JAG CENTRAL

Stay tuned... new posts on their way soon. I promise I have a good reason for being gone so long...

Categories: Miscellaneous

This will probably come as no surprise to anyone who still has this blog on their RSS reader or otherwise stumbles across this post, but Dwight Sullivan has started a new blog related to military justice issues - - caaflog.blogspot.com

I recommend that you check it out right now!

Go HERE for additional posts (temporary fix). Go down to the first post, entitled "temporary fix," to alert the authors that you are still reading.

So once again a long delay between posts. I'm sure everyone reading this blog already knows that the Supreme Court struck down the Military Tribunals. Specifically, the opinion says that the Congressional AUMF did not authorize the commissions, and also found that the Commission procedures established by M.C.O. 1 fell short of the requirements imposed by Article 36 of the UCMJ.

If I might hazard a personal opinion, I think the Court got the answer right in this case. Article 36 allows the President to set the rules of procedure for tribunals, but those rules "may not be contrary to or inconsistent with" the U.C.M.J. Theoretically, I am more interested in the broader constitutional question - - under Ex Parte Quirin, the government can create military commissions to try people for violation of the laws of war, but Congress has to authorize it. And, I agree that Art. 36 imposes at least some restrictions on the President's procedural rules. In Quirin, the Court wasn't sure whether Congress really could restrict the Presidents power in that way and sort of punted. (317 U.S. 1, 47-48) ("We need not inquire whether Congress may restrict the power of the Commander in Chief to deal with enemy belligerents. For the Court is unanimous in its conclusion that the Articles in question could not at any stage of the proceedings afford any basis for issuing the writ [of habeas corpus]. But a majority of the full Court are not agreed on the appropriate grounds for decision").

Apparently, Hamdan says they can. And did.

A few of the many commentators:

• Marty Lederman of Akin Gump and SCOTUSblog



• Orin Kerr's comment and a good summary.



• Stuart Benjamin at the Volokh Conspiracy. There are always colorful commentators at the VC, and Prof. Benjamin's post is no exception.

I enjoyed looking through those links and scanning the syllabus of the opinion. Of course, that's 30-45 minutes I should've spent working. I have to make the time up somehow, probably during the upcoming long weekend. No matter how much I complained about law school, it was much easier to blog.

My favorite class in the first year of law school was criminal law. I had a great professor, but more than that it was the most, ermm, "philosophically satisfying" course we took. I was soon disappointed to discover that very little criminal practice concerns itself with substantive questions - where substantive means the definition of the crimes, elements, etc. Most of the attention and energy is spent on procedural stuff, especially constitutional procedure (how many years have passed without a "newsworthy" 4th or 5th amendment case?).

If you are like me, and you still have a special place in your heart for 1L criminal law stuff, you might enjoy reading United States v. Simmons, No. 05-0263 (C.A.A.F. April 24, 2006). Simmons was a 3-2 decision with 5 (yes, FIVE) separate opinions. The issue: Aider and Abettor Liability for failing to act / failing to prevent. As you may recall from crimlaw, or more likely from torts, one can be held liable for failing to act ONLY if some duty runs from the defendant to the victim. The court originally granted review of the "Was there a duty?" question, but the defendant conceded that there was a duty. The actual opinion concerns whether the guilty plea was provident:

Baker & Gierke: IMPROVIDENT because there was no evidence that Simmons shared a criminal purpose with the "real perp," ("R.P.") as required by Article 77.

Effron & Gierke: IMPROVIDENT because there was no questioning about whether the RP knew about Simmons's inaction. But for Simmons to be guilty, the inaction has to encourage the RP. (I don't really understand this. Simmons told the Judge that he thought his inaction encouraged it). One sentence seems to suggest even MORE is required...
"Here the plea was improvident because the military judge
did not explain to Appellant that it was necessary for the
perpetrator to be aware of Appellant’s nonperformance of a duty."
Effron, concurring in result (slip op. at 2; PDF file at 17). So, to be guilty of aiding and abetting assault, the RP has to KNOW the defendant has a duty to the victim? That's kind of wacky. Aiding and Abbetting already has a kind of double mens rea - the defendant must have criminal purpose, and the RP must be "encouraged" or whatever. But does he also have to know that there's a legal duty to act?

CRAWFORD: PROVIDENT because the surrounding circumstances establish the criminal intent (Simmons had been involved in hazing the victim).

ERDMANN: PROVIDENT because the facts admitted establish the criminal purpose (but by the way, not so sure there WAS a duty to act here.)

Would anyone reading this site be interested in seeing interviews from various semi-famous JAG-type people? Maybe attorneys from big cases of the past, or civilian journalists who have covered big cases, or scholars who study military law? If so, please respond in he Comments section. Thanks!

An 8-0 opinion by Chief Justice Roberts. Here's a link to the opinion.
Sorry I haven't written more lately, perhaps this decision will be exciting enough to push me out of my 3L malaise.

Previous Posts:
A debate between the Centrist and a commenter; Centrist's comments on the cert. grant; and my post about enforcement of the SA.