The Center for Law and Military Policy conducts research and produces educational material in order to strengthen the legal protections of service members and veterans. Our work helps to close the civil-military gap, the civilian population’s limited understanding of military life and culture. Less than 1% of the country are in the military in any form. The growing divide between the two communities, civilian and military, is harmful and inconsistent with America's founding values. Through rigorous scholarship and timely educational programs, the CLMP seeks to bridge the gap between service member and civilian, deepening understanding, appreciation, and consideration on both sides.
The Feres Doctrine stems from the United States Supreme Court case of Feres v. United States, decided in 1950, which prohibited service members from filing civil lawsuits under any circumstances. The rule is categorical, applying across-the-board to any harm a service members sustains. While there is no question civil suits should not stem from combatant activities, the rule also applies to non-combat injuries such as sexual assault and medical malpractice. Under the Feres Doctrine, all suits filed by service members are immediately dismissed prior, a rule that closes the courthouse door to military sexual trauma survivors and other badly treated service members. The result is that perpetrators are given legal immunity while injured parties are "re-victimized."
It is time to change the Feres Doctrine, which has been national policy for nearly 70 years. As Chief Justice Earl Warren said, "Our citizens may not be stripped of basic rights simply because they have doffed civilian clothes." Blanket immunity for military officials should be replaced with a more nuanced approach, one which preserves combat readiness while honoring the victims of egregious misconduct and inexcusable neglect.
To learn more, see the articles below by Chief Executive Officer Dwight Stirling and Vice President of Policy Dallis Warshaw. They have written on the topic in a variety of publications.
A rape subculture exists when the number of sexual assault incidents exceeds the norm, victims are frequently blamed for their assaults, and internal forces disincentive reporting to authorities. The Department of Defense estimates that approximately 15,000 service members were sexually assaulted in 2016, yet only 143 cases resulted in a conviction for a sexual assault related offense. During military service, female service members are oftentimes not seen as part of the collective group and, therefore, acceptable targets of sexual violence. A female service member’s outsider status is accentuated by the military’s gendered vocabulary, its "masculinized" culture, and its emphasis on enduring pain in silence.
There is a rape subculture that exists in the military that will not be extinguished without increased accountability, such as through the elimination of the Feres Doctrine (discussed above). To read the article in Los Angeles Lawyer magazine written by Dwight Stirling and Laura Riley click here.
The term “civil-military gap” refers to the divide that exists between those that have served in the armed forces and those that have not. With less than 1% of the population currently serving in an all-volunteer force, and military experience in Congress on the decline, this “gap” is wider than ever. The RAND Corporation found in 2007 that this “gap” reduces support for defense budgets, increases the difficulty of recruiting qualified candidates, reduces public support and, ultimately, undermines the important principle of civilian control of the military.
One of the most powerful ways to connect with others is through the art of storytelling. Therefore, in order to combat this civilian-military gap, the Center for Law and Military Policy has developed a podcast titled “A World Apart,” hosted by Dallis Warshaw, our Vice President of Policy. Listeners will hear stories from those that served and learn about service-related issues, all from a civilian perspective. For updates, be sure to follow us on LinkedIn, Twitter and Facebook.
The California National Guard does not require that its attorneys be members of the California State Bar, a practice that appears by all accounts to be erroneous and illegal. These unlicensed militia attorneys perform a general counsel role, advising senior state government personnel on a broad range of state matters, including environmental compliance, privacy issues, and the use of force against California citizens. They also represent state militia employees accused of criminal misconduct and provide direct legal assistance to those who have personal legal problems, advising on everything from family law to landlord/tenant disputes to garden variety consumer law matters to state and federal tax problems. Yet, these unlicensed attorneys have not passed the California Bar Exam, cleared the State Bar's moral character evaluation, or registered with the State Bar.
This practice of unlicensed attorneys providing legal advice to public officials and militia employees must end, replaced with more robust civilian oversight of the California National Guard. To read the article in the Western State University Law Review written by Dwight Stirling and Alex Lindgren click here.
Defense attorneys in the California National Guard's JAG Corps jeopardize their clients rights by switching back and forth to government-side positions without proper ethical screening. The result of this loose and informal "rotation process" to that client confidences are comprised and faith in California's legal corps is compromised. More stringent measures should be implemented to preserve the integrity of the process.
To read the article in the Boston University Public Interest Law Journal written by Dwight Stirling and Corey Lovato click here.
In 2009, the Department of Veterans Affairs announced an ambitious goal to end veteran homelessness within 5 years, yet Orange County is home to a growing number of homeless veterans. The “housing first” model has proven successful, because treating other conditions, such as mental illness and drug addiction, is much easier when an individual is sheltered. We must continue the work to end veteran homelessness – no one who has served this country should be living life on the streets.
In response to concerns about the overall well being of our nation’s veterans as they reintegrate into civilian society, the California Legislature created a specialized court known as Veterans Treatment Court. It states that a person charged with a criminal offense who is a present or former member of the military and suffers from military sexual trauma (MST), traumatic brain injury (TBI), post-traumatic stress disorder (PTSD), substance abuse, or mental health disorders as a result of service may be ordered into treatment instead of incarceration. If the defendant does what is required under the statute, the court may restore the veteran “to the community of law abiding citizens.” We are working to educate the legal community on these life-changing programs and encourage the implementation of similar programs in each state across the country.
With President Trump considering use of state National Guard troops to deport illegal immigrants, it is essential to understand which rules, federal or state, govern National Guard personnel. The scenario raises the specter of a conflict of law situation. What if the President and a state governor issue differing orders? Which one is legally binding? The unequivocal answer is the governor’s. Pursuant to the power-sharing arrangement outlined in the Second Militia Clause, governors are the commanders-in-chief of guard personnel serving in a state status. Possessing the power to command, governors—along with state legislatures—possess the power to determine which rules bind the troops under their control, an auxiliary power. Presidential orders, therefore, are not automatically binding on state guard members; in fact, they have legal force only if the respective state authorities afford them such force. Absent state-level approval, instructions emanating from federal military sources are propositional, able to ignored without legal consequence. To read the article in the Texas Review of Law and Policy written by Dwight Stirling and Corey Lovato click here.