What to expect from the next U.S. administration

Global Military Justice Reform's crystal ball is in the shop for repairs, but questions are already being raised in the glass-enclosed newsroom high above Global Military Justice Reform Plaza about what we might expect under the next U.S. administration. Some possibilities:

• Trial of retired senior officers for violation of, e.g., Art. 88, UCMJ
• Presidential dismissal of officers in accordance with Art. 4, UCMJ, presumably without granting any demands for court-martial
• Unlawful-orders issues raised by questionable domestic use of armed forces
• Unlawful command influence
• Revision of DoDI on extremism
• Revision of service regulations on tattoos (here's looking at you, Mr. Secretary)
• Appointment of a successor to Chief Judge Kevin A. Ohlson in 2028
• Filling any unscheduled vacancies on the U.S. Court of Appeals for the Armed Forces (CMA judges Robert M. Duncan and Matthew J. Perry left to become federal district judges in Ohio and South Carolina, respectively)
• Early retirement of Judge Advocates General, lead Special Trial Counsels, and other senior officers as a result of the Warrior Board purge (with or without customary decorations)
• Aggressive use of grade determination authority for retiring officers (including officers already retired?)
• Pardons and other clemency for past offenders and/or others facing UCMJ charges
• Changes to the Manual for Courts-Martial and service regulations (including equal opportunity regulations)
• Replacement of members of the Military Justice Review Panel and DAC-IPAD
• Legislative initiatives (e.g., terminating CAAF as an Elon Musk economy measure)

What does your crystal ball say? [Comments welcome, real names only.]

Not military justice . . . yet

Scott R. Anderson's timely essay The Real Legal Limits on Domestic Military Deployments is available on Lawfare. Excerpt:

These legal constraints by no means suggest that domestic deployments cannot be abused. Nor do they counteract the psychological significance of even legal domestic military deployments, which may intimidate Americans and chill legitimate exercise of rights. But they do set limits on some of the most abusive ways presidents may try to use domestically deployed soldiers.

As an example, take [President-elect Donald J.] Trump’s recent suggestion that the military should be used to guard against “[r]adical left lunatics” and other “enem[ies] from within” on Election Day—a comment that has been widely criticized as a veiled suggestion that, if reelected, he may well use domestic military deployments to impact elections in 2026 or 2028. Deploying armed and uniformed personnel at polling locations would put those involved in violation of federal law. And any effort to interfere with those elements of election management vested in state authorities by the Constitution—for example, by seizing ballot boxes—would almost certainly be in excess of federal law and thus ripe for a potential injunction.

Of course, these legal restrictions will require litigation and judicial enforcement to be effective. But federal courts can move quickly where needed, including by issuing preliminary injunctive relief that can serve to minimize the harms of presidential abuse pending a final resolution of the underlying legal questions. And as post-2020 election challenges served to demonstrate, the federal courts—and even the current Supreme Court—remain tough terrain for those seeking to curb election results in a way that is clearly contrary to federal law.

* * *

Indeed, understanding these legal limitations could be particularly important for members of the military who may themselves be domestically deployed. The military justice system imposes serious penalties on members of the armed forces who disregard the chain of command, which runs through the military and Defense Department up to the president. But this obligation only extends to “lawful order[s]” and the fact that an order is unlawful can be a defense for refusing to obey. This does not mean that soldiers can employ their own judgment as to what is legal or not in deciding whether to follow or disregard orders, as there is a strong presumption in favor of the president’s interpretation of the law. But where soldiers are presented with an order that clearly runs contrary to widely understood legal limits—particularly where that understanding is backed up by an injunction or other judicial order—they may well have grounds (if not a legal and ethical obligation) to disobey.

The Orders Project's Sourcebook for Advising Military Personnel (3d ed. Aug. 2024) gathers pertinent information on unlawful-orders issues.

Major Navdeep Singh and military justice reform

Major (r) Navdeep Singh, a longtime contributor to Global Military Justice Reform, is featured in this interview with SCC Times Online's Swastik Singh. "From the Barracks to the Courtroom: Major Navdeep Singh's Legal Crusade" offers fascinating insights into his dedication to the law and law reform both in India and around the world. Excerpt:

What message or advice would you offer young lawyers, especially those interested in military law? 

Well first, military law or military related litigation is nothing unique and follows the same principles of jurisprudence as other fields. Especially military service matters these are the same as other service or employment-related matters with constitutional law roots. Hence, I feel young lawyers must explore this field just as other branches of law and should not feel overwhelmed or overawed. It is just as any other field and we need young bright minds in this arena. My other advice is very simple — as lawyers we should never become the mouthpieces of our clients or parties whom we represent, especially when representing instrumentalities of the State. Our duty is to truthfully and ethically assist the court in arriving at justice, everything else is secondary.

CAAF Annual Report

The report of the U.S. Court of Appeals for the Armed Forces for the October 2023 Term can be found here. The number of petitions for grant of review is the lowest it's been in the last ten years. A chart on p. 17 shows a substantial increase in the time between oral argument and issuance of the decision.

Data kindly provided by Dr. David Anderson of the Central Legal Staff indicate that the court received 34 cases that were submitted on the merits (i.e., with no issues identified by counsel or personally by the petitioner) and 53 that included only Grostefon issues (i.e., that were personally asserted by the petitioner).

For your bookshelf

Hitler's Deserters: Breaking Ranks with the Wehrmacht by Douglas Carl Peifer, is now available from Oxford University Press. You can find some excerpts here. OUP summarizes it as follows:

The first English language account of deserters from the German army during World War II

The German military executed between 18,000 and 22,000 of its personnel in World War II on the charges of desertion and "undermining the military spirt." This book examines who these Wehrmacht deserters were, why they deserted, what punishment they could expect, and how German military justice operated. The German army was not apolitical, but rather a pillar of the Nazi state. Although much attention has been devoted to officers within the military who resisted Hitler--particularly those associated with the July 1944 attempt on Hitler's life--far less attention has been paid to those who refused military service or deserted during the war. While providing a full account of what constituted desertion, how it was punished, and how many were convicted for the crime, the book makes the Wehrmacht deserter its main subject. It examines their motivations and the paths they took to evade military service, ranging from hiding in the Third Reich, deserting at the front line, or fleeing to neutral Switzerland or Sweden.

After the Second World War, Germans began a generation-long debate about the status that should be accorded Wehrmacht deserters. The topic would be debated between the two Germanies and engaged survivors and perpetrators, playwrights, and judges, those who had stayed in the ranks and those who had not. Was the Wehrmacht a coward, a victim, or a role model? The book's discussion of this postwar debate has no equivalent in English, as it explains how and why Germany finally decided to overturn military court-martial verdicts from the Second World War fifty years after its conclusion.