Today Prof. Schlueter sent us the final draft of his defense of commander disposition authority. Read Taking Charge of Court-Martial Charges (posted in draft form earlier) here.
Editor's note: In the central section of the argument, Part 5, the authors aim to demonstrate an inherent connection between commander disposition authority and good order and discipline. The core of this section is a citation to the famous case Curry v. Secretary of the Army, 595 F.2d 873, 878 (D.C. Cir. 1979). But Curry is a judicial defense of the congressional balance struck regarding Due Process in military justice.
It is an expression of judicial restraint: "At the outset, we note the difficult burden a litigant shoulders when he challenges congressional decisions governing military practices. Article I, section 8 of the Constitution empowers Congress to “make Rules for the Government and Regulation of the land and naval Forces.” The importance of maintaining an effective military to insure national security renders this power especially broad. Consequently, a court reviewing legislatively approved military procedure “must give particular deference to the determination(s) of Congress.” Curry v. Sec'y of Army, 595 F.2d 873, 876–77 (D.C. Cir. 1979).
What, then, would Curry have to say to a legislator who is herself tasked with striking the balance?
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