John M. Bickers (Northern Kentucky University – Salmon P. Chase College of Law) has posted A Tale Told in Reverse: Military Retirees and the Benefit of Clergy on SSRN. Here is the abstract:
This article compares two quite dissimilar things: continuing U.S. court-martial jurisdiction over military retirees with the English doctrine of the benefit of clergy. Each began as a response to a problem related to a particular set of issues. Over the centuries, both legal systems experienced changes that drastically altered the original concern. While the scope of American court-martial jurisdiction shrank over the centuries at the hands of both Congress and the Supreme Court, the benefit of clergy expanded to entirely new settings. But the two doctrines share this critical feature: each reached the point where it had become logically incoherent. In the 19th century, the English Parliament finally recognized the problem and simply abolished the benefit of clergy. This article argues that court-martial jurisdiction over military retirees is no more sensible today than the benefit of clergy was in its final days, but with a frightening twist. Because of the existence of unique features of military law such as the criminalization of criticism of the President, such jurisdiction now poses a grave threat to the continued orderly operation of a political system in which many military retirees participate. The President’s recent denunciation of a sitting Senator, combined with a threat by the Defense Department to recall him to duty to punish him for his political statements show that this jurisdiction is not merely a quaint survivor of an earlier time but a danger to liberty.