Separate And Not Quite Equal Pt. 2: The Elimination of the Service Connection Requirement

My last post on the Supreme Court’s establishment of the service connection requirement in O’Callahan v. Parker ran long, so I concluded that post without discussing Solorio v. United States, the Supreme Court decision less than twenty years after O’Callahan that abandoned the service connection requirement and in its place adopted a “status” test. Regardless of the type of offense, where committed, or nexus to military service and mission, one’s status alone as a service member granted the military jurisdiction to prosecute. Before summarizing some of the similarities and differences between military and civilian prosecution in a subsequent post, in this post I discuss how the Rehnquist Court retreated from requiring the military to demonstrate a military nexus between the offense and military service in order to prosecute a service member within the military justice system.

The Supreme Court’s O’Callahan decision required there to be a connection between an alleged offense and military service in order for the military to have jurisdiction to prosecute a service member in a court-martial. About two years later, a unanimous Court fleshed out O’Callahan’s service connection requirement by listing twelve factors lower courts should consider when determining whether such connection existed:

  1. The serviceman’s proper absence from the base.
  2. The crime’s commission away from the base.
  3. Its commission at a place not under military control.
  4. Its commission within our territorial limits and not in a occupied zone of a foreign country.
  5. Its commission in peacetime and its being unrelated to authority stemming from the war power.
  6. The absence of any connection between the defendant’s military duties and the crime.
  7. The victim’s not being engaged in the performance of any duty relating to the military.
  8. The presence and availability of a civilian court in which the case can be prosecuted.
  9. The absence of any flouting of military authority.
  10. The absence of any threat to a military post.
  11. The absence of any violation of military property.
  12. The offense’s being among those traditionally prosecuted in civilian courts.[1]

Justice Douglas authored the majority opinion in O’Callahan, and was joined by Chief Justice Warren and Justices Black, Brennan, and Marshall. Justice Harlan dissented, joined by Justices Stewart and White. Justice Fortas resigned on May 14, 1969; thus, the O’Callahan court was an eight justice decision. By Relford, Warren Burger replaced Earl Warren as Chief Justice and Justice Blackmun filled Justice Fortas’s seat.

But by the Solorio decision in 1987, only Justice Marshall and Brennan remained from the Court that decided O’Callahan. The seats that were in the O’Callahan majority were now filled by Chief Justice Rehnquist and Justices Powell, Stewart, Brennan (same), and Marshall (same). The O’Callahan dissenting seats were now filled by Justices Scalia, O’Connor, and White (same).[2]

Writing for the majority, Chief Justice Rehnquist (joined by Justices White, Powell, O’Connor, and Scalia) took immediate aim at the O’Callahan court’s understanding and use of history and instead focused on the plain language of Article I, § 8, cl. 14:

The O’Callahan Court’s representation of English history following the Mutiny Act of 1689, however, is less than accurate.

Accordingly, the O’Callahan Court erred in suggesting that, at the time of the American Revolution, military tribunals in England were available “only where ordinary civil courts were unavailable.”

We think the history of court-martial jurisdiction in England and in this country during the 17th and 18th centuries is far too ambiguous to justify the restriction on the plain language of Clause 14 which O’Callahan imported into it.

Chief Justice Rehnquist did agree with some of the O’Callahan Court’s look to history. English history showed a strong interest in placing Parliament, rather than the Crown, in charge of controlling the scope of court-martial jurisdiction. And Parliamant was reluctant to increase the jurisdiction of courts-martial. But that was as far as Chief Justice Rehnquist would go. The plain reading of Clause 14, the majority held, showed that it was up to Congress to determine what, if any rights are afforded service members, seemingly unencumbered by any other clause in the Constitution:

But such disapproval in England at the time of William and Mary hardly proves that the Framers of the Constitution, contrary to the plenary language in which they conferred the power on Congress, meant to freeze court-martial usage at a particular time in such a way that Congress might not change it. The unqualified language of Clause 14 suggests that whatever these concerns, they were met by vesting in Congress, rather than the Executive, authority to make rules for the government of the military.

The Chief Justice then turned to the difficulty lower courts had in applying the O’Callahan/Relford framework, and went so far as to imply they were simply not up to the task:

The notion that civil courts are “ill equipped” to establish policies regarding matters of military concern is substantiated by the experience under the service connection approach.

In fact, within two years after O’Callahan, this Court found it necessary to expound on the meaning of the decision, enumerating a myriad of factors for courts to weigh in determining whether an offense is service connected.

Yet the service connection approach, even as elucidated in Relford, has proved confusing and difficult for military courts to apply.

So, O’Callahan was no more:

When considered together with the doubtful foundations of O’Callahan, the confusion wrought by the decision leads us to conclude that we should read Clause 14 in accord with the plain meaning of its languages as we did in the many years before O’Callahan was decided. That case’s novel approach to court-martial jurisdiction must bow “to the lessons of experience and the force of better reasoning.”

Justice Stevens concurred in the result, but not the reasoning:

Today’s unnecessary overruling of precedent is most unwise. The opinion of the United States Court of Military Appeals demonstrates that petitioner’s offenses were sufficiently “service connected” to confer jurisdiction on the military tribunal. Unless this Court disagrees with that determination – and I would be most surprised to be told that it does – it has no business reaching out to reexamine the decisions in O’Callahan v. Parker, 395 U.S. 258 (1960) and Relford v. Commandant, U.S. Disciplinary Barracks, 401 U.S. 355 (1971). While there might be some dispute about the exact standard to be applied in deciding whether to overrule prior decisions, I had thought that we all could agree that such drastic action is only appropriate when essential to the disposition of a case or controversy before the Court. The fact that any five Members of the Court have the power to reconsider settled precedents at random, does not make that practice legitimate.

Justice Marshall, joined by Justices Brennan and Blackmun, strongly dissented (Marshall and Brennan were in the O’Callahan majority). In doing so, Marshall argued the majority simply misunderstood O’Callahan:

The majority begins by assuming that the limitation on court-martial jurisdiction enunciated in O’Callahan was based on th power of Congress, contained in Art. I, § 8, cl. 14, “to make Rules for the Government and Regulation of the land and naval Forces.”

But the Court in O’Callahan did not simply address whether Art. I, § 8, cl. 14, granted Congress the authority to create court-martial jurisdiction over all crimes committed by members of the Armed Forces. Congress’ Article I power to regulate the Armed Forces is limited by the Fifth Amendment right to indictment or presentment by a grand jury and the Sixth Amendment right to trial by jury. “The constitutional grant of power to Congress to regulate the armed forces,” this Court has previously stated, “itself does not empower Congress to deprive people of trials under Bill of Rights safeguards, and we are not willing to hold that power to circumvent those safeguards should be inferred through the Necessary and Proper Clause.” United States ex. rel. Toth v. Quarles, 350 U.S. 11, 21-22 (1955). The majority simply disregards the limitations the Bill of Rights imposes on the reach of Art. I, § 8, cl. 14.

Marshall then argued that the Fifth Amendment’s preclusion of the grand jury requirement to the military and the Court’s application of this exclusion to the Sixth Amendment’s right to trial by jury did not justify the majority’s conclusions:

But the text of the exception is inconsistent with the majority’s conclusion that the only relevant factor in determining whether a court-martial has jurisdiction over a case is the status of the defendant as a member of the Armed Services.

He then explained what O’Callahan actually addressed:

O’Callahan addressed not whether Art. I, § 8, cl. 14, empowered Congress to create court-martial jurisdiction over all crimes committed by service members, but rather whether Congress, in exercising that power, had encroached upon the rights of members of Armed Forces whose cases did not “arise in” the Armed Forces.

This, according to Marshall, made the historical evidence in O’Callahan relevant:

[N]ot to what the Framers intended to include in the scope of the congressional power to regulate the Armed Forces in Art. I, § 8, cl. 14, but to what the Framers, wary of military jurisdiction and familiar with strong restrictions on the scope of that jurisdiction, considered “cases arising in the armed forces.” Even assuming that they intended to assign control over the scope of the Article I power to the Legislature, this does not imply that the meaning of the Fifth Amendment’s “arising in” exception can be interpreted without reference to the practices of that time.

Marshall’s dissent concluded that “O’Callahan’s recognition of the service connection requirement did not signify a meaningful change in what could be tried in courts-martial”:

Quite the reverse: not until the enactment of the Uniform Code of Military Justice in 1950 did Congress attempt to give courts-martial the authority to try the crimes of murder and rape committed in peacetime within the United States.

Common-law felonies in peacetime were only brought within the court-martial jurisdiction in 1916.

The Framers’ conception of what could properly be tried in a court-martial must have informed their understanding of what cases arise in the Armed Forces, thus permitting what would otherwise be unconstitutional infringements of Fifth and Sixth Amendment rights. The relatively recent expansion of the authority of military tribunals appears to disregard the Framers’ understanding.

. . .

The limitations may not, in the view of the majority, be desirable, but that does not mean they do not exist.

In the end, the Court abandoned O’Callahan’s service connection requirement and, according to the majority, returned to its prior precedent looking no further than military status to establish military jurisdiction. There are a number of questions unanswered by Solorio, but that is the current state of the law.

With these two cases in hand, it is possible to next turn to some discussion on the similarities and differences between military and civilian prosecution. That should be November’s post.


[1] Relford v. Commandant, U.S. Disciplinary Barracks, 401 U.S. 355, 365 (1971). Corporal Relford kidnapped and raped the 14-year-old sister of a fellow service member who was at the installation because his wife delivered their child at the base hospital. Corporal Relford kidnapped her from the hospital parking lot. A few weeks later, he kidnapped another service member’s wife as she drove from her on base home to a nearby store on base and raped her on a dirt road in the installation’s training area. The Court in Relford applied these twelve factors and found, in contrast to facts in O’Callahan, there was a service connection in Corporal Relford’s case.

[2] Chief Justice Rehnquist, who previously replaced Justice Harlan, had been elevated to Chief Justice to replace Chief Justice Burger. This vacancy was filled by Justice Scalia. Justice Powell had replaced Justice Black, Justice O’Connor had replaced Justice Stewart, and Justice Stevens replaced Justice Douglas.

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