New Military Law Review

A new issue of the Military Law Review is available here. The lead article is a 78-page piece (not counting 12 pages of appendices) advocating elimination of UCMJ art. 71(a), which provides, "If the sentence of the court-martial extends to death, that part of the sentence providing for death may not be executed until approved by the President." MAJ Joshua M. Toman, Time to Kill: Euthanizing the Requirement for Presidential Approval of Military Death Sentences to Restore Finality of Legal Review, 195 Mil. L. Rev. 1 (2008). Or, as the article puts it, "It is time for a mercy killing of Article 71(a) because it has fallen into desuetude as a result of its disjointed location in the judicial process." Id. at 8.

The issue also includes Brigadier General Patrick Finnegan's Thirty-Sixth Kenneth J. Hodson Lecture on Criminal Law. General Finnegan is the Dean of West Point's Academic Board.

Incredibly, the article discusses a bit of military justice tomfoolery that we previously noted on this blog:

After the [1984 Manual for Courts-Martial] was written, and about to go to press, the people responsible for the re-write realized that they had neglected to include an index for the Manual. After considering what to do, they said, "Ah ha, we have that criminal law faculty down at the JAG School in Charlottesville, let's task them to compile the index." One of my additional duties in the department was publications officer, so I was given the lead in this unenviable task. We quickly realized that a committee of nine -— the entire criminal law faculty -— was not workable for this project. So, one other officer and I locked ourselves into one of the practice courtrooms for two weeks and did nothing but compile an index for the Manual. It was truly mind-numbing work. Near the end of that two weeks, in our near-delirium, we decided that, if we had to do this, we were going to put our own personal stamp on the index. So we created an entry for "aircraft carrier" that said "see boat." When you went to "boat," the entry said "see vessel," and when you looked up "vessel," it completed the circle by saying "see aircraft carrier." Now you may know that the Navy is particular about calling those big gray things that float on the water "ships" and not "boats" so we were particularly proud of this entry. And it just got better because the criminal law faculty was later tasked to go around the country to brief joint audiences about the Military Justice Act of 1983 and the 1984 Manual. We would always make sure to use a case or hypothetical in these classes that included an aircraft carrier and of course referred to it as a "boat." Invariably a naval officer in the class would raise his or her hand and say, "Excuse me, but aircraft carriers are ships, not boats." At which point, we would point out the entry in the index and say that, apparently according to President Reagan’s executive order, they were in fact boats.

Most of the evidence of this sophomoric Army-Navy prank has since been removed from the Manual, though page 7 of the 2008 MCM's index still includes both "Boat. See Ship.", and "Boat. See Vessel."