I read an interesting law review article recently. Written by a prominent military justice scholar, it largely argued that military commanders should retain their current role in the military justice process.[1] It reminded me of the oft-articulated argument for maximizing the jurisdiction of military courts and commanders over all offenses committed by military members. A cornerstone of this argument is that the “military is different.” As such, its specialized needs require a separate criminal justice system. But an article[2] I reviewed while researching my own forthcoming article on the little known (outside the military) military’s highest court’s military necessity doctrine highlights the fact that this phrase, so often relied upon in support of the status quo, stood for the exact opposite proposition.

The argument typically goes like this. The Supreme Court has articulated that it is the primary business of the military to prepare to fight and win wars. Though the military justice system is designed to both ensure due process and promote good order and discipline, promoting good order and discipline trumps. To this end, civilian constitutional law and criminal procedure are not sufficient. A different standard must apply because of the overriding purpose of the military. In sum, the primary purpose of the military requires a separate criminal justice system with different standards of due process and procedure.

This argument relies on the Supreme Court’s decision in Parker v. Levy. In that case, Captain Howard Levy, a physician, refused to train members of the Army Special Forces (“Green Berets”) due to his opposition to the Vietnam War. His refusal resulted in a court-martial conviction for failure to obey a lawful order and for both conduct unbecoming an officer and an offense known as the General Article (engaging in conduct prejudicial to good order and discipline or conduct of a nature to discredit the armed forces). His appeal challenged the constitutionality of the two offenses that punish conduct unbecoming and conduct prejudicial to good order and discipline or service discrediting on the basis of being void for vagueness.

In upholding Captain Levy’s convictions, then-Justice Rehnquist, writing for the Court, said:

This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.[3]

The cornerstone of the Court’s reasoning was that last sentence, borrowed from the Court’s previous decision in Quarles, which has been repeated over and over again to support the need for a separate criminal justice system with such broad jurisdiction over military members. Justice Rehnquist used this sentence to argue that this primary purpose required ceding more jurisdiction to the military.

But this reliance is misplaced. In fact, this sentence turned the Court’s reasoning in Quarles on its head. In Quarles, the Air Force prosecuted Robert Toth, a civilian previously honorably discharged from military service, for misconduct he engaged in while on active duty. He was actually arrested and sent back to Korea to stand trial. The Court shared its deep concern with the practice of subjecting prior service members to military justice:

We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial or soldiers to maintain discipline is merely incidental to an army’s primary fighting function. To the extent that those responsible for performance of this primary function are diverted from it by the necessity of trying cases, the basic fighting purpose of armies is not served. And conceding to military personnel that high degree of honesty and sense of justice which nearly all of them undoubtedly have, it still remains true that military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts.[4]

Parker used Quarles for the proposition that the military should be left alone. But Quarles pretty clearly declared that, because of the military’s primary mission, it should not be. It is singularly unable to provide the same due process as civilian courts. Though it can be argued that Quarles only dealt with civilians being subject to military justice, it is safe to say that asserting the primary purpose of the existence of the military is an argument against broad military justice jurisdiction, not an argument for it.

John O’Connor discussed this misapplication of precedent at length in his great article, The Origins and Application of the Military Deference Doctrine.[5] It is a very insightful article, and I relied on it in great deal in my forthcoming article, Treating Members of the Military at Least as Well as Inmates and Students: Determining When Military Necessity Requires Infringing Upon Constitutional Rights in Cases Before the Court of Appeals for the Armed Forces, to be published in the Memphis Law Review this fall. Ultimately, however, it is another example of how legal history can and should inform military law.

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[1] David A. Schlueter, American Military Justice: Responding to the Siren Songs for Reform, 73 A.F. L. Rev. 193 (2015).

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

[3] Parker v. Levy, 417 U.S. 733, 743 (1974) (citing Toth v. Quarles, 350 U.S. 11, 17 (1955) (emphasis added)).

[4] Toth v. Quarles, 350 U.S. 11, 17 (1955) (emphasis added).

[5] 35 Ga. L. Rev. 161, 226-34 (2000).