Latest in Military Justice
I find much to applaud in Maj. (P) Dan Maurer’s thoughtful Lawfare post on potential unlawful command influence (UCI) issues associated with the president’s tweet about the controversial case of Maj.
The final two months of 2018 have been a remarkably eventful period for observers of American civil-military relations—even for the Trump administration. In just the final two months of 2018, there was the pre-midterm election deployment of troops to the southwest border in response to the supposed “invasion” of the migrant caravan.
At the end of the last term, the Supreme Court decided in a 7-2 opinion that the high court exercises appellate jurisdiction over the United States’ military justice system—a system it says begins at the court-martial level, or trial level, through each Service’s Court of Criminal Appeals, up to the court of Appeals for the Armed Forces (CAAF), a tribunal with five president-appointed, Senate-confirmed civilian judges.
On Friday, in a 7–2 decision written by Justice Kagan, the Supreme Court held in Ortiz v. United States that Judge Martin Mitchell could simultaneously serve as a judge on the Court of Military Commission Review (CMCR) and the Air Force’s Court of Criminal Appeals (CCA) without violating Congress’s general “dual-officeholding ban” on military officers taking up civilian offices.
On Friday, the Supreme Court ruled in Ortiz v. United States that military judges’ service on two military courts is not in violation of the Constitution’s dual-officeholder ban. The full opinion is below.
The Supreme Court granted certiorari Thursday in three cases addressing whether 10 U.S.C.
EDITOR'S NOTE: The Supreme Court said Sept. 28 that it would hear a consolidated argument concerning the petitions addressed in this article.
Late last week, the Second Circuit issued a long-awaited opinion in Doe v. Hagenbeck. The case deals with myriad claims brought forward by a former West Point Cadet, Jane Doe, against Lt. Gen. Franklin Lee Hagenbeck and Brig. Gen. William E. Rapp, the superintendent and commandant of cadets, respectively, of the United States Military Academy at West Point. The claims stem from Jane Doe’s rape by an older male cadet, the school’s handling of the incident, and allegations of a sexually discriminatory atmosphere at the prestigious institution in upstate New York.
Last December, Congress passed the Military Justice Act of 2016, which then-President Barack Obama subsequently signed.
President Trump’s appointment of Lt. Gen. H.R. McMaster to succeed Michael Flynn as National Security Advisor has generally been lauded, whether in recognition of McMaster’s strengths, his predecessor’s weaknesses, or both. One of the points that’s gotten surprisingly little attention, though, is his status as an active-duty military officer.