Category Archives: US Military & Foreign Policy

Cushing v. Tetter:[1] Still a Good Tool in the Box

By Alison Carter

This article was published in the Spring 2016 issue of On Watch. 

This article explores a goldmine of findings in a 1979 federal district court case where an active duty Navy airman, alleging suicidal tendencies, successfully argued for a preliminary injunction.  The injunction prevented the military from returning him to his unit before he had an opportunity to exhaust all administrative options available for challenging the order to return to duty.

Despite its age, it appears that this case has withstood the test of time and contains powerful holdings that are applicable to many fact patterns encountered in G.I. Rights advocacy.[2]

Trends in Conscientious Objector Cases

By Maria Santelli, Center on Conscience and War

Published in the Spring 2016 issue of On Watch.

It’s called the Conscience Committee and it is a committee of the Army.  It is not clear exactly who they are or what defines the bar they have set, but if you apply for recognition as a conscientious objector in Israel, they will be deciding your fate.

As I listened to a panel of “Refusniks” (draft and war resisters in Israel) on a speaking tour in the US, I felt as though they were recounting pieces of the story of conscientious objection in the United States 100 years ago.

I felt grateful for the substantial advancements we have made in extending and defending the rights of conscientious objectors in the US. Also, though, I considered the significant work still ahead of us.

The Center on Conscience & War has worked with Conscientious Objectors (COs) for over 75 years. Over the course of those many years, we have observed trends of both accommodation and repression of conscientious objection. Recently, our office has experienced a sharp rise in cases from members of the military seeking discharge as COs. At the same time, we are observing – and COs are experiencing – troubling and unexpected events and consequences at the decision-making levels of the different military branches.

When the Mother’s Military Status Punishes the Child: Supreme Court Watch on the Feres Doctrine and the Ortiz Case

by Deborah H. Karpatkin

Published in the Winter 2016 issue of On Watch.

According to a recent decision by the Tenth Circuit in Ortiz v. U.S. ex rel. Evans Army Community Hosp.,[1] the child of a servicemember mother injured in utero can’t bring her own claim for injury under the FTCA because of the Feres doctrine.  The Ortiz case is now before the Supreme Court on a petition for certiorari.  This article gives a brief overview of the case and the issues before the Court – it is not intended to be a comprehensive discussion of the Feres doctrine and cases.

Military Sexual Assault Policy Updates

By Kathleen Gilberd

Published in the Winter 2016 issue of On Watch.

MLTF Resources on Military Sexual Violence

MLTF has an extensive guide to Military Sexual Violence available on our website.

The MSV Guide was published in 2014 (prior to the changes noted in this article, but will soon be updated to reflect them). Currently only in digital format, once updated, it will be available in print, in limited quantities (unless additional funding can be obtained.) We are grateful to the National Lawyers Guild Foundation  for the funding that made this production possible.

Visit militarylawhelp.org to find this and other material on GI rights and military law.

If after reading our documents, you still need legal counsel to address your issue, please call us for a referral.

The recently-enacted 2016 National Defense Authorization Act (NDAA; Public Law 114-92) includes a number of new policy provisions on military sexual assault, most of them designed to facilitate changes made in prior Authorization Acts.

Section 531 of the 2016 NDAA expands and details a victim’s right to submit a petition for a writ of mandamus to the military Court of Criminal Appeals (CCA). The section amends Article 6b, subsection E, of the UCMJ to allow such a petition when the victim believes rights afforded under the following are violated during a preliminary hearing (Art. 32) or court-martial:

  • 6, UCMJ (which includes other victim’s rights provisions)
  • 32, UCMJ
  • Military Rule of Evidence (MRE) 412, which concerns admission of evidence of a victim’s sexual background
  • MRE 513, regarding the psychotherapist-patient privilege
  • MRE 514, regarding the victim advocate-victim privilege
  • MRE 615, covering exclusion of witnesses

Further, if the victim of an offense under the UCMJ is subject to an order to submit to a deposition, notwithstanding his or her availability to testify at court-martial, the victim may petition the CCA for a writ of mandamus to quash the order.

These petitions for writ of mandamus are to be forwarded directly to CCA by procedures to be prescribed by the President, and “to the extent practicable, shall have priority over all other proceedings before the court.”

DoD releases report on sexual assaults. What do the new numbers mean?

military sexual assaultThe Department of Defense has just released a new report on sexual assault in the military, and Pentagon officials are claiming that their efforts against sexual assault involve “notable progress.”

The report gives a top ten list of “indicators and agents of change,” including “extensive leadership engagement,” a “comprehensive prevention and response system” and an “enhanced prevention strategy,” among other things. According to the report, nearly 6,000 reports of sexual assault were made in 2014, up 8% from the previous year and significantly higher than the 3,375 reports in 2012. At the same time, DoD estimates, on the basis of “provisional” figures, that the number of actual assaults has gone down, from 26,000 in 2012 to 19,000 in 2014. (See a detailed rundown of the numbers from Military Times.)