EDITOR'S NOTE: The Supreme Court said Sept. 28 that it would hear a consolidated argument concerning the petitions addressed in this article.
Latest in Military Justice
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.
"The first thing we do, let's kill all the lawyers." —Dick the Butcher, Henry IV, Part 2.
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.
As Jack noted earlier this morning, Lawfare's Alex Loomis has a fascinating new paper up on SSRN (for the moment, anyway) about the scope of Congress's Article I power to "define and punish . . .
Should the U.S. Military Receive the Benefit of the Doubt When Investigating Itself for Alleged War Crimes?
The October 2015 bombing of the Doctors Without Borders (MSF) hospital in Kunduz, 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 culpable individuals accountable. Throughout the last fifteen years of conflict, the military has investigated and prosecuted numerous allegations of war crimes—defined here as serious violations of the laws of armed conflict.
After a nearly two-year long process, the Department of Defense has drafted a legislative proposal to reform the Uniform Code of Military Justice (UCMJ). At the end of December, the DoD forwarded its proposals to Congress in the form of the Military Justice Act of 2016. The DoD provided a summary of its major proposals. Here, I highlight some of the major changes proposed and the impact those changes could have on the military justice system.
United States v. Dreyer: Suppression of Evidence Not Needed to Deter Future Violations of the Posse Comitatus Act
In an en banc decision issued yesterday, the Ninth Circuit ruled that an NCIS agent’s use of a software query to search military and civilian computers throughout Washington state for child pornography violated restrictions related to the Posse Comitatus Act (PCA), but declined to suppress the evidence resulting from the agent’s investigation.