Interesting developments, Gene. If you get a new balance on the Supreme Court, would there be any scope to provide impetus for change in the fundamentals you've mentioned by challenging the rule in US v Weiss?
Chris, your comment led me to look back at Weiss v. United States, 510 U.S. 163 (1994). What leaps out is that, 22[!] years on, six of the nine justices who participated are no longer on the Court. Those who succeeded five of those six have not had occasion to address this kind of core issue, and as to Scalia, J., we of course still don't know who will take his place. (I'll add that looking back at the opinion reminded me of the team of lawyers who represented Weiss: Alan Morrison argued, and Cdr. (ret) Phil Cave, Ron Meister [chair of the NIMJ board], Dwight Sullivan [now military justice guru at OSD/OGS] and I were with him on the briefs. Among those on the other (winning) side were my now colleague SG Drew Days, Brig Gen Ted Hess, and now-U.S. Circuit Judges Bill Bryson and Albert Diaz.)I haven't given up on the Supreme Court as a potential source of positive change in American military justice, despite the excessively deferential approach championed over many years by Associate/Chief Justice Rehnquist in this part of the forest. Nor have I given up on Congress, where for example Senator Kirsten Gillibrand has shown staying power and not so long ago got within striking distance of cloture on her reform bill. But then I'm an optimist. Perhaps a new administration will have military justice reform on its agenda -- and will set its sights higher than the present one. Continuing reform trends around the world might help around the edges.
Typo: OGS should read OGC.
Comments are subject to moderation and must be submitted under your real name. Anonymous comments will not be posted (even though the form seems to permit them).