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THE ARMY LAWYER Headquarters, Department of the Army THE ARMY LAWYER Headquarters, Department of the Army Department of the Army Pamphlet 27-50-350 March 2002 Articles Military Commissions Major General (Ret.) Michael J. Nardotti, Jr. American Bar Association Task Force on Terrorism and the Law Report and Recommendations on Military Commissions Military Commissions and Courts-Martial: A Brief Discussion of the Constitutional and Jurisdictional Distinctions Between the Two Courts Major Timothy C. MacDonnell Military Commissions: A Historical Survey Major Michael O. Lacey TJAGSA Practice Notes Faculty, The Judge Advocate General’s School, U.S. Army Legal Assistance Note (What Do You Mean, I Need a Permission Slip Before I Can Ship My Car Overseas?) Environmental Law Note (Army Corps of Engineers Finalizes Regulations on Nationwide Permits) Tax Law Note (IRS Says No Tax Implications for Personal Use of Frequent Flyer Miles) Family Law Note (A QuickLook at Parental Alienation Syndrome) The Art of Trial Advocacy CLAMO Report Note from the Field CLE News Current Materials of Interest Editor, Captain Erik L. Christiansen Technical Editor, Charles J. Strong The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly ed. 2000) and Military Citation (TJAGSA, July 1997). Manuscripts will be by The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia, returned upon specific request. No compensation can be paid for articles. for the official use of Army lawyers in the performance of their legal responsibilities. Individual paid subscriptions to The Army Lawyer are avail- The Army Lawyer articles are indexed in the Index to Legal Periodicals, the able for $29 each ($36.25 foreign) per year, periodical postage paid at Charlot- Current Law Index, the Legal Resources Index, and the Index to U.S. Govern- tesville, Virginia, and additional mailing offices (see subscription form on the ment Periodicals. The Army Lawyer is also available in the Judge Advocate inside back cover). POSTMASTER: Send any address changes to The Judge General’s Corps electronic reference library and can be accessed on the World Advocate General’s School, U.S. Army, 600 Massie Road, ATTN: JAGS-ADL- Wide Web by registered users at http://www.jagcnet.army.mil. P, Charlottesville, Virginia 22903-1781. The opinions expressed by the authors in the articles do not necessarily reflect the view of The Judge Advocate General Address changes for official channels distribution: Provide changes to the or the Department of the Army. Masculine or feminine pronouns appearing in Editor, The Army Lawyer, TJAGSA, 600 Massie Road, ATTN: JAGS-ADL-P, this pamphlet refer to both genders unless the context indicates another use. Charlottesville, Virginia 22903-1781, telephone 1-800-552-3978, ext. 396 or electronic mail to [email protected]. The Army Lawyer welcomes articles from all military and civilian authors on topics of interest to military lawyers. Articles should be submitted via elec- Issues may be cited as ARMY LAW. [date], at [page number]. tronic mail to [email protected] or on 3 1/2” diskettes to: Editor, The Army Lawyer, The Judge Advocate General’s School, U.S. Army, 600 Massie Road, ATTN: JAGS-ADL-P, Charlottesville, Virginia 22903- 1781. Articles should follow The Bluebook, A Uniform System of Citation (17th Articles Military Commissions ........................................................................................................................................................................ 1 Major General (Ret.) Michael J. Nardotti, Jr. American Bar Association Task Force on Terrorism and the Law Report and Recommendations on Military Commissions ......... 8 Military Commissions and Courts-Martial: A Brief Discussion of the Constitutional and Jurisdictional Distinctions Between the Two Courts............................................................................................................................................................. 19 Major Timothy C. MacDonnell Military Commissions: A Historical Survey ................................................................................................................................... 41 Major Michael O. Lacey TJAGSA Practice Notes Faculty, The Judge Advocate General’s School, U.S. Army Legal Assistance Note (What Do You Mean, I Need a Permission Slip Before I Can Ship My Car Overseas?)............................. 48 Environmental Law Note (Army Corps of Engineers Finalizes Regulations on Nationwide Permits) ............................................ 50 Tax Law Note (IRS Says No Tax Implications for Personal Use of Frequent Flyer Miles) ............................................................. 51 Family Law Note (A QuickLook at Parental Alienation Syndrome)................................................................................................ 53 The Art of Trial Advocacy Faculty, The Judge Advocate General’s School, U.S. Army “Advocacy” Outside of the Courtroom: Dispelling Common Misperceptions Held by Commanders............................................ 55 CLAMO Report Center for Law and Military Operations (CLAMO), The Judge Advocate General’s School, U.S. Army Paving the Road to the Warfighter: Preparing to Provide Legal Support on the Battlefield............................................................ 58 Lieutenant Colonel Kevin H. Govern Note from the Field Cold Fusion Confusion: The Equal Employment Opportunity Commission’s Incredible Interpretation of Religion in LaViolette v. Daley ...................................................................................................................................................................... 74 Captain (Ret.) Drew A. Swank CLE News......................................................................................................................................................................................... 79 Current Materials of Interest ......................................................................................................................................................... 87 Individual Paid Subscriptions to The Army Lawyer ................................................................................................ Inside Back Cover MARCH 2002 THE ARMY LAWYER • DA PAM 27-50-350 i 0 MARCH 2002 THE ARMY LAWYER • DA PAM 27-50-350 Military Commissions Major General (Ret.) Michael J. Nardotti, Jr. Editor’s Note: Major General (Retired) Michael J. Nardotti, The President’s Proposed Use of Military Commissions Jr., The Judge Advocate General of the Army (1993-1997), made these remarks before the Senate Judiciary Committee Before describing the issues which will be the primary focus Subcommittee on Administrative Oversight and the Courts on 4 of my statement, I should make clear my view of the President’s December 2001. General Nardotti’s incisive observations on proposed use of military commissions to [try] non-citizens who the President’s proposed use of military commissions, the need planned, perpetrated, or aided and abetted the attacks of Sep- for the military justice system, and the purposes of courts-mar- tember 11, without restating the arguments previously made to tial and military commissions begin our series of articles on this Committee in support of the President. military commissions and their use. I agree with those who believe the President, as Com- Mr. Chairman and Members of the Committee, thank you mander-in-Chief, has the authority under the Constitution to for the opportunity to contribute to this important dialogue. take these actions. The terrorist acts of the organization known as al Qaida, up to and including the horrendous attacks of Sep- The possible use of military commissions, as ordered by the tember 11, 2001, leave no doubt that the United States is in a President in his role as Commander-in-Chief of our Armed state of armed conflict with an outside enemy and that the Pres- Forces, to conduct trials of non-United States citizens for viola- ident is most certainly correct in his conclusion that “an extraor- tions of the law of war, as described in the Military Order of dinary emergency exists for national defense purposes.” November 13, 2001, concerning the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terror- The Joint Resolution of the Senate and House of Represen- ism,”1 is [an] extraordinary measure in response to extraordi- tatives underscores this conclusion and supports the need for nary events. Careful explanation of the justification and basis extraordinary action in authorizing the President, “to use all for this proposed action and related actions which will follow, necessary means and appropriate force” against those who certainly will inform the vigorous public debate. planned and perpetrated these acts to prevent them from com- mitting future terrorist acts. To assist in this effort, I have been asked to highlight and dis- cuss some of the similarities and differences between the pros- The use of military commissions under these circumstances ecution of criminal matters in our Armed Forces in courts- is a lawful means available to the President, as Commander-in- martial under the Uniform Code of Military Justice and those Chief, to achieve this end. The justification for the use of mil- matters prosecuted in Article III federal courts. Further, I have itary commissions is well-established in international law, and been asked to relate these similarities and differences to mili- the use of tribunals of this type has a lengthy
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