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Military Law Review MILITARY LAW REVIEW Volume 98 Fall 1982 Pamphlet HEADQUARTERS, DEPARTMENT OF THE ARMY NO. 27-100-98 Washington, D.C., Fall 1982 MILITARY LAW REVIEW-VOL. 98 (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 98 Mil. L. Rev. (number of page) (fall 1982). 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, EditoriaZAssistant **** INDEXING: The primary Military Law Review indices are volume 91 (winter 1981) and volume 81 (summer 1978). Volume 81 covered all writings in volumes 1through 80, and re placed 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 Luw Review articles are also indexed in the Advanced Bibliogmphy of Con- tents: Political Science and Government;Legal Contents (C.C.L.P.);Index to Legal Period- icals; Monthly Catalog of United States Government Publications: Law Review Digest; Index to US. Government Periodicals; Legal Resources Index; two computerized data bases, the Public Affairs Information Service and The Social Science Citation Index; and other indexing services. Issues of the Military Law Review are reproduced on microfiche in Current US.Govern - ment Periodicals on Microfiche, by Infordata International Incorporated, Suite 4602,175 East Delaware Place, Chicago, Illinois 60611. MILITARY LAW REVIEW TABLE OF CONTENTS Title Page Warrants of Attachment-Forcibly Compelling the Attendance of Witnesses Major CalvinM. Lederer. ............................ 1 Military Appearance Requirements and Free Exercise of Religion Captain Thomas R. Folk ............................. 53 The Rule of Proportionality and Protocol I in Conventional War- fare Lieutenant Colonel William J. Fenrick. ................. 91 Judicial Review of Promotions in the Military CaptainL.NealEllis, Jr. ........................... .129 BookReviews ........................................ 159 iii [VOL. 98 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 Citu- tion (13th ed., 1981) copyrighted by the Columbia, Harvard, and University of Pennsyl- vania Law Reviews and the Yule Law Journul. 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 data 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 menta, Doctrine, and Literature Department; and the Editor of the Review. They are as- sisted by subject-matter experts from the School's Academic Department. The Board sub mits ita 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 the Review 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 theReview. 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 US. Army AG Publications Center, Am:Distribution Management 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 Adve cate General's School, US. Army, Charlottesville, Virginia 22901. iv WARRANTS OF ATTACHMENT-FORCIBLY COMPELLING THE ATTENDANCE OF WITNESSES By Major Calvin M.Lederer* It is a “longstanding principle” that “the public . , has a right to every man’s evidence.” This “ancient proposition of law” underlies the con- cept of compulsory process.*However, there is a difference between the ability to subpoena a witness and the ability to ensure that the witness attend the trial. Whether and to what extent witnesses may be bodily brought to testify under the authority of the court is less certain, at least as a practical matter, than the right to have a court issue paper process. The opinions and conclusions presented in this article are those of the author and do not necessarily represent the views of The Judge A&vocate General’s School, the Department of the Army, or any other governmental agency. Major, Judge Advocate General‘s Corps, US. Army. Instructor, Administrative and Civil Law Division, The Judge Advocate General‘s School, U.S. Army. Litigation Attorney, Litigation Division, Office of‘ The Judge Advocate General, Department of the Army, Washington, D.C., 1979-1981;Chief, Military Justice Division and International Affairs Division, Office of the Staff Judge Advocate, Headquarters, V Corps, Frankfurt, Ger- many, 1976-1979.Completed 30th Judge Advocate Officer Graduate Course, 1982;80th Judge Advocate Officer Basic Course, 1976.A.B., New York University, 1972;J.D., Hof- stra University, 1975.Admitted to bars of New York, New Jersey, U.S. District Court for New Jersey, Fifth and Ninth Circuit US. Courts of Appeals, US. Court of Military Ap peals and US. Supreme Court. ‘Branzbura v. Hayes, 408 US. 665, 688 (19721:., 8 J. Wimore.- Evidence 6 2192 (McNaughtenrev. 1961). * United States v. Nixon, 418 US. 683,709(1974). See also United States v. Smith, 27 F. Cas. 1192. 1197 (C.C.D. N.Y. 1806) (No. 16.3421 (“The general rule is that all Dersons are bound to &e testimony. I have no book from w&h to read this rule but I think it is writ- ten by the finger
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