Separate And Not Quite Equal: “Enjoying” Reduced Rights Based On One’s “Status,” and Nothing More, In the Separate Society

In my last post, the first in a series looking at the legal history behind the ability of the American military to prosecute American citizens for civilian offenses committed within the United States during peacetime (absence of declaration of war), I summarized the evolution of statutes governing military criminal jurisdiction. This summary demonstrated, or at least took note of, the fact that for most of American history, the military retained limited jurisdiction to prosecute such offenses, if at all. In this post, I’d like to turn to the evolution of today’s legal landscape, as framed by the Supreme Court.  This history tells us how we reached the point of one’s status as a military member, alone, subjected him or her to a criminal justice system that deprives him or her of substantial constitutional rights, even when facing prosecution for traditionally civilian offenses, within the United States, during time of peace when civilian courts are open for business.

O’Callahan v. Parker, 395 U.S. 258 (1969), marked a sea change in the Court’s view toward military jurisdiction over service members.  But to understand O’Callahan’s impact, one must first put it in context.

Until approximately 1950, the Court severely limited federal court engagement with courts-martial.  Upon conviction at court-martial, a service member could petition a federal district court for a writ of habeas corpus.  However, such a court could only assess whether the court-martial had jurisdiction over the Accused and the offense, and whether the sentence imposed was within the court’s power.  Everything else was off limits.  Professor Hirschhorn and Mr. O’Connor have separately written excellent studies of what can be called the “military deference doctrine,” for those interested in some additional reading.[1]

But the Court began chipping away at this near total deference in the 1950s. It precluded the military’s ability to prosecute former service members validly separated from active service for crimes committed while on active duty. The Court further limited the military’s jurisdiction to prosecute civilian dependents in courts-martial for crimes committed while accompanying their active duty spouse and sponsor. In doing so, the Court declared, obvious to many today, that criminal prosecution within the military justice system should be, as Blackstone stated, indulged in rather than allowed as a law:

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 of 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.

Strides have been made toward making courts-martial less subject to the will of the executive department which appoints, supervises and ultimately controls [military judges]. But from the very nature of things, courts have more independence in passing on the life and liberty of people than do military tribunals.[2]

As I and others have discussed, the Court co-opted this phrase in later decisions to justify substantial deference to the military community in criminal law matters.[3] But in the 1950s era, this marked a period in which Article III courts (the Court specifically) questioned the military’s jurisdiction to prosecute a growing number of American citizens serving in a large standing military during the emerging Cold War.

And so we return to O’Callahan v. Parker. Sergeant O’Callahan left Fort Shafter, Oahu, Hawaii, on an evening pass (allowed off base in civilian clothes). In civilian clothes, he and a friend consumed a few beers in the bar of a local hotel. After doing so, Sergeant O’Callahan entered the residential part of the hotel and broke into a room and encountered a young girl, whereby he assaulted her and attempted to rape her. Hotel security apprehended him while he fled and delivered him to the Honolulu city police. Upon learning of his military status, city police transferred him to military custody, where he subsequently confessed.

Convicted at court-martial and affirmed on appeal, Sergeant O’Callahan filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania. He alleged, inter alia, “that the court-martial was without jurisdiction to try him for nonmilitary offenses committed off-post while on an evening pass.” “The District Court denied relief without considering the issue on the merits, and the Court of Appeals for the Third Circuit affirmed.”

Consequently, the Court granted review to determine the following question:

Does a court-martial, held under the Articles of War, Tit. 10, U. S. C. § 801 et seq., have jurisdiction to try a member of the Armed Forces who is charged with commission of a crime cognizable in a civilian court and having no military significance, alleged to have been committed off-post and while on leave, thus depriving him of his constitutional rights to indictment by a grand jury and trial by a petit jury in a civilian court?[4]

Justice Douglas’s majority opinion, joined by Chief Justice Warren and Justices Black, Brennan, and Marshall, dealt a substantial blow to the military’s virtually unlimited jurisdiction over service members and set forth a rule requiring a “service connection” in order for service members to be deprived of their full Fifth and Sixth Amendment rights otherwise afforded them in civilian criminal courts.[5]

For those interested in (and with knowledge of) the scope of military criminal authority, the Court began with the familiar. Article I, § 8, cl. 14 of the Constitution of the United States grants Congress the power to “make Rules for the Government and Regulation of the land and naval Forces. The Constitution also, according to the majority “recognizes that the exigencies of military discipline require the existence of a special system of military courts in which not all of the specific procedural protections deemed essential in Art. III trials need apply.” Specifically, largely deferring to its 1895 decision in Johnson v. Sayre, 158 U.S. 109 (1895), the Court reiterated that the Fifth Amendment exempted “cases arising in the land or naval forces” from the requirement of prosecution by indictment. In addition, by inference, such cases deprived a service member of the right to trial by jury.

The question was then made plain. “If the case does not arise ‘in the land or naval forces,’ then the accused gets first, the benefit of an indictment by a grand jury and second, a trial by jury before a civilian court as guaranteed by the Sixth Amendment and by Art. III, § 2, of the Constitution. . . .”

Before turning to this question, the majority emphasized what it previously stated in Toth.

Moreover, there is a great difference between trial by jury and trial by selected members of the military forces. It is true that military personnel because of their training and experience may be especially competent to try soldiers for infractions of military rules. Such training is no doubt particularly important where an offense charged against a soldier is purely military, such as disobedience of an order, leaving post, etc. But whether right or wrong, the premise underlying the constitutional method for determining guilt or innocence in federal courts is that laymen are better than specialists to perform this task. This idea is inherent in the institution of trial by jury.[6]

The majority then turned to the issues before it. It noted that a court-martial is not comprised of a jury of the Accused’s peers that must decide his fate unanimously. It is comprised of a panel of officers “empowered to act by a two-thirds vote.” At that time, the modern day role of military judge did not exist. “The presiding officer . . . is not a judge whose objectivity and independence are protected by tenure and undiminishable salary and nurtured by the judicial tradition but is a military officer.”[7] Though no longer the case, at the time the rules of evidence in military trials differed substantially from those in civilian courts. “Apart from those differences, the suggestion of the possibility of influence on the actions of the court-martial by the officer who convenes it, selects its members and the counsel on both sides, and who usually has direct command authority over its members is a pervasive one in military law, despite strenuous efforts to eliminate the danger.”

The Court then acknowledged the unique needs of military discipline and criminal law, but bracketed this need within the confines of the Constitution of the United States:

That a system of specialized military courts, proceeding by practices different from those obtaining in the regular courts and in general less favorable to defendants, is necessary to an effective national defense establishment, few would deny. But the justification for such a system rests on the special needs of the military, and history teaches that expansion of military discipline beyond its proper domain carries with it a threat to liberty. This Court, mindful of the genuine need for special military courts, has recognized their propriety in their appropriate sphere. . . .

In doing so, the Court noted the historically limited jurisdiction of the military necessary to the extent absolutely necessary to the military mission:

There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution. Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service. . . .

Thus, the scope of the constitutional power of Congress to authorize trial by court-martial should be limited “to the least possible power adequate to the end proposed.”

Though the Court noted the Court of Military Appeals’ cognizance of the constitutional rights of military Accused, it declared that “courts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law.”

The Court then held that active duty status alone did not give the military jurisdiction over a service member unless there is a “relationship between the offense and identifiable military interests. . . .”  “’Status’ is necessary for jurisdiction; but it does not follow that ascertainment of ‘status’ completes the inquiry, regardless of the nature, time, and place of the offense.”

To explain this holding, the Court turned to history. This cited history, and that relied on the subsequent Solorio decision that overruled O’Callahan in 1987, will be highlighted in a subsequent post. But for our purposes here, the Court charted American military legal history from the English experience of the 17th century, through the American Revolution and onward into the 20th century.

This history informed the Court’s conclusion that this service connection must exist, or else the phrase, “cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger,” would “be expanded to deprive every member of the armed services of the benefits of an indictment by a grand jury and a trial by a jury of his peers.” It could not be read so broadly. “For it is assumed that an express grant of general power to Congress is to be exercised in harmony with express guarantees of the Bill of Rights.

To demonstrate the reach of such a broad interpretation, the Court noted that counsel at oral argument asserted that Article 134, known as the General Article, could even authorize the military to prosecute a service member in a court-martial for income tax evasion. This is because the General Article is a “catch-all” statute that, among other things, allows the military justice system to incorporate every Federal law (and in many cases state law as well, by the way) into the UCMJ, thus making the statute a military crime. The Court could just not go that far. “The catalogue of cases put within reach of the military is indeed long; and we see no way of saving to servicemen and servicewomen in any case of the benefits of indictment and of trial by jury, if we conclude that this petitioner was properly tried by court-martial.”[8]

This rational was not without its dissenters. Joined by Justices Stewart and White, Justice Harlan dissented. “The Court’s largely one-sided discussion of the competing individual and governmental interests at stake, and its reliance upon what are at best wholly inconclusive historical data, fall far short of supporting the contrary conclusion which the majority has reached.” The dissent’s reasoning appeared simple. The text of the Constitution granted Congress authority “to make Rules for the Government and Regulation of the land and naval Forces.” Similarly, the Fifth Amendment Indictment by Grand Jury did not apply to “cases arising in the land or naval forces.” Prior decisions held that “’land and naval Forces’ refers to persons who are members of the armed services. . . .” They have also focused on the status of the Accused, not the nature of the offense. Before this decision, the Court has never questioned Congress’s plenary power to “determine the appropriate subject-matter jurisdiction of courts-martial.” This was a job for Congress, not the Judiciary.

As will be discussed in more detail in subsequent posts, the dissent also looked to history, but arrived at a different conclusion. Just because Congress did not exercise its power to broadly construe military jurisdiction in the late 18th and early 19th centuries did not mean it could not in the 20th. “The disciplinary requirements of today’s armed force of over 3,00,000 men are manifestly different from those of the 718-man army in existence in 1789.”

In what may come as a surprise to modern day military justice practitioners, the dissent then turned its focus to the rehabilitative nature of courts-martial.[9] In response to the majority’s attempts to balance service member rights against military necessity, as opposed to the historical near total deference to Congress, the dissent made some curious declarations to counter this balancing framework:

The United States has a vital interest in creating and maintaining an armed force of honest, upright, and well-disciplined persons, and in preserving the reputation, morale, and integrity of the military services. Furthermore, because its personnel must, perforce, live and work in close proximity to one another, the military has an obligation to protect each of its members from the misconduct of fellow servicemen. The commission of offenses against the civil order manifests qualities of attitude and character equally destructive of military order and safety. The soldier who acts the part of Mr. Hyde while on leave is, at best, a precarious Dr. Jekyll when back on duty.

The Government, thus, has a proper concern in keeping its own house in order, by deterring members of the armed forces from engaging in criminal misconduct on or off the base, and by rehabilitating offenders to return them to useful military service.

The exercise of military jurisdiction is also responsive to other practical needs of the armed forces. A soldier detained by the civil authorities pending trial, or subsequently imprisoned, is to that extent rendered useless to the service. Even if he is released on bail or recognizance, or ultimately placed on probation, the civil authorities may require him to remain within the jurisdiction, thus making him unavailable for transfer with the rest of his unit or as the service otherwise requires.

In contrast, a person awaiting trial by court-martial may simply be restricted to limits, and may “participate in all military duties and activities of his organization while under such restriction . . . The trial need not be held in the jurisdiction where the offense was committed . . . And punishments – such as forfeiture of pay, restriction to limits, and hard labor without confinement – may be imposed that do not keep the convicted serviceman from performing his military duties.[10]

In closing, the dissent noted that the service connection requirement asserted by the majority will be difficult to understand and implement. “Absolutely nothing in the language, history, or logic of the Constitution justifies this uneasy state of affairs which the Court has today created.”

So it was, but not for long. O’Callahan would only govern military jurisdiction from 1969 to 1987. Like countless Supreme Court rulings both before and after O’Callahan, lower courts needed to flesh out and figure out how this standard was to work. In less than twenty years, the Rehnquist Court overruled O’Callahan and its reliance on history in Solorio v. United States, 483 U.S. 435 (1987).

This post is already long enough, so Solorio will be addressed in a subsequent post, hopefully within the next couple of weeks. The summary of these two cases are essential to understanding the modern approach of “status” alone defining one’s exclusion of constitutional rights otherwise afforded fellow citizens. After summarizing Solorio, I’d like to continue by highlighting the differences, and similarities, of courts-martial and civilian prosecutions before turning to the history relied upon, and later, rejected, by the Supreme Court of the United States.


[1] James M. Hirschhorn, The Separate Community: Military Uniqueness and Servicemen’s Constitutional Rights, 62 N.C. L. Rev. 177 (1984)

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

[2] United States ex rel. Toth v. Quarles, 350 U.S. 11, 17-18 (1955).

[3] In Parker v. Levy, 417 U.S. 733 (1974), the Rehnquist Court used this line in support of its near total deference to military courts in a decision limiting the First Amendment rights of a service member who actively discouraged fellow soldiers from deploying to Vietnam:

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. United States ex. rel. Toth v. Quarles, 350 U.S. 11, 17 (1955). In In re Grimley, 137 U.S. 147, 153 (1890), the Court observed: “An army is not a deliberative body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer, or the duty of obedience in the soldier.” More recently we noted that “the military constitutes a specialized community governed by a separate discipline from that of the civilian,” Orloff v. Willoughby, 345 U.S. 83, 94 (1953), and that “the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty. . . .” Burns v. Wilson, 346 U.S. 137, 140 (1953) (plurality opinion).

[4] O’Callahan v. Parker, 395 U.S. 258, 261, 89 S. Ct. 1683, 1685 (1969). Prior to the enactment of the Uniform Code of Military Justice (UCMJ) and the consolidation of military criminal law, the Army’s code was called the Articles of War and the Navy’s was called the Rules for the Governance of the Navy.

[5] Judge Joshua Kastenberg, a retired Lieutenant Colonel and perhaps the most intellectual Air Force judge advocate in recent history, has proposed that this decision was driven largely by Justice Douglas’s anti-military ideology rather than based in law.  See Joshua E. Kastenberg, Cause and Effect: The Origins and Impact of Justice William o. Douglas’s Anti-Military Ideology From World War II to O’Callahan v. Parker, 26 T.M. Cooley L. Rev. 163 (2009).

[6] O’Callahan v. Parker, 395 U.S. 258, 296-97 (1969) (citing United States ex rel. Toth v. Quarles, 350 U.S. 11, 17-18 (1955)).

[7] The modern day military judge is still not protected by tenure, undiminisable salary, and arguably the judicial tradition, but the role has certainly come a long way since 1969.

[8] This view is consistent with the historical reluctance to subject American citizens to military jurisdiction. See Jonathan Turley, Tribunals and Tribulations: The Antithetical Elements of 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).

[9] Modern military practitioners are likely to have much to say about the military justice system–none of which would include rehabilitation.

[10] I note that this justification would come as a surprise to modern military justice practitioners because it is wholly divorced from the actual experience of service members facing court-martial in the armed forces today.

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