1. In light of this @RonanFarrow story about Larry Rendall Brock, Jr., an Air Force veteran, here's a quick #thread about the complicated, confusing, and evolving state of the law regarding when the military can (and cannot) court-martial retired servicemembers.

2. First, an important distinction: The military can *recall* most retirees to active duty. But that's not the same thing as whether they can be tried by court-martial for offenses committed *while* retired (and before being recalled).

That's where things get complicated.
3. The Uniform Code of Military Justice (UCMJ) authorizes courts-martial for *any* offense committed by those who have retired from a "regular component" and are receiving pay, along with members of the Fleet Reserve and Fleet Marine Corps Reserve (who are effectively retirees).
4. But the UCMJ authorizes courts-martial for offenses committed by those who have retired from *reserve* components only while "receiving hospitalization from an armed force." And #SCOTUS held in 1955 that the military cannot try those who have *separated* from the armed forces.
5. So whether Brock can be tried by court-martial — under current law, anyway — for his role in Wednesday's attacks depends upon his *exact* status as of Wednesday, i.e., whether he is separated from the Air Force, retired from active duty, or retired from the reserves.

But...
6. This legal framework is being challenged. Whether the *Constitution* allows the military to court-martial *any* retired servicemember for offenses committed while retired is currently at issue in two separate lawsuits (full disclosure: I represent the retiree in both of them).
7. In Larrabee v. Braithwaite, the DC district court ruled in November that the Constitution forbids the court-martial of members of the Fleet Marine Corps Reserve for offenses committed after retiring from active duty:

https://t.co/ZG4X8mKlOu

That ruling may soon be appealed.
8. And in United States v. Begani, the Court of Appeals for the Armed Forces will hear argument in March or April on both the Larrabee question *and* whether the UCMJ violates equal protection insofar as the distinction between active-duty and reservist retirees is arbitrary.
9. Thus, the existing law rests on complex distinctions *and* there's ongoing litigation that could significantly narrow—if not altogether eliminate—the circumstances in which *any* retired servicemembers can be tried by court-martial for offenses committed *while* retired.

/end

More from Government

This is a good piece on fissures within the GOP but I think it mischaracterizes the Trump presidency as “populist” & repeats a story about how conservatives & the GOP expelled the far-right in the mid-1960s that is actually far more complicated. /1

I don’t think the sharp opposition between “hard-edge populism” & “conservative orthodoxy” holds. Many of the Trump administration’s achievements were boilerplate conservatism. Its own website trumpets things like “massive deregulation,” tax cuts, etc. /2

https://t.co/N97v85Bb79


The claim that Buckley and “key GOP politicians banded together to marginalize anti-Communist extremism and conspiracy-mongering” of the JBS has been widely repeated lately but the history is more complicated. /3


This tweet by @ThePlumLineGS citing a paper by @sam_rosenfeld and @daschloz on the "porous" boundary between conservatives, the GOP and the far-right is relevant in this context.


This is a separate point but I find it interesting that Gaetz, like Roy Moore did In his failed Senate campaign, disses McConnell. What are their actual policy differences? MM supported taking health care away from millions, a tax cut for the rich, conservative judges, etc. /5
This article by Jim Spellar for @LabourList misses the point about why Labour needs to think seriously about constitutional reform - and have a programme for it ready for government.


The state of our constitution is a bit like the state of the neglected electric wiring in an old house. If you are moving into the house, sorting it out is a bit tedious. Couldn’t you spend the time and money on a new sound system?

But if you ignore the wiring, you’ll find that you can’t safely install the new sound system. And your house may well catch fire.

Any programme for social democratic government requires a state with capacity, and a state that has clear mechanisms of accountability, for all the big and all the small decisions that in takes, in which people have confidence.

That is not a description of the modern UK state.

You May Also Like