The Civilianization of Military Jurisdiction

Abstract

Most discussions of current and future issues in American criminal law and procedure tend to ignore completely the role of the military in shaping that body of jurisprudence. Perhaps this lacuna reflects widespread - if tacit - acceptance of the maxim that 'military law is to law as military music is to music.' Or it may represent generations of lawyers inculcated with Justice Black’s oft-quoted characterization of the U.S. court-martial system as a 'rough form of justice.' Regardless, the assumption appears to be that there is little for true criminal law scholars to learn from judicial proceedings presided over by jurists - and juries - in uniform.

This chapter, part of a collection of essays on the future of criminal law in America, suggests that students and scholars of criminal law would do well to pay increasing attention to the military justice system, if for no other reason than to understand and appreciate the subtle but significant expansions of military jurisdiction over the past quarter-century to encompass a growing range of offenses or offenders previously subject to the exclusive jurisdiction of the civilian courts. To that end, Part I summarizes the evolution of court-martial jurisdiction, including the Supreme Court's 1987 decision in Solorio v. United States, holding that service members may be tried for any offense committed while in the military no matter its connection (or lack thereof) to their 'service,' and the recent decision by the Court of Appeals for the Armed Forces upholding the expansion of court-martial jurisdiction to also encompass at least some civilian contractors serving with or accompanying the armed forces in the field during 'contingency operations,' such as the U.S. deployments in Iraq and Afghanistan. Part II offers an analogous account of military commissions, documenting in detail the important expansion in the scope of their authority enmeshed within the Military Commissions Acts of 2006 and 2009, which largely untethered such tribunals' jurisdictional limits from the international laws of war. Indeed, although the D.C. Circuit recently held that such an expansion of military jurisdiction could not be applied retroactively, at least one judge expressly endorsed Congress's power to so provide going forward.

Part III steps back to consider the implications of these developments. Inasmuch as the civilianization of substantive military law has been seen largely as a positive development by courts and commentators, I do not think we can so quickly say the same thing about the civilianization of military jurisdiction. Although it might appear at first blush that the civilianization of substantive military law reduces the risks that might otherwise have followed from unduly expansive military jurisdiction, the chapter concludes by offering a structural defense of a principle first expressed by Justice Johnson almost 200 years ago - that, where military jurisdiction is concerned, Congress should be confined to 'the least possible power adequate to the end proposed.' Whether or not the civilianization of substantive military law has been a normatively desirable result, my thesis is that, in the long-term, the civilianization of military jurisdiction would be to the detriment of American constitutional law in general, and the constitutional rights of criminal defendants, in particular.

Keywords: military jurisdiction, military law, courts-martial, military commissions, military tribunals, Guantanamo