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INTRODUCTION TO MILITARY LAW

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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 ... – PowerPoint PPT presentation

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Title: INTRODUCTION TO MILITARY LAW


1
INTRODUCTION TO MILITARY LAW
  • WEEK 7
  • MILITARY JURISDICTION

2
THE PROBLEM
  • Different People
  • Different Status
  • Different States
  • Different Countries
  • Federal interest/State interest
  • What law?
  • Whos in charge?

3
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

4
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

5
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)?

6
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

7
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

8
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)

9
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

10
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

11
  • 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

12
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

13
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

14
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