U.S. v. New, 55 M.J. 95

First Principles: Constitutional Matters: Generally

1. the Sixth Amendment right to trial by jury does not apply to courts-martial

Military Justice Personnel: Military Judge: General Powers

1. by both the Code and the Manual, the military judge shall rule upon all questions of law and all interlocutory questions arising during the proceedings

Military Justice Personnel: Court Members: Challenges for Cause

1. the burden of establishing that grounds for a challenge exist is upon the party making the challenge
2. the test for actual bias in each case is whether any bias is such that it will not yield to the evidence presented and the judge’s instructions
3. actual bias is a question of fact, which is reviewed subjectively, through the eyes of the military judge of the court members
4. there was no actual bias supporting challenge for cause against court member who indicated that he had ordered subordinates to deploy on the very same mission that was involved in appellant’s trial for disobedience; member gave no indication that he would be unable to yield to the evidence and instructions, and in fact indicated that he would base his decision on the evidence and instructions of the military judge
5. implied bias is viewed through the eyes of the public, and the focus is on the perception or appearance of fairness of the military justice system
6. it is unlikely that the public would view all officers or all enlisted personnel who have ever given an order as being disqualified from cases involving disobedience of orders that are similar to any they may have given in the past; there was no implied bias supporting a challenge for cause

Core Criminal Law Subjects: Crimes: Article 92 - Failure to Obey Order or Regulation Pre-2019 offenses

1. lawfulness of an order is not a discrete element of an offense under Article 92, and the military judge properly decided the issue of lawfulness as a question of law in this case; in a prosecution for violation of an order or regulation, the Constitution does not require that the validity of the order or regulation be decided by a jury
2. when Congress inserted the word "lawful" in the statutes governing disobedience, it was addressing the judicial role of the court-martial panel rather than creating an element for consideration by a factfinder; the inclusion of the word "lawful" did not add a separate element to the offense of violating a regulation or order; the word "lawful" reflects a question of law – the validity of the regulation or order with respect to a superior source of law – that is inherent in the terms "order" and "regulation" under Article 92
3. because lawfulness of an order is a question of law, the military judge did not err by resolving it himself without submission to the members
4. an order to wear United Nations patches and cap was lawful in that it was properly authorized, related to a military duty, and violated no applicable service uniform regulations
5. the question of whether the military judge correctly determined that an order was lawful is reviewed on a de novo basis
6. the test for assessing the lawfulness of an order includes that the order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service
7. orders are clothed with an inference of lawfulness
8. an appellant has the burden to establish that an order is not lawful
9. arguments that wearing United Nations insignia violates Army uniform regulation by transferring allegiance to the United Nations and that orders stem from an illegal deployment of the Armed Forces fail because they unacceptably substitute appellant’s personal judgment of the legality of an order for that of his superiors and the Federal Government
10. uniform requirements relate to a military duty, and consequently order to comply with uniform requirements meets the "military duty" test for lawfulness of an order, where that requirement promotes the basic Former Yugoslavian Republic of Macedonia United Nations Preventative Deployment Force military mission or safeguards discipline and morale of deployed troops
11. it is not a defense to a charge of disobeying an order in violation of Article 92 for appellant to claim that the order is illegal based on his interpretation of applicable law; there is no constitutional right or statutory provision that gave appellant authority for a self-help remedy of disobedience
12. the determination whether lawfulness of an order to deploy is a political question and thus nonjusticiable is reviewed on a de novo standard
13. military judge properly declined to rule on the constitutionality of the President’s decision to deploy the Armed Forces in Former Yugoslavian Republic of Macedonia as a nonjusticiable political question; courts have consistently refused to consider the issue of the President’s use of the Armed Forces

Core Criminal Law Subjects: Evidence: Inferences

1. orders are clothed with an inference of lawfulness

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Burdens, Standards › Lawfulness of orders/regulations

1. an appellant has the burden to establish that an order is not lawful

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Trial Presumptions, Inferences

1. orders are clothed with an inference of lawfulness

Trial Stages: Merits: Instructions › Generally

1. the military judge must instruct the court-martial panel on the elements of an offense
2. because lawfulness of an order is a question of law, the military judge did not err by resolving it himself without submission to the members

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. actual bias is a question of fact, which is reviewed subjectively, through the eyes of the military judge of the court members
2. implied bias is viewed through the eyes of the public, and the focus is on the perception or appearance of fairness of the military justice system
3. the question of whether the military judge correctly determined that an issue is a question of law is reviewed de novo
4. the question of whether the military judge correctly determined that an order was lawful is reviewed on a de novo basis
5. an appellant has the burden to establish that an order is not lawful
6. the determination whether lawfulness of an order to deploy is a political question and thus nonjusticiable is reviewed on a de novo standard

Miscellaneous Matters: Judicial Review: Political Questions

1. judicial review of a political question is precluded where a court finds one or more of the following: a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; of the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of the government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question
2. the determination whether lawfulness of an order to deploy is a political question and thus nonjusticiable is reviewed on a de novo standard
3. military judge properly declined to rule on the constitutionality of the President’s decision to deploy the Armed Forces in Former Yugoslavian Republic of Macedonia as a nonjusticiable political question; courts have consistently refused to consider the issue of the President’s use of the Armed Forces