Article I, Section 8, Clause 14:

[The Congress shall have Power . . . ] To make Rules for the Government and Regulation of the land and naval Forces; . . .

Under its power to make rules for the government and regulation of the armed forces, Congress has set up a system of criminal law binding on all servicemen, with its own substantive laws, its own courts and procedures, and its own appeals procedure.1

Although courts have disagreed about using courts-martial to try servicemen for nonmilitary offenses,2 the matter became important during 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,3 the Supreme Court held that courts-martial did not have jurisdiction to try servicemen charged with a crime that was not “service connected.” While the Court did not define “service connection,” it noted that the serviceman committed the crime off-base when he was lawfully off duty against a civilian in peacetime in the United States.4 In Solorio v. United States,5 the Court discussed O’Callahan, holding that “the requirements of the 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.” 6 Chief Justice William Rehnquist’s opinion for the Court stated 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.” 7

How the Bill of Rights and other constitutional guarantees apply to court-martial trials is not clear. The Fifth Amendment expressly excepts “[c]ases arising in the land and naval forces” from its grand jury provision, and there cases may also be excepted from the Sixth Amendment.8 The double jeopardy provision of the Fifth Amendment appears to apply, however.9 The Court of Military Appeals now holds that servicemen are entitled to all constitutional rights except those that expressly or by implication do not apply to the military.10 The Uniform Code of Military Justice, supplemented by the Manual for Courts-Martial, affirmatively grants due process rights roughly comparable to civilian procedures.11 However, the Code leaves intact much of the traditional structure of courts-martial, including the possibility of command influence,12 and the Court of Military Appeals scope of review is limited,13 thus creating areas of potential constitutional challenges.

Upholding Articles 133 and 134 of the Uniform Code of Military Justice (UCMJ), the Court in Parker v. Levy stressed the special status of military society.14 This difference has resulted in a military code that regulates aspects of military members’ conduct that civilian governments do not regulate. In addition, the military code imposes penalties ranging from severe to below those possible in civilian life. Because of these factors, the Court, while agreeing that constitutional limitations apply to military justice, reasoned that the standards of constitutional guarantees were significantly different in the military. Thus, the Court held the vagueness challenge to UCMJ Articles 133 and 134 to be governed by the standard applied to criminal statutes regulating economic affairs—the most lenient of vagueness standards.15 Applying USMJ Articles 133 and 134 to conduct essentially composed of speech did not require voiding the conviction, as the speech was unprotected, and, even if the Articles might reach protected speech, the officer in the instant case was unable to raise that issue.16

The Court has recognized that military courts are not Article III courts, but are agencies established pursuant to Article I.17 In the nineteenth century, the Court established that the civil courts have no power to interfere with courts-martial and that court-martial decisions are not subject to civil court review.18 The Supreme Court had no jurisdiction to review by writ of certiorari military commission proceedings until August 1, 1984, when Congress conferred appellate jurisdiction to the Court of Military Appeals.19 Prior to that time, civil court review of court-martial decisions was possible through habeas corpus jurisdiction,20 an avenue that continues to exist, but the Court severely limited the scope of such review, restricting it to whether the court-martial has jurisdiction over the person tried and the offense charged.21 In Burns v. Wilson,22 however, several Justices appeared to suggest that civil courts on habeas corpus could review claims of due process violations by military courts. Since Burns, the Court has thrown little light on the range of issues cognizable by a federal court in such litigation23 and the lower federal courts have divided several possible ways.24

Footnotes

1

The Uniform Code of Military Justice of 1950, 64 Stat. 107, as amended by the Military Justice Act of 1968, 82 Stat. 1335, 10 U.S.C. §§ 801 et seq. For prior acts, see 12 Stat. 736 (1863); 39 Stat. 650 (1916). See also Loving v. United States, 517 U.S. 748 (1996) (in context of the death penalty under the UCMJ). The same power that authorized Congress to promulgate the Uniform Code of Military Justice—granted by this Clause and the Necessary and Proper Clause—also authorized Congress to make a civil registration requirement a consequence of certain military crime convictions. See United States v. Kebodeaux, 570 U.S. 387, 395 (2013) (holding that the Military Regulation and Necessary and Proper Clauses authorized Congress to make civil registration a consequence of a servicemember’s federal sex offence conviction).

2

Compare Solorio v. United States, 483 U.S. 435, 441–47 (1987) (majority opinion), with id. at 456–61 (dissenting opinion), and O’Callahan v. Parker, 395 U.S. 258, 268–72 (1969) (majority opinion), with id. at 276–80 (Harlan, J., dissenting). See Robert Duke & Howard Vogel, The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction, 13 Vand. L. Rev. 435 (1960).

3

395 U.S. 258 (1969).

4

395 U.S. at 273–74. See also Relford v. Commandant, 401 U.S. 355 (1971); Gosa v. Mayden, 413 U.S. 665 (1973).

5

483 U.S. 435 (1987).

6

483 U.S. at 450–51.

7

483 U.S. at 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.

8

Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123, 138–39 (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).

9

See Wade v. Hunter, 336 U.S. 684 (1949). Cf. Grafton v. United States, 206 U.S. 333 (1907).

10

United States v. Jacoby, 11 U.S.C.M.A. 428, 29 C.M.R. 244 (1960); United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.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).

11

The UCMJ guarantees counsel, protection from self-incrimination and double jeopardy, and warnings of rights prior to interrogation, to name a few.

12

Cf. O’Callahan v. Parker, 395 U.S. 258, 263–64 (1969).

13

10 U.S.C. § 867.

14

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.”

15

417 U.S. at 756.

16

417 U.S. at 757–61.

17

Kurtz v. Moffitt, 115 U.S. 487 (1885); Dynes v. Hoover, 61 U.S. (20 How.) 65 (1858). Judges of Article I courts do not have the independence conferred by security of tenure and of compensation.

18

Dynes v. Hoover, 61 U.S. (20 How.) 65 (1857).

19

Military Justice Act of 1983, Pub. L. No. 98-209, 97 Stat. 1393, 28 U.S.C. § 1259 . See also Ortiz v. United States, No. 16-1423, slip op. 5–19 (U.S. 2018) (affirming the Supreme Court’s appellate jurisdiction to review decisions of the Court of Appeals for the Armed Forces).

20

Cf. Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866); Ex parte Yerger, 75 U.S. (8 Wall.) 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).

21

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).

22

346 U.S. 137 (1953).

23

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).

24

E.g., Calley v. Callaway, 519 F.2d 184 (5th Cir., 1975) (en banc), cert. denied, 425 U.S. 911 (1976).