With things settling down at the new home and things apparently working out with the condo (fingers crossed!), it’s time to return to writing. My latest law review article is coming along nicely (I hope), so I thought I’d jump back into my blogging.

Military commanders are afforded tremendous power over members of the military under their command, as well as the physical installations (bases) where they command. As it relates to military justice—i.e. military criminal law—the commander is essentially the mayor, the district/state attorney, the person who selects the group (venire) from which the jury comes out of, and also serves as the military magistrate. And in these areas, it is safe to say these powers are exercised broadly—and with little to no questioning of that authority. This post discusses this latter power and reviews the seminal case in this area and suggests that perhaps the legal, political, social, and military history surrounding military justice reform may not make the question so clear cut.

In the federal judiciary, magistrates—as opposed to district judges—typically review requests for search warrants, which in the military are called search authorizations. In the military, certain commanders are given the authority to serve as magistrates, authorizing searches of the person of service members and any property under their jurisdiction, which typically extends to property located within the geographical boundaries of a military installation—often areas of exclusive federal (i.e. military) jurisdiction.

For those interested, Military Rule of Evidence (M.R.E.) 315 allows a “competent military authority” to permit the search of a military member or certain property for evidence of a crime. This includes the authority to search the physical person of anyone subject to military law (active duty service members), the premises of any military property wherever located (i.e. military aircraft parked on a civilian runway), and any “persons or property situated on or in a military installation, encampment, vessel, aircraft, vehicle, or any other location under military control, wherever located.” Done so properly, the seized evidence is normally admissible in a subsequent court-martial.

This “competent military authority” can be a commander or a military magistrate. The M.R.E. defines a commander as a “person serving in a position designated by the Secretary concerned as either a position analogous to an officer in charge or in a position of command, who has control over the place where the property or person to be searched is situated or found, or, if that place is not under military control, having control over persons subject to military law or the law of war. . . .” A military magistrate is a person authorized to perform such duties in accordance with “regulations prescribed by the Secretary of Defense or the Secretary concerned.” The “Secretary concerned” means the Secretary of each respective military service.

Army and Air Force regulations authorize a military magistrate program within the respective services. In the Army, my understanding is that a judge advocate within a particular command is selected to serve as the military magistrate. In contrast, in the Air Force, this power is delegated to a subordinate commander or deputy commander within the command. I believe the Navy does not have a military magistrate program and keeps that authority within the traditional chain of command, though the Military Justice Act of 2016 requires each military service to create such a program.

A fair and plain reading of the text of M.R.E. 315 would lead one to believe this is a power to be exercised expansively. By this I mean not just in deployed environments and permanent bases located outside the United States (OCONUS), but also authorized to be exercised broadly within the United States (CONUS). And the contemporary practice is just that. But a look at military legal history, with a combined understanding of general military history, may challenge this view.

In 1979, the United States Court of Military Appeals (C.M.A.) consolidated four petitions that raised the same issues. In each case, the commanding officer authorized a search that led to the seizure of evidence contributing to the conviction of each service member. The appellants’ respective challenge claimed that their commanding officers were not neutral and detached magistrates, as required by the Fourth Amendment. In addition, and more for my purposes here, they argued that commanders are inherently not neutral and detached. As a result, the appellants argued that commanders should be per se disqualified from authorizing searches and seizures of evidence of crime. Through its seminal decision in United States v. Ezell, the C.M.A. addressed the proper scope of a commander’s authority to issue search authorizations in light of the requirements of the Fourth Amendment to the United States Constitution. It ultimately decided the question against the appellants, concluding commanders are not inherently unable to be neutral and detached and thus should not be per se disqualified, but can become so on a case by case basis.

Like most Fourth Amendment cases, the court began with the text:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Beginning with the text of the Amendment is important. It signals that the question starts with the Bill of Rights, not the Commander-in-Chief’s “inherent” power under Article II or the Congress’s “plenary” power under Article I to make rules for the governance of the land and naval forces (air has been interpreted to be implied). But the court went on. It reaffirmed that “[i]t is now well settled that the protections of the Fourth Amendment and, indeed, the entire Bill of Rights, are applicable to the men and women serving in the military services of the United States unless expressly or by necessary implication they are made inapplicable.” And it continued by recognizing that “neither this Court nor the United States Supreme Court has ever held that the protection of the Fourth Amendment does not apply to servicepersons, save in this instances where the concept of military necessity was held to warrant inapplicability.”

The Ezell decision acknowledged the broad authority granted a military commander and the necessity of such authority, but also spent considerable time discussing the foundational, constitutional requirement for a neutral and detached magistrate in search and seizure cases. By doing so, it appeared to establish at least an outer limit of that authority, going so far as to say that “the title ‘military commander’ is not a talisman in whose presence the Fourth Amendment to the Constitution of the United States vanishes or contains different meaning.”

Ezell is one of many decisions that demonstrates the court’s struggles in reconciling the evolution in how broader society conceptualizes the constitutional rights of service members with the traditional views of (and particularly within) the military society. The court’s reasoning leads one to the conclusion commanders should be per se disqualified, but its conclusion ends up the exact opposite. The struggle is evident by the voting breakdown. Chief Judge Fletcher’s concurring opinion openly advocates for taking power away from commanders when it comes to criminal law and placing it in the hands of legally trained individuals, while Judge Cook’s separate opinion (concurring in part, dissenting in part) is a clear call for the status quo. Judge Perry appears to have written something all three could at least agree on—to an extent (as evidenced by the separate opinions). And compromise decisions rarely settle the question.

Chief Judge Fletcher stated his position clearly at the outset of his separate opinion. “It is essential for this Court to keep pace with the constitutional evolution of the military justice system fashioned by the Supreme Court and the emerging realities of life in the modern military community.” This sentence sums up the ongoing push and pull in military justice reform since the beginning of the 20th century through the modern day. He supported his thesis in some detail, with the following quotes being just a few:

“We do not make the laws of war but we respect them so far as they do not conflict with the commands of Congress or the Constitution.”

“I believe it unnecessary as well as increasingly in contradiction of common sense to equate the military commander in his duty to produce an effective fighting force and his concomitant responsibility as the chief law enforcement official on a military installation to a neutral and detached magistrate within the meaning of judge or magistrate in the civilian society. Such a legal fiction is counterproductive in assessing the realities of everyday military life and provides no viable standard for a determination of reasonableness under the Fourth Amendment.”

“It must be pointed out that military necessity does not give rise to a constitutional authority in the military commander in his own right to authorize searches without compliance with the reasonableness requirement of the Fourth Amendment.”

”Since that time military judges have been provided by Congress and the system of military magistrates as required by this Court on similar Fifth Amendment problems is in its initial stage of development. Accordingly, in view of these emerging facts of military life, I may find in the future that it is unreasonable that a military commander did not refer his decision to search in the usual case provided under paragraph 152, Manual, supra, for review and action by a military judge or magistrate where available. Yet, as indicated in Judge Perry’s opinion, there are other situations where a clear and present danger to the military mission exists which would preclude referral of the probable cause to search decision to those military officials designated as military judges or magistrates. Searches authorized by other appropriate military officials in this instance would be found reasonable under the well-established Fourth Amendment doctrine of exigent circumstances. Moreover, in those cases where no military judge or magistrate is available, I believe the procedure outlined in paragraph 152, Manual, supra, is eminently satisfactory and reasonable to authorize a lawful search for criminal evidence under circumstances and conditions therein provided and enunciated in Judge Perry’s opinion.”

“Henceforth, my resolution of these search and seizure issues on grounds of reasonableness will take into consideration the failure of the commander to refer his decision to search for review and action to a military judge or magistrate in those situations which the above analysis renders appropriate.”

The court has yet to fully adopt Chief Judge Fletcher’s position though, in United States v. Stuckey, 10 M.J. 347 (C.M.A. 1981), it came close—even if only in the form of a recommendation:

“In his concurrence in Ezell, Chief Judge Fletcher would apparently go even further by stating that in subsequent cases he would ‘take into consideration the failure of the commander to refer his decision to search for review and action to a military judge or magistrate’ where one was available. [Citation omitted] Even though we have not ruled that it is unreasonable per se for a military commander to authorize a search when permission to search could readily have been sought by a military magistrate, the likelihood that a search and seizure will withstand subsequent attack in court is – and should be – greater when a judicial officer trained in the law has made the determination of probable cause than when a commander does so. Thus, a military law enforcement agent or a commander should have a significant incentive to refer a request for search authority to a military magistrate if this is feasible.”

Today, the commander’s broad application of his or her authority to authorize a search and seizure of evidence is rarely, if ever, questions. Probable cause, particularity, etc., is challenged, but not the broader authority itself. A closer reading of Ezell and subsequent decisions such as Stuckey, as well as considering the contributions of history, demonstrate that the question may not actually be settled.