July 4, 1776/2026 -- a time for reflection: "how goes it?"

 

July 2 NIMJ webinar -- military justice news you can use, and it's free

 

International historical models of military criminal law

Zoltán Hautzinger, International Historical Models of Military Criminal Law, 17 J. Eur. Hist. of L. 182 (2026). Abstract:

Criminal law rules and criminal justice solutions applicable to soldiers, and within that, members of the armed forces and other organizations serving individual states, have developed according to different historical models. The value of these historical examples lies in how the specific criminal law rules applicable to soldiers relate to general criminal law rules and the application of criminal law. The most common approach is for military criminal law to conform to the criminal law rules applicable to everyone, if there are no specific rules for maintaining military order and discipline. Military criminal law is most specific when it is codified to the exclusion of general criminal law norms. After presenting the definition of military criminal law, this study aims to show the reader examples of the application of military criminal law in the legal systems of different countries.

Removability of non-Article III judges

Are judges of the U.S. Court of Federal Claims, U.S. Tax Court, U.S. Court of Appeals for Veterans Cases, the District of Columbia local courts, and -- drum roll -- the U.S. Court of Appeals for the Armed Forces removable with or without cause? Consider this exchange from yesterday's decision in Trump v. Slaughter:

Majority opinion, per Roberts, C.J. (at 28):

Nor do we determine the fate of officials not before us. In particular, as the Solicitor General recognized at argument, the permissibility of tenure protections for the judges of “non-Article III courts,” such as the Tax Court and the Court of Federal Claims, is not “presented” or “briefed” in this case and poses a “different set of questions.” Tr. of Oral Arg. 15, 28. We leave those questions for another day. All we do today is recognize what has been clear for a century— that those who fall within the President’s “general administrative control” must be removable by the President at will. Myers, 272 U.S., at 135.

Dissenting opinion of Justice Sotomayor (at 44):

The majority, for example, suggests that its rule might not apply to adjudicatory agencies, including non-Article III courts like the Tax Court. See ante, at 28. That is welcome news, but why is it so? As the majority explains, it cannot be because such agencies are exercising judicial power. Adjudications by Executive Branch agencies “are exercises of—indeed, under our constitutional structure they must be exercises of—the ‘executive Power.’” Arlington v. FCC, 569 U.S. 290, 305, n. 4 (2013); see ante, at 19. Nor, after today, is it obvious that such agencies could safely depend on a precedent like Wiener, which did address an adjudicatory agency but rested squarely on “[t]he philosophy of Humphrey’s.” 357 U.S., at 356. Still, the majority says, a narrow exception for non-Article III adjudicators might yet survive. If that is true, questions immediately arise: What, exactly, is the “‘different set of questions’” raised by these agencies?

Inside baseball question: if CAAF judges can be freely removed, what about CAAF Senior Judges?

Should peacetime murder be tried by court-martial?

That's the issue addressed by a partner in the Nevada firm Claggett & Sykes who is also an Air Force reserve judge advocate. See Erica C. Medley, Military Justice: The Forgotten Jurisdiction in Capital Punishment, 115 J. Crim.. L. & Criminology 577 (2025). Abstract :

The military capital punishment scheme for murder in peacetime is unconstitutional. It does not meet the Eighth Amendment’s requirement of heightened reliability for capital cases because it fails to include a trial by jury. The Supreme Court identified concerns about court-martial panels compared to juries in Reid v. Covert and United States ex rel. Toth v. Quarles. These concerns are exacerbated by the research from the Capital Jury Project regarding how the race and gender of jurors can affect capital sentencing determinations. Specifically, as the number of white males increases on a jury, the likelihood of a death sentence increases. This is particularly concerning for the military because the demographics of its jury pool are predominantly white male. The purported need for deviations from the Sixth Amendment right to trial by jury and deference to the military system in order to preserve discipline is undercut by the history of jurisdiction for murder in peacetime. The military has not historically had jurisdiction over murder in peacetime for the majority of this country’s history. These concerns of non-representative courts-martial, coupled with the need for heightened reliability in capital cases, warrant a change to Article 118 (the crime of murder) to only allow capital courts-martial for murder if there is a nexus to war or armed conflict.