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.
For readers familiar with Article 32 and its recent amendments, feel free to skip to the next paragraph. For non-military lawyers, or even non-lawyers, a little background may be helpful. For nearly sixty years prior to the enactment of the Uniform Code of Military Justice (UCMJ, the military’s “criminal” code) in 1950, no one questioned the “fact” that the Constitution precluded the Grand Jury clause from applying to the military. Consequently, the when Congress enacted the UCMJ, it included 10 U.S.C. § 832, known by military practitioners as Article 32. This Article requires a hearing in any case headed to a general court-martial (GCM), which may sentence a service member to more than a year in confinement. In fact, a service member may be sentenced to death at a GCM under certain circumstances. The purpose of an Article 32 hearing historically was to be a full, fair, and thorough investigation by an investigating officer to determine whether there were reasonable grounds to proceed with the charges. In what I believe to be largely due to controversy over the treatment of certain categories of witnesses in these hearings in the various services, Article 32 was recently amended in order to make it even more like a grand jury. As amended late in December 2014, the purpose of the new Article 32 is to determine whether there is probable cause to proceed, mirroring the standard applied in grand juries. However, unlike a grand jury, there is no secrecy and, rather than a panel of individuals, the decision is made by a single individual now known as a Preliminary Hearing Officer (PHO). Continuing the older tradition of the Article 32, the military accused is still entitled to be present and to present evidence in mitigation.
As mentioned in an earlier post, my recent research into the Court of Appeals for the Armed Forces’ (CAAF’s) “military necessity doctrine” included examining the Supreme Court of the United States’ considerable hands-off treatment of how the Constitution applies to the military community, if at all. While doing so, a footnote in a dissenting opinion piqued my interest. Dissenting in Solorio v. United States, Justice Marshall made the following comment on the Court’s interpretation of the grand jury requirement in relation to the military:
The language of this exception could be understood to mean that “cases arising in the land or naval forces,” as well as in the militia, are only excepted from the requirement of grand jury indictment or presentment “in actual service in time of War or public danger.” This Court, however, has interpreted the “time of war” provision as referring only to cases arising in the militia, not the land or naval forces. I am not convinced this reading of the Fifth Amendment is correct, but need not rely on a different interpretation here.
The Fifth Amendment to the United States Constitution states, in full:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject to the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Even without relying on traditional principles of interpretation, it is at least safe to say that the exclusion may not be as “express” as conventional wisdom dictates. In fact, it was a decision by the Court in 1895, rather than the constitutional text itself, in which this “express” exclusion originates.
On July 10, 1893, David Sayre, a civilian, accepted an appointment by the Secretary of the Navy to serve as a paymaster’s clerk on a ship and two other shore-based locations. This appointment included agreeing to subjecting himself to “such laws, regulations and discipline of the navy as are now in force, or that may be enacted by Congress, or established by other competent authority. . . .” Exactly three months later, Sayre was placed under arrest on October 10th and held in custody. A copy of the charges, which included embezzlement, was served on him on October 26th. At his GCM, Sayre’s counsel made numerous objections, including that the court had no jurisdiction over Sayre because he was a civilian. The court overruled the objection, convicted him of embezzlement, and confined him to prison at the navy yard in Boston, Massachusetts, for two years.
A federal judge subsequently issued a writ of habeas corpus to the commander who ordered the court-martial and, after a hearing, ordered Sayre discharged from custody. In his opinion, the judge stated that “Sayre was unlawfully restrained of his liberty, because detained under a sentence to an infamous punishment, not in time of war or public danger, without indictment or trial by jury, in violation of the Fifth Article of Amendment of the Constitution of the United States, ‘but without prejudice in any other respect to the sentence of the court martial.’” The commander appealed to the Court. Thus, the issue of the applicability of the grand jury requirement to the military was squarely before it.
The Court disagreed. It acknowledged that the lower court’s interpretation was “grammatically possible.” However, it was “opposed to the evident meaning of the provision, taken by itself, and still more so, when it is considered together with the other provisions of the Constitution.” The Court then stated that the purpose of the clause was “to prevent persons, not subject to the military law, from being held to answer for a capital or otherwise infamous crime, without presentment or indictment by a grand jury.” Before turning to the Fifth Amendment specifically, the Court first noted that both Congress and the President, as Commander-in-Chief, have complete authority over the land and naval forces but only have authority over the militia when it is in federal service. Like Congress and the Commander-in-Chief, the Fifth Amendment, the Court reasoned, only applied to the militia when in federal service. Therefore, the “when in actual service in time of war or public danger” clause only applies to the militia, not the land and naval forces. To further support this “construction,” so “plain and indisputable,” the Court relied on a series of older decisions giving tremendous deference to military courts. It then concluded with an assertion of its complete hands-off philosophy. So long as the court-martial had jurisdiction over the person and the offense, and it acted lawfully in accordance with its regulations, its decision and the subsequent sentence could not be reviewed by civilian courts—period.
I am not sure this reasoning has stood the test of time and the evolution of constitutional law in the military community. In his 2000 study, The Origins and Applications of the Military Deference Doctrine, John O’Connor argued that the Court’s interaction with military law can be classified into three chronological periods: non-interference, patent skepticism, and professional deference. The period of non-interference, spanning from 1827 to 1953, was characterized as acquiescing to complete control over the military in the political branches. This might explain an arguably strained construction of the grand jury provision to meet that preferred outcome. Things have changed quite a bit since that period. In 1955, the Court ruled that courts-martial had no jurisdiction over civilians. That ruling appears to undercut much of the Court’s reasoning in Sayre. Also, the creation of CAAF and its determination that the Constitution applies unless there is a military necessity requiring a different rule may necessitate a re-evaluation of Sayre. If nothing else, the Sayre decision lacked any of the discussion, often found in more modern decisions, of principles of interpretation and legislative or constitutional history. All of these facts and developments in military law seem to undermine Sayre and conventional wisdom.
Whether to adopt the exact grand jury process used in civilian jurisdictions, or if military necessity requires a modified application (and if so, to what extent should the modification be), is an interesting topic for another day. However, the preceding discussion concerning a nearly 120 year old precedent largely unquestioned in military and civilian legal circles demonstrates the relevance, and importance, of military legal history to modern debate. And there is no shortage of modern debate concerning the application of military justice.
 This is a very summarized discussion of Article 32. For the interested reader, there is a good deal of commentary on this hearing. Over the life of this blog, articles I have found will be added to the bibliography.
 483 U.S. 435, 454 (1987) (Marshall, J., joined by Brennan, J., and, in all but the last paragraph, Blackmun, J.) (citations omitted) (emphasis added).
 For ease, I rely here on the comments in the editorial notes of the Lexis opinion detailing the facts of the case, rather than following the traditional practice of finding and citing the lower court opinion.
 Johnson v. Sayre, 158 U.S. 109, 114 (1895).
 Id. at 114-15.
 Id. at 115.
 Idl at 118.
 John F. O’Connor, The Origins and Application of the Military Deference Doctrine, 35 Ga. L. Rev. 161 (2000).
 Id. at 164.
 Id. at 166.
 Toth v. Quarles, 350 U.S. 11, 23 (1955). This ruling might have become a bit more complicated by relatively recent events. See United States v. Ali, 71 M.J. 256 (C.A.A.F. 2012) (examining Congress’s amendment to 10 U.S.C. § 802 re-granting court-martial jurisdiction over civilians accompanying an armed force in the field during a time of war or contingency operation.)
 Two particular texts I like, though certainly not exclusive, is Justice Scalia’s and Bryan Garner’s text, Reading Law: The Interpretation of Legal Texts, and Chief Judge Katzmann’s text, Judging Statutes, which includes a challenge to Justice Scalia’s approach to textual interpretation.
 One need only perform an online search of military justice news to become fully acquainted with the current debate on military criminal prosecutions.