Law Commons^™

Transforming Military Justice: The 2022 And 2023 National Defense Authorization Acts, David A. Schlueter, Lisa Schenck

Faculty Articles

For the past decade there have been numerous and significant changes to the Uniform Code of Military Justice (UCMJ), the statutory basis for the military justice system. Although the Military Justice Act of 2016 made major changes to the UCMJ, the calls for change continued. One of the most-often heard calls for reform over the last decade has suggested removing commanders from the military justice system. Some have argued that a command-centric military justice system was outdated, and it was time to make the system look more like the federal criminal procedure system. Other critics have advocated for a military …

This Is Not Your Grandparents' Military Justice System: The 2022 And 2023 National Defense Authorization Acts, David A. Schlueter, Lisa M. Schenck

Faculty Articles

Despite the major reforms to the American military justice system in the 2016 Military Justice Act, the drumbeat for reform has continued. One of the most-often heard calls for reform over the last decade has suggested removing commanders from the military justice system. Some have argued that a command-centric military justice system was outdated, and it was time to make the system look more like the Federal criminal procedure system. Other critics have advocated for a military justice system that looks more like those of our allied nations. This article briefly addresses the 2022 and 2023 NDAA changes to the …

National, Military, And College Reports On Prosecution Of Sexual Assaults And Victims’ Rights: Is The Military Actually Safer Than Civilian Society?, David A. Schlueter, Lisa M. Schenck

Faculty Articles

No abstract provided.

Taking Charge Of Court-Martial Charges: The Important Role Of The Commander In The American Military Justice System, David A. Schlueter, Lisa M. Schenck

Faculty Articles

No abstract provided.

National, Military, And College Reports On Prosecution Of Sexual Assaults And Victims' Rights (White Paper), David A. Schlueter, Lisa Schenck

Faculty Articles

In response to recent calls for major reforms to the American military justice system, which are apparently based on continuing Congressional concerns about sexual assaults in the military, the authors present statistical data on sexual assaults from a number of sources: national crime statistics; military crime statistics; crime statistics from several states, and statistics from a university. The authors also present information on the tremendous strides that have been made in recent years to protect the rights of military victims of sexual assault, noting that some of those rights are not found in federal or state criminal justice systems. Finally, …

American Military Justice: Retaining The Commander's Authority To Enforce Discipline And Justice, David A. Schlueter, Lisa Schenck

Faculty Articles

This white paper recommends that Congress reject proposals that would remove a commander’s prosecutorial discretion and instead place it in the hands of senior armed forces lawyers. There are currently two proposed legislative provisions that would adversely affect the commander’s prosecutorial discretion and undermine the commander’s ability to enforce good order and discipline. The first proposed provision was included in Section 540F of the 2020 National Defense Authorization Act, where Congress mandated that the Department of Defense report to the congressional armed services committees on the feasibility of creating a pilot program that would remove a commander’s authority to prefer, …

The Army's G-Rap Fiasco: How The Lives And Careers Of Hundreds Of Innocent Soldiers Were Destroyed, Jeffrey F. Addicott

Faculty Articles

The purpose of this article is three-fold. First, this article seeks to explore the legal and policy ramifications of the CID's multi-year criminal investigation, which targeted vast numbers of innocent Army National Guard and Army Reserve personnel for alleged criminality as contract employees in the G-RAP or AR-RAP.

Second, this article aims to highlight the CID's longstanding practice referred to as "titling"-of refusing to delete from their system of records those individuals that are subsequently cleared of any wrongdoing by their commands. This highly dubious administrative practice was particularly devastating to the hundreds of innocent and fully exonerated participants in …

Prosecuting The War On Terror In The Trump Administration: The Trump Doctrine: Is There Really A New Sheriff In Town, Jeffrey F. Addicott

Faculty Articles

After one full year in office, it is time to examine the actions taken by the Trump Administration in light of its legal and policy structures for dealing with the War on Terror and the companion problem of radical Islamic terrorism-both the domestic and international threat. In this context, two general concepts bear examination. First, is there a significant change in the Trump Administration from the policies of the Bush and Obama Administrations vis a vis prosecuting the War on Terror and dealing with domestic jihadists? Second, has the Trump strategic vision and attendant actions contributed in any significant way …

American Military Justice: Responding To The Siren Songs For Reform, David A. Schlueter

Faculty Articles

Today, the American military justice system is being subjected to sweet and enticing calls for reform. At first hearing, the well-intentioned proposed reforms appeal to a sense of justice. On closer examination, however, those proposed reforms threaten the essence and functionality of an effective and efficient system of criminal justice that is applied in world-wide settings, in both peacetime and in war.

In the last several decades, an increasing number of commentators have recommended reforms to virtually every component of the military system. The most recent round of proposals arose from frustration and anger that many feel towards the military’s …

The Military Justice Conundrum: Justice Or Discipline?, David A. Schlueter

Faculty Articles

This article focuses on the long-standing debate over the purpose and functions of the American military justice system and whether the system is intended to provide for good order and discipline or to provide justice. The author provides a summary of the current procedures and practices in that legal system and discusses the roles of commanders and armed forces attorneys. He addresses the various thematic approaches which have been used to describe the relationship between justice and discipline and applies a crime-control and due process model to various features of the military justice system. He concludes that the system was …

The Strange Case Of Lieutenant Waddell: How Overly Restrictive Rules Of Engagement Adversely Impact The American War Fighter And Undermine Military Victory., Jeffrey F. Addicott

St. Mary's Law Journal

A rules of engagement (“ROE”) Review Board should be created in order to provide an impartial review process for service members facing adverse administrative action for violations of ROE. Politicians defining the ROE, rather than military experts, create rules that are so restrictive and confusing that they ultimately run counter to the military objective of victory. A violation of a ROE can be a criminal offense under the Uniform Code of Military Justice, but violations are issued arbitrarily, and often the military does not charge the service member with a crime, instead using adverse administrative measures to impose punishment. While …

The Storm Between The Quiet: Tumult In The Texas Supreme Court, 1911-21., Michael S. Ariens

St. Mary's Law Journal

The Texas Supreme Court from 1911–1921 is best known not for the law it made or the opinions it wrote, but for its failure to decide cases. Although the supreme court’s difficulty in clearing its docket existed before 1911, the number of outstanding cases exploded during the second decade of the twentieth century. Arguably, the issue of statewide prohibition and the divergent views held on that issue by members of the Texas Supreme Court was the driving force behind the disharmony and dysfunctionality of the court during this decade. Statewide prohibition explains why elections of candidates to the court were …

Military Justice At Abu Ghraib, Jeffrey F. Addicott

Faculty Articles

Previous efforts to denigrate the credibility of U.S. war policies in the War on Terror pale in the wake of the prisoner abuse scandal at Abu Ghraib. Photographic evidence of American soldiers abusing detainees created a firestorm of allegations concerning illegal interrogation practices and threatened to derail fundamental legal and policy pillars upon which America conducts the War on Terror. It raised the question of whether the prison abuse reflected a systemic policy to illegally obtain information from detainees or isolated acts of criminal behavior by a handful of soldiers. Thanks to several investigative reports, the legal and policy pillars …

Law School Branding And The Future Of Legal Education., Michael Ariens

St. Mary's Law Journal

It is too early to determine if law school branding will have a positive or a negative effect on legal education. A recent shift in legal education has led law schools to consciously brand themselves, claiming an educational distinctiveness in selling their services to consumers. Branding is an attempt to create a desire in targeted prospective students to join the branded law school. Although a law school may brand itself by claiming it delivers an excellent legal education, branding is about distinctiveness, not quality. Law schools have used a number of approaches to attract students, including aggressive marketing of a …

A Special Forces Human Rights Policy, Jeffrey F. Addicott

Faculty Articles

The use of the United States military to promote human rights values in foreign militaries has taken on a much added significance in the post-Cold War era. Emerging democracies often look to American soldiers to assist them in establishing a law-based military whose policies, rules, and practices are rooted in respect for human rights.

Major General Kenneth Bowra, United States Army Special Forces Command (Airborne) (USASFC(A)), has made the promotion of human rights in the militaries of the emerging democracies a top priority for the Army Special Forces. With regard to America’s desire to inculcate human rights values in friendly …

Legal Training Handbook For The Ukrainian Military, Jeffrey F. Addicott

Faculty Articles

In May of 1995, a democracy building project between The Judge Advocate General of Ukraine and United States Army lawyers was completed in Kiev. Over the course of this eight-month project, from September 1994 to May 1995, United States Army judge advocates from the International and Operational Law Division, Office of The Judge Advocate General, worked directly with Colonel Alexander Bokov, Chief, Legal Service of the Ministry of Defense of Ukraine, in developing a legal training handbook for Ukrainian soldiers.

The handbook, entitled “Code of Conduct for Participants in Military Operations,” now serves as the primary training guide for instructing …

Gays And Lesbians In The Military: A Rationally Based Solution To A Legal Rubik’S Cube, David A. Schlueter

Faculty Articles

This article addresses legislation which was an attempt to accommodate homosexuals serving in the military. The author concludes that Congress had a rational basis for adopting a policy of limited accommodation. The issue of homosexuals in the armed forces presented Congress with a significant challenge to the exercise of its constitutionally-based powers to regulate the military. Prior to the enactment of the “don’t ask, don’t tell” policy, homosexuals were banned from service in the United States military. Congress had the option to continue the ban on homosexuals in the military, become fully accommodating by allowing them to serve openly, or …

Recent Army Jag Corps Initiatives To Enhance Human Rights, Jeffrey F. Addicott

Faculty Articles

The Army Judge Advocate General’s Corps (JAGC) has recently undertaken two significant initiatives. These initiatives are designed to enhance human rights training at the United States Army School of the Americas (SOA). First, in August of 1994, an Army judge advocate, Major Dennis Cruz-Perez, was assigned to a field grade officer staff position at the SOA. Second, the International and Operational Law Division, Office of The Judge Advocate General, has developed a new three-hour block of instruction designed to teach students how to conduct and institutionalize human rights training in their own militaries..

The development of a new block of …

Policy Guidance For The Transfer Of Dod Installations To The Government Of Panama, Jeffrey F. Addicott

Faculty Articles

Under the provisions of the 1977 Panama Canal Treaty, all United States military forces will be withdrawn from the Government of Panama (GOP). Additionally, by December 31, 1999, all United States military installations and other facilities will be turned over to the GOP.

To better accomplish the transfer of Department of Defense’s (DOD) installations to the GOP, the Panama Canal Treaty Implementation Plan Agency (TIPA) released a comprehensive policy guidance document (PGD) entitled “Policy Guidance for the Transfer of DOD Installations to the Government of Panama.” Army lawyers have been instrumental in helping draft this document, and the four major …

Jag Corps Poised For New Defense Missions: Human Rights Training In Peru, Jeffrey F. Addicott

Faculty Articles

The National Command Authority has cited the dissolution of the Soviet Union as cause for the United States Military to expand its role. In addition to its traditional role of fighting wars, the military will take on new nontraditional roles promoting human rights and the rule of law throughout the world. These new military missions will include peacekeeping operations, humanitarian interventions, disaster relief missions, counter-drug activities, and nation-building activities.

As part of this initiative, the United States Judge Advocate General’s Corps (JAGC) provides legal assistance to the militaries of several emerging and struggling democracies. A number of foreign armies and …

The Twenty-Fifth Anniversary Of My Lai: A Time To Inculcate The Lessons, Jeffrey F. Addicott, William A. Hudson Jr

Faculty Articles

The spring of 1993 marks the twenty-fifth anniversary of the My Lai massacre and is an appropriate time to reinforce the lessons learned from the event. Each and every grave breach of the law of war represents a horrible scar on the credibility of the American military, as well as the civilized democracy it protects. In this context, My Lai stands as the greatest emblem of American military shame in the twentieth century. Nothing provides a greater vehicle for inculcating the necessity for strict adherence to the law of war than the lessons from the massacre at My Lai.

While …

Operation Desert Storm, R. E. Lee Or W. T. Sherman?, Jeffrey F. Addicott

Faculty Articles

History has shown that one of the most important elements in a successful combat operation is the quality of the commander. The success of Operation Desert Storm confirmed that American commander, General Norman Schwarzkopf, was no mediocre leader. By extension, the war also paid tribute, albeit a silent one, to a man who is arguably the greatest military leader the United States has ever produced—Robert E. Lee. Not only in the sphere of battlefield tactics, but also in ensuring strict adherence to the laws regulating warfare, Generals Lee and Schwarzkopf had much in common.

Unfortunately, however, many are unaware of …

Codification Of The “Special Forces Exception”, Jeffrey F. Addicott

Faculty Articles

For the past eight years, Army Special Forces units have conducted training and operations with friendly foreign forces outside the United States. The Army has obtained funding for these operations under what has been termed the “Special Forces exception” to a 1986 General Accounting Office (GAO) opinion regarding permissible funds appropriations for foreign exercises.

With the passage of the National Defense Authorization Act for Fiscal Years 1992–1993, Congress has finally codified the Special Forces exception. Subject to a guiding principle regarding the purpose of operations, the commander of Special Operations Command and select others may draw on the Department of …

Military Justice For The 1990’S: A Legal System Looking For Respect, David A. Schlueter

Faculty Articles

Noting that the American military justice system is often the subject of criticism and derision, the author explores the criticisms often leveled at the military justice system and targets a number of areas where the system seems most vulnerable, such as size and composition of the courts-martial, the role of the commander in the system and offers suggestions for reform.

The Twentieth Annual Kenneth J. Hodson Lecture: Military Justice For The 1990'S - A Legal System Looking For Respect, David A. Schlueter

Faculty Articles

The Kenneth J. Hodson Chair of Criminal Law was established at The Judge Advocate General’s School on June 24, 1971. The chair was named after Major General Hodson, who served as The Judge Advocate General from 1967 to 1971. General Hodson retired in 1971, but immediately was recalled to active duty to serve as the Chief Judge of the Army Court of Military Review. He served in that position until 1974. General Hodson served over thirty years on active duty. During that time, he was active in the American and Federal Bar Associations, and he authored much of the military …

Developing A Security Strategy For Indochina, Jeffrey F. Addicott

Faculty Articles

Serious thought must be given to the complex problem of U.S. military retrenchments in the Pacific Rim. One of the most troubling issues is the impact of significant military reductions on those developing nations in the Asian Basin that currently have no garrison of U.S. troops, but are nonetheless friendly to and necessary for American interests. Almost all of friendly Indochina is affected, with Thailand, Malaysia, and Indonesia being of particular significance.

Accordingly, the time has come for policymakers to begin to formulate a post-reduction security strategy for Indochina. Without such a strategy, the cumulative effect of an erosion of …

Proceedings Of The First Center For Law And Military Operations Symposium, 18-20 April 1990, Jeffrey F. Addicott

Faculty Articles

The First Center for Law and Military Operations Symposium was held from 18 to 20 April 1990. It was conducted by the Center for Law and Military Operations of The Judge Advocate General’s School of the United States Army. Sixty participants, representing the Army, Navy, Marine Corps, Air Force, Coast Guard, Department of Defense (DOD), and Department of State attended the symposium.

The symposium covered number of topics including operational law (OPLAW), legal considerations regarding psychological operations (PSYOP), Operation Just Cause, military changes taking place in Europe, the DOD Counternarcotics Mission, and the negotiation and conclusion of international agreements. The …

Court-Martial Jurisdiction: An Expansion Of The Least Possible Power, David A. Schlueter

Faculty Articles

This article examines the statutory and judicial developments that have apparently expanded military jurisdiction. Serving as the core for this discussion is the amendment to Article 2, UCMJ, and the Court of Military Appeals’ decision in United States v. Trottier, 9 M.J. 337 (C.M.A. 1980), dealing with subject matter jurisdiction of courts-martial over drug-related offenses by service members.

The Court-Martial: A Historical Survey, David A. Schlueter

Faculty Articles

In this article, Captain (P) Schlueter describes the development of the legal tribunal known as the court-martial. Beginning with the use of this form of trial in the armies of imperial Rome two thousand years ago, the author traces its evolution through the Middle Ages, to Britain from the Renaissance to the American Revolution. The focus then shifts to the United States, and the focus then shifts to the present day.

Personal Jurisdiction Under Article 2, Ucmj Whither Russo, Catlow, And Brown?, David A. Schlueter

Faculty Articles

The question of personal jurisdiction for military courts in cases of invalid enlistment creates several legal issues. Invalid enlistment cases exist in a legal gray area due to the uncertainty of whether the cases should be tried by civilian or military courts. The age and competence of the enlistee are material to determining jurisdiction. The conduct of the recruiter directly affects whether the enlistee was competent. Congress amended Article 2 of the Uniform Code of Military Justice in order to address these problems. The amendment resolves many of the lingering jurisdictional issues created by Russo and Brown, but fails to …