The U.S. military retains legal jurisdiction over members of the armed services and prisoners of war, as well as--more controversially--unlawful combatants and those who contest their status as combatants. In the years after 9/11, much of the discussion on military justice has focused on the use of military jurisdiction to detain and try suspected combatants. However, issues such as sexual assault within the armed forces and the high-profile court-martial of Pfc. Chelsea Manning continue to remind us that questions of military justice are not confined to military detentions and commissions--indeed, far from it.
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A crop of cases that have reached the Supreme Court this month (in which I’m counsel of record on behalf of the Petitioners) provide a useful chance to consider the newly relevant principle of civilian control of the military from a different angle.
The NDAA will reduce the influence of the JAG Corp. That's probably not a good idea.
Among the many novel features of the 2016 presidential election campaign is the increasingly visible participation of former military officers in the political process. Below is a brief primer on the legal status of retired service members, and the statutes and rules which govern their participation in politics.
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.
The bombing of a Doctors Without Borders hospital in Afghanistan has amplified a long-simmering discussion regarding the ability of the American military to objectively conduct internal investigations into war crimes and, where necessary, to hold individuals accountable.
Proposed amendments to the UCMJ are intended to more closely mirror the civilian justice system, possibility in an attempt to better safeguard the rights of sexual assault victims.
The Ninth Circuit ruled yesterday that an NCIS agent’s search of military and civilian computers for child pornography violated restrictions related to the Posse Comitatus Act.
The D.C. Circuit will soon decide second major military commissions case.
To what extent should U.S. troops be permitted to take matters of justice into their own hands in dealing with allegations of sexual abuse by local military and police officials?
My friend Charlie Dunlap takes me to task for some of my comments in last week's Lawfare podcast with regard to the D.C. Circuit's June 12 decision in al Bahlul--and what it portends for the Guantánamo military commissions. Unfortunately, Charlie's response misses both the text and context of what I was saying. And because I imagine most readers won't actually listen to last week's podcast (I can't say I blame you), let me lay out, as precisely as I possibly can, five reasons why I don't trust the military commissions to prosecute domestic offenses such as conspiracy and material support--and why you (and Charlie) shouldn't, either.