My recent transition from prosecution to defense has prompted some reflection on the role of the military defense counsel within the military justice system. Students of state and federal criminal procedure and constitutional law know that it was not until 1963 that the Supreme Court of the United States declared the Sixth Amendment guaranteed an indigent individual the right to representation by a court appointed attorney and the Fourteenth Amendment extended that right to state judicial systems. The evolution of the right to an appointed attorney in the military justice system, without regard to indigence, however, has received far less scholarly and journalistic—let alone judicial—attention. And it’s a story worth telling.
My last post included a brief discussion about public drunkenness on the part of enlisted personnel as a sort of rebellion against the rigid and erratic conditions of military life in the Revolutionary and Civil War era, and the officers who administered this society and its corresponding disciplinary system. In this post, I’d like to have a bit of fun and take a satirical look at one of today’s most common acts of rebellion—the slow salute.
In all the debate over the state of military justice, little, if any, attention is paid to the society it governs. This society is seemingly treated as a monolith, ever constant over periods of great change within itself and broader society over centuries. I’ve continually believed that to understand the evolution of military law, one must also understand the evolution of military society.
For most of American history, military legal institutions have largely escaped questions of legitimacy. The little attention they have received has primarily focused on the history, and sometimes competency, of courts-martial—the name given to military criminal trials. While an argument could be made that such studies indirectly address questions of legitimacy, the fact remains that military legal institutions operate in an environment in which their legitimacy is increasingly important and largely ignored.
It’s been a few months since I’ve been able to post or otherwise update the site. I try to post monthly, typically regarding a project I’m working on (or something a project makes me think of) or something I’m reading. But the past few months have been quite busy at my day job and have also included some travel. So, I’ve been spending all the time I can spare trying to get my latest article ready for spring 2016 submission season. Now that it is done and submissions have started, I can share some thoughts on what I’ve spent the last year or so working on, here and there.
I read an interesting law review article recently. Written by a prominent military justice scholar, it largely argued that military commanders should retain their current role in the military justice process. It reminded me of the oft-articulated argument for maximizing the jurisdiction of military courts and commanders over all offenses committed by military members. A cornerstone of this argument is that the “military is different.” As such, its specialized needs require a separate criminal justice system. But an article I reviewed while researching my own forthcoming article on the little known (outside the military) military’s highest court’s military necessity doctrine highlights the fact that this phrase, so often relied upon in support of the status quo, stood for the exact opposite proposition.
Both military and civilian courts have rules that govern the acceptance of a guilty plea. Based generally on the civilian rule, Rule for Courts-Martial (R.C.M.) 910 substantially restricts the military judge in the methods whereby he can accept a guilty plea in contrast to the broader discretion given his federal counterpart under Federal Rule of Criminal Procedure 11 (“Rule 11”). Under traditional statutory and regulatory interpretation, Rule 11 may inform the interpretation of R.C.M. 910, but it does not control. Unless R.C.M. 910 conflicts with the Uniform Code of Military Justice (UCMJ) or the Constitution, it is granted the force and effect of law. But as I was reviewing decisions of the Court’s 1968-1969 term my ongoing research project, I had the opportunity to re-read United States v. Care, the seminal case establishing the standard for determining the factual basis for a guilty plea in military courts-martial. In doing so, I was reminded of the contribution legal history can make to the understanding and development of military law.
My latest project (when I can spare the time) involves reading CAAF decisions from the 1951-1952, 1968-1969, 1994-1995, and 2014-2015 term. I’m up to the 1994-1995 term now, and came across an interesting footnote. Most judge advocates are familiar with the concept of more senior trial counsel serving as a “potted plant,” but what is less known is that this phrase may have originated in the Iran-Contra scandal.
In 1992, the United States Air Force court-martialed an Airman for wrongfully using cocaine and failing to obey a lawful order. The intermediate appellate court affirmed without opinion. After a change in appellate counsel, the Airman appealed the intermediate court’s decision to CAAF, raising an issue there not raised in the court below. CAAF subsequently remanded the case to the intermediate court for consideration of the new issue.
The intermediate court was not amused:
When the [then] Court of Military Appeals permits appellants to raise issues for the first time before them without requiring a showing of good cause, and returns the case for us to repeat our review of the case, it impeaches confidence in the Court’s performance of its statutory duties and provides incentive to appellate counsel to engage in piecemeal litigation….
This is an opinion definitely worth reading, particularly the end of the majority opinion and the two concurring opinions. Each sheds light on the relationship between the military highest court and its intermediate courts. But for purposes here, one passage in CAAF’s decision warrants attention:
As far as the implication that an issue not raised at the lower level cannot be raised before us, we are sure the court below would not sanction a “potted plant” role for appellate counsel with regard to new issues.
Putting aside the concern with issues being raised at the highest court for the first time, the footnote accompanying this sentence drew my attention; as a “more senior and the certified trial counsel,” I am often “relegated” to potted plant (i.e. supervisory) duties:
The term “potted plant” is used in America’s image-based society to distinguish passive non-players (“is a potted plant”) from people of action (“is not a potted plant”). It is derived from Brendan V. Sullivan, Jr.’s, response to Senator Inouye, when the Senator was attempting to limit Mr. Sullivan’s role in protecting his client (Oliver North) from what Mr. Sullivan perceived as unfair questioning by the Senate staff during the 1987 Irangate Hearings: “Well, sir, I’m not a potted plant. I’m here as the lawyer. That’s my job.”
And there you have it….
 United States v. Johnson, 42 M.J. 443, 445 (C.A.A.F. 1995) (citation omitted).
 Id. at 446.
 Id. at 446 n.2.
Readers of CAAFlog recently learned about a Marine Corps court-martial that sentenced a Marine to a bad-conduct discharge for, amongst other offenses, violating an order to remove three Bible quotes from her workspace. If her petition is granted, the Government will face perhaps its most impressive adversary, the former Solicitor General of the United States, Paul Clement. Of the many interesting aspects of this case, two warrant attention here. First, the question of whether the order was lawful raises important First Amendment issues. It also reminds me of my earlier post concerning my belief that there is no homogenous “military society;” it is more likely a society of societies. Second, Mr. Clement’s argument, successful in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), requires that the Government demonstrate a compelling interest in order to infringe upon the constitutional rights of a service member. What these are and how to articulate them is the subject of my recent article accepted for publication this fall by the University of Memphis Law Review.
LCpl Monifa Sterling, a self-identified Christian, taped three copies of a quote from the Bible (“No weapon formed against me shall prosper”) around her work area. These quotes were intended to reflect the “trinity,” the Christian belief of three persons in one God. At trial, she testified that this was to protect herself from what she considered to be harassment by fellow Marines.
Her immediate supervisor saw these quotations and ordered them removed. Noticing that they were not removed by the end of the duty day, LCpl Sterling’s supervisor removed them and threw them in the trash. LCpl Sterling reposted them the next day. Her supervisor again tossed them in the trash after LCpl Sterling did not remove them by the end of the day, as ordered. For these and other incidents not relevant here, the Marine Corps preferred charges against LCpl Sterling, which included disobeying the lawful order of a senior non-commissioned officer.
At trial, LCpl Sterling challenged the lawfulness of her supervisor’s order to take down the Bible quotes. The Government put on no evidence that she shared her desk with another Marine, and, as argued by Mr. Clement in his Supplement to Petition for Grant of Review, the Government admitted no evidence that any Marine was “distracted, annoyed, or agitated by-or even saw-the quotations.” According to the Supplement, every witness that testified stated that they were never distracted, annoyed, or agitated.
The military judge denied LCpl Sterling’s motion to dismiss, and the Navy-Marine Corps Court of Criminal Appeals (NMCCA) affirmed the conviction. The NMCCA decision is definitely worth a read for those interested in more details on this particular case.
In his Supplement, Mr. Clement argues that the Government must assert a compelling interest in order to infringe upon a service member’s exercise of his or her religion. He began by noting that the Supreme Court previously held that “neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.” Hobby Lobby Stores, Inc., 134 S. Ct. at 2761. In response, the subsequent Religious Freedom Restoration Act (RFRA), however, required that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” 42 U.S.C. §2000bb-1(a). In order to do so, the Government must successfully demonstrate that such action is in furtherance of a compelling interest and is the least restrictive means of furthering that interest. Id. §2000bb-1(b). In 2000, Congress enacted the Religious Land Use and Institutional Persons Act (RLUIPA). This act broadened RFRA’s definition of “exercise of religion” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Id. §2000cc-5(7)(A). The Hobby Lobby decision thus noted that RLUIPA amended RFRA’s definition of “exercise of religion” beyond that articulated in First Amendment case law. And it applies to the military.
There are a number of interesting issues in this case. But what may be overlooked is that this case lends further evidence to the proposition that “military society” is actually a heterogeneous compilation of sub-societies. Conduct sufficient to warrant a special court-martial in the Marine Corps may only warrant some sort of lesser punishment in another service. And this may be completely appropriate. There are differences between the services, and within them. I believe that the challenge is that, in a criminal system that applies the civilian rule unless there is a military necessity not to, it is incumbent upon the Government to articulate why a particular action, as applied, warrants the lesser protection.
If Mr. Clement’s argument prevails, which it is likely to do, the Court will acknowledge that service members are entitled to substantial rights, as are their civilian counterparts, unless the military articulates a compelling interest in applying a different rule, or application of such established rule. In my upcoming article to be published by the University of Memphis Law Review, I argue that the appropriate articulation of a compelling interest is military necessity. I go further and, after an exhaustive review of the Court’s decisions, propose ways in which the Government may articulate sufficient examples of military necessity, as well as how defense may articulate the Government’s failure to meet such an exacting standard. Anticipated publication is this fall.
This week I thought I would turn back to the ongoing project of developing a bibliography of sources relevant to my research agenda. A few weeks ago I spent some time at the Library of Congress looking up some dissertations I thought interesting and useful. That section of the bibliography has been updated, as well as the Treatise section. I’ve now created a Military Legal History section and populated that section with some articles and books I have come across.
I hope to capture the academic literature in these areas on my own, but am always looking for help. Authors and interested readers are highly encouraged to send citations to me for inclusion in what I believe is the only publicly available bibliography of military justice sources.