Military Jurisdiction - Military Law - Lecture Slides, Slides of Law

Download Military Jurisdiction - Military Law - Lecture Slides and more Slides Law in PDF only on Docsity!

INTRODUCTION TO MILITARY

LAW

MILITARY JURISDICTION

THE PROBLEM

• Different People
• Different Status
• Different States
• Different Countries
• Federal interest/State interest
• What law?
• Who’s in charge?

Installation Jurisdiction

• Greer v. Spock:
  • Facts: Candidates for national political office denied permission to enter Fort Dix - DCt - Injunction against military - Ct of App - Aff’d - 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”

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)?

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

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
  • 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)

JURISDICTION OVER THE OFFENSE

• Pre-Solorio: Service base connection required
  • O’Callahan 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: Aff’d - found service connection
  • Sup Ct: Aff’d - only ONE factor: military status of the accused
    • based on “long line of cases interpreting Art I”; O’Callahan was a departure from Constitutional principles
  • Reaffirms PLENARY grant

• 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 accused’s 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 Docsity.com

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

QUESTIONS???