Court of Appeals for the Armed Forces

6/11/2026

One to watch.

No. 26-0170/AR. U.S. v. Rene D. Alfaro. CCA 20220282. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

Whether the Army Court incorrectly held that Mil. R. Evid. 513 is absolute and a military judge must ignore exculpatory materials that he examines in camera.

Supplement brief No reply brief
Appellant's brief Appellee's brief Appellant's reply brief

ACCA opinion.

5 Comments

Phil Cave link

6/14/2026 10:48:40

You seem to be saying that Congress gives a statutory gift of counsel—or other aspects of the BoR, however circumscribed. That doesn't work as an argument against applying the Bill of Rights to service members. The Fifth carves service members out of the grand jury requirement—and only that one—inside the same amendment that guarantees due process and self-incrimination protection. Recall that Miranda itself pointed to the military: the UCMJ had long warned suspects against self-incrimination, and military tribunals had already proscribed denying counsel during interrogation—the Court cited both as reassurance the rules would not hobble law enforcement. Miranda v. Arizona, 384 U.S. 436, 489 & nn.62–63 (1966). The protection ran ahead of the civilian one, not behind it. The Framers showed they knew how to exclude us from a specific right when they meant to. One express exception forecloses reading the rest out by implication, does it not?

So the SCOTUS answer to military necessity doesn't switch the right off; it calibrates how the right applies. Aren't those different things? Take speech: Parker and Glines don't say troops have no First Amendment rights—they say the rights are more circumscribed because of the mission, fitted to the necessity of prohibiting disrespectful speech that could harm good order and discipline. But circumscribed is not erased. The right still attaches, which is the whole point.

I don't want to turn this into a sky-is-falling argument, but follow the logic: if statutory grace plus necessity can switch a right off, does the Fourth Amendment fall too? CAAF still holds that the Fourth applies to service members—what's narrowed is the remedy. Lattin is the example: CAAF, over a two-judge dissent, built its own M.R.E. 311 test requiring the social cost of suppression to be weighed on a case-by-case basis, narrowing the exclusionary remedy and splitting with the geographic circuits. United States v. Lattin, 83 M.J. 192 (C.A.A.F. 2023). But that proves my point: the right exists; the application is what's been pared back. Conceding that the military can constrict how a right operates is a long way from conceding that the right was never there.

Congress Acted?

6/17/2026 19:39:15

I do not think the 4th Amendment automatically applies. I do not think CAAF has jurisdiction to determine applicability of the Constitution in military - other than an as-applied standard. The reaches of the Constitution is determined by Congress implemented in stature, or the President can choose through executive order to confer rights upon military accused.

Congress Acted?

6/17/2026 19:41:37

Apologies for the fat-thumbed typos.

Signed,
A Middle-Aged Person Who Still Phone Types with the Thumb

Anonymous

6/19/2026 09:48:49

Addressing in reverse order:

1. Article 67(c) lays out CAAF's authority to act. CAAF may act on decisions where the CCA affirms or sets aside a finding/sentence as correct in law. Law includes the Constitution. If Congress wanted to limit CAAF to statutory law, it could have said so. It did not. See also Article 59(a)

2. None of the Constitution automatically applies for anyone until a court with authority says it applies and the relevant authorities obey the judgment of that court. The Fourth Amendment could have applied to border searches. The text of the Amendment says nothing of its application within the US but at the border. It does not apply because a Court said so. And the relevant authorities have followed that judgment.

Nathan Freeburg

6/17/2026 23:20:10

I get that you’re saying that the CMA was wrong in Jacoby, Presumably you would say that Burns v. Wilson should be read as limited to an as applied standard (although the decision certainly seems to assume that service members have Constiuttional rights, albeit circumscribed), but you have to deal with the Court of Appeals for the D.C. Circuit’s decision in Anderson v. Laird directly applying the First Amendment’s establishment clause to service members (essentially applying strict scrutiny to claims of military necessity). S.C. Cert denied. That would appear to be the law.

CAAFlog

Court of Appeals for the Armed Forces

Leave a Reply.

Archives

Categories