Military Courts and Article III, Part I: Framing the Problem

Prof. Stephen I. Vladeck
Washington College of Law

My deep thanks to Gene for inviting me to blog about my new article, "Military Courts and Article III," which is forthcoming early next year in the Georgetown Law Journal. To make a long story short, the article seeks to grapple with an endemic--but long-neglected--problem in American constitutional law: How can we reconcile the U.S. military justice system with Article III of the U.S. Constitution, which appears to mandate that all federal judges have lifetime tenure and protection against salary diminution.

Notwithstanding the uncompromising text of Article III, the Supreme Court has historically accepted three different species of "non-Article III" federal adjudication: federal courts of general jurisdiction in federal territories (e.g., Guam, the U.S. Virgin Islands, and the District of Columbia); adjudication of "public rights" disputes (e.g., taxes; veterans appeals; claims against the federal government) by specialized courts or federal administrative agencies; and military justice, whether through courts-martial or military commissions. And although the Supreme Court has spent the better part of the past three decades struggling with the scope of the "public rights" exception (including another case this Term), it has largely left the territorial and military exceptions alone--apparently out of a shared belief that these exceptions are "tidy," and, thus, in no need of judicial reassessment.

As the article explains, though, the military exception has never been "tidy," and has instead been marked by a series of internal inconsistencies and incoherent approaches to constitutional interpretation. And whereas those problems have long been latent in the Court's jurisprudence, they've been exacerbated by three modern expansions in the scope of military jurisdiction:

1. The Supreme Court’s 1987 recognition of Congress’s power to subject servicemembers to court-martial for any offense, and not just those that are “service-connected”; 
2. Congress’s 2006 expansion of court-martial jurisdiction to encompass civilian contractors “serving with or accompanying an armed force in the field” during a “contingency operation,” which the Court of Appeals for the Armed Forces upheld at least as applied to a non-citizen tried outside the United States; and 
3. The interpretation of the Military Commissions Act of 2006 as authorizing Guantánamo military commissions to prospectively try war crimes not recognized by international law, so long as they are established violations of the “U.S. common law of war." 

Thus, the paper endeavors to reexamine the "military exception" to Article III--and to both (1) document its existing incoherence; and (2) attempt to provide a more coherent explanation for why (and under what circumstances) the U.S. Constitution sanctions trials before non-Article III federal military judges.

To introduce the paper, I plan to proceed in a series of five posts:

1. Part I (this post), which introduces the paper and the problem it tries to solve;
2. Part II (to run tomorrow), which introduces readers to the Supreme Court's jurisprudence concerning the constitutional validity of courts-martial;
3. Part III (to run on Monday), which introduces readers to the Supreme Court's jurisprudence concerning the constitutional validity of military commissions;
4. Part IV (to run on Tuesday), which explains how the three developments flagged above fundamentally destabilize the jurisprudence surveyed in Parts II and III; and
5. Part V (to run on Wednesday), which unpacks and seeks to defend my thesis that a far better way to understand the scope of the military exception is to ground it in international law--and to view international norms regarding the appropriate scope of military jurisdiction as both the source of, and limit on, the U.S. government's authority to depart from Article III of the Constitution.

Needless to say, I'd welcome reader feedback (whether in the comment thread or via e-mail) at any and all points. In the interim, stay tuned!!