Military Law Review-Volume 138
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Volume 138 Fall 1992 MILITARY IAW REVIEW 0 8r w 00 ARTICLES DEFENSE DEPARTMENT PURSUIT OF INSURERS FOR SUPERFUND COST RECOVERY. ..................Major Michele McAninch Miller JUDICIAL PRIVILEGE: DOES IT HAVE A ROLE IN MILITARY COURTS-MARTIAL?. ........................ Major Robert E. Nunley DAVIS v. MICHIGAN DEPARTMENT OF TREASURY: THE RETROACTIVITY MORASS IN REFUNDS OF STATE TAXES ................Major Linda K. Webster THE UNITED NATIONS SECURITY COUNCIL VETO IN THE NEW WORLD ORDER .............................. Major Keith L. Sellen BOOK REVIEWS Charlottesville, Virginia Pamphlet HEADQUARTERS DEPARTMENT OF THE ARMY NO. 27-100-138 Washington, D.C., Fall 1992 MILITARY LAW REVIEW-VOLUME 138 The Military Law Review has been published quarterly at The Judge Advocate General's School, U.S. Army, Charlottesville, Virginia, since 1958. The Review provides a forum for those interested in military law to share the products of their experiences and research and is designed for use by military attorneys in connection with their official duties. Writings offered for publica- tion should be of direct concern and import in this area of scholarship, and preference will be given to writings that have lasting value as reference materials for the military lawyer. The Review encourages frank discussion of relevant legislative, admin- istrative, and judicial developments. EDITORIAL STAFF MAJOR DANIEL P. SHAVER, Editor MS. EVA F. SKINNER, Editorial Assistant SUBSCRIPTIONS: Private subscriptions may be purchased from the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402. Publication exchange subscriptions are available to law schools and other organizations that publish legal periodicals. Editors or publishers of these periodicals should address inquiries to the Editor of the Review. Inquiries concerning subscriptions for active Army legal offices, other federal agencies, and JAGC officers in the ARNGUS not on active duty should be addressed to the Editor of the Review. The editorial staff uses address tapes furnished by the U.S. Army Reserve Personnel Center to send the Review to JAGC officers in the USAR; Reserve judge advocates promptly should inform the Reserve Personnel Center of address changes. Judge advocates of other military departments should request distribution from their service's publication channels. CITATION: This issue of the Review may be cited as 138 MIL. L. REV. (number of page) (1992). Each quarterly issue is a complete, separately numbered volume. i POSTAL INFORMATION: The Military Law Review (ISSN 0026-4040) is published quarterly at The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia 22903-1781. Second- class postage paid at Charlottesville, Virginia and additional mailing offices. POSTMASTER: Send address changes to Military Law Review, The Judge Advocate General’s School, U.S. Army, Charlottesville, Virginia 22903- 1781. INDEXING: The primary Military Law Review indices are volume 91 (winter 1981) and volume 81 (summer 1978). Volume 81 included all writings in volumes 1 through 80, and replaced all previous Review indices. Volume 91 included writings in volumes 75 through 90 (excluding Volume 811, and replaced the volume indices in volumes 82 through 90. Volume indices appear in volumes 92 through 95, and were replaced by a cumulative index in volume 96. A cumulative index for volumes 97-101 appears in volume 101, and a cumulative index for volumes 102-111 appears in volume 111. Volume 121 contains a cumulative index for volumes 112-121. Volume 131 contains a cumulative index for volumes 122-131. Military Law Review articles are also indexed in A Bibliogra- phy of Contents: Political Science and Government; Legal Contents (C.C.L.P.); Index to Legal Periodicals; Monthly Catalogue of United States Government Publications; Index to U.S. Government Periodi- cals; Legal Resources Index; three computerized data bases, the Public Affairs Information Service, The Social Science Citation Index, and LEXIS; and other indexing services. Issues of the Military Law Review are reproduced on microfiche in Current U.S. Government Periodicals on Microfiche, by Infordata International Inc., Suite 4602, 175 East Delaware Place, Chicago, Illinois 60611. ii MILITARY LAW REVIEW Volume 138 Fall 1992 CONTENTS ARTICLES Defense Department Pursuit of Insurers for Superfund Cost Recovery ..... Major Michele McAninch Miller 1 Judicial Privilege: Does It Have a Role in Military Courts-Martial?. ...........Major Robert E. Nunley 53 Davis v. Michigan Department of Treasury: The Retroactivity Morass in Refunds of State Taxes.. .. Major Linda K. Webster 127 The United Nations Security Council Veto in the New World Order., ............... Major Keith L. Sellen 187 BOOK REVIEWS iii 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, U.S. Army, Charlottesville, Virginia 22903-1781 (hereinafter TJAGSA). Authors also should submit 5Y4-inch or 3Yz-inch computer diskettes containing their articles in IBM-compatible format. Footnotes also must be typed 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 A Uniform System of Citation (15th ed. 1991), copyrighted by the Columbia, Harvard, and University of Pennsylvania Law Reviews and the Yale Law Journal. Masculine pronouns appearing in the text will refer to both genders unless the context indicates another use. Typescripts should include biographical data concerning the author or authors. This data should consist of grade or other title, present and immediate past positions or duty assignments, 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, Developments, Doctrine, and Literature Department; and the Editor of the Reuiew. They are assisted by instructors from the teaching divisions of 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 Military Law Review does not purport to promulgate Department of the Army policy or to be in any sense directory. The opinions and conclusions 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. The Board will evaluate all material submitted for publication. In determining whether to publish an article, note, or book review, the Board will consider the item’s substantive accuracy, comprehensiveness, organization, clarity, timeliness, originality, and value to the military legal community. There is no minimum or maximum length requirement. When a writing is accepted for publication, a copy of the edited manuscript generally will be provided to the author for prepublication approval. Minor alterations may be made in subsequent stages of the publication process without the approval of the author. Because of contract limitations, page proofs are not provided to authors. Reprints of published writings are not available. Authors receive compli- mentary copies of the issues in which their writings appear. Additional copies are usually available in limited quantities. They may be requested from the Editor of the Review. BACK ISSUES: Copies of recent back issues are available to Army legal offices in limited quantities from the Editor of the Review. 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 Advocate General’s School, U.S. Army, Charlottesville, Virginia 22903-1781. iv MILITARY LAW REVIEW Volume 138 Fall 1992 DEFENSE DEPARTMENT PURSUIT OF INSURERS FOR SUPERFUND COST RECOVERY* MAJOR MICHELE MCANINCHM ILLER** Defense and the environment is not an either/or proposition. To choose between them is impossible in this real world of serious defense threats and genuine environmental concerns. The real choice is whether we are going to build a new environmental ethic into the daily business of defense.1 I. Introduction In the past several years, the Department of Defense (DOD) has embarked on an environmental cleanup effort that “repre- sents nothing less than a new strategic goal for the military.”Z With some 17,500 defense sites on over 1800 installations being examined for environmental problems, the financial stakes are high.3 In 1991 alone the Defense Department spent some 900 million dollars on environmental restoration, with additional *Practitioners should note that a number of new cases recently have been reported dealing with the environmental insurance issues that are the subject of this article.-ED. **Judge Advocate General’s Corps, United States Army. Presently assigned to the Environmental Law Division, Office of The Judge Advocate General, U.S. Army. B.A., 1978, Concordia College; J.D., 1987, University of Kansas; LL.M., 1992, The Judge Advocate General’s