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Military Justice

TypeCaseDescriptionYearKeywords

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NIMJ & ICJ Amicus in Bhuwan Prasad Niraula & Ors V Constituent Assembly, Legislative Parliament & Ors (2010) (Supreme Court of Nepal 2010) NIMJ Joined with the International Commission of Jurists (ICJ) to Argue That the Current Military Justice Provisions of the Army Act, 2063 (2006) and the Court-Martial Regulation, 2064 (2007) Be Declared Invalid Under the Nepalese Constitution and Applicable International Norms as They Do Not Provide an Independent, Impartial or Competent Tribunal or a Fair Trial as Guaranteed by the Nepalese Constitution.2010Military Jurisdiction, Courts-martial Jurisdiction, Decaux Principles, Independent, Impartial, or Competent Tribunal, International Covenant on Civil and Political Rights

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NIMJ & JAA Amicus in ABC, Inc V Powell & McKinney V Jarvis (CAAF 1997) 97-8023AR 97-8024AR With the Judge Advocates Assocation (JAA), NIMJ Argued That the Article 32 Hearing Involving Allegations of Sexual Harassment by the Sergeant Major of the Army Should Be Open to the Public and That Urged That an Interlocutory Order to That Effect Be Issued Under the All Writs Act. Because These Hearings Are Normally Open Proceedings, the Investigating Officer Must Support His Exercise of Discretion with Sufficient Reasons to Overcome the Presumption That Hearings Are Open. Further, Open Proceedings Would Contribute to a High Level of Confidence in the Fair Administration of Military Justice.1997Article 32 Investigation, Pretrial Hearing, Public Hearing, All Writs Act, Abuse of Discretion

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NIMJ Amicus and Other Case Documents in In Re Diaz (CAAF 2003) 03-8014NA In Response to Longstanding Lengthy Appellate Review Delays (under Article 66, UCMJ) in the Navy Court of Criminal Appeals, NIMJ Argued That CAAF Should Establish a Deadline for the Completion of the Assignment of Errors and Filing of an Appellate Brief for Diaz, and if the Deadline is Not Met, Should Appoint a Member of the Bar of the Court of Appeals for the Armed Forces to Represent Him on His Appeal.2003Appellate Review, Delay, Article 66, UCMJ, Appellate Review Delay, Navy Appellate Process, Appointment of Counsel, Uniform Code of Military Justice, UCMJ, Due Process

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NIMJ Amicus in Bagstad V United States (CAAF 2009) 2006-2454 In Its Amicus NIMJ Urged the Court of Appeals for the Armed Forces to Overrule United States V. Murphy, 26 M.J. 464 (C.M.A. 1988) and Adopt a Conclusive Presumption of Implied Bias in Situations Where a Subordinate and His Immediate Superior Sit on the Same Court-martial Panel. Such a Conclusive Presumption is Necessary to Ensure the Public Perceives Courts-martial with a Panel Consisting of Fair, Impartial, and Equal Members.2009Court-martial Members, Selection, Article 25 Criteria, Subordinate-superior Relationship, Implied Bias, Conclusive Presumption

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NIMJ Amicus in Bergdahl V Burke (CAAF 2015) 16-0059AR NIMJ Argued That Both CAAF and ACCA Had Jurisdiction Under the All Writs Act to Order Release of an Unclassified AR 15-6 Investigation, Itself Conducted to Satisfy the Requirements of Rule for Courts Martial (RCM) 303, and Entered into Evidence and Extensively Referred to at the Article 32 Pretrial Hearing. Further, the Accused’s Right to a Public Pretrial Hearing is a Substantial Pretrial Right Protected by the Sixth Amendment, Such That, Absent an Invocation of Privilege Under RCM 506, Release of Unclassified Documents Extensively Used by the Government in the Pretrial Hearing is Required in Order to Protect the Accused’s and Public’s Right to a Public Trial Under the Sixth and First Amendments and RCM 405. Failure to Release Such Evidence (quoted Extensively in the Hearing), Absent an Invocation of Privilege, is a Functional Closure Without Following the Requirements of RCM 506. At a Minimum, RCM 506(d) Requires the Least Restrictive Means in Order to Protect Against the Asserted “detriment to the Public Interest” with Written Findings Supporting the Conclusion to Close the Hearing.2015Pretrial Hearing, Article 32, Right to Public Trial, Pretrial Right, Protective Order, All Writs Act, Jursidiction, AR 15-6 Investigation

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NIMJ Amicus in Holmes V United States (ACCA 2010) 2010-0918 NIMJ Argued That the Limitation Order Foreclosing the Use of Victim Photographs at the Article 32 Investigation Violated the Constitution’s Sixth and First Amendment’s Guarantee of a Public Trial Because the Resulting Functional Closure of the Proceedings, and Required the Defendant to Choose Between His Right to a Public Trial and His Right to Present a Defense. Absent Specific Findings Supporting Closure and the Opportunity for the Press and Public to Argue Against Closure, This Limitation Order Violated the Constitutional Right of Public Access to Judicial Proceedings and Records That is Protected by Both the First and Sixth Amendments.2010Article 32 Investigation, Pretrial Hearing, Right to Public Trial, First Amendment, Sixth Amendment, Military Justice

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NIMJ Amicus in Holmes V United States (CAAF 2010) 11-8013AR NIMJ Argued That the Limitation Order Foreclosing the Use of Victim Photographs at the Article 32 Investigation Violated the Constitution’s Sixth and First Amendment’s Guarantee of a Public Trial Because the Resulting Functional Closure of the Proceedings Required the Defendant to Choose Between His Right to a Public Trial and His Right to Present a Defense. Absent Specific Findings Supporting Closure and the Opportunity for the Press and Public to Argue Against Closure, This Limitation Order Violated the Constitutional Right of Public Access to Judicial Proceedings and Records That is Protected by Both the First and Sixth Amendments.2010Article 32 Investigation, Pretrial Hearing, Right to Public Trial, First Amendment, Sixth Amendment, Military Justice

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NIMJ Amicus in In Re Loving (CAAF 2003) NIMJ Argued for the Court of Appeals for the Armed Forces to Grant Loving’s Request for a Writ of Error Coram Nobis to Determine the Impact of the Supreme Court’s Decision in Ring V. Arizona (which Held That Sentencing Judges May Not, on Their Own, Find Aggravating Circumstances Necessary to Impose the Death Penalty) on Courts-martial Cases.2003Death Penalty, Ring V. Arizona, Aggravating Circumstances, Writ or Error Coram Nobis, Coram Nobis, Uniform Code of Military Justice, UCMJ, Sentencing

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NIMJ Amicus in Loving V United States (CAAF 2008) 06-8006AR NIMJ Argued That the Court Should Clarify Under What Circumstances CAAF Will Review Findings Made Pursuant to a DuBay Hearing Instead of Remanding the Case to the Convening Authority or the Relevant Service Court of Appeals, and Further Argued That, Where, as Here, the Original Order Instructed That the Case Would Be Returned to CAAF After the DuBay Hearing, It Should Be So Returned.2008DuBay Hearing, Remand, Appellate Review, Article 66, UCMJ, Appellate Jurisdiction, Ineffective Assistance of Counsel, Collateral Attack

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NIMJ Amicus in The Attorney General of Uganda V The Uganda Law Society (Supreme Court of Uganda 2006) The Attorney General of Uganda V. The Uganda Law Society (2006) (Supreme Court of Uganda). NIMJ’s Amicus Brief Explained That Although Art. 2 of the Uniform Code of Military Justice Provides for the Trial by Courts-martial of Specific Categories of Civilians, U.S. Constitutional Law Severely Disfavors Trial of Civilians by Military Courts-martial, and the U.S. Congress Has Provided for Trials of Civilians Accompanying Military Forces Overseas in Federal Courts.2006Military Jurisdiction, Trial of Civilians by Military Courts

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NIMJ Amicus in US V Miller (CAAF 2006) 06-0052CG NIMJ Argued That the Issue of Deference to the Presidential Interpretation of Article 61, UCMJ, by Article I Military Appellate Courts Was Moot Because the Accused and Defense Counsel Did Not Take Issue with the Coast Guard Court of Criminal Appeals Dcision on This Issue. Thus, There is No Longer a Controversy Between the Two Parties, and the Case Should Have Been Dismissed. Furthermore, NIMJ Argued That if the CAAF Decided to Address the Issue, No Chevron Deference Was Due to Presidential Interpretations of the UCMJ Because Such Interpretation is the Function of Military Appellate Courts.2006Chevron Deference, Deference to Presidential Interpretations, Moot, Case or Controversy, UCMJ, Uniform Code of Military Justice, Manual for Courts-Martial, MCM, Article 61, Presidential Interpretation

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NIMJ Amicus in United Staes V Nerad (CAAF 2009) 09-5006AF NIMJ Argued That Although the Court of Appeals for the Armed Forces (CAAF) Had the Power to Review the Case at Hand Under Article 67, It Lacked the Power to Act on That Review Under Article 67(c), UCMJ, Which Limits Its Power to Act “only with Respect to Matters of Law.” Article 67(c)’s “matter of Law” Requirement Resulted in Unusual Cases, Such as This, Where the Court Had Jurisdiction to Review the Case, but Not the Power to Act upon That Review. Further, Reviewing the Case Without the Power to Act Amounts to Giving an Advisory Opinion, Which as a Prudential Matter, Article I Courts Avoid.2009Article 67, UCMJ, Article 67, Appellate Jurisdiction, Matter of Law Requirement, Advisory Opinion, Uniform Code of Military Justice

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NIMJ Amicus in United States V Behenna (CAAF 2010) 12-0030AR NIMJ Argued That the Prosecution’s Failure to Disclose Information Favorable to the Defense Not Only Violated Brady’s Constitutional Requirements, but Also the Prosecutor’s Separate Statutory and Ethical Duties, and Thereby Deprived the Defendant of His Right to a Fair Trial.2012Discovery, Disclosure, Duty to Disclose, Rule for Courts-Martial 701, RCM 701, Brady, Material Favorable to the Defense, Exculpatory, Statutory Duty to Disclose, Ethical Duty to Disclose, Constitutional Duty to Disclose, Right to a Fair Trial

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NIMJ Amicus in United States V Blazier (CAAF 2010) 09-0441AF NIMJ Argued That Urinalysis Drug Test Reports Constitute Testimonial Evidence, and as Such, Under Crawford V. Washington, Are Not Subject to the Business Records Exception to the Hearsay Rule. Therefore, the Inability of the Accused to Cross-examine the Laboratory Examiners at Court-martial Violated the Confrontation Clause of the Constitution.2010Confrontation Clause, Crawford V. Washington, Testimonial, Hearsay Exception, Business Records Exception, Urinalysis, Drug Testing Report, Drug Testing, Hearsay, Uniform Code of Military Justice, UCMJ

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NIMJ Amicus in United States V Butcher (CAAF 2001) 00-0632AF NIMJ Argued That the Accused’s Right to Due Process Was Violated when the Military Judge Hearing Her Case Had Repeated Social Contacts with the Prosecutor Outside the Courtroom Prior to and During the Court-martial. Because This Contact Created the Appearance of Impropriety, Which Should Require a Judge to Recuse Him/herself from a Case, the Conviction Should Be Reversed.2001Appearance of Impropriety, Judicial Ethics, Judge Recusal, Social Contacts, Due Process

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NIMJ Amicus in United States V Dowty (CAAF 2003) 03-1052NA NIMJ Argued That the Improper Narrowing of the Potential Panel Member Pool through the Use of Self-nomination (a Volunteer Panel) to Whom the Convening Authority Did Not Apply Two of the Article 25 Criteria Was Improper as It Failed to Result in a Panel Selected by the Convening Authority on the Basis of All Six Criteria Under Article 25, and Thus Divested the Court-martial of Its Jurisdiction. NIMJ Further Argued That Important and Recurrent Flaws in the Diverse Selection Processes for Military Panels Used by the Military Services Should Be Addressed by the Court of Appeals for the Armed Forces, Which Should Consider Implementation of a Random Selection Process, Not Involving the Office of the Staff Judge Advocate or Other Legal Personnel2003Article 25, UCMJ, Article 25 Criteria, Panel Selection, Age, Education, Training, Experience, Length of Service, Judicial Temperament, Uniform Code of Military Justice

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NIMJ Amicus in United States V Edmond (CAAF 2006) 03-0086AR NIMJ Argued That Trial Counsel Improperly Influenced the Sole Defense Witness by Convincing Him Not to Testify on the Grounds That Doing So Would Potentially Constitute Committing Perjury, Influencing the Witness to Invoke His 5th Amendment Rights. NIMJ Further Argued That Defense Counsel Did Not Properly Investigate the Witness’s Last Minute Invocation of Rights, and as Such Was Ineffective Under Strickland.2006Prosecutorial Misconduct, Ineffective Assistance of Counsel, Invocation of 5th Amendment Rights, Interference with Witness, Strickland, Uniform Code of Military Justice, UCMJ

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NIMJ Amicus in United States V Lane (CAAF 2005) 05-0260AF NIMJ, Joined by the ACLU, Argued That Assigning Senator Lindsey Graham, as a Aitting US Senator, to Serve as a Military Appellate Judge (and as a Commissioned Air Force Reserve Officer, Especially in the Grade of Colonel or Above) Violated the Ineligibility Clause (art. I, § 6, Cl. 2) of the Constitution, as Well as the Separation of Powers Among the Branches of Government. As a Result of This Assignment, the Decision of the Court of Appeals on Which Senator Graham Sat, Should Have Been Vacated and the Case Remanded for Further Appellate Review.2005Separation of Powers, Senator, Reserve Commissioned Officer, Appellate Panel, Incompatibility Clause, U.S. Constitution, Article I, Section 6, Clause 2, Uniform Code of Military Justice, UCMJ

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NIMJ Amicus in United States V Lee (CAAF 2000) 99-0002AF NIMJ Argued That a Military Appellate Judge’s Refusal to Participate in Review Of a Case Should Be Judged on an Abuse of Discretion Standard, the Same Standard Used when a Military Judge Fails to Recuse His/herself when Circumstances Require It. Additionally, in Order to Assess Whether the Refusal to Participate Was an Abuse of Discretion, a Military Appellate Judge Must State in the Record Why He/she Have Not Participated.2000Abuse of Discretion, Military Appellate Judge Refusal to Participate in an Appeal, Appellate Failure to Participate, UCMJ, Uniform Code of Military Justice

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NIMJ Amicus in United States V Medina (CAAF 2010) 10-0262MC NIMJ Argued That the Revised Article 120(c)(2) of the UCMJ Which Defines Aggravated Sexual Assault as Engaging in a Sexual Act with Another Person when That Person is “substantially Incapacitated or Substantially Incapable of Appraising the Nature of the Sexual Act or Declining Participation in the Sexual Act or Communicating Unwillingness to Engage in the Sexual Act” is Facially Unconstitutional Because the Accompanying Affirmative Defense of Consent Requires That the Accused Prove the Complainant Had the Capacity to Consent to Sexual Contact, Transferring the Burden to the Accused to Disprove an Element of the Underlying Offense. This Shifting of the Burden from the Complainant to the Accused Violates the Constitution.2010Rape, Aggravated Sexual Assault, Consent, Affirmative Defense, Substantially Incapacitated, Burden of Proof, Element of the Offense, Article 120, Facially Unconstitutional, Lack of Consent, Uniform Code of Military Justice, UCMJ

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NIMJ Amicus in United States V Sayler (CAAF 2013) 13-0186MC NIMJ Argued That a Case in Which the Prosecution Had Improperly Maneuvered for the Removal of the Detailed Military Judge and Had Placed the Judge in a Position That He Could Not Continue as the Judge Required Dismissal with Prejudice to Cure the Unlawful Influence Against the Judge.2013Unlawful Influence, Military Judge, Prosecutorial Misconduct, Military Justice, UCMJ

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NIMJ Amicus in Support of Certiorari in Clinton V Goldsmith (Supreme Court 1998) 98-347 NIMJ Argued That Review Was Necessary to Address the Assertion of Jurisdiction by Court of Appeals for the Armed Forces (CAAF) Under the All Writs Act to Issues That Were Not Within the Court’s Appellate Jurisdiction. CAAF Sought to Prevent the President from Dropping a Service Member from the Rolls of the Air Force After Execution of a Courts-martial Sentence Under the Authority of a Law Enacted After the Conviction, Which CAAF Viewed as an Ex Post Facto Law. NIMJ Argued That Although CAAF’s Appellate Jurisdiction Was Broad, It Was Limited by the Scope of Authority Granted to It by Congress in the UCMJ, and That Other Avenues of Redress Existed for the Servicemember to Contest the Action of the President.1998Appellate Military Jurisdiction, Court of Appeals for the Armed Forces, All Writs Act, Ex Post Facto, Drop from Rolls

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NIMJ Amicus in Support of Certiorari in Diamond V United States (Supreme Court 2011) 10-922 NIMJ Argued That the Supreme Court Should Grant Certiorari to Resolve the Question of Military Appellate Jurisdiction, Specifically Whether a Certiorari Petition May Be Filed on All Issues Presented in a Case in Which CAAF Has Granted Review or Relief, Regardless of Whether That Court Identified Them when It Granted Review. NIMJ Also Argued That Revised Rule 21(b)(5)(G) is Unlawful to the Extent That It Purports to Allow CAAF to Consider What Issues a Litigant Might Include in a Certiorari Petition in Deciding Whether There is Good Cause for CAAF Review Under Article 67(a)(3).2011Petition for Certiorari, Appellate Review, Good Cause, Relief, Review, Issues, Case, Subsequent Petition for Review Following Remand, Appellate Jurisdiction

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NIMJ Amicus in Support of Certiorari in Gray V United States (Supreme Court 200000-607) NIMJ Support the Grant of Certiorari to Determine the Constitutionality of Art. 25(d)(2) of the UCMJ, Which Authorizes the Convening Authority to Select Court-martial Members Who, “are Best Qualified for the Duty by Reason of Age, Education, Training, Experience, Length of Service, and Judicial Temperament.” NIMJ Supported Supreme Court Review of This Critical Issue Given the Recent International Judicial Decisions Evaluating Similar Provisions, but Took No Position on How the Question Presented Should Be Decided.2000Selection of Members, Convening Authority Selection of Panel Members, International Law, Article 25(d), UCMJ, Uniform Code of Military Justice

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NIMJ Amicus in Support of Certiorari in Loving V United States Dep't of Defense & Dep't of the Army (Supreme Court 2009) 08-1476 NIMJ Supported the Grant of Certiorari to Resolve Two Questions Presented in This Case the First, Whether Persons Sentenced to Death Under the UCMJ Have a Due Process Right to See Sentencing Recommendations That Are Made to the President Before He or She Approves the Sentence and the Second Whether the Presidential Communications and Deliberative-process Privileges Apply to Sentencing Recommendations Made to the President in Capital Cases Under the UCMJ. NIMJ Argued That Servicemembers Sentenced to Death Do Have a Due Process Right to See Sentencing Recommendations Given to the President Before Approval of the Sentence and That This Right is Not Precluded by Exemption 5 of the Freedom of Information Act (FOIA). With Respect to the Second Question Presented, NIMJ Argued That Executive Privileges Do Not Apply to Presidential Decisions to Impose the Death Penalty in Military Cases.2009Death Penalty Recommendations, Miltiary Capital Sentencing, Freedom of Information Act, FOIA FOIA Exemption 5, Deliberative Process Privilege, Capital Sentencing, UCMJ, Uniform Code of Military Justice

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NIMJ Amicus in Support of Certiorari in McMurrin V United States (Supreme Court 2014) 14-262 14-262 Amicus Brief McMurrin NIMJ Argued as Amicus for the Grant of Certiorari for the Supreme Court on the Threshold Question of Appellate Jurisdiction. NIMJ Argued That the Supreme Court Had Appellate Jurisdiction Because the Judge Advocate General Had Certified the Case to the Court of Appeals for the Armed Forces (CAAF). CAAF’s Actions in Remanding the Case for Further Proceedings and then Subsequently Denying the Petitioner’s Petition for Review Did Not Alter the Existing Jurisdiction for Appeal That Arose from the Original Certification by the Judge Advocate General.2014Appellate Jurisdiction, Supreme Court Appellate Jurisdiction, Military Case Appellate Jurisdiction, Certiorari, Court of Appeals for the Armed Forces, CAAF, Certification by the Judge Advocate General, UCMJ, Uniform Code of Military Justice

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NIMJ Amicus in Support of Certiorari in New V United States (Supreme Court 2006) 06-691 NIMJ Argued That the Supreme Court Should Resolve the Circuit Split over the Appropriate Standard of Review for Collateral Attacks on Military Convictions, Which Under Burns V. Wilson, 346 U.S. 137 (1953) Required “full and Fair Consideration” of the Servicemember’s Claims. NIMJ Urged the Supreme Court to Adopt the Kauffman Test (which Holds That “military Rulings on Constitutional Issues [must] Conform to Supreme Court Standards, Unless It is Shown That Conditions Peculiar to Military Life Require a Different Rule.”) as the Standard of Review for Collateral Attacks on Military Convictions, and to Further Decide to Apply That Standard to All Collateral Attacks, Both Habeas and Non-habeas, Arguing That the More Deferential Councilman Standard Should Not Apply to Non-habeas Collateral Attacks.2006Habeas Collateral Attacks, Collateral Attacks on Military Convictions, Councilman Deference, Kaufmann, Burns V. Wilson, Standard of Review

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NIMJ Amicus in Support of Certiorari in Stevenson V United States (Supreme Court 2000) 00-919 At Issue in This Case Was Whether the Armed Forces May Conduct Involuntary Non-probable-cause Searches of Retired Personnel through the Use of the Department of Veterans Affairs Facilities and Staff. NIMJ Argued on Behalf of the Petitioner and in Favor of the Supreme Court Granting Certiorari to Review the Issue.2000Military Jurisdiction, Retiree, Retired Member, Permanent Disability Retired List, Unlawful Search and Seizure, Blood

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NIMJ Amicus in Support of Certiorari in Stevenson V United States (Supreme Court 2008) 07-1397 NIMJ Urged the Grant of Certiorari to Resolve the Issue Presented in This Case Whether the Application of UCMJ Jurisdiction to a Retired Servicemember on Permanent Disability Violated the Constitution. NIMJ Argued That Military Jurisdiction is Exceptional Jurisdiction, Which, Because It Does Not Provide the Full Panoply of Right Conferred by the Constitution, Should Be No Broader than Necessary to Achieve Good Order and Discipline in the Armed Forces. NIMJ Also Argued That Applying Military Jurisdiction to a Retiree on the Permanent Disability Retired List Violates the Constitution.2008Military Jurisdiction, Courts-martial Jurisdiction, Decaux Principles, Independent, Impartial, or Competent Tribunal, International Covenant on Civil and Political Rights

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NIMJ Amicus in Support of Petition for Certiorari in Miranda V United States (Supreme Court 2012) 11-1237 NIMJ Argued as Amicus for the Grant of Certiorari for the Supreme Court on the Threshold Question of Whether Supreme Court Appellate Review of Military Cases Under the U.C.M.J. Under 18 U.S.C. § 1259 is Limited to the Particular Issue(s) for Which the Court of Appeals for the Armed Forces Granted Review, or Does It Extend to All Issues in the Case NIMJ Argued That the Statutory Language Was Clear That Appellate Review Was Available for All Issues in the Case, but That the Solicitor General’s Newly Developed View That Only the Issues Reviewed by CAAF Were Available for a Petition of Certiorari Was in Error, and That the Supreme Court Should Clarify Their Statutory Appellate Jurisdiction.2012Appellate Review, Scope, Certiorari

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NIMJ Amicus in Support of Petition of Certiorari in Akbar V United States (Supreme Court 2016) NIMJ Amicus in Support of Certiorari NIMJ Urged the Supreme Court to Grant Certiorari in This Case, Which Deals with the Constitutionality of the Military Death Penalty Sentencing Scheme, Because Akbar Offers a Substantial Constitutional Challenge to His Death Sentence, Which, if Accepted, Would Also Invalidate the Entire Scheme by Which the Military Justice System Imposes the Death Penalty. NIMJ Further Argued That Although Congress and the Supreme Court Have Increasingly Preferred Collateral Review as the Means to Supervise Civilian Criminal Convictions, the Opposite is True for Military Cases. For Military Convictions, the Supreme Court Has Carefully Circumscribed the Scope of Collateral Review of Military Cases and Congress Has Expanded the Supreme Court’s Direct Appellate Jurisdiction over Military Convictions.2016Collateral Review, Appellate Jurisdiction, Appellate Review, Death Penalty, Capital Sentencing, Ring V. Arizona, Loving V. United States, Aggravating Factors