Although there had been extensive disagree- ment about the practice of court-martial trial of servicemen for non-military offenses,1668 the matter never 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,1669 the Court held that court-martial jurisdiction was lacking to try servicemen charged with a crime that was not “service connected.” The Court did not define “service connection,” but among the factors it found relevant 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.1670 O’Callahan was overruled in Solorio v. United States,1671 the Court 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.”1672 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.”1673
It is not clear what provisions of the Bill of Rights and other constitutional guarantees apply to court-martial trials. 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.1674 The double jeopardy provision of the Fifth Amendment appears to apply.1675 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.1676 The Uniform Code of Military Justice, supplemented by the Manual for Courts-Martial, affirmatively grants due process rights roughly comparable to civilian procedures, so it is unlikely that many issues necessitating constitutional will arise.1677 However, the Code leaves intact much of the criticized traditional structure of courts-martial, including the pervasive possibilities of command influence,1678 and the Court of Military Appeals is limited on the scope of its review,1679 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 society.1680 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.1681 Nor did application of the Articles to conduct essentially composed of speech necessitate a voiding of the conviction, as the speech was unprotected, and, even though it might reach protected speech, the officer here was unable to raise that issue.1682
Military courts are not Article III courts, but are agencies established pursuant to Article I.1683 In the 19th 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.1684 Until August 1, 1984, the Supreme Court had no jurisdiction to review by writ of certiorari the proceedings of a military commission, but as of that date Congress conferred appellate jurisdiction of decisions of the Court of Military Appeals.1685 Prior to that time, civil court review of court-martial decisions was possible through habeas corpus jurisdiction,1686 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.1687 In Burns v. Wilson,1688 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 litigation1689 and the lower federal courts have divided several possible ways.1690
- 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 (Justice Harlan dissenting). See Duke & Vogel, The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction, 13 VAND. L. REV. 435 (1960).
- 395 U.S. 258 (1969).
- 395 U.S. at 273–74. See also Relford v. Commandant, 401 U.S. 355 (1971); Gosa v. Mayden, 413 U.S. 665 (1973).
- 483 U.S. 435 (1987).
- 483 U.S. at 450–51.
- 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.
- 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).
- See Wade v. Hunter, 336 U.S. 684 (1949). Cf. Grafton v. United States, 206 U.S. 333 (1907).
- 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).
- The UCMJ guarantees counsel, protection from self-incrimination and double jeopardy, and warnings of rights prior to interrogation, to name a few.
- Cf. O’Callahan v. Parker, 395 U.S. 258, 263–64 (1969).
- 10 U.S.C. § 867.
- 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.”
- 417 U.S. at 756.
- 417 U.S. at 757–61.
- 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.
- Dynes v. Hoover, 61 U.S. (20 How.) 65 (1857).
- Military Justice Act of 1983, Pub. L. 98–209, 97 Stat. 1393, 28 U.S.C. § 1259.
- 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).
- 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).
- 346 U.S. 137 (1953).
- 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).
- E.g., Calley v. Callaway, 519 F.2d 184 (5th Cir., 1975) (en banc), cert. denied, 425 U.S. 911 (1976).