Service members in the United States military are not excluded from the constitutional protections they swear an oath to protect; it’s just that “military necessity” requires these protections be applied differently to this community. There are individual situations that arise in the general population which necessitate an exception to an otherwise constitutional requirement (a search warrant or rights advisement, for example). But “military necessity” appears different. It is essentially a blanket exception for an entire community of people.
I began researching other communities whereby some reason justified a similar blanket exception to compare how this principle is applied. I found two—inmates and students.
I published an article in the University of Memphis Law Review that examined the legal landscape in these three communities. The Supreme Court of the United States (“Court”) has held that individuals in these communities do not give up their constitutional rights simply because they belong to their respective communities. But the same general reasons require a different application to these communities: order, discipline, and safety. The gravity of these needs, and the complexity of these specialized communities, requires a somewhat substantial deference to those who administer them.
In spite of these circumstances, the Court has actively supervised and engaged with the inmate and student communities. Using a well-understood framework, it applies strict scrutiny (see here for a brief introduction) to statutes and regulations that purport to infringe upon a community member’s constitutional rights. The military community gets something less.
Unlike the inmate and student communities, in which cases and controversies arise in multiple state and federal courts, courts-martial are limited to the military justice system. Like the federal and many state systems, the military justice system has three levels of courts. The highest is the United States Court of Appeals for the Armed Forces (“CAAF”), a five member civilian Article I court. One, but certainly not the only, explanation for the Court’s substantial hands-off approach to the military community is the existence of CAAF. It arguably serves as a court of last resort, much like state supreme courts.
A second observation is the absence of any established framework to analyze constitutional questions in the military community. It isn’t defined; judges just know it when they see it.
These two observations seem a good place to start delving into deeper. After comparing and contrasting the similarities and differences in the judicial institutions in which cases and controversies in these communities arise, we’ll start a little tour of the inmate community first.
 46 U. Mem. L. Rev. 61 (2015).
My initial foray into military justice scholarship began a number of years ago with a general hypothesis:
The Supreme Court of the United States is today, in part, largely hands off toward the military justice system because of the existence of the United States Court of Appeals of the Armed Forces, a civilian court sitting atop a three-tiered judicial system. Though it is perceived, and perceives itself, as a court of last resort, it does not appear to often act like one. This is because the military jurisdiction created by the Uniform Code of Military Justice in 1950 was a compromise between those advocating for the elimination of command control of the military justice system and those advocating maintaining the existing system.
It is interesting because the military justice system is a decently sized jurisdiction compared to the fifty states. And if the United States Court of Appeals for the Armed Forces were an Article III intermediate appellate court, hearing every court-martial appeal as a matter of right, its workload would most closely mirror that of the United States Court of Appeals for the First Circuit.
Not only is it a sizeable jurisdiction, Congress used the military justice system as the framework for creating the military commissions system to prosecute certain “enemy belligerents” (think 9/11, War on Terror type folks). But Congress provided noticeably more due process to those belligerents than it provided American service members subject to military justice. Fewer than ten military commissions have reached completion in the nearly two decades of their existence, yet commissions enjoy considerably more attention in academic journals.
I have enjoyed testing this hypothesis over the past several years. I’ll be sharing that experience on these pages for a while. Some of my research culminated in published articles, some I will share for the first time here. Along the way, I’ll let my mind wander and go on a few tangents and down some rabbit holes.
Twenty-four judges have served on the United States Court of Appeals for the Armed Forces (CAAF) since its creation in 1950, approximately sixty-nine years ago. Of those twenty-four, two have been women. This spotlight briefly highlights the first woman to serve on the Court. Continue reading →
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.
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It’s been a few months since I’ve been able to post or otherwise update the site. I try to post monthly, typically regarding a project I’m working on (or something a project makes me think of) or something I’m reading. But the past few months have been quite busy at my day job and have also included some travel. So, I’ve been spending all the time I can spare trying to get my latest article ready for spring 2016 submission season. Now that it is done and submissions have started, I can share some thoughts on what I’ve spent the last year or so working on, here and there.
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Both military and civilian courts have rules that govern the acceptance of a guilty plea. Based generally on the civilian rule, Rule for Courts-Martial (R.C.M.) 910 substantially restricts the military judge in the methods whereby he can accept a guilty plea in contrast to the broader discretion given his federal counterpart under Federal Rule of Criminal Procedure 11 (“Rule 11”). Under traditional statutory and regulatory interpretation, Rule 11 may inform the interpretation of R.C.M. 910, but it does not control. Unless R.C.M. 910 conflicts with the Uniform Code of Military Justice (UCMJ) or the Constitution, it is granted the force and effect of law. But as I was reviewing decisions of the Court’s 1968-1969 term my ongoing research project, I had the opportunity to re-read United States v. Care, the seminal case establishing the standard for determining the factual basis for a guilty plea in military courts-martial. In doing so, I was reminded of the contribution legal history can make to the understanding and development of military law.
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