Monday, February 22, 2021

Calm before the perfect storm?


This may be completely wrong, but military justice in the United States seems to be at an inflection point. Consider the following:

  • The topic of racial disparities in the administration of justice is front-and-center
  • The Biden administration and Secretary of Defense Lloyd J. Austin III will need to focus for real on the unresolved issue of sexual assault and harassment in the armed forces
  • Congress will return to the various approaches that have been floated concerning who should have power to make decisions about the disposition of major offenses -- and what constitutes a major offense, as opposed to a minor disciplinary matter
  • Will the years-long decline in courts-martial and appeals continue?
  • A search is on for a successor to Chief Judge Scott W. Stucky of the U.S. Court of Appeals for the Armed Forces
  • The constitutionality of court-martial jurisdiction over military retirees is in the crosshairs at both the U.S. Court of Appeals for the Armed Forces (Begani) and the U.S. Court of Appeals for the District of Columbia Circuit (Larrabee)*
  • The fallout of the January 6 insurrection for military accession and separation standards and procedures, social media usage, and the rules on participation in partisan political activities and extremism
This is a long list of institutional design and personnel policy issues to be on the screen in real time. Are there other bullets you would add? (Real names only, please.)

* Disclosure: The Editor is one of Mr. Larrabee's attorneys.


  1. A wise friend wrote to suggest that "the irrational exuberance of some leaders in the military" for sectarian proselytizing might also have a place on this list. "First Amendment issue," he wrote, "the part about freedom from religion."

  2. One that isn't on the screen in real time but that I would add if I had a say in what is on the screen: reevaluating the practice of applying standard UCMJ punitive articles to allegations of LOAC violations. This is an issue that I've been studying for a while - and my findings and recommendations will probably take shape in a draft for a law review article over the summer. For the primary incidents I've been studying (Tarnak Farms, attack on the MSF trauma center in Kunduz, and separately the courts-martial for 1LT Michael Behenna, 1LT Clint Lorance, and SOC Edward Gallagher), the existing punitive articles don't align well with the conduct under consideration. The same is true with application of standard jurisprudence for issues such as self-defense when there is a trial/appeal. It's not a hot issue yet...but hopefully that changes soon. There's a real disconnect that is going largely unnoticed, and it's having a significant (and, I think adverse) effect on the application of MJ in an armed conflict setting.


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