Military Courts and Article III, Part IV: The Destabilization of the Military Exception

Prof. Stephen I. Vladeck
Washington College of Law

For folks who are still following along, this is the fourth post in a five-part series on my forthcoming article, "Military Courts and Article III." Part I introduced the project; Part II walked through the Supreme Court's constitutional defense of non-Article III courts-martial; and Part III provided a similar overview of the Court's (more infrequent) jurisprudence defending the constitutionality of non-Article III military commissions. As I concluded yesterday, "the Court's justification for military commissions bears at best superficial resemblance to its justification for courts-martial. Thus, there really isn't a unitary military exception to Article III; there are at least two." Courts-martial have been tied to the overlap between Congress's Article I power to "make Rules for the Government and Regulation of the land and naval Forces" and the exception to the Fifth Amendment's Grand Jury Indictment Clause for "cases arising in the land or naval forces." And commissions have been tied to the overlap between Congress's Article I power to "define and punish . . . Offences against the Law of Nations" and the atextual exception to the jury-trial provisions recognized by the Supreme Court in Ex parte Quirin for "offenses committed by enemy belligerents against the law of war."

As untidy as these analyses suggest the military exception already was a generation ago, three recent developments have only put more tension on the military exception, by both (1) untethering these two threads from their textual and analytical moorings; and (2) highlighting how flawed these threads were to begin with. These developments--and their as-yet underappreciated implications--are the focus of today's post.
I.  Solorio and the Abolition of the Service-Connection Test

By far, the most significant U.S. military justice development of the past half-century came in 1987, when the Supreme Court in Solorio v. United States held that servicemembers may be court-martialed for any offense, whether or not the crime had any relationship to their military service. In so holding, the Court overruled O’Callahan v. Parker, the 1969 decision in which Justice Douglas had relied on the text of the Grand Jury Indictment Clause to articulate what was subsequently described as the “service-connection test.” As Douglas had explained, the service-connection requirement filled the gap between the Make Rules Clause—which empowers Congress to “make Rules for the Government and Regulation of the land and naval Forces,” and the Fifth Amendment, which excepts from the Grand Jury Indictment Clause only those cases arising in the land or naval forces. Thus, Douglas concluded, cases that do not “arise in” the land or naval forces cannot be tried by military courts whether or not they fall within the regulatory ambit of the Make Rules Clause.

In reaching the contrary conclusion for the Solorio Court, Chief Justice Rehnquist focused his analysis on flaws in Justice Douglas’s historical analysis and on the plain language of the Make Rules Clause. In the process, Solorio all-but ignored O’Callahan’s textual argument—grounded in the narrower scope of the Grand Jury Indictment Clause’s exception vis-à-vis the broader Make Rules Clause. Thus, Chief Justice Rehnquist asserted that, “In an unbroken line of decisions from 1866 to 1960, this Court interpreted the Constitution as conditioning the proper exercise of court-martial jurisdiction over an offense on one factor: the military status of the accused.” The problem with Rehnquist’s analysis is that he used cases concerning the scope of the Make Rules Clause to reach an implicit conclusion about the scope of the Grand Jury Indictment Clause—when there was plenty of countervailing evidence for the proposition that the scope of the two provisions was not identical. As Justice Marshall observed,

the exception contained in the Fifth Amendment is expressed—and applies by its terms—only to cases arising in the Armed Forces. O’Callahan addressed not whether [the Make Rules Clause] empowered Congress to create court-martial jurisdiction over all crimes committed by service members, but rather whether Congress, in exercising that power, had encroached upon the rights of members of Armed Forces whose cases did not “arise in” the Armed Forces. 

Solorio thereby used the language of the Make Rules Clause to countenance a broadening of the Article III exception as compared to that which could have been tied directly to the text of the Grand Jury Indictment Clause—and with dramatic consequences, holding that “determinations concerning the scope of court-martial jurisdiction over offenses committed by servicemen [is] a matter reserved for Congress.” And because of the scope of the UCMJ, especially Article 134, servicemembers therefore became subject to trial by court-martial by dint of Solorio for virtually any offense, anytime, anywhere.

At the same time, although Solorio thereby put serious pressure on the scope of the military exception, that pressure may have come with a silver lining. After all, “the logic of Solorio,” by shifting focus from the Grand Jury Indictment Clause to the Make Rules Clause, “cuts very much against congressional power to subject individuals outside the scope of the Make Rules Clause to military jurisdiction, unless another source of such legislative authority can be identified.” In other words, Solorio may have undermined the existing textual basis for the military exception to Article III, but it at least replaced it with an alternative bright line—those cases falling within the scope of the Make Rules Clause (and, presumably, only those).

II.  The Graham Amendment and United States v. Ali

This understanding of Solorio helps to explain the significance of CAAF’s 2012 decision in United States v. Ali, upholding the constitutionality of the court-martial of a non-citizen civilian contractor in Iraq. In the first case to test the constitutionality of a 2006 amendment to the UCMJ introduced by Senator Graham that authorized courts-martial of civilian contractors "serving with or accompanying an armed force in the field" during a "contingency operation", the majority concluded that Ali, as a non-citizen lacking substantial voluntary connections to the United States, lacked the constitutional entitlement to jury-trial protections that otherwise constrained military jurisdiction. Leaving aside the flaws in the majority’s analysis of Ali’s constitutional rights, the CAAF majority also completely ignored the Article I question, i.e., why Ali’s case fit within the Make Rules Clause—and thereby satisfied Solorio.

In his opinion concurring in the judgment, Chief Judge Baker paid far more attention to the Article I question—and the source of Congress’s power that allowed it to provide for the court-martial of a civilian contractor. As he explained, “In the current legal context, I do not find sufficient positive authority to reach this result on the authority implied from [the Make Rules Clause] alone.” Instead, he traced Congress’s power to its “enumerated and implied war powers,” and then proceeded to articulate a series of five principles that would illuminate the permissible scope of such legislative authority—explaining why they supported Congress’s power to subject Ali to a military trial. And because Ali’s offense occurred while he was accompanying the troops in the field, it also fell within the Fifth Amendment’s exception for “cases arising in the land or naval forces,” even if he was not himself a member thereof.

The merits of Chief Judge Baker’s analysis aside, the larger point to take away from his opinion is the extent to which it rested the constitutionality of Ali’s court-martial conviction not on the defendant’s citizenship-based lack of jury-trial rights, but on the extent to which his was a “case[] arising in the land or naval forces,” even though Congress, in Baker’s view, did not have the power to proscribe his conduct pursuant to the Make Rules Clause. In other words, whereas Solorio justified a departure from the textual constraints of the Grand Jury Indictment Clause by focusing on the Make Rules Clause, Ali justified a departure from Solorio’s reading of the Make Rules Clause by focusing on the plain text of the Grand Jury Indictment Clause—completing the vitiation of the hitherto-essential relationship between those provisions.

If, as seems likely, Chief Judge Baker’s analysis comes to be seen as the more defensible explanation for the result in Ali, then it could yield dramatic (if subtle) consequences for the scope of the military exception to Article III. After all, by his logic, cases could properly be tried in military courts whenever they “arise in the land or naval forces,” regardless of the status of the offender, the substantive nature of his conduct, or the specific enumerated power of Congress pursuant to which that conduct has been proscribed. So long as Congress is acting pursuant to its “war powers,” Chief Judge Baker’s analysis would conceivably allow it to subject to trial by court-martial any offense committed by any individual accompanying U.S. armed forces for any purpose anywhere in the world. And while reasonable minds may dispute the wisdom of such expansive military jurisdiction, what cannot be gainsaid is the fairly dramatic expansion of the military exception to Article III that such a result would portend.

III.  The Military Commissions Act of 2006 and the "U.S. Common Law of War"

One can also find in recent developments a similarly subtle—but crucial—shift in the perceived scope of the military exception as applied to military commissions. Recall from yesterday that the Supreme Court in Ex parte Quirin upheld the use of commissions based on the conclusions that (1) Congress had authorized military trials for violations of the laws of war pursuant to Article I’s Define and Punish Clause; and (2) the jury-trial provisions include an implicit exception for “offenses committed by enemy belligerents against the laws of war.”

And although this understanding was at the heart of the commissions created by the Bush Administration in November 2001 to try non-citizen terrorism suspects believed to be affiliated with al Qaeda, the Supreme Court in Hamdan I identified three flaws with the Bush Administration commissions: (1) insofar as they authorized trials for non-international war crimes like conspiracy, they exceeded the authority Congress had provided in Article 21; (2) they failed to comply with the procedural “regularity” requirement of the UCMJ; and (3) they were inconsistent with Common Article 3 of the Geneva Conventions.

Congress responded in the Military Commissions Act of 2006 (MCA) by enumerating specific substantive offenses triable by military commissions, including conspiracy and “providing material support to terrorism.” In Hamdan II, the D.C. Circuit held that the MCA did not in fact authorize retroactive imposition of liability for offenses that were not international war crimes at the time of their commission, lest Congress provoke grave constitutional questions under the Ex Post Facto Clause.

In the process, Hamdan II necessarily sidestepped the question of whether the military exception to Article III could be broadened to encompass prospective military commission trials of offenses not recognized as international war crimes, but rather violations of the "U.S. common law of war"—and therefore outside the scope of the framework articulated in Quirin. [Only one case appears to have raised this question, and it's still in the early, pre-trial stages.] In a solo footnote, though, Judge Kavanaugh suggested that such an expansion would be permissible, noting that he:

would conclude that Congress has authority under Article I, § 8 to establish material support for terrorism as a war crime that, when committed by an alien, may be tried by military commission. Although material support for terrorism is not yet an international-law war crime, Congress’s war powers under Article I are not defined or constrained by international law. The Declare War Clause and the other Article I war powers clauses do not refer to international law, unlike the Define and Punish Clause. 

Of course, even if Congress has the authority to articulate war crimes pursuant to enumerated powers other than the Define and Punish Clause, that does not answer the Article III question, nor does it even identify the exception to Article III that allows the trial of such offenses before non-Article III military commissions. Presumably, though, the idea behind Judge Kavanaugh’s analysis is that the jury-trial exception identified in Quirin—i.e., for offenses committed by enemy belligerents against the laws of war—also encompasses offenses against the "U.S. common law of war." If so, that, too, would portend a dramatic expansion in the scope of the military exception, for it would untether military commission jurisdiction from the one constraint to which it has historically adhered, i.e., violations of the international laws of war.

IV.  The Destabilization of the Military Exception

Between them, Solorio, Chief Judge Baker’s concurrence in Ali, and Judge Kavanaugh’s solo footnote in Hamdan II thereby produce (or at least envision) three specific expansions in the military exception as compared to the pre-Solorio status quo: (1) the expansion of court-martial jurisdiction to encompass non-service-connected offenses by servicemembers; (2) the expansion of court-martial jurisdiction to encompass offenses by civilian contractors serving with or accompanying the armed forces in the field during a "contingency operation"; and (3) the expansion of military commission jurisdiction to encompass offenses not recognized as international war crimes. And although these developments might each be questioned in their own right, the far more significant point is the extent to which they cannot be reconciled with either the legal or philosophical justifications for the military exception.

Taking the constitutional justifications first, whether or not one accepts Chief Justice Rehnquist’s interpretation of the Make Rules Clause in Solorio as encompassing non-service-connected offenses, the more significant issue arises from his—largely implicit—sidestepping of the text of the Fifth Amendment’s Grand Jury Indictment Clause, which only exempts cases “arising in the land or naval forces.” It is possible, of course, that the Solorio Court was of the view that any case involving a member of the land or naval forces necessarily “arises” therein, but that is not only a strained parsing of the constitutional text; it is also wholly inconsistent with prior precedent. As Justice Harlan explained in 1960, “[t]he Fifth Amendment excepts from its protection ‘cases arising,’ not persons, ‘in the land or naval forces.” And insofar as Solorio held that a servicemember could be tried by a court-martial even for a case that did not arise in the land or naval forces, that, too, would have been foreclosed by case law.

Whereas Solorio thereby ignored the constraints the Court had previously read into the Grand Jury Indictment Clause, Ali ignored the constraints that had been read into the Make Rules Clause. The majority upheld the court-martial of a civilian contractor based upon the (debatable) proposition that he categorically fell outside the scope of the Fifth and Sixth Amendments; and Chief Judge Baker’s far-more-persuasive concurrence nevertheless assumed—contra prior precedent—that Congress could subject offenses to trial by court-martial pursuant to “war” powers other than the Make Rules Clause.

And although it arose in a different context, Judge Kavanaugh’s solo footnote in Hamdan II reflected versions of both of those analytical shortcomings. After all, it not only asserted that Congress could use authorities other than the Define and Punish Clause to codify “domestic” war crimes triable by military commission, it also assumed that an as-yet-unidentified exception to the jury-trial provisions would support such non-Article III federal trials.

Taken together, all three of these jurisprudential developments represent a fundamental departure from the principle that had previously constrained the military exception—that there are specific links between Congress’s enumerated powers and jury-trial exceptions justifying each assertion of non-Article III adjudicatory authority. In the process, these developments also open the door to an expanding “civilianization” of military jurisdiction, where a far broader scope of offenses and offenders become subject to military, rather than civilian trials. And as the above analysis underscores, such developments come at the cost of doctrinal stability—opening the door to the revisiting of questions concerning expansions in military jurisdiction that had long been viewed as settled.

Separate from their doctrinal consistency (or lack thereof), it is also difficult to defend on philosophical grounds such expansions of the military exception to encompass traditionally nonmilitary offenses or offenders. As a matter of logic and practice, civilian offenses or offenders necessarily raise far fewer concerns about the need for separation between the military and civilian justice systems, since such offenders and offenses are typically within the purview of civilian courts, at least absent compelling evidence that civilian—as opposed to military—prosecutions have negatively impacted the military’s ability to preserve “good order and discipline” within the ranks. 

Relatedly, although arguments could have been made in the past that the inability of civilian courts formally to handle these cases was itself a justification for military jurisdiction, such claims have been overtaken by subsequent events. With regard to courts-martial, for example, the Military Extraterritorial Jurisdiction Act of 2000 (MEJA) has closed most of the “jurisdictional gap” that the Second Circuit famously decried with respect to nonmilitary offenses committed by civilians or former servicemembers outside the territorial United States. And MEJA’s implementing regulations have gone a long way toward ameliorating the logistical and procedural difficulties that might otherwise arise in such cases.

And with regard to prosecutions for war crimes, two analogous developments support a similar conclusion: Congress’s enactment of the War Crimes Act of 1996, which paved the way for prosecution in civilian courts of international war crimes committed by both our own servicemembers and enemy belligerents; and the post-September 11 expansion of most of our major civilian terrorism offenses to encompass extraterritorial conduct, including “material support”—the offense at the heart of most of the MCA prosecutions, including Hamdan II. Simply put, the Article III courts are both available and able today to entertain prosecutions for virtually all of the nonmilitary offenses or offenders implicated in these three expansions of the military exception—a point that cuts rather decisively against any defenses of such expansions grounded in legal or political imperative. Given their potentially destabilizing effects on existing Article III doctrine and the absence of convincing justifications for the benefits that would justify such costs, these expansions in the scope of the military exception to Article III cannot be defended solely by reference to the pre-existing military courts jurisprudence.

The paper explains in more detail why the military exception also can't be squared with the Supreme Court's justification of other non-Article III federal adjudication, and I won't bore readers with those details here. Instead, the larger point is to underscore not just how much these three expansions have destabilized the military exception, but have highlighted how unstable it was to begin with. Simply put, the Supreme Court's jurisprudence has never provided a coherent, cross-cutting explanation for the various strands of the military exception. The question I tackle in my last post, tomorrow, is whether such an explanation might nevertheless exist--in the form of the permissible use of military jurisdiction under international law.