An anniversary

Thirty years ago today, the Supreme Court of the United States heard oral argument in Solorio v. United States, 483 U.S. 435 (1987). The audio is available here. Overruling two of its own precedents, the court ruled that merely being on active duty was a sufficient basis for the exercise of court-martial jurisdiction, and that service-connection beyond that was not required by the Constitution. (Full disclosure: the Editor was counsel for the American Civil Liberties Union, an amicus curiae supporting Petty Officer Solorio. The parties were represented by Lieutenant Commander Robert W. Bruce of the Coast Guard and Solicitor General Charles Fried.)

Since that fateful day, two things of note have happened.

First, rather few cases that could not have been tried under prior case law have in fact been tried by American courts-martial. As a result, it would certainly seem that good order and discipline would be unaffected if courts-martial did not have their current "anything goes" subject matter jurisdiction.

Second, while not every country has gotten the message (e.g., Canada), human rights jurisprudence is increasingly firm that courts-martial should have subject matter jurisdiction only over military offenses and offenses with some functional nexus to military service. The 2006 draft UN Principles Governing the Administration of Justice Through Military Tribunals observe: "The jurisdiction of military courts should be limited to offences of a strictly military nature committed by military personnel."

Whether or not Solorio was correctly decided, it only holds that the Constitution does not mandate service connection. Congress could -- and should -- reimpose that requirement as a matter of legislative judgment. The result would have no adverse impact on the armed forces other than ever so slightly reducing court-martial case loads, and in the non-service-connected cases that would be pursued by civilian authorities, the result would be to increase the rights of military personnel who are accused of non-service-connected offenses. They would be tried in state courts, where the protections of the Fourteenth Amendment apply with full force.

HASC and SASC: armed with the experience of the intervening 30 years, why not include this in the next military justice bill . . . the one that gives GIs equal access to the Supreme Court?