Professors Geoffrey S. Corn and Chris Jenks have a new article in the Georgetown Law Journal Online, titled A Military Justice Solution in Search of a Problem: A Response to Vladeck. Here's their introduction:
In “Military Courts and Article III,” our colleague and fellow law professor Steve Vladeck has made an original and important contribution to the literature on the interaction of military tribunals with Article III of the U.S. Constitution. Professor Vladeck argues that what he calls the “military exception” to Article III’s requirements of a jury trial and lifetime-tenured judge has “increasingly become untethered from any textual or analytical moorings.” In particular, Professor Vladeck questions the power of military commissions to try suspected terrorists on charges that do not constitute international war crimes and the power of courts-martial to try civilian contractors and hear charges based on alleged “non-service-connected” conduct by members of the armed forces of the United States.
Professor Vladeck views these perceived flaws as a problem that must be remedied by his counter-historical proposal: that international law should govern Congress’s power to establish both military commissions to try suspected terrorists and courts-martial to try members of the U.S. armed forces. Our response, which centers on courts-martial, argues that Professor Vladeck has offered a solution in search of a problem. Moreover, Professor Vladeck’s analysis fails to acknowledge the importance of deference to Congress’s exercise of its war powers, and the resonance of U.S. and English history familiar to the Framers. We write to clarify the categories of military jurisdiction, their basis, and their rationale.The article is recommended reading, and in the interest of stimulating discussion prompts three thoughts concerning service-connection (or nexus). First, Solorio v. United States, 483 U.S. 435 (1987) (disclosure: the editor argued on behalf of the American Civil Liberties Union in the Supreme Court) deals with whether the Constitution requires service-connection as a predicate to court-martial subject matter jurisdiction. Congress could, in the exercise of its authority under Article I, § 8, cl. 14, impose such a requirement as a matter of legislative judgment. Second, in the nearly three decades [egad!] since Solorio was decided, human rights discourse has increasingly concluded that military courts should try only military-type offenses. In time perhaps that trend will influence not only Congress but (depending on how the membership of the Supreme Court changes) also the justices. Finally, those concerned with this important issue should keep an eye on the brace of military justice cases now pending in the Canadian Supreme Court. They come on for hearing in Ottawa the week after next. The decision may provide food for thought for lawyers, lawmakers, and even law professors in other countries.
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