Command Authority: What Are the Limits on Regulating the Private Conduct of America's Warriors?

摘要

Successfully challenging courts-martial convictions and military decisions in federal court is quite difficult. The military deference doctrine has become firmly entrenched in federal jurisprudence in the last thirty years, giving considerable discretion to policymakers and commanders. In addition, the Mindes test for reviewability has also become well-established.rnModem courts-martial are no less protective of an accused servicemember's rights than any other court. As such, federal court review of a conviction is only barely within the realm of possible. The command will almost always prevail in this situation. By contrast, the chances of challenging the lawfulness of an order or regulation at a court-martial are less clear, and the likelihood that an order or regulation will survive the scrutiny of a court will depend on the quality of the analysis given to the order or policy before its implementation.