INTRODUCTION TO MILITARY LAW

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INTRODUCTION TO MILITARY LAW

• WEEK 7
• MILITARY JURISDICTION

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THE PROBLEM

• Different People
• Different Status
• Different States
• Different Countries
• Federal interest/State interest
• What law?
• Whos in charge?

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THE BASICS

• Installation Jurisdiction
• Degree of control a commander has over an
  installation
• What Law Applies?
• Federal law relies on Federal Jurisdiction
• Overseas - HN law applies including traffic laws
• How do we deal with civilian offenses?
• How do we balance individual rights?
• Goldman v. Weinberger
• What law enforcement agency responds?
• Who can legislate the rules for the base?
• Commander always controls access
• Does NOT effect court-martial jurisdiction

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Installation Jurisdiction

• Greer v. Spock
• Facts Candidates for national political office
  denied permission to enter Fort Dix
• DCt - Injunction against military
• Ct of App - Affd
• US Supreme Ct - reversed
• No general constitutional right to make speeches
  on post
• No discrimination
• Consistent Policy
• Justified by requirements of military life and
  mission - morale and discipline
• Public interest in insuring political neutrality
  of military
• Commanding officer has the historically
  unquestioned power to exclude civilians from the
  area of his command

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Installation Jurisdiction

• US Policy - maximize jurisdiction over US
  personnel
• CONUS
• Driven by method of title/agreement with state
• Civilian v. Military
• Types of jurisdiction
• Exclusive
• Proprietary
• Concurrent
• State v. Federal
• Overseas military installation or Combat Zone
• Military personnel - non-issue - UCMJ rules
• Civilians accompanying force?
• Contractors?
• Dependents?
• Problem generally subject to local law
• Solution? MEJA? UCMJ Article 2(a)(10)?

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Foreign Criminal Jurisdiction

• AF members subject to HN law and UCMJ
• Decision governed by agreement and relationship
  with HN (SOFA)
• Does not remove military members from HN law, but
  sets rules on which country will exercise
  jurisdiction
• Primary, exclusive, concurrent
• Policy - maximize jurisdiction over US personnel
• Civilians/Dependents/Contractors accompanying
  force
• No UCMJ authority
• Generally subject to foreign law
• US laws w/out extra territorial application
• HN not always interested
• PROBLEM - The Gap

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Solution - MEJA

• UCMJ Art 2 only in Congressionally declared
  state of war
• Military Extraterritorial Jurisdiction Act of
  2000
• Extends US law and jurisdiction to dependents and
  civilians accompanying our force
• Includes Contractors
• Punishable by one year in jail - usually major
  felony
• HN must waive or decline jurisdiction
• Case Study
• Not easy
• Lacking in regulations

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COURTS-MARTIAL JURISDICTION

• UCMJ - Primary means for addressing criminal
  conduct by military members
• UCMJ applies in ALL places RCM 201(a)(2)
• RCM 201(a)(1) Jurisdiction is the power to hear
  a case and to render a legally competent decision
• Court-Martial
• A special purpose tribunal of limited
  jurisdiction and transitory existence - US v.
  Goudge, 39 CMR 324 (ABR 1968)
• Unlike Article III courts, courts-martial are of
  limited jurisdiction created only for trial of
  certain existing cases. US v. Alston, 11 MJ 656
  (AFCMR 1981)

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TYPES OF JURISDICTION

• Purely military offenses - courts-martial have
  exclusive power - RCM 201(d)(1)
• Examples
• Non-military offenses - courts-martial can try
  crimes that violate local law or the law of war
  RCM 201(d)(2)
• Accused cant be tried by both court-martial and
  another federal court (Double Jeopardy)
• What about state court?
• AF Policy
• SOFAs
• Jurisdictional choices are NOT a right of an
  accused
• Must be shown for court-martial to occur
• Accused cant make elections

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JURISDICTION OVER THE OFFENSE

• Pre-Solorio Service base connection required
• OCallahan v. Parker (1969)
• Solorio v. US
• Facts USCG member sexually assault 2 daughters
  of fellow member on active duty lived in
  private home in Alaska committed similar
  offenses in gov quarters in NY General
  Court-Martial for all
• Trial Dismissed for lack of service connection
• CG Ct Reinstated - found service connection
• COMA Affd - found service connection
• Sup Ct Affd - only ONE factor military
  status of the accused - based on long line of
  cases interpreting Art I OCallahan was a
  departure from Constitutional principles
• Reaffirms PLENARY grant

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• Concur service connection existed, majority
  overstepped bounds to make new rule
• Dissent majority violated stare decisis,
  service connection right test
• Primary Concern??? Fairness of MJ system
• Post-Solorio Status based determination
• Jurisdiction is base solely on the accuseds
  status as a person subject to the UCMJ and not on
  a service connection of the offense charged
• Jurisdiction must be plead and proved
• Has not been subsequently changed - Art 3(a)
  amended
• Jurisdiction over any offense, anytime anywhere
• RCM 203
• Any offense under the code
• Article 134 incorporates state and other
  offenses federal
• Law of war - general court-martial only

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JURISDICTION OVER THE PERSON

• Courts-martial exist primarily to try military
  members RCM (a)(3)
• Can also try any person subject to trial by
  military tribunal - exercise of military
  government
• Article 3(a) - authorized court-martial in ALL
  cases where member was subject to code at time of
  offense AND time of court
• Break of Service
• Article 2 - defines who is subject to UCMJ
• Reservists/ANG/Retirees
• Current Germany case
• Termination Discharge

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RECAP

• Military installation a bit like an island
• Installation Commander has very plenary authority
  
• Driving rules to drinking age
• Depends on method of title and source of
  jurisdiction
• MEJA - US law applies extraterritorially
• Courts-Martial - Anywhere, anytime, any offense,
  anyone almost
• Jurisdiction must be plead and proved
• Discharge terminates sometimes

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QUESTIONS???