Ignorance of Military Law By Supreme Court

The Supreme Court and lower federal courts are ruling on military law and on military operations. The following is really scary.

Eugene Fidell, an authority on military law, of a liberal persuasion critical of US detainee policies, is the husband of Linda Greenhouse, the New York Times’ Supreme Court reporting specialist.

Greenhouse was criticized for her relationship to Fidell possibly influencing her own liberal take on the issue. Greenhouse has decided to take a retirement package from the NYTs.

I disagree with Fidell, but in friendly correspondence on a range of military justice issues that I’ve written about, he has been most forthcoming and helpful. At the time of the criticism of Greenhouse, we exchanged emails, me chuckling at a belief that wives – especially those with established careers of their own – solicit or are faithful followers of their husband’s opinions.

Greenhouse just proved that, in “In Weighing Death Penalty, a Flaw in Fact,” about the Supreme Court 5-4 decision that rapists of children are not eligible for the death penalty. Fidell could have given Greenhouse a real scoop, that the arguments before the Supreme Court were wrong. Either he didn’t, or she didn’t listen.

When the Supreme Court ruled last week that the death penalty for raping a child was unconstitutional, the majority noted that a child rapist could face the ultimate penalty in only six states — not in any of the 30 other states that have the death penalty, and not under the jurisdiction of the federal government either.

This inventory of jurisdictions was a central part of the court’s analysis, the foundation for Justice Anthony M. Kennedy’s conclusion in his majority opinion that capital punishment for child rape was contrary to the “evolving standards of decency” by which the court judges how the death penalty is applied.

It turns out that Justice Kennedy’s confident assertion about the absence of federal law was wrong.

A military law blog pointed out over the weekend that Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty.

Furthermore:

Anyone in the federal government — or anywhere else, for that matter — who knew about these developments did not tell the court. Not one of the 10 briefs filed in the case, Kennedy v. Louisiana, mentioned it. The Office of the Solicitor General, which represents the federal government in the Supreme Court, did not even file a brief, evidently having concluded that the federal government had no stake in whether Louisiana’s death penalty for child rape was constitutional….

These civilian attorneys and jurists are the ones who are demanding or being steered to argue and judge whether detainees are held and how, and what procedures should be followed.

Hah!

And an Oy Vey! Problems created by Supreme Court, and what Congress should do. (Also, see Obama's abstention.)

UPDATE:
The Washington Post’s editorial board believes this SCOTUS error serious enough to merit retrying, but only on this issue.

The Supreme Court's legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations. That's why we think the court needs to reopen this case -- even though we supported its decision. The losing party, Louisiana, still has time to seek a rehearing, which the court could grant with the approval of five justices, including at least one from the majority. The court could limit reargument to briefs on the significance of the UCMJ provision. We doubt the case will come out much differently; we certainly hope not. But this is an opportunity for the court to show a little judicial humility. Before the court declares its final view on national opinion about the death penalty, it should accurately assess the view of the national legislature.

The majority’s opinion, otherwise, rested on their conception of proportionality between a death sentence and raping a young child. I’m not a capital punishment advocate, but this is not a matter of law but of opinion. Since there was insufficient legal grounds for the majority of 5’s opinion, is WaPo just saying let’s go through the formalities then “hang ‘em” without regard to the merits of the ruling? Further, we’d also have appreciated seeing the WaPo editorial board pay some attention to the equally life-and-death matter of SCOTUS and civilian courts and attorneys’ ignorance of military law and circumstances while, in effect, practicing without a clue even though with license.