The Military Necessity Doctrine

In his 1972 article, John T. Willis examined CAAF’s institutional “search for a constitutional philosophy.”[1] His was “primarily interested in focusing on the Court of Military Appeals as an institution in the belief that its strengthening will assure constitutional due process for those who serve their country in the armed services and will improve military justice in general.”[2] In an upcoming issue of the University of Memphis Law Review, I aim to rekindle this conversation by studying the development of what I describe as the court’s “military necessity doctrine.”

In a previous post, I mentioned that inmates, students, and members of the military do not receive the full panoply of constitutional protections afforded their fellow citizens. These three communities, according to the Supreme Court of the United States (“Court”), require this different application of the Constitution because of the overriding need for discipline and order. Though the Court is an active participant in the inmate and student communities, I propose that its near total absence from the military community is due to the existence of CAAF. The Court has always hesitated to step into military constitutional issues. John O’Connor coined the term “military deference doctrine” to describe the Court’s relationship with the military.[3] Even during the period of the Court’s most patent skepticism of military justice and military legal institutions, it only sought to limit military jurisdiction rather than wade into the details of how the Constitution interacts with military society. Thus, I propose that the Court treats the military as a “51st state,” one it does not quite understand and so entrusts the interpretation of its criminal law and procedure to this specialized court.

CAAF has worked through its constitutional philosophy largely on its own. Though it initially grounded service member rights in the military’s criminal code known as the Uniform Code of Military Justice (“UCMJ”), rather than the Constitution itself, Judge Homer Ferguson thrust CAAF into the constitutional arena by announcing that the service member rights are grounded in the Constitution, not the UCMJ, and that it will apply unless it is “expressly or by necessary implication excluded.” Thus began the court’s long struggle to breathe life into this new doctrine. Over time, CAAF settled on the principle that the Constitution (and the Court’s interpretations of it) applies to the military unless there is a reason—a military necessity—for a different rule.

My article studies the court’s prior decisions to uncover patterns in successful (and unsuccessful) assertions of military necessity. It observes that CAAF has implicitly developed what can be termed the “military necessity doctrine.” To date, this doctrine encompasses three overarching themes and six examples of military necessity that, when properly asserted, justify a different application of a constitutional protection. These observations may not only be useful to practitioners at the trial and appellate level, but to CAAF itself as it supervises the development of military criminal law. The article concludes by proposing a framework to be used to determine when the Constitution must give way to military necessity—and to what extent it must do so.

This article has two principle aims. The first is to pick up the conversation left largely untouched since Willis’ study. The second, and perhaps larger, aim is to establish CAAF as an important legal institution in need of continuous study. I think I’ve succeeded in the first; I hope subsequent articles will demonstrate success in the second.

But let’s not get too far ahead of ourselves. I am very excited to work with Gregory Wagner, Carl Lewis, and the rest of the staff at the University of Memphis Law Review on the publication of my article on CAAF and the military necessity doctrine.


[1] John T. Willis, The Constitution, The Court of Military Appeals, and the Future, 57 Mil. L. Rev. 27, 27 (1972) (“In this article [the author] examines the Court’s treatment of constitutional issues and its search for a constitutional philosophy.”).

[2] Id.

[3] John F. O’Connor, The Origins and Application of the Military Deference Doctrine, 35 Ga. L. Rev. 161 (2000).

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