Friday, December 29, 2006


In “Bartkus v. Illinois” (1959) we are again back to this “sovereignty” issue. An accused was tried and acquitted in Federal District Court for a crime (bank robbery) committed in Illinois but that had a Federal connection. Federal prosecutors then called Illinois prosecutors, worked with them, and Illinois brought its own charges, and convicted him.

The State and Federal prosecutions “were separately conducted”, the Court said, apropos of something. Yes, the FBI had contacted Illinois, and the FBI had turned over all of its evidence to Illinois, and yes, some of that evidence had been gathered after the acquittal in Federal court, but “the only other connection [!] between the two trials is to be found in a suggestion that the federal sentencing of the accomplices who testified against petitioner in both trials was purposely continued by the federal court until after they had testified in the state trial.” Gee. Nothing else? This evidence, says the Court, “does not support the claim that the State of Illinois … was merely a tool of the federal authorities, who thereby avoided the prohibition of the Fifth Amendment against a retrial of a federal prosecution after an acquittal.” Or that “the Illinois prosecution was a sham and a cover for a federal prosecution, and thereby in essential fact another Federal prosecution.”

Both the State and Federal governments retain the power to impose criminal sanctions. The question, though, that’s of concern relating to military justice is not whether there can be [and it’s questionable] a worthwhile division between Federal and State ‘sovereignties’, such that the Constitutional authority of the Federal courts to conduct criminal process can exist distinct from the State courts’ authority to conduct criminal process. The question that’s of concern to our military justice matters is whether the Federal ‘sovereignty’ can be further subdivided within itself, such that the authority to conduct Constitutionally sufficient criminal process a) is even theoretically assignable the military and b) whether the military can ever do a sufficient job of it. The Federal power that is referred to in these cases is the Article III power to conduct that criminal process, and it is distinguished from the court authority authorized by each State’s constitution to conduct criminal process for that State’s laws.

But what the military would have us believe is that in addition to the Federal criminal process power assigned by the Constitution, there can also be a sort of third sovereignty, a subset of the Federal, whereby the military is directly delegated by Congress (Article I) through the Executive (Article II) to conduct criminal process. We have here an initially dubious distinction – a distinction, perhaps, without a difference – between Federal and State ‘sovereignties’, and on top of that uncertain foundation the military wants us to have confidence in a Rube Goldberg scheme whereby Congress is able to delegate to the military – through the Executive, the President – its authority to suspend citizens’ Constitutional rights. Would you buy a car with a propulsion system this convoluted? Does the sudden introduction of “the President” into matters of Constitutional court trials sound familiar to a reader in 2006? But this is the type of trouble you’re going to get into when you try to square the circle of military justice.

And while Congress has the power to say what is a crime and what isn’t, it isn’t nearly so clear that Congress can erect its own court system – without the Constitutional safeguards of the Constitutionally-endowed Article III courts – in order to try those accused of such crimes.

Although he is dissenting, Huge Black lays it on the line: “The Court’s holding further limits our already weakened constitutional guarantees against double prosecutions … the Court apparently takes the position that a second trial for the same act is somehow less offensive if one of the trials is conducted by the Federal Government and the other by a State. Looked at from the standpoint of the individual who is being prosecuted, this notion is too subtle for me to grasp.” It isn’t the only one in all of this. And with a candor and insight not seen in public offices any longer: “It (the contention in England that one can be tried twice if each trial is conducted by a different county, because one act becomes two, one for each county) was discarded as a dangerous fiction then, it should be discarded as a dangerous fiction now.” Advice that hasn’t gone stale over time.

And – no this isn’t witchcraft, just plain old-fashioned common sense: We should “avoid the evil approved today … Ever since 'Lanza', people have apparently become more accustomed to double trials, once deemed so shocking, just as they might, in time, adjust themselves to all the other violations of the Bill of Rights should they be sanctioned by this Court.” We might not even realize all that we’ve become ‘adjusted to’ in the half-century since Black wrote this. But if we look back even 10 years, we can see how much has changed. Nor can it be asserted that 9-11 “changed everything”. Not when ‘everything’ includes the most fundamental guarantees of the Constitution and a modern government that – true to its species – is always on the hunt for a chance to gorge.

In “O’Callahan v. Parker” (1969) the issue was whether a court-martial has jurisdiction to try a service-member for a crime committed off-duty, off-base, and had no connection to the service or the military.

The Court starts off by misquoting the Fifth Amendment, omitting the comma as did the Chief Justice Davis in “Milligan”. But it then goes on to state baldly: “A civilian trial is conducive to the protection of individual rights, while a military trial is marked by retributive justice”.

The gist of matters was that the Court held that for a court-martial to have jurisdiction, the crime of which the service-member is accused has to be “service-connected”. But it grants without comment that “the Constitution … recognizes that the exigencies of military discipline require the existence of a special system of military courts in which not all of the specific procedural protections deemed essential in Art. III trials need apply.” Again the deference to the military, since the Civil War. The minimizing of the significance lying under “all of the specific procedural protections” is not laudable: it is those very procedures that embody the magnificent and precious abstractions Justice and Liberty. If the procedures get cracked open, then those abstractions are in danger.

While quoting some of the meatier assertions of “Toth”, and noting on its own that “military courts … [are] generally less favorable to defendants”, it asserts that “few would deny” such a system “is necessary to an effective national defense establishment”. Again, “few would deny” is a kind of weak justification for such a fundamentally anomalous system; but there isn’t any clear ground for a full-blown military justice system with authority to prosecute the entire civilian criminal code. The Court has to be creative or … take its cue from really top-notch illusionists and divert the rubes’ attention. A project for which the JAGs and their roadies are ever ready, willing, and able.

But after this tortured back-and-forth, the Court ends strong on the downbeat”: “History teaches that expansion of military discipline beyond its proper domain carries with it a threat to liberty”. You wonder: a system this dangerous to liberty isn’t going to suddenly improve simply by being confined to its proper sphere. Granted it’s better for all of us that it is as closely confined as possible, but physics tells us that in a confined space it’s only going to get more intense – and intensely dangerous – for the service-members. As if they didn’t have enough trouble.

Contrary to History-According-to-JAGs, “the 17th century conflict over the proper role of courts-martial in the enforcement of domestic criminal law was not, however, merely a dispute over what organ of government had jurisdiction. It also involved substantive disapproval of the general use of military courts for trial of ordinary crimes”. There follow several pages of closely-examined history of English and American court-martials.

And then, in Note 18, the Court takes the Fifth Amendment problem by the horns: “It has been suggested, at various times, that the phrase ‘when in actual service in time of war or public danger’ should be read to require a grand jury indictment in all cases ‘arising in the land or naval forces, or in the Militia,’ except when the defendant is in ‘service in time of War or public emergency’. Now they started off so well, but then chickened out, because by ceasing the direct quote and paraphrasing on their own about ‘the defendant’ they dissolve the powerful impact made by the simple text in all its clarity. We then find out why they did it: “It was decided at a very early date, however, that the above clause modifies only ‘Militia’”. Such vagueness, and no clear Constitutional text to back it up; but a very clear Constitutional text saying the opposite. It goes on to quote “Johnson v. Sayre”, but we’ve seen where that goes.

In “Parker v. Levy” (1974) a Vietnam-era medical officer working Stateside was nabbed for refusing to train Special Forces medical personnel on the grounds that it was unethical. The Court again tries to explain the military justice theory: “Because of the factors differentiating military from civilian society, Congress is permitted to legislate with greater breadth and flexibility when prescribing rules for the former than when prescribing rules for the latter …” It’s kind of roundabout way of saying what the Court would rather not say in the clear: We can’t explain why, and we definitely don’t want to talk about the comma-problem in the Fifth Amendment, but we say that Congress can not only suspend some of your Constitutional rights [and this is before you’re ever convicted of anything] but it can also make you stand trial in a kind of sorta-court where your full protections have been watered down.

But the Court doesn’t stop there: the standard of evidence that applies in military trials is that applied to criminal statutes in economic affairs: “… and the proper standard for review … is the standard that applies to criminal statutes regulating economic affairs …” That standard is one of the lowest and weakest of all the possible standards in the judicial stable. But not to worry: “ … the consequent necessity for discipline may render permissible within the military that which would be constitutionally impermissible outside it”. In other words, this is unconstitutional, except that the military gets to do it anyway. Just trust us. And please shut up.

“Just as military society has been a society apart from civilian society, so military law is a jurisprudence which exists separate and apart from the law which governs our federal judicial establishment.” So a separate ‘society’ gets its own laws and procedures that may be constitutionally inadequate for criminal process? Do the Amish? The Mormons? General Motors? It later comes back to this line of thought, referring to “the military community and the civilian community”, and thus flowing from the two ‘communities’, there are two systems of law, “military law and civilian law”. Now whether ‘community’ is Constitutionally relevant here is an interesting question; the whole point of the Constitution was that its guarantees were intended to apply totally to all citizens – no exceptions (except to some extent in that verrrry interesting Fifth Amendment).

Referring then to the UCMJ the Court says “That Code cannot be equated to a civilian criminal code.” Fair enough, but somehow its ‘convictions’ are criminal convictions … and how exactly does that work again? If the military justice system can’t do criminal process, then fine – but then why go and endow it with the Court’s seal of approval precisely as a criminal justice system?

Cutely, the Court notes that while the UCMJ might impose the death penalty, its lowest range of punishments is far less severe than in corresponding civilian law. But of course! In the Stalin plan (which Uncle Joe may have gotten from the JAGs in the first place) you can make any guarantees and ink down any ‘sentencing and punishment’ schedules you want, because your lads are going to settle every defendant’s hash anyway.

And “legislating with a greater breadth and flexibility” is way too kewt for what’s been done here: Congress has punctured the watertight doors protecting our rights and then gone and sent us to sail in the rights-unfriendly seas of the military justice system.

Justice Blackmun dissents, with the Chief Justice joining him. But only to support the idea that the Army’s standards should not be brought down to the levels of the civil law, but rather its law should reflect its higher standard of honor. Well, using a law to enforce an honor code is something that could be done. But in the context of the U.S. Constitution and its guarantees, this is an odd argument: The Founders were concerned to protect the rights of citizens from government incursions, not to ‘build a society’. They already had a society in 1789. In fact, keeping the government in its own caged preserve was precisely how those sturdy citizens planned to keep their society. It has only been much more recently, given the corrosive effects of capitalistic consumerism, that the military has come to be seen as more ‘honorable’, more efficient, even more ‘American’ than civilian society. If we have come so far from the world of 1789 that this is true, then we are in a heepa trubble. And we might as well face it. But we’ll need to decide first. It may be that we have simply been comparing the military on its best days and civilian society on its worst. Using the military to ‘spackle’ up civilian society is a sad commentary; and it can easily lead to something far more tangible: using the military to enforce civil law.

Justice Stewart, dissenting, quotes the Court in “U.S. v. Reese” that “It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could rightfully be detained and who should be set at large.” Eerily, this is exactly the legislative stratagem underlying both sex-offender Registries and the round-up, imprisonment, and occasional ‘rendition’ of ‘terrorists’ in the Middle East – except that in the Middle East the government has a much better shot at doing the catching and then refusing to let the Court in, even unto this day.

In “Gosa v. Mayden” (1973) an airman accused of rape questioned the jurisdiction of the court-martial to try him. The Court is constrained to remind us that as critical as “O’Callahan” may have been of the military justice system, still that decision “was not based on any conviction that the court-martial lacks fundamental integrity in its truth-determining process”. Which is very accurate – as far as it goes. The problem in the military, though, is not its ability to find truth, but rather what it wants to do with truth once it’s been ‘secured’, as they say. Once again, the Court happily chases the wrong car down the freeway, letting the actual culprit drive off gently, to do his thing yet another day. This isn’t the Keystone Cops, though; those guys – though laughable – were always on the level; bumblers they were, but nothing more. Reading some of these decisions, even the redoubtable Huge Black’s, you have to ask yourself if all of these folks over all of these years, have passed over the key issues entirely by accident.

And anyway, the Court continues, suppose that we made “O’Callahan” retroactive, so that the service-connected criterion had to be applied to all courts-martial preceding it. The government claims that such a task would impose a terrible hardship on the government, let alone quite possibly be impossible to accomplish. Once you’ve been doing it long enough, it’s too much trouble to go back and fix.

In Footnote 5 the Court notes that “ … the military system of justice has never been understood to be constitutionally compelled to provide many of the procedural rights afforded by the civilian courts, and thus it would always remain free to provide only that which is constitutionally necessary.” But this is a red herring, surely. We’re not concerned for the “procedural rights” – it’s the fundamental Constitutional rights that, as even the Court admitted, cannot be provided by the military by the very nature of its operating principles. And in the Stalin plan the military can guarantee as many things as it wants, and toss in as many props as people would like to see on stage. But a truly independent judge, a truly independent jury, true adversarial practice on a level playing field – the military cannot provide that. The vampire has to insist, with a charming and pious smile, that everything be conducted “after sundown” and wouldn’t we please make this one little teensy indulgence to the Count’s .. ahhhh .. eccentricities? The Court indulges itself at great expense and distracts us, by minimizing the nature of the military’s demands on Constitutional justice and focusing on secondary matters. This isn’t the county fair.

In “Middendorf v. Henry” (1975) the Court had to consider whether summary courts-martial (the lowest grade, that can only award a maximum of 30-days confinement) require the presence of Counsel. The summary court-martial is a procedure between the service-member and the commanding officer.

The Court – perhaps saying more than it meant to – describes general courts-martial in that “they resemble judicial proceedings”. Which, in the Stalin plan, they not only can do, but should do, and can easily afford to do. Further on , it describes them as “the court-room type procedure of the general and special courts-martial”. Ditto.

It quotes itself in “Burns v. Wilson” (1953): “The rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise balance to be struck in this adjustment. The Framers especially entrusted that task to Congress.” Well, but the civil courts, including the Court itself, is very much the agency to determine if those men’s rights are being violated. And a “conditioned” right is like a “conditioned” pregnancy: it isn’t. And the Framers entrusted the balancing to Congress, but included the huge reservation in that Fifth Amendment.

In “Solorio v. U.S.” (1987) the Court reversed “O’Callahan” and said that simply being in the military placed one in the jurisdiction of the military justice system; it was not necessary to try to figure if the crime fit the criteria for being “service-related”.

The Court, through Chief Justice Rehnquist, takes a brief moment to claim that the history of English and American court-martial praxis in “O’Callahan” was “ambiguous” [that history extended for 3 close-typed pages and further was liberally seeded through a subsequent 12 pages of Notes]; it offers no elucidation on in what ways the history was “ambiguous”. It then quotes Clause 14 of Article 8, Section 1 to again assert that Congress has the right, vested in it by the Constitution, by a form of implication within the right to make rules for military governance, to authorize “the general use of military courts for the trial of ordinary crimes”.

It references as a support the Fifth Amendment, but only quotes the phrase “cases arising in the land and naval forces”; that is not the key issue in the text of the Fifth Amendment, as we have seen. It then, however, claims that the history of 17th and 18th century court-martial praxis here and in England is “too ambiguous to justify the plain language of Clause 14”. But again here: while it sounds incisive, Clause 14’s language, while perfectly grammatical, is conceptually open-ended, and utterly so. To read the Clause, one has to perform the mental work of adding even that the limitation that Congress’s power must conform to the Constitutional guarantees; that's how open-ended the actual language is. But even then the Court will only grant that limitation if those Constituional guarantees are watered down. And the Court here, despite its pious nod to “plain language” falls right into line by ignoring the utterly plain language of the text of the Fifth Amendment.

But it is in this case, finally, in Justice Marshall’s Dissent, that things are said that should have been said long before. He comes to his point quickly: “Today .. the Court … disregards constitutional language and the principles of stare decisis in a singleminded determination to subject members of our Armed Forces to the unrestrained control of the military in the area of criminal justice. I dissent.” And then, in what starts off as the usual nod to the wrong part of the Fifth Amendment he says: “But the text of the exception is inconsistent with the majority’s conclusion that the only relevant factor in determining whether a court-martial has jurisdiction over a case is the status of the defendant as a member of the Armed Services.” Is he going for the gold here?

He asserts that “The protections afforded individuals by the Fifth and Sixth Amendments are central to our constitutional scheme of justice … These protections should not be lightly abrogated. Consequently, the exception in the Fifth Amendment for cases arising in the Armed Forces must be strictly construed [i.e. that such cases must be military, service-connected offenses]. He reminds us that “not until the enactment of the Uniform Code of Military Justice in 1950 did Congress attempt to give courts-martial the authority to try crimes of murder and rape committed in peacetime within the United States … Common-law felonies in peacetime were only brought within court-martial jurisdiction in 1916 … The relatively recent expansion of the authority of military tribunals appears to disregard the Framers’ understanding.” So much for the JAGs’ purring assertion that courts-martial have been a happy sibling in the criminal-justice family since before George Washington.

And then, in Footnote 5 of his dissent, Marshall says it (and I quote it in full): “The language of this exception could be understood to mean that ‘cases arising in the land or naval forces’ as well as in the militia, are only excepted from the requirement of grand jury indictment or presentment ‘in actual service in time of War or public danger’. This Court, however, has interpreted the ‘time of war’ provision as referring only to cases arising in the militia, not the land or naval forces. I am not convinced this reading of the Fifth Amendment is correct …” It had taken almost 200 years.

Wider Concerns

We cannot fail to note that many of the major elements in the history and dynamics of military justice appear to be operating in the present Administration’s programs (which may yet bring on a Constitutional crisis after the new Congress convenes, and which has already sparked numerous court-challenges). The emphasis on Results rather than on the Integrity of the Process, the minimization of significant erosions of Constitutional guarantees to citizens, the overriding recourse to commanding authority as a justification for dubious actions, the almost defiant absence of a sense of accountability, the continual recourse to the exhortation to ‘just trust us’, the selective use of evidence, the visceral apathy toward the accused, the ongoing effort to shroud the actual operational dynamics in secrecy while citing the needs of ‘national defense’ and ‘military necessity’, the ruthless effort to ‘own’ and thus control all the significant players. And of course there is the awe-full erection of Military Commissions (distinct from courts-martial). And there is the gnawing undertow trying to pull down the wall of Posse Comitatus and enable the enlargement of the military (and its justice system, no doubt) into civilian society (and civilian justice).

Nor can we fail to consider that a system like this must always misrepresent itself, must always – frankly – practice deceit. And what effect does this have – especially when extended over time – on its victims and also on its practitioners?

And can we fail to realize that many former JAGs are now in prosecutors’ offices, or on the faculty of law schools, or sitting on benches throughout the Federal or State or municipal court systems? And that many former military personnel are in police agencies, their influence visible in rank insignia, equipment, and even Service stickers on their official vehicles, and where their Results-oriented approach to things cannot but fail to exert an even deeper influence?

This is not to say that the system should – or can – be done away with overnight. But it has engorged far beyond its original scope, and its own sustained deceptiveness as to its past and to its actual operating dynamics does not speak well of its intentions or – frankly – its integrity.

There are – as just this incomplete review of Court cases indicates – some very large and fundamental problem areas.

Solutions – an independent judge and jury, a truly adversarial process on a level-field – present themselves.

But we must understand that this system has never truly reformed itself, even when ordered to do so by the President himself. Give-em-hell Harry Truman ordered ‘command influence’ to be eliminated; it was the same complaint that had arisen immediately after World War 1. When Truman finally had to sign the UCMJ enabling legislation he said bluntly that ‘command influence’ had still not been eliminated. Fifty years later, in 2001, the Cox commission examined the system and concluded (after one of its prestigious civilian members resigned in disgust) that it mostly worked, although there might be that there was still a tad too much command influence and a tad more tweaking might eventually be in order, and was certainly worth considering, at some point. A few months later, 9-11 transpired, and not only did we not hear anymore about the matter, but – as we are coming to find out now – the JAGs and their system participated in a massive subterranean engorgement that – until the photographs came out and then the war went south – included Abu Ghraib and still includes Guantanamo. The Navy lawyer who actually stood up for some of the accused – and was successful – has been passed-over for promotion, which in the military means that his career is effectively ended.

The system has survived for a long time because, with the exception of the World Wars, it had direct influence only on service-members. But recent legislation has opened paths for it to expand into civilian life. Its philosophy has already taken root in the current Executive Branch, and has moved out into civilian law enforcement – all to our great detriment.

Its tires certainly deserve to be kicked by those who are paying for it in more ways than they know.

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