I DON’T THINK THOSE WORDS MEAN WHAT YOU THINK THEY MEAN

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.[1] 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[2] 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.

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The Origins of the “Potted Plant?”

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….[1]

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.[2]

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.”[3]

And there you have it….

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[1] United States v. Johnson, 42 M.J. 443, 445 (C.A.A.F. 1995) (citation omitted).

[2] Id. at 446.

[3] Id. at 446 n.2.

Military Society and the Constitution

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.

Pattern Instructions in Military Courts: Possible Origins of the Military Judge’s Benchbook

Military judges and practitioners rely heavily on the Military Judge’s Benchbook, which contains the pattern instructions used in the military justice system. However, not a lot of attention is paid on the history of this publication and its role in the development of military criminal law. In nearly five years of using this publication, I too never really wondered where it came from, or why it was initially produced. But after reading the decisions the Court of Military Appeals (now the United States Court of Appeals for the Armed Forces) issued in its initial term for my current project on the Court’s experience as a court of last resort, I came across a series of decisions that may serve as the early foundation for the development of the Benchbook.

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More Than Just an Advocate

My latest project has me reading decisions by the Court of Appeals for the Armed Forces from a select number of terms. A few decisions from the court’s first term, 1951-1952, have caught my attention so far. One in particular helps practitioners and observers understand just why the military justice system takes being a prosecutor (trial counsel) so seriously. Would it surprise you to know that, prior to the Uniform Code of Military Justice (UCMJ) in 1950, it was military custom that the trial judge advocate (prosecutor) also defended the Accused?

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The Military Necessity Doctrine

In his 1972 article, John T. Willis examined CAAF’s institutional “search for a constitutional philosophy.”[1] His was “primarily interested in focusing on the Court of Military Appeals as an institution in the belief that its strengthening will assure constitutional due process for those who serve their country in the armed services and will improve military justice in general.”[2] In an upcoming issue of the University of Memphis Law Review, I aim to rekindle this conversation by studying the development of what I describe as the court’s “military necessity doctrine.”

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Three Observations On Military Law and Society

John T. Willis authored three compelling articles in the early to mid-1970s, as an active duty judge advocate, examining CAAF’s origins and its struggles to establish a constitutional philosophy, and called for continued attention to the military’s supreme court. His first article, The United States Court of Military Appeals: Its Origin, Operations and Future,[1] was “largely descriptive, outlining the power and jurisdiction of the United States Court of Military Appeals [CAAF] and demonstrating the interaction between congressional enactment, executive implementation and judicial decisionmaking.”[2] Calling CAAF the “Supreme Court of the Military,”[3] Willis promulgated three basic observations that any “reasonable discussion of military justice must recognize:”[4]

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Why Not a Grand Jury?

It goes without question in military legal circles that the Grand Jury clause of the Fifth Amendment does not apply in military criminal trials, the vast majority of which are prosecutions of civilian, rather than military-specific crimes. In fact, the answer one most often hears is, “The Constitution expressly excludes the Grand Jury clause from the military.” Instead, military members facing more than a year in confinement are statutorily entitled to what is referred to as an Article 32 hearing. Upon closer inspection, however, one finds that this “express” exclusion really comes down to the Supreme Court’s (“the Court”) interpretation of the placement a comma.

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An Invitation to My Passion

Three communities within American society are not entitled to the full panoply of constitutional protections enjoyed by their fellow citizens: inmates, students, and members of the military. In the inmate and student communities, the Supreme Court of the United States (“the Court”) has remained very active in developing a body of case law that defines the relationship between those communities and the Constitution. In contrast, the Court has largely ignored the relationship between the military community and the Constitution. Why? The United States Court of Appeals for the Armed Forces (“CAAF”).[1]

In a article currently under consideration for publication, I propose that this is the reason CAAF is an important legal institution worthy of continued study. In this article, I summarize the Court’s approach to the inmate and student communities and contrast that to the Court’s significant hands-off treatment of the military community. For example, relying on CAAF’s assertion that the Constitution applies to the military, the Court has assumed without deciding that this is so. Because it has left the heavy lifting to CAAF, it is important to scrutinize what CAAF has done in the area of constitutional rights, which has been to apply what I term the “military necessity doctrine.” However, as my article argues, CAAF has a bit more work to do in fully articulating a workable doctrine that will guide practitioners to focus issues before it and provide a method for the court to provide continued stability and uniformity in military law.

I discovered CAAF during my undergraduate studies. My legal writing professor offered extra credit to students who attended the upcoming oral argument in the case of United States v. Long,[2] to be heard by CAAF at a nearby law school as part of its Project Outreach program. Project Outreach is a “public awareness program to demonstrate the operation of a federal court of appeals and the military justice system.”[3] I was hooked. Though later admitted to higher ranking schools, I attended that same law school in large part because the Chief Judge began teaching there upon his retirement from CAAF. I then got the opportunity to serve as a law clerk at the court. In two years of clerking after graduation, I met many hardworking individuals doing tremendous work for both the service member and the military mission.

A student of military legal history for the past four and a half years, I remain fascinated by CAAF and other legal institutions in military society, as well as the individuals that have played important roles within those institutions. Over the years, I have noticed that many articles on military justice and its institutions do not appear in a Westlaw or Lexis search. This is because much, though certainly not all, of the rich writing in this area occurred between the 50s and 70s. As many readers know, Westlaw and Lexis (or even Google, for that matter) do not store every volume of every law review online. Thus, one is left with utilizing the Index of Legal Periodicals in a local law library, if there is one, or the database HeinOnline, with arguably less robust search capabilities.

Though not perhaps the most efficient method, I developed my database of articles through what can aptly be described as the “hunt-n-peck” or “treasure hunt” method. An article would lead me to earlier citations, which in turn led me to even earlier ones. If I eventually started running across citations already recorded, then it increased the likelihood that I reached that critical mass of scholarship in an area.

Finding that critical mass is important because, as in other academic disciplines, a literature review is a necessary prerequisite to understanding how an author knows, and his readers understand, how he is advancing the literature in a particular area. My experience as an articles editor in school taught me that such reviews are not as common in traditional legal academic literature.

So began the Bibliography page. I do not believe one similar in scale and currency exists, or at least I have been unable to find one. It is a work in progress to be sure. Over time, as I share my thoughts on this blog, I will continue to add categories and citations to it. Unfortunately, readers will be on their own to obtain copies of individual articles. However, as part of this project I will post, at random intervals, my summary of what particular articles offer. As I do that, I will create a link in the citation to the applicable post for subsequent interested readers. In time, law review editors reviewing submissions and potential scholars may have a convenient place to start their research, and I can continue to learn about authors, institutions, and key actors within them.


 

[1] Until 1994, the court was named the United States Court of Military Appeals. For consistency, I will always refer to the court as CAAF.

[2] 64 M.J. 57 (C.A.A.F. 2006).

[3] Id. at 58 n.1. In what I believe was the first Project Outreach case, CAAF noted that it

hoped that the thousands of students, service persons, military and civilian attorneys, and members of the American public who witness these hearings will realize that America is a democracy that can maintain an Armed Force instilled with the appropriate discipline to make it a world power and yet afford the members of that Armed Force a fair and impartial justice system which does provide the full protection of the Constitution of the United States and Federal law to its members.

United States v. Blocker, 32 M.J. 281, 282 n.1 (C.M.A. 1991).