The complicated history of determining lesser included offenses (LIOs) under the Uniform Code of Military Justice (UCMJ) gained a new chapter with the Military Justice Act of 2016 (MJA 2016). While MJA 2016 simplified and clarified certain areas of military justice, it has only muddied the waters regarding LIO identification. Prior to MJA 2016, determining the LIO of a given punitive article under the UCMJ required performing a strict elements test from United States v. Jones; this test often proved challenging to counsel and judges alike. Confusion over LIOs was particularly common when it came to the relationships between the various rape and sex offenses, and determining which LIOs they implicated.
MAJ Andrew M. Lewis, The Lego Test for Lesser Included Offenses: MJA 2016 Provides Something New and Painful to Stumble Over. Army Lawyer, No. 6, 2021.
Four months ago, this blog discussed two appeals—one to the CAAF and one to the Court of Appeals for the District of Columbia (CADC)—that addressed whether Congress could constitutionally subject members of the Fleet Reserve and Fleet Marine Corps Reserve (collectively Fleet Reservists) to the UCMJ. The first domino, United States v. Begani, has now fallen.
As a reminder, an enlisted member of the Navy or Marine Corps may transfer into the Fleet Reserve or Fleet Marine Corps Reserve after twenty years of active-duty service. Fleet Reservists receive retainer pay, are subject to recall, and must maintain military readiness. Article 2(a)(6), UCMJ, subjects Fleet Reservists to continuous UCMJ jurisdiction.
I came across this case today:
"Defense Department Linguist Sentenced to 23 Years in Prison for Transmitting Highly Sensitive Classified National Defense Information to Aid a Foreign Government
Mariam Taha Thompson, 62, formerly of Rochester, Minnesota, was sentenced today to 23 years in prison for delivering classified national defense information to aid a foreign government. As part of her March 26 guilty plea, Thompson admitted that she believed that the classified national defense information that she was passing to a Lebanese national would be provided to Lebanese Hezbollah, a designated foreign terrorist organization."
Doesn't this seem like a very harsh sentence? I am curious what your intuitions are.
POLL: Was this too harsh, just right, or too lenient?
No—wait, the door was not open; yes, it was—no, it wasn’t. The CAAF has decided United States v. Steen. Appellant was convicted of wrongfully introducing marijuana onto a military installation and then distributing it. The members sentenced Appellant to a BCD, fifteen days confinement, and reduction to E-1.
The CGCCA found a harmless error in admitting text messages about other drug related conduct and affirmed. A three-two majority at CAAF agreed with the CGCCA that the military judge abused his discretion by admitting evidence as propensity but disagreed the error was harmless. At trial,
Appellant moved to suppress the text messages as inadmissible character evidence. The prosecution responded, asserting they were admissible under M.R.E. 404(b) for another purpose—to show that Appellant was out of marijuana a few days after he allegedly sold it to SA Harris. The theory was that this demonstrated a plan to acquire and distribute marijuana continually. The military judge granted the motion to suppress but advised the prosecution he would reconsider his ruling if the prosecution thought the defense opened the door to the evidence.
The accused having testified; the military judge then ruled he had opened the door to the ‘suppressed’ evidence. The military judge also instructed the members how they could consider Appellant’s answers in cross-examination about the text messages.
Consider evidence that [Appellant] may have texted about purchasing or smoking marijuana in the days following the alleged misconduct for the limited purpose of its tendency, if any, to prove the Government’s allegation that [Appellant] allegedly needed to replenish his supply of marijuana based on their allegation that [Appellant] had sold marijuana to Seaman Apprentice Harris. You may not consider this evidence for any other purpose, and you may not conclude from this evidence that [Appellant] is a bad person or has general criminal tendencies and that he, therefore, committed the offenses charged.
In a case of conflicting testimony, CAAF added that the improper evidence added “new ammunition” to the prosecution that undermined the credibility of Appellant’s case. The government subsequently bears the burden of showing the error was harmless. The majority applied the four-factor test in United States v. Yammine (the strength of the Government’s case, the strength of the defense’s case, the materiality of the evidence in question, and the quality of the evidence in question). They then held that the government did not meet their burden of proof in showing the admission of the text messages were harmless. United States v. Yammine, 69 M.J. 70 (C.A.A.F. 2010).
Both Judge Sparks and Judge Maggs dissented. Judge Sparks, joined by Judge Maggs, stated that the introduction of the text messages was a proper rebuttal to Appellant’s broad assertion that he never failed any of the twelve to fifteen drug tests while in active duty. Appellant’s testimony suggests a specific character trait. * Thus, admission of the text messages was a logical and proper impeachment of the offered testimony. It follows that the erroneous instruction of the military judge was harmless.
Judge Maggs, joined by Judge Sparks, took a different approach in his dissent. Judge Maggs briefly agreed with Judge Sparks’ admissibility determination but then turned his attention to realigning the law of the case doctrine with the cross-appeal doctrine. Rejecting Appellant’s view that issues decided in lower courts are considered the law of the case in subsequent proceedings if not raised in a cross-appeal, Judge Maggs urges this court to follow the Supreme Court in Christianson. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (“law of the case cannot bind this Court in reviewing decisions below”). Thus, Appellant’s petition for review “exposed the entire case for review,” and this Court has the discretion to consider the issue of admissibility even if the Government did not certify that issue.
Judge Maggs pointed to the cross-appeal doctrine as support for this conclusion. The cross-appeal doctrine allows the prevailing party to defend the lower court’s judgment on any ground “whether or not that ground was relied upon, rejected, or even considered by [the lower courts].” Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 476 n.20 (1979). However, Judge Maggs concludes that “it makes no sense to expect a party that prevails in a lower court to appeal the judgment of that court” as it would prove to be a waste of judicial resources. United States v. Savala, 70 M.J. 70, 79 (C.A.A.F. 2011). Affirm the CGCCA decision, says Judge Maggs.
Noelle Peragine, at the CAAF Desk.
(Ed. Note. Broad testimonial denials are dangerous to an accused when known (or unknown [do clients always tell you everything?]) other conduct exists. I tend to agree with Judge Maggs but would hope a Mil. R. Evid. 403 analysis might work to exclude the evidence. “Danger, Will Robinson.”)
In United States v. Briggs, the U.S. Supreme Court held that the Uniform Code of Military Justice (UCMJ) contains no statute of limitations for rape. Beyond the three convicted rapists who brought the appeal, few will be very disappointed to learn of this ruling. People who commit rape deserve punishment, regardless of how long they have managed to get away with their crimes. Nonetheless, we can profitably notice when Courts give us desirable results by stretching the language of statutes. Such observation is especially useful in refuting that same Court’s helpless claims, in other contexts, that the statute dictated the result. It is rare indeed for a statute to make judges do anything that they do not wish to do.
Sherry F. Colb, United States v. Briggs: The Court Reaches a Wrong but Just Result. Verdict, 28 June 2021.
From the SCOTUS Desk.
This thread about an active duty servicemember being tried in federal court for Putsch-related offenses reveals some significant confusions. Prof. Vladeck even weighs in with an attempt to disabuse. The public does not accept the separate sovereigns doctrine.
The thread is also interesting because it reveals the punitive impulses of many (most?) people who clamor for a post-federal military proceeding.
On June 23, 2021, Joint Chiefs of Staff Chairman General Mark Milley testified before Congress on when the topic of Critical Race Theory (“CRT”) training in the Department of Defense appeared at the forefront of his testimony. Over the last few weeks Republican members of Congress have pushed for legislation banning CRT in education, claiming that it is anti-American and divisive. As of June 25, 2021, Arkansas, Idaho and Oklahoma have banned CRT training while over 20 additional states are considering similar legislation.
CRT is a topic every military leader should become familiar with as the U.S. military does not have a reputation for making strong efforts to promote diversity and inclusion in their ranks. In fact, the military's most senior leaders who were famously photographed alongside Donald Trump in the Oval Office, are all White men. Further, the last decade has seen dozens of headlines smearing social movements like Black Lives Matter and attacking individuals who push for anti-racism.
Gen. Milley firmly stated “…I personally find it offensive that we are accusing the United States military, our general officers, our commissioned, noncommissioned officers of being, quote, 'woke' or something else, because we're studying some theories that are out there." This came in response to Representative Matt Gaetz, who is currently under investigation by Federal authorities for sex trafficking minors, asking “how should the department of defense think about Critical Race Theory?” Unsurprisingly Rep. Gaetz began his question with his own discordant opinion, that mandated CRT training is the number one concern among military Officers. He further claimed that these concerns were particularly high among units with greater minority service members—where CRT training is needed most. Unfortunately for Gaetz, Gen. Milley responded in defense of CRT “…what is wrong with understanding [critical race theory] — having some situational understanding about the country for which we are here to defend?"
Due to CRT’s frequent mis-categorization as “political” or “polarizing,” it is uncommon to hear such a brazen, public defense from a leader like Gen. Milley. Typically, military leaders have toed the line of neutrality when it comes to issues that surround race and systemic racism in our military, not realizing how loud their neutrality is to BIPOC (“Black, Indigenous, People of Color”) service members. The usual response to questions surrounding race is that we are all one military or that we’re all one color, “green.”
On the other hand, it is tough to give full credit to Gen. Milley’s statements as they seem to be too little, too late. Last June, Gen. Milley escorted former President Trump to St. John’s Church for his famed Bible photo, a photo that was taken immediately after Trump ordered tear gas onto Black Lives Matter protesters. Yet, learning anti-racism is a life-long process that requires bold, public commitment like Gen. Milley’s.
There is no doubt that the U.S. has a long history of White supremacy and systemic racism, both of which have found their way into the rank and file. These notions are often challenged with outcries of “woke” culture or “cancel culture.” However, Gen. Milley put it well when he claimed, “what is wrong with having awareness?” This seems to be the critical point that the GOP and service members who politically align with the GOP tend to miss. Erasing CRT training largely erases the cultural identities of service members who are making an equal sacrifice and sending a message that their experiences do not matter. BIPOC soldiers are often choosing the military over low-income jobs, or because they are seeking access to housing, education, and health care, all the while submitting themselves to grueling treatment in training and combat environments.
If General Milley can come forward and rebut ill-placed claims of “wokeness” around the theories that shed light on the truth of our nation’s history, more leaders should feel empowered to follow suit. The fragility of CRT opponents is much deeper than what it appears. It is more than a challenge to the American history they know and choose to believe, but a challenge to the power they hold. To accept CRT would mean to admit that America is a flawed nation with a soiled history of oppression and brutalization. But what CRT opponents fail to perceive is that this is okay. To see progress and build America to be the great nation we know it to be, we must learn from our past and acknowledge the pain we have caused to so many. Being a “woke” military should not come as an insult indicating weakness, but as a strength in understanding who we are as a nation.
"Order Granting Petition for Review
No. 21-0243/AF. U.S. v. Derrick O. Williams. CCA 39746. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
WHETHER THE AIR FORCE COURT ERRED BY FAILING TO CONSIDER APPELLANT'S ERRONEOUS DEPRIVATION OF PAY WHILE SERVING HARD LABOR WITHOUT CONFINEMENT, PROPERLY RAISED AS AN EIGHTH AMENDMENT VIOLATION, WHEN ASSESSING SENTENCE APPROPRIATENESS.
No briefs will be filed under Rule 25."
[Ed. note: The AFCCA opinion is here. At AFCCA, the issue was AOE (5) whether Appellant’s sentence was rendered unlawfully severe when he was not correctly paid while he served his sentence[?]
If you have a paper draft sitting around and don't know what to do with it, consider sending it here:
"The Editorial Board of The Military Law and the Law of War Review / Revue de Droit Militaire et de Droit de la Guerre (MLLWR) is pleased to invite submissions for the upcoming Volume 59 Issue 2, due for publication in late 2021.
The Review's editorial board welcomes submissions that come within the broader scope of the Review, including military law, law of armed conflict, law on the use of force, as well as international criminal law and human rights law (inasmuch as related to situations of armed conflict).
For Volume 59 Issue 2, the deadline for submission has been extended to July 4, 2021. Submissions should be sent to firstname.lastname@example.org and will be subject to double-blind peer review.
Articles should normally not be longer than 15,000 words (footnotes included), although longer pieces may exceptionally be considered.
Inquiries as to whether a possible submission comes within the scope of the Review can be sent to the above mentioned email address. "
The 26-comment thread below has broken the spirits of the editorial team--not due to content, but due to volume of reading. Going forward, comments will be moderated ex post instead of ex ante. Thus, comments will be presumptively approved and posted, but may be removed after a brief life on the site upon review or complaint (please report any objectionable comments to email@example.com).
We would like to know if it is important to most readers that the site be accessible on DoD IT systems. The reason for this is that WordPress, a far superior (and cheaper) blogging platform that we would like to use, is blocked on those systems. If we could transition without disrupting readers, that would be ideal. Please indicate your preferences here:
VETERANS & MILITARY LAW & POLICY eJOURNAL
"Keeping in Step With 'Swift Discipline': Why Some Cases Should be Disposed of By Discharge Instead of Court-Martial"
RACHEL BARR, St. Mary’s University School of Law
This paper proposes that certain low-level offenses committed by military members would be better disposed of by administrative discharge proceedings rather than court-martial proceedings. I address the costs associated with prosecuting a case versus processing an administrative discharge, the timelines associated with these actions, and other considerations. The idea behind this proposition is to bring to light the unique needs of the military mission, and that above all, military JAGs and Commanders must ensure good order and discipline is maintained. Ultimately, it is more cost and time effective to quickly remove a member from the military via a discharge when low-level offenses are committed versus keeping them in the service while pending court-martial charges. Low-level offenses in this context include specifically drug use and possession offenses, and other non-violent, non-sexual misconduct offenses that are likely viewed as petty misdemeanors or other trivial misdemeanors.
"Addressing Sexual Misconduct in the United States Military: An Organizational Approach"
Temple Law Review, Vol. 94, No. 2, 2022
LAURA T. KESSLER, University of Utah - S.J. Quinney College of Law
SAGEN GEARHART, J.D., University of Utah
Sexual assault and harassment are ongoing problems in the military. This Article, co-authored by an expert on workplace sex discrimination and a former military officer, examines this problem from an organizational perspective. Social science research finds that organizational climate and composition strongly predict the occurrence of sexual harassment. A positive organizational climate decreases the prevalence of sexual harassment, reduces retaliation against those who report it, and lessens its job-related and psychological impacts. In contrast, organizations that tolerate sexual harassment are associated with greater levels of harassment and worse outcomes for victims. Workplaces where men significantly outnumber women are also associated with increased rates of sexual harassment.
Building on this social science research, we propose a set of legal and policy reforms designed to improve the representation of women in the military and reduce its hypermasculine culture. These reforms include establishing diversity goals and targets, instituting gender-neutral physical fitness standards, and ending male-only draft registration. As our analysis demonstrates, these organizational reforms are both permitted and mandated by constitutional law.
"The Doctor Will Judge You Now"
University of Cincinnati Law Review, Vol. 89, No. 4, 2021
BLAIR THOMPSON, Maurice A. Deane School of Law
Disability adjudicators within the U.S. Department of Veterans Affairs often adopt the medical opinions of the agency’s medical examiners as legal reasoning. While Courts and scholars have compared the role of the medical examiner in the adjudication of a veteran’s claim to that of an expert witness, this Article posits that the role of the medical examiner is more accurately described as that of the judge. This Article argues that this arrangement of roles violates veterans’ right to due process in the adjudication of their disability claims.
Scholars have noted that Congress and Courts have been reluctant to apply procedural due process protections to veterans’ disability claims out of a desire to maintain an ostensibly veteran-friendly and nonadversarial adjudication system. This Article points to another reason for that reluctance, which is the assumption that the adjudication of veterans’ disability claims turns on simple questions of medical evidence, which by its very nature is inherently free from bias or error from which procedural due process would protect. By explaining the various factual and legal analyses involved in the adjudication of veterans’ disability claims, and by applying the due process analyses outlined by the U.S. Supreme Court in Goldberg v. Kelly, Richardson v. Perales, and Mathews v. Eldridge, this Article demonstrates how additional procedure is constitutionally warranted to protect veterans with disabilities from the erroneous deprivation of their benefits.
Additional procedure is especially warranted to protect against the erroneous deprivation of veterans' benefits since the U.S. Department of Veterans Affairs decided in the fall of 2020 that it will no longer use VA employees to conduct disability exams, but will outsource all veterans' disability exams to private contractors.
"Review of Recent Veterans Law Decisions of the Federal Circuit 2020 edition"
American University Law Review, Vol. 70, No. 4, 2021
ANGELA DRAKE, affiliation not provided to SSRN
YELENA DUTERTE, University of Illinois at Chicago - UIC John Marshall Law School
STACEY-RAE SIMCOX, Stetson University - College of Law
This Article continues last year’s in-depth review of veterans law cases decided by the Federal Circuit, published by the American University Law Review. In the year 2020, the Federal Circuit further clarified the law applicable to veterans cases, including the parameters of the class action device and the need for robust analysis in cases challenging agency delay and inaction. The court significantly expanded veterans’ ability to challenge regulations and manual provisions directly in the Federal Circuit. It created new law with regard to the presumption of competency applicable to Department of Veterans Affairs (VA) examiners and explored the parameters of VA’s duty to sympathetically read claims. The Federal Circuit also issued important decisions regarding “effective dates” impacting the amount of money veterans can receive where claims linger for years in the adjudicative process. Finally, the court confirmed the validity of VA’s definition of willful and persistent misconduct.
"How Transgender and Non-Binary People are Ignored in the Male-Only Military Draft Debate"
MICHAEL CONKLIN, Angelo State University - Business Law
The constitutionality of an all-male military draft is currently being litigated in National Coalition for Men v. Selective Service System. Unfortunately, the effect this issue will have on transgender and non-binary people is largely being ignored. This essay considers how current Selective Service standards are not only psychologically harmful to transgender and non-binary people but also how they negatively affect their ability to receive college financial aid, federal jobs, and job training.
"A Constitutional Balancing Act: Courts-martial as an Exercise in Diplomacy"
Columbia Journal of Transnational Law, Vol. 60
ALEXIS ARCHER, Columbia Journal of Transnational Law
In 1957, Supreme Court Justice Hugo Black observed that, “[t]raditionally, military justice has been a rough form of justice.” Extraterritorial military jurisdiction charges defendants under the Uniform Code of Military Justice (“UCMJ”) and prosecutes through courts-martial. It also abrogates presumed fair trial guarantees and can impede fairness to the defendant. This Note explores the legal ambiguity surrounding United States (“U.S.”) government presence in foreign countries—a presence which includes active-duty service members, dependents, contractors, and former military. By exploring a recent case in which the defendant, a retired Marine, committed an overseas crime with no military nexus or “service connection,” and was subsequently court-martialed, it becomes clear that retirees fall into a jurisdictional gray area. This Note asserts that military jurisdiction should be narrow—not used as a tool to foster foreign-relations and American expansionism. The question here is whether the policy and diplomatic considerations are significant enough to justify the tradeoffs of encroaching on the constitutional protections afforded by civilian federal criminal justice.
The National Institute of Military Justice, in cooperation with CAAFlog and Global Military Justice Reform, today released the Military Justice Reform Sourcebook for Legislators and Journalists (June 2021).
"The U.S. Supreme Court won’t examine the issue of race and jury selection in military courts-martial, rejecting the appeal of a Black service-member convicted by an all-White panel of sexual misconduct against White women.
Declining review of the case on Monday, the justices passed on considering how the U.S. Constitution’s prohibition on race discrimination in the jury-selection process applies to the military’s unique trial system." Bloomberg reports here.
From this new article by Maj John S. Reid:
"This Article will first provide a brief history of substantive due process related to consensual private relationships. It will then examine various contexts in which military members’ private lives are potentially regulated. In many of these contexts, it will be apparent that military jurisprudence has not caught up to recent Supreme Court precedent. This Article will then examine how two analogous privately held rights, the Fourth Amendment expectation of privacy and the First Amendment right to free speech, are treated by military law. Utilizing these two examples as possible vehicles for a new standard of review in the context of service members’ privacy, this Article proposes a new rule for military courts to adopt. Articulating such a standard is imperative for military justice practitioners and commanders to successfully navigate the substantive due process landscape."
Editor's note: I always thought Marcum was one of the most bizarre CAAF opinions ever written.
Professional Criminal Prosecution Versus The Siren Song of Command: The Road to Improve Military Justice. Just Security, 21 June 2021.
Fact: Military commanders do not require prosecutorial discretion over serious criminal offenses by their service members in order to ensure good order and discipline within their units.
The Two Men Blocking Military Sexual Assault Reform
"The military has long argued that removing prosecutorial decisions from the chain of command would undermine commanders’ authority and harm the services. But that claim doesn’t withstand much serious scrutiny."
Military justice reform, 'pink courts,' and unit cohesion
"Creating “pink courts” will destroy unit cohesion. It is difficult to imagine a surer way of turning back the clock on all the progress our country has made in integrating women in uniform, including opening occupational specialties, admission to the service academies, qualification as pilots of warplanes and commanders of naval ships and Coast Guard cutters, and promotion to flag and general officer ranks."
Editors note 6/19: The Two Men Blocking Military Sexual Assault Reform. Editorial Board, New York Times.
Editors note 6/18:
Sen. Gillibrand "said she hopes lawmakers will be convinced by data that shows racial bias in prosecution decisions made by the military. And she argued that limiting the change to sexual assault would be discriminatory — setting up what some call a "pink" court to deal with crimes usually involving female victims.
"I'm deeply concerned that if they limit it to just sexual assault, it will really harm female service members. It will further marginalize them, further undermine them, and they'll be seen as getting special treatment," she said.
Editor's note 6/16: Instead of focusing on the merits of the issue, the discussion below focuses on the propriety of using the word "pink." "Pink" was not chosen by the authors of the article, but by Senator Gillibrand:
See here at 11:18: https://www.wnyc.org/story/the-brian-lehrer-show-2021-06-15/
See here: https://www.youtube.com/watch?v=EY75Tlpy9Cw
Editor's note 6/12: this was likely written before the hearing this AM. That hearing (see below) indicates that Pink Courts are the preference of the DoD.
United States Supreme Court
Orin S. Kerr, Decryption Originalism: The Lessons of Burr, 134 Harv. L. Rev. 905 (2021). Courtesy of John Wesley Hall @fourthamendment.com
The Supreme Court is likely to rule soon on how the Fifth Amendment privilege against self-incrimination applies to compelled decryption of a digital device.
Supreme Court of South Carolina
For those of us doing court-room work, one of the first questions asked of us is, "will I have to register?" In South Carolina the answer remains, "likely." But for how long is discussed in Powell v. Keel, No. 28033 (S.C. June 9, 2021).
Although we find the State has a legitimate interest in requiring sex offender registration and such registration is constitutional, SORA's requirement that sex offenders must register for life without any opportunity for judicial review violates due process because it is arbitrary and cannot be deemed rationally related to the General Assembly's stated purpose of protecting the public from those with a high risk of re-offending. Therefore, we hold SORA's lifetime registration requirement is unconstitutional absent any opportunity for judicial review to assess the risk of reoffending. We further hold subsection 23-3-490(E) permits dissemination of the State's sex offender registry information on the internet. We hereby reserve the effective date of this opinion for twelve (12) months from the date of filing to allow the General Assembly to correct the deficiency in the statute regarding judicial review. Nonetheless, because the circuit court has already held a hearing in this case and determined Respondent no longer poses a risk sufficient to justify his continued registration as a sex offender, Appellants shall immediately remove Respondent from the sex offender registry.
United States v. Steen, decided Monday by CAAF, seems like a case unlikely to snag a grant, let alone generate vigorous dissents. Petty Officer Steen prevailed. But I predict Steen—or, more precisely, Judge Maggs’s dissent in Steen—will be cited frequently by the government.
Seaman Apprentice Harris was busted by civilian police with two grams of marijuana and a pipe. Unsurprisingly, the civilian police weren’t too interested, but the Coast Guard was happy to investigate. Harris said that he got his marijuana from Petty Officer Steen, his former boss, who was then on terminal leave.
A search of Steen’s phone showed that Steen and Harris had in fact been in contact around the time of the alleged distribution. It also showed that days after Steen was supposed to have given the marijuana to Harris, Steen sent text messages to civilians seeking marijuana.
Steen moved to suppress the texts as improper character evidence. The government sought to admit them under MRE 404(b), arguing that the texts showed that, having given marijuana to Harris, Steen needed to replenish his supply. The military judge kept it out, but said he’d reconsider if the defense “opened the door.”
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