Now that my latest project on the continuing relevance of intermediate military tribunals is just about ready for submission this fall (just some proofreading and Bluebooking), I can spend a little more time musing about military law, history, and society. I have become increasingly interested in the history, and constitutionality, of military jurisdiction over service members, particularly in non-military specific offenses in the absence of a declared war. This led me to Sir William Blackstone’s monumental work on the common law.
Parker v. Levy is a seminal decision in military law that I have written about in previous posts. That decision upheld two rather sweeping criminal statutes that criminalize, by way of a conviction in a federal court, any conduct by a military officer or enlisted person that other military officers think is unbecoming of an officer and a gentleman (gentlewoman), or is prejudicial to good order and discipline or otherwise brings discredit to the armed forces. For those trained in the law or eerily erudite in the law absent training, these statutes appear unconstitutionally vague. But in his majority decision, then-Justice Rehnquist wrote that “the proper standard of review for a vagueness challenge to the articles of the Code is the standard which applies to criminal statutes regulating economic affairs. I have since wondered what that meant, and whether this view is worth re-assessing.
The Supreme Court of the United States—and thus the federal judiciary—treats military law as sui generis, a thing unique unto itself. In the rare grant, it generally substantially defers to the executive branch outside of questions of jurisdiction. I have often wondered why. The Court hears a wide range of complex cases and, at times, from specialized communities. But the military is treated differently. I wonder if the evolution of same sex rights at the Court may tell us why.
Over the past few months, I have explored—at least the initial contours of—the question of military jurisdiction over service members for the commission of civilian offenses committed within the continental United States during the absence of a declaration of war by Congress. This exploration has led to this final post that introduces the history relied upon by the Supreme Court of the United States in O’Callahan v. Parker (1969) to limit military jurisdiction, and the Court’s subsequent rejection of this history in Solorio v. United States (1987).
Over a series of posts, I have explored the jurisdiction of the military to prosecute American citizens for non-military offenses within the United States, while civilian courts are open for business and in the absence of a declaration of war. Previous posts highlighted the current state of the law; status alone subjects service members to court-martial for any alleged offense. In this penultimate post, I hope to highlight some differences between military and civilian prosecution. While doing so, it is notable that this separate system is not specifically designed to govern those currently serving; it is designed to govern you or a treasured loved one…
My last post on the Supreme Court’s establishment of the service connection requirement in O’Callahan v. Parker ran long, so I concluded that post without discussing Solorio v. United States, the Supreme Court decision less than twenty years after O’Callahan that abandoned the service connection requirement and in its place adopted a “status” test. Regardless of the type of offense, where committed, or nexus to military service and mission, one’s status alone as a service member granted the military jurisdiction to prosecute. Before summarizing some of the similarities and differences between military and civilian prosecution in a subsequent post, in this post I discuss how the Rehnquist Court retreated from requiring the military to demonstrate a military nexus between the offense and military service in order to prosecute a service member within the military justice system.
In my last post, the first in a series looking at the legal history behind the ability of the American military to prosecute American citizens for civilian offenses committed within the United States during peacetime (absence of declaration of war), I summarized the evolution of statutes governing military criminal jurisdiction. This summary demonstrated, or at least took note of, the fact that for most of American history, the military retained limited jurisdiction to prosecute such offenses, if at all. In this post, I’d like to turn to the evolution of today’s legal landscape, as framed by the Supreme Court. This history tells us how we reached the point of one’s status as a military member, alone, subjected him or her to a criminal justice system that deprives him or her of substantial constitutional rights, even when facing prosecution for traditionally civilian offenses, within the United States, during time of peace when civilian courts are open for business.
Today, rarely anyone questions the military’s ability to prosecute a service member for any state or federal (military or civilian) offense simply due to his status as a member of the military. This is so regardless of where the offense occurred, who it involved, or whether there was any discernable (however remote) connection to military duty. It also does not matter whether the service member has been previously prosecuted in state court, or will be subsequently prosecuted in such court. This is an extraordinary deference by the Court and Congress during a period of equally extraordinary reverence for the military. It is also completely divorced from American history and experience—And may also be unconstitutional.
Modern day accusations of using the military for social experimentation appear unprecedented to modern readers. But this is just another example of the ever growing divide between the civilian population and military society. Since the early days of the Republic, military society has grappled with the most difficult social issues of the day well in advance of the broader public. Unlike broader society, the need for discipline forced the difficult questions debated in broader society into courts-martial. These stories have largely been relegated to a few academically minded military members. And our holistic understanding of our history has suffered. Until now. I am truly honored to review Dr. Chris Bray’s recent excellent book, Court-Martial: How Military Justice Has Shaped America from the Revolution to 9/11 and Beyond.
My recent transition from prosecution to defense has prompted some reflection on the role of the military defense counsel within the military justice system. Students of state and federal criminal procedure and constitutional law know that it was not until 1963 that the Supreme Court of the United States declared the Sixth Amendment guaranteed an indigent individual the right to representation by a court appointed attorney and the Fourteenth Amendment extended that right to state judicial systems. The evolution of the right to an appointed attorney in the military justice system, without regard to indigence, however, has received far less scholarly and journalistic—let alone judicial—attention. And it’s a story worth telling.