By Eugene R. Fidell
With the major changes Congress enacted in the Military Justice Act of 2016,[1] perhaps it would be useful to try to sketch the arc of American military justice and its place in the national legal firmament since the Uniform Code of Military Justice (UCMJ) was enacted in 1950.[2] These comments are preliminary and reflect my personal views based on many years’ involvement with the military justice system. Not everyone will identify and arrange the data points the same way.
In the past, efforts have been made to characterize various periods, e.g., judicialization[3] or civilianization.[4] I would offer four basic phases, with leading figures for the first three. Like the Middle Ages, the Romantic Era, or the Industrial Revolution, these phases do not necessarily have bright-line start- or end-dates. In fact, they plainly overlap one another.
First, the period of reaction. I associate this initial period with Felix E. Larkin, for whom much of the credit for the UCMJ must go.[5] This period begins after World War II and ends with enactment of the Code five years later. This is largely a period of reaction to the abuses that were experienced in the administration of military justice during the war.[6] There were three primary features—
- Creation of a civilian court of appeals[7]
- Outlawry of unlawful command influence (UCI)[8]
- Imposition of a single criminal code for all branches of the armed forces—although the services retained (and continue to retain) very substantial autonomy despite the ostensibly “uniform” code[9]
Second, the period of institution-building. I associate this period with Chief Judge Robert E. Quinn, the former Rhode Island Governor who led the Court of Military Appeals during its formative years.[10] The chief features of this period are—
- The doctrine of “military due process”[11]
- The related “Brosman doctrine” according to which the court was “freer than most” in picking the best rule of decision[12]
- The court’s suprising willingness to entertain petitions for review that raise no legal issues
- The related profligate use of the power to specify issues not raised by the parties[13]
- Resistance to efforts by the Judge Advocate General’s corps to trim back the court’s powers[14]
Third, the period of both normalization and expansion. I associate this period with Duke Law School professor and Court of Military Appeals judge Robinson O. Everett. His colleague and friend, Walter T. Cox III has written: “Judge Everett sincerely believed that Congress intended for the Court of Military Appeals to behave and rule on matters in the same sense as any other federal court.”[15] I would go further. Although he may not have articulated it in so many words, his vision—“project” may be putting it too strongly—was to place the court (and the system), as nearly as possible, on an equal footing with other courts in our country. His goal, I argue, was to make the court-martial as close to a court of general jurisdiction as the traffic would bear. On the whole, he and others who shared this vision succeeded. (I have not set aside as a separate phase the unhappy[16] decade (1975-85) during which Albert B. Fletcher, Jr. served on the court. The legacy of his turbulent years as Chief Judge until President Carter unhorsed him in 1980 proved to be modest, with more heat than light, much less any lasting positive impact.)
- A military trial bench was created
- The boards of review became true courts
- The right to counsel was expanded
- The All Writs Act[17] proved to be a major source of authority for the court[18]
- The Federal Rules of Evidence were adopted, with minor exceptions, as the Military Rules of Evidence[19]
- Some cases became subject to direct appellate review by the Supreme Court,[20] thereby reducing the need for collateral review in the Article III courts[21]
- The status test was substituted for the service-connection test after 18 years under O’Callahan v. Parker[22]
- Congress reasserted jurisdiction over civilians in limited circumstances[23]
- Efforts by a DoD General Counsel to abolish the court and transfer its jurisdiction to the Fourth Circuit[24] proved to be a nonstarter
- The court successfully asserted its power to invalidate a Code provision as unconstitutional[25]
- Military death penalty jurisprudence was brought into line with civilian Eighth Amendment jurisprudence[26]
- The court assisted national defense by helping the services contain the epidemic of drug abuse[27]
- The court was expanded to five judges[28] and given a new name[29] that sounds more like that given to the circuit courts
- The political balance test was repealed[30]
- The President’s power to designate the chief judge was repealed[31]
- Publication of the court’s decisions was taken over in 1976 by West Publishing Co.
- The unique military defense of good military character, which tended to favor male personnel with longer service,[32] was substantially restricted[33]
- Unique military punishments—loss of numbers, bread and water, and diminished rations—were abolished[34]
The vision imputed here to Judge Everett, which arguably took shape long before he joined the court and ended well after his judicial service, was not a complete success. Where did it fall short?
- Despite repeated proposals (and Judge Everett’s support),[35] Congress never made the court an Article III court[36]
- The court never seized the opportunity to develop a real bar[37]
- Congress never gave the court authority over administrative separations[38] (or pay matters)[39]
- The Supreme Court disapproved the court’s boardinghouse reach in Clinton v. Goldsmith[40]
- Congress excluded the lion’s share of courts-martial from direct appellate review by the Supreme Court[41]
- Non-service-connected prosecutions proved to be fairly infrequent[42]
- Two judges resigned in order to accept appointment as federal district judges[43]
- The court’s cases were relegated in large measure to a single digest topic (Military Justice) in West’s influential key number system and were rarely cited by civilian courts[44]
- The court’s dockets remained outside the federal courts’ PACER system
- UCI incidents of every size and shape continued to arise[45]
- Member selection remained the convening authority’s responsibility[46] (without meaningful judicial policing of compliance with the “best qualified” requirement for panel membership)[47]
- After long resistance from the armed forces,[48] minimum terms of office were finally required for all trial and CCA judges[49]—but the minimum prescribed (three years)[50] is too short to ensure judicial independence[51]
Fourth, the current period of contraction and structural reappraisal. Despite the Supreme Court’s favorable assessment in Ortiz v. United States,[52] the picture is uneven and, in important respects, in flux—
- Increased activism in Congress
- Some good
- addressing concerns about sexual assault and victims’ interests[53]
- persistence of some legislators in raising basic structural issues relating to the role of commanders[54]
- Some bad
- Dispensing with hearings on the major changes enacted in the Military Justice Act of 2016[55]
- Needless complication of courts and sentencing in the 2016 Act[56]
- Abandonment of the doctrine of apparent UCI for events after December 2019[57]
- Recurring congressional UCI[58]
- Senate retaliation against convening authorities[59]
- Some good
- Judges were appointed with exceptional qualifications, including former Supreme Court law clerks[60]
- Inexcusable continuing failure of the Executive Branch and Congress to remedy unequal access to the Supreme Court[61]
- Systemic complications due to special victims’ counsel programs[62]
- Reduced caseloads due to overall drawdowns and (presumably) improved conduct by personnel
- Increased reliance on administrative sanctions and separations in lieu of disciplinary action[63]
- The court’s persistently narrow view of its own jurisdiction[64]
- Featherbedding
- CAAF caseload v. staffing levels
- Trial court and CCA caseloads v. judicial and counsel staffing levels[65]
- Racial disparity concerns[69]
- The high incidence of sexual assault, domestic violence, and child pornography cases vice traditional military offenses undermines the argument for a specialized appellate court
- Circumstances and expectations have not remained static since 1950 (a period that is beginning to rival the time that elapsed between Appomattox and Pearl Harbor)
- The changing nature of warfare and force diversity
- The abandonment of conscription
- The criminal law revolution
- The growth of human rights jurisprudence
- Evolving patterns of state practice
A case can be made for the ironic proposition that, by achieving something closer to parity with the civilian courts, the long-term success of the vision I impute to Judge Everett sounded the death knell for the current system—an increasingly Lilliputian jurisdiction[70] (actually a congeries of sibling micro-jurisdictions applying the same statute but wearing different uniforms) that generates so few cases and whose claim to specialization is so eroded that it cannot realistically expect to survive in its current form over the long term. Put another way, did he lose the war by winning it?
–
Eugene Fidell is a Senior Research Scholar at Yale Law School, Adjunct Professor at NYU Law School, and of counsel at Feldesman Tucker Leifer Fidell LLP. This post is adapted from comments at a January 15, 2021 workshop co-sponsored by West Point’s Center for the Rule of Law, Hofstra University’s Maurice A. Deane School of Law, and Columbia Law School. He is grateful to Dwight H. Sullivan for a close read and helpful suggestions.
[1] National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016). The best analysis so far of the 2016 Act is David A. Schlueter, Reforming Military Justice: An Analysis of the Military Justice Act of 2016, 49 St. Mary’s L.J. 1 (2017).
[2] Act of May 5, 1950, 64 Stat. 109 (1950). The UCMJ is now found at 10 U.S.C. ch. 47.
[3] E.g., John Jay Douglass, The Judicialization of Military Courts, 22 Hastings L.J. 213 (1970-71).
[4] E.g., Edward F. Sherman, The Civilianization of Military Law, 22 Me. L. Rev. 3 (1970).
[5] Larkin was generous in crediting others. See Felix R. Larkin, Professor Edmund M. Morgan and the Drafting of the Code, 28 Mil. L. Rev. 7 (1965).
[6] The definitive treatment of the history of the Code as well as of the Court of Military Appeals through 1980 is Jonathan Lurie, Military Justice in America: The U.S. Court of Appeals for the Armed Forces, 1775-1980 (rev. & abridged ed. 2001). Another useful source is William T. Generous, Jr., Swords and Scales: The Development of the Uniform Code of Military Justice (1973). More recently, a former chief judge of the Court of Appeals for the Armed Forces has written an insightful survey of the post-World War II legislation. See Andrew S. Effron, United States v. DuBay and the Evolution of Military Law, 207 Mil. L. Rev. 1, 4-14 (2011).
[7] Other democratic countries also created civilian appellate bodies after World War II. These include the Court Martial Appeal Courts of the United Kingdom and Canada and the Defence Force Discipline Appeal Tribunal in Australia. It was not until 2007 that India created the Armed Forces Tribunal. See Armed Forces Tribunal Act, 2007 (India).
[8] See art. 37, UCMJ.
[9] Prior to the UCMJ, the armed forces had separate military justice laws: Articles of War for the Army and Air Force, Articles for the Government of the Navy for the Navy and Marine Corps, and Disciplinary Laws of the Coast Guard.
[10] Chief Judge Quinn led the court from 1951 to 1971 and continued to serve as a judge until 1975.
[11] See Seymour W. Wurfel, “Military Due Process”: What Is It?, 6 Vand. L. Rev. 251 (1952-53). For its demise see, e.g., United States v. Vazquez, 72 M.J. 13, 19 (C.A.A.F. 2013).
[12] See Paul W. Brosman, The Court: Freer than Most, 6 Vand. L. Rev. 166 (1953). This doctrine was a source of the court’s vulnerability. See Eugene R. Fidell & Linda Greenhouse, A Roving Commission: Specified Issues and the Function of the United States Court of Military Appeals, 122 Mil. L. Rev. 117, 119 & n.13 (1988).
[13] Eugene R. Fidell, The Specification of Appellate Issues by the United States Court of Military Appeals, 31 JAG J. 99 (1980).
[14] See generally Annual Report of the U.S. Court of Military Appeals and the Judge Advocates General of the Armed Forces and the General Counsel of the Department of the Treasury, Jan. 1 to Dec. 31, 1960 (1961).
[15] Walter Thompson Cox III, The Honorable Robinson O. Everett: Chief Judge, 59 Duke L.J. 1439, 1443 (2010).
[16] See Lurie, supra note 6; see also Tuan Samahon, Blackmun (and Scalia) at the Bat: The Court’s Separation of Powers Strike Out in Freytag, 12 Nev. L.J. 691, 698-99 (2012).
[17] 28 U.S.C. § 1651.
[18] Michael E. Brown, Note, Building a System of Justice Through the All Writs Act, 52 Ind. L.J. 189 (1976).
[19] Ex. Order No. 12,198, 45 Fed. Reg. 16,932 (1980).
[20] Military Justice Act of 1983, Pub. L. No. 98-209, 97 Stat. 1398 (1983); 28 U.S.C. § 1259.
[21] Expansion of the Supreme Court’s certiorari jurisdiction has overwhelmingly benefited the government, not the accused. See, e.g., United States v. Scheffer, 523 U.S. 303 (1998); Weiss v. United States, 510 U.S. 163 (1994); Solorio v. United States, 483 U.S. 435 (1984). Military personnel have continued to seek collateral review in the Article III courts, e.g., Larrabee v. Braithwaite, ___ F. Supp.3d ___, 2020 WL 6822706 (D.D.C. 2020), appeal pending sub nom. Larrabee v. Harker, No. 21-5012 (D.C. Cir. filed Jan. 22, 2021), and the U.S. Court of Federal Claims. E.g., West v. United States, 145 Fed. Cl. 112 (2019), appeal docketed, No. 19-2415 (Fed. Cir. Sept. 19, 2019).
[22] 395 U.S. 258 (1969).
[23] Art. 2(a)(10), UCMJ, as amended by Pub. L. No. 109-364, § 552, 120 Stat. 2217 (2006).
[24] This was one of the options noted in Dep’t of Defense, Off. of General Counsel, Reform of the Court of Military Appeals (May 7, 1979). See also John J. Pavlick, Jr., Extraordinary Writs in the Military Justice System: A Different Perspective, 84 Mil. L. Rev. 7, 11-12 & n.14 (1979).
[25] United States v. Matthews, 16 M.J. 354 (C.M.A. 1983).
[26] See Loving v. United States, 517 U.S. 748 (1996).
[27] E.g., United States v. Trottier, 9 M.J. 337 (C.M.A. 1980).
[28] National Defense Authorization Act for Fiscal Years 1990 and 1991, Pub. L. No. 101-189, § 1301, 103 Stat. 1569-70 (1989).
[29] National Defense Authorization Act for Fiscal Year 1995, Pub. L. No. 103-337, § 924, 108 Stat. 2831 (1994).
[30] National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 541(c), 130 Stat. 2125 (2016).
[31] National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 102-484, § 1061(a), 106 Stat. 2503 (1992).
[32] See generally Elizabeth Lutes Hillman, The “Good Soldier” Defense: Character Evidence and Military Rank at Courts-Martial, 108 Yale L.J. 879 (1999).
[33] Mil. R. Evid. 404(a)(2)(A).
[34] See generally Eugene R. Fidell & Jay M. Fidell, Loss of Numbers, 48 Naval L. Rev. 194 (2001). Bread and water and diminished rations were abolished as permissible court-martial punishments in 1995, Ex. Order No. 12,960, § 2d, 60 Fed. Reg. 26,647 (1995), and as nonjudicial punishments by the Military Justice Act of 2016. Pub. L. No. 114-328, § 5141, 130 Stat. 2000, 2897.
[35] See 1 Dep’t of Defense, Report of the Military Justice Act of 1983 Advisory Commission 69 (1984) (reproducing speech given at Maxwell Air Force Base, Apr. 3, 1984).
[36] An advisory committee recommended the change by a 6-3 vote in 1984, see 1 Report of the Military Justice Act of 1983 Advisory Commission, supra, at vi, 11, but the Department of Defense resisted such proposals. See generally Dep’t of Defense, Off. of Gen. Counsel, Report of the Department of Defense Study Group on the United States Court of Military Appeals (July 25, 1988).
[37] “The bar of the Court is not officially organized.” Eugene R. Fidell & Dwight H. Sullivan, Guide to the Rules of Practice and Procedure for the United States Court of Appeals for the Armed Forces § 13.03[1], at 113 (19th ed. 2020).
[38] E.g., Zanella v. Ehrie, 30 M.J. 171 (C.A.A.F. 1990) (mem.).
[39] See United States v. Guardado, 79 M.J. 301, 304 (C.A.A.F. 2020); United States v. Dinger, 77 M.J. 447, 454 (C.A.A.F. 2018); Keys v. Cole, 31 M.J. 228, 234 & n.3 (C.M.A. 1990).
[40] 526 U.S. 529 (1999).
[41] 28 U.S.C. § 1259(3); art. 67a(a), UCMJ. See generally Eugene R. Fidell & Stephen I. Vladeck, Second-Class Justice in the Military, N.Y. Times, Mar. 20, 2019; Eugene R. Fidell & Stephen I. Vladeck, Memorandum on the Servicemembers Equality Act of 2019 (Mar. 18, 2019), in Eugene R. Fidell, Elizabeth L. Hillman, Joshua E. Kastenberg, Franklin D. Rosenblatt, Dwight H. Sullivan & Rachel E. VanLandingham, Military Justice: Cases and Materials 731-34 (3d ed. 2020); Eugene R. Fidell, Elizabeth L. Hillman, Dwight H. Sullivan, Stephen A, Saltzburg, Kate Stith & Judith Resnik, How “Robust” is Appellate Review of Courts-Martial?, Balkinization, May 8, 2013. The exclusion of cases in which the Court of Appeals for the Armed Forces has denied a petition for grant of review under art. 67(a)(3), UCMJ, violates the separation of powers and Fifth Amendment equal protection, is arbitrary and capricious, violates the One Supreme Court Clause, and exceeds Congress’s power under the Exceptions Clause because denials vastly outnumber grants. See generally Eugene R. Fidell, Brenner M. Fissell & Philip D. Cave, Equal Supreme Court Access for Military Personnel: An Overdue Reform, 131 Yale L.J. Forum ___ (2021).
[42] See, e.g., Eugene R. Fidell, An Anniversary, Global Mil. J. Reform, Feb. 24, 2017 (noting paucity of non-service-connected cases).
[43] Judge Matthew J. Perry accepted an appointment after three years to the District of South Carolina. Judge Robert M. Duncan accepted an appointment after three years to the Southern District of Ohio.
[44] See generally Eugene R. Fidell, “If a Tree Falls in the Forest . . .”: Publication and Digesting Policies and the Potential Contribution of Military Courts to American Law, 32 JAG J. 1 (1982); Fidell & Sullivan, supra note 38, § 42.03[9], at 363.
[45] E.g., United States v. Bergdahl, 80 M.J. 230 (C.A.A.F. 2020); United States v. Barry, 78 M.J. 70 (C.A.A.F. 2018); United States v. Boyce, 76 M.J. 242 (C.A.A.F. 2017).
[46] Art. 25, UCMJ.
[47] E.g., United States v. Sullivan, 74 M.J. 448 (C.A.A.F. 2015).
[48] E.g., Weiss v. United States, supra note 22.
[49] National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, §§ 5184, 5330, 130 Stat. 2901, 2932 (2016); arts. 26(c)(4) & 66(a), UCMJ.
[50] R.C.M. 502(c)(1)(3), 1203(a) (requiring terms of not less than three years).
[51] The terms of office must be at least three years and may be renewed. Given its effect on independence, renewability is a bug, not a feature in this context.
[52] 138 S. Ct. 2165 (2018).
[53] E.g., art. 6b, UCMJ; 10 U.S.C. § 1044e; R.C.M. 806(b)(3), 1001(c), 1106A, 1109(d)(3)(J), 1304(a)(4); Mil. R. Evid. 514.
[54] Sen. Kirsten Gillibrand and Rep. Jackie Speier have been especially dedicated in this respect.
[55] See Schlueter, supra note 1, at 21 & n.90.
[56] The act created a new subset of judge-alone special court-martial with limited sentencing powers, and fundamentally different frameworks for sentencing by judges and panel members. See arts. 16(c)(2)(A), 56(c)(2)-(3), UCMJ.
[57] National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, § 532(a)(4), 133 Stat. 1360 (2019); art. 37(c), UCMJ.
[58] E.g., United States v. Bergdahl, supra. Federal legislators persist in meddling in retail military justice because no one has ever penalized them for doing so, and it is easy to seem heroic when calling for harsh punishment of offenders. See, e.g., Rachel E. VanLandingham, The Best Way to Handle Veterans, Active-Duty Military That Participated in Capitol Riot, The Hill, Jan. 14, 2021; Eugene R. Fidell, Congressional UCI, Anyone?, Global Mil. J. Reform, Jan. 16, 2021.
[59] See Mark Visger, The Canary in the Military Justice Mineshaft: A Review of Recent Sexual Assault Courts-Martial Tainted by Unlawful Command Influence, 41 Mitchell Hamline L.J. Pub. Pol’y & Practice 59, 71-74 (2019).
[60] Judges Margaret A. Ryan, Gregory E. Maggs, and Liam P. Hardy had all been Supreme Court clerks.
[61] See generally note 42 supra.
[62] E.g., LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013).
[63] Secretary of Defense James N. Mattis, a retired Marine general, was sufficiently nonplussed by the fall-off in courts-martial that in 2018 he issued a policy statement on the subject. See Aaron Mehta, Mattis Wants Commanders to Rely More on UCMJ for Disciplinary Problems, Mil. Times, Aug. 14, 2018. It seems not to have had much effect on convening authorities.
[64] E.g., Gray v. United States, 77 M.J. 5, 6 (C.A.A.F. 2017) (per curiam); Randolph v. HV, 76 M.J. 27 (C.A.A.F. 2017); EV v. United States, 75 M.J. 331 (C.A.A.F. 2016).
[65] See Don R. Christensen, Should Courts-Martial Be On The Endangered Species List?, CAAFlog, Jan. 13, 2021; Eugene R. Fidell, Right-Sizing III, Global Mil. J. Reform, Dec. 17, 2020; Eugene R. Fidell, Right-Sizing, Global Mil. J. Reform, Dec. 10, 2020.
[66] United States v. Schneider, 38 M.J. 387 (C.A.A.F. 1993).
[67] United States v. Hennis, 79 M.J. 370 (C.A.A.F. 2020), cert. denied, ___ S. Ct. ___, 2021 WL 78103 (U.S. Jan. 11, 2021) (No. 20-301).
[68] See Arianna MacNeill, Military Charges Marine with Murder in Death of Emerson Student Daniel Hollis, Boston.com, Nov. 16, 2020.
[69] See Barry K. Robinson & Edgar Chen, Déjà Vu All Over Again: Racial Disparity in the Military Justice System, Just Security, Sept. 14, 2020.