Modern Military Justice: Cases and Materials

This textbook is about the modern military justice system of the United States. It covers court-martial procedures, substantive criminal law, and nonjudicial punishment under the Uniform Code of Military Justice, in addition to the Military Extraterritorial Jurisdiction Act, which gives federal courts jurisdiction over certain acts committed abroad. The Third Edition includes several recent cases and updates that address the significant changes made in the 2019 Manual for Courts-Martial, the Military Justice Act of 2016, and other recent legislation

Just the Facts Ma’am : How Military Appellate Courts Rely on Factual Sufficiency Review to Overturn Sexual Assault Cases When Victims are Incapacitated

This article contends that since sufficient protections are now in place in the military justice system, the military courts of criminal appeals no longer require factual sufficiency review authority to protect an accused tried by courts-martial, and furthermore, military criminal courts of appeals should have the same standard of review as other federal criminal courts, that is, a conviction should be tested for legal sufficiency

Informing the Debate About Sexual Assault in the Military Services: Is the Department of Defense its Own Worst Enemy?

In 2013, the Department of Defense (DoD) published its Annual Report on Sexual Assault in the Military Fiscal Year (FY) 2012, reflecting an increase in the number of sexual assaults on military personnel (extrapolated from survey responses) from 19,000 in FY 2011 to 26,000 in FY 2012. The report also provided that in FY 2012, 302 sexual assault courts-martial occurred with only 238 military personnel convicted of sexual assaults committed on military victims, resulting in an alleged conviction rate of less than 1%. Using inflammatory language and misleading statistics, some attacked the prosecution and conviction rates in the military services. Other commentators and some members of Congress criticized how the military handles sexual assault cases, contending that the military justice process is less effective at holding perpetrators accountable than its civilian counterparts, and proposing profound changes in the military justice system. This Article explains that the 26,000 extrapolation is based on public health survey methodology, not criminal justice methodology, and the problems with comparing survey statistics to prosecution and conviction rates. The author argues that the DoD should change its annual sexual assault report metrics; separate the sexual harassment report from the sex crimes report; employ Bureau of Justice (BOJ) personnel and standards to include 15,000 active duty personnel in its major crime and victimization survey, the National Crime Victimization Survey; and, report “forcible rape” statistics based on the BOJ’s Uniform Crime Report criteria. To provide further transparency regarding resolution of military sexual assault offenses, to deter offenders, and to eliminate the public and victim misperception that cases are not effectively prosecuted, the author also recommends extensive disclosure by posting on the internet information about individual cases, and disposition statistics by general court-martial jurisdiction, military service, and the DoD as a whole. To support these recommendations, the author provides a historical review of the DoD’s media battles and Congressional mandates to establish task forces and panels to study the problem of sexual assault in the military services. The author then describes the problems and issues involved with the DoD’s reporting of military sexual assaults — a report which includes the entire spectrum of sexual assault and reports taken from service members who receive training encouraging them to report any inappropriate sexual contact. The Article also explains that the DoD’s 2012 extrapolation of 26,000 sexual assault victims is based on the type of surveys that the Department of Justice, the Department of Education, and the four largest states have elected not to use for comparison to prosecution or conviction rates in their official reports. Lastly, the Article describes prosecutorial discretion factors existing in the military services, which civilian prosecutors may not face, such as availability of alternative disposition and punishment options, involvement from the chain of command up to and including Presidential, Congressional, and Secretarial influence, and military operations and readiness concerns. These factors should be considered before criticizing how the military handles sexual assault cases. The facts involving the particular offense at issue are critical to assessing whether justice has been fairly applied and Congress should require convening authorities to routinely appropriately-redacted post charge sheets and other pertinent documentation on the internet

Encroachment: Putting the \u27Squeeze\u27 on the Department of Defense (DoD)

The Army, like other services, has found itself struggling to reconcile environmental compliance requirements with the need for realistic training. In order for the Army to accomplish its primary mission of fighting and winning in armed conflict, soldiers, leaders, and units must receive proper training. Thus, at times, environmental regulations limit the Army\u27s ability to conduct realistic training and adequate testing activities. This Note reviews the measures taken by the Department of Defense between 2000 and 2001 to analyze and report on the effects of “encroachment” on military testing and training. From the Department of Defense’s perspective, encroachment includes external influences, such as environmental laws and regulations, which threaten or constrain testing and training activities on ranges and facilities required for force readiness and weapons acquisition

DoD Range Rule Withdrawn with a View Towards Reproposal

During the Department of Defense\u27s Environmental Cleanup Stakeholders Forum in St. Louis, Missouri, in November 2000, the Deputy Under Secretary of Defense, Ms. Sherri Goodman, announced that she had withdrawn the Range Rule from the Office of Management and Budget, with the intent to repropose the Rule. This Note outlines the reasons why Ms. Goodman withdrew the Rule from the Office of Management and Budget and explains the interim directives to be issued by the Department of Defense

Unexploded Ordnance (UXO): An Explosive Issue?

The recent increase in transition of military ranges to nonmilitary uses has increased public and environmental regulatory agency concern regarding ranges. Much of this concern stems from the identification of Unexploded Ordnance and its constituents as possible contributing sources of contamination of groundwater and soils. Making the situation potentially more explosive are EPA Region 1 actions at one of those installations, Massachusetts Military Reservation, where groundwater contamination has halted live-firing on ranges. This article highlights recent developments in the areas of munitions and ranges that influence the ability of installations to use their ranges

Let\u27s Clear the Air: Enforcing Civil Penalties Against Federal Violators of the Clean Air Act

The Clean Air Act (CAA) includes enforcement provisions by which violators of the Act can be held civilly liable for penalties. When federal agencies violate the CAA, however, the Constitution and the sovereign immunity doctrine serve as obstacles to civil enforcement. Federal agencies contend that the Constitution\u27s separation of powers doctrine, unitary executive theory, and case or controversy justiciability requirement bar the United States Environmental Protection Agency (EPA) from proceeding against them in civil enforcement actions. This Article addresses these arguments and examines the executive branch\u27s approach to enforcing the Act against federal agencies. Federal agencies also have asserted the sovereign immunity doctrine as a defense to civil suits by states, local governments, and citizens. This doctrine protects the federal government from lawsuits unless Congress has explicitly waived sovereign immunity in a statute. While there is some evidence that Congress has intended to waive federal immunity in the CAA, federal courts have inconsistently applied such waivers. This Article examines the developing judicial applicability of the CAA\u27s sovereign immunity waiver by comparing its language and legislative history to that of other environmental statutes. This Article provides a similar review of federal employee liability for civil penalties under the CAA and concludes that federal employees also enjoy a qualified common law and statutory immunity. Based upon an evaluation of the obstacles various entities face in bringing a civil suit against a federal agency or an agency\u27s employee, this Article concludes that civil liability is not the optimal means of enforcing the Act and proposes an alternate method of gaining federal facility compliance. It recommends that enforcement authorities and federal agencies establish a negotiation system designed to produce bilateral agreements. Through this system, parties could bargain towards the achievement of the ultimate shared goal of environmental preservation

Keynote Address | Sexual Offenses: Lessons from the Front Lines

This is an edited transcript of a keynote address as delivered on November 6, 2015 at Southwestern Law School, Los Angeles, CA