Military Law: Summary and Resource Digest¹

“…that the military should always be kept in subjection to the laws of the country to which it belongs, and that he is no friend to the Republic who advocates the contrary. The established principle of every free people is, that the law shall alone govern; and to it the military must always yield.”
—Dow v. Johnson, 100 U.S. 158, 169 (1879)²

Constitutional Sources of Military Law.

The U.S. Congress has full lawmaking authority under Art. I, § 1, including laws governing the military (e.g., Title 10, U.S. Code, below). The spending and debt clauses in Art. I, § 8, cl. 1 & 2 provide the general power to fund military power.

Congress may declare war, Art. I, § 8, cl. 11, and may also define violations of international law, Art. I, § 8, cl. 10.

Congress may raise and fund armies, but may fund them only within a two-year period; it may also raise and maintain a navy, albeit without any limit on naval appropriation (army and navy clauses, Art. I, § 8, cl. 12 & 13). This has been construed to include those forces evolving from the army and navy, e.g., the Air Force and the Marine Corps.

Other sources of Congressional authority over the military include:

• the Government and Regulation Clause, Art. I, § 8, cl. 14, rule-making authority over the land and naval forces. This provides for Congress’ establishment of laws governing the military (Title 10, U.S. Code) and the Militia (Title 32), and for a separate military court system.

• the Militia Clauses, Art. I, § 8, cl. 15 & 16, permitting Congress to “call forth” and regulate the “Militia,” which has evolved into the states’ Army and Air National Guard. The Guard is under Federal control when “employed in the Service of the United States.”

• The Necessary and Proper Clause, Art. I, § 8, cl. 18, empowers Congress to enact whatever laws are necessary for it to act upon its powers.

• The Habeas Corpus clause, Art. I, § 9, cl. 12, requires preservation of the Great Writ unless suspended in time of “Rebellion or Invasion;” habeas corpus is a useful writ when the U.S. military is holding someone. Habeas’ presence in Art. I suggests that its suspension and uses are up to Congress.

The President is vested with the Executive power, Art. II, § 1, cl. 1, and is named as the Commander in Chief of the armed forces, Art. II, § 2, cl. 1. The Treaty Clause (Art. II, § 2, cl. 2) enables the President to make treaties, with the advice and consent of the Senate, including on matters of national security.

More generally, The Appointments Clause (Art. II, § 2, cl. 2) permits the President to appoint Officers either with advice & consent of the Senate (e.g., Secretary of Defense) or such “inferior officers” that the Congress vests in the President by law, which would include military officers (though according to case law, not necessarily military judges). The Take Care Clause, Art. II, § 3, requires the President to “take Care” that the laws be executed, and has been construed (e.g., Youngstown Sheet & Tube, below) to include emergency national security actions.

The Judiciary may rule on cases and controversies arising under federal constitutional and statutory law (Art. III, § 2), including those involving the Armed Forces requiring interpretation of Art. I and II, as part of “all cases in law and equity”.

Treaties made (ratified) under the authority of the United States, e.g., the Geneva Conventions, are the supreme law of the land. Art. VI, cl. 2.

The Second Amendment provides for a Militia and the right to bear arms; some courts have seen in this a collective rights view of the people to form a Militia in this context; this has not been conclusively decided.

The Fourth Amendment’s search-and-seizure provision does not exclude military personnel. The Military Rules of Evidence (included in the Manual for Courts-Martial, see below) 311-315 discuss this, do make some limited exceptions for administrative inspections, do allow commanders to authorize searches, but generally hew to similar law.

The Fifth Amendment exempts criminal military cases from presentment or indictment. However, the right against self-incrimination does apply and is mandated by Art. 31, UCMJ (10 U.S.C. § 831) and by Mil.R. of Evid.³ 301. Military courts have found Art. 31 to be broader than Miranda, though Miranda does apply.⁴

The Sixth Amendment applies, albeit the right to counsel is in proportion to the formality of the proceeding, esp. at general courts-martial level.

The First Amendment does not mention service members but case law and statute has limited their religious and free-speech rights, e.g., Art. 88 forbids contemptuous words about the President and certain other civilian officials; disloyal statements are an included offense under Art. 134, the “conduct unbecoming” statute.⁵

Framers’ intent.

The Framers recognized the need for a national military – a “common defense” – but sought to divide its control between Congress, the Executive, and the States. Federalist Nos. 23-25, 74 (Hamilton). They did see commerce and a Navy as a solely national responsibility, particularly as the latter would defend the former. Federalist No. 11 (Hamilton).

The Framers saw the “Militia” – state militaries, now the National Guard – as a counterweight to the threat of tyranny by a national military establishment. The Federalist Nos. 25, 28, 29, 69 (Hamilton); 41, 46 (Madison).

The Framers believed that the judiciary should have prerogatives in the area of international and military law. Federalist No. 80 (Hamilton). The judicial power was the ultimate defense of the Constitution, outside which the Executive and Congress’ authority would be void. Federalist No. 78 (Hamilton).

Statutory sources of military law.

Title 10 of the United States Code, enacted by Congress, provides for the regulation and governance of the U.S. military. Title 10 includes the Uniform Code of Military Justice⁶, enacted as 10 U.S.C. §§ 801-946 (also characterized as UCMJ Articles 1-146 inclusive). Some particularly important subsections of the UCMJ:

Art. 2 (10 U.S.C. § 802). Sets out the categories of active-duty service members subject, wherever they are worldwide, to the UCMJ and court-martial proceedings. This is “status-based jurisdiction,” and they are liable from the moment of their oath of enlistment through discharge or release from active duty⁷ for offenses committed during that period.⁸

Art. 31. Official re-emphasis of right of suspects against self-incrimination.

Art. 32. Pre-trial investigation, often termed “an Article 32.”⁹ Provision for right to counsel and for due process, though error in Art. 32 proceedings does not constitute judicial error.¹⁰ Art. 33-38 provide for further pre-trial procedure, e.g., referral and service of charges.

The “punitive articles” (Art. 77-134, 10 U.S.C. §§ 877-934) describe crimes and set out penalties “as a court martial may direct” (the specific punishments left to the Manual for Courts Martial, below) and, in some crimes, death. Many of the crimes are standard common-law crimes, e.g., murder, arson, theft; also inchoate crimes (principals, accessories, etc.). Other crimes are “status” crimes peculiar to the military: absence (AWOL, desertion); duties and orders (disobedience, mutiny, dereliction of duty, misbehavior of a sentinel); superior-subordinate offenses (mutiny, contempt, insubordination, etc.); combat-related offenses (e.g., espionage, misconduct before the enemy, conduct unbecoming a service member, spying, misconduct as prisoner). Two general articles, Art. 133 and 134, cover “conduct unbecoming” by officers and by military personnel generally.

Courts-martial and military commissions are not normally reviewable under the Administrative Procedure Act, 5 U.S.C. § 701(b)(1)(F).¹¹

The Manual for Courts Martial,¹² an executive-branch document, includes in one volume: specifications for UCMJ crimes; the Rules for Courts-Martial (RCM, i.e., rules of procedure); the Military Rules of Evidence (Mil.R. of Evid.), which are nearly identical to the Federal Rules of Evidence as enacted by Congress; specifications and punishments for each crime. The MCM is common to all services and the UCMJ and MCM are the primary, comprehensive sources in military criminal matters.

“Military law” also generally includes regulations of the individual services (on all topics). The primary authority is by Department of Defense Directives and Instructions (along with DoD Handbooks for further clarification) and these represent a mid-level authority between U.S. statutes and service regulations. DoD directives can also appear in the Code of Federal Regulations¹³ (notably Title 32, National Defense).

Each military service will have its own set of regulations – Air Force Instructions (AFI); Secretary of the Navy Instructions (SECNAVINST), for Navy and Marine Corps; Army Regulations (AR) – as the primary authority, along with assorted handbooks, field manuals, publications and pamphlets to expand on the regulations. These publications will usually have a series number (Army publications of the 27-series, e.g., cover Legal Affairs); researchers may find service publications online of the Army, Navy,¹⁴ Air Force, National Guard Bureau, Coast Guard and US Marine Corps. All of this is subordinate to Title 10, the UCMJ, the MCM and DoD directives.

Sometimes these regulations may supplement legal proceedings, e.g., AR 15-6 provides for Army staff investigations of wrongdoing (often termed “a 15 dash 6 investigation” or simply “a 15 dash 6,” e.g., Maj. Gen. Taguba’s 2004 report on Abu Ghraib was a “15-6”)¹⁵; AR 735-5, Property Accountability¹⁶, provides for lost-property investigations and imposition of pecuniary liability (formerly “reports of survey”); AR 190-series (military police) includes AR 190-14, use of force, and AR 190-55, military executions.

Subordinate commands of the various services often will also issue regulations, usually as supplements to existing service regulations and usually with the same numbering system. The National Guard Bureau issues National Guard Regulations for Army and Air National Guards of the various states, which will supplement Army and Air Force service regulations for Guard organizations.

Note: service members can be prosecuted for failure to obey regulations under Art. 92 of the UCMJ (10 U.S.C. § 892). This can include investigators or prosecutors who exceed their authority, e.g., breach Art. 31 or 32.

The Military Court System.

The military may try and punish offenses against the UCMJ by several different methods:

Art. 15 (10 U.S.C. § 815) proceedings (“Article 15s,” also characterized by the traditional terms of “Captain’s Mast” (Navy) or “Office Hours” (USMC)) provide for nonjudicial punishment in relatively informal settings before a unit commander. Procedures are by service regulation (e.g., AR 27-10, Military Justice for the Army; AFI51-202, Nonjudicial Punishment for the Air Force; JAG INSTR. 5800.7D, Manual of the Judge Advocate General (JAGMAN 2004) for the Navy and Marines, Commandant Instruction CIM 5810.1D, Military Justice Manual for the Coast Guard). Article 15s are “company grade” or “field grade” – the rank of the commander, a company commander usually 1^st Lt. or Captain (Army/Air Force/Marines) or Lt. (j.g.) or Lt. (Navy/Coast Guard) and “field grade,” i.e., battalion or brigade level or equivalent – Major, Lt. Colonel or Colonel (Lt. Cdr., Cdr., Captain in seagoing services). The distinction is important since a field-grade commander can apply heavier penalties.

Article 15s take place for minor offenses (i.e., no higher penalty than bad-conduct discharge or confinement for 1 year), and must be for a breach of the UCMJ. The commander will, in conducting the Article 15, inform the service member of certain rights, including the right to consult with counsel (but not have counsel present), to remain silent, to present evidence, or to refuse Art. 15 and opt for court-martial. Punishments can include reprimand; restriction, extra duties, forfeiture of pay for a certain period, correctional custody (the base stockade or brig) for 7-30 days, or reduction in rank.

Summary, Special and General Courts Martial are convened by a higher commander, e.g., the Convening Authority. General Court Martial Convening Authorities (GCMA) is usually a very senior commander (two-star rank or above, division command or above); special and summary courts-martial can also be convened by GCMAs or by installation or vessel commanders. The convening authority is a commander, not just a person of a certain rank, and cannot be the person bringing charges; they may refer the charges to higher authority.¹⁷ (Art. 16-21 define courts-martial and set jurisdiction). The courts-martial are conducted according to the RCM.

• Summary courts-martial will usually consist of an impartial commissioned officer who is a judge, is limited to enlisted defendants and minor offenses under the UCMJ, is somewhat inquisitorial in nature, and may impose a limited range of sentences. The accused may consult with counsel but has no right to military counsel at trial; s/he may be represented by civilian counsel, but not at government expense.¹⁸

• Special courts-martial may try any non-capital¹⁹ offense under the UCMJ, has a panel of 3 members and usually has a military judge. Enlisted defendants may request 1/3 of the panel also be enlisted. Special and general courts-martial are conducted more in the manner of a formal civilian trial, with verbatim records and full defense counsel.

• “BCD Special” courts martial may adjudge confinement in excess of 6 months (to a maximum of one year), forfeiture of pay for more than 6 months, or bad-conduct discharges (BCD). This proceeding requires that a military judge was detailed to the trial, qualified counsel (Art. 27(b) UCMJ) was detailed to represent the accused, and a verbatim record of the proceedings and testimony was made.²⁰

• General courts-martial may try any person subject to the UCMJ, and may impose any sentence of imprisonment (e.g., to military prison), any level of discharge, forfeiture of pay and allowances, or death, depending on the offense. It consists of a military judge and not less than 5 members (though the defendant can request a judge alone). Trial lawyers are always certified military lawyers and the judge usually a detailed military judge.

Note: armed services’ trial judges, defense counsel²¹ and criminal investigators²² may be in separate organizations, attached to field commands but not under direct command. A military judge must be independent of convening command authority per 10 U.S.C. § 826(c) (Art. 26(c) UCMJ) nor may the judge consult ex parte with members of the court (Art. 26(e)).

Criminal cases usually follow a pattern of search, seizure, accusation; Art. 15 or Art. 32 proceeding; pre-trial procedure and investigation; trial; verdict and sentence. Review of court findings and sentence must be reviewed by the convening authority, usually referred to that authority’s Staff Judge Advocate; then, the convening authority must forward the case to that service’s Judge Advocate General (TJAG), who may modify or set aside the findings and/or sentence and forward it to the court of criminal appeals.

The military has two appellate-court levels to consider court-martial appeals and to interpret military law. Each service (Army, Navy/Marine Corps, Air Force, Coast Guard) has a Court of Criminal Appeals (CCA, formerly known as Courts of Military Review (C.M.A.)). Above them is a single United States Court of Appeals for the Armed Services (USCAAF, formerly Court of Military Appeals). Beyond that, the highest level of appeal is to the U.S. Supreme Court.

Federal civilian courts (below U.S. Supreme Court)²³ normally cannot review findings of courts-martial or military commissions, as the Administrative Procedures Act exempts courts-martial and military commissions, and military actions in the field in time of war, from civilian court review.²⁴ However, counsel can still seek remedy from Federal courts in certain instances even with courts-martial – see “Servicemembers’ Access to Federal Courts” section below – or from military appellate courts (see “extraordinary writs” further below that).

Military courts’ rulings, which are binding in the same manner as other courts, are in the Military Justice Reports (M.J.).²⁵ These are a separate set of bound reports but, where these cases interpret a statute (esp. 10 U.S.C.), the U.S. Code Service or U.S. Code Annotated will list them, along with any rulings by the U.S. Supreme Court or other courts (where relevant). Researchers may also find M.J. cases listed online, e.g., at Westlaw.

Jurisdiction is usually over active-duty service members, as defined in Art. 2, UCMJ. This usually does not extend to civilian (non-military) persons but if charged (e.g., as spies) such persons could face a military commission instead of a Federal court. (See “Military Commission Trials,” separate section below).

States may also create military courts-martial (summary, special and general) and courts of inquiry for Guard members in state service, and may incorporate the UCMJ, see, e.g., Cal. Mil. & Vet. Code §§ 102, 103, 450-474.

Military Court Staffing and Legal Agencies

The US Army’s Legal Services Agency includes counsel that represent the Army as an agency, e.g., its Procurement Fraud, Litigation and Environmental Law divisions; more importantly, it also supports the Army Court of Criminal Appeals,²⁶ the Army Trial Judiciary and the Army’s Trial Defense Service. The latter provides defense counsel, who are independent of field commands (i.e., of Convening Authority). Army TDS represents soldiers charged with military criminal offenses at trial; represents soldiers during criminal investigations and before elimination or grade reduction boards; counsels soldiers regarding pretrial restraint, nonjudicial (Art. 15) punishment, and various adverse administrative actions. The Military Judge Program is administered by the Army Trial Judiciary and provides judges to general and special courts-martial.

Air Force organization is similar, with a USAF Trial Judiciary and a Trial Defense Division²⁷ providing judges and defense counsel. The Navy JAG office includes investigations, constitutional-law, Article 138 and appellate-defense units, as well as a trial judiciary to serve the Navy and Marine Corps; it also includes the Navy/Marine Corps court of criminal appeals, whose chief judge reports to the Navy’s judge advocate general.²⁸ However, trial defense counsel will be Navy/Marine JAG personnel “detailed by the judge advocate’s commanding officer,” i.e., by the possible convening authority.²⁹

Current Legal Authorities for War and Mobilization.

While not on point for most courts-martial, the legal basis for the current war may be both the authority for – and the object of legal challenge to – such wartime matters as mobilization, stop-loss, and military-commission trials.

The War Powers Resolution, passed by Congress at the end of the Vietnam War, 50 U.S.C. §§ 1541-1548, requires armed forces to be withdrawn from a conflict after 60 days unless further authorized by Congress, and Congress may pass a resolution directing their withdrawal. This was passed over Pres. Nixon’s veto and no President since has conceded its constitutionality since.

Congress, in September 2001, did not declare war but did authorize the President to engage in military operations against al-Qaeda, notably in Afghanistan, with its Authorization for Use of Military Force Joint Resolution, Pub.L. 107-40, 115 Stat. 224, 50 U.S.C. § 1541. Congress later authorized the use of force against Iraq, H. J. RES. 114 (October 10, 2002), text online.

With these authorizations, the President issued Presidential Proclamation 7463, 66 Fed.Reg. 48199 (Sept. 14, 2001), declaring a national emergency; this was the basis for deployment of forces and call-up of Reserve and National Guard units, and delegated Executive authority for this to the Secretaries of the military departments. Exec. Order No. 13223, 66 Fed.Reg. 48201 (Sept. 14, 2001).

Reserve Components³⁰ – the Reserve units and individuals of the five armed services, plus the Army and Air National Guard of the various States and Territories – can be mobilized into Federal active-duty service in certain contingencies; that is their purpose.³¹ The statutory authorities for mobilization, usually pursuant to a declaration of war or national emergency by the President and/or Congress, are 10 U.S.C. §§ 331-335³², 10102, 12301, 12302, 12304, and 12406³³, which often set time and number-of-personnel limits on those call-ups. Most of the post-9/11 and Iraq call-ups were under §§ 12301(a), 12302 and 12304. § 12302(b) does require “fair treatment” in call-ups but has not been tested, nor has 10 U.S.C. § 12404 requiring the President to maintain National Guard units’ composition “so far as practicable.”

Stop Loss

“Stop loss” is the suspension of retirement, release from active duty, discharge or separation of military personnel deemed essential to national security. 10 U.S.C. § 12305 authorizes the President to suspend certain personnel actions (e.g., discharges, releases from active duty, etc. – in other words, “stop loss”) of Reserve Component and active-military (regular) military members. The term itself is not mentioned in the statute but has been in use since 1990’s Operation Desert Shield. All armed services had some form of stop-loss after 9/11 and for the first months after the March 2003 invasion of Iraq; as of summer 2005 only the Army (which includes Army Reserve and Army National Guard) has stop-loss; Army stop-loss has focused on certain key specialties, notably Special Forces and MPs.

Army regulations only touch on stop loss and much of the official guidance has been in memoranda and directives. The main authorities are:

• Message, 210002Z NOV 02,³⁴ Dept. of the Army (DAPE-MPE), SUBJ: New Reserve Component Unit Stop Loss Policy. Frequently cited in Army documents, this directive announces a “skill-based” stop-loss policy for RC members mobilized under 10 U.S.C. §§ 12302 and 12304, effective till 90 days after the unit’s de-mobilization. This directive also sets out categories of soldier separations that would not be affected by stop-loss, including CO, hardship, homosexuality, disability and certain other (usually involuntary) separations.

• MILPER Message 03-040.³⁵ Nov. 22, 2002 directive suspending releases from active duty (REFRAD) for National Guard members mobilized under 10 U.S.C. §§ 12302 and 12304, keeping them on active duty for the mobilized time of their unit plus 90 days, but continuing the usual involuntary separations as noted in the 21 Nov message supra. Cited in Santiago.

The Army usually sets a new Expiration of Time of Service (ETS) date that is meant as a “notional and arbitrary” flag,³⁶ usually a 24 December date far in the future (usually 24 Dec 2031).

Little case law exists on “stop loss” and much of it is ongoing as of July 2005.³⁷ As of that date, the cumulative-service limits (personnel numbers and time duration) of 10 U.S.C. §§ 12301, 12302, and 12304 have not been raised, nor has 10 U.S.C. § 12407(a), requiring Guard members to be released at the end of his/her term of enlistment.

Recruitment: Legal issues.

The recruitment contract has often, but not always, analyzed in light of contract-law principles; courts often deem the military’s (non-)compliance with statute and its own regulations a stronger criterion.

Service regulations governing recruitment include AR 601-210, Regular Army and Reserve Enlistment Program; Air Force Recruiting Service Instruction (AFRSI) 36-2001, Recruiting Procedures for the Air Force;³⁸ Coast Guard Recruiting Manual, Commandant Instruction (COMDITINST) M1100.2D; Navy Recruiting Manual, COMNAVRECINSTR 1130.8F; Marine Corps Order (MCO) P1100.72A, Personnel Procurement Administration, and MCO P1100.72C, Enlisted Procurement.

Some requirements include the requirement for the enlistee to sign in the presence of the officer administering the oath of allegiance, 10 U.S.C. § 502. The minimum age for enlistment is 18 (also the age of majority for signing such a contract) but a 17-year-old can enlist if her/his parents co-sign the enlistment form.³⁹ The criteria for enlistment can differ between men and women.⁴⁰ The time between enlistment and reporting for duty can be separated under the Delayed Entry Program (DEP).⁴¹

A defective enlistment might not preclude criminal jurisdiction under the UCMJ, per Art. 2(b) and 2 (c) (10 U.S.C. §§ 802(b-c)). ⁴²

Members of the Reserve Components can incur obligation to attend active-duty for training, one-weekend-a-month drills, and a two-week annual training (“summer camp”); see, e.g., AR 135-91, Army National Guard and Army Reserve: Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures (1 Feb 05) which describes individual service commitments for the RC member prior to wartime mobilization.

Courts may review enlistment cases based on principles of contract law but the case law is inconsistent; a recent 9^th Circuit stop-loss case, Santiago,⁴³ ruled that common-law principles can apply to contracts, but that plain language of a relevant statute could prevail, esp. if enlistment contracts acknowledge that laws and regulation may change without notice.

Servicemembers’ Access to Federal Courts.

Generally, a person challenging a military decision generally must allege (a) a violation of a recognized constitutional right, a federal statute, or military regulations, and (b) exhaustion of available intraservice remedies. Court weighs (1) the nature and strength of the plaintiff's claim, (2) the potential injury to the plaintiff if review is refused, (3) the extent of interference with military functions, and (4) the extent to which military discretion or expertise is involved.⁴⁴

The Administrative Procedures Act,⁴⁵ as litigated, includes military organizations as “agencies” that can be mandated to comply with administrative procedure under the APA.⁴⁶ Service members need not exhaust administrative remedies to raise an issue under Federal law.⁴⁷

The Feres doctrine can complicate servicemembers’ attempts to seek remedy for personal injury incident to service; usually they cannot recover under the Federal Tort Claims Act.⁴⁸ In the Feres case⁴⁹, Lt. Rudolph Feres died in a barracks fire; his widow sought to recover damages and was denied in a 1950 landmark case that courts have construed widely in military cases since then. For a service member’s claim to succeed, the injury must have occurred off-duty, not on military property,⁵⁰ not during a military mission, and not under military authority. This includes claims by National Guard members.⁵¹ Feres does not apply to Privacy Act actions by service members,⁵² since Congress expressly meant to provide for such actions; implicitly, this may apply where Feres clashes with explicit statutory intent.

National Guard members’ standing to sue, and even criminal jurisdiction, may depend on their status. National Guard members could be subject to state law, or have access to Federal tort remedies, depending on the type of service: certain types of full-time state duty (armory technicians, state disaster missions) are termed “Title 32 status” (i.e., 32 U.S.C., which governs the Guard); active-duty-for-training tours on a Federal base could create UCMJ criminal jurisdiction; and a mobilized (Federalized) unit (“Title 10 status”), being under Federal law, could require proceedings in a Federal court.⁵³

Military personnel facing some imminent event to themselves, e.g., a military deployment with a “stop-loss” issue pending, might seek injunctive relief to avert it. The usual 4-prong balance-of-harms tests – 1) a substantial likelihood of success on the merits, 2) that the plaintiff would suffer irreparable injury if an injunction is not granted, 3) that an injunction would not substantially injure another interested party, and 4) that an injunction would favor the public interest – applies.⁵⁴ The “exhaustion of administrative remedies” requirement might be waived if that would be futile or if the plaintiff can show irreparable harm.⁵⁵ Note, however, that in military cases the moving party must make a much stronger showing of irreparable harm than for the ordinary criterion for injunctive relief.⁵⁶

Habeas may also be available to challenge the legality of a military commission hearing⁵⁷. Venue for habeas applications for Guantánamo detainees is the D.C. District Court.⁵⁸

Normally Federal civilian courts cannot review findings of courts-martial or military commissions;⁵⁹ however, some courts have held that collateral review is possible as the actions facing review are actions in the military “agency” and not in the courts-martial. ⁶⁰ Against courts-martial findings, an attack on the court’s jurisdiction, using the writ of habeas corpus, “is the ordinary procedural vehicle” for such an attack.⁶¹ Such a habeas claim must a habeas claim must: (1) assert a constitutional violation; (2) consist of an issue of law rather than fact; (3) implicate no special military considerations making federal court intervention inappropriate; and (4) have received inadequate consideration in the military courts or had the wrong legal standards applied.⁶² Otherwise, the courts may assert that adequate appellate or administrative remedies, e.g., Art. 69 review, have not been exhausted.⁶³ The usual habeas statute is 28 U.S.C. § 2241.⁶⁴ Habeas can be for other than matters of confinement or criminal custody, e.g., stop-loss appeals,⁶⁵ “For the writ of habeas corpus has long been recognized as the appropriate remedy for servicemen who claim to be unlawfully retained in the armed forces.”⁶⁶

Extraordinary writs may be available under 28 U.S.C. § 1651, to include mandamus,⁶⁷ prohibition and coram nobis. Military appellate courts can grant them.⁶⁸ A Federal court might not be able to issue a writ in a military criminal case if that remedy has not been exhausted in military courts,⁶⁹ otherwise a Federal court might have original mandamus jurisdiction.⁷⁰ However, the Government can also seek writs, e.g., to appeal a dismissal⁷¹; the military appellate courts themselves can also seek a writ.⁷² The MCM (2005 ed.) edition index does not mention these writs.

Sexual Harassment.

Sexual harassment, which may be characterized generally as unwanted and persistent sexual comments, advances or demands, appears in military policy in several guises, as policies and sanctions against sexual harassment as such, against fraternization or other inappropriate relationships, and against sexual assault. 10 U.S.C. § 1561 is the military’s sexual harassment statute, which proscribes it as a matter of policy and sets requirements for investigation. A servicemember client who experiences sexual harassment, or assault, could proffer criminal charges and might also seek whatever remedy through medical, compensatory or administrative (e.g. Art. 138) remedies the military affords (see below and elsewhere in this digest).

Tort remedies by a harassed service member will be complicated by the Feres doctrine, which could preclude damages from injuries arising from the member’s military service. However, for members of the Reserves and National Guard, the Feres doctrine might not apply, depending on their status at the time of injury (see Appendix 4).

No punitive UCMJ statute criminalizes sexual harassment per se; “sexual assault” is encompassed by several punitive statutes, notably:

• Art. 120, rape. Common-law language, death-penalty provision.

• Art. 128, assault. Can include battery, e.g., fondling, touching, etc., which have been prosecuted (see cases, appendix 1 below).

• Art. 77, 78, 81 (principal, accessory, conspiracy). Might apply where others, not actually perpetrating the harassment, are part of the harassment climate or who engage in reprisals against service members complaining of harassment.

• Art. 92, failure to obey regulations. Can encompass failure to comply with sexual-harassment regulations, statutes and policies by the perpetrator(s) or their superiors.

• Art. 93, cruelty or maltreatment toward a subordinate. Has been prosecuted in sexual harassment cases.

• Art. 134, conduct unbecoming. Sexual harassment has been an included offense.

DoD prohibits sexual harassment, as a matter of policy, see DoD Directive 1350.2, “Military Equal Opportunity Program” (1995, current to 2003, PDF and HTML). Includes sexual harassment policy, guidelines, responsibilities, reporting requirements as part of the larger policy. Civilian employees are covered by 32 C.F.R. § 191, DoD Civilian Equal Opportunity Program.

DoD guidance against sexual assault is contained in “Directive Type Memoranda,” general collection that includes sexual assault (as opposed to sexual harassment). Two recent and important DoD memoranda include Donald Rumsfeld, DoD Memorandum, “Confronting Sexual Assault” (April 30, 2004), which sets out three mandates: are victims comfortable coming forward? Are appropriate and effective mechanisms in place for them? Are commands acting against perpetrators? For guidance on victim protection see also Paul Wolfowitz, DoD Memorandum, “Confidentiality Policy for Victims of Sexual Assault” (March 16, 2005, PDF).

Service regulations against sexual harassment include:

• Army Regulation⁷³ (AR) 600-20, “Army Command Policy” (PDF), which includes the Army policy and procedures against sexual harassment in Ch. 7; also ¶¶ 4-14 to 4-16 prohibit improper relationships (e.g., fraternization between ranks). See also Army Sexual Harassment/Equal Opportunity webpage.

• US Air Force Instruction⁷⁴ (USAFI) 36-2706, “Military Equal Opportunity” (2004, PDF). Establishes the Air Force policy against sexual harassment (¶ 1.1) as part of the much larger equal opportunity program; sets general procedures, responsible authorities. See also USAF Pamphlet 36-2705, “Discrimination and Sexual Harassment” (Feb. 28, 1995, PDF), a layperson discussion of harassment and what to expect from the Air Force. See also the Air Force Academy policy and points of contact.

• Secretary of the Navy⁷⁵ Instruction (SECNAVINST) 5300.26C, “Dept. of the Navy Policy on Sexual Harassment” (17 October 1997, PDF). Policy, responsibilities, procedures. Also see Navy and Marine Corps webpages on sexual-harassment policy and procedures, esp. the latter.

• Coast Guard Commandant’s Instruction (COMDTINST 5350.21D), “Commandant’s Equal Opportunity and Sexual Harassment Policy Statements” sets out policy. Further policy and procedure is in the Coast Guard Personnel Manual, CIM 1000.6A, Ch. 8.H, 8.I, 8.J.

• National Guard Pamphlet 600-4 (30 Jun 82, also titled ANG Pamphlet 30-02) governs Army and Air National Guard units, commanders, managers and supervisors. Note: National Guard personnel in civilian job categories or on state (“Title 32”) duty⁷⁶ might have access to civil remedies for harassment.

Separation and Discharge.

Courts-martial may impose dishonorable discharges, which can only be adjudged by a general court-martial and is a separation under dishonorable conditions; and bad-conduct discharge (BCD) — which can be adjudged by either a general court-martial or a special court-martial and is a separation under conditions other than honorable. Congress has set out types of discharges in 10 U.S.C. § 1169.

The military may also separate personnel through administrative procedure; the types of discharges may be honorable, general discharge “under honorable conditions”, and discharge under other than honorable conditions (“OTH”, formerly Undesirable Discharge). Administrative separations might be for a number of reasons. The ten separations the Army, e.g., typically excepts from stop-loss are mandatory retirement; disability retirement or separation; “separation for the convenience of the government” (e.g., surviving sons or daughters, parenthood, pregnancy, failure to meet procurement medical fitness standards); separation because of dependency or hardship; quality of service separation (e.g., misconduct, poor duty performance, alcohol or drug rehabilitation failure, and punitive discharges under the UCMJ); “don’t ask” separations for homosexuality; separations for failure to meet body fat standards; conscientious objectors; personnel security program separations; and soldiers deemed “not essential to the national security of the united states.”⁷⁷ The exclusionary (evidence) rule does not apply to administrative discharge proceedings.⁷⁸

DoD Directive 1332.14 governs enlisted separations. Pursuant to that, Army service regulations governing administrative separation include AR 635-200, Enlisted Separations⁷⁹ (new edition effective 6 July 2005); for Guard and Army Reserve see AR 135-178. Other services address enlisted separations in Navy Personnel Manual (MILPERSMAN) 15560D, Marine Corps Separation Manual MARCORSEPMAN (MCO P1900.16 F), and Air Force Instruction AFI 36-3208, Administrative Separation of Airmen.⁸⁰ (Coast Guard separations are at Ch. 12 in the main Coast Guard Personnel Manual, CIM 1000.6A.) For some common separation issues, see below.

Separation: Conscientious Objectors.

Conscientious objection is one longstanding exemption from conscription and military service; administrative separation from the latter is a method. §6(j) of the Universal Military Training and Service Act⁸¹ exempts from “combatant training and service … who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Religious training and belief in this connection means an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code.” The objector might not need to be a member of an organized sect,⁸² or even religious but the objection must be deeply grounded in deeply held beliefs.⁸³ The objection cannot be limited to a particular conflict⁸⁴, i.e., the objector must object to war in any form. The objection must be sincerely held.⁸⁵ The objection can crystallize after entry into military service.⁸⁶ The objector will have the burden of establishing the claim⁸⁷ but then the burden of disproving it falls on the military.⁸⁸

Service regulations on CO, all solely focused on this topic, the service procedures and criteria, include DoD Directive 1300.6, Conscientious Objectors, and 32 C.F.R. §§ 75.1-11, which guide all services. See also the Army’s AR 600-43, Conscientious Objection; the Marines’ MCO 1306.16 E, Conscientious Objectors, and Air Force AFI 36-3204, Procedures for Applying as a Conscientious Objector.⁸⁹

The DoD Directive and CFR are authoritative on all services. In addition, each service’s general reg on administrative separation, noted above, can also apply.

A key organization to consult for information on CO matters is the Conscientious Objector Central Committee; much of its website material need not be repeated here.

Separation: Homosexuality: “Don’t Ask, Don’t Tell”

10 U.S.C. § 654 is the statutory expression of the “don’t ask, don’t tell” policy that mandates administrative separation of those who engage in homosexual acts, who state they are homosexual, or who marry another of the same sex. “Stating” they are homosexual can include any revelation of that propensity, or “demonstration” of that propensity. ⁹⁰ Personnel so accused create a rebuttable presumption that they are. The subsequent investigation, on the basis of “credible information,” is conducted by commanders under DoD Directive 1332.14,⁹¹ § E3.A4, or by military investigators under DoD Directive 5505.8, “Investigation of Sexual Misconduct by the Defense Criminal Investigative Organizations.”⁹² Separation mandate and procedure is conducted under the separation regulation of the service and DoD (cited above).⁹³

“Don’t ask” personnel are not precluded from bringing an APA action.⁹⁴

Art. 125 UCMJ is the military criminal statute against sodomy. The Dept. of Defense recently indicated that it means to dispense with the statute; this does not preclude criminal prosecution under Art. 133 and 134 UCMJ, the “conduct unbecoming” statutes.⁹⁵

The Servicemembers’ Legal Defense Network is a key legal/lobby organization and source of reference for “don’t ask” and gay/lesbian/transgender/bisexual issues in the military.⁹⁶

Separation: Hardship

The service may separate a member, “for the convenience of the government,” for dependency or for hardship. Dependency is where the death or disability of a family member⁹⁷ causes a member to become dependent upon the service member. Hardship is where the service member’s separation will alleviate undue and genuine hardship. Authority for hardship discharge is under 10 U.S.C. § 1173 but is left for service regulations; DoD authority is the standard DoD Directive 1332.14 on separations,⁹⁸ and such discharges are usually honorable. The enlisted-separation regulation on separations include definitions on hardship/dependency separations and include them under their standard administrative procedures in that reg.⁹⁹

Separation: Disabilities

The services may separate military personnel for inability to continue performing their duties; legal authority is 10 U.S.C. Chapter 61 (§§ 1201-1221); DoD authority is DoD Directive 1332.18, Separation or Retirement for Physical Disability. ¹⁰⁰ The procedure will involve medical evaluation, physical disability evaluation (including appeals), counseling and final disposition. The separation may include entitlement for future benefits, depending on the disability or injury.

Military Commission Trials

A special and hitherto unusual proceeding, military commissions were once similar to courts-martial, though the latter has since evolved to a trial system, with rules of evidence, procedure and appeal, very much resembling civilian courts, particularly in general courts-martial.¹⁰¹ Military commissions, however, are special military tribunals by which the U.S. military may try any persons, particularly non-U.S. military (e.g., spies, “enemy combatants,” etc.); the authority for these courts is by executive order of the current Administration. As currently authorized, these courts may determine rules of evidence, may adjudge verdict and pass sentences of imprisonment or death, and appeals are limited to the Executive branch.¹⁰²

The Administration has cited 10 U.S.C. § 113(b), 140(b), 821, 836, such that they are, as statutory authority¹⁰³ along with Congress’ Sept. 2001 force authorization.¹⁰⁴ Current military commission authority is by executive order, beginning with the Military Order of November 13, 2001, Federal Register Nov. 16, 2001 (Vol. 66, No. 222) at 57831-57836 (also listed as 66 F.R. 57833 (Nov. 16, 2001).¹⁰⁵ DoD has supplemented this with:

• DoD Military Commission Order No. 1, March 21, 2002; updated August 31, 2005. Rules of procedure and evidence, such that they are. Differs from the President’s Nov. 13, 2001 Order in that death sentences require unanimous vote, not 2/3¹⁰⁶ (but 2/3 still suffices for a guilty verdict).

• DoD Military Commission Order No. 3, Feb. 5, 2004 (PDF). Monitoring of the accused and their counsel.

• Military Commission Instructions Nos. 1-9. Proceedings, crimes & elements, qualification of court members and defense counsel, sentencing, review. Given the constraints on counsel (e.g., SECRET clearance),¹⁰⁷ the limitations on due process and evidentiary rules, and the exclusion of sentence from judicial review, these are critical. The “review” process here is strictly administrative.

• DoD Directive 5105.70, Appointing Authority for Military Commissions, Feb. 10, 2004 (PDF). Composition, functions and relationships.

• The Code of Federal Regulations, 32 CFR §§ 9.1-18.6, includes the above and is worth comparing, esp. for updates.

No such trials are known to have reached a verdict as of September 1, 2005.

Appendix 1. Some central cases in military law. (see also footnoted cases in text above)

Constitutional powers.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Limits on Commander-in-Chief authority; Congressional superiority.

Perpich v. Dept. of Defense, 496 U.S. 334 (1990). Federal (esp. Congressional) supremacy over states in military matters, i.e., Federal mobilization and deployment of the National Guard. Save Our NTC, Inc., v. City of San Diego, 105 Cal.App.4th 285 (Ct.App.4^th Dist., 2003). Congress, not state or local governments (issue here: zoning authority), has exclusive legislative jurisdiction, an actual transfer of sovereignty, over Federal base property (active or inactive), and remains except as modified by statute.

Bas v. Tingy, 4 U.S. (7 Dall.) 37 (1800). Congress’ and civilians’ legal prerogatives in “partial,” i.e., non-declared-war conflicts. Early Court recognition of non-declaratory war.

The Paquete Habana, 175 U.S. 677 (1900). Customary international law, e.g., law of war, is part of U.S. law and is enforceable by U.S. courts. Supremacy clause. See also Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804). U.S. law cannot be interpreted to violate international law; U.S. commanders could be liable to U.S. citizens therefor. Dow v. Johnson, 100 U.S. 158 (1879). U.S. forces in occupied territory are not liable to that country’s law (e.g., in this case, the Confederate States of America) but to U.S. law. Habana and Betsy questioned by Sampson v. Federal Republic of Germany, 250 F.3d 1145 (7^th Cir., May 2001): jus cogens should not infer or create U.S. jurisdiction over foreign sovereignties.

U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). Presidential superiority in foreign treaties and negotiations; Congress may not intrude beyond treaty advise-and-consent.

Dames & Moore v. Regan, 453 U.S. 654 (1981). President has power to make agreements in area of national security.

Dynes v. Hoover, 61 U.S. (20 How.) 65 (1857). Congress has more authority, and the courts less, in military matters. Congress’ power to provide for trial and punishment of military offenses is independent of Art. III judicial power (i.e., courts-martial as “Art. I” courts). Courts may not review courts-martial if the court was properly convened and conducted.

Rostker v. Goldberg, 453 U.S. 57 (1981), judicial deference to Congress’ judgment on military affairs. Necessary & Proper clause. Issue: statutory exemption of women from draft registration.

McKinney v. White, 291 F.3d 851 (D.C. Cir., 2002), Federal Courts do not have jurisdiction under the Administrative Procedures Act (5 U.S.C. § 701(b)(1)(F)) to review or set aside court-martial or military-commission findings where it is a court-martial matter and not, collaterally, that of the “agency.”

Runkle v. United States, 122 U.S. 543 (1887), military courts and law must follow Congress’ specifications.

Weiss v. United States, 510 U.S. 163 (1994), military judges not significantly different than other military personnel. Appointments Clause. See also U.S. v. Ryder, 515 U.S. 177 (1995), improperly appointed military judges’ decisions not valid. Appointments Clause.

U.S. Navy-Marines Court of Appeal v. Carlucci, 26 M.J. 328 (1988). Art. I courts can issue extraordinary writs; military judges must adhere to the ABA Code of Judicial Conduct; military judges must maintain the integrity of their court against the chain of command, on pain of prosecution for dereliction of duty.

Servicemembers’ rights.

Middendorf v. Henry, 425 U.S. 25 (1976), courts must defer to Congress’ judgment on military due process. Summary courts-martial as such, at issue in this case, might not represent a denial of due process or right to counsel.

U.S. v. Hartwig, 39 M.J. 125 (Ct. of Military Appeals, 1994), service members’ free speech rights adhere to older Schenck¹⁰⁸ “clear and present danger” standard.

U.S. v. Averette, 19 U.S.C.M.A. 363, 1970 WL 7355 (C.M.A., 1970), military lacks jurisdiction to court-martial civilian employees of military contractors,¹⁰⁹ absent a Congressional declaration of war. Solorio v. U.S., 483 U.S. 435, 438 (1987). If military has jurisdiction over servicemembers (Art. 2), it can try them for non-service related (e.g., common-law) crimes enumerated in the UCMJ.

U.S. v. Dowty, 60 M.J. 163 (2004).¹¹⁰ Sixth Amendment right to jury does not apply to courts-martial; however, convening authority has a duty to appoint a fair and impartial panel and not “stack” the jury.

Burns v. Wilson, 346 U.S. 137 (1953), civilian courts may not review courts-martial but this does not preclude habeas. See also Schlesinger v. Councilman, 420 U.S. 738 (1975),¹¹¹ Art. III courts can hear collateral habeas attacks on courts-martial, suits for damages or equitable relief. But see Hartikka v. U.S., 754 F.2d 1516 (9^th Cir., 1985) for criteria on irreparable harm and injunctive relief that servicemember plaintiffs must raise.

Feres v. United States, 340 U.S. 135 (1950). Members of armed services whose injuries are incident to their military service cannot recover under the Federal Tort Claims Act. See also Chappell v. Wallace, 462 U.S. 296 (1983), inability to sue on discrimination (Bivens) claims since a Feres waiver might undermine discipline; U.S. v. Shearer, 473 U.S. 52 (1985), off-duty and off-base requirement; U.S. v. Stanley, 483 U.S. 669 (1987), Chappell extended; United States v. Johnson, 481 U.S. 681 (1987), Feres upheld, but with dissents, see this case also for recent Feres doctrine; Bowen v. Oistead, 125 F.3d 800 (9^th Cir., 1997), Feres is binding on National Guard members.

Cummings v. Department of the Navy, 279 F.3d 1051 (2002), exception from Feres in Privacy Act actions; possible exception whenever Congressional statutory intent is clear.

Bivens v. Six Unknown Named Federal Narcotics Agents, 403 U.S. 388 (1971). Civilians can sue the U.S. (including, e.g., the military) for constitutional torts; Feres bars this for service members (see Chappell, above).

Garrett v. Lehman, 751 F.2d 997 (9^th Cir., 1985). Exclusionary rule does not apply to adminis­tra­tive discharge proceedings.

Courts-Martial generally

U.S. v. Hall, 58 M.J. 90 (2003). Gov’t bears burden of showing that a constitutional error (in this case, admission of hearsay evidence) is harmless beyond a reasonable doubt.

U.S. v. Mason, 59 M.J. 416 (2004). Probable cause basis for a military magistrate’s issue of a search authorization (DNA test); U.S. v. Cravens, 56 M.J. 370 (2002). defense has burden of establishing “reckless or intentional” withholding of exculpatory evidence from magistrate.

Noyd v. Bond, 395 U.S. 683, 693 (1969). Military appellate courts can issue extraordinary writs and appellants must pursue this avenue before seeking writs from Federal courts. See also Dettinger v. U.S., 7 M.J. 216 (C.M.A., 1979). More authorities, and criteria for a Government appeal of a dismissal. See also Toohey v. U.S., 60 M.J. 100 (2004). Criteria for seeking extraordinary relief, in this case, because Δ did not receive timely appellate review. See also U.S. v. Toy, 60 M.J. 598 (N.M. Ct. of Crim. App., 2004) for more criteria for extraordinary writs.

United States v. Henderson, 59 M.J. 350 (2004). Special courts-martial may not, absent proper authority, try any UCMJ capital statute; doing so now constitutes fatal jurisdictional error.

U.S. v. Thomas, 22 M.J. 388 (C.M.A., 1986), command influence over courts martial is improper, unlawful; oft-quoted, “Command influence is the mortal enemy of military justice.”¹¹². See also U.S. v. DuBay, 37 C.M.R. 411, 17 U.S.C.M.A. 147, 1967 WL 4276 (C.M.A., 1967) which provides for “DuBay hearings” on command-influence allegations. For standards of proving unlawful command influence see United States v. Biagase, 50 M.J. 143 (1999), United States v. Richter, 51 M.J. 213 (1999) and United States v. Stoneman, 57 M.J. 35 (2002)¹¹³. U.S. v. Johnson, 54 M.J. 32 (2000), commingling of administrative investigation with pre-trial procedure; also UCI press publicity implications; see also U.S. v. Baldwin, 54 M.J. 308 (2001), U.S. v. Ayers, 54 M.J. 85 (2000).

Recruitment.

United States v. Brown, 48 C.M.R. 778 (C.M.A., 1974), 1974 WL 13915. Recruiter misconduct can create defective enlistment.

United States v. Catlow, 48 C.M.R. 758, 1974 WL 13909, 23 U.S.C.M.A. 142 (C.M.A., 1974). Enlistment can be defective when coerced, e.g., Hobson’s choice between enlistment or jail.

Bell v. United States, 366 U.S. 393 (1961). Exclusion of recruitment from common-law contract principles under certain circumstances.

Jablon v. United States 657 F.2d 1064 (9^th Cir., 1981). Contract enforcement against Government; enlistee cannot bring promissory estoppel or loss-of-pay damages; remedy must be based on regulation and statute

United States v. Larionoff, 533 F.2d 1167 (D.C. Cir., 1976), affirmed 431 U.S. 864. Regulations and statutes can displace common-law on recruitment contract disputes; see also for class-action implications. See also Antonuk v. United States, 445 F.2d 592, 598-99 (6^th Cir.1971).

Court Access; recruitment; adverse personnel actions.

Mindes v. Seaman, 453 F.2d 197 (5^th Cir., 1971), appealed on remand, 501 F.2d 175 (5^th Cir., 1974). Often cited (see, e.g., Qualls and Santiago under stop-loss, below.) Balance servicemember’s claim based on Federal law against interference with military functions. Later courts strongly dispute Mindes but Gov’t pleadings (e.g., Santiago) still raise it.

Wenger v. Monroe, 282 F.3d 1068 (9^th Cir., 2002). Criteria for challenging a military decision in court.

Peavy v. Warner, 493 F.2d 748 (5^th Cir., 1974). Courts can review and set aside actions taken by the military not in accord with their own regulations.¹¹⁴

National Guard: dual status

Perpich; see above. Definitive ruling on Federal supremacy over States in National Guard mobilization, but also a comprehensive discussion of dual status nature of state militaries and Guard members and how these evolved.

Holmes v. California National Guard, 90 Cal.App.4th 297 (2001). Dual status can mean different laws and rights for Guard members when in state military status, as opposed to Federally-recognized status.

United States v. Phillips, 58 M.J. 217 (20o4). UCMJ jurisdiction over reservists is not limited to Art. 2(a)(1) and 2(a)(3), the reservist clauses, but can extend under Art. 2(c), the constructive enlistment clause. Not only does it include travel days where misconduct would hitherto have been outside UCMJ jurisdiction, but the military can use 2(c) to establish subject matter jurisdiction outside the time frame of reservists’ orders.