>>168 (Q bread)
>https://www.whitehouse.gov/presidential-actions/2018-amendments-manual-courts-martial-united-states/
Goes into effect on
>January 1, 2019
>"Sec. 12. In accordance with Article 33 of the UCMJ, as amended by section 5204 of the MJA, the Secretary of Defense, in consultation with the Secretary of Homeland Security, will issue nonbinding guidance regarding factors that commanders, convening authorities, staff judge advocates, and judge advocates should take into account when exercising their duties with respect to the disposition of charges and specifications in the interest of justice and discipline under Articles 30 and 34 of the UCMJ. That guidance will take into account, with appropriate consideration of military requirements, the principles contained in official guidance of the Attorney General to attorneys for the Federal Government with respect to the disposition of Federal criminal cases in accordance with the principle of fair and evenhanded administration of Federal criminal law."
We studied this when it was signed.
Today we examine the word "nonbinding".
By saying "nonbinding", the Executive branch delegates authority to the Judicial branch (Military commanders acting in a quasi-Judicial-branch role) and leaves certain determinations to the discretion of those Tribunals.
If the guidance were "binding", I believe that would leave a legal loophole for defendants in Tribunal cases to appeal their judgments to the Supreme Court, as a case could be made that executive branch authority usurped judicial branch authority.
Therefore, nonbinding; up to commanders' discretion.
Would appreciate lawfag comments if any.