U.S. v. McPherson, 73 M.J. 393

Trial Stages: Sentence and Punishment: Lawfulness of Sentence

1. Article 12, UCMJ, prohibits any member of the armed forces from being placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces; because the text of Article 12, UCMJ, is plain on its face and there is no geographic limitation by its terms, it applies to military members confined in civilian state or federal facilities in the United States as well as to those confined in facilities overseas
2. Article 58, UCMJ, requires all confinees to be treated the same, and Article 12, UCMJ, requires that no military member may be confined in immediate association with a foreign national; Article 58 is not more specific than Article 12, nor are the two statutes in conflict; military confinees can - and must - receive treatment equal to civilians confined in the same institution, while being confined separately from foreign nationals; Article 12, UCMJ, and Article 58, UCMJ, were passed at the same time, and read in pari materia, they both apply without conflict to military members confined in state or federal institutions in the United States
3. under Article 12, UCMJ, a confinee must exhaust his administrative remedies prior to judicial intervention, absent some unusual or egregious circumstance; this administrative exhaustion requirement furthers two related goals: (1) the resolution of grievances at the lowest possible level with prompt amelioration of the complaint while the prisoner suffers the condition, and (2) the development of an adequate record to aid appellate review

Trial Stages: Appeals: Generally

1. under Article 12, UCMJ, a confinee must exhaust his administrative remedies prior to judicial intervention, absent some unusual or egregious circumstance; this administrative exhaustion requirement furthers two related goals: (1) the resolution of grievances at the lowest possible level with prompt amelioration of the complaint while the prisoner suffers the condition, and (2) the development of an adequate record to aid appellate review

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

1. interpreting Article 12, UCMJ, is an issue of statutory interpretation, which an appellate court reviews de novo
2. as in all statutory construction cases, a court begins with the language of the statute; the first step is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case; the inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent; whether the statutory language is ambiguous is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole
3. a court must presume that a legislature says in a statute what it means and means in a statute what it says there
4. when the words of a statute are unambiguous, judicial inquiry is complete
5. when a statute is a part of a larger Act, the starting point for ascertaining legislative intent is to look to other sections of the Act in pari materia with the statute under review
6. one rule of statutory interpretation is that where Congress includes particular language in one section of a statute but omits it in another section of the same Act, Congress intentionally and purposely intended the disparate inclusion or exclusion
7. a court has no license to generate a statutory conflict where none exists or to construe statutes in a way that undercuts the clearly expressed intent of Congress

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. Article 12, UCMJ, prohibits any member of the armed forces from being placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces; because the text of Article 12, UCMJ, is plain on its face and there is no geographic limitation by its terms, it applies to military members confined in civilian state or federal facilities in the United States as well as to those confined in facilities overseas
2. under Article 12, UCMJ, a confinee must exhaust his administrative remedies prior to judicial intervention, absent some unusual or egregious circumstance; this administrative exhaustion requirement furthers two related goals: (1) the resolution of grievances at the lowest possible level with prompt amelioration of the complaint while the prisoner suffers the condition, and (2) the development of an adequate record to aid appellate review
3. as in all statutory construction cases, a court begins with the language of the statute; the first step is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case; the inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent; whether the statutory language is ambiguous is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole
4. a court must presume that a legislature says in a statute what it means and means in a statute what it says there
5. when the words of a statute are unambiguous, judicial inquiry is complete
6. when a statute is a part of a larger Act, the starting point for ascertaining legislative intent is to look to other sections of the Act in pari materia with the statute under review
7. one rule of statutory interpretation is that where Congress includes particular language in one section of a statute but omits it in another section of the same Act, Congress intentionally and purposely intended the disparate inclusion or exclusion
8. Article 58, UCMJ, requires all confinees to be treated the same, and Article 12, UCMJ, requires that no military member may be confined in immediate association with a foreign national; Article 58 is not more specific than Article 12, nor are the two statutes in conflict; military confinees can - and must - receive treatment equal to civilians confined in the same institution, while being confined separately from foreign nationals; Article 12, UCMJ, and Article 58, UCMJ, were passed at the same time, and read in pari materia, they both apply without conflict to military members confined in state or federal institutions in the United States
9. a court has no license to generate a statutory conflict where none exists or to construe statutes in a way that undercuts the clearly expressed intent of Congress