Tuesday, June 17, 2008

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."


WHW said...

Much else remains, such as "Carrier: See Boat" and "Aircraft: See Jet."

CAAFlog said...

Ugh. Could someone with control of the MCM please remove all traces of this prank from the next Manual?

Speaking of which, what's the best guess as to the year in which the next edition of the MCM will be published?

Cloudesley Shovell said...
This comment has been removed by the author.
Cloudesley Shovell said...

Sophomoric prank? Nay, that's graduate-level stuff. A hearty congrats to those guys.

Just because my name's Shovell and I crashed into the Scilly Islands because the great John Harrison had yet to build his wonderful marine chronometer to keep me from screwing up the longitude doesn't mean I can't appreciate a good joke.

Besides, every real naval officer knows that an aircraft carrier is not a boat. It is "the boat." The index needs updating!

Anonymous said...

CAAFLOG -- lighten up!! This is as a good a traditional interservice ribbing as it gets - its harmless, its well thought out, and it makes for a great story.

CAAFlog said...

Look, I live right outside of Annapolis. I enjoy a stolen goat, kidnapped mule or giant "A" burned into the Naval Academy grass just as much as the next guy. But we are talking about a Manual that governs how justice is dispensed and liberty and, in some cases, lives are to be forfeited to the state. Let's confine our interservice pranks to the Academy grounds and give our legal system the dignity it deserves.

Anonymous said...

Wow. That's a lot of whining.

ossian said...

Time to Kill was a very interesting article. However, it contains several questionable assertions. Of these, the most annoying was found on page 33 in Note 185, in which the author claims that Executive Order 9556 delegated the Presidential power of confirmation in military death sentences to cabinet and sub-cabinet positions. This is incorrect. A copy of Executive Order 9556 is available at the Truman Library. This order specifically reserved the power of confirmation of military death sentences to the President and, under Article of War 48 to commanding generals abroad in the major theaters. The purpose of this EO appears to have been to relieve the President of the burdens of confirming sentences of dismissal of commissioned officers in the continental United States.

I have researched the domestic military capital cases in the United States during the Second World War and possess copies of the confirming orders in eighteen of the known nineteen cases that took place over 1942-1945. All were signed by President Roosevelt or President Truman. Death sentences involving German prisoners of war were also reserved to the President.

Gordon Smith

Cloudesley Shovell said...

In defense of the pranksters, the carrier-boat-ship-vessel references are not completely circular. One eventually finds actual cites at vessel, although a cite to MCM Part V, page 2 is inexplicably missing (which would be the the bit about not being able to refuse NJP if attached to or embarked on a vessel).

Other missing references:

Land--see Snatch.

Beans--see Mr. Taggart.

Gene Fidell said...

Old fogies may recall a similar prank in Tedrow's digest to the early CMA opinions. Who will be the first to find it?

Combat Action Judge Advocate said...

I was just issued my 2008 MCM today here at the 176th OBC at TJAGLCS and had to look that up. Will be great to bring up in class tomorrow.