Monday, January 21, 2008

Updated Air Force Administration of Military Justice regulation

An alert reader has called our attention to the 21 December 2007 update of AFI 51-201, which is the Air Force's equivalent of the JAGMAN, AR 27-10, and COMDINST M5810D.

I'm sometimes asked by students for paper topics ideas. Here would be a great one. Compare the protections afforded by the four documents cited above and identify instances in which one service provides its members with substantially greater protections than the others. Remember that under Hamdan v. Rumsfeld's interpretation of Article 36(b), judicial review is now available of instances where the President has elected not to establish uniform rules but where such uniformity would be practicable. See Hamdan v. Rumsfeld, 542 U. S. 507 (2006). Has anyone advanced such a inter-service Article 36(b) challenge yet?


John O'Connor said...

Maybe the government will start taking the position that there own regulations, to the extet they afford greater protections to an accused, run afoul of Article 36(b) and therefore ought to be thrown out in favor of less-protective rules adopted by other services.

You know, the United States asking an Article I court to invalidate regulations adopted by the United States. Or does everyone have to adopt more accused-friendly rules if any one service does?

No Man said...

CAAFlog asking if anyone has advanced a "inter-service Article 36(b) challenge" is a bit like me asking if anyone has ever advanced an Apprendi-based challenge to the factual pre-conditions for punishments in Apendix 12 of the MCM (2005(8?)).

Gene Fidell said...

Perhaps we can look forward to an article with the title "How Uniform is the Uniform Code of Military Justice?" While we wait, this would be a good topic for a lunchtime gathering under NIMJ auspices, perhaps in the Spring.

Anonymous said...

How about term limits for judges in some services, and none in others? CAAF always gives this one short shrift.

John O'Connor said...


That's exactly my point. Let's start with the principle that there is no constitutional right to judges with fixed terms of office. If one service decides to create fixed terms of office, how exactly does the "uniformity" principle of Article 36(b) get enforced? Does one service get to dictate policy for all services by creating a fixed term of office and then having judicially-enforced uniformity require the same from the other services? Or is the one service's creation of a fixed term of office illegal under Article 36(b) because it deviates from the uniform practice? Or do judges just get to pick the policy they like best, under the guise of "evolving standards" and use it to force their own policy choice on all services?

To me, the answer is that there is no enforceable inter-service "uniformity" claim under Article 36(b).

CAAFlog said...


The fixed term of office claim doesn't seem like a good one as a test case for the Article 36(b) theory because the services' power to appoint judges and supervise judge advocates arise from articles other than Article 36(b) -- they aren't an exercise of Article 36 subdelegated from the President.

But just for purposes of working through the analysis, let's assume that it was. The argument advanced by a defense counsel would then be that the subdelegation with differing implementation regimes violates Article 36(b) because it would have been practicable for the President to have established a uniform rule. That wouldn't compel the adoption of any particular rule, but it could lead to the invalidation of the particular regulation under which the military judge serves, thus potentially supporting a jurisdictional challenge to the court-martial. It would then be up to the President to fix the uniformity problem any way he or she sees fit. This isn't the old ratchet theory of constitutional interpretation under which the courts could move in any one way. And the service with the more defense friendly regime would still seem vulnerable to this challenge, though presumably there would be an additional Article 59 prejudice hurdle thrown in the way of an accused challenging the more defense friendly rule. (That said, if CAAF were to strike down the less defense friendly service reg, it would seem to invalidate any reg on that topic, since they would all be equally ununiform.)

Of course, in Hamdan the Supremes were dealing with a disparity between the military commission system and the court-martial system, not in inter-service split in court-martial procedures. But as Justice Thomas's dissent observed (persuasively), inter-service splits lie at the heart of Article 36(b). So, a fortiori, since that reasoning invalidated the military commission system due to its departure from court-martial practice where it wouldn't be impracticable for the two systems to be uniform, the same reasoning would invalidate inter-service court-martial procedural differences where it wouldn't be impracticable for all of the services to be uniform.

But again, this reasoning would seem to apply only to instances where the services are acting pursuant to a subdelegation of the President's Article 36 power.

John O'Connor said...


Why would that result (invalidating all sub-regs on a particular subject as not uniform) be more defensible than invalidating the regs that came out later in time? It seems to me that you wouldn't want to have springing illegal regs, a reg that is perfectly legal for many years, but then becomes illegal solely because some other service got a wild hair and tried something different.

Isn't that what the Supreme Court did in Hamdan? It didn't invalidate court-martial procedures because of a lack of uniformity between court-martial regs and commission regs. Rather, it invalidated the ones that came later in time as being in conflict with that which already existed.

But I'll still go back to my earlier prediction that there's no enforceable inter-service "uniformity" claim.

And I'll add that this notion of forced uniformity pains me as a sea service alum. It was, after all, the first Navy regs for courts-martial that were passed by Congress with the classic statement on the House floor by Rep. Josiah Parker that "the bill was very long, and related entirely to the government of the navy, [so] he did not think it necessary to detain the House in reading it." Of course, I could sum it up as: ship captain, do what you want.

CAAFlog said...

Leaving the first-in-time reg in place and invalidating all subsequent regs would make every other service subject to whatever service adopted the first regulation. And, God forbid, that might even be the Army.

The evil to be avoided is unnecessary non-uniformity. So where it would have been practicable for the President to adopt a uniform rule and he or she didn't, the result should be to invalidate all of the service rules, which will then essentially force the President's hand to prescribe a uniform rule. That way the judiciary isn't involved in picking the correct rule -- a legislative function that has been delegated to the President. Rather, the judiciary simply vindicates the congressional uniformity principle, returning the case to the policy-making branches to decide upon the optimal uniform rule.

The commission/court-martial distinction is different for several reasons -- most importantly, that many of the ways that the military commission system departed from court-martial practice would have violated UCMJ provisions if applied to courts-martial. Because the President's rulemaking authority under Article 36 is constrained by the congressional limitation that the President's rules not violate other UCMJ provisions, in many instances the adoption of uniform rules compelled following court-martial practice.

To the extent that the President was unconstrained by the UCMJ, he could have lowered court-martial practice to the military commission level to obtain the necessary uniformity, But, instead, the President and Congress collaborated on the Military Commissions Act, which recognized the inferior nature of the military commission and sought to prevent that inferior product from harming U.S. servicemembers by providing that commission precedent isn't applicable to court-martial practice.

Finally, the military justice system's judiciary is bound by Hamdan. I think that judiciary will certainly apply Hamdan and that in the right legal scenario -- where service secretaries adopt non-uniform procedures while acting under subdelegation of the President's Article 36 rulemaking authority -- the courts will strike down a service regulation, as Hamdan compels them to do if uniformity would have been practicable.

John O'Connor said...

Well, let's just mark me down as skeptical that we'll see any regs invalidated as non-uniform any time soon.