JAG HUNTER HERE: ATTAINDER'S THREE-PART TEST!

Defense Department policy makers embrace and publicly admit in published policy statements that the U.S. military courts-martial scheme violates the Constitution's ARTICLE I, Section 9, Clause 3 proscription against the crime of Attainder (the Bill of Attainder Clause).

The Constitution outlaws courts-martial!

The Constitution outlaws courts-martial because courts-martial are not courts (that is, federal courts holding trials under Article III) and moreover deny affected persons the constitutional protection of a jury.

In a series of significant Supreme Court cases listed below the High Court constructed a three-part test for attainder that lines up with military precision with published DOD policy.

As a matter of published DOD policy the courts-martial system meets the first Supreme Court test by requiring the affected persons be specifically named on a charge sheet that also gives their rank (Winthrop's Military Law and Precedents, p. 137).

Attainder test #2, as crafted by Supreme Court Justices, requires the affected person(s) experience punishment. DOD policy states that courts-martial sentences constitute criminal judgments. In fact, punishment is a function of military command. American courts-martial are defined as gatherings of persons under orders invested only with criminal punishment powers and authority (Winthrop's Military Law and Precedents, p. 400).

DOD's published policy admission that courts-martial are not a part of the judiciary, but rather an agency of the Executive Department (the President as Commander in Chief) fulfills completely the Supreme Court's thrid test for Attainder. That is, punishments carried out against affected persons are executed lacking a judicial trial (Winthrop's Military Law and Precedents, pgs. 49, 313).

In keeping with DOD's ATTAINDER POLICY is the total absence of outside (the military) review!

NO JUDICIAL APPEAL IS POSSIBLE!

Instead there is substituted ONLY AN EXECUTIVE APPEAL.

"As the [courts-martial] is an EXECUTIVE AGENCY, the appeal is to a superior EXECUTIVE AUTHORITY (the President as CINC). So [in the courts-martial scheme] an Accused has always [and only] an [EXECUTIVE] appeal from [attainder punishment] by courts-martial to the President, [or Defense Secretary,] who, in entertaining and determining such [EXECUTIVE] APPEAL, is assisted and advised by the TJAGS or their respective services (Winthrop's Military Law and Precedents, pgs. 50-54).

Significant Supreme Court cases

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810)
Cummings v. Missouri, 71 U.S. (4 Wall) 277 (1867)
United States v. Klein, 80 U.S. (13 Wall) 128 (1871)
United States v. Lovett, 328 U.S. 303 (1946)
United States v. Brown, 381 U.S. 437 (1965)
Nixon v. Administration of General Services, 433 U.S. 425 (1977)
Selective Service System v. Minnesota Publich Interest Research Group, 468 U.S. 84 (1984)

Here endth the lesson!

Copyright © The JAG HUNTER 2008