Certiorari denied in Larrabee

The Supreme Court of the United States today denied certiorari in Larrabee v. United States, a case that challenged the jurisdiction of courts-martial to try military retirees. (Full disclosure: the Editor was one of the attorneys for the petitioner.) This means the United States will remain out of step with human rights jurisprudence on the point as set forth in cases such as Cesti-Hurtado v. Peru and Palamara-Iribarne v. Chile.

What is to be done?

First, Congress should repeal Article 2(a)(4)-(6), Uniform Code of Military Justice, 10 U.S.C. § 802(a)(4)-(6). Failing that, as "[a] superior competent authority," the President should, as commander in chief and in accordance with R.C.M. 401(a), withhold from all subordinates the authority to dispose of charges for the "type of case" in which the accused is a retiree. And failing that, convening authorities should refuse to refer charges for trial when the accused is a retiree. Trial and appellate defense counsel for retirees who are tried by court-martial should continue to litigate the constitutional issue. (A denial of certiorari has no precedential value.) If the Supreme Court continues to deny certiorari in retiree cases (or if the United States Court of Appeals for the Armed Forces bars the door to the Supreme Court by itself denying discretionary review--a power it should not but does possess), collateral review should be sought by petition for a writ of habeas corpus under 28 U.S.C. § 2241 or by money claim under the Tucker Act.

Your thoughts?