Is Military Justice Sentencing on the March? Should it be? And if so, Where should it Head? Court-Martial Sentencing Process, Practice, and Issues

This article starts with a sketch of the military justice system to orient readers. Understanding that structure, the article then describes the sentencing process for special and general courts-martial. The article follows by identifying two core military sentencing questions: First, should commanders have authority to grant clemency? Second, should the military justice system adopt sentencing guidelines? With respect to each topic presented, the article does not attempt to answer the questions nor offer prescriptions. Rather, it seeks to identify the principal fault lines around which debate should, or will likely, fall. The article next presents ‘‘nutshell’’ introductions to additional sentencing matters that may warrant review as applied in the military context, including the handling of collateral matters, and the relationship between age and culpability. However, for the reasons stated, these issues are not presented in detail here

The National Security Process and a Lawyer’s Duty: Remarks to the Senior Judge Advocate Symposium

September 11 changed so much about our lives and how we perceive national security. Harold Lasswell, in an earlier context, described the sharing of danger throughout society as the “socialization of danger,” which he wrote was a permanent characteristic of modern violence; but not for America until September 11. The socialization of danger has made ordinary citizens participants in the national security process in a way not previously experienced. In addition, it has brought relatively unknown federal agencies, like the Federal Emergency Management Agency and the Centers for Disease Control, to the forefront of national security planning and response. And both of these occurrences have emphasized the importance of viewing terrorism and cyber security as problems requiring effective vertical and not just horizontal process. Where most national security problems require coordination amongst federal agencies, homeland security is equally about coordination between federal, state, and local actors down to the level of first responder and the technician who spots the first medical anomaly. This vertical process will test the manner in which information is shared, resources allocated, and perhaps the level at which decisions of life and death, heretofore made by the President, are taken. Constitutional democracy also means that all decisions are made according to law. And that means that sound Executive process must incorporate timely and competent legal advice. In some cases, legal review is dictated by statute, as in the case of the Foreign Intelligence Surveillance Act (FISA), which requires the attorney general, or his designee, to approve requests for electronic surveillance or physical search before they are submitted to the FISA court. In other cases, the President has directed a specific process to ensure legal review in areas historically prone to peril, including certain intelligence activities. However, the majority of legal advice within the national security process is not directed, but is the product of practice, custom, and personal interchange between lawyer and client. That means that good process requires personal persuasion, presence, and value added, or the lawyer will find he or she is only contributing to decisions where legal review is mandated and then only as the last stop on the bus route. Constitutional democracy does not rest on such process

The National Security Presidency in Constitutional Context: Reflections on Terrorism and the Presidency from the Last Ten Years

In this time of terrorist threat, there is no more important institution to study than the national security presidency. That is because the president is singularly situated to command the instruments to counter terrorism. He is also singularly situated to ensure that such instruments are used effectively, lawfully, and in a manner consistent with constitutional values. I believe I have a duty, based on where I have been, to help others observe and understand the institution of the presidency. I do so because I want the national security presidency to succeed in providing for our physical security and in upholding our constitutional way of life; or, as the president’s constitutional oath states succinctly, “to preserve, protect, and defend the Constitution.” Those who teach, interpret and study the presidency have an important duty to play in this process by testing the institution to ensure that these functions are successfully performed

Letter of Appreciation: Peter Murphy Retires after a Lifetime of Dedication as Counsel to the Commandant of the Marine Corps

This letter reflects upon the retirement of Peter Murphy after 20 years of service as counsel to the commandant of the Marine Corps. Chief Judge Baker discusses Peter Murphy’s moral courage, common sense, and unflinching dignity while serving as counsel. He relates how Murphy has an abiding commitment to the great institutions of his life and of our lives: the rule of law, the military, and the Marine Corps

The Master Mason: How Professor Baldus Built a Bridge from Learning to Law and the Legacy of Equal Justice He Leaves Behind

These are Chief Judge Baker’s remarks eulogizing the late Professor David Baldus. Chief Judge Baker observes that Professor Baldus was an extraordinary educator-lawyer who mastered the fields of social science and statistics. He adds that Professor Baldus was diligent in his research and strived to make the law accessible. Chief Judge Baker discusses how Professor Baldus’s research on the death penalty and proportionality review successfully bridged the law and learning, without ever losing sight of compassion

Ordered Liberty and the Homeland Security Mission

This paper will start with a brief discussion of the terrorism threat because the threat remains predicate for any serious discussion of where we draw our legal lines. I will then suggest a legal model for looking at questions of homeland security called ordered liberty. The model is simple. First, given the nature of the threat, the executive must have broad and flexible authority to detect and respond to terrorism-–to provide for our physical security. Second, the sine qua non for such authority is meaningful oversight. Oversight means the considered application of constitutional structure, executive process, legal substance, and relevant review to decision-making–-all of which depend on the integrity and judgment of government lawyers. Meaningful oversight protects our way of life. It also protects our security by helping decision-makers get it right on the front end of a decision, rather than investigating on the back end. This model does not detail whether civil service rules should apply to the Homeland Security Department, or whether military commissions are a good idea. The paper will suggest some principles and lessons learned that can be applied to such questions. In the process, two false dichotomies will hopefully be debunked: first, that security and liberty conflict; and, second that oversight and security conflict

When Lawyers Advise Presidents in Wartime: Kosovo and the Law of Armed Conflict

The events of September 11 changed how we perceive national security as a society, a government, and as individuals. This is as true of national security specialists, who have been aware that America has been at war with terrorism sine at least the 1990s, as it is for those whose sense of geographic security was shattered in New York and Washington. There is talk of “new war” and “new rules,” and concern that we not apply twentieth-century lessons to a twenty-first-century war. Over time, September 11 and its aftermath will test our interpretation and application of domestic law. It may also test the traditional framework under international law for resorting to and applying force. But much will, and should, stay the same for lawyers. As a result, the objective of this paper is to give some personal insight into the application of the law of armed conflict to the 1999 Nato Kosovo air campaign from the perspective of a lawyer serving the president as commander in chief. National-level legal review is critical to military operations, not just in determining whether the commander in chief has domestic and international legal authority to resort to force, but also in shaping the manner in which the United States employs force. Lawyers also have an important role to play in sustaining “good-government” process, offering a degree of detachment and long-term perspective

The Constitutional Duty of a National Security Lawyer in a Time of Terror

National security lawyers are probably not in the forefront of the public’s mind when one refers to government lawyers, but they serve a vital mission within the public sector. This article explores the duties and responsibilities inherent in that mission, and discusses the continuing role of the national security lawyer after the terrorist attacks of September 11th, 2001

The Twenty Year Test: Principles for an Enduring Counterterrorism Legal Architecture

The United States faces three enduring terrorism-related threats. First, there is the realistic prospect of additional attacks in the United States including attacks using weapons of mass destruction (“WMD”). Second, in responding to this threat, we may undermine the freedoms that enrich our lives, the tolerance that marks our society, and the democratic values that define our government. Third, if we are too focused on terrorism, we risk losing sight of this century’s other certain threats as well as the capacity to respond to them, including the state proliferation of nuclear weapons, nation-state rivalry, pandemic disease, oil dependency, and environmental degradation. The United States should respond to these threats using all available and appropriate security tools, on offense and in defense. Law is one of the essential security tools. Law provides substantive authority to act. Law can also provide and embed an effective process of preview and review to test proposals and validate actions, ensuring that they are both lawful and effective. However, the United States has been slow, or perhaps unwilling, to adopt a legal architecture that maximizes each of these legal benefits. Instead, the political branches have generally adopted an incremental approach, or relied on the President’s authority as Commander in Chief to define the law. This paper describes four principles that should inform the design of a lasting legal architecture to counterterrorism: First, the architecture should reflect an understanding of the strategic value of law in substance, process, and policy. Second, the architecture should reflect the threats it is intended to address, including the potential catastrophic nature of the physical threat, which distinguishes this form of terrorism from that of the past. Third, with limited exception, the law should avoid absolutes—in the authority asserted; in the authority prohibited; or, in bureaucratic design. Finally, the architecture should be lasting, which means among other things that it should be “constitutionally inclusive” in design. A lasting and inclusive architecture will improve security—by maximizing the Executive’s authority to act, sustaining support for tools and policies, and improving the opportunity and efficacy to appraise U.S. actions