DOCSLIB.ORG

Second Class Citizen Soldiers: a Proposal for Greater First Amendment Protections for America's Military Personnel

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Second Class Citizen Soldiers: a Proposal for Greater First Amendment Protections for America's Military Personnel William & Mary Bill of Rights Journal Volume 16 (2007-2008) Issue 1 Symposium: The Last Word? The Constitutional Implications of Presidential Article 18 Signing Statements October 2007 Second Class Citizen Soldiers: A Proposal for Greater First Amendment Protections for America's Military Personnel Emily Reuter Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Constitutional Law Commons, and the First Amendment Commons Repository Citation Emily Reuter, Second Class Citizen Soldiers: A Proposal for Greater First Amendment Protections for America's Military Personnel, 16 Wm. & Mary Bill Rts. J. 315 (2007), https://scholarship.law.wm.edu/wmborj/vol16/iss1/18 Copyright c 2007 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj SECOND CLASS CITIZEN SOLDIERS: A PROPOSAL FOR GREATER FIRST AMENDMENT PROTECTIONS FOR AMERICA'S MILITARY PERSONNEL Emily Reuter* "Are [the generals] free to speak? How come every time a general retires he starts trashing the president's war policy, but doesn't say a word until he retires? In other words, do we have to wait for retirement to hear what these guys think?"' MSNBC's Hardball host Chris Matthews posed these questions to House Majority Leader John Boehner in a September 2006 discussion on whether the United States had sufficient troops on the ground in Iraq to control growing civil violence.2 Matthews's query, raised as a challenge to the Bush administration's willingness to incorporate military advice into Iraq military strategy, highlighted one of the effects of free speech restrictions on members of the military. Regulations restricting the free speech of active duty military members, both inside and outside the line of duty, are not new. Congress adopted the Uniform Code of Military Justice (UCMJ) in its modern form in 1950.3 The UCMJ governs all active duty military members, reservists, and, in certain circumstances, retired members.4 Several UCMJ articles either directly limit free speech or serve as a means to enforce organizational policies that limit free speech.5 * J.D., William & Mary Law School, 2008. I would like to thank Professor Judy Youngman, U.S. Coast Guard Academy, for her support, both with this article and through- out my career. Author is a Lieutenant in the U.S. Coast Guard. The views expressed herein are those of the author and are not to be construed as official or reflecting the views of the Commandant or of the U.S. Coast Guard. ' Hardball with Chris Matthews (MSNBC television broadcast Sept. 27, 2006), transcriptavailable at http://www.msnbc.msn.com/id/15045586. 2 id. 3 Pub. L. No. 506,64 Stat. 107 (1950) (codified as amended at 10 U.S.C.A. §§ 801-940 (West Supp. 2007); see also DAVID A. SCHLUETER, MILITARY CRIMINAL JUSTICE: PRACTICE AND PROCEDURE 40 (6th ed. 2004). 4 MANUAL FOR COURTS-MARTIAL: UNITED STATES, Rule 202 (2005 ed.). Under the purview of "military," the UCMJ applies to members of the Army, Navy, Marines, Air Force, and the Coast Guard. The Coast Guard, under the Department of Homeland Security rather than the Department of Defense, is defined as a military service by law in 14 U.S.C.A. § 1 (West Supp. 2007). ' Uniform Code of Military Justice [hereinafter UCMJ] art. 88, 10 U.S.C. § 888 (Supp. II 2002) ("Contempt toward officials"); UCMJ art. 92, 10 U.S.C. § 892 (2000) ("Failure to obey order or regulation"); UCMJ art. 133, 10 U.S.C. § 933 (2000) ("Conduct unbecoming an officer and a gentleman"); UCMJ art. 134, 10 U.S.C. § 934 (2000) ("General article," which includes service-discrediting conduct). WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 16:315 These restrictions traditionally go unnoticed during times of relative peace but receive more scrutiny during conflicts. The last flurry of challenges to restrictive military speech policies occurred during the Vietnam War.6 As the Iraq War grows increasingly unpopular, a repeat of Vietnam-era military free speech debate threatens. The subject flared when a group of highly distinguished retired generals criticized the Bush administration's handling of the conflict in 2003.' Former ground commanders in Iraq and even active duty military members, speaking on the condition of anonymity, publicly challenged former Secretary of Defense Donald Rumsfeld's ability to successfully lead the military and questioned administration strategy.8 The debate over free speech in the military is also highlighted by public scrutiny of other military-specific First Amendment restrictions. Focus on the highly contentious "Don't Ask, Don't Tell" policy on homosexuality catapulted the name of Navy Petty Officer 1st Class Rhonda Davis into national headlines when she was discharged from the Navy for wearing her uniform to a same-sex marriage support rally and announcing on a radio interview that she was gay.9 Christian groups, especially evangelical Christians, are also pressuring the military to ease restrictions on the content of prayers given at military functions. ° These arguments are countered with concerns over the separation of church and state and the freedom not to worship."' The military response to charges of First Amendment violations is consistent. Defenders argue that the UCMJ and military policies implemented under it exist "to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and 6 John A. Carr, Free Speech in the Military Community: Striking a Balance Between PersonalRights and Military Necessity, 45 A.F. L. REv. 303, 304 (1998). 7 Jim Rutenberg, Ex-GeneralsDefend TheirBlunt Comments, N.Y. TIMES, Apr. 2,2003, at B 1. Retired generals continue to criticize war strategy, oftentimes in groups. Fred Kaplan, Challenging the Generals, N.Y. TIMES MAG., Aug. 26, 2007, at 34, 37. 8 David S. Cloud& Eric Schmitt, More RetiredGenerals CallforRumsfeld's Resignation, N.Y. TIMES, Apr. 14, 2006, at Al. 9 Davis was discharged after ten years of exemplary service. Vince Little, Ex-AFN Host IsDischargedfromNavyfor"Don't Ask, Don't Tell" Violation, STARS & STRIPES, July 31,2006, availableat http://www.estripes.com/article.asp?section= 104&article=38075&archive=true. 10 Alan Cooperman, Fasting ChaplainDeclares Victory, WASH. POST, Jan. 10, 2006, at A 13 (describing the efforts of evangelical naval chaplain Lieutenant Gordon Klingenschmitt to get the Bush administration to sign an executive order allowing military chaplains to pray "in the name of Jesus"). " Press Release, Americans United for Separation of Church and State, Americans United Warns Military Officials Not to Promote Graham Evangelistic Rally (Aug. 8, 2005), available at http://www.au.org/site/PageServer?pagename=press (follow "2005" press archive hyperlink, then follow "August" hyperlink, then follow hyperlink with article's name) (urging the military not to promote a seminar hosted by the Billy Graham Evangelistic Association on "Serving God and Country" because it favors one religion over another and is an unconstitutional governmental promotion of religion). 20071 SECOND CLASS CrrIZEN SOLDIERS thereby to strengthen the national security of the United States." 12 When service- members seek relief in the federal court system, the courts overwhelmingly defer to the military's judgment.' 3 The Supreme Court labeled the military a special community.' 4 The judiciary is reluctant to determine whether a military policy violates the First Amendment because the issue ultimately requires an analysis of whether the policy itself is so vital to military operations that it justifies the restraint on First Amendment freedoms-something the courts consider themselves unqualified to do. 5 Courts are quick to point out that the Constitution specifically gives control of the military to the President as the Commander in Chief' 6 and grants Congress oversight responsibility for maintenance and regulation of the military.'7 As a result, rather than examine the claims under the traditional First Amendment framework, the courts essentially analyze First Amendment complaints made against the military with a rational basis test and uphold the military regulations." This Note argues that although deference may be constitutionally given to the military by the courts, Congress and military leaders have an obligation to protect the First Amendment rights of servicemembers. Deference is not the equivalent of a blank check for the military to make policies that suppress First Amendment rights-specifically that of free speech-for convenient organizational control. Military judges, who have the specialized military knowledge that federal courts lack, should perform traditional First Amendment analysis within the military justice context when faced with cases involving free speech. Federal courts, though they may not be competent to review the substantive merits of a military court's decision, should review appealed cases to ensure the use of appropriate legal analysis. Moreover, as the defender of a free democratic society, the military should place more emphasis on protecting the First Amendment rights of its members. The military can provide such protection by carefully scrutinizing policies that restrict First Amendment freedoms and by making the punishment for violating a policy that restricts what is normally a First Amendment freedom an administrative rather than criminal consequence under the UCMJ. Part I of this Note provides a brief history of the purpose and creation of the modem UCMJ, a discussion of the UCMJ articles used to limit speech, examples of 12 MANUAL FOR COURTS-MARTIAL: UNITED STATES, supra note 4, Part 1(3) (describing the nature and purpose of military law). 13 See, e.g., Kalyani Robbins, Framers' Intent and Military Power: Has Supreme Court Deference to the Military Gone Too Far?, 78 OR. L. REV. 767, 775 (1999) (reciting a paragraph's worth of Constitutional challenges made against military policy where the Supreme Court gave deference to the military's judgment).
Load more

Recommended publications
  • Examining the Civil-Military Divide Through New (Institutional) Lenses: the Influence of the Supreme Court
    University of Massachusetts Amherst ScholarWorks@UMass Amherst Doctoral Dissertations Dissertations and Theses November 2016 Examining the Civil-Military Divide Through New (Institutional) Lenses: The Influence of the Supreme Court Allen Linken University of Massachusetts Amherst Follow this and additional works at: https://scholarworks.umass.edu/dissertations_2 Part of the American Politics Commons, Courts Commons, Military and Veterans Studies Commons, Military, War, and Peace Commons, Other Legal Studies Commons, Public Law and Legal Theory Commons, and the Supreme Court of the United States Commons Recommended Citation Linken, Allen, "Examining the Civil-Military Divide Through New (Institutional) Lenses: The Influence of the Supreme Court" (2016). Doctoral Dissertations. 759. https://doi.org/10.7275/8980257.0 https://scholarworks.umass.edu/dissertations_2/759 This Open Access Dissertation is brought to you for free and open access by the Dissertations and Theses at ScholarWorks@UMass Amherst. It has been accepted for inclusion in Doctoral Dissertations by an authorized administrator of ScholarWorks@UMass Amherst. For more information, please contact [email protected]. EXAMINING THE CIVIL-MILITARY DIVIDE THROUGH NEW (INSTITUTIONAL) LENSES: THE INFLUENCE OF THE SUPREME COURT A Dissertation Presented by ALLEN E. LINKEN Submitted to the Graduate School of the University of Massachusetts Amherst in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY September 2016 Political Science © Copyright by Allen E. Linken 2016 All Rights Reserved EXAMINING THE CIVIL-MILITARY DIVIDE THROUGH NEW (INSTITUTIONAL) LENSES: THE INFLUENCE OF THE SUPREME COURT A Dissertation Presented by ALLEN E. LINKEN Approved as to style and content by: ________________________________ John Brigham, Chair ________________________________ Jane E.
    [Show full text]
  • Moves to Amend HF No. 752 As Follows:​ Delete Everything After the Enacting Clause and Insert
    03/23/21 02:45 pm ​ HOUSE RESEARCH JD/RK H0752DE3​ 1.1 .................... moves to amend H.F. No. 752 as follows:​ 1.2 Delete everything after the enacting clause and insert:​ 1.3 "ARTICLE 1​ 1.4 APPROPRIATIONS​ 1.5 Section 1. STATE GOVERNMENT APPROPRIATIONS.​ 1.6 The sums shown in the columns marked "Appropriations" are appropriated to the agencies​ 1.7 and for the purposes specified in this article. The appropriations are from the general fund,​ 1.8 or another named fund, and are available for the fiscal years indicated for each purpose.​ 1.9 The figures "2022" and "2023" used in this article mean that the appropriations listed under​ 1.10 them are available for the fiscal year ending June 30, 2022, or June 30, 2023, respectively.​ 1.11 "The first year" is fiscal year 2022. "The second year" is fiscal year 2023. "The biennium"​ 1.12 is fiscal years 2022 and 2023.​ 1.13 APPROPRIATIONS​ 1.14 Available for the Year​ 1.15 Ending June 30​ 1.16 2022​ 2023​ 1.17 Sec. 2. MILITARY AFFAIRS​ 1.18 Subdivision 1. Total Appropriation​ $​ 24,393,000​ $​ 24,589,000​ 1.19 The amounts that may be spent for each​ 1.20 purpose are specified in the following​ 1.21 subdivisions.​ Article 1 Sec. 2.​ 1​ 03/23/21 02:45 pm ​ HOUSE RESEARCH JD/RK H0752DE3​ 2.1 Subd. 2. Maintenance of Training Facilities​ 9,772,000​ 9,772,000​ 2.2 Subd. 3. General Support​ 3,507,000​ 3,633,000​ 2.3 Subd. 4. Enlistment Incentives​ 11,114,000​ 11,114,000​ 2.4 The appropriations in this subdivision are​ 2.5 available until June 30, 2025, except that any​ 2.6 unspent amounts allocated to a program​ 2.7 otherwise supported by this appropriation are​ 2.8 canceled to the general fund upon receipt of​ 2.9 federal funds in the same amount to support​ 2.10 administration of that program.​ 2.11 If the amount for fiscal year 2022 is​ 2.12 insufficient, the amount for 2023 is available​ 2.13 in fiscal year 2022.
    [Show full text]
  • Constitutional Law—Uniform Code of Military Justice—General Article Void for Vagueness?
    Nebraska Law Review Volume 34 Issue 3 Article 8 1955 Constitutional Law—Uniform Code of Military Justice—General Article Void for Vagueness? James W. Hewitt University of Nebraska College of Law Follow this and additional works at: https://digitalcommons.unl.edu/nlr Recommended Citation James W. Hewitt, Constitutional Law—Uniform Code of Military Justice—General Article Void for Vagueness?, 34 Neb. L. Rev. 518 (1954) Available at: https://digitalcommons.unl.edu/nlr/vol34/iss3/8 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. 518 NEBRASKA LAW REVIEW CONSTITUTIONAL LAW-UNIFORM CODE OF MILITARY JUSTICE-GENERAL ARTICLE VOID FOR VAGUENESS.? Much has been said or written about the rights of servicemen under the new Uniform Code of Military Justice,1 which is the source of American written military law. Some of the major criticisms of military law have been that it is too harsh, too vague, and too careless of the right to due process of law. A large por­ tion of this criticism has been leveled at Article 134,2 the general, catch-all article of the Code. Article 134 provides: 3~ Alabama. Connecticut, Delaware, Florida, Georgia, Illinois, Louisiana, l\Iaine, l\Iaryland, l\Iasschusetts, New Hampshire, New Jersey, Tennessee, Texas, Virginia, and Vermont. South Carolina has the privilege by case decision. See note 4 supra. 1 64 Stat. 107 <1950l, 50 U.S.C. §§ 551-736 (1952).
    [Show full text]
  • Gentlemen Under Fire: the U.S. Military and Conduct Unbecoming
    Minnesota Journal of Law & Inequality Volume 26 Issue 1 Article 1 June 2008 Gentlemen under Fire: The U.S. Military and Conduct Unbecoming Elizabeth L. Hillman Follow this and additional works at: https://lawandinequality.org/ Recommended Citation Elizabeth L. Hillman, Gentlemen under Fire: The U.S. Military and Conduct Unbecoming, 26(1) LAW & INEQ. 1 (2008). Available at: https://scholarship.law.umn.edu/lawineq/vol26/iss1/1 Minnesota Journal of Law & Inequality is published by the University of Minnesota Libraries Publishing. Gentlemen Under Fire: The U.S. Military and "Conduct Unbecoming" Elizabeth L. Hillmant Introduction ..................................................................................1 I. Creating an Officer Class ..................................................10 A. "A Scandalous and Infamous" Manner ...................... 11 B. The "Military Art" and American Gentility .............. 12 C. Continental Army Prosecutions .................................15 II. Building a Profession .........................................................17 A. Colonel Winthrop's Definition ...................................18 B. "A Stable Fraternity" ................................................. 19 C. Old Army Prosecutions ..............................................25 III. Defending a Standing Army ..............................................27 A. "As a Court-Martial May Direct". ............................. 27 B. Democratization and its Discontents ........................ 33 C. Cold War Prosecutions ..............................................36
    [Show full text]
  • Volume 4 Issue 1 Fall/Winter 2015
    TM VOLUME 4 ISSUE 1 FALL/WINTER 2015 National Security Law Journal George Mason University School of Law 3301 Fairfax Drive Arlington, VA 22201 www.nslj.org © 2015 National Security Law Journal. All rights reserved. Library of Congress Publication Data (Serial) National Security Law Journal. Arlington, Va. : National Security Law Journal, 2013- K14 .N18 ISSN: 2373-8464 Variant title: NSLJ National security—Law and legislation—Periodicals LC control no. 2014202997 (http://lccn.loc.gov/2014202997) Past issues available in print at the Law Library Reading Room of the Library of Congress (Madison, LM201). VOLUME 4, ISSUE 1 (FALL/WINTER 2015) ISBN-13: 978-1523203987 ISBN-10: 1523203986 ARTICLES PLANNING FOR CHANGE: BUILDING A FRAMEWORK TO PREDICT FUTURE CHANGES TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT Patrick Walsh QUANTUM LAWMAKING: HOW NATIONAL SECURITY LAW HAPPENS WHEN WE’RE NOT LOOKING Jesse Medlong COMMENTS TERROR IN MEXICO: WHY DESIGNATING MEXICAN CARTELS AS TERRORIST ORGANIZATIONS EASES PROSECUTION OF DRUG TRAFFICKERS UNDER THE NARCOTERRORISM STATUTE Stephen R. Jackson CYBERSPACE: THE 21ST-CENTURY BATTLEFIELD EXPOSING SOLDIERS, SAILORS, AIRMEN, AND MARINES TO POTENTIAL CIVIL LIABILITIES Molly Picard VOLUME 4 FALL/WINTER 2015 ISSUE 1 PUBLISHED BY GEORGE MASON UNIVERSITY SCHOOL OF LAW Cite as 4 NAT’L SEC. L.J. ___ (2015). The National Security Law Journal (“NSLJ”) is a student-edited legal periodical published twice annually at George Mason University School of Law in Arlington, Virginia. We print timely, insightful scholarship on pressing matters that further the dynamic field of national security law, including topics relating to foreign affairs, homeland security, intelligence, and national defense. Visit our website at www.nslj.org to read our issues online, purchase the print edition, submit an article, learn about our upcoming events, or sign up for our e-mail newsletter.
    [Show full text]
  • Pub. L. 108–136, Div. A, Title V, §509(A)
    § 777a TITLE 10—ARMED FORCES Page 384 Oct. 5, 1999, 113 Stat. 590; Pub. L. 108–136, div. A, for a period of up to 14 days before assuming the title V, § 509(a), Nov. 24, 2003, 117 Stat. 1458; Pub. duties of a position for which the higher grade is L. 108–375, div. A, title V, § 503, Oct. 28, 2004, 118 authorized. An officer who is so authorized to Stat. 1875; Pub. L. 109–163, div. A, title V, wear the insignia of a higher grade is said to be §§ 503(c), 504, Jan. 6, 2006, 119 Stat. 3226; Pub. L. ‘‘frocked’’ to that grade. 111–383, div. A, title V, § 505(b), Jan. 7, 2011, 124 (b) RESTRICTIONS.—An officer may not be au- Stat. 4210.) thorized to wear the insignia for a grade as de- scribed in subsection (a) unless— AMENDMENTS (1) the Senate has given its advice and con- 2011—Subsec. (b)(3)(B). Pub. L. 111–383 struck out sent to the appointment of the officer to that ‘‘and a period of 30 days has elapsed after the date of grade; the notification’’ after ‘‘grade’’. 2006—Subsec. (a). Pub. L. 109–163, § 503(c), inserted ‘‘in (2) the officer has received orders to serve in a grade below the grade of major general or, in the case a position outside the military department of of the Navy, rear admiral,’’ after ‘‘An officer’’ in first that officer for which that grade is authorized; sentence. (3) the Secretary of Defense (or a civilian of- Subsec. (d)(1).
    [Show full text]
  • Military Courts and Article III
    Military Courts and Article III STEPHEN I. VLADECK* TABLE OF CONTENTS INTRODUCTION .......................................... 934 I. MILITARY JUSTICE AND ARTICLE III: ORIGINS AND CASE LAW ...... 939 A. A BRIEF INTRODUCTION TO U.S. MILITARY COURTS ........... 941 1. Courts-Martial ............................... 941 2. Military Commissions ......................... 945 B. THE NORMATIVE JUSTIFICATIONS FOR MILITARY JUSTICE ....... 948 C. THE SUPREME COURT’S CONSTITUTIONAL DEFENSE OF COURTS-MARTIAL ................................. 951 D. THE SUPREME COURT’S CONSTITUTIONAL DEFENSE OF MILITARY COMMISSIONS .................................... 957 II. RECENT EXPANSIONS TO MILITARY JURISDICTION ............... 961 A. SOLORIO AND THE SERVICE-CONNECTION TEST .............. 962 B. ALI AND CHIEF JUDGE BAKER’S BLURRING OF SOLORIO’S BRIGHT LINE .......................................... 963 C. THE MCA AND THE “U.S. COMMON LAW OF WAR” ............ 965 D. ARTICLE III AND THE CIVILIANIZATION OF MILITARY JURISDICTION .................................... 966 E. RECONCILING THE MILITARY EXCEPTION WITH CIVILIANIZATION .................................. 968 * Professor of Law, American University Washington College of Law. © 2015, Stephen I. Vladeck. For helpful discussions and feedback, I owe deep thanks to Zack Clopton, Jen Daskal, Mike Dorf, Gene Fidell, Barry Friedman, Amanda Frost, Dave Glazier, David Golove, Tara Leigh Grove, Ed Hartnett, Harold Koh, Marty Lederman, Peter Margulies, Jim Pfander, Zach Price, Judith Resnik, Gabor Rona, Carlos Va´zquez, Adam Zimmerman, students in my Fall 2013 seminar on military courts, participants in the Hauser Globalization Colloquium at NYU and Northwestern’s Public Law Colloquium, and colleagues in faculty workshops at Cardozo, Cornell, DePaul, FIU, Hastings, Loyola, Rutgers-Camden, and Stanford. Thanks also to Cynthia Anderson, Gabe Auteri, Gal Bruck, Caitlin Marchand, and Pasha Sternberg for research assistance; and to Dean Claudio Grossman for his generous and unstinting support of this project.
    [Show full text]
  • The Abu Ghraib Convictions: a Miscarriage of Justice
    Buffalo Public Interest Law Journal Volume 32 Article 4 9-1-2013 The Abu Ghraib Convictions: A Miscarriage of Justice Robert Bejesky Follow this and additional works at: https://digitalcommons.law.buffalo.edu/bpilj Part of the Human Rights Law Commons, and the Military, War, and Peace Commons Recommended Citation Robert Bejesky, The Abu Ghraib Convictions: A Miscarriage of Justice, 32 Buff. Envtl. L.J. 103 (2013). Available at: https://digitalcommons.law.buffalo.edu/bpilj/vol32/iss1/4 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Public Interest Law Journal by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. THE ABU GHRAIB CONVICTIONS: A MISCARRIAGE OF JUSTICE ROBERT BEJESKYt I. INTRODUCTION ..................... ..... 104 II. IRAQI DETENTIONS ...............................107 A. Dragnet Detentions During the Invasion and Occupation of Iraq.........................107 B. Legal Authority to Detain .............. ..... 111 C. The Abuse at Abu Ghraib .................... 116 D. Chain of Command at Abu Ghraib ..... ........ 119 III. BASIS FOR CRIMINAL CULPABILITY ..... ..... 138 A. Chain of Command ....................... 138 B. Systemic Influences ....................... 140 C. Reduced Rights of Military Personnel and Obedience to Authority ................ ..... 143 D. Interrogator Directives ................ ....
    [Show full text]
  • Supreme Court of the United States
    No. __________ IN THE Supreme Court of the United States LAWRENCE G. HUTCHINS III, SERGEANT, UNITED STATES MARINE CORPS, Petitioner, v. UNITED STATES OF AMERICA, Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Armed Forces PETITION FOR A WRIT OF CERTIORARI S. BABU KAZA CHRIS G. OPRISON LtCol, USMCR DLA Piper LLP (US) THOMAS R. FRICTON 500 8th St, NW Captain, USMC Washington DC Counsel of Record Civilian Counsel for U.S. Navy-Marine Corps Petitioner Appellate Defense Division 202-664-6543 1254 Charles Morris St, SE Washington Navy Yard, D.C. 20374 202-685-7291 [email protected] i QUESTION PRESENTED In Ashe v. Swenson, 397 U.S. 436 (1970), this Court held that the collateral estoppel aspect of the Double Jeopardy Clause bars a prosecution that depends on a fact necessarily decided in the defendant’s favor by an earlier acquittal. Here, the Petitioner, Sergeant Hutchins, successfully fought war crime charges at his first trial which alleged that he had conspired with his subordinate Marines to commit a killing of a randomly selected Iraqi victim. The members panel (jury) specifically found Sergeant Hutchins not guilty of that aspect of the conspiracy charge, and of the corresponding overt acts and substantive offenses. The panel instead found Sergeant Hutchins guilty of the lesser-included offense of conspiring to commit an unlawful killing of a named suspected insurgent leader, and found Sergeant Hutchins guilty of the substantive crimes in furtherance of that specific conspiracy. After those convictions were later reversed, Sergeant Hutchins was taken to a second trial in 2015 where the Government once again alleged that the charged conspiracy agreement was for the killing of a randomly selected Iraqi victim, and presented evidence of the overt acts and criminal offenses for which Sergeant Hutchins had previously been acquitted.
    [Show full text]
  • Military Law Review
    DEPARTMENT OF THE ARMY PAMPHLET 27-1 00-21 MILITARY LAW REVIEW Articles KIDNAPPISG AS A 1IIILITARY OFFENSE Major hfelburn N. washburn RELA TI OX S HIP BETTYEE?; A4PPOISTED AND INDI T’IDUAL DEFENSE COUNSEL Lievtenant Commander James D. Nrilder COI~1KTATIONOF SIILITARY SENTENCES Milton G. Gershenson LEGAL ASPECTS OF MILITARY OPERATIONS IN COUNTERINSURGENCY Major Joseph B. Kelly SWISS MILITARY JUSTICE Rene‘ Depierre Comments 1NTERROC;ATION UNDER THE 1949 PRISOKERS OF TT-AR CON-EKTIO?; ONE HLSDREClTH ANNIS’ERSARY OF THE LIEBER CODE HEA,DQUARTERS, DEPARTMENT OF THE ARMY JULY 1963 PREFACE The Milita.ry Law Review is designed to provide a medium for those interested in the field of military law to share the product of their experience and research with their fellow lawyers. Articles should be of direct concern and import in this area of scholarship, and preference will be given to those articles having lasting value as reference material for the military lawyer. The Jli7itm~Law Review does not purport tg promulgate Depart- ment of the Army policy or to be in any sense directory. The opinions reflected in each article are those of the author and do not necessarily reflect the views of The Judge Advocate General or the Department of the Army. Articles, comments, and notes should be submitted in duplicate, triple spnced, to the Editor, MiZitary Law Review. The Judge Advo- cate General’s School, US. Army, Charlottewille, Virginia. Foot- notes should be triple spaced, set out on pages separate from the text and follow the manner of citation in the Harvard Blue Rook.
    [Show full text]
  • Criminal Law Deskbook, Volume II, Crimes and Defenses
    CRIMINAL LAW DESKBOOK Volume II Crimes and Defenses The Judge Advocate General’s School, US Army Charlottesville, Virginia Summer 2010 FOREWORD The Criminal Law Department at The Judge Advocate General's Legal Center and School, US Army, (TJAGLCS) produces this deskbook as a resource for Judge Advocates, both in training and in the field, and for use by other military justice practitioners. This deskbook covers many aspects of military justice, including procedure (Volume I) and substantive criminal law (Volume II). Military justice practitioners and military justice managers are free to reproduce as many paper copies as needed. The deskbook is neither an all-encompassing academic treatise nor a definitive digest of all military criminal caselaw. Practitioners should always consult relevant primary sources, including the decisions in cases referenced herein. Nevertheless, to the extent possible, it is an accurate, current, and comprehensive resource. Readers noting any discrepancies or having suggestions for this deskbook's improvement are encouraged to contact the TJAGLCS Criminal Law Department. Current departmental contact information is provided at the back of this deskbook. //Original Signed// DANIEL G. BROOKHART LTC, JA Chair, Criminal Law Department TABLE OF CONTENTS CHAPTER 1: SCOPE OF CRIMINAL LIABILITY................................................................ 1 I. PRINCIPALS. UCMJ ART. 77....................................................................... 1 II. ACCESSORY AFTER THE FACT. UCMJ ART. 78. .................................
    [Show full text]
  • Extensions of Remarks E1399 EXTENSIONS of REMARKS
    July 13, 2006 CONGRESSIONAL RECORD — Extensions of Remarks E1399 EXTENSIONS OF REMARKS AMENDING PUBLIC HEALTH SERV- CONGRATULATING THE MENTAL members volunteer and maintain the expense ICE ACT WITH RESPECT TO NA- HEALTH CENTER OF CHAMPAIGN of the Hampshire County Library. In 1926, the TIONAL FOUNDATION FOR THE COUNTY ON ITS 50TH ANNIVER- auxiliary assisted the Legion in designing an CENTERS FOR DISEASE CONTROL SARY honor roll plaque for the World War I service- AND PREVENTION men of Hampshire County. HON. TIMOTHY V. JOHNSON Post No. 137 has an active membership of OF ILLINOIS 400 in Capon Bridge, WV. Post Commander SPEECH OF Bob Brasher is assisted by President Sally IN THE HOUSE OF REPRESENTATIVES Reid and Larry LaFollette, head of the Sons of HON. DANNY K. DAVIS Thursday, July 13, 2006 the Legion group. OF ILLINOIS Mr. JOHNSON of Illinois. Mr. Speaker, I rise Each of these organizations provides a today in honor of the Mental Health Center of venue for fellowship, volunteerism, and patriot- IN THE HOUSE OF REPRESENTATIVES Champaign County on the celebration of its ism. The service each member has given to Tuesday, July 11, 2006 50th anniversary. their Nation and community shall be forever The Champaign County Mental Health Clinic cherished and represented. Mr. DAVIS of Illinois. Mr. Speaker, Benjamin opened its doors 50 years ago as a program f Disraeli once exclaimed, ‘‘The health of the of the Champaign County Mental Health Soci- PENCE CALLS ON CONGRESS TO ety. On July 22, 1968, the Mental Health Cen- people is really the foundation upon which all STAND FOR THE SANCTITY OF ter became incorporated and changed its their happiness and all their powers as a state LIFE depend.’’ name to the Mental Health Center of Cham- paign County.
    [Show full text]