Articles Posted in Military Law

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Plaintiffs sought a declaratory judgment stating that their family members were killed in the course of a U.S. drone attack in violation of international law governing the use of force, the Torture Victim Protection Act (TVPA), and the Alien Tort Statute (ATS). The district court dismissed the claims primarily based on political question grounds. The DC Circuit affirmed and held that it was not the role of the Judiciary to second-guess the determination of the Executive, in coordination with the Legislature, that the interests of the U.S. called for a particular military action in the ongoing War on Terror. In this case, El-Shifa Pharmaceutical Industries Co. v. United States, 607 F.3d 836 (D.C. Cir. 2010), controlled the court's analysis and compelled dismissal of plaintiffs' claims. View "Bin Ali Jaber v. United States" on Justia Law

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This appeal and cross-appeal relate to the district court's orders releasing video recordings made at Guantanamo Bay, depicting military personnel removing a detainee, Abu Wa'el (Jihad) Dhiab, from his cell, transporting him to a medical unit, and force-feeding him to keep him alive while he was on a hunger strike. The government classified these recordings as "SECRET" because disclosing them could damage the national security, but the district court determined that the public had a constitutional right to view the recordings because the detainee's attorney filed some of them under seal, at which point the recordings became part of the court's record. The government appealed, arguing that the public has no such constitutional right. The Intervenors cross-appealed, arguing that several categories of redactions the court approved prior to public release were too extensive. The court concluded that Press-Enterprise Co. v. Superior Court did not apply to this case and neither the intervenors nor the public at large have a right under the First Amendment to receive properly classified national security information filed in court during the pendency of Dhiab's petition for a writ of habeas corpus. The court further explained that, even if the intervenors had a qualified First Amendment right of access to the Dhiab recordings, the court would still reverse the district court's decision, because the government identified multiple ways in which unsealing these recordings would likely impair national security. Because the recordings will remain sealed, the intervenors' cross-appeal about the extent of the redactions was dismissed as moot View "Dhiab v. Trump" on Justia Law

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After the FLRA ordered the Air Force to bargain collectively with its civilian employees over access to an on-base shopette, the Air Force challenged the decision arguing that the issue is not a proper subject of bargaining. The court agreed with the Air Force that Congress has given the military unfettered discretion to determine whether civilians may patronize commissaries and exchanges, though for reasons that are slightly different from those offered by the Air Force. Given the relevant legislative directives, the court cannot imagine that Congress intended to empower a civilian agency like the Federal Labor Relations Authority to second-guess the military’s judgment about non-military access to commissaries and exchanges. In this case, by requiring negotiation over the Shoppette proposal, the Authority has similarly second-guessed the Secretary’s judgment in deciding how best to use a military benefit to achieve military purposes. Therefore, the court held that civilian access to commissaries and exchanges is not a proper subject of collective bargaining because Congress has vested the military with “unfettered discretion” over the matter. Accordingly, the court granted the petition for review and vacated the Authority's order. View "USAF v. FLRA" on Justia Law

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Plaintiff, a retired Major in the Marine Corps and a certified NJROTC instructor, filed suit after he was decertified to contest his removal from the NJROTC program. The district court granted summary judgment to the Navy. The court found no merit in plaintiff's contention that the regulation on which the Navy relied to revoke his certification is unconstitutionally vague; that the Navy denied him due process because it failed to accord him adequate notice and opportunity to be heard when determining whether he should be permitted to continue to serve as a NJROTC instructor; and that the Navy’s decertification decision was arbitrary and capricious and unsupported by substantial evidence. Accordingly, the court affirmed the judgment. View "Crooks v. Mabus, Jr." on Justia Law

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Petitioner is the alleged mastermind of the bombings of the U.S.S. Cole and the French supertanker the M/V Limburg, as well as the attempted bombing of the U.S.S. The Sullivans. Petitioner seeks a writ of mandamus to dissolve the military commission convened to try him and appeals the district court’s denial of his motion to preliminarily enjoin that trial. The court concluded that the district court did not err as a matter of law by extending the abstention principles established in Schlesinger v. Councilman, which dealt with courts-martial, to petitioner's pretrial challenge to the subject matter jurisdiction of a military commission. The court also concluded that the district court's ultimate decision to abstain based on the unique circumstances to petitioner's case was appropriate. Because petitioner cannot show that his conduct clearly and indisputably took place outside the context of hostilities, the court denied his petition for mandamus relief. Accordingly, the court affirmed the judgment. View "In Re: Abd Al-Rahim Hussein Al-Nashir" on Justia Law

Posted in: Military Law

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After the United States detained Mohammed Jawad at Guantanamo Bay Naval Base for more than six years until he was released and returned to his native Afghanistan, Jawad filed suit alleging that they subjected him to torture while he was in their custody. The court affirmed the district court’s dismissal of Jawad’s complaint because the federal courts lack jurisdiction to hear his claims. Section 7(a) of the Military Commissions Act, 28 U.S.C. 2241(e)(2), strips federal courts of jurisdiction to hear most claims against the United States arising out of the detention of aliens like Jawad captured during the United States’ invasion of Afghanistan in response to the attacks of September 11, 2001. The court rejected Jawad's reasons why the Combatant Status Review Tribunal (CSRT) finding that he was an "enemy combatant" does not satisfy the section 7(a) requirements. The court also rejected Jawad's remaining claims. View "Jawad v. Gates" on Justia Law

Posted in: Military Law

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Blue Water Navy Vietnam Veterans Association and Military-Veterans Advocacy filed suit challenging the VA's policy requiring "blue-water" veterans to prove on a case-by-base basis that they were exposed to Agent Orange during their military service in order to be considered for certain benefits. Plaintiffs argued that the policy was arbitrary and capricious and otherwise unlawful under the Administrative Procedure Act (APA), 5 U.S.C. 706(2). Plaintiffs sought injunctive and mandamus relief to prevent the VA from denying the presumption of Agent Orange exposure to blue-water veterans. The district court dismissed the suit for lack of subject matter jurisdiction, citing 38 U.S.C. 511(a), which bars review in district court of VA decisions “under a law that affects the provision of” veterans benefits. The court affirmed the district court's dismissal of the complaint based on lack of subject matter jurisdiction, concluding that Congress stripped the district court of jurisdiction over the claims at issue. View "Blue Water Navy Vietnam v. McDonald" on Justia Law

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Trent M. Coburn pled not guilty to marijuana use in non-judicial proceedings related to a positive drug test, but was found guilty and received a negative non-commissioned officer evaluation report based on the offense. The Army subsequently denied Coburn continued Army Service. In Coburn I, the court remanded to the ABCMR so it could provide a reasoned explanation (if possible) for several questions the court could not resolve. Since then, the ABCMR has issued a new opinion in response to the court's remand, affirming the decision to terminate Coburn’s Medical Evaluation Board and proceed with his discharge. The court concluded that substantial evidence supports the ABCMR’s conclusions. Therefore, the court affirmed the ABCMR’s decision to terminate Coburn’s disability processing and its conclusion that Coburn’s medical conditions did not warrant further medical review. View "Coburn v. Murphy" on Justia Law

Posted in: Military Law

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Petitioner moved for one of the three judges of the U.S. Court of Military Commission Review, Judge William B. Pollard III, to disqualify himself. Judge Pollard is a civilian who serves as a part-time judge on the court. He also maintains a private law practice. Petitioner contends that this arrangement is unlawful and requires Judge Pollard’s disqualification. Petitioner seeks a writ of mandamus ordering Judge Pollard's disqualification. Petitioner argued that Judge Pollard’s disqualification is compelled by the Rules of Practice of the U.S. Court of Military Commission Review; petitioner raises another related argument under the appearance of impartiality standard incorporated into the Rules of Practice; Judge Pollard must disqualify himself because the Judge’s part-time private practice of law violates 18 U.S.C. 203(a), a criminal statute; and Judge Pollard has violated 28 U.S.C. 454, which states that any justice or judge appointed under the authority of the United States who engages in the practice of law is guilty of a high misdemeanor. Although the court concluded that petitioner's arguments carry some force, he has not shown a "clear and indisputable" right to relief at this time. Therefore, the court denied the petition. The court noted that if the U.S. Court of Military Commission Review decides against petitioner in his pending appeal, he may renew his arguments about Judge Pollard on direct appeal to this court. View "In re: Omar Khadr" on Justia Law

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Petty Officer Walter Jackson filed suit claiming that the Board's denial of his request to correct his navy record violated the Administrative Procedure Act (APA), 5 U.S.C. 500 et seq.; the Due Process Clause; and equitable principles. A recommendation against re-enlistment stemmed from Jackson’s unauthorized absence from his naval base, a subsequent disciplinary infraction, and two adverse performance evaluations. The court applied a deferential standard of review and concluded that, given Jackson’s infractions in the Navy, the Board reasonably denied Jackson’s requests for record correction. The court rejected Jackson's remaining contentions and affirmed the judgment. View "Jackson, Jr. v. Mabus, Jr." on Justia Law