A Criminal Justice System To Be “Indulged In Rather Than Allowed As a Law”

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.


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There are a number of authors (cited below) that have addressed this issue, and I’d like to lay out their work over a series of posts.

The current legal landscape is the result of both Supreme Court and Congressional history. I’d like to start with a discussion of the Congressional history and leave the Supreme Court history for a follow on post before moving on to the rest of the topics implicated by the question of the ability of the American military to prosecute American citizens for civilian offenses committed within the United States during a time of peace (defined as the absence of a declaration of war). This history demonstrates a slow development toward granting the military jurisdiction over civilian offenses committed in the United States during time of peace.

At the time of the Revolution, the adopted Articles of War granted military jurisdiction to prosecute military specific offenses such as mutiny, sedition, desertion, absent without leave, and a few other offenses specifically connected to military discipline. Between 1776 and 1806, these Articles of War were re-enacted largely unchanged, “as far as the same may be applicable to the constitution of the United States.” Act of April 30, 1790, c. 10, § 13, 1 Stat. 121; Act of March 3, 1795, c. 44, § 14, 1 Stat. 432; Act of May 30, 1796, c. 39, § 20, 1 Stat. 486. All other offenses were prosecuted in civilian courts. The 1806 Articles did not change the landscape much concerning jurisdiction to prosecute offenses. In 1863, Congress enacted a statute authorizing the courts-martial of a number of civilian offenses, regardless of impact on military discipline, but only “in time of war, insurrection or rebellion.” Act of March 3, 1863, c. 75, § 30: Rev. Stat. § 1342, art. 58 (1875). The Articles of 1874 mandated that the requirement to turn service members over to civil authorities for prosecution for non-military specific offenses were to be suspended in time of war or rebellion. Rev. Stat. § 1342, art. 59 (1875).  The 1916 Articles of War extended court-martial jurisdiction to non-capital civil offenses such as larceny, robbery, and assault, in peacetime or war. These Articles also allowed for the prosecution of murder or rape in peacetime outside the United States.  Finally, the 1916 Articles prohibited the transfer of service members to civil authorities for prosecution if he was currently being held by the Army for suspicion of a crime punishable under the Articles. Finally, the Uniform Code of Military Justice, enacted in 1950, eliminated any barrier to the military’s jurisdiction to prosecute offenses under the Code (or state or federal law) in peacetime or in war.

This at least establishes that the military did not always have unfettered jurisdiction over service members. It is also consistent with the historical skepticism and distrust toward the military establishment, and the tolerance (rather than reverence) of its existence. But it also raises an interesting question–why did Congress extend military jurisdiction in 1916 (WWI) and 1950 (WWII)? Was it the nature of the world wars? Was it the consequence of a bureaucratic military establishment taking advantage of a national emergency to grab power by asserting it is best situated to “police its own?” These are interesting questions worthy of additional, in-depth study.

After summarizing some seminal Supreme Court decisions in a subsequent post that bracket the Court’s view toward military jurisdiction, I hope to summarize some of the historical context discussed by some excellent writers.

“Indulged In Rather Than Allowed As a Law”

The phrase, “indulged in rather than allowed as a law,” comes from the famed Sir William Blackstone’s Commentaries on the Laws of England. Sir Blackstone, well known to constitutional lawyers today and the Framers of the Constitution, said:

“When the nation was engaged in war … some rigorous methods were
put in use for the raising of armies, and the due regulation and discipline
of the soldiery; which are to be looked upon only as temporary excrescences
bred out of the distemper of the state, and not as any part of the
permanent and perpetual laws of the Kingdom. For martial [read “military”] law, which is built on no settled principles, but is entirely arbitrary in it’s [sic] decisions, is . . . something indulged in rather than allowed as a law. The necessity of order and discipline in any army is the only thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when the King’s courts are open for all persons to receive justice according to the laws of the land.”

The posts in this series are based on a review of the publications and decisions cited below. I encourage anyone interested in this topic to take a look at these and send other good sources my way.

Robert D. Duke & Howard S. Vogel, The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction, 13 Vand. L. Rev. 435 (1960)

Jonathan Turley, Tribunals and Tribulations: The Antithetical Elements of Military Governance in a Madisonian Democracy, 70 Geo. Wash. L. Rev. 649 (2002)

Jonathan Turley, The Military Pocket Republic, 97 Nw. U. L. Rev. 1 (2002)

O’Callahan v. Parker, 385 U.S. 258 (1969), overruled by Solorio v. United States, 483 U.S. 435 (1987)

Solorio v. United States, 483 U.S. 435 (1987)

Loving v. United States, 517 U.S. 748 (1996)

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