It is always flattering when serious scholars take the time to respond in print to one’s scholarship, and that’s what my friends Geoff Corn and Chris Jenks have done in their new paper, A Military Justice Solution in Search of a Problem, a response to my recent article, Military Courts and Article III (about which I’ve previously blogged in detail here). Despite the fact that Professors Corn and Jenks mischaracterize various aspects of my article, I’d ordinarily be inclined to leave well enough alone, and let readers decide for themselves who has the better of the relevant arguments.
In this case, though, I feel compelled to pen a reply for two separate—but related—reasons: First, those who only read the Corn and Jenks piece would not only have no idea what my article was actually about, but would also come away with the impression that I spend 50-some-odd pages making up a solution to a made-up problem. Second, and far more importantly, the Corn and Jenks response in many ways vindicates the central descriptive claim of my article—that contemporary courts and commentators have systematically failed to appreciate the Article III implications of modern military jurisdiction. After all, in their response to an article about the relationship between military courts and Article III, Corn and Jenks not only say virtually nothing about Article III, but the one thing they do say is that Article III is (and should be) all-but irrelevant to the constitutional scope of contemporary court-martial jurisdiction over servicemembers and civilian contractors alike. Reasonable people can surely disagree about the extent to which Article III (to say nothing of the rest of the Constitution) limits the jurisdiction of non-Article III federal military adjudication. What I hope no reasonable person can dispute is that such limits exist.
I. What I Wrote vs. What Corn and Jenks Critique
Let me begin by summarizing the four interrelated steps to my article’s thesis:
- The Supreme Court (and, following its lead, lower courts and academic commentators) has long assumed that criminal prosecutions before military judges are one of the three categories of permissible “non-Article III” adjudication. And, whereas the Court (and, following its lead, lower courts and academic commentators) has devoted significant attention in recent years to the “public rights” species of non-Article III adjudication (such as the permissible jurisdiction of bankruptcy courts), it has left the other two categories (military justice and territorial courts) undisturbed. This has left the appearance that the constitutional justifications for—and outer limits of—these tribunals’ jurisdiction are well-settled.
- As a matter of constitutional text, however, the justifications for non-Article III military adjudication are deeply unsatisfying. Thus, the Supreme Court has repeatedly relied upon the Grand Jury Indictment Clause’s exception for “cases arising in the land and naval forces” as textual support for courts-martial’s departure from Article III, notwithstanding the absence of similar language in Article III itself or the Sixth Amendment. This approach also has the preposterously counterintuitive implication that military justice didn’t become constitutional until the Bill of Rights was ratified. As for the other categories of military adjudication—including occupation courts and military commissions—the Court has relied upon a wholly atextual exception to the jury-trial clauses to allow war crimes trials for “offenses committed by enemy belligerents against the laws of war” (which doesn’t actually explain occupation courts). Thus, although courts and commentators have long assumed that there is a unitary category of non-Article III “military” adjudication, the reality is that there are several—with varying, and troublingly incomplete, constitutional justifications.
- Whatever one thinks of these textual justifications in the abstract, they have been tested by three recent developments—the Supreme Court’s 1987 decision in Solorio that sanctioned court-martial jurisdiction over all offenses by servicemembers, and not just those “arising in the land and naval forces,” (and thereby read the Grand Jury Indictment Clause out of the constitutional analysis); the 2006 amendment to the Uniform Code of Military Justice to allow courts-martial to try civilian contractors (who aren’t members of the land and naval forces) serving with or accompanying the armed forces in the field during a contingency operation; and the Military Commissions Act of 2006, which authorizes military commissions to try some non-international war crimes even while the civilian courts are open. Whatever the merits of these developments as a normative matter, they are incredibly difficult to reconcile with the constitutional justifications the Supreme Court has previously offered for military adjudication separate and apart from Article III. They thus underscore the extent to which those prior justifications are themselves deeply vulnerable, both on their own and when tied together.
- Instead, if one did want a more analytically coherent, unifying theory to explain why military courts need not and should not comply with Article III, we might use the example of military commissions, which derive much of their authority (and the limits on their jurisdiction) from the laws of war. Each of the analytical puzzles that have arisen in the Supreme Court’s defense of military jurisdiction would be resolved through such an approach. And, more importantly, we would no longer have to shoehorn military jurisdiction into poor-fit textual provisions (or invented atextual exceptions) if we viewed all military jurisdiction as deriving from prevailing norms of foreign or international practice.
In their response to these arguments, Professors Corn and Jenks argue that I have offered a “misleading” “conflation of court-martial and military commission jurisdiction” that incorrectly incorporates the limits on military commissions into courts-martial (in order to bolster what they call my “jurisdictional overreach” thesis). They then go on to suggest that my resort to international law remedies a problem that I have basically invented.
Virtually nothing about this characterization of my argument is accurate. For starters, the article goes to great lengths to explain, in (nauseating) detail, the separate statutory and constitutional structures and justifications for courts-martial and military commissions. Don’t take my word for it, though; compare, in this regard, Parts I.A.1 and I.C with Parts I.A.2 and I.D, or just look at the Table of Contents. Indeed, as the article explains quite expressly, “there has never been a truly unitary carve-out from Article III for ‘military’ courts.” And as Part IV concludes at page 989, “the most modest—and perhaps correct—reaction to the analysis provided [in Parts II and III of the article] is that there is not one exception to Article III for military courts, but rather two narrow and independent exceptions” for courts-martial and military commissions. (See also page 992: “[O]ne could certainly conclude that the best defense of the military exception is as two different carve-outs: one for commissions based upon prevailing norms of international practice; and one for courts-martial based (mostly) upon constitutional text.”).
The problem with even that modest conclusion, as I explain, is that even it does not hold up to closer inspection. As I explain, “the Justices have upheld instances of both forms of military adjudication in cases appearing to fall outside even these proffered justifications.” That’s why the last 13 pages of the 68-page article outlines a theory that one could (but, critically, need not) embrace if one believed, as at least some Federal Courts scholars do, that we should aspire to analytical coherence in this field. Thus, not only does the article come nowhere close to arguing that the problem “must” be solved by international law; it concedes, in various places, that an alternative solution would be for us to accept the bifurcation of the military exception—and to pay closer attention to the proper constitutional scope of each of those threads on their own, something that current doctrine and commentary doesn’t do particularly well.
Nevertheless, in their response, Corn and Jenks take me to task for “offer[ing] no evidence to support the causal relationship between these two distinct sources of military jurisdiction. Nothing in [my] article indicates that court-martial jurisdiction somehow provided the springboard to justify expansive military commission jurisdiction.” They’re right. Of course, I also don’t offer any evidence of life on Mars—a proposition equally irrelevant to my article’s thesis.
II. The Irrelevance of Article III to the Corn and Jenks Critique
Corn and Jenks criticize me for failing to discuss lots of other things, too, including Article 18 of the UCMJ (but see my article’s footnote 38 and accompanying text); the government’s “reputational interest in deterring current service members’ criminal conduct” (but see footnotes 120–21 and accompanying text); and “the importance of deference and specific U.S. practice” (but see the rather lengthy footnote 211). They also say that I “cannot bring [my]self to recognize that the congressional scheme upheld in [Weiss v. United States] ensures that ‘men and women in the Armed Forces do not leave constitutional safeguards and judicial protection behind when they enter constitutional service,’” implying that my analysis is colored by a view of contemporary military adjudication as the “rough form of justice” decried by Justice Black in Covert (but see footnote 32 and accompanying text).
Once they’re done mischaracterizing my article, Corn and Jenks turn to their defense of the current scope of court-martial jurisdiction, which has two principal hooks: (1) historical practice; and (2) the deference owed to Congress in the exercise of its war powers. Taking these arguments at face value (although there are any number of problems with their rather facile reading of historical practice), note what’s missing: Article III.
To their credit, Corn and Jenks are unabashed on this score: Thus, in one passage they write that “deference and historic practice should usually trump the Article III concerns raised by Professor Vladeck,” and elsewhere, they describe as a “problematic analytical distortion” the fact that my article “analyz[es] military jurisdiction through the lens of Article III instead of the more appropriate lens of Article I and Congress’ enumerated authority to make rules for the land and naval forces.”
This, in the end, is the real point of departure between us: For Corn and Jenks, courts-martial have nothing whatsoever to do with Article III. For them, my real misstep is in trying to bring under Article III’s umbrella a body of jurisprudence that they conceive of as existing wholly apart from (and outside of) the Constitution’s judiciary article. On a blank slate, I could understand the normative allure of Corn and Jenks’ views in this regard. But the slate is not clean.
First, the Supreme Court spent the better part of three decades (from the 1940s through the 1960s) repeatedly imposing limits on the scope of military jurisdiction by reference to, among other constitutional provisions, Article III. Second, Congress has itself increasingly chosen to bring the military justice system within the conventional framework governing the federal courts. The UCMJ itself created service-branch Courts of Criminal Appeals and a civilian Article I (i.e., “non-Article III”) Court of Military Appeals (today the Court of Appeals for the Armed Forces) to entertain appeals from courts-martial, and the Military Justice Act of 1983 in turn brought CAAF (and, thus, most of the court-martial system) under the Supreme Court’s supervisory aegis. Third, the current Court has given every indication that it intends to construe departures from Article III narrowly—with Chief Justice Roberts’ majority opinion in Stern v. Marshall quoting Justice Black’s plurality opinion in Reid v. Covert for the proposition that “Slight encroachments create new boundaries from which legions of power can seek new territory to capture.”
Thus, it may well be that Article III had nothing to say about the scope of courts-martial in 1858, when they were little more than summary, internal disciplinary proceedings wholly within the Executive Branch. But as the Justices have repeatedly recognized, the modernization—and civilianization—of our military justice system, a project in which all three branches have been repeatedly invested, has changed all of that. Corn and Jenks and I may very well disagree as to whether these changes are for the better or the worse. But the notion that Article III is utterly irrelevant to the permissible scope of court-martial jurisdiction today is belied by decades of case law—and statutes—to the contrary. The far murkier enterprise is ascertaining what Article III actually has to say with regard to the permissible scope of military jurisdiction. If anything is clear, though, it’s that the answer is more than nothing.