Global Military Justice Reform contributors
Rachel E. VanLandingham and
Philip D. Cave have written
this op-ed for the
Daily Beast on the case for a consolidated disposition authority for military personnel who committed offenses in connection with the January 6 Capitol putsch. Excerpt:
The Department of Justice and U.S. prosecutors should be allowed to take the lead in any prosecutions of military personnel involved even though there is shared jurisdiction. We believe prosecution for serious federal crimes such as seditious conspiracy and insurrection, regardless of the offender’s military affiliation, should be tried in civilian federal court. With civilian institutions the direct victim of last week’s insurrection, now is the time to emphasize that federal criminal processes work—such action would constitute both actual and poetic justice.
But given the strong possibility that military leaders will desire to handle actions against military members, it is critical that the secretary of defense move now to establish a CDA with one general or admiral, supported by a senior military lawyer, tasked with deciding what disciplinary or criminal action, if any, is to be taken against active-duty and regular component retirees. (Aside: there are serious constitutional issues raised by court-martialing retirees, as a federal judge recently concluded.)
Considering the DoJ/DoD MOU as well as DoDI 5525.07 (March 5, 2020),, both contained here: https://fas.org/irp/doddir/dod/i5525_07.pdf
ReplyDeleteThe DoDI states at para C.3.c:
"Offense is not Normally Tried by Court-Martial. When there are reasonable grounds to believe that a federal crime (other than those covered by paragraph C.1.) normally not tried by court-martial, has been committed outside a military installation by a person subject to the Uniform Code of Military Justice, the Department of Defense investigative agency will immediately refer the case to the appropriate Department of Justice investigative agency unless the Department of Justice has relieved the Department of Defense of the reporting requirement for that type or class of crime."
Sedition, seditious conspiracy, and insurrection aren't normally tried by court-martial, although Art. 94, does expressly cover sedition and provides for the death penalty. The UCMJ however, does not address the crime of insurrection.
The MOU at para. D.4, provides:
"The Department of Justice will solicit the views of the Department of Defense with regard to its Department of Defense-related cases and investigations in order to effectively coordinate the use of civil, criminal and administrative remedies."
The process seems to be in place for the DoJ to assume prosecutorial jurisdiction of military members, especially retired ones.