Is Military Law Relevant to the "Evolving Standards of Decency" Embodied in the Eighth Amendment?

By Corey Rayburn Yung[*]

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On June 25, 2008, the United States Supreme Court issued an opinion in Kennedy v. Louisiana holding that the application of the death penalty to the crime of aggravated child rape violated the Eighth Amendment of the United States Constitution.[1]  The Court reached a contentious five-to-four decision with Justice Kennedy writing for the majority. Applying the “evolving standards of decency” approach to determine whether the punishment at issue was “cruel and unusual,” the Court examined the laws of the states and federal government.  In so doing, the Court wrote that, “Congress in the Federal Death Penalty Act of 1994 expanded the number of federal crimes for which the death penalty is a permissible sentence, including certain nonhomicide offenses; but it did not do the same for child rape or abuse.”[2]

Just three days after the opinion was issued, Colonel Dwight Sullivan noted on the CAAFlog blog that the Court’s statement concerning federal law did not tell the whole story.[3]  In fact, amendments made by Congress in 2006 to the Uniform Code of Military Justice (UCMJ) explicitly allow for the death penalty in child rape cases.[4]  Colonel Sullivan’s post about the omission in the Court’s opinion might have been relegated to the dustbin of Internet history had the leading Supreme Court reporter not taken notice.

On July 2, Linda Greenhouse wrote an article in the New York Times that expanded upon the observation expressed in Colonel Sullivan’s blog post.[5]  Greenhouse noted that it was not just Justice Kennedy’s majority opinion that had overlooked the UCMJ amendment.  There was no mention of the UCMJ in the party briefs, amicus curiae briefs, or Justice Alito’s dissenting opinion.

Greenhouse’s short column set off a firestorm of media criticism attacking the Court’s opinion in Kennedy.[6]  While the criticism initially erupted from traditionally conservative media outlets, calls for rehearing were soon made by those across the political spectrum[7] and throughout the legal blogosphere.[8]  Louisiana filed a petition for rehearing based largely upon the Court’s failure to address the UCMJ amendment.[9]  Although absent from the initial briefing in the case, the Solicitor General’s office also filed a motion in support of rehearing based upon the Court’s omission.[10]  While rehearing motions have very rarely been granted, on September 8 the Court took the unusual step of requesting further briefing on whether the case should be reargued or the original opinion should be amended.[11]  That move by the Court potentially indicates that it is seriously considering rehearing the Kennedy case.

While many of the critics and the Louisiana brief used the omission of the military code revision as a vehicle to attack the greater substance of the Court’s opinion, there emerged a legal issue that clearly required attention: was military law relevant to the Court’s reasoning in such cases?  Based upon an exhaustive review of prior Supreme Court cases and the role of the military in American society, the answer is clearly “no.”  Consequently, it would be a mistake for the Court to grant Louisiana’s motion to rehear the case.

Continuing the Debate About Presidential Debates

By Alexander J. Blenkinsopp[*]

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Last month, the Commission on Presidential Debates announced the moderators of the upcoming debates between Senators Barack Obama and John McCain.  One of the Commission’s criteria for selecting the moderators was reportedly an “understanding that a moderator’s role is to facilitate conversation between the candidates, not participate in it.”[1]  The Commission could have been paraphrasing a line from Professor Charles Collier’s recent piece, which proposed modeling the debates upon legal trials.[2]  Collier’s proposal flows from his belief that the current debates are too superficial and that the candidates should spend their time questioning each other without the active participation of a moderator.  He argues that the questioning should resemble a legal trial, where each advocate first has the opportunity to present a “version of the truth,” and the jury—the electorate—then decides which version to accept.[3]  He further argues that the moderator should assume a role similar to that of a judge at a trial: one who “makes no substantive contribution to the discussion but simply polices the outer boundaries of what is in essence a supervised dialogue.”[4]

The idea has already stimulated discussion.[5]  This is unsurprising, given the proposal’s obvious appeal to policy wonks craving more detail about the candidates’ positions, lawyers who wish they were cross-examining the candidates, and enthusiasts of competitive debate (like me) who want the presidential debates to be less “fluffy.”  The Commission seems to share Collier’s sentiment to some extent; less than a week before the first debate, it announced the modification of the format to “open the possibility of the moderator inviting candidates to question each other,” citing the need for “more expansive discussion.”[6]  While I sympathize with Collier’s effort to increase the value of presidential debates, his proposal suffers from three deficiencies.  First, Collier romanticizes and mischaracterizes trials. Second, he does not acknowledge the constraints on the time and attention span of the debates’ audience. Finally, he fails to recognize the virtues of the current format of the debates.  Still, he correctly identifies some serious flaws in the current format, and I attempt to capture the value of those insights in a timely counterproposal that reserves an active role for the moderator and suggests rethinking the criteria used to select the moderator.

The Influence of Ex Parte Quirin and Courts-Martial on Military Commissions

By Morris D. Davis[*]

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Professor Greg McNeal was an academic consultant to the prosecution during my tenure as the Chief Prosecutor for the military commissions at Guantánamo Bay, Cuba.  We had similar perspectives on many issues, and we still confer on detainee matters.  I concur with the views expressed in his essay.[1]  I write to address two issues Professor McNeal identified and comment on how they affect the military commissions.  First, I examine the case of the Nazi saboteurs—captured, tried, and executed in the span of seven weeks in 1942—and its influence on the decision in 2001 to resurrect military commissions.  Second, I assess the conflicting statutory provisions in the Military Commissions Act and the impact on full, fair, and open trials.

I.  Attempting to Repeat History

Professor McNeal argues that the administration chose military commissions to protect information collected for intelligence (intel) purposes from disclosure.  Safeguarding intel, particularly the sources and methods used to acquire information, was a key factor, but I believe the decision had a broader basis heavily influenced by a precedent-setting trial in 1942 that became the template for the President’s Military Order of November 13, 2001.[2]

Shortly after midnight the morning of June 13, 1942, four men left a German submarine and came ashore at Amagansett Beach, New York.[3]  They wore military uniforms in hopes that if captured during the landing they would receive prisoner of war treatment.  Four days later, at Ponte Vedra Beach near Jacksonville, Florida, another group of four men did the same.  The eight men infiltrated the United States to execute a plan developed by the German High Command at the insistence of Adolph Hitler to attack factories, bridges, rail yards, and utilities to disrupt wartime production, intimidate the American public, and weaken the will to fight.  The men were selected because they had lived in the United States before and were unlikely to attract attention as they moved about the country committing sabotage.

Administrative Note: Clerkship Interviewing

The Colloquy is taking a brief respite due to clerkship interviews and will return next week.  In the meantime, we invite you to debate the merits of the Law Clerk Hiring Plan in our comments.  Here are some of our favorite essays discussing federal clerk hiring:

Judge Patricia Wald, Selecting Law Clerks, 89 Mich. L. Rev. 152 (1990) (arguing for reform of clerkship hiring; written before the Law Clerk Hiring Plan).

Judge Alex Kozinski, Confessions of a Bad Apple, 100 Yale L.J. 1707 (1991) (responding to Judge Wald).

Professor Richard Epstein, Ending the Mad Scramble, 10 Green Bag 2d 37 (2006) (arguing for an experimental approach similar to medical matching programs).

Professor Christopher Avery, Professor Christine Jolls, Judge Richard Posner, and Professor Alvin Roth, The New Market For Federal Judicial Law Clerks, 74 U. Chi. L. Rev. 447 (2007) (discussing, among other things, exploding offers and compressed market timing under the current guidelines). 

Best of luck to those interviewing!

 

Crying Havoc Over the Outsourcing of Soldiers and Democracy's Slipping Grip on the Dogs of War

By Joshua S. Press[*]

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He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.[†]

Whenever a people . . . entrust the defence of their country to a regular, standing army, composed of mercenaries, the power of that country will remain under the direction of the most wealthy citizens.[‡]

Introduction

On September 16, 2007, as U.S. diplomats met at a secured compound in Baghdad, a bomb exploded a few hundred yards away.[1] In response, the diplomats were moved out of the compound toward the “Green Zone.” As they traveled through Nisour Square, a security convoy attempted to block traffic to ensure that the diplomats could pass through the area; some of the diplomats’ guards exited the convoy to patrol the street. One guard shot at an oncoming car and killed the vehicle’s driver, along with a mother cradling her infant in the passenger seat.[2] The car caught fire but continued rolling forward, prompting other guards to shoot—killing seventeen and wounding twenty-four.[3]

The guards insisted that they fired out of self-defense, but an FBI inquiry found that the shootings were unprovoked.[4] Indeed, the Iraqi government announced its intention to prosecute those responsible.[5] But these guards could be neither criminally prosecuted nor court-martialed under the Uniform Code of Military Justice (UCMJ) because they were not members of the U.S. armed services.[6] As privately paid soldiers of Blackwater Worldwide (Blackwater),[7] the guards fell into a “legal Bermuda Triangle.”[8] In other words, they were not subject to Iraqi law due to an immunity order granted to private military firms (PMFs), were not subject to the UCMJ for the military, and were not subject to United States criminal laws because they were outside its territorial jurisdiction.[9]

This is an especially troubling dilemma because private soldiers’ duties in modern warfare are virtually indistinguishable from their public counterparts’. For example, private soldiers have provided security to U.S. Administrator of Iraq (and later-Ambassador) L. Paul Bremer, helped train the Iraqi army, interrogated military prisoners,[10] used helicopters and chemical weapons,[11] operated in Louisiana after Hurricane Katrina,[12] and fought off insurgents in combat.[13] This blending of responsibilities has put the legality of private soldiers’ actions in limbo.

Of course, such a commingling of roles is inevitable given the United States’ increasing reliance on PMFs. Since the end of the Cold War, the Pentagon’s use of private soldiers has more than quadrupled.[14] During the Gulf War, only 10% of soldiers in the war zone were privately paid.[15] From 1994 to 2002, however, the Department of Defense contracted with PMFs more than 3,000 times for a total of more than $300 billion.[16] By 2008, the “estimated 180,000 private contractors outnumber[ed] the 160,000 US troops stationed in [Iraq].”[17] Indeed, the conflicts in Iraq and Afghanistan are now the central stage for the world’s preeminent PMFs: DynCorp International has about 1,500 employees in Iraq; Blackwater has more than 1,000 employees; Military Professional Resources, Inc. has about 500 employees; and Kellogg Brown and Root, Inc. has more than 50,000 contractors and subcontractors in Iraq, Afghanistan, and Kuwait.[18]

No Third Class Processes for Foreigners

By Benjamin G. Davis[*]

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Professor McNeal’s analysis begins by looking at two conflicting statutory provisions regarding military commissions: one provision allowing a political appointee as Convening Authority, and another providing trial counsel with enhanced protection from undue influence.[1] He sees this interaction as permitting politicization of the trial procedures. Professor McNeal urges the exclusion of political influence from the Convening Authority, by either placing a military officer with existing courts-martial responsibilities in this role or, alternatively, creating a joint Convening Authority. He also urges Congress to bolster the independence of the trial counsel so that they are not subject to the evaluation of higher-ups who have an interest in the outcome of trials. He urges transparent rulemaking, according to procedures that are at least as protective as those required for promulgating rules in courts-martial.

In the second part of his essay, Professor McNeal describes a series of obstacles impeding a transition to a National Security Court. He highlights the nonprosecution paradox as well as intelligence problems, and posits three transitional obstacles to a National Security Court: (1) challenges posed by accommodating speedy trial rights in light of security clearances and secured facilities, (2) authorities governing the methods by which intelligence is gathered and used, and (3) the phenomenon of executive forum-discretion.[2] Professor McNeal is admirable in avoiding “a clean slate view” by steering away from the tendency to be prospective, and instead focusing our attention on what kind of process should be in place for the eighty triable detainees currently in custody.[3] He urges that reformers must recognize the corrections identified, which he considers to be necessary for the continued use of military commissions. Today, post-Hamdan[4] and post-Boumediene,[5] Professor McNeal suggests how to improve the military commissions. Part I of this Essay asserts that the flaws in the structure of the military commissions are intentional and explains why such a flawed structure was established. Part II discusses the military commissions’ third class processes. Part III explores the troubling example of the Hamdan military commission, and Part IV asserts that attempts to reform the military commissions will be fruitless. Part V suggests using a different perspective for establishing procedures for trying terror suspects.