U.S. Courts-Martial, British Victims, and the NATO SOFA

 

Who Gave Away the Case?

There has been considerable public discussion about the recent court-martial of a U.S. Air Force officer in the United Kingdom, and why British authorities did not prosecute.

The question is hardly new.

This week, the Ilford Recorder published an account of the case of Private Leroy Henry, an African-American U.S. soldier accused of raping a British woman near Bath in 1944. British authorities arrested Henry and turned him over to the U.S. Army. An American court-martial convicted him and sentenced him to death.

The evidence raised substantial questions. The complainant could not identify Henry at trial. A review found that the prosecution had not proved force, investigators found no knife despite the complainant's allegation that Henry had threatened her with one, and identification remained uncertain. The review even acknowledged the possibility of prejudice. Henry nevertheless faced execution.

British citizens objected. Residents of Bath organized the “Coloured Soldier's Appeal,” which reportedly attracted 30,000 signatures. Stanley H. Ellisdon of Ilford wrote directly to U.S. Ambassador John G. Winant seeking reconsideration of the sentence.

Ellisdon's June 8, 1944 letter contains a remarkable sentence:

I am aware that the U.S. authorities have full power to deal with offences by American soldiers in this country in their own way....

Henry's death sentence was eventually commuted. He was later released, finished the war as a sergeant, and died in 1971.

Eighty-two years later, Britain is again asking who should prosecute American servicemembers accused of serious crimes against British civilians.

Today, however, a treaty, British legislation, and written bilateral guidance govern that question.

The recent court-martial of Air Force Captain Jacob Wulfson raises a more specific one:

Who gave away the case?

A Note About the Acquittals

Captain Wulfson was acquitted of the sexual-offense allegations against him. Nothing in this post questions those acquittals or suggests that he committed an offense of which the court-martial found him not guilty.

Our subject is different: how British and American authorities decided which country would investigate and prosecute the allegations.

The court-martial convicted Wulfson of strangling his victim and violating an order not to contact her. Because the adjudged sentence included dismissal from the Air Force, those findings and the sentence are subject to automatic appellate review by the Air Force Court of Criminal Appeals. See Article 66, UCMJ. Nothing in this post treats the convictions as final or prejudges that appellate review.

The Wulfson Court-Martial

Captain Jacob Wulfson was a U.S. Air Force pilot assigned to RAF Lakenheath. In December 2023, he met his victim, a British academic, after the two connected through a dating app.

Their encounter took place at Wulfson's private apartment in Cambridge. He was off duty.

He was accused of drugging the victim, sexually penetrating her without consent, and strangling her.

Cambridgeshire Constabulary initially had the case. British police then allowed the U.S. military to assume what the police later called “investigative primacy.”

The Guardian's detailed investigation reports that American investigators told Cambridgeshire police that the victim did not want contact with British police. She disputes that account. She says she never told anyone that she did not want to speak with British police. Cambridgeshire police apparently did not contact her before allowing American investigators to take over.

The Air Force prosecuted Wulfson at a general court-martial at RAF Lakenheath in April 2026.

An eight-member panel of Air Force officers acquitted him of the sexual offenses but convicted him of strangulation and violating an order. The panel sentenced him to six months' confinement, a reprimand, and dismissal from the Air Force. A dismissal is the officer equivalent of a dishonorable discharge. It is a punitive separation that can be adjudged only by a general court-martial. 10 U.S.C. § 1161(a).

The verdicts are not the important point for present purposes. The forum is.

The alleged offenses occurred in Cambridge. Wulfson was off duty, and his victim was a British civilian. Yet the case apparently never reached a British prosecutor.

Downing Street subsequently called it “very concerning” that a case of this nature never reached the Crown Prosecution Service.

Having Jurisdiction Is Not the Same as Having the Primary Right to Exercise It

It is easy to say that the United States had jurisdiction because Wulfson was an American servicemember. It did. But so did Britain.

The United States had jurisdiction over Wulfson under the Uniform Code of Military Justice. Britain had jurisdiction because the alleged crimes occurred in Britain. The NATO Status of Forces Agreement addresses what happens when both countries have jurisdiction.

Article VII gives the sending state—the United States here—the primary right to exercise jurisdiction in certain cases. Those include offenses arising from an act or omission performed in official duty and certain offenses directed against the sending state, its property, its personnel, or their dependents.

For the remaining offenses subject to concurrent jurisdiction, the receiving state has the primary right.

Nothing publicly reported about Wulfson suggests that he was performing an official military duty in his Cambridge apartment. The alleged victim was a British civilian.

On the publicly known facts, Britain therefore appears to have held the primary right to exercise jurisdiction.

That does not mean the Air Force could not prosecute him. Article VII permits the state possessing the primary right to waive it. The treaty also requires that state to give “sympathetic consideration” to a waiver request when the other state considers waiver particularly important. Further, the U.S. Constitution's Double Jeopardy Clause does not protect him from dual prosecution here.

So the question is not whether the United States could court-martial Wulfson. It could. The question is how Britain surrendered—or failed to exercise—its primary right to prosecute him.

And that distinction matters because we do not yet know that Cambridgeshire Constabulary's transfer of “investigative primacy” constituted a formal British waiver under Article VII.

There Is a Written Process for This

The Attorneys General of the United Kingdom and United States adopted written Guidance for Handling Criminal Cases with Concurrent Jurisdiction between the United Kingdom and the United States of America.

The Guidance begins with a simple proposition: early contact between prosecutors allows the two countries to agree on strategies for handling investigations and proceedings.

For the most serious, sensitive, or complex criminal cases presenting concurrent-jurisdiction issues, the Guidance calls for prosecutors to consider whether their counterparts in the other country may have an interest in prosecuting the case.

It also says investigators should discuss concurrent-jurisdiction issues with prosecutors as soon as they arise. That makes sense. Investigators investigate. Prosecutors decide whether and where to prosecute.

The CPS's current jurisdiction guidance reinforces the point. It directs prosecutors to consider competing jurisdictions from the earliest possible stage and requires jurisdictional decision-making to be clearly recorded.

The CPS also identifies a general principle for choosing a forum: a prosecution should ordinarily be brought where most of the criminality or most of the loss or harm occurred. It specifically directs prosecutors handling cases with a factual nexus to the United States to the UK-US concurrent-jurisdiction agreement.

All of which makes one fact about Wulfson difficult to overlook: the CPS apparently never saw the case.

“Investigative Primacy” Is Not Necessarily Jurisdiction

The phrase “investigative primacy” risks obscuring three different questions: Who investigates? Who decides whether to prosecute? Which sovereign exercises its primary right under Article VII?

Those questions may eventually produce the same answer. They are not the same question.

The bilateral Guidance appears to recognize the distinction. Investigators start the process, but serious concurrent-jurisdiction questions should reach prosecutors early.

That raises a troubling possibility in Wulfson: a police decision about who would investigate may have effectively determined who would prosecute before British prosecutors became involved.

We do not yet know whether that is what happened. Apparently, neither does the British government.

Baroness Bennett asked the Government to explain the justification for transferring Wulfson's case, how many similar transfers had occurred during the previous five years, and whether the Government intended to prevent them. The Government's July 14, 2026 answer did not provide the explanation.

Instead, Lord Coaker said government officials were working closely with Cambridgeshire police to establish the full facts of how jurisdiction was enacted. He called the case “extremely concerning.”

The Government also noted that the Visiting Forces Act framework is implemented in practice by the police, the Crown Prosecution Service, and the UK courts as part of the criminal justice system.

That answer came more than two years after the alleged offenses and months after the American court-martial. The British government was still trying to establish what happened.

Parliament Has Noticed the Problem

Wulfson's case has also reached the House of Lords. During a July 6 debate, Lord Thomas of Gresford addressed the case and the concurrent-jurisdiction problem directly.

His formulation was that, prima facie, an off-duty American servicemember accused of an offense against a British civilian outside an American base should be investigated by UK police and prosecuted in the Crown Court.

That is a parliamentarian's view, not a judicial holding. But it captures the issue. The controversy is not over whether American courts-martial exist or whether they possess jurisdiction over American servicemembers. It concerns why British authorities did not exercise Britain's own jurisdiction over an alleged off-duty crime against a British civilian in a British city.

The Harry Dunn Case Shows the Other Side

The death of Harry Dunn provides a striking contrast.

On August 27, 2019, 19-year-old Dunn was riding his motorcycle near RAF Croughton when a car driven by Anne Sacoolas struck him. Dunn died from his injuries.

Sacoolas was the wife of a U.S. government employee assigned to RAF Croughton. Her case involved unusual diplomatic-immunity arrangements applicable to Croughton personnel and their families rather than the ordinary NATO SOFA allocation of primary criminal jurisdiction.

The United States asserted that Sacoolas possessed diplomatic immunity. Britain sought a waiver. The United States refused. Sacoolas returned to the United States.

The CPS later charged her with causing death by dangerous driving. Britain requested her extradition. The United States refused that too.

Then-Foreign Secretary Dominic Raab publicly called the American refusal a “denial of justice” and said Sacoolas should return to Britain.

The dispute continued for years. In 2022, Sacoolas appeared remotely before the Old Bailey, pleaded guilty to causing death by careless driving, and received an eight-month suspended sentence.

The High Court's decision in R (Dunn) v. Secretary of State for Foreign and Commonwealth Affairs provides a detailed account of the unusual immunity arrangements at RAF Croughton.

Dunn and Wulfson present different legal issues. But the contrast is hard to miss.

When diplomatic immunity prevented Britain from prosecuting Sacoolas, the British government spent years demanding that she face British justice.

In Wulfson, Britain apparently possessed the primary right to prosecute. British authorities nevertheless allowed the American military to take the investigation. Why?

Britain Has Fought for Jurisdiction Before

The prosecution of U.S. Air Force member Mikayla Hayes provides an even closer comparison because it involved Article VII of the NATO SOFA.

Hayes was stationed at RAF Lakenheath. In August 2022, she left the base in her private car after a physical-training session and drove toward her home. Her car collided with a motorcycle. The rider, Matthew Day, died.

The jurisdictional issue turned on whether Hayes was acting in the performance of official duty. If she was, the United States held the primary right to prosecute under Article VII.

This time, the issue reached a British court. In Rex v. Mikayla Hayes, Deputy Senior District Judge Tan Ikram examined the NATO SOFA and the Visiting Forces Act 1952. He rejected Hayes's argument that British courts lacked jurisdiction.

Britain prosecuted her. A British jury later acquitted her.

That acquittal does not show that Britain made the wrong jurisdictional decision. Verdict and forum are separate questions. The forum decision comes first.

Hayes also establishes something important about Wulfson: British courts and prosecutors know how to confront an Article VII jurisdictional issue when it reaches them. The unanswered question is why Wulfson's case apparently never did.

Wulfson Is Not Alone

The Guardian's investigation has identified other cases in which British police transferred investigations involving American servicemembers accused of serious off-duty conduct.

Two British women accused Airman Tyrion Davis of rape and sexual assault. Suffolk police initially investigated the allegations before the case moved to the Air Force. An American court-martial ultimately convicted Davis of one sexual assault while acquitting him of the remaining sexual allegations.

Then there is James Loubeau. British women accused Loubeau, then an American airman stationed in Britain, of serious sexual offenses. Suffolk police transferred the investigation to U.S. military authorities. Loubeau faced an American court-martial in 2020 and was acquitted of the sexual-offense allegations.

Years later, an unrelated American federal prosecution involving another woman resulted in Loubeau's conviction for abusive sexual contact arising from separate conduct at RAF Mildenhall. The Department of Justice summarized that later prosecution here.

Again, the point is not that an American acquittal establishes that Britain should have prosecuted. It does not. The point is that British authorities repeatedly faced the same threshold decision: who gets the case?

Staff Sergeant Hannes Marschalek provides another example. Cambridgeshire police investigated allegations that Marschalek exposed himself to several women and a 16-year-old girl. Police arrested him, interviewed him, and gathered witness statements. The case then moved to American military authorities.

The Air Force prosecuted Marschalek under Article 134, UCMJ. The forum decision had consequences familiar to military-justice practitioners: the case eventually produced a distinctly American charging question over whether Article 120c preempted the Article 134 offense used to prosecute him.

He plead guilty at his court-martial. The Air Force Court of Criminal Appeals (AFCCA) set aside his guilty plea because of what we know as the "preemption doctrine." See, Marschalek. Upon motion for reconsideration, the bottom line was affirmed again.  See Marschalek (recon), That litigation continues. On 16 June 2026, CAAF received notification of certification by the AF TJAG. No. 26-0221/AF, 2026 CAAF LEXIS 558 (C.A.A.F. June 29, 2026). The docket shows Appellee has until 4 September 2026 to file its brief. It is likely that the loser in Wolfsun at AFCCA will either petition or certify the case to the Court of Appeals for the Armed Forces (CAAF). The CAAF is mandated to consider a certified issue, but has discretion to hear an Appellant's issue.

Marschalek illustrates a practical consequence of the initial forum decision. Once Britain hands an investigation to American military authorities, American substantive law, charging decisions, rules of evidence, plea procedures, sentencing law, and military appellate doctrine govern the prosecution.

Like Marschalek, Wulfson is not is the same position--the appeal. His case is not yet listed on the AFCCA docket. (The speed of post-trial case processing is a separate issue--one of his issues at trial was speedy trial.) If you want to review some of the trial documents, this link to the AF Trial Docket should take you there: Wulfson Case Documents. (Another separate issue of public and media access to trial documents.)

That does not make the American system illegitimate. It makes the initial decision about forum consequential.

And with Wulfson, Davis, Loubeau, and Marschalek, we are no longer looking at a single unusual case. We are looking at a practice worth examining.

The forum decision therefore reaches beyond the trial itself. Once British authorities allowed the American military justice system to take the case, American military appellate courts also became responsible for determining whether the surviving findings and sentence stand.

After AFCCA acts, the case could reach the U.S. Court of Appeals for the Armed Forces. Wulfson may petition CAAF for review, and the Judge Advocate General may also certify issues to that court. CAAF review is not automatic merely because the sentence includes a dismissal.

Under Article 66, UCMJ, a sentence that includes dismissal of a commissioned officer receives automatic review by the Air Force Court of Criminal Appeals. AFCCA will therefore review the findings and sentence without Wulfson having to petition the court for that initial appellate review.

The dismissal makes one point clear: Wulfson’s court-martial is not yet final.

This Is Not an Argument Against Courts-Martial

None of this means that an American court-martial cannot fairly adjudicate a serious criminal offense. Nor does it mean that the Air Force lacked jurisdiction over Wulfson. It had jurisdiction.

American courts-martial routinely try serious crimes. Servicemembers do not cease being subject to the UCMJ when they leave an American installation or travel overseas.

The issue comes earlier.

The United States and United Kingdom agreed upon rules governing cases in which both sovereigns can prosecute. Those rules distinguish between having jurisdiction and having the primary right to exercise jurisdiction.

The two governments also adopted written guidance calling for early involvement by prosecutors in serious concurrent-jurisdiction cases.

That distinction matters most when the alleged crime has little connection to military duties.

An American servicemember stationed in Britain does not carry a portable island of exclusive American criminal jurisdiction everywhere he goes.

When an off-duty servicemember allegedly commits a serious offense against a British civilian in Cambridge, Britain has interests of its own. The alleged crime occurred on British soil. The alleged victim is British. Witnesses, medical providers, and investigators may be British. British law defines offenses that may apply to the conduct. And British law provides its own protections to victims and witnesses who enter its criminal justice system.

The NATO SOFA recognizes those interests. That is why it allocates a primary right to exercise jurisdiction rather than simply declaring that American servicemembers belong to American courts.

Leroy Henry and Jacob Wulfson stand eighty-two years apart.

Their cases arose under different legal arrangements. Henry's wartime court-martial does not tell us how Article VII of the NATO SOFA should operate today.

But Stanley Ellisdon's letter captures something that has not changed. American military justice exercised in Britain affects British citizens. That makes its exercise a legitimate concern of both countries.

In 1944, Ellisdon understood that American authorities possessed the power to try an American soldier accused of a crime against a British woman. He nevertheless demanded that they exercise that power justly.

The Wulfson controversy presents a different problem.

The United States unquestionably had jurisdiction to court-martial Captain Jacob Wulfson. But on the publicly known facts, Britain apparently had the primary right to prosecute him.

The NATO SOFA permitted Britain to waive that right. The United States and United Kingdom had written guidance for handling serious cases in which both countries possessed jurisdiction. That guidance contemplated early involvement by prosecutors.

Yet Wulfson's case apparently never reached a British prosecutor.

More than two years after the alleged offenses—and after the American court-martial had ended—the British government said it was still trying to establish the full facts of how jurisdiction was enacted.

Perhaps the ultimate explanation will show that British and American authorities followed the applicable process and made a deliberate decision that the United States should prosecute. Perhaps it will not.

For now, the distinction between investigative primacy and jurisdictional primacy remains unexplained.

Disability developed after 14 years of service attributable to Military service

LiveLaw reports that the Jammu and Kashmir High Court, India, has refused to interfere with an order passed by the Armed Forces Tribunal ("AFT"), which released Disability element of Pension to a soldier who had developed a disability during the course of his service, which although initially deemed as "attributable to service" was subsequently deemed as "not attributable to service" by the Release Medical Board, without any reasoning.  

The Respondent who was enrolled in the Indian Army in July 1977, developed an eye disease namely, "Hypermetropic Amblyopia" of the right eye, due to which he was placed in a permanent low medical category. While the Initial Medical Board observed that the above disability was contracted during service, the release medical board assessed the disability at 15-19% for 2 years and shockingly deemed it as "neither attributable nor aggravated by military service" without assigning any reasons. The Court rejected these findings and upheld the AFT's Order granting disability element. 

This approach of Release Medical Boards, denying attributability of disabilities before the release of the personnel without any cogent reasoning is frequent and deeply concerning. The burden of multiple rounds of litigation on disabled soldiers for grant of disability pension, which is due to them in such cases, is nothing short of appalling. 

Military duty in accordance with law trumps ephemeral anger in the heat of battle : Armed Forces Tribunal, Chandigarh Bench, India

 

The Indian Express reported the Indian Armed Forces Tribunal’s refusal to entertain an appeal by an Indian Army Brigadier held guilty of custodial killings of civilians in the Kashmir region.

The officer had been awarded the censure of “several displeasure” by the Army over killings of 3 civilians in custody for an interrogation to look into the deaths of 4 soldiers of the Indian Army who were ambushed by militants and killed in action in the Indian Kashmir region.

Citing several irregularities and lapse in procedure, the senior officer challenged the award of punishment in appeal, however, it was rejected by the Armed Forces Tribunal, Chandigarh Bench by interpreting the killings as an emotional overreach by the officer and also a blatant violation of the Armed Forces (Jammu & Kashmir) Special Powers Act, 1990 and the Geneva Conventions.

The complete judgment is available here.

Supreme Court of India invokes Article 142, Constitution of India to grant Pensionary Benefits to widow of Gallantry Awardee

As reported on LiveLaw, the Supreme Court of India has directed that the widow of a General Reserve Engineering Force ("GREF") Employee, who passed away while saving his colleagues during a road construction along the India-China border, be released an amount of Rs 10 Lakhs (1 Million) in arrears of Extra Ordinary Family Pension from the date of death of her husband.

During construction of an strategically important road on the India-China border, Late Mohan Singh spotted a mass coming down a hill-top and hurtling towards their team, he raised an alarm and instructed the dozer operators to move to a safer place. Unfortunately, he was swept away by the impact of the mass which led him to fall 70 meters deep into the valley below. In view of his extraordinary bravery, the Government of India conferred the "Shaurya Chakra" on him, India's third-highest peacetime gallantry award. 

Despite the above, the widow was not in receipt of Extra-Ordinary Family Pension and her representation was rejected stating she had already received compensation under the Workmen Compensation Act, 1923. The Punjab and Haryana High Court, India, initially directed release of the Extra-Ordinary Pension to the widow of the deceased, however restricted the arrears to three years from the date of filing of the petition instead of from the date of death. 

In Appeal, the Supreme Court of India, noting the peculiar facts of the case, exercised their powers under Article 142 of the Constitution of India and extended the benefit from the date of death of the deceased GREF employee. Accordingly, the Union was directed to release an amount of Rs 10 Lakhs (1 Million) to the widow. 

Permanent Commission denied to Women Officers due to inadequate Infrastructure : Indian Coast Guard submits before the Supreme Court of India

In a rather peculiar exchange reported by Livelaw, it appears that the Indian Coast Guard has been unable to extend the benefit of Permanent Commission to its women officers on account of "qualitative" differences between the Indian Coast Guard ("ICG") and the Indian Navy when it comes to "infrastructure". The petitioner who approached the Supreme Court of India highlighted that the ICG also denies having a policy for grant of Permanent Commission to women officers. 

The Petitioner was appointed as an Assistant Commandant (General Duty Women) in the year 2009 and subsequently was promoted to the post of Commandant (JG) in the year 2021, when she submitted her request for permanent absorption into the ICG. No action was taken on her request for over a year after which she was informed that the Ministry of Defence Letter dated 25 February 2019, which extended the grant of permanent commission to women, did not apply to the ICG and that no procedure existed for induction of women in the permanent cadre at the time of her enrolment. Consequently, the Petitioner was released in December, 2023. 

Pertinently, the petitioner has around 4500 hours of flying experience which is more than both men and women officers. She also highlighted that the ICG denied her Child Care Leave while she was in service and she had to leave her 15 month old baby behind to join service in the Andamans and Nicobar Islands during her tenure. 

While the above sad state of affairs show nothing short of pervasive institutional discrimination against women officers, the submissions by the State during the proceedings reveals a mindset problem and direct discrimination. The State blatantly submitted that permanent commission was being denied to women officers due to "certain special facilities required for women" being absent in ICG. 

Unimpressed by the above submission, the Supreme Court of India observed in no uncertain terms that "If she (Petitioner) is absorbed by them (ICG) themselves, fine. If not, we will pass an order. We can't allow an officer to be humiliated like this. From the list of eligible officers, we find she is the senior most. Let them show sportsmanship." 

On the alleged lack of infrastructure when compared to the Indian Navy, the Apex Court noted that - It (the difference) is not of such nature that they can be deprived completely" and that "Hyper-technical objections will not work. If you have a system for men officers, how can you deny [PC] to women officers?

Old Wine In New Bottle: British Military Justice System Remains Broken

A recently leaked British Ministry of Defense report details how (at least according to the BBC, which fails to link to the actual report it cites) its new-ish Defence Serious Crime Command (DSCC) is plagued by similar issues that led to its creation:  primarily, the lack of sufficiently trained and resourced investigators as well as insufficient support to victims, particularly in the arena of military sexual assaults. 

The creation of the DSCC in 2022 was animated by the need to "to investigate serious crimes independently, outside the military's chain of command." Unlike in the U.S. military justice system, in which commanders still (despite structural conflicts of interest plus lack of training and experience) retain prosecutorial discretion over the bulk of crimes found in the Uniform Code of Military Justice, the Brits rightly moved prosecutorial discretion away from commanders to lawyers outside of the chain of command starting back in 1996, with additional statutory reform in 2006. 

Despite being far ahead of the U.S. in recognizing & remedying the dysfunction and unfairness of military commanders wielding prosecutorial discretion,  the Brits are apparently still struggling with the need for greater resourcing & professionalization of criminal investigations. 

As with the U.S. military, the deleterious effects of such mismanagement are felt by individual British service members, who for example -- at least according to this reporting -- don't feel confident that their allegations will be taken seriously. 

At least the British military is seemingly supported by its leadership in fixing these issues to a far greater degree than across the pond, where the U.S.military is commanded by a president who was found by a jury to to have committed sexual assault and has joked about grabbing women by their genitalia -- and further "led" (I use the word loosely) by a Secretary of Defense who was credibly accused (just read the report) of sexual assault and is more worried about how much testosterone American troops have than about making those in uniform more confident that their allegations of sexual assault will be taken seriously (ps:  what I believe was criminally reckless behavior by U.S. Navy military commanders led to a young U.S. service woman's brutal murder at the hands of a fellow Navy service member last year; murderer went to jail, but same leadership & same broken system will, I fear, lead to more sexual assaults and murders of young American women in uniform ... far more needs to be done in the memory of Vanessa Guillen and Angelina Resendiz, and for all who volunteer to wear the American military uniform).

Whelan v Canada, 2026 FC 923: Is this a chink in the Crown's justiciability armour?

A little over a month ago, Madam Justice Nowak of the Federal Court (now retired) handed down a decision regarding the justiciability of actions against the Crown brought by members (or former members) of the Canadian Forces (CF).  In light of intervening developments, the significance of this decision remains uncertain, but Justice Nowak's decision and reasons are worth examining:

Whelan v Canada, 2026 FC 923

Some background will assist in understanding the trajectory of this litigation.

2025 edition of Chief Judge Maggs's compendium of UCMJ amendments

Thanks to GW Law's Jacob Burns Law Library's handy Military Justice Research Guide, readers can access CAAF Chief Judge Gregory E. Maggs's compendium of Amendments to the Uniform Code of Military Justice Since 1950 (2025 edition). The document, available here, was last updated June 25, 2025.

The forgotten half of the duty to disobey: Knowing illegality

I have studied and taught the law of superior orders in military criminal law for the past five years. When first encountering it, I remember being surprised at its complexity—a complexity largely unknown to the public, or even to most JAGs with whom I discussed it. Most seemed to know that there were lawful orders and unlawful orders, and that this distinction mattered. But few knew much beyond this. The statements provided by some of the six lawmakers in the now-infamous “Don’t give up the ship” video reflect this, with Representative Chris Deluzio erroneously claiming that servicemembers “must” disobey unlawful orders.

What is conceptually elusive to most observers, and to Representative Deluzio, is that there is a legal “gray” zone in which an unlawful order can be either disobeyed or obeyed, with both options resulting in a criminal law defense. This is the zone of orders that are apparently lawful but technically unlawful; another way of describing this is the zone of orders that do not rise to the level of patently unlawful orders. Here, obedience results in a criminal law excuse for the conduct commanded, while disobedience results in acquittal at trial once a judge has adjudicated that the order was unlawful. Thus, it is not true that “unlawful” orders must be disobeyed. This is only true of patently unlawful orders (as well as another category to be discussed below). In the wake of the video’s released, critical reaction has centered on this error.

Public attention on the Caribbean boat strikes at times focuses, appropriately, on this question: did the orders rise to the level of manifest or patent illegality, as in the case of the My Lai Massacre?

While I am glad that the public conversation is now accounting for the nuance between patently unlawful orders and technically unlawful orders, I have noticed that there is something missing: The duty to disobey applies even to non-patently unlawful orders if the defendant (I will use this term instead of “accused”) knew the orders were unlawful. As stated in the canonical case, United States v. Calley:


"The acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the superior's order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful."

United States v. Calley, 48 C.M.R. 19, 27 (1973) (emphasis added). This is appropriate for a mistake-of-law-based excuse in criminal law: There can be no mistake, after all, if the defendant knows the order is unlawful. See Paul H. Robinson, Criminal Law Defenses: A Systematic Analysis, 82 Colum. L. Rev. 199, 224 (1982).

One can forgive most commentators for forgetting about this half of the duty to disobey: There are no reported military cases in which a court found that a defendant possessed subjective knowledge of orders’ illegality. It is unlikely, after all, that those who are on the receiving end of an order—lower-level officers and enlisted—would be privy to the determination of an order’s lawfulness vel non.

There is one class of servicemembers, though, who are uniquely privileged on this count: military lawyers, and especially military lawyers who are involved in the decision-making leading up to the issuance of the order. These lawyers are able to witness and participate in the deliberation that results in an unlawful order, including any willful distortions of fact or law. Since they are trained in law, they will know, more than the lower-level servicemember, if an order is technically unlawful even though it is not patently unlawful. In such a case, military lawyers have a duty to disobey that order and have a duty to not facilitate its promulgation. Since military lawyers will more likely possess actual knowledge regarding an order’s illegality, they will more often be held to the higher standard that is imposed on most others only in cases of patently unlawful orders.
​
It is said that the military “‘is the executive arm’ whose ‘law is that of obedience,’” Parker v. Levy, 417 U.S. 733, 751 (1974), but this cannot be true with respect to military lawyers. No lawyer, even a lawyer in uniform, can be permitted to turn off his or her brain when it spots illegality. In doing so, she would cease to be a lawyer in any real sense. In recognizing the duty to disobey orders one knows to be unlawful, the law reflects this higher burden.

Supreme Court of India directs to consider granting reservation to "Boarded-Out" Cadets with 40% or more disability

The Supreme Court of India in their recent order in "Re: Cadets Disabled in Military Training Struggle", as reported by Livelaw, has passed directions which will not only ensure welfare of Cadets disabled during training ("Boarded-out") but also ensure that they are afforded the same statutory rights & protection as per the Rights of Persons with Disabilities Act (RPwD), Act 2016. The aforesaid Act secures rights of persons with disabilities, in matters of both public & private employment, education and accessibility. 

The Court lauded how the benefits under the "Ex Servicemen Contributory Health Scheme" were now being extended by the Ministry of Finance & Ministry of Defence to such boarded-out cadets. Further, their medical expenses throughout their life were also being taken care of. 

On the question of whether RPwD Act 2016 is applicable to "boarded-out" cadets, the Supreme Court of India observed that for those cadets who have a benchmark disability i.e. assessed as 40% or above; a suitable scheme may be prepared by the appropriate Government, wherein, reservation of posts not less than 4% of the total vacancies in the cadre strength in each group of posts meant to be filled with a person with bench-mark disabilities, may be carried out. 

The Apex Court of India highlighting the recommendations of the Sabharwal Committee, further noted that this case was taken up by the Court to ameliorate the conditions of "boarded-out" cadets and the Court was hopeful that favourable recommendations would emanate from the State, and Respondent-Departments on this subject matter. 

Happy 236th birthday, U.S. Coast Guard

Alexander Hamilton
1st Secretary of the Treasury

Leaving military service to join a civil post is not a right : Indian Supreme Court

Economic Times reported the case of a serving Corporal of the Indian Air Force who cleared the state examination to become a civil servant; however, he was not allowed to leave by the Air Force authorities. His plea was previously rejected by the Armed Forces Tribunal, New Delhi and the Delhi High Court.

Indian Supreme Court affirmed the decision of the earlier courts and reiterated that a person enrolled in the Armed Forces cannot assert a general right to act in breach or defiance of policies governing taking permission from the organization to leave military service for joining a civil post.

A vexing decision

Israel's High Court of Justice has unanimously rejected a petition in a case with tragic facts but what seems a proper application of the governing law. Details here from the Jerusalem Post. 

Watch for the Knesset to grant relief legislatively.

AFT vacancies reach crisis point

India's Armed Forces Tribunal has a backlog of 11,000 cases and numerous vacancies on the court. Details here.

What gives?

ROK: no suspended sentences for military assaults

Chosun Daily reports here on a recent Republic of Korea court decision. Excerpt:

The Constitutional Court of Korea ruled that a provision in the Military Criminal Act, which imposes life imprisonment or a minimum prison sentence of seven years for military personnel who forcibly assault fellow soldiers or civilian military employees and cause injury, does not violate the Constitution.

The court announced on the 26th that it upheld the constitutionality of the provision in a 7-2 decision, following a constitutional challenge arguing that the statutory minimum sentence for aggravated indecent assault resulting in injury under military law was excessively harsh.

* * *

This marks the first time the Constitutional Court has ruled on the constitutionality of the Military Criminal Act’s provision mandating life imprisonment or a minimum seven-year sentence for aggravated indecent assault resulting in injury against military personnel.

Indian Delhi High Court’s verdict exonerates a convicted veteran of the Indian Army of charges of amassing disproportionate wealth

Bar and Bench reported the case of Major General Kapur, a retired Army officer, was earlier convicted by a civil trial court on charges of amassing disproportionate wealth worth 2.22 Indian rupee crores. The officer was tried based on allegations under provisions of the Prevention of Corruption Act, 1988 by the Central Bureau of Investigation.

A Single Bench of the Delhi High Court of India set aside the conviction based on severe procedural violations committed by the trial court (non-examination of witnesses, lack of consideration of vital evidence) in order to comply with the orders of the Supreme Court to conclude the trial expeditiously. 

The Court reiterated the significance of a fair trial under Constitutional provisions in the balance between speedy justice and rights of an accused.

The complete decision is available here.

New Chief Judge at CAAF

Congratulations to Hon. Gregory E. Maggs, who today became the 15th Chief Judge of the U.S. Court of Appeals for the Armed Forces, previously the U.S. Court of Military Appeals. If he serves the full statutory five-year term as Chief, he will be succeeded by Judge Liam P. Hardy on August 1, 2031. Judge Hardy, in turn, will be succeeded as Chief by Judge M. Tia Johnson on August 1, 2035, since his term on the court expires on July 31, 2035. Judge Johnson would be Chief until her term on the court expires on July 31, 2037.

Over the court's history, the shortest tenure of a Chief Judge was that of Robert M. Duncan, who served as Chief from 1973 to 1974, when President Richard M. Nixon nominated him to be a federal district judge in Ohio.

All five position on the Court are occupied. There are also eight senior judges.