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Wednesday, September 29, 2010

Supreme Court Appellate Jurisdiction Over Military Court Cases


R. Chuck Mason
Legislative Attorney

Military courts, authorized by Article I of the U.S. Constitution, have jurisdiction over cases involving military servicemembers, including, in some cases, retired servicemembers. They have the power to convict for crimes defined in the Uniform Code of Military Justice (UCMJ), including both uniquely military offenses and crimes with equivalent definitions in civilian laws. For example, in United States v. Stevenson, military courts prosecuted a retired serviceman for rape, a crime often tried in civilian courts.

The military court system includes military courts-martial; a Criminal Court of Appeals for each branch of the armed services; and the U.S. Court of Appeals for the Armed Forces (CAAF), which has discretionary appellate jurisdiction over all military cases. With the exception of potential final review by the U.S. Supreme Court, these Article I courts handle review of military cases in an appellate system that rarely interacts with Article III courts.

Criminal defendants in the Article III judicial system have an automatic right to appeal to federal courts of appeal and then a right to petition the Supreme Court for final review. In contrast, defendants in military cases typically may not appeal their cases to the U.S. Supreme Court unless the highest military court, the CAAF, had also granted discretionary review in the case.

Companion bills introduced in the 111
th Congress, the Equal Justice for Our Military Act of 2009 (H.R. 569) and the Equal Justice for Our Military Personnel Act of 2009 (S. 357), would authorize appeals to the U.S. Supreme Court for all military cases, including cases that the CAAF declined to review. The House passed a similar measure, H.R. 3174, during the 110th Congress.


Date of Report: September 14, 2010
Number of Pages: 11
Order Number: RL34697
Price: $29.95

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Monday, September 27, 2010

“Don’t Ask, Don’t Tell”: A Legal Analysis


Jody Feder
Legislative Attorney

In 1993, after many months of study, debate, and political controversy, Congress passed and President Clinton signed legislation establishing a revised “[p]olicy concerning homosexuality in the armed forces.” The new legislation reflected a compromise regarding the U.S. military’s policy toward members of the armed forces who engage in homosexual conduct. This compromise, colloquially referred to as “Don’t Ask, Don’t Tell (DADT),” holds that “[t]he presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion which are the essence of military capability.” Service members are not to be asked about, nor allowed to discuss, their sexual orientation. This compromise notwithstanding, the issue has remained both politically and legally contentious. This report provides a legal analysis of the various constitutional challenges that have been brought against DADT; for a policy analysis, see CRS Report R40782, “Don’t Ask, Don’t Tell:” The Law and Military Policy on Same-Sex Behavior, by David F. Burrelli.

Constitutional challenges to the former and current military policies regarding homosexual conduct followed in the wake of the new 1993 laws and regulations. Based on the U.S. Supreme Court ruling in Bowers v. Hardwick that there is no fundamental right to engage in consensual homosexual sodomy, the courts had uniformly held that the military may discharge a service member for overt homosexual conduct. However, the legal picture was complicated by the Court’s 2003 decision in Lawrence v. Texas, which overruled Bowers by declaring unconstitutional a Texas law that prohibited sexual acts between same-sex couples. In addition, unsettled legal questions remain as to whether a discharge based solely on a statement that a service member is gay transgresses constitutional limits. Meanwhile, in Log Cabin Republicans v. United States, a federal district court held for the first time that DADT is unconstitutional on its face, but it is unclear whether this decision will stand if appealed.

In recent years, several Members of Congress have expressed interest in amending DADT. At least two bills that would repeal the law and replace it with a policy of nondiscrimination on the basis of sexual orientation—H.R. 1283 and S. 3065—have been introduced in the 111
th Congress. Other proposed legislation in the 111th Congress includes H.R. 4180, which would protect service members who disclose their sexual orientation to a member of Congress, and H.R. 4902, which would establish additional research, study, and reporting requirements for the Department of Defense (DOD) working group currently reviewing issues that may arise if DADT is repealed. The working group was established in February 2010 by Secretary of Defense Robert Gates, who simultaneously directed DOD to review regulations regarding DADT and to propose any changes that would allow DOD to “enforce the law in a fairer and more appropriate manner.” Based on this review, Secretary Gates announced revisions to the DADT regulations in March 2010 that will ease certain requirements for discharging service members pursuant to DADT. More recently, both the full House of Representatives and the Senate Armed Services Committee approved amendments to the 2011 defense authorization bill (H.R. 5136; S. 3454) that would repeal DADT if certain conditions are met. .


Date of Report: September 15, 2010
Number of Pages: 16
Order Number: R40795
Price: $29.95

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Community Oriented Policing Services (COPS): Current Legislative Issues


Nathan James
Analyst in Crime Policy

The Community Oriented Policing Services (COPS) program was created by Title I of the Violent Crime Control and Law Enforcement Act of 1994 (P.L. 103-322). The mission of the COPS program is to advance community policing in all jurisdictions across the United States. The Violence Against Women and Department of Justice Reauthorization Act of 2005 (P.L. 109-162) reauthorized the COPS program through FY2009 and changed the COPS program from a multigrant program to a single-grant program.

Legislation has been introduced in the 111
th Congress that would reauthorize the program through FY2014 along with reestablishing COPS as a multi-grant program. This report provides an overview of issues Congress may consider when taking up legislation to reauthorize the COPS program.

As Congress deliberates the future of the COPS program, there are several issues it might choose to consider, including the following: 
  • Given current trends in violent crime and research findings on the ability of additional law enforcement officers and COPS grants to reduce crime, should Congress consider changing the focus of the COPS program away from providing grants to hire additional officers and toward providing grants to support law enforcement’s operations? 
  • Did the COPS Office meet its goal of placing 100,000 new officers on the street? What does this mean for oversight of the program? 
  • Are hiring grants a cost-effective way of combating crime? 
  • Should Congress eliminate or modify the limit on the maximum amount that can be awarded for hiring grants? 
  • Should Congress eliminate or modify the requirement that half of the total appropriation for hiring grants be awarded to small law enforcement agencies and the other half be awarded to large law enforcement agencies? Also, should Congress eliminate or modify the requirement that each state receive at least 0.5% of the total appropriation for hiring grants? 
  • Are there structural and/or programmatic overlaps between the COPS Office and the Office of Justice Programs (OJP)? If so, would it be more efficient for OJP to oversee the COPS program?
  • Should funding for the COPS program be appropriated as currently authorized in statute?


Date of Report: September 15, 2010
Number of Pages: 46
Order Number: R40709
Price: $29.95

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The Marines’ Expeditionary Fighting Vehicle(EFV): Background and Issues for Congress


Andrew Feickert
Specialist in Military Ground Forces

The Expeditionary Fighting Vehicle (EFV) is an armored amphibious vehicle program that originated two decades ago to replace the 1970s-era Amphibious Assault Vehicle (AAV). Like current AAVs, the EFV is designed to roll off a Navy amphibious assault ship, move under its own power to the beach, and cross the beach and operate inland. The EFV has experienced a variety of developmental difficulties, resulting in significant program delays and cost growth. The EFV is currently in its second systems design and development (SDD) phase attempting to improve the EVF’s overall poor reliability and performance that it demonstrated during its 2006 operational assessment. If the EFV passes the current SDD in early 2011, it is expected to begin initial production if DOD has not cancelled the program and if it is fully funded.

The improvised explosive device (IED) threat that has plagued operations in Iraq and Afghanistan was not envisioned in 1988 when the EFV program was initiated. The EFV’s low ground clearance and flat bottom make it particularly vulnerable to IEDs; this has raised congressional concern that the EFV, as currently designed, would provide inadequate protection to transported Marines. Another change to the battlefield is the proliferation of longer-ranged, shore-based, antiship cruise missiles (ASCMs) which put the Navy’s amphibious ships disembarking EFVs at their 25-mile operating limit vulnerable to attack.

These battlefield evolutions, as well as the EFV’s program delays and rising costs, and the decision to acquire only 573 vehicles (the original requirement was 1,025) have resulted in many defense experts and officials questioning the need for the EFV. Although some question the EFV’s relevance, the General Accountability Office (GAO) reported that the EFV passed its December 2008 Critical Design Review (CDR) and, with 94% of the system’s design models releasable, that EFV’s critical technologies were mature and its design is stable. The EFV is currently undergoing operational testing, and the Marines should receive the final two prototypes by October 2010 with testing scheduled to run through late January 2011. If the EFV is cancelled, there are possible alternative solutions, including upgrading current AAVs as well as exploring the adaptability of candidate vehicles being considered under the Marine Personnel Carrier (MPC) program for amphibious assault operations. The DOD, the Navy, and the Marines are currently conducting separate studies examining Marine Corps roles and missions, force structure, and equipment, and the results could have a significant impact on the future of the EFV.

Congress has expressed its concern over the EFV’s vulnerability to IEDs during a number of hearings. The House and Senate Armed Services Committees have recommended fully funding the President’s FY2011 EFV budget request of $242.8 million for Research, Technology, Development, and Evaluation (RDT&E) funds. The Senate Appropriations Defense Subcommittee has reportedly recommended providing funding to cancel the EFV program. The Subcommittee recommended cutting $204 million from the FY2011 $243 million budget request and added $185 million to cancel the program. If the EFV program is continued, the program will require $866.7 million in research and development and $10.226 billion in procurement funding for a total of $11.163 billion to complete the program and field 573 EFVs. Each EFV is expected to cost about $24 million apiece.

Potential issues for congressional consideration include the vulnerability of the Navy’s amphibious fleet and EFVs, the potential ramifications if the EFV fails its second round of operational testing, and what role to take in ongoing Marine Corps studies that could be used to determine the fate of the EFV program.



Date of Report: September 17, 2010
Number of Pages: 14
Order Number: RS22947
Price: $29.95

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Cluster Munitions: Background and Issues for Congress

Andrew Feickert
Specialist in Military Ground Forces

Paul K. Kerr
Analyst in Nonproliferation


Cluster munitions are air-dropped or ground-launched weapons that release a number of smaller submunitions intended to kill enemy personnel or destroy vehicles. Cluster munitions were developed in World War II and are part of many nations’ weapons stockpiles. Cluster munitions have been used frequently in combat, including the early phases of the current conflicts in Iraq and Afghanistan. Cluster munitions have been highly criticized internationally for causing a significant number of civilian deaths, and efforts have been undertaken to ban and regulate their use. The Department of Defense (DOD) continues to view cluster munitions as a military necessity but has instituted a policy to reduce the failure rate of cluster munitions to 1% or less by 2018.

There are two major international initiatives to address cluster munitions: the Convention on Cluster Munitions (CCM) and negotiations under the UN Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons (CCW). The Obama Administration has reiterated U.S. opposition to the CCM, which entered into force August 1, 2010, but is participating in negotiations regarding cluster munitions under the CCW.



Date of Report: September 16, 2010
Number of Pages: 11
Order Number: RS22907
Price: $29.95

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U.S. Periods of War


Barbara Salazar Torreon
Information Research Specialist

Many wars or conflicts in U.S. history have federally designated “periods of war,” dates marking their beginning and ending. These dates are important for qualification for certain veterans’ pension or disability benefits. Confusion can occur because beginning and ending dates for “periods of war” in many nonofficial sources are often different from those given in treaties and other official sources of information, and armistice dates can be confused with termination dates. This report lists the beginning and ending dates for “periods of war” found in Title 38 of the Code of Federal Regulations, dealing with the Department of Veterans Affairs (VA). It also lists and differentiates other beginning dates given in declarations of war, as well as termination of hostilities dates and armistice and ending dates given in proclamations, laws, or treaties. This report will be updated when events warrant. For additional information, see CRS Report RL31133, Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications, by Jennifer K. Elsea and Richard F. Grimmett.


Date of Report: September 14, 2010
Number of Pages: 10
Order Number: RS21405
Price: $29.95

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