Tag: Military Justice

Judge, Jury, and Commanding Officer: A Proposal for Judicially Issued Domestic Violence MPOs by Alisha Nguyen

Note | Military Law
Judge, Jury, and Commanding Officer: A Proposal for Judicially Issued Domestic Violence MPOs
by Alisha Nguyen*

From Vol. 94, No. 2
94 S. Cal. L. Rev. 129 (2021)

Keywords: Military Law, Armed Forces, Domestic Violence

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In 2012, former Air Force Major Thomas Maffei shot his ex-wife Kate Ranta and her father multiple times point blank in her Parkland, Florida apartment—right in front of their four-year-old son, who screamed, “Don’t do it Daddy, don’t shoot Mommy.”1 Although Ranta had reported Maffei’s physical abuse to his commanding officer almost two years prior, the military protected him because “charging him would cause him to lose his pension.”2 It was not until after the shooting that he was convicted in civil court and sentenced to sixty years in prison.3

Fortunately, Ranta and her father both survived.4 Seven years later, on September 1, 2019, she appeared before the House Armed Services Committee (“HASC”) as one of three military domestic abuse survivors who testified at the Committee’s first hearing on domestic violence in over fifteen years.5 Each of their stories was connected by a common thread: when the military system failed to protect them, the survivors found justice through the civilian system.6 Ranta explained that “[a]ll of this was avoidable.”7 After enduring years of abusive behavior, she holds Maffei’s command “fully responsible” because they knew he was dangerous but “chose to not do a thing about it.”8

Ranta’s testimony illustrates a broader, unresolved problem that domestic violence victims face when protection offered by the military does not extend into the civilian realm. Congresswoman Jackie Speier, who led the HASC hearing, described domestic violence in the military as a “forgotten crisis” that continues to resurface as survivors “tell and retell their stories” to deaf ears.9

Time and time again, military spouses fall through the cracks in a system that essentially allows commanding officers to play judge, jury, and executioner in domestic violence cases.10 This Note focuses on one particular aspect of the gap between military and civilian jurisdictions: the unenforceability of military protective orders by civilian law enforcement and courts. For example, on November 5, 2017, a gunman with a record of domestic violence offenses massacred twenty-six and wounded twenty-two churchgoers in Sutherland Springs, Texas.11 Despite being subject to a military protective order and no-contact order, he was able to pass multiple background checks and illegally purchase firearms on six different occasions.12 The orders were never submitted to any national criminal databases because they “were issued by his military commander and not a court.”13

Although the law now requires all military-issued protective orders to be reported to civilian law enforcement,14 these orders still are not given full faith and credit beyond military jurisdiction. This Note attempts to bridge this jurisdictional gap by proposing a new system through which military domestic abuse victims could obtain military-issued protective orders that are enforceable by civilian law enforcement and courts. Part I sets the stage with a brief overview of the military justice system and its approach to domestic abuse. Part II describes the two types of protective orders generally available to military domestic violence victims—military protective orders (“MPOs”) and civil protective orders (“CPOs”)—and summarizes their respective advantages, shortcomings, and barriers to access. In particular, this Part homes in on one of the main shortcomings of MPOs—their unenforceability by civilian authorities—and explains that are issued exclusively by the allegedly abusive service member’s commanding officer rather than by a neutral military judge.

Part III seeks to address this shortcoming by looking to domestic violence temporary restraining orders (“TROs”) as a model for reform. Applying an analytical framework from Blazel v. Bradley,15 this Part concludes that in order to create civilian-enforceable MPOs, Congress should develop an alternative process that closely mirrors the TRO process and satisfies the minimum procedural protections set forth in Blazel.

Part IV proposes a new system that gives military judges and magistrates the power to issue a new kind of MPO, which this Note refers to as judicial MPOs (“JMPOs”). In theory, a JMPO system would produce protective orders that are both military-issued and civilian-enforceable by shifting decision-making power from commanding officers to the military judiciary. Part IV then concludes with three specific recommendations for improving protection for military domestic violence victims, as well as a summary of Congress’s past and present support for these ideas.

A few notes on focus and terminology may be helpful at the outset. First, this Note discusses only situations in which an abusive service member commits acts of domestic abuse against a civilian spouse. Of course, civilians also commit domestic violence against service members; but because MPOs can be issued only against service members, such offenses raise issues that are beyond the scope of this Note.16 Second, although the terms “victim” and “survivor” are both used to describe individuals who are experiencing or have experienced domestic abuse, this Note primarily uses the term “victim” due to its focus on military spouses dealing with ongoing domestic violence.17 Finally, this Note generally refers to victims and survivors of domestic abuse with female pronouns and perpetrators with male pronouns. This choice reflects available empirical data; while male survivors and female perpetrators certainly exist, historical and recent statistics show that the vast majority of active-duty offenders are male.18

*. Scribes Award Recipient & Senior Submissions Editor, Southern California Law Review, Volume 94; J.D. Candidate 2021, University of Southern California Gould School of Law; B.A. Economics 2017, University of California, San Diego. I would like to thank Drs. Dwight Stirling and CarolAnn Peterson for their invaluable insights on the substance of my paper, and Professor Sam Erman for his guidance throughout the note-writing process. I am also grateful to the entire Southern California Law Review team for their excellent editing work. Above all, thank you to my family and friends for their unconditional love and encouragement in all of my pursuits. None of this could have been possible without your unwavering support.

 

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Nguyen

Killing in the Fog of War – Article by Adil Ahmad Haque

From Volume 86, Number 1 (November 2012)
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This Article answers two of the most urgent and important questions facing the contemporary law of armed conflict. First, how certain must a soldier be that a given individual is a combatant and not a civilian before attacking that individual? Second, what risks must soldiers accept to themselves and to their mission in order to reduce the risk of mistakenly killing civilians?

In the absence of clear legal rules, leading states, scholars, and practitioners have embraced a “Balancing Approach” according to which both the required level of certainty and the required level of risk vary with the balance of military and humanitarian considerations. However, this Article shows that the Balancing Approach ignores the moral asymmetries between killing and letting die and between intentionally and unintentionally killing civilians. As a result, in a wide variety of situations, the Balancing Approach would permit soldiers to intentionally kill individuals who are either probably, much more likely, or almost certainly civilians rather than combatants. These implausible implications expose the fatal defects of the Balancing Approach and demonstrate the need for a morally defensible alternative.

To meet this need, this Article develops a deontological account of both the required level of certainty and the required level of risk. The first part of this new account, “Deontological Targeting,” prohibits a soldier from intentionally killing an individual if the soldier believes the individual is a civilian, or if the soldier does not reasonably believe the individual is a combatant. These constraints establish a minimum threshold of certainty that soldiers must reach before using deadly force. Above the reasonable belief threshold, the required level of certainty varies with the relative costs of error but, crucially, also reflects the moral asymmetry between killing and letting die. In particular, except in rare cases, targeted killing operations against individuals who pose no immediate threat are permissible only if there is conclusive reason to believe that the individuals are combatants.

The second part of this new account, “Deontological Precaution,” requires, at a minimum, that soldiers take as much risk as necessary to reach the required level of certainty. In addition, soldiers must take further precautions unless doing so would increase the risk to the soldiers substantially more than doing so would decrease the risk to civilians. If soldiers are unwilling or unable to reach the required level of certainty or accept the required level of risk then they must hold their fire. The Article concludes by distilling these complex moral principles into new legal rules, reinterpretations of existing legal rules, and model rules of engagement in which soldiers can be trained and that can guide soldiers through the fog of war.

 

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“Trade in Force”: The Need for Effective Regulation of Private Military and Security Companies – Note by Stephanie M. Hurst

From Volume 84, Number 2 (January 2011)
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On September 16, 2007, allegedly without any provocation or justification, personnel from the security firm formerly known as Blackwater Worldwide1 fired into Baghdad’s crowded Nisoor Square and killed seventeen Iraqi civilians. To date, neither the firm nor its employees have been held accountable for this incident. Moreover, a report issued by a U.S. House of Representatives oversight panel in October 2007 indicated that “Blackwater employees had been involved in at least 196 firefights in Iraq since 2005, an average of 1.4 shootings per week.” The report also stated that in 84 percent of these incidents, Blackwater personnel were the first to fire even though, by contract, they were allowed to fire only in self-defense.

Unfortunately, Blackwater is neither the first nor the only security firm to commit human rights abuses. In the late 1990s, personnel from another security firm, DynCorp International, allegedly bought women and girls as sex slaves while deployed in Bosnia. The only punishment rendered on the personnel responsible for these human rights abuses was the termination of their employment contracts. Moreover, despite these allegations, the firm later received a contract in Iraq worth $250 million.

 

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Detentions, Military Commissions, Terrorism, and Domestic Case Precedent – Article by Carl Tobias

From Volume 76, Number 6 (September 2003)
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Laura Dickinson’s recent article in this journal substantially improves appreciation of how the United States has detained suspects and instituted military commissions as well as of the roles played by the controversial procedure and tribunals when fighting terrorism. She meticulously traces how detentions and the commissions evolved, trenchantly criticizes them, and persuasively shows international tribunals’ comparative advantage. Dickinson accords relevant domestic case precedent a somewhat laconic analysis, however. For example, she briefly mentions separation-of-powers concerns and Supreme Court opinions that detentions and military commissions implicate while rather tersely assessing Ex parte Quirin, the Second World War decision on which President George W. Bush’s Administration has heavily relied to detain suspects, to create the tribunals, and to support numerous antiterrorism initiatives, especially litigation. Dickinson suggests that closer evaluation of these critical rulings is unwarranted because they lack application for her work and others have explored the opinions. Dickinson’s treatment allows many observers, most prominently cabinet members and federal judges, to overstate Quirin and to ignore Youngstown Sheet & Tube Co. v. Sawyer.

Dickinson contributes substantially to the ongoing debate over the use of detentions and military commissions in national emergencies. She illuminates myriad complex phenomena and convincingly demonstrates how international tribunals are preferable. Her recommendation may prove superior in terms of theory, policy, and international law. Nonetheless, the very realpolitik that Dickinson so incisively criticizes, and is so clearly exemplified by the Bush Administration’s war on terrorism, mandates elaboration of the governing United States case law.

 

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