|Waikiki & Diamond Head, Honolulu|
After the Supreme Court's 6-3 (or 5-4, as Stevens, J. merely concurred in the result) decision in Solorio v. United States, 483 U.S. 435 (1987), prosecutions like that of MSgt Cosby became constitutional again. Nonetheless, his trial violates human rights principles, under which only service-connected offenses may be tried by court-martial, there appearing to be no military nexus other than his active duty status. The UN Draft Principles Governing the Administration of Justice Through Military Tribunals, state that "[t]he jurisdiction of military courts should be limited to offences of a strictly military nature committed by military personnel." See also 2013 Report of the Special Rapporteur on the Independence of Judges and Lawyers [Gabriela Knaul], para. 34.
Why isn't this case being tried in the Hawai'i courts? For a ThinkTechHawaii conversation about the case between Honolulu criminal defense lawyer Eric Seitz and former U.S. Coast Guard military judge Jay Fidell (yes, brother of) check this YouTube link.
Should Solorio be reconsidered? Justice Antonin Scalia is the sole remaining member of the Supreme Court who sat on that case. He joined the majority opinion. Congress could also choose to limit court-martial subject matter jurisdiction by requiring service-connection and the President could impose such a limit through a change to the Manual for Courts-Martial's disposition criteria.
Full disclosure: the editor represented the ACLU as an amicus curiae in Solorio.