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The American Military Insanity Defense: a Moral, Philosophi- Cal, and Legal Dilemma ,Captain Charles E MILITARY x11 4 8 LAW -0 b REVIEW c, C C Volume 99 Winter 1983 Pamphlet HEADQUARTERS, DEPARTMENT OF THE ARMY NO.27 -100-99 WaShington, D.C., Winter 1983 MILITARY LAW REVIEW-VOL. 99 (USPS 482-130) The Military Law Review has been published quarterly at The Judge Advocate General's School, US. Army, Charlottesville, Virginia, since 1958, The Review provides a forum for those interested in military law to share the products of their experience and research. Writings offered for publication should be of direct concern and import in this area of scholarship, and preference will be given to those writings having last- ing value as reference material for the military lawyer. The Review en- courages frank discussion of relevant legislative, administrative, and ju- dicial developments. The Military Law Review does not purport to promulgate Department of the Army policy or to be in any sense directory. The opinions reflected in each writing are those of the author and do not necessarily reflect the views of The Judge Advocate General or any governmental agency. Mas- culine pronouns appearing in the pamphlet refer to both genders unless the context indicates another use. SUBSCRIPTIONS: Private subscriptions may be purchased from the Superintendent of Documents, United States Government Printing Of- fice, Washington, D.C. 20402. The subscription price is $14.00 a year for domestic mailing, and $17.50 for foreign mailing. A single copy is $5.50 for domestic mailing, and $6.90 for foreign mailing. Publication exchange subscriptions are available to law schools and other organizations which publish legal periodicals. Editors or pub lishers of such periodicals should address inquiries to the Editor of the Re view. Inquiries concerning subscriptions for active Army legal offices, other federal agencies, and JAGC officers in the USAR or ARNGUS not on ac- tive duty, should be addressed to the Editor of the Review. CITATION: This issue of the Review may be cited as 99 Mil. L. Rev. (number of page) (winter 1983). Each quarterly issue is a complete, sepa- rately numbered volume. i MILITARY LAW REVIEW MAJOR GENERAL HUGH J. CLAUSEN The Judge Advocate General of the Army MAJOR GENERAL HUGH R. OVERHOLT The Assistant Judge Advocate General of the Army COLONEL WILLIAM K. SUTER Commandant, The Judge Advocate General’s School EDITORIAL BOARD COLONEL ROBERT E. MURRAY LIEUTENANT COLONEL THOMAS P. DEBERRY EDITORIAL STAFF CAPTAIN CONNIE S. FAULKNER, Editor CAPTAIN STEPHEN J. KACZYNSKI, Editor MS. EVA F. SKINNER, Editorial Assistant **** INDEXING: The primary Military Law Review indices are volume 91 (winter 1981) and volume 81 (summer 1978). Volume 81 covered all writings in volumes 1 through 80, and replaced all previous Review indices. Volume 91 covers writings in volumes 75 through 90 (excluding Volume 81), and replaces the volume indices in volumes 82 through 90. Volume indices appear in volumes 92 through 95, and is replaced by a cumulative index in volume 96. Military Law Review articles are also indexed in the Advance Bibliogmphy of Con- tents: Political Science and Government; Legal Contents (C.C.L.P.); Index to Legalperiod- icals; Monthly Catalog of United States Government Publications; Law Review Digest; In- dex to US.Government Periodicals; Legal Resources Index; two computerized data bases, thepublic Affairs Information Service and The SocialScience Citation Index; and other in- dexing services. Issues of the Military Law Review are reproduced on microfiche in Current U.S. Govern- ment Periodicals on Microfiche, by Infordata International Incorporated, Suite 4602, 175 East Delaware Place, Chicago, Illinois 6061 1. MILITARY LAW REVIEW TABLE OF CONTENTS Title Page The American Military Insanity Defense: A Moral, Philosophi- cal, and Legal Dilemma ,Captain Charles E. Trant ............................ 1 The Privacy Act A Sword and a Shield but Sometimes Neither Major John F. Joyce ................................ 113 BookReviews ........................................ 169 iii MILITARY LAW REVIEW [VOL. 991 MILITARY LAW REVIEW SUBMISSION OF WRITINGS: Articles, comments, recent development notes, and book reviews should be submitted typed in duplicate, double-spaced, to the Editor, Military Law Review, The Judge Advocate General’s School, US. Army, Charlottesville, Virginia 22901. Footnotes should be double-spaced and should appear as a separate appendix at the end of the text. Footnotes should be numbered consecutively from the beginning to end of a writing, not chapter by chapter. Citations should conform to the Uniform System of Cita- tion (13th ed., 1981) copyrighted by the Columbia, Huruard, and University of Pennsylva- nia Law Reviews and the YaleLaw Journal. Typescripts should include biographical data concerning the author or authors. This data should consist of rank or other title; present and immediate past positions or duty assign- ments; all degrees, with names of granting schools and years received; bar admissions; and previous publications. If the article was a speech or was prepared in partial fulfillment of degree requirements, the author should include date and place of delivery of the speech or the source of the degree. EDITORIAL REVIEW: The Editorial Board of the Military Law Review consists of the Deputy Commandant of The Judge Advocate General’s School; the Director, Develop- ments, Doctrine, and Literature Department; and the Editor of the Review. They are assist- ed by subject-matter experts from the School’s Academic Department. The Board submits its recommendations to the Commandant, TJAGSA, who has final approval authority for writings published in the Review. The Board will evaluate all material submitted for publication. In determining whether to publish an article, comment, note or book review, the Board will consider the item’s sub- stantive accuracy, comprehensiveness, organization, clarity, timeliness, originality and value to the military legal community. There is no minimum or maximum length require- ment. When a writing is accepted for publication, a copy of the edited manuscript will be pro- vided to the author for prepublication approval. However, minor alterations may be made in subsequent stages of the publication process without the approval of the author. Be- cause of contract limitations, neither galley proofs or page proofs are provided to authors. Italicized headnotes, or summaries, are inserted at the beginning of most writings pub lished in the Review, after the authors’ names. These notes are prepared by the Editor of theReview as an aid to readers. Reprints of published writings are not available. However, authors receive complimen- tary copies of the issues in which their writings appear. Additional copies are usually avail- able in limited quantities. They may be requested from the Editor of theReuiew. BACK ISSUES: Copies of recent back issues are available in limited quantities from the Editor of the Review. For individual military personnel on active duty, recent back issues are also available from the USArmy AG Publications Center, ATTN: Distribution Man- agement Division, 2800 Eastern Boulevard, Baltimore, MD 21220. Bound copies are not available, and subscribers should make their own arrangements for binding if desired. REPRINT PERMISSION: Contact the Editor, Military Law Review, The Judge Advo- cate General’s School, U.S.Army, Charlottesville, Virginia 22901. iv THE AMERICAN MILITARY INSANITY DEFENSE: A MORAL, PHILOSOPHICAL, AND LEGAL DILEMMA* By Captain Charles E. Trant* * This article examines the American military insanity defense and itspo- tential for constructive alteration. The historical development of the in- sanity defense in general is reviewed. The various legal tests for insanity used in England and the United States are analyzed. The policies and procedures of the American military insanity defense from the early nineteenth century to the present are traced. Four potential modifica- tions, the bifurcated trial, the ‘kuilty but mentally ill” approach, shift- ing the burden of proof, and the mens rea approach are considered. The article concludes with a modification proposal similar to the “guilty but mentally i1l”approach and a modified insanity test for the military. I. INTRODUCTION Non est reus nisi mens sit rea is a deceptively simple little maxim which is at the center of a long and uneasy flirtation between law and in- sanity. In spite of its nearly deified legal status, it has, from its very in- ception, resisted precise elucidation. This is hardly surprising since whenever one delves into the inner mechanisms of the mind there is no matrix by which the contours of human thought can be deductively de- fined, Yet in a criminal justice system which seeks to establish moral and legal responsibility, the enigma of the human mind must be probed. When the defense of insanity is raised, this dilemma is crystallized. ____ The opinions and conclusions expressed in this article are those of the author and do not necessarily represent the views of The Judge Advocate General’s School, the Depart- ment of the Army, or any governmental agency. This article is based upon a thesis submit- ted by the author in partial satisfaction of the requirements of the 31st Judge Advocate Officers Graduate Course. Judge Advocate General’s Corps, United States Army. Currently assigned as a mili- tary judge, Mannheim, Federal Republic of Germany. Formerly, Commissioner, US. Army Court of Military Review, 1981-82; Appellate Attorney, Defense Appellate Division, Falls Church, Virginia, 1979-81; Assistant Chief of Military Justice, Office of the Staff Judge Advocate, 5th Infantry Division, Fort Polk, Louisiana, 1979. LL.M., Georgetown Univer- sity Law Center, 1981; J.D., Suffolk University Law School, 1975; B.A., Suffolk Univer- sity, 1973. Completed 31st Judge Advocate Officer Graduate Course, 1982-83. Author of OSHA and the Exclusionary Rule: Should the Employer Go Free Because the Compliance Officer Has Blundered?, 1981 Duke L.J. 667; Prospective Labor Injunctions: Do They Have a Future?, 14 Ind. L. Rev. 581 (1981); Burdens of Proof, Persuasion, and Produc- tion: A Thumb on the Scales of Justice?, 13 The Advocate 24 (Jan.-Feb. 1981); Defense- Requested Lineups, 11 The Advocate 161 (Ju1.-Aug.
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