I find it interesting and at times necessary to revisit an "old" piece for current relevance. With that in mind,
Gregory E. Maggs, Judicial Review of the Manual for Courts-Martial. 160 Mil. L. Rev. 96 (1999).
The Court of Military Appeals long ago described the Manual as the military lawyer’s “Bible.” Anyone familiar with the military justice system could agree with this characterization. Judge advocates constantly must turn to the Manual for direction. Indeed, attempting to conduct a court-martial without referring to the Manual’s numerous rules would be impossible. Yet, if the Manual has the attributes of a holy scripture, then *98 the military courts have seen more than a few heretics. In well over a hundred-reported instances, defense and government counsel have asked courts to invalidate or ignore Manual provisions. The courts themselves have not entirely kept the faith; over the past few decades, they have refused to enforce the Manual in dozens of cases.
You can even buy a copy from Walmart. In United States v. Hemp, the CMA said
The Manual is the "Bible" for the military lawyers, and if they were to read its requirements and inspect the form of specifications in the appendices they would undoubtedly arrive at a conclusion that the issue framed by the specification was confined to one specific intent. Another fair assumption would be that if the Government intended to rely on a specific type of intent other than intent not to return, the appropriate form would be used. If counsel were lulled into that belief, and it would not be unreasonable, by the long established procedure and the contents of the Manuals, there would be no occasion to make a motion to plead the offense more particularly. Neither would there be an expectation that, by failing to demand more details, the accused would be required to defend on an issue different from the one encompassed within the pleadings.
United States v. Hemp, 1 U.S.C.M.A. 280, 3 C.M.R. 14, 19-20 (1952). In Drain, the view expanded.
It has been argued before us that the failure to object to the offer of the deposition at the trial precludes any present appellate contention that it was inadmissible. This Court has, from the first, emphasized that the Manual for Courts-Martial constitutes the military lawyers' vade mecum -- his very Bible. United States v.Hemp, 1 USCMA 280, 3 CMR 14. Since the failure to object may well have resulted solely from reliance by the defense on what Government counsel now contend is the plain and only meaning of the Manual phrasing in question -- paragraph 117a -- we are quite indisposed to penalize the accused by holding that, by his failure to object, he waived his right to urge subsequently that the deposition was inadmissible.
United States v. Drain, 4 U.S.C.M.A. 646, 16 C.M.R. 220, 222 (1954). You might consider this quote from Frank Fedele, The Manual for Courts-Martial--Its Legal Status and Effect of Decisions of the United States Court of Military Appeals. 73 Fordham L. Rev. 336 (1954),
The decisions of the United States Court of Military Appeals have had a sobering effect upon the concept that the Manual for Courts-Martial, as the "bible" of military law, was infallible. While the Manual was put on the same effective legal level as the Uniform Code, when not inconsistent therewith, and thus given recognition as a source of military law without distinguishing between the adjective and substantive provisions therein, at the same time, the notion that every provision therein is absolute law has been completely shattered.
Anyway, the article is worth the re-read as a taxonomy of if, when, and how to challenge an R.C.M.
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