More Than 40 Years Dedicated Exclusively to Military Law | Learn More About Philip D. Cave

Here is a link to the Report of the Fort Hood Independent Review Committee.

Although the Findings in this Report outline failures in leadership, they should not be interpreted as an indictment of military commanders or the U. S. Army. While the issues raised in this Report are serious and require urgent attention, they did not result from intentional or malicious action. Rather, the climate described throughout this Report was the result of inaction in critical areas like the SHARP Program that are critical to the health and safety of our Soldiers.

This climate was the product of a mindset developed over the course of almost two decades of intense military conflicts and countering threats to the national security of this Nation around the globe. Military readiness became paramount over all other responsibilities, without fully appreciating that integrity and respect between and among Soldiers is a critical component of military readiness. Over the years, those in command at Fort Hood, however, failed to make the connection between the health and safety of the Soldiers and mission readiness. This paradigm of benign neglect was allowed to take root over time at Fort Hood, at the expense of Soldiers, particularly females in combat units. Continue reading

As the cannabis industry continues to take root state by state, the House of Representatives voted in favor of removing marijuana from the federal Controlled Substances Act.

The House voted Friday on the Marijuana Opportunity Reinvestment and Expungement Act, or MORE Act, which decriminalizes cannabis and clears the way to erase nonviolent federal marijuana convictions. The Senate is unlikely to approve the bill.

So reports NBC News.

Several years ago, Beth Van Schaack highlighted a gap in U.S. law regarding atrocity crimes. Although well established in international criminal law as well as other areas of U.S. law, Title 18 of the U.S. Code lacks command responsibility as a mode of criminal responsibility. Following the issuance of pardons by President Donald Trump, Gabor Rona drew renewed attention to command responsibility as a mode of liability.

Brian Finucane, A Commander’s Duty to Punish War Crimes: Past U.S. Recognition. Just Security, 4 December 2020.

This duty to punish has been an element of command responsibility since at least the Hundred Years’ War. In 1439, King Charles VII of France issued an ordinance identifying the failure of a commander to discipline a subordinate as a basis for the punishment of the commander.

Courtesy of Global Military Justice Reform blog.

The Conference Report for the proposed William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 is now out and can be found here. Readers will want to look in particular at § 542, which imposes a 12-years-of-law-practice qualification for judges of the service Courts of Criminal Appeals and alters the current provision on factual sufficiency review by those courts. It’s found at pp. 544-48. Here is the conferees’ explanation:

Qualifications of judges and standard of review for Courts of Criminal Appeals (sec. 542)

Should a federal law that protects National Guard members and reservists from being fired from their private sector jobs while they are deployed also apply to state government jobs? Last week, the U.S. Supreme Court hinted it might weigh in on the issue.

The U.S. Supreme Court last Tuesday requested additional information from the Texas attorney general’s office on why the state should not be held accountable to the 1994 Uniformed Services Employment and Reemployment Rights Act (USERRA) which prohibits employers from retaliating against or firing National Guard members and reservists who are pulled from their full-time jobs to go on active duty.

Certain retirees are not subject to court-martial jurisdiction, so says Judge Richard J. Leon of the United States District Court for the District of Columbia in Larrabee v. Braithwaite. We should anticipate the circuit court and the Supreme Court will get to tell us their view.

After briefing and oral argument, the judge entered his judgement (Memorandum Opinion) on the pleadings.

The court begins with the proposition that,

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