Military Law and Buddhism

Multi-Format Extravagaaaaanza

Since this is my final blog post, I thought it might be interesting to highlight a few pop culture items, in various formats, that raise military law issues.

First on the list is a new movie about a U.S. soldier just back from Iraq, “Stop-Loss.”  This movie highlights a U.S. military policy that is little-known and rarely discussed in the news.  This policy essentially extends the term of enlistment for a soldier whose enlistment end date falls during his unit’s deployment to a war zone, or within the three month period before that deployment.*fn1*  If the soldier falls into this category, they must deploy with their unit and cannot the military until 90 days after their unit returns home.*fn2*

I have always been intrigued by the inconsistency between civilian employment law and military employment law.  No civilian employment contract similar to the military enlistment contract would be upheld – indeed, the very idea of imprisoning an employee for quitting their job would shock most Americans.  The stop loss policy goes even farther, and would probably also fail in a civilian context – imagine a worker at Wal-Mart not being allowed to quit during the holiday season, or rental lease being extended because no new renters are forthcoming.  The specific terms in the contract that are invoked to justify stop-loss are:

“Morale, Good Order and Discipline, and Unit Cohesion”

Last week the California Supreme Court considered whether homosexual couples should be allowed to marry.  This case coincided perfectly with a discussion in my military law class of the US military’s “Don’t Ask Don’t Tell” policy.  This policy, which has been in place over ten years, creates an odd sort of atmosphere wherein commanders cannot proactively search for homosexuals, but those who identify as homosexual (or anything but straight, really) must pretend that they are not.*fn1*  They cannot be intimate with someone of the same sex, cannot marry someone of the opposite sex, and cannot “state” that they are homosexual.*fn2*

There are exceptions, of course.  The soldier can try to prove that the acts were out of the ordinary for them and won’t happen again, or if they simply stated that they were homosexual, that they won’t engage in “homosexual acts.”  There is also an exception if “the member engaged in conduct or made statements for the purpose of avoiding or terminating military service.”  The immediate question that springs to my mind in response to the latter exception is: how would they know?

The Court Martial as a Backup Plan

In 1999, while law school was but a twinkling in my eye, the movie Double Jeopardy was released.  The premise was that a woman, wrongly convicted of her husband’s death, could, after being released, go and kill that husband without being prosecuted again.  At the time, Slate magazine posted an article explaining that this logic was flawed, in that “double jeopardy can only be claimed when multiple prosecutions arise from a single criminal action. For example, a double jeopardy defense would certainly fail if a defendant claimed that he couldn't be prosecuted for a second assault on a victim just because he was convicted of assaulting her two years earlier.”

However, there are other exceptions to the double jeopardy protection of the 5th Amendment, which most Americans remain unaware of.  For instance, the federal government and a state may both, separately, prosecute a defendant for the same crime.*fn1*  A similar situation exists for those subject to the UCMJ.  The court martial is considered, for double jeopardy purposes, analogous to a prosecution in federal district court.*fn2*  Therefore, a soldier can be tried for the same crime in both a court martial and a state court.*fn3*

[I should pause here to say that I’m against double jeopardy.  I understand the basic idea behind allowing both the state and federal governments to prosecute the same crime, but I think it is a legal fiction whose benefits are far outweighed by the risk of abuse.  So I’m continuing this post with a goal of testing that belief.]

Protecting the Human Investment: How Far is Too Far?

It’s that time of year again, when accountants never sleep – tax time, of course.  Most people are probably avoiding the thought, with Tax Day itself still two months away, but as the Site Coordinator for the Volunteer Income Tax Assistance (VITA) program at my school, it is something I have to think about ten times a day.  So a recent article in the Army Times about “refund anticipation loans” caught my eye.

The article discusses the impact of a new law that limits, for soldiers, the interest rate on these “refund anticipation loans” to 36 percent, and says that because of this limit the only such loan available to soldiers is one at H&R Block (the rate on that loan is exactly 36%).  My first reaction to this rate was shock, especially since this is rate is at the lower end of the scale for these types of loans.  But, as the article points out, with a loan term of only a couple weeks, the actual dollar amount of interest is low enough that most people don’t mind paying it to get their refund early.

This law provides an interesting window into differences between working a civilian job and being a member of the military.  The military (sometimes via the proxy of Congress) takes a more active interest in the lives of its members, even in areas that are not directly linked with their performance as soldiers.  Single soldiers below a certain rank are often required to live on-base, even when regular housing is available in the area.*fn1*  Before long weekends, soldiers are warned of the perils of drunk driving and of the importance of safe sex.*fn2*  And now, Congress has stepped in to protect soldiers from predatory lending.

Thanks for your service. Now what?

Newsweek recently reviewed a book about the Civil War, “This Republic of Suffering,” by Drew Gilpin Faust.*fn1*  The book discusses the impact of the war on society, especially perceptions of death and dying.*fn2*  During the war, “the unthinkable—the notion that a son or husband could die hundreds of miles distant—became the reality. Those with means traveled to battlefields in search of the slain, hoping not only to find them but to bring them home for burial. Those who could not afford such a trip were left to depend on the letters of other soldiers, who sought to reassure grieving families that the dead had made their peace with God and died honorably.

Yet thousands of families were still left in ignorance. Even on the Union side, which kept much better records than their Confederate counterparts, 40 percent of those who died were listed as ‘unknown.’”*fn3*

Faust goes on to explain that the war shifted the “responsibility for burial, for the notification of survivors and for pensions for veterans” to the government.*fn4*  No longer did families have to bear the expense – and horror – of searching through fields of dead bodies in hope of finding their loved ones and burying them.

Now, as we prepare to enter the sixth year of war in Iraq, this question is once again not only relevant but urgent:  What responsibility does the government have to the soldiers*fn5* that it has sent into battle?