Wednesday, February 21, 2018

From the New Yorker

“I’m not oblivious. I know what [wearing Class B uniforms to court] says. What little respect you have for the commission is obvious. A short-sleeve shirt, no tie, no coat; I get it. That’s the message. That’s been the message from the defense for five months.”

Military judge (Col.) Vance Spath, at a hearing in the now-abated Nashiri military commission case, as quoted by Amy Davidson Sorkin here in The New Yorker


  1. Military Commissions Defense Organization Policy Memorandum 5-15 change 5 (18 May 2017) prescribes that organization's attire policy for military personnel. For hearings at Naval Station Guantanamo Bay ¶ 2.b.(1) provides:

    All military defense counsel appearing on the record during a hearing shall wear the respective service uniform established by the Military Judge for that hearing. If the
    Military Judge has not established a specific uniform, military defense counsel appearing on the record will wear the traditional in-court uniform for their service: The Army Service Uniform (ASU) for Army personnel, the Service “C” uniform for Marines, the Service Dress Uniform Air Force Personnel, and the Service Dress Blue for Navy Personnel. All other MCDO military members, less investigators, who enter the courtroom during hearings will wear the appropriate “short sleeve” uniform for their service with all required awards, badges, and accoutrements: the Army Class “B” for Army personnel, the Service “C” uniform for the Marines, the Short Sleeve “Blues” without the tie for Air Force personnel, and the Service Uniform (SU) for Navy Personnel. Investigators will wear appropriate civilian attire. MCDO military members who sit in the gallery and do not enter the courtroom may wear either the uniform of the day for his or her assigned service or appropriate civilian attire. MCDO military personnel are not required to be in uniform for 802 Conferences unless otherwise directed by the Military Judge.

  2. [Standard disclaimer: This comment is offered solely in my personal capacity and shouldn’t be imputed to any other person or entity. Also a disclosure: I have had and continue to have connections with the military commissions defense bar.]

    For a system whose governing statute begins with the word “Uniform,” military justice practice is surprisingly non-uniform across the military services. Consider, for example, the different standards of proof that apply at NJP proceedings. Or compare the procedural formality of an Air Force NJP compared to captain’s mast.

    There are also significant cultural differences among the military services. Unfortunately, it appears that one such cultural difference was misinterpreted as a sign of disrespect.

    Having served for quite a long time in the Marine Corps before being an Air Force civilian employee for six years, I saw a number of cultural differences. One concerns courtroom attire. In the Air Force judge advocate community, the culture is to wear the service dress uniform -- which includes a jacket and tie -- in trial courtrooms. That is not the Marine Corps culture. Rather, the Marine practice is to wear the seasonal service uniform. In some places, the year-round uniform is Charlies – a uniform that includes an open-neck khaki short-sleeve shirt. In other places, it’s Charlies half the year and the other half it's Bravos – a uniform that includes a long-sleeve khaki shirt and tie, but no jacket. I’ve never worn Alphas – jacket and tie – in a trial-level court-martial nor seen any other Marine do so. Because my Marine Corps practice is now quite dated, I checked with a younger Marine judge advocate (and aren't they all?), who confirmed that the standard Marine practice is to wear the seasonal service uniform -- which in some places is Charlies year-round. Similarly, in the Navy, whites are worn in court year-round in some warm-weather locations – such as Hawaii – and half the year in other locales. That uniform includes an open-collar short-sleeve white shirt.

    The Navy-Marine Corps Trial Judiciary’s Eastern Judicial Circuit rules include a provision prohibiting counsel from wearing jackets and ties: “U.S. Marine Corps seasonal service uniforms or equivalent uniform for the other services (the Navy khaki working uniform is not appropriate). The accused, BUT NO ONE ELSE, may wear the U.S. Marine Corps service ‘A’ uniform or equivalent uniform for other services.” R. 14.1a(1) (emphasis added). In other words, Marine Corps counsel in the Eastern Judicial Circuit are expressly forbidden from wearing their jacket and tie into court.

    Back when I was trying cases in front of the legendary Colonel H. K. Jowers in Okinawa, he sometimes even prescribed cammies for Article 39(a) sessions, though the Uniform Rules of Practice for U.S. Navy-Marine Corps Trial Judiciary now provide that "[u]tility uniforms will not be designated as the uniform unless the court is convened at sea or in an operational setting." R. 14.1.

    No one thinks that Marine judge advocates at Camp Pendleton, Camp Lejeune, or Marine Corps Base Quantico who show up to try courts-martial in Charlies are somehow communicating disrespect to the tribunal. Nor should anyone think that a judge advocate whose service cultural is to wear the seasonal service uniform in court is trying to insult a military commission by wearing that same attire at Guantanamo's Expeditionary Legal Complex.

    --Dwight Sullivan


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