of detainees, that the habeas petitions

Page 9 of 11

of alien unlawful enemy combatants (or those whose status is to be determined) are not within the jurisdiction of those courts. The passage and signing of the Act follows through on President Bush's expressed intention to get explicit Congressional authorization to use military tribunals. Press Secretary Tony Snow echoed the plan to appeal to Congress. However, even among Senate Republicans, there were conflicting views. Senators Arlen Specter and Lindsey Graham (the latter a former military prosecutor) indicated Congress would work quickly to authorize tribunals, while influential Senator John Warner suggested a cautious and deliberative response. The potential for Congressional action also provided an avenue for politicking, as Republicans threatened Democratic members of Congress with being labeled weak on terrorism if they did not authorize tribunals. On July 7, 2006 the Secretary of Defense issued a memo "Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense". This may be the basis of a July 11, 2006, statement by the Bush administration that all detainees at Guantanamo Bay and in U.S. military custody everywhere are entitled to humane treatment under the Geneva Conventions. This declaration appears not to cover CIA detainees and is ambiguous with respect to the interpretation of Common Article 3 and the definition of "humane treatment". There were some indications that the other detainees being held at facilities throughout the world (e.g. Bagram Air Base and black sites), might use the Supreme Court's ruling to challenge their treatment. Their reasoning may be that since the Geneva Conventions afforded protection to Hamdan, its other protections might be effective for them as well. Commentators expressed mixed opinions about the strength of this argument.

Implications for Theories of Executive Power The decision may have important implications for other disputes relating to the extent of executive power and the unitary executive theory. In particular, it may undermine the Bush administration's legal arguments for domestic wiretapping by the National Security Agency without warrants as required by the Foreign Intelligence Surveillance Act.

Charges Dismissed/ New Charges On June 5, 2007, Hamdan and Canadian youth Omar Khadr, had all charges against them dismissed. The judges presiding over their military commissions ruled that the Military Commissions Act did not give them the jurisdiction to try Hamdan and Khadr, because it only authorized the trial of "unlawful enemy combatants". Hamdan and Khadr's Combatant Status Review Tribunals, like those of all the other Guantanamo captives, had confirmed them as "enemy combatants". In December 2007, a tribunal determined that Hamdan was an "unlawful enemy combatant." In August 2008 he was convicted by the military commission of the lesser of two charges and Page 10 of 11

received a sentence of 66 months, reduced by time served to five and a half months. In November 2008, the US transferred him to Yemen, where he served his last month. After release, he joined his family in Sana. In October 2012, the US Appeals Court for the District of Columbia, overturned Hamdan's conviction, acquitting him of the charge.

http://en.wikipedia.org/wiki/Hamdan_v._Rumsfeld

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Fordham Law Review Volume 36 | Issue 2

Article 1

1967

The Effect of Recent Supreme Court Decisions on Military Law Myron L. Birnbaum

Recommended Citation Myron L. Birnbaum, The Effect of Recent Supreme Court Decisions on Military Law, 36 Fordham L. Rev. 153 (1967). Available at: http://ir.lawnet.fordham.edu/flr/vol36/iss2/1

This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized administrator of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact tmelnick@law.fordham.edu.

THE EFFECT OF RECENT SUPREME COURT DECISIONS ON MILITARY LAW MYRON L. BIRNBAUM* I.

INTRODUCTION

cases of the United States Supreme Court in the field of LANDMARK criminal law during the past several years have had far-reaching effects upon prosecutions in state and federal courts. The impact of these decisions upon practice in the civilian courts has been thoroughly recognized and the subject for much analysis and discussion. There remains, however, another very active jurisdiction which falls outside the scope usually thought of as affected by these decisions, but which has been similarly influenced. This jurisdiction, of course, is the military services' court-martial operation. Exercising jurisdiction over some three million persons, mostly young men, the services during calendar year 1966 (the last period for which final reports have been rendered) tried 69,174 cases.' Of these, the great majority were either summary courts-martial2 or those special and general courts-martial in which the sentence did not include a punitive discharge.2 However, there were almost 4,000 cases requiring review by a board of review, in most cases, because the sentence included a punitive discharge or confinement at hard labor for a year or more.' With so large a military community, mostly short-tenure rather than "career" and drawn from all parts of the general population, and with such an active docket of both "military" and "non-military" cases, courtsmartial are of wide interest. Scarcely a household in the country does not have a close connection with someone in the services; any conviction, * Colonel, Judge Advocate General's Department, United States Air Force; member of the California Bar. Colonel Birnbaum's opinions, as expressed in this article, are his own and do not necessarily reflect the views of the Judge Advocate General's Department of the Air Force. 1. Ann. Rep. of the United States Court of Military Appeals and the Judge Advocates General of the Armed Forces and the General Counsel of the Department of the Treasury (1966). 2. Increase in the range of punishments available to a commander for disciplinary purposes without resorting to court-martial, provided by amendment in 1962 of Article 15, Uniform Code of Military Justice [hereinafter cited as UCMJ, art. -1, 10 US.C. § 815 (1964), has resulted in reduction of the use of summary courts-martial from some 63,000 in 1963 to fewer than 30,000 in 1966. This trend is being actively promoted by the military services as a means to eliminate records of court convictions for minor misconduct, and the aggregate figures for 1967 should reflect a further reduction. 3. See Section H1 pp. 156-57 infra. 4. UCMJ, arts. 66 (a) & (b), 10 US.C. §§ 866(a) & (b) (1964).

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whether or not deserved, may trigger interest not only in the immediate family but throughout ever-widening segments of the community. In this setting, the effect of the Supreme Court's decisions on military practice is of more than parochial interest. This effect is less direct than that which operates in the civilian sphere. Although courts-martial act under the authority of the United States, each Supreme Court decision of general application which does not directly address itself to courts-martial must be examined carefully to determine its effect on military trials. The answer to this is determined primarily outside the federal court system. Courts-martial derive their jurisdiction not from Article II of the Constitution, which provides for the Federal Judiciary, but from the power of Congress to "make Rules for the Government and Regulation of the land and naval Forces."' Accordingly, the ordinary federal appellate courts have sharply limited their cognizance of court-martial matters and, when they have acted, have done so principally in habeas corpus actions. In Grafton v. United States,' the Supreme Court limited the "civil tribunals" to the question of "whether the military court had jurisdiction of the person and subject matter, and whether, though having such jurisdiction, it had exceeded its powers in the sentence pronounced."' This limited scope was somewhat extended in Burns v. Wilson8 to encompass determination of whether the accused has received due process, and so rests the state of the jurisdiction of the federal courts in this area at present.9 In consequence, the application to courts-martial of new developments in criminal law, whether dependent upon the Constitution or otherwise, is generally decided within the military appellate system. As will be seen, the definitive decision rests with the Court of Military Appeals. Some of the recent pronouncements of the Supreme Court which may affect military law have already been touched upon by this highest military court. Others await the presentation of cases which will so frame the issue as to call for a ruling. Some of the recent Supreme Court decisions, such as those dealing with civil rights' Â° and contempt" are not likely to find counterparts in 5. U.S. Const. art. I, Â§ 8. 6. 206 U.S. 333 (1907). See also Hiatt v. Brown, 339 U.S. 103, 110 (1950). 7. 206 U.S. at 347-48, quoting from Carter v. Roberts, 177 U.S. 496, 498 (1900). 8. 346 U.S. 137, 142 (1953). 9. See McCurdy v. Zuckert, 359 F.2d 491 (5th Cir.), cert. denied, 385 U.S. 903 (1966); Swisher v. United States, 354 F.2d 472 (8th Cir. 1966); Gibbs v. Blackwell, 354 F.2d 469 (5th Cir. 1965) ; Fischer v. Ruffner, 277 F.2d 756 (5th Cir. 1960). 10. E.g., Georgia v. Rachel, 384 U.S. 780 (1966); Brown v. Louisiana, 383 U.S. 131 (1966); Shuttlesworth v. Birmingham, 382 U.S. 87 (1965). 11. E.g., Cheff v. Schnackenberg, 384 U.S. 373 (1966) ; Harris v. United States, 382 U.S. 162 (1965).

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1967]

court-martial practice. This article, after a brief examination of the military justice system itself and some recent procedural developments, will deal with those doctrinal developments which have particular impact on military trials-the right to counsel at pretrial interrogations, bloodalcohol tests, handwriting exemplars and voice identification, and the search for "evidence." II. THE COURT-MARTIAL SYSTEM At present, the military justice system is governed by the Uniform Code of Military Justice, a revision of the pre-existing separate Army and Navy enactments, which was adopted in 1950 and became effective on May 3 1, 1951. It was later codified as sections 801 through 940 of Title 10 of the United States Code, and has been amended in a few details which have not altered the overall scheme. There are three classes of courts-martial-summary, special and general. All are appointed by a commander who is not the accuser. The appointing authority is generally a commander, one or several echelons higher than the unit to which the accused is assigned. In every case the findings and sentence are effective only as approved by the appointing authority or a prescribed substitute reviewing authority, and may be disapproved or reduced. Reduction in both findings and sentence is common at this level and at higher levels of review. Summary courts-martial consist of a single officer," without provision for defense counsel or prosecutor. During recent years, however, the services have increasingly permitted or provided counsel on request. The punitive power of the court is generally limited to one month's confinement, forfeiture of two-thirds of a month's pay and limited reductions in grade.1 4 It may not try commissioned or warrant officers. The record is limited to docket-type entries, except that the services and their subordinate headquarters have increasingly required a summary of the proceedings and of the evidence. It is finally reviewed by the staff judge advocate of the officer exercising general court-martial jurisdiction, except where departmental regulations place the review at a higher level.'5 12. The Army had convened courts-martial under successive revisions of the Articles of War, the Navy under the Articles for the Government of the Navy. The Air Force, separated from the Army in 1947, operated under the Articles of War until the adoption of the UCMJ. The Coast Guard now is included under the UCMJ but, because of the small number of cases which it generates, will not be dealt with separately in this article. 13. UCMJ, art. 16(3), 10 US.C. ยง 816(3) (1964). 14. UCMJ, art. 20, 10 U.S.C. ยง 820 (1964); Manual for Courts-Martial U 16(b) (1951) [hereinafter cited as Manual).

15. Manual, fff 91, 94a(2).

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members.' 0

These are Special courts-martial consist of three or more commissioned or warrant officers, except that if an enlisted accused requests that enlisted persons be included, at least one-third of the members must be enlisted persons.'" Trial counsel (i.e., a prosecutor) and defense counsel are required.' These need not be lawyers, but if the trial counsel is a lawyer who is certified as qualified to act as counsel in a general courtmartial, the defense counsel must be similarly qualified.'0 Sentences are limited by the provisions of the Table of Maximum Punishments prescribed by the President in the Manual for Courts-Martial, 0 but in no case may they exceed a bad conduct discharge, confinement at hard labor for six months, forfeiture of two-thirds pay for six months and reduction in grade.2 ' A complete record is kept-in summarized form if the sentence does not include a bad conduct discharge, but verbatim if such a discharge is included. 2 If no bad conduct discharge is included, the final review is generally at the general court-martial level. Cases in which a bad conduct discharge is approved by the appointing authority are reviewed by a board of review under Article 66,23 the same as a general court-martial. General courts-martial consist of five or more members, with enlisted membership only at accused's request, as discussed above.2 4 A law officer serves in a capacity closely corresponding to a civilian judge, except that he does not rule on challenges, does not finally rule on motions for findings of not guilty, does not determine sentence, and lacks certain collateral responsibilities and powers of his civilian counterpart. He must be a lawyer, specifically certified by his respective Judge Advocate General as 16. UCMJ, art. 16(2), 10 U.S.C. § 816(2) (1964). 17. UCMJ, art. 25(c)(1), 10 U.S.C. § 825(c)(1) (1964). Experience quickly proved that enlisted members of courts-martial are generally less forgiving and less lenient as court members than are officers. As a result, requests for enlisted persons as members are generally limited to those cases in which accused and counsel believe that particular aspects of defense or mitigation will be peculiarly understandable by them. 18. UCMJ, art. 27, 10 U.S.C. § 827 (1964). 19. UCMJ, art. 27(c), 10 U.S.C. § 827(c) (1964). In the Air Force, trial and defense counsel of virtually all special courts-martial are lawyers. In the Navy, lawyers act In fewer than fifty per cent of the cases; in the Army and the Marine Corps, fewer than ten per cent. 20. Manual, f[ 127c; this is expressly provided for in UCMJ, art. 56, 10 U.S.C. § 856 (1964). 21. UCMJ, art. 19, 10 U.S.C. § 819 (1964). 22. Since the Army does not permit court reporters to be used in special courts-martial, no Army court at this level may impose a bad conduct discharge. The other services do employ reporters in special courts-martial and do impose bad conduct discharges at this level. 23. UCMJ, art. 66, 18 U.S.C. § 866 (1964). 24. UCMJ, arts. 16(1), 25(c)(1), 10 U.S.C. §§ 816(1), 825(c)(1) (1964).

1967]

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qualified to perform this function.' 5 Trial and defense counsel must be lawyers, certified as qualified for that duty.26 The court may impose any punishment or combination permitted by the Uniform Code and by the limitations provided by the President. A verbatim record is maintained.' All general court-martial records are forwarded to the respective Judge Advocate General. Those in which the approved sentence "affects a general or flag officer or extends to death, dismissal of a commissioned officer, cadet, or midshipman, dishonorable or bad-conduct discharge, or confinement for one year or more" 28 are reviewed by a board of review under Article 66.29 Other general court-martial cases are examined in the office of The Judge Advocate General and, if error is found, are referred to a board of review. The boards of review in each service constitute an intermediate appellate tribunal and have broad responsibilities and powers, including the review of matters of fact as well as law, and the affirmance of no more of the approved sentence than they find appropriate. They must, in consequence, deal with all of the issues in each case before it reaches the Court of Military Appeals." The United States and the accused are represented before the boards by judge advocates in the office of the respective Judge Advocate General and the accused may introduce individual counsel as well." Selected decisions of the boards of review are published in the Court-Martial Reports, establishing a body of case law for use as precedent in the services, under the doctrine of stare decisis. The key tribunal in fashioning military law is, however, the Court of Military Appeals. Cases move from the boards of review to this court (1) mandatorily, when a general or flag officer or an affirmed death sentence is involved; (2) on petition of the accused, granted by the court; or (3) on certification by The Judge Advocate General concerned. 2 The certification device may be employed to question a decision of the board of review favoring either the Government or the accused. Of the 19,749 cases considered by the court through June 1966, over 98 per cent came 25. UCMJ, art. 26, 10 U.S.C. § 826 (1964). In the Army and Navy, officers are appointed to this work as a full-time duty. 26. UCMJ, art. 27(b), 10 U.S.C. § 827(b) (1964). 27.

Manual,

U 82b;

UCMI, art. 39, 10 U.S.C. § 839 (1964).

28. UCMJ, art. 66(b), 10 US.C. § 866(b) (1964). 29. UCMJ,art. 66, 10 U.S.C. § 866 (1964). 30. But see United States v. Culp, 14 US.C.M.A. 199, 33 C.M.R. 411 (1963). Judge Kilday observed that it would be preferable for boards of review, when possible, to avoid decision on constitutional questions. Id. at 201, 33 C.M.R. at 413. 31. UCMJ, art. 70, 10 U.S.C. § 870 (1964). 32. UCMJ, art. 67(b), 10 U.S.C. § 867(b) (1964).

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forward on petition. The court has been quick to shoulder its responsibilities as the highest military court and to rule on the fundamental questions which have been considered by the boards of review. Much as the Supreme Court in time passes upon the varying positions which the several circuit courts take on important matters, the Court of Military Appeals ultimately rules on all basic matters and it is to this court that we must look for the final answer on military law. The foregoing outline of the military justice system has omitted many details, notably the requirement for pretrial investigation8" and staff judge advocate's advice34 before trial of general court-martial cases and for a staff judge advocate's review before final approval at the appointing level of general court-martial sentence and of special court-martial sentences which included a bad conduct discharge 6 However, this brief summary should set the stage for considerations of the new developments in the military justice field. III. MirandaAND THE RIGHT TO COUNSEL The most noteworthy area for consideration is that centering about Miranda v. Arizona.86 Since 1951, under the Uniform Code of Military Justice, appointment of defense counsel to special and general courtsmartial has been an indispensable element of jurisdiction.8 7 However, under military practice, counsel was generally appointed only when the charges were referred to trial, so that the question of entitlement to counsel (as a matter of right) at earlier stages of the case remained in question. The key case on this question during the 1950's was United States v. Gunnels.3" There, the accused officer had been suspected of a complicated course of misconduct and had been interviewed by agents of the Office of Special Investigations [hereinafter referred to as OSI]. He told one of the agents that he desired to make no statement until "he had an opportunity to consult with counsel." 3 ' The accused went to the office of the base staff UCMJ,art. 32, 10 U.S.C. § 832 (1964). UCMJ, art. 34, 10 U.S.C. § 834 (1964). 35. UCMJ, arts. 61, 65(b), 10 U.S.C. §§ 861, 865(b) (1964). 33.

34. 36.

384 U.S. 436 (1966).

37. UCMJ, art. 27(a), 10 U.S.C. § 827(a) (1964); see United States v. Hutchison, I U.S.C.M.A. 291, 3 C.M.R. 25 (1952). The Articles of War applicable to the Army and the Air Force had had a similar requirement since 1920. Earlier, the accused was entitled to counsel upon request. For the still earlier practice in this regard in Army courts-martial, see W. Winthrop, Military Law and Precedent 166-67 (2d ed. rev. 1920). In the Naval service the accused before 1951 was entitled to counsel upon request only. See Naval Courts and Boards § 357 (1937). The entitlement was provided for administratively, rather than by statute. 38.

38a.

8 U.S.C.M.A. 130, 23 C.M.R. 354 (1957).

Id. at 132, 23 C.M.R. at 356.

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judge advocate for assistance. That officer, however, had advised his subordinates that charges against Gunnels were being drafted, that he had not decided what personnel assignments he would make in the case and that for the time being no one was to give legal advice to, or consult with the accused. As a result, when the accused approached an assistant staff judge advocate who had represented him in an earlier phase of the affair, he declined to give any advice. Returning to the OSI office, the accused refused to answer some questions but did answer others. Certain answers, constituting a denial of receipt of money from an airman to assist in getting an honorable discharge for him, were charged as a false official statement. In reversing the conviction for this offense, although sustaining as to others not affected, the Court of Military Appeals condemned the practice of telling military accused that he cannot consult with counsel in connection with an interrogation by enforcement agents, as well as the staff judge advocate's order to his assistants not to advise the accused if he sought their counsel. Two key observations of the court set the rule for military practice during the decade which followed and afforded a forecast of changes to come: A suspect has no right to the appointment of military counsel, but he most assuredly has a right to consult with a lawyer of his own choice or with the Staff Judge Advocate.39

It seems to us to be a relatively simple matter to advise an uninformed and unknowing accused that, while he has no right to appointed military counsel, he does have a right to obtain legal advice and a right to have counsel present with him during an interrogationby a law enforcement agent.40

The modification in Gunnels of the previous military understanding of the right to counsel formed the basis for the activities of military enforcement agents during the years that followed, and few cases were reversed for violation. In United States v. Wheaton, 1 an air police sergeant who first questioned the accused told him that he was not entitled to have counsel. The accused did not make a statement then but did so later when questioned by the OS1. When this statement was offered in evidence, the accused testified that he had not asked the 0SI for counsel because of earlier misadvice by the sergeant. The statement was admitted over objection. The accused's conviction was reversed by the Air Force board of review, and The Judge Advocate General certified this decision to the Court of Military Appeals. That court sustained the board, relying on Gunnels.' 39. 40. 41. 42.

Id. at 134, 23 C.M.R. at 358. Id. at 135, 23 C.M.R. at 359 (emphasis added). 9 U.S.C.A. 257, 26 C.M.R. 37 (1958). Id. at 259, 26 C.M.R. at 39.

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In 1966, after the Supreme Court's decision in Escobedo v. Illinois,8 the Court of Military Appeals considered the case of United States v. Wimberley,44 in which an incriminating statement made to an Army CID agent had been admitted in evidence. The accused admitted that he had been given the advice required by Article 31 of the Code.45 The conviction was attacked under Escobedo on the ground that he had been denied his right to counsel, although there was no showing that he had asked questions regarding counsel or that he had been given any advice regarding his right to counsel, erroneous or not.4" The court observed that the Escobedo decision had received varying interpretation by different state and federal courts47 and adhered to its previous view that an accused in an interrogation "is not denied the assistance of counsel, unless he requests and is refused the right to consult counsel during the interrogation, or is misinformed as to his right to counsel."4 The Miranda decision was handed down by the Supreme Court some four months later. Within days the military departments advised their law enforcement personnel of the decision and issued instructions calculated to require compliance with the Miranda rules where applicable. In the Air Force, this required full compliance with Miranda in every case where advice under Article 31 (b) 4" was required. There was, however, some disagreement among the services as to whether this broad an edict was necessary since this would require the full advice in many circumstances in which the accused was not in custody, whereas Miranda had limited its requirements to custodial interrogation."0 The months that followed were marked by interest in the military legal community over the position which the Court of Military Appeals would take upon the applicability of Miranda, in view of the express language of Wimberley. In several cases the court touched upon Miranda without 43. 44.

378 U.S. 478 (1964). 16 U.S.C.MvI.A. 3, 36 C.M.R. 159 (1966).

45.

UCMJ, art. 31(b),

10 U.S.C ยง 831(b)

(1964),

requires that persons accused or

suspected shall be advised before interrogation "of the nature of the accusation and . . . that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him In a trial by court-martial." 46. 16 U.S.C.M.A. at 8-9, 36 C.M.R. at 164-65. 47. Id. at 10, 36 C.M.R. at 166, citing United States v. New Jersey, 351 F.2d 429, 436 (3d Cir. 1965), vacated per curiam, 384 U.S. 889 (1966) ; United States v. Childress, 347 F.2d 448 (7th Cir. 1965), cert. denied, 384 U.S. 1012 (1966) ; Jackson v. United States, 337 F.2d 136 (D.C. Cir. 1964), cert. denied, 380 U.S. 935 (1965). 48. 16 U.S.C.M.A. at 10, 36 C.M.R. at 166.

49. 50.

UCMJ, art. 31(b), 10 U.S.C. ยง 831(b) (1964). 384 U.S. at 478.

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enunciating its view of the effect of that decision on military law.al In United States v. Decker, 2 decided on November 18, 1966, the Chief Judge assumed without deciding that Miranda applied in the military, but held the rules of that decision to be inapplicable to the instant case, because it had been tried before June 13, 1966.1 At the time of the Decker decision, an Air Force board of review had just sustained the conviction of Airman Third Class Michael L. Tempia," and The Judge Advocate General certified the case to the court in the interest of presenting a clear case, tried after June 13, 1966, on which the court could base a statement of the post-Mirandamilitary rule. The Tempia trial had taken place on June 14, 1966, the day after the Supreme Court handed down Miranda. Two young judge advocates represented the government and the accused. Working from the account of the decision which had been published in the New York Times, they litigated the question of the accused's entitlement to the Miranda advice with remarkable skill. Airman Tempia had been treated quite as Gunnels prescribed. Before interrogation he had been given the advice required by Article 31 (b)" and, in addition, had been told that he could consult counsel. He was permitted to leave to obtain counsel. Recalled to the OSI office two days later, he had not yet consulted an attorney. Arrangements were made for him to see the Staff Judge Advocate. That officer did not enter into an attorney-client relationship with him or make an assistant available for such purpose, but gave him detailed instructions as to his rights. He explained in detail each facet of Article 31 and (according to his trial testimony) told the accused that he "didn't have to claim it would incriminate him at all; all he had to do the minute they told him they suspected him of an offense was to say he wished to remain silent and that's all."",, When returned once again to the OSI office, the accused was again advised of his rights under Article 31 (b). However, no one ever told him that counsel would be provided for him or that he was entitled to have counsel present at the interrogation. Within an hour of his return to the OSI office he began to dictate his incriminating statement, and had signed it within four hours of the time the Staff Judge Advocate had explained his rights. 51. See United States v. Schlomann, 16 U.S.C.M.fA. 414, 37 C.M.R. 34 (1966); United States v. Dickson, 16 U.S.C.M.A. 392, 37 C.M.R. 12 (1966). 52. 16 U.S.C.M.A. 397,37 C.M.R. 17 (1966). 53. The court based its decision on Johnson v. New Jersey, 384 US. 719 (1966), in which the Supreme Court held Miranda inapplicable to trials commenced before June 13, 1966. 54. ACM 19638, Tempia, 37 C.M.R. (Nov. 1, 1966). 55. UCMJ, art. 31(b), 10 U.S.C. ยง 831(b) (1964). 55a. ACM 19638, Tempia, 37 C.M.R. at (Manuscript opinion at 4).

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At trial, the defense took the position that the accused's confession was not admissible under Miranda; the prosecution rested on Wimberley, thoroughly exploring the apparent disagreement between the Court of Military Appeals and the later Supreme Court delineation of the right to counsel. The law officer admitted the document into evidence and the accused was convicted. The board of review affirmed the conviction, observing that there was no claim of a violation of Escobedo or Gunnels and that the only possible claim of prejudice must be based upon Miranda. Recognizing that the advice the accused had received exceeded what Wimberley required, the board proceeded to consider the sufficiency of his treatment tested under Miranda. Looking to the Supreme Court's observation, preliminary to the express rules in Mirandathat "unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required,"" the board concluded that the repeated advice under Article 31 (b), the repeated opportunities to seek legal counsel, and the consultation with the Staff Judge Advocate had served to provide the accused with the necessary understanding of his rights. Before the Court of Military Appeals on certification, the case was argued for the Government on the grounds that (1) the Miranda rules did not apply to courts-martial; (2) the OSI questioning had not been a "custodial interrogation"; (3) the advice actually given had, in any event, met the Miranda requirements; and (4) the accused had knowingly and intelligently waived his rights. In addition, The Judge Advocate General of the Navy, appearing as amicus curiae, argued that constitutional limitations do not affect courts-martial57

The Court of Military Appeals reversed. Judge Ferguson's principal opinion begins with the observation that, as to cases tried on and after June 13, 1966, the doctrine of Wimberley had "largely been set at naught.""8 Reviewing civilian and military precedents dealing with the relationship of the civilian courts and of constitutional guarantees to courtmartial practice, the decision quickly rejects both the Navy argument and the Government's contention that the Supreme Court does not exercise supervisory authority over courts-martial. Instead, it holds that Miranda applies completely in military courts." The decision next turns to the question of custody, for the accused was not under arrest or apprehension in the civilian sense of these terms when he made his confession. Judge Ferguson observes that the question is not 56. 57. 58. 59.

384 U.S. at 444. United States v. Tempia, 16 U.S.C.M.A. 629, 633, 37 C.M.R. 249, 253 (1966). Id. at 631, 37 C.M.R. at 251. Id. at 635, 37 C.M.R. at 255.

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whether the accused is "technically" in custody, but whether he has "otherwise been deprived of his freedom of action in any significant way.")60 Noting that the accused had been summoned for the interrogation and might have been punishable under the Code for a failure to repair (i.e., report for duty) if he did not comply, the decision observes: In the military,... a suspect may be required to report and submit to questioning

quite without regard to warrants or other legal process. It ignores the realities of that situation to say that one ordered to appear for interrogation has not been significantly deprived of his freedom of action. 61 It holds that there was in fact "custodial interrogation." Proceeding to the remaining Government arguments, the decision holds that the Staff Judge Advocate's statement to the accused that counsel would not be appointed for him violated the Miranda requirement for advice to the opposite effect and, finally, that the evidence did not support the contention that the accused had knowingly and intelligently waived his right to counsel.2 Before a few additional comments on the principal opinion, it should be noted that Judge Kilday concurred in a separate opinion, setting forth additional support for the view that the decision of the Supreme Court is controlling on military law in this area.' Chief Judge Quinn dissented. His opinion at the outset suggests that "[a] good case can be made to show that Miranda v. Arizona ... was not intended by the Supreme Court to apply to the military legal system.16 4 He points out the high regard which

the principal opinion in Miranda expressed for the military safeguards under Article 3 15 and concludes that "this esteem for the military practice" 6 demonstrates the Supreme Court's satisfaction with the military procedures. However, he passes this point to conclude that the military practice, both generally and in the particular case, met the requirements of Miranda.6 7 In the principal opinion, Judge Ferguson deals seriatim with the points made by the Chief Judge in his dissent. He sums up his conclusion that the Chief Judge errs in concluding that previous military procedures were the equal of those required by Mirandawith the following: 60.

Id. at 636, 37 C.M.R. at 256, quoting from Miranda v. Arizona, 384 US. 436,

444 (1966). 61. 62. 63. 64.

16 US.C.M.A. at 636, 37 C.M.R. at 256. Id. at 637, 37 CM.R. at 257. Id. at 640, 37 C.M.R. at 260. Id. at 643, 37 C.M.R. at 263.

65.

384 U.S. at 489.

66. 67.

16 U.S.C-MA. at 643, 37 C.M.R. at 263. Id. at 644, 37 C.M.R. at 264.

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Now, the accused must have a lawyer; before, he need not have been given one; now, he must be warned of his right to counsel; before, he need not be so warned; and now, finally, he will receive effective legal advice not only as to what he can do, but also as to what he should do.68 This apparently unexceptional language conceals a possible source of future difficulties which remains unresolved at this writing. Under the Code, the accused is entitled to counsel before special and general courtsmartial. Counsel before a general court-martial must always be a lawyer," 9 but a lawyer must be appointed for the accused in a special court-martial only if a lawyer is appointed to prosecute. 7' The legality of this limited right to representation by a member of the bar before a special courtmartial has been repeatedly confirmed. 7 ' In the Air Force, distribution of judge advocates (i.e., attorneys) is such that only the rarest of special court-martial cases is defended by a non-lawyer, but in the Navy a large proportion of these cases are so defended, and in the Army and in the Marine Corps defense by a lawyer is the exception. 72 The large number of cases defended by non-lawyers is not so much a result of reluctance to make lawyers available as it is a reflection of the limited number of attorneys available, particularly in the Marine Corps, and of the necessity to try special courts-martial on shipboard and at other places where the small complement of personnel cannot reasonably include a legal staff. To return to the last quotation from Judge Ferguson's opinion, does the use of the term "lawyer" indicate that an accused, whose case will eventually be tried by a special court-martial, before which his counsel will not necessarily be a lawyer, will be entitled to legally qualified counsel at any pretrial interrogation as a prerequisite to use of his statement at trial? And-if so-what of the attorney-client relationship thus established? Will the Government, having once made a lawyer available to the accused for purposes of the interrogation, then be permitted to withdraw that assistance and make only a non-lawyer available as defense counsel at the trial itself? It may be argued that the Miranda requirements may be met by giving an accused, prior to the interrogation, counsel of the type qualified 68. Id. at 640, 37 C.M.R. at 260. 69. UCMJ, art. 27(b), 10 U.S.C. ยง 827(b); United States v. Kraskouskas, 9 U.S.C.M.A. 607, 26 C.M.R. 387 (1958). 70. UCMJ, art. 27(c), 10 U.S.C. ยง 827(c) (1964); cf. UCMJ, art. 38(b), 10 U.S.C. ยง 838(b) (1964). 71. United States v. Culp, 14 U.S.C.M.A. 199, 33 C.M.R. 411 (1963); United States v. Cutting, 14 U.S.C.M.A. 347, 34 C.M.R. 127 (1964); Kennedy v. Commandant, 377 F.2d 339 (10th Cir. 1967). 72. Ann. Rep. of the United States Court of Military Appeals and the Judge Advocates General of the Armed Forces and the General Counsel of the Department of the Treasury 35 (1965).

MILITARY LAWr to defend him before the court-martial by which he is ultimately tried. Thus, an accused could be counseled at the interrogation by a non-lawyer so long as he was subsequently tried at a special court-martial with a nonlawyer prosecuting.73 However, there is no foundation for this suggestion anywhere in the cases, and the problem thus presented, primarily of concern to the Army, Navy and Marine Corps, remains unresolved. In the present state of the cases, it would appear that the accused is entitled to a lawyer, at any interrogation but not, in some cases, at the subsequent trial. Promulgation of the long-awaited Tempia decision did clear up a major area of uncertainty in the Armed Services, and judge advocates in the field were promptly notified that the military requirement for full compliance with Miranda had been confirmed. Several subsidiary questions remain, which must await presentation of the right cases for their resolution. Airman Tempia was ordered to report for interrogation and was given no option as to whether he would remain. Based on this, the court found custodial interrogation. What of an accused who is explictly told that he may leave whenever he likes-will he be entitled to so much of the Miranda advice as exceeds the requirements of Article 31(b)? What showing of indigency, if any, will a service member be required to make in order to be entitled to appointment of counsel at Government expense? In Tempia the thrust of the court's decision was that the accused was entitled to appointed counsel at the time of the interrogation, not merely at the time of reference to trial. The question of financial ability to retain civilian counsel was not mentioned at all. If there is a requirement to show indigency, how will this apply in areas, particularly overseas, where lawyers qualified in United States law are scarce or wholly unavailable? It appears unlikely that the Court of Military Appeals will make the right of a serviceman to appointed counsel, at the time of pretrial interrogation, conditional upon his showing of insufficient funds to retain a private attorney. The unsettled questions in this area leave uncertainty as to the steps which military agencies in the field must take in order to insure that the results of interrogations will be admissible in courts-martial. Understandably, both investigative agencies and legal personnel tend toward a conservative view in order to avoid the risk that statements of suspects will ultimately be held inadmissible. As a result, we cannot anticipate early presentation of cases which will yield all of the answers. Of interest is the question of the effect which application of the Miranda rules has had upon the outcome of interrogations. Of course, a substantial 73. This would also be so at a summary court-martial, where there is no statutory right to counsel, although defense counsel are frequently permitted to act for the accused at his request.

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number of cases which were in process when the rules were enunciated have been affected. Some convictions have been reversed since Tempia and doubtless some cases failed of prosecution because the accused's confession was essential to the prosecution's case and, though otherwise voluntary, did not meet the Miranda requirements. However, it does not appear that compliance with these requirements by the investigative agencies, once instituted, has resulted in any notable lessening of the percentage of statements obtained in the course of interrogation. No coordinated study has been made in this area, but personal contact with investigative personnel confirms that quite as many suspects are prepared to make a statement under the expanded warning as did under the brief requirement of Article 31. IV. Schmerber AND RELATED PROBLEMS A. Admissibility of Blood Tests Another 1966 decision of the Supreme Court has been of great interest to practitioners of military law. In Schmerber v. California,4 the Court held that it was not violative of the Constitution-particularly the fourth, fifth, sixth, or fourteenth amendments-for the prosecution in a drunkdriving case to use the results of a blood-alcohol test, where the blood was taken by a physician at the direction of a police officer and over the protestations of the suspect.7" This touches a field in which military law has not been fully resolved and raises the question of whether the Court of Military Appeals will be guided by the thinking of the Supreme Court. Intoxication frequently plays a part in military prosecutions, and easy availability of persuasive evidence of intoxication or sobriety can be of great practical value. The military law on the question of admissibility of blood-alcohol samples has been closely intertwined with the question of urine samples, as the Court of Military Appeals has treated the two as involving the same principles of law. In early decisions by the court it was held that evidence of chemical tests of urine samples (1) taken by catheterization of the accused while he was unconscious, 76 (2) taken by catheterization of 7a conscious accused with his consent but without Article 31 (b) warning, " and (3) given by the accused pursuant to an order from a superior officer but without warning 78 were admissible. The following year, however, the 74. 384 U.S. 757 (1966). 75. Id. at 772. 76. United States v. Williamson, 4 U.S.C.M.A. 320, 15 C.M.R. 320 (1954). 77. United States v. Booker, 4 U.S.C.M.A. 335, 15 C.M.R. 335 (1954). 78. United States v. Barnaby, 5 U.S.C.M.A. 63, 17 C.M.R. 63 (1954) ; United States v. Andrews, 5 U.S.C.M.A. 66, 17 C.M.R. 66 (1954).

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court held that a sample taken by catheterization over the accused's protest was inadmissible.7 9 In United States v. Jordan,"째 the court held that an order to give a urine sample was not lawful, so that the accused could not be convicted of disobedience for not complying. In its decision the court relied upon Rochin v. California,"'in which the Supreme Court had held inadmissible the evidence of stomach contents obtained by a brutal episode of stomach pumping on the grounds that it was violative of the fourteenth amendment as offending "a sense of justice."' The Court of Military Appeals referred to the dictum in the District of Columbia case of United States v. Nesmith,' in which Judge Holtzoff, although holding that in that case the Rochin decision was not controlling, said it would have required reversal had the defendant been compelled to supply the urine specimen or if an instrument had been used to obtain it by force. The first case dealing with a blood-alcohol test was United States v. McCann,", decided in 1958. The majority of the court reversed on other grounds, but Judge Latimer, dissenting, expressed the opinion that evidence of a blood sample, taken in a proper manner pursuant to an order, was admissible. 5 A short time later, in United States v. Miusguire,0 the majority (Latimer dissenting) held that an order to give blood sample was illegal and that the accused could not be convicted of violation, on the grounds that the sample was a "statement" under Article 31 (which the accused could not be required to give) and, in addition, that giving the sample was not a military duty. 7 Still later in the same year, the court held that a urine sample produced by an accused pursuant to an order was not admissible, thus making it clear that the earlier Barnaby decision was overruled.88 Several years then passed without any decisions on blood or urine samples. In 1961, Chief Judge Quinn ruled that a blood sample obtained for clinical, as distinguished from investigative, purposes was admissible. He declined to decide whether a blood sample obtained pursuant to an order was admissible, citing Forslund,and held that in the case at issue the 79. United States v. Jones, 5 U.S.CM.A. 537, 1 C.M.R. 161 (1955), distinguishing United States v. Barnaby, 5 U.S.CM.A. 63, 17 CI..R. 63 (1954). 80. 7 U.S.C.MA. 452, 22 C.M.R. 242 (1957). This case apparently overruled United States v. Barnaby, 5 U.S.C1.A. 63, 17 C.M.R. 63 (1954). 81.

342 US. 165 (1952).

82.

Id. at 173.

83. 84.

121 F. Supp. 758 (D.D.C. 1954). 8 U.S.CNLA. 675, 25 C.M.R. 179 (1958).

85.

Id. at 680, 25 CM.R. at 184.

86.

9 U.S.C.M.A. 67, 25 CI.MR. 329 (1958).

87. Id. at 69, 25 C.M.R. at 331. 88. United States v. Forslund, 10 U.S.C.M.A. 8, 27 C.M.R. 82 (1958).

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results of the blood test were admissible because the accused had consented to the taking of the sample.8" Finally, in 1965, in United States v. Miller,9 째 Chief Judge Quinn wrote for a unanimous court. The accused had been convicted of negligent homicide resulting from an auto accident. Evidence of the alcoholic content of a sample of blood taken from him while he was unconscious was admitted. Judge Quinn observed that later decisions had "narrowed Williamson" -the case first cited above-and that it was unnecessary to consider the "continued validity" of Breithaupt v. Abram,91 the Supreme Court decision which had held that admission of evidence of a blood sample taken from an unconscious individual did not deprive him of his constitutional rights. He concluded that in the case at bar the blood had been taken "solely for medical diagnosis."9 As the court had already determined that the result of a medical examination made by a doctor for the purpose of treatment is admissible without conflict with Article 31,93 he concluded that the admission in evidence of the blood-alcohol findings was a proper exercise of the law officer's discretion.9 4 This development from case to case all occurred before the Supreme Court's decision in Schmerber. There it was held that use in evidence of a blood sample taken over the defendant's objection did not violate his Constitutional rights.9 5 It may be anticipated that the Court of Military Appeals will find no constitutional error where the Supreme Court has found none, but this does not dispose of the question of whether evidence of involuntary blood-alcohol samples will be admissible. When the Court of Military Appeals held in Musguire that an order to give a blood sample for purposes of criminal investigation was unlawful, it was speaking in advance of the later Supreme Court decisions broadening the application of the fourth and fifth amendments.9 Without relying on constitutional concepts for the decision, Judge Quinn observed: "Article 31 is wider in scope than the Fifth Amendment."0 7 Accordingly, he held that the "statement"-which the accused cannot be compelled to 89.

United States v. Hill, 12 U.S.C.M.A. 9, 30 C.M.R. 9 (1960).

90.

15 U.S.C.M.A. 320, 35 C.M.R. 292 (1965).

91.

352 U.S. 432 (1957).

92.

15 U.S.CM.A. at 322, 35 C.M.R. at 294.

93.

United States v. Malumphy, 12 U.S.C.MA. 639, 31 C.M.R. 225, new trial denied,

13 U.S.C.M.A. 60, 32 C.M.R. 60 (1962); United States v. Baker, 11 U.S.C.M.A.

313, 29

C.M.R. 129 (1960). 94. 15 U.S.C.M.A. at 322, 35 C.M.R. at 294. 95. 384 U.S. at 772. 96. E.g., Malloy v. Hogan, 378 U.S. 1 (1964); Mapp v. Ohio, 367 U.S. 643 (1961). 97. 9 U.S.C.M.A. at 68, 25 C.M.R. at 330.

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give under Article 31 (a)-includes "both verbal utterances and actions." ' The order to take the action of giving the blood sample was thus within the proscription of the Article. The court's view of the breadth of the scope of Article 31 has apparently not changed with the Supreme Court's extension of the applicability of the fourth and fifth amendments, for within recent months, in another connection discussed below, Judge Quinn has again quoted the language from Musguire noted above. 9 It thus remains open to question whether the Court of Military Appeals will follow the lead of Schmerbcr, so as to allow the results of involuntary (and "unwarned") blood-alcohol samples to be received in evidence. The position which the court has taken leaves ample space for a decision that the forcible taking of blood for investigative purposes, although it does not violate any of the portions of the Constitution which might appear to be applicable, is yet violative of Article 3 1. This, of course, would lead to the conclusion that "incriminate himself," in the Article, is more encompassing than the term "be a witness against himself" in the fifth amendment. At this writing, no case which will test this concept is before the court nor, to the knowledge of the writer, is any on its way. However, the potential value of blood-alcohol tests in investigation and proof of court-martial offenses makes it virtually certain that efforts to use such evidence will eventually reach the court. Activities of military investigators are likely to raise the question of whether the court will apply Article 31 to bloodalcohol tests. Further, since foreign authorities which investigate many offenses involving servicemen are generally at liberty under their own law to take blood samples, the introduction in courts-martial of the evidence of samples taken by them may well resolve the question of whether the court will consider Rochin to be applicable to blood samples, entirely aside from the warning requirements of Article 31 (b).' B. Handwriting Exemplars and Voice Identification Closely related to the question of blood-alcohol evidence is that of handwriting exemplars and voice identification. In Scimerber, the principal opinion, referring to the privilege under the fifth amendment, observes that: both federal and state courts have usually held that it offers no protection against 98. Id. 99. United States v. White, 17 U.S.C.M.A. 211, 38 CMI.R. 9 (1967). 100. For a more extended discussion of the blood-alcohol question in military law, with particular attention to blood samples taken by foreign agencies see irlimore, The Implications of Schmerber v. California, 9 A.F. JAG L. Rev. 26 (1967).

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compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling "communications" or "testimony," but that compulsion which makes a suspect or accused the source of "real or physical evidence" does not violate it.101 0 2 Citing this language, the Supreme Court in Gilbert v. Calijornia held that handwriting exemplars given by the accused to an FBI agent during an interrogation without the benefit of counsel, admitted into evidence, did not violate the fifth amendment.'0 3 The Court of Military Appeals, several years earlier, had considered the status of handwriting exemplars under the Uniform Code of Military Justice. The late Judge Brosman, in United States v. Ball,14 with Judge Latimer concurring, had held that such exemplars do not fall under Article 31, so that the particular warning required by Article 31 (b) was not required as a prerequisite for taking them. 0 Chief Judge Quinn, although he concurred in the result, disagreed with this position. 0 0 Some three years later, Judge Ferguson, who had replaced Judge Brosman upon the latter's death, wrote the principal opinion in United States v. Minnifield,107 with Chief Judge Quinn concurring and Judge Latimer dissenting, and overruled Ball. He quoted the language from Musguire, to the effect that Article 31 is broader in scope than the fifth amendment, and held that the warning required by Article 31 (b) must be given if the resultant exemplar is to be used in evidence.' 8 A few weeks after promulgation of the Supreme Court's decision in Gilbert,the Court of Military Appeals handed down its decision in United States v. White.'0 9 The court noted the Gilbert decision and addressed itself to the question of whether Minnifield should be overruled. Referring to the Musguire language, the Chief Judge held that Minnifield was the court's interpretation of the "rights Congress accorded an accused" rather than of a constitutional right." 0 So concluding, he adhered to Minnifield and reaffirmed "the rule that an accused must be apprised of his rights under Article 31, before he can be asked for samples of his handwriting."''

101. 102. 103. 104. 105. 106. 107. 108. 109. 110. 111.

384 U.S. at 764 (emphasis added) (footnote omitted). 388 U.S. 263 (1967). Id. at 266. 6 U.S.C.M.A. 100, 19 C.M.R. 226 (1955). Id. at 105, 19 C.M.R. at 231. Id. 9 U.S.C.M.A. 373, 26 CM.R. 153 (1958). Id. at 378-79, 26 C.M.R. at 158-59. 17 U.S.C.M.A. 211, 38 C-M.R. 9 (1967). Id. at 216, 38 C.M.R. at 14. Id. at 216-17, 38 C.M.R. at 14-15.

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He then sustained the conviction, holding that the record established that Article 31(b) advice had been given." 2 There can be little doubt that the court will take the same approach with respect to voice identification. In the early case of United States v. Greer,"' the Chief Judge, writing for a unanimous court held that requiring a person to speak for voice identification violated the Constitution as well as Article 31 of the Code, likening it to handwriting."' In the later Ball opinion, where handwriting exemplars were held not to fall under Article 31, Judge Brosman expressed the view that the same applied also to speaking for voice identification." 5 However, as has been seen, Ball was overruled as to the handwriting aspect by Minnifield and must be considered to have lost its validity as to voice identification as well. Thus, there is little likelihood that the Court of Military Appeals will hold that either handwriting exemplars or voice identification can be taken and used in evidence without full compliance with Article 31, quite as would be required for a confession. However, it may be anticipated that the additional requirements of Mirandawill not be applied since those requirements are not statutory and have been held by the Supreme Court not to apply to handwriting and voice identification. V. Warden v. Hayden AND

THE

FALL

OF THE

"MERE EVIDENCE" RULE

A recent decision of the Supreme Court has also resulted in a modification of military law in the area of the fourth amendment. In Gouled v. United States,". the Court had held that a search warrant might not " be used "solely for the purpose of making search to secure evidence. 1 In subsequent cases, the rule had been developed to distinguish instrumentalities, fruits of crime and contraband, all properly the objects of search and seizure, from "mere evidence," which was not. 8 The question of searches and seizures is not directly touched upon by the Uniform Code of Military Justice and the discussion of the topic in the Manual for Courts-Martial, 1951 (in which the President, pursuant to the authority of Article 36, provides rules of evidence among other items) does not deal with what classes of property are proper subjects 112. Id. at 218, 38 C.M.R. at 16. 113. 3 U.S.C.M.A. 576, 13 C.M.R. 132 (1953). 114. Id. at 578, 13 C.M.R. at 134. 115. 6 U.S.C.M.A. at 104, 19 C.M.R. at 230. 116. 255 U.S. 298 (1921). 117. Id. at 309. 118. See United States v. Rabinowitz, 339 U.S. 56, 64 n.6 (1950); Harris v. United States, 331 U.S. 145, 154 (1947); Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931); Marron v. United States, 275 U.S. 192 (1927).

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[Vol. 36

for those processes. In an early case," 9 the Court of Military Appeals recognized the existence of the Gouled principle but found it unnecessary to discuss its application either to court-martial practice generally or to the particular case, since it found that the property seized was used by the accused as an instrumentality of his criminal activity. Later, however, in United States v. Vierra,12 0 the majority of the court set aside a conviction where essential evidence had been furnished through notations on a business card seized from the accused's possession. Holding this "mere evidence," the court held that it had been improperly seized and was therefore inadmissible. Perhaps the first sign of the Supreme Court's departure from the Gouled distinction may be found in Schmerber, 2 1 where the Court dealt with the taking of the blood sample as an "attempt to secure evidence."' 2 That this language was no slip of the pen was confirmed in Warden v. Hayden, '2 ' decided in May of this year. Hayden had been apprehended by Baltimore police in hot pursuit after the robbery of a cab driver. He was found in bed in his own house, almost nude, after his wife had permitted the police to enter without a warrant. Outer clothing of the type the robber had been said to have worn was found in a washing machine, and ultimately was admitted in evidence at his trial. The Court of Appeals for the Fourth Circuit reversed the conviction on the ground that the clothing had evidential value only and was therefore not subject to seizure. 2 4 Passing by the possible argument that the clothing was an instrumentality of the crime under the peculiar facts of the case,12a the Supreme Court wholly disavowed the "mere evidence" rule.' While Hayden was before the Fourth Circuit, a parallel conviction reached an Air Force board of review. A WAF had been found brutally beaten in an office building on an Air Force base a short while after the close of business. Investigation was commenced while she was still unconscious at the base hospital, and it was ascertained that the accused, Airman Whisenhant, would normally have been the last person to leave the building. Interrogated after Article 31(b) advice-both the offense and the trial antedated Miranda-the accused admitted seeing the girl, but said that she had remained in the building when he left. Later the same evening, jurisdiction of the investigation was transferred from Air 119. 120. 121. 122. 123. 124. 125. 126.

United States v. Rhodes, 3 U.S.C2.A. 73, 11 C.M.R. 73 (1953). 14 U.S.C1.A. 48, 33 C.M.R. 260 (1963). 384 U.S. at 771. Cf. Cooper v. California, 386 U.S. 58 (1967). 387 U.S. 294 (1967). Hayden v. Warden, 363 F.2d 647 (4th Cir. 1966), rev'd 387 U.S. 294 (1967). See 363 F.2d at 655, 657 (dissenting opinion). 387 U.S. at 310.

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Force authorities to the FBI, and an FBI agent made a search of the accused's barracks room, with the latter's consent, and seized a pair of shoes and a uniform blouse and trousers, both of which were damp and bore dark stains. All of these items of clothing were admitted at the accused's trial for assault with intent to murder. Bits of glass which had the same optical qualities and physical properties as a broken Coca Cola bottle, found at the scene of the crime and apparently one of the weapons used in the beating, were proved to have been imbedded in the shoes. The shoes, trousers and blouse all bore traces of human blood. Recognizing, but declining to follow the circuit court decision in the Hayden case, the board of review held that the clothing had been properly seized and affirmed the conviction. The Court of Military Appeals granted the accused's petition for review. While the case was before the court, Hayden was decided by the Supreme Court. Observing that Vierra had been based upon the Supreme Court's limitations on searches and seizures in Goided and thereafter, the court dropping the "mere evidence" rule followed the Supreme Court's lead 2 in 7 and sustained the board of review.1 It has been observed that the liberalization of the limitations on searches and seizures in Hayden compensates in some measure for the greater strictures on criminal investigators imposed by Miranda. The same, of course, applies in the military with respect to WThisenhant and Tempia. Indeed, since earlier military practice had been far closer to the Miranda requirements than had been true in most civilian jurisdictions and a lesser setback in investigative procedures was suffered by the military investigator, it would appear that the compensatory advantage to him would be relatively greater than that to the civilian policeman. VI. CONCLUSION

From the foregoing examples it may be seen that military law has been responsive to the recent decisions of the Supreme Court in criminal law, but that the Court of Military Appeals continues to exercise its independent judgment and control over courts-martial. From this, the serviceman at times derives advantages not enjoyed by the civilian offender, because of the broader protection provided by Article 31 than by the fifth amendment and the more restrictive rule upon the prosecution in corroborating confessions, which in the military requires separate proof of the probability that the offense was committed by someoneYa 127. United States v. Whisenhant, 17 U.S.C.A. 117, 37 C.I.R. 381 (1967). 128. United States v. Smith, 13 U.S.CMA. 105, 32 C.M.R. 105 (1962); reaffirming United States v. Isenberg, 2 U.S.C.M.A. 349, 8 C.M.R. 149 (1953); accord, United States v. Schoenberg, 16 U.S.C.M.A. 425, 427, 37 C.I.R. 45, 47 (1967); cf. Smith v. United States, 348 U.S. 147 (1954); Opper v. United States, 348 U.S. 84 (1954).

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The court has been keenly aware of its responsibility for the guidance of the military justice system and continually solicitous lest the military offender suffer in comparison with his civilian counterpart. 12 It may safely be predicted that, as constitutional concepts of criminal law develop, military law will keep pace and that the Court of Military Appeals will insure that-within the framework of a different procedural system, operating under conditions vastly different from the civilian community-the military serviceman will be guaranteed the same standards of justice, fairness and due process provided to civilians in the federal and state courts. 129.

See, e.g., United States v. Culp, 14 U.S.C.M.A. 199, 33 C.M.R. 411 (1963); United

States v. Bouie, 9 U.S.C.M.A. 228, 26 C.M.R. 8 (1958); United States v. Rinehart, 8 U.S.CM.A. 402, 24 C.M.R. 212 (1957); United States v. McClenny, 5 U.S.C.M.A. 507, 18 C.M.R. 131 (1955); United States v. Woods, 2 U.S.C.M.A. 203, 8 C.M.R. 3 (1953).