Document Type
Article
Publication Date
Fall 2020
Abstract
This article is divided into three sections, each with an analysis on the relationship between the commander in chief and military justice. Section I defines unlawful command influence and presents an overview of unlawful command influence prior to 1950 with an instance of presidential influence which would amount to the deprivation of the right to a fair trial. Section II of the article presents a legal history of three pre-Uniform Code of Military Justice (UCMJ) Court opinions for the purpose of showing the existence of judicially recognized constitutional restraints against commander in chief influence over courts-martial. These opinions present historic evidence that there has been an acceptance not only as to restraints against commander in chief influence over courts-martial, but also an understanding of the effects of such limits on the broader scope of commander chief authorities over the military. Section III compares the President Trump’s conduct with the rectitude of past administrations as a matter of lex non-scripta, a source of military law. Finally, the article concludes with the argument that President Trump’s conduct over military justice presents, for the first time in the nation’s history, the type of commander in chief exertions that are antithetical to the military’s constitutional place in the nation.
Publication Title
Hofstra Law Review
Volume
49
Issue
1
First Page
11
Last Page
62
Recommended Citation
Joshua E. Kastenberg,
Fears of Tyranny: The Fine Line Between Presidential Authority Over Military Discipline and Unlawful Command Influence Through the Lens of Military Legal History in the Era of Bergdahl,
49
Hofstra Law Review
11
(2020).
Available at:
https://digitalrepository.unm.edu/law_facultyscholarship/871
