It is (or should be) well understood in American society that the Government must prove you guilty beyond a reasonable doubt before taking away your liberty or your life—the highest standard of proof available in our criminal justice system. But what if I told you this standard has absolutely nothing to do with protecting those accused of crime? What if I told you the reasonable doubt standard is an ancient theological concept established to increase, not reduce, convictions?
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Legal History
The Military Commander As The Military Magistrate — A Second Look
With things settling down at the new home and things apparently working out with the condo (fingers crossed!), it’s time to return to writing. My latest law review article is coming along nicely (I hope), so I thought I’d jump back into my blogging.
Military commanders are afforded tremendous power over members of the military under their command, as well as the physical installations (bases) where they command. As it relates to military justice—i.e. military criminal law—the commander is essentially the mayor, the district/state attorney, the person who selects the group (venire) from which the jury comes out of, and also serves as the military magistrate. And in these areas, it is safe to say these powers are exercised broadly—and with little to no questioning of that authority. This post discusses this latter power and reviews the seminal case in this area and suggests that perhaps the legal, political, social, and military history surrounding military justice reform may not make the question so clear cut.
Discipline Is the Soul of An Army
I’ve often been led to believe this quote attributed to George Washington referred to discipline in the punishment sense. This is often combined with the additional statement that one of his first decisions upon taking command of the Continental Army was to appoint LT William Tudor as Judge Advocate General. But it is much more likely he referred to discipline in the training sense. And to obtain the discipline Washington sought to save his army, he turned to the most capable man for the job—an immigrant.
SCOTUS’ Use of the Historical Record to Limit, Then Expand, Military Criminal Jurisdiction
Over the past few months, I have explored—at least the initial contours of—the question of military jurisdiction over service members for the commission of civilian offenses committed within the continental United States during the absence of a declaration of war by Congress. This exploration has led to this final post that introduces the history relied upon by the Supreme Court of the United States in O’Callahan v. Parker (1969) to limit military jurisdiction, and the Court’s subsequent rejection of this history in Solorio v. United States (1987).
Separate And Not Quite Equal Pt. 2: The Elimination of the Service Connection Requirement
My last post on the Supreme Court’s establishment of the service connection requirement in O’Callahan v. Parker ran long, so I concluded that post without discussing Solorio v. United States, the Supreme Court decision less than twenty years after O’Callahan that abandoned the service connection requirement and in its place adopted a “status” test. Regardless of the type of offense, where committed, or nexus to military service and mission, one’s status alone as a service member granted the military jurisdiction to prosecute. Before summarizing some of the similarities and differences between military and civilian prosecution in a subsequent post, in this post I discuss how the Rehnquist Court retreated from requiring the military to demonstrate a military nexus between the offense and military service in order to prosecute a service member within the military justice system.
Separate And Not Quite Equal: “Enjoying” Reduced Rights Based On One’s “Status,” and Nothing More, In the Separate Society
In my last post, the first in a series looking at the legal history behind the ability of the American military to prosecute American citizens for civilian offenses committed within the United States during peacetime (absence of declaration of war), I summarized the evolution of statutes governing military criminal jurisdiction. This summary demonstrated, or at least took note of, the fact that for most of American history, the military retained limited jurisdiction to prosecute such offenses, if at all. In this post, I’d like to turn to the evolution of today’s legal landscape, as framed by the Supreme Court. This history tells us how we reached the point of one’s status as a military member, alone, subjected him or her to a criminal justice system that deprives him or her of substantial constitutional rights, even when facing prosecution for traditionally civilian offenses, within the United States, during time of peace when civilian courts are open for business.
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: I Don’t Think It Means What You Think It Means…
Both the Supreme Court of the United States and military courts have struggled to formulate an adequate constitutional framework for military society. The simplest explanation may be that these courts have so far failed to articulate an appropriate legal framework that works in military society. This focus is on the “law side” of the equation. There is certainly much truth to this statement. But perhaps there should be more focus on the nature of the military society courts are to oversee. Perhaps practitioners and scholars have failed to properly describe the particular military society at issue.
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]
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).
Echoes of Adolphus 