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An Invitation for Regaining Double Jeopardy Symmetry in Cours-Martial Major Daniel J

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An Invitation for Regaining Double Jeopardy Symmetry in Cours-Martial Major Daniel J THE ARMY LAWYER Headquarters, Department of the Army April 2011 ARTICLES Double, Double Toil and Trouble: An Invitati on for Regaining Double Jeopardy Symmetry in Courts-Marti al Major Daniel J. Everett Military Justi ce, the Judge Advocate and the 21st Century Colonel Charles N. Pede TJAGLCS PRACTICE NOTES Faculty & Staff , The Judge Advocate General’s Legal Center & School Government Informati on Practi ce Notes Reporti ng Requirements Incident to Breaches of Personally Identi fi able Informati on Major Scott E. Dunn BOOK REVIEWS The Fourth Star: Four Generals and the Epic Struggle for the Future of the United States Army Reviewed by Major Evan R. Seamone CLE NEWS CURRENT MATERIALS OF INTEREST Department of the Army Pamphlet 27-50-455 Editor, Captain Madeline Yanford Assistant Editor, Captain Ronald T. P. Alcala Assistant Editor, Major Ted Martin Technical Editor, Charles J. Strong The Army Lawyer (ISSN 0364-1287, USPS 490-330) is published monthly The Judge Advocate General’s School, U.S. Army. The Army Lawyer by The Judge Advocate General’s Legal Center and School, Charlottesville, welcomes articles from all military and civilian authors on topics of interest to Virginia, for the official use of Army lawyers in the performance of their military lawyers. Articles should be submitted via electronic mail to legal responsibilities. Individual paid subscriptions to The Army Lawyer are [email protected]. Articles should follow The available for $45.00 each ($63.00 foreign) per year, periodical postage paid at Bluebook, A Uniform System of Citation (19th ed. 2010) and the Military Charlottesville, Virginia, and additional mailing offices (see subscription form Citation Guide (TJAGLCS, 15th ed. 2010). No compensation can be paid for on the inside back cover). POSTMASTER: Send any address changes to The articles. Judge Advocate General’s Legal Center and School, 600 Massie Road, ATTN: ALCS-ADA-P, Charlottesville, Virginia 22903-1781. The opinions The Army Lawyer articles are indexed in the Index to Legal Periodicals, expressed by the authors in the articles do not necessarily reflect the view of the Current Law Index, the Legal Resources Index, and the Index to U.S. The Judge Advocate General or the Department of the Army. Masculine or Government Periodicals. The Army Lawyer is also available in the Judge feminine pronouns appearing in this pamphlet refer to both genders unless the Advocate General’s Corps electronic reference library and can be accessed context indicates another use. on the World Wide Web by registered users at http://www.jagcnet.army. mil/ArmyLawyer. The Editor and Assistant Editor thank the Adjunct Editors for their invaluable assistance. The Board of Adjunct Editors consists of highly Address changes for official channels distribution: Provide changes to qualified Reserve officers selected for their demonstrated academic excellence the Editor, The Army Lawyer, The Judge Advocate General’s Legal Center and legal research and writing skills. Prospective candidates may send and School, 600 Massie Road, ATTN: ALCS-ADA-P, Charlottesville, Microsoft Word versions of their resumes, detailing relevant experience, to Virginia 22903-1781, telephone 1-800-552-3978 (press 1 and extension the Technical Editor at [email protected]. 3396) or electronic mail to [email protected]. The Editorial Board of The Army Lawyer includes the Chair, Articles may be cited as: ARMY LAW., [date], at [first page of article], Administrative and Civil Law Department; and the Director, Professional [pincite]. Writing Program. The Editorial Board evaluates all material submitted for publication, the decisions of which are subject to final approval by the Dean, New Developments Administrative & Civil Law .................................................................................................................................................. 1 Lore of the Corps Crossed Sword and Pen: The History of the Corps’ Branch Insignia Fred L. Borch III ................................................................................................................................................................... 3 Articles Double, Double Toil and Trouble: An Invitation for Regaining Double Jeopardy Symmetry in Cours-Martial Major Daniel J. Everett ......................................................................................................................................................... 6 Military Justice, the Judge Advocate and the 21st Century Colonel Charles N. Pede ................................................................................................................................................... 32 TJAGLCS Practice Notes Faculty & Staff, The Judge Advocate General’s Legal Center & School Government Information Practice Notes Reporting Requirements Incident to Breaches of Personally Identifiable Information Major Scott E. Dunn ............................................................................................................................................................. 37 Book Reviews The Fourth Star: Four Generals and the Epic Struggle for the Future of the United States Army Reviewed by Major Evan R. Seamone ................................................................................................................................. 38 CLE News ................................................................................................................................................................ 42 Current Materials of Interest ............................................................................................................................. 51 Individual Paid Subscriptions to The Army Lawyer ................................................................ Inside Back Cover APRIL 2011 • THE ARMY LAWYER • DA PAM 27-50-455 New Developments Administrative & Civil Law The Supreme Court reversed the Ninth Circuit and ruled against the Navy.10 In so doing, the Court did away with The Death of Exemption “High 2” of the Freedom of “High 2” and narrowed “Low 2.” The opinion is based on Information Act straightforward application of rules of statutory construction coupled with the principle that FOIA exemptions are meant On 7 March 2011, the U.S. Supreme Court issued an to be construed narrowly. opinion in Milner v. Dep’t of Navy1 that dramatically narrowed the application of Exemption 2 of the Freedom of In the Court’s view, “High 2” simply stretched the Information Act (FOIA). Exemption 2 of the FOIA language of the statutory exemption too far. Writing for the authorizes withholding of documents that “relate solely to majority, Justice Kagan commented that “Exemption 2, the internal personnel rules and practices of an agency.”2 consistent with the plain meaning of the term 'personnel rules and practices,' encompasses only records pertaining to Exemption 2 was interpreted for years to create two issues of employee relations and human resources.”11 She separate bases for withholding documents, which were observed that “[o]ur construction of the statutory language commonly referred to as “Low 2” and “High 2.” “Low 2” simply makes clear that Low 2 is all of 2 (and that High 2 is authorized “the withholding of internal matters that are of a not 2 at all).”12 While the decision is most noteworthy for relatively trivial nature” such that “the administrative burden destroying “High 2,” it should not be forgotten that it also [of processing the FOIA request] on the agency . would corrals any interpretation of trivial matters under “Low 2” not be justified by any genuine public benefit.”3 “High 2” that may stray outside the limits of “personnel rules and authorized withholding of “internal matters of a far more practices of an agency.” substantial nature the disclosure of which would risk the circumvention of a statute or agency regulation.”4 Milner stands to have a significant ripple effect as the Government has relied on "High 2" to withhold numerous In Milner, the Navy sought to withhold maps of Naval documents over the years. The military, for example, has Magazine Indian Island, Washington, located in Puget used "High 2" to withhold such things as unclassified rules Sound, showing the locations of munitions storage bunkers of engagement13 and force feeding techniques for detainees and the estimated blast radius of those munitions.5 The on hunger strikes.14 The Government's authority to withhold Navy invoked “High 2,” arguing that release of the these and many other types of documents are now in documents could help a terrorist bent on attacking the question. We may expect to see increased use of the facility circumvent the agency’s mission of safeguarding the classification process (thus authorizing withholding under munitions.6 The Navy preferred not to classify the maps, Exemption 1) and greater reliance on Exemption 7,15 which thus enabling it to withhold them under Exemption 1 of the includes several sub-exemptions related to records FOIA,7 because it wanted to be able to share the information maintained for law enforcement purposes.16 with local authorities (i.e., the fire department and law —Major Scott E. Dunn, USA enforcement) without the difficulties of handling and sharing classified information.8 Relying on longstanding judicial interpretation of “High 2,” the Ninth Circuit Court of 9 Appeals upheld the Navy’s withholding of the maps. 10 Id. at 19. 11 Id. 12 Id. at 8. 1 No. 09-1163 (S. Ct. Mar. 7, 2011), 562 U.S. ____ (2011). 13
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