Well that’s a game changer if upheld on appeal. And we all know that it will be appealed…
Framing retiree jurisdiction as an intrusion on the province of Article III courts may have been what carried the day.
When I first saw the headline, I was skeptical of what reasoning might follow, but this decision just might have enough solid ground under it to get thru the appellate process. It could just as easily be swatted down, though. Time will tell.
I'd like Congress to legislatively extinguish retiree jurisdiction. But I don't suppose it's a priority of anybody with the requisite energy to get it passed over the objections of DoD.
Agree wholeheartedly, Cloudesley, but still pretty surprised. Gutsy opinion, but (at least for me) the correct one. Retiree jurisdiction is nonsense. I was hoping for a 13th Amendment reference, but I'm kinda an a-hole like that. ;-)
As an NCO retiree, it's nice to see this resolved, even if by taxes.
However, losing protections provided by Status Of Forces Agreement (SOFA) could be what led 7th Fleet JAG to go with a GCM in-country in the first place. It is possible that now, with the loss of SOFA, that a extradition trial will be next, and this former marine will be tried for his crimes a second time, in a Japanese Court. I bet Japanese litigators & legislators are watching this issue closely, and this is far from over for said SSGT.
Strikes me as a very solid opinion. I never understood the need to maintain jurisdiction over retirees. It's at best highly theoretical, and the court did a good job of not just relying on the fact that we almost never need retirees to serve, but that even if we did, there's still another step in tying that to a need to maintain UCMJ jurisdiction over them.
The real appellate question, though, is whether courts are going to "second guess" Congress. It's not so much a matter of "is there a good reason to maintain UCMJ jurisdiction over retirees?" (there isn't), it's "is it appropriate for the courts to make the call?" Or, put differently, is the abrogation of certain constitutional protections for trial at court-martial enough to make it unconstitutional?
Week In Review