Dan Maurer, WAR CRIME CLEMENCY: THE PRESIDENT’S SELF-DEFEATING PARDON:
"A president’s long-recognized discretion to pardon just about any offense for literally any reason at almost any time leaves little room to argue that such power can be constrained any further by law. Supreme Court decisions, scholarship, and presidential precedent over the last two centuries amply (though grudgingly) support a theory of nearly unilateral and “unfettered” authority, perhaps a last vestige of the British monarchy left in the hands of a democratically accountable chief executive – controversial, but nevertheless constitutional. But when it comes to a specific class of misconduct – war crimes – interpreting and applying this constitutional power requires a second look, for it invariably intersects with another Article II power – a president’s role and authority as the military’s commander-in-chief. Rather than amplifying this other long-recognized discretionary power to wage war, the pardon power arguably weakens it under certain conditions. This intersection is not merely an academic puzzle on the nature of presidential power; it is a collision of a president’s right with a series of quite specific presidential responsibilities and authorities over the military’s criminal justice system he has only because Congress believes that a commander-in-chief should wield them. The collateral damage from this collision ironically harms the very institution and profession the president relies on for military action, advice, and ability. Whether this damage is historically contingent on particular presidents or is a predictable consequence of all such pardons is a question that cannot be answered yet.
That is because President Trump’s three war crime pardons in 2019 were historic firsts: never before had a president pardoned any soldier for conduct incidental to combat action that violently victimized a non-combatant who was otherwise protected by the international laws of war from unlawful armed force. They were a proof of concept that a president could indeed “go there;” but they were also a proof of consequences not yet fully explored in the literature and not at all by the courts. In exercising his singular strength by pardoning war crimes, a president’s power and credibility is paradoxically weakened for three reasons: he ignores or rejects the duties imposed on the very institution he relies on to achieve political objectives through armed force; he devalues the professional expertise of his military agents; and he delegitimizes the military criminal justice system that this institution relies on to promote, enforce, and signal its professional commitments to certain martial values, norms, and requirements – including adhering to the laws of war. Flexing muscle on one arm atrophies muscle on the other. The contrary view is that constitutionally required civilian control of the armed forces means his discretion to flex or atrophy his credibility with the military whenever he wants.
Trump’s war crime pardons offer an opportunity to explore whether common arguments and conventional applications of the pardon power are entirely relevant to this class of offenses and this kind of offender. This article suggests, because they lead to a self-defeating paradox (the collision between two independent and stout express Article II powers), that they are categorically distinct; it sketches this new prudential argument for curtailing war crime pardons based on a president’s “standing” or relationship he necessarily bears to the military as its commander-in-chief and to the conduct he absolves. Any future case for judicially invalidating such a pardon, for legislating a containment strategy to (at least) deter such a pardon, or for adopting a set of principles for presidential self-restraint, must account for this challenge."
Navy Times: A top Navy recruiter touched a colleague’s breast without her consent. He wasn’t charged.
Geoff Ziezulewicz, A top Navy recruiter touched a colleague’s breast without her consent. He wasn’t charged, Navy Times:
"Not charging such a case is “an absolute knife in the back to good order and discipline,” said Don Christensen, a retired Air Force colonel and one-time chief prosecutor for the service who now leads Protect Our Defenders, a nonprofit that advocates for change in how the military handles sexual assault.
“The more senior you are, the higher standards you are held to,” Christensen told Navy Times after reviewing the NCIS investigation. “If you have a crisis of sexual assault and sexual harassment in your institution, and you have someone of a senior rank committing sexual harassment and assault and you have the evidence to prove that … that’s a pretty easy call.”
“It fuels the belief that is too often a reality, that there are different punishments for junior enlisted,” he said."
"Petition for Grant of Review - Summary Disposition
No. 21-0155/AR. U.S. v. Omar A. Hernandez. CCA 20160217. On consideration of Appellant's petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*
* It is directed that Specification 4 of Charge III in the promulgating order dated 18 November 2016 be corrected by deleting the words "cause sexual commit" and substituting the words "commit sexual contact."
Miscellaneous Docket - Summary Disposition
No. 21-0327/AR. Ramon M. Marrero, Appellant v. United States, Appellee. CCA 20210358. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is dismissed for lack of jurisdiction.
Order Granting Petition for Review
No. 21-0304/MC. U.S. v. Christopher J. Nelson. CCA 202000108. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
DID THE MILITARY JUDGE AND THE COURT BELOW ERR IN FINDING THAT APPELLANT VOLUNTARILY PROVIDED HIS SMART PHONE PASSCODE TO LAW ENFORCEMENT WHEN THE LAW ENFORCEMENT OFFICIAL CONDUCTING THE INTERROGATION ASSERTED THAT HE POSSESSED A SEARCH AUTHORIZATION FOR THE PHONE AND APPELLANT ONLY PROVIDED HIS PASSCODE BECAUSE APPELLANT BELIEVED HE HAD "NO CHOICE?"
Briefs will be filed under Rule 25."
Why is "no choice" in quotes?
No. 20-0359/NA. U.S. v. Salvador Jacinto. CCA 201800325. On consideration of Appellant's and Appellee's motion to file petitions for reconsideration of this Court's decision, United States v. Jacinto, 81 M.J. __, (C.A.A.F. July 15, 2021), and the motion from Protect Our Defenders as amicus curiae filed in support of Appellee's petition for reconsideration, it is ordered that the motion of Protect Our Defenders to file an amicus curiae memorandum is denied, that Appellee's petition for reconsideration is denied, that Appellant's petition for reconsideration is denied in part and granted in part, and that pursuant to the granted portion: that footnote 13 of the subject opinion is modified to read, "Because of the standard of review, any medical or psychiatric records that were generated after the convening authority's action are not relevant for appellate review of the granted issues.""
Comment: "The Court’s refusal to accept amicus briefs filed by attorneys with an actual interest in the case while trolling for amicus briefs that would presumably be authored by law students under the direction of a faculty member is counterintuitive and unfortunate.... It risks damaging its reputation by shutting out members of the bar while not merely catering to but actively soliciting the involvement of law students. Acceptance of amicus briefs should be done as a matter of course, as it is at the Supreme Court....Historically, the Court at times went further out of its way to accommodate amici than do other appellate courts, e.g., Murray v. Haldeman, 15 M.J. 337 (C.M.A. 1983) (mem.) (special hearing arrangements), and the repeated denials of leave to would-be amici reflect an unfortunate and inexplicable shift from that general approach. As Judge Baker (joined by Chief Judge Effron) commented in dissent in Green, 68 M.J. 206, at n.*, the rules do not preclude amicus briefs that seek to inform it as to how the issue(s) presented in a case will impact “the broader and uniform application of the law, including in [the amicus’s] case.” Nor do they “indicate the standards by which this court should evaluate such a request. In that context, the courthouse door should be open, not closed.” Id. "
E. Fidell, B. Fissell, & D. Sullivan, 1 CAAF Rules Guide § 26.03 (2021).
UPDATE: Brief below. It may be that this amicus was rejected for some procedural defects.
Marine Cpl. WMcH refused to comply with a mask mandate and doesn't want to be vaccinated against COVID-19.
Military.com tells us.
(Aug. 24, 2021.)
COVID-19 Travel Restrictions Installation Status Update. (Aug. 25, 2021.)
-Current Term Opinions
Joint R. App. Pro.
Global MJ Reform
LOC Mil. Law