CRS Annotated Constitution

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Servicemen.—Although there is extensive disagreement about the practice of court–martial trial of servicemen for nonmilitary offenses in the past,1466 the matter never really was raised in substantial degree until the Cold War period when the United States found it essential to maintain both at home and abroad a large standing army in which great numbers of servicemen were draftees. In O’Callahan v. Parker,1467 the Court held that court–martial jurisdiction was lacking to try servicemen charged with a crime that was not “service connected.” The Court attempted to assay no definition of “service connection,” but among the factors it noted were that the crime in question was committed against a civilian in peacetime in the United States off–base while the serviceman was lawfully off duty.1468 O’Callahan was overruled in Solorio v. United States,1469 the Court holding that “the requirements of the[p.317]Constitution are not violated where . . . a court–martial is convened to try a serviceman who was a member of the armed services at the time of the offense charged.”1470 Chief Justice Rehnquist’s opinion for the Court insisted that O’Callahan had been based on erroneous readings of English and American history, and that “the service connection approach . . . has proved confusing and difficult for military courts to apply.”1471

With regard to trials before court–martials, it is not clear what provisions of the Bill of Rights and other constitutional guarantees do apply. The Fifth Amendment expressly excepts “[c]ases arising in the land and naval forces” from its grand jury provision, and there is an implication that these cases are also excepted from the Sixth Amendment.1472 The double jeopardy provision of the Fifth Amendment appears to be applicable.1473 The Court of Military Appeals now holds that servicemen are entitled to all constitutional rights except those expressly or by implication inapplicable to the military.1474 The Uniform Code of Military Justice, supplemented by the Manual for Courts–Martial, affirmatively grants due process rights roughly comparable to civilian procedures, so that many such issues are unlikely to arise absolutely necessitating constitutional analysis.1475 However, the Code leaves intact much of the criticized traditional structure of courts–martial, including the pervasive possibilities of command influence,1476 and the Court of Military Appeals is limited on the scope of its review,1477 thus creating areas in which constitutional challenges are likely.

Upholding Articles 133 and 134 of the Uniform Code of Military Justice, the Court stressed the special status of military soci[p.318]ety.1478 This difference has resulted in a military Code regulating aspects of the conduct of members of the military that in the civilian sphere would go unregulated, but on the other hand the penalties imposed range from the severe to well below the threshold of that possible in civilian life. Because of these factors, the Court, while agreeing that constitutional limitations applied to military justice, was of the view that the standards of constitutional guarantees were significantly different in the military than in civilian life. Thus, the vagueness challenge to the Articles was held to be governed by the standard applied to criminal statutes regulating economic affairs, the most lenient of vagueness standards.1479 Neither did application of the Articles to conduct essentially composed of speech necessitate a voiding of the conviction, inasmuch as the speech was unprotected, and, even while it might reach protected speech, the officer here was unable to raise that issue.1480

Military courts are not Article III courts but agencies established pursuant to Article I.1481 It was established in the last century that the civil courts have no power to interfere with courts– martial and that court–martial decisions are not subject to civil court review.1482 Until August 1, 1984, the Supreme Court had no jurisdiction to review by writ of certiorari the proceedings of a military commission, but Congress has now conferred appellate jurisdiction of decisions of the Court of Military Appeals.1483 Prior to this time, civil court review of court–martial decisions was possible through habeas corpus jurisdiction,1484 an avenue that continues to exist, but the Court severely limited the scope of such review, restricting it to the issue whether the court–martial has jurisdiction over the person tried and the offense charged.1485 In Burns v. Wil[p.319]son,1486 however, at least seven Justices appeared to reject the traditional view and adopt the position that civil courts on habeas corpus could review claims of denials of due process rights to which the military had not given full and fair consideration. Since Burns, the Court has thrown little light on the range of issues cognizable by a federal court in such litigation1487 and the lower federal courts have divided several possible ways.1488

Civilians and Dependents.—In recent years, the Court rejected the view of the drafters of the Code of Military Justice with regard to the persons Congress may constitutionally reach under its clause 14 powers. Thus, it held that an honorably discharged former soldier, charged with having committed murder during military service in Korea, could not be tried by court–martial but must be charged in federal court, if at all.1489 After first leaning the other way,1490 the Court on rehearing found lacking court–martial jurisdiction, at least in peacetime, to try civilian dependents of service personnel for capital crimes committed outside the United States.1491 Subsequently, the Court extended its ruling to civilian dependents overseas charged with noncapital crimes1492 and to civilian employees of the military charged with either capital or noncapital crimes.1493


1466 Compare Solorio v. United States, 483 U.S. 435, 441–447 (1987) (majority opinion), with id., 456–461 (dissenting opinion), and O’Callahan v. Parker, 395 U.S. 258, 268–272 (1969) (majority opinion), with id., 276–280 (Justice Harlan dissenting). See Duke & Vogel, “The Constitution and the Standing Army: Another Problem of Court–Martial Jurisdiction,” 13Vand. L. Rev.435 (1960).
1467 395 U.S. 258 (1969).
1468 Id., 273–274. See also Relford v. Commandant, 401 U.S. 355 (1971); Gosa v. Mayden, 413 U.S. 665 (1973).
1469 483 U.S. 435 (1987).
1470 Id., 450–451.
1471 Id., 448. Although the Court of Military Appeals had affirmed Solorio’s military–court conviction on the basis that the service–connection test had been met, the Court elected to reconsider and overrule O’Callahan altogether.
1472 Ex parte Milligan, 4 Wall. (71 U.S.) 2, 123, 138–139 (1866); Ex parte Quirin, 317 U.S. 1, 40 (1942). The matter was raised but left unresolved in Middendorf v. Henry, 425 U.S. 25 (1976).
1473 See Wade v. Hunter, 336 U.S. 684 (1949). Cf. Grafton v. United States, 206 U.S. 333 (1907).
1474 United States v. Jacoby, 11 U.S.C.M.A. 428, 29C.M.R.244 (1960); United States v. Tempia, 16 U.S.C.M.A. 629, 37C.M.R.249 (1967). This conclusion by the Court of Military Appeals is at least questioned and perhaps disapproved in Middendorf v. Henry, 425 U.S. 25, 43–48 (1976), in the course of overturning a CMA rule that counsel was required in summary court–martial. For the CMA’s response to the holding see United States v. Booker, 5 M. J. 238 (C.M.A. 1977), rev’d in part on reh., 5 M. J. 246 (C.M.A. 1978).
1475 The UCMJ guarantees counsel, protection from self– incrimination and double jeopardy, and warnings of rights prior to interrogation, to name a few.
1476 Cf. O’Callahan v. Parker, 395 U.S. 258, 263–264 (1969).
1477 10 U.S.C. Sec. 867 .
1478 Parker v. Levy, 417 U.S. 733 (1974). Article 133 punishes a commissioned officer for “conduct unbecoming an officer and gentleman,” and Article 134 punishes any person subject to the Code for “all disorders and neglects to the prejudice of good order and discipline in the armed forces.”
1479 Id., 756.
1480 Id., 757–761.
1481 Kurtz v. Moffitt, 115 U.S. 487 (1885); Dynes v. Hoover, 20 How. (61 U.S.) 65 (1858). Judges of Article I courts do not have the independence conferred by security of tenure and of compensation.
1482 Dynes v. Hoover, 20 How. (61 U.S.) 65 (1858).
1483 Military Justice Act of 1983, P.L. 98–209, 97 Stat. 1393 , 28 U.S.C. Sec. 1259 .
1484 Cf. Ex parte Milligan, 4 Wall. (71 U.S.) 2 (1866); Ex parte Yerger, 8 Wall. (75 U.S.) 85 (1869); Ex parte Reed, 100 U.S. 13 (1879). While federal courts have jurisdiction to intervene in military court proceedings prior to judgment, as a matter of equity, following the standards applicable to federal court intervention in state criminal proceedings, they should act when the petitioner has not exhausted his military remedies only in extraordinary circumstances. Schlesinger v. Councilman, 420 U.S. 738 (1975).
1485 Ex parte Reed, 100 U.S. 13 (1879); Swaim v. United States, 165 U.S. 553 (1897); Carter v. Roberts, 177 U.S. 496 (1900); Hiatt v. Brown, 339 U.S. 103 (1950).
1486 346 U.S. 137 (1953).
1487 Cf. Fowler v. Wilkinson, 353 U.S. 583 (1957); United States v. Augenblick, 393 U.S. 348, 350 n. 3, 351 (1969); Parker v. Levy, 417 U.S. 733 (1974); Secretary of the Navy v. Avrech, 418 U.S. 676 (1974).
1488 E.g., Calley v. Callaway, 519 F. 2d 184, 194–203 (5th Cir., 1975) (en banc), cert. den., 425 U.S. 911 (1976).
1489 United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955). See also Lee v. Madigan, 358 U.S. 228 (1959).
1490 Kinsella v. Krueger, 351 U.S. 470 (1956); Reid v. Covert, 351 U.S. 487 (1956
1491 Reid v. Covert, 354 U.S. 1 (1957) (voiding court–martial convictions of two women for murdering their soldier husbands stationed in Japan). Chief Justice Warren and Justices Black, Douglas, and Brennan were of the opinion Congress’ power under clause 14 could not reach civilians. Justices Frankfurter and Harlan concurred, limited to capital cases. Justices Clark and Burton dissented.
1492 Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960) (voiding court–martial conviction for noncapital crime of wife of soldier husband overseas). The majority could see no reason for distinguishing between capital and noncapital crimes. Justices Harlan and Frankfurter dissented on the ground that in capital cases greater constitutional protection, available in civil courts, was required.
1493 Grisham v. Hagan, 361 U.S. 278 (1960); McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960).
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