Military Justice

The Supreme Court said Thursday it would hear a consolidated case concerning whether active-duty military officers can serve as judges on the Court of Military Commission Review. Lawfare published this piece last week on the three petitions before the court and their potential implications.

The 2016 Military Justice Act will streamline the court-martial and post-trial phases of the military justice system.

The NDAA will reduce the influence of the JAG Corp.  That's probably not a good idea.

Lawfare's Alex Loomis has a fascinating new paper up on SSRN about the scope of Congress's Article I power to "define and punish . . . Offences against the Law of Nations." But it's important to stress what Alex's article does not answer: Although Jack has suggested that Alex's analysis is relevant to the ongoing D.C. Circuit litigation in Al Bahlul over the constitutional powerof Guantánamo military commissions to try offenses like inchoate conspiracy, it goes only to the Article I question presented therein--whether Congress has the power to define inchoate conspiracy as an offense against the law of nations, as it has done in 10 U.S.C. § 950t(29). A wholly separate question--which Alex's paper does not seek to answer (see, e.g., footnote 357)--is whether Article III nevertheless prohibits a military, as opposed to civilian, court from trying the offense. As this post explains, there are compelling reasons why Congress should receive less deference in that context.