Both the Supreme Court of the United States and military courts have struggled to formulate an adequate constitutional framework for military society. The simplest explanation may be that these courts have so far failed to articulate an appropriate legal framework that works in military society. This focus is on the “law side” of the equation. There is certainly much truth to this statement. But perhaps there should be more focus on the nature of the military society courts are to oversee. Perhaps practitioners and scholars have failed to properly describe the particular military society at issue.
John T. Willis authored three compelling articles in the early to mid-1970s, as an active duty judge advocate, examining CAAF’s origins and its struggles to establish a constitutional philosophy, and called for continued attention to the military’s supreme court. His first article, The United States Court of Military Appeals: Its Origin, Operations and Future, was “largely descriptive, outlining the power and jurisdiction of the United States Court of Military Appeals [CAAF] and demonstrating the interaction between congressional enactment, executive implementation and judicial decisionmaking.” Calling CAAF the “Supreme Court of the Military,” Willis promulgated three basic observations that any “reasonable discussion of military justice must recognize:”
It goes without question in military legal circles that the Grand Jury clause of the Fifth Amendment does not apply in military criminal trials, the vast majority of which are prosecutions of civilian, rather than military-specific crimes. In fact, the answer one most often hears is, “The Constitution expressly excludes the Grand Jury clause from the military.” Instead, military members facing more than a year in confinement are statutorily entitled to what is referred to as an Article 32 hearing. Upon closer inspection, however, one finds that this “express” exclusion really comes down to the Supreme Court’s (“the Court”) interpretation of the placement a comma.