No. 94-1966-1

In The Supreme Court of The United States

OCTOBER TERM, 1995

DWIGHT J. LOVING, PETITIONER

v\.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

BRIEF FOR THE UNITED STATES

JOHN M. SMITH

Colonel, USA

Government Appellate

Division

Falls Church, VA 22041

DREW S. DAYS, III

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor General

MIGUEL A. ESTRADA

Assistant to the Solicitor

General

JOHN F. DE PUE

Attorney

Department of Justice

Washington, D.C. 20530

(202)514-2217

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QUESTION PRESENTED

Whether the President had the authority to promulgate

Rule for Courts-Martial 1004 which prescribes aggravat-

ing factors for cases in which the death penalty is other-

wise expressly authorized by the Uniform Code of Military

Justice.

\(I\)

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TABLE OF CONTENTS

Opinions below . . . . 1

Jurisdiction . . . . 1

Statutes, rule, and constitutional provisions involved . . . . 2

Statement . . . . 2

Summary of argument . . . . 8

Argument:

The president properly promulgate Rule for

Courts-Martial 1004 to limit the class of cases in

which the death penalty, when it otherwise is ex-

pressly authorized by the Uniform Code of Military

Justice, may be imposed . . . . 10

A. Nothing in the Constitution requires that Con-

gress itself determine which capital defendants

are executed . . . . 13

B. The UCMJ authorizes adoption of RCM 1004 and

provides constitutionally adequate standards for

doing so . . . . 34

Conclusion . . . . 47

Appendix . . . . 1a

TABLE OF AUTHORITIES

Cases:

American Power & Light Co. V. SEC, 323 U.S. 90

\(1946\) . . . . 43

Arave V. Creech, 113 S. Ct. 1534 (1993) . . . . 30

Babbitt V. Sweet Home Chapter of Communities

for a Great Oregon, 115 S. Ct. 2407 (1995) . . . . 38

Bank of the United States V. Halstead, 23 U.S. (10

Wheat.) 51 (1825) . . . . 42

Biddle v. Perovich, 274 U.S. 480 (1927) . . . . 42

Bowsher v. Synar, 478 U.S. 714 (1966) . . . . 20

Caldwell v. Parker, 252 U.S. 376 (1920) . . . . 28

\(III\)

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IV

Cases-Continued:

Page

Cargo of the Brig Aurora V. United States, 11 U.S.

(7 Cranch) 382 (1813) . . . . 14

Carter v. McClaughry, 183 U.S. 365 (1902) . . . . 35

Coker v. Georgia, 433 U.S. 584 (1977) . . . . 45

Concrete Pipe & Prods. of California, Inc. V. Con-

struction Laborers Pension Trust, 113 S. Ct.

2264 (1993) . . . . 41

Consumer Product Safety Comm\'n v. GTE Syl-

vania, Inc., 447 U.S. 102 (1980) . . . . 39

Dames & Moore v. Regan, 453 U.S. 654 (1981) . . . . 40, 41

Dobbert v. Florida, 432 U.S. 282 (1977) . . . . 10, 11, 36, 40

Dreyer v. Illinois, 187 U.S. 71 (1902) . . . . 30

Dynes v. Hoover, 61 U.S. (20 How.) 65 (1858) . . . . 32

Field v. Clark, 143 U.S. 649 (1892) . . . . 20

Furman v. Georgia, 408 U.S. 238 (1972) . . . . 2, 7, 10

Godfrey v. Georgia, 446 U.S. 420 (1980) . . . . 30

Goldman v. Weinberger, 475 U.S. 503 (1986) . . . . 31

Gregg v. Georgia, 428 U.S. 153 (1976) . . . . 30, 45

Grimley, In re, 137 U.S. 147 (1890) . . . . 31

Haig v. Agee, 453 U.S. 280 (1981) . . . . 41

Hanna v. Plumer, 380 U.S. 460 (1965) . . . . 42

Irving v. State, 441 So. 2d 846 (Miss. 1983), cert.

denied, 470 U.S. 1059 (1985) . . . . 36

J. W. Hampton, Jr. & Co., V. United States, 276 U.S.

394 (1928) . . . . 19

Johnson v. Sayre, 158 U.S. 109 (1895) . . . . 27

Jordan v. Watkins, 681 F.2d 1067 (5th Cir. 1982) . . . . 36

Jurek v. Texas, 428 U.S. 262 (1976) . . . . 30

Kinsella v, Singleton, 361 U.S. 234 (1960) . . . . 12, 22

Kurtz v. Moffitt, 115 U.S. 487 (1885) . . . . 16

Lewis v. Jeffers, 497 U.S. 764 (1990) . . . . 11, 36

Lichter v. United States, 334 U.S. 742 (1948) . . . . 42, 43

Lowenfield v. Phelps, 484 U.S. 231 (1988) . . . . 11

Marsh v. Chambers, 463 U.S. 783 (1983) . . . . 20

Martin v. Mott, 25 U.S. (12 Wheat) 19 (1827) . . . . 18, 19

27, 40

Mason, Ex parte, 105 U.S. 696 (1881) . . . . 27

Maynard v. Cartwright, 486 U.S. 356 (1988) . . . . 30

McCleskey v. Kemp, 481 U.S. 279 (1987) . . . . 46

McGautha v. California, 402 U.S. 183 (1971) . . . . 27

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V

Cases-Continued:

Page

Middendorf v. Henry, 425 U.S. 25 (1976) . . . . 32

Milligan, Ex parte, 71 U.S. (4 Wall.) 2 (1866) . . . . 29

Mistretta v. United States, 488 U.S. 361 (1989) . . . . 7, 20

26, 32, 33, 42

Moskal v. United States, 498 U.S. 103 (1990) . . . . 35, 41

NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) . . . . 38

National Broadcasting Co. V. United States, 319

U.S. 190 (1943) . . . . 43

Neagle, In re, 135 U.S. 1 (1890) . . . . 17

O\'Callahan v. Parker, 395 U.S. 258 (1969) . . . . 28

Orloff v. Willoughby, 345 U.S. 83 (1953) . . . . 31

Panama Refining Co. v. Ryan, 293 U.S. 388

\(1935\) . . . . 16

Parisi v. Davidson, 405 U.S. 34 (1972) . . . . 32

Parker v. Levy, 417 U.S. 733 (1974) . . . . 31, 40

Poland v. Arizona, 476 U.S. 147 (1986) . . . . 36

Proffitt v. Florida, 428 U.S. 242 (1976) . . . . 30, 45

Quirin, Ex parte, 317 U.S. 1 (1942) . . . . 16

Red Lion Broadcasting Co. V. FCC, 395 U.S. 367

\(1969\) . . . . 39

Reid v. Covert, 354 U.S. 1 (1957) . . . . 29, 37, 40

Reno v. Koray, 115 S. Ct. 2021 (1995) . . . . 41

Romano v. Oklahoma, 114 S. Ct. 2004 (1994) . . . . 11

Rostker v. Goldberg, 453 U.S. 57 (1981) . . . . 18

Runkle v. United States, 122 U.S. 543 (1887) . . . . 32

Schick v. Reed, 419 U.S. 256 (1974) . . . . 11, 42

Schlesinger v. Councilman, 420 U.S. 738 (1975) . . . . 29, 31

Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479

\(1985\) . . . . 35

Sibbach v. Wilson & Co., 312 U.S. 1 (1941) . . . . 42

Skinner v. Mid-America Pipeline Co., 490 U.S. 212

\(1989\) . . . . 12, 14

Smith V. United States, 113 S. Ct. 2050 (1993) . . . . 34

Smith V. Whitney, 116 U.S. 167 (1886) . . . . 27

Solorio V. United States 483 U.S. 435 (1987) . . . . 12, 27, 28

Stanford V. Kentucky, 492 U.S. 361 (1989) . . . . 11, 45

State V. Coleman, 605 P.2d 1000 (Mont. 1979),

cert. denied, 446 U.S. 970 (1980) . . . . 36

Stoutenburgh V. Hennick, 129 U.S. 141 (1889) . . . . 19

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VI

Cases-Continued:

Page

Swaim v. United States:

28 Ct. Ct. 173 (1893), aff\'d, 165 U.S. 553

\(1897\) . . . . 17, 32

165 U.S. 553 (1897) . . . . 17

Tison v. Arizona, 481 U.S. 137 (1987) . . . . 45

Touby v. United States, 500 U.S. 160 (1991) . . . . 31

Tuilaepa v. California, 114 S. Ct. 2630 (1994 ) . . . . 11, 12

United States v. Bailey, 34 U.S. (9 Pet.) 238

\(1835\) . . . . 43

United States v. Chemical Foundation, Inc., 272

U.S. 1 (1926) . . . . 14

United States v. Curtis, 32 M.J. 252 (C.M.A.),

cert. denied, 502 U.S. 952 (1991) . . . . 7, 8

United States v. Curtiss-Wright Export Corp., 299

U.S. 304 (1936) . . . . 15, 19, 41

United States v. Eliasom, 41 U.S. (16 Pet.) 291

\(1842\) . . . . 16

United States v. Flores, 63 F.3d 1342 (5th Cir.

1995\) . . . . 45

United States v. Grimaud, 220 U.S. 506 (1911) . . . . 12, 43

United States v. Matthews, 16 M.J. 354 (C.M.A.

1983\) . . . . 2, 3, 11

United States v. Mazurie, 419 U.S. 544 (1975) . . . . 14

United States v. Ware, 1 M.J. 282 (C.M.A. 1976) . . . . 37

United States ex rel. Knauff v. Shaughnessy, 338

U.S. 537 (1950) . . . . 14, 16, 43

United States ex rel. Toth v. Quarles, 350 U.S. 11

\(1955\) . . . . 25-26, 31

Walton v. Arizona., 497 U.S. 639 (1990) . . . . 30, 36

Walz v. Tax Comm\'n, 397 U.S. 664 (1970) . . . . 20

Wayman v. Southard, 23 U.S. (10 Wheat.) 1

\(1825\) . . . . 42

Weiss v. United States, 114 S. Ct. 752 (1994) . . . . 11, 32, 33

Wells, Ex parte, 59 U.S. (18 How.) 307 (1856) . . . . 42

Yakus v. United States, 321 U.S. 414 (1944) . . . . 43

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579 (1952) . . . . 29

Zant v. Stephens, 462 U.S. 862 (1983) . . . . 30

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VII

Constitution, statutes and rules:

Page

U.S. Const:

Art I . . . . 2, 14, 32, la

9, Cl. 3 (Ex Post Facto Clause) . . . . 36

Art. II . . . . 2, 8, 17, 40, 2a

1, C1. 8 . . . . 17, 2a

2, Cl.1. . . . 17, 42, 2a

3 . . . . 9, 17, 2a

Art III . . . . 42

Amend. V . . . . 26

Amend. VIII . . . . passim

Amend. XIV . . . . 29

Act of Sept. 29,1789, ch. 25, 4,1 Stat. 96 . . . . 21

Act of Apr. 30,1790, ch. 10, 13,1 Stat. 121 . . . . 21

Act of July 1,1797, ch 7, 8,1 Stat. 525 . . . . 21

Act of Mar. 2,1799, ch. 24,1, Art. 29,1 Stat. 712 . . . . 21

Act of Apr. 23,1800, ch. 33, 1,2 Stat. 45:

Art. XVII, 2 stat. 47 . . . . 22, 27-28

Art. XXI, 2 Stat. 48 . . . . 22

Art. XXXII, 2 Stat. 49 . . . . 22

Act of Apr. 10,1806, ch. 20, l, 2 Stat. 359:

Art. 7,2 Stat. 360 . . . . 24

Art. 9,2 Stat. 361 . . . . 24

Art. 20,2 Stat. 362 . . . . 24

Act of Sept. 27,1890, ch. 998,26 Stat. 491 . . . . 24

Act of Aug. 29,1916, ch. 418,\$3,39 Stat. 650:

Art. 45,39 Stat. 657 . . . . 24

Art. 92,39 Stat. 664 . . . . 25

Act of May 5, 1950, ch. 169, 1, Art. 36, 64 Stat.

120 . . . . 37

American Articles of War of 1775 . . . . 20

Art. VII . . . . 20

American Articles of War of 1776, Section VI,

Art. 1 . . . . 20

American Articles of War of 1786, Art. 12 . . . . 20-21

American Articles of War of 1874, Arts. 41-46 . . . . 24

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VIII

Statutes and rules-Continued:

Page

Antihijacking Act of 1974, Pub. L. No. 93-966,

Tit. I, 105, 88 Stat. 412-413 . . . . 44

49 U.S.C. 1473 (c) (7) (1976) . . . . 44

49 U.S.C. 1473 (c) (7) (B) (iii) (1976) . . . . 44

Articles of Confederation (1777) . . . . 20

British Articles of War of 1765, Section VI,

Art. II . . . . 20

Department of Defense Authorization Act, 1986,

Pub. L. No. 99-145, 534, 99 Stat. 634 (1985) . . . . 38

Federal Death Penalty Act of 1994, Pub. L. No.

103-322, Tit. VI, 60002, 108 Stat. 1959 . . . . 46

18 U. S. C. 3591-3598 (1994) . . . . 46

18 U.S.C. 3592(c) (1994) . . . . 47

18 U.S.C. 3592(c) (1) (1994) . . . . 46

18 U.S.C. 3592 (c) (3) - (8) (1994) . . . . 46

18 U.S.C. 3592 (c) (12) (1994) . . . . 46

18 U.S.C. 3592 (c) (14) (1994) . . . . 46

Taft-Hartley Act, 29 U.S.C. 141 et seq. . . . . 29

Uniform Code of Military Justice, 10 U.S.C. 801

et seq.:

Art. 18,10 U.S.C. 818 . . . . passim

Art. 36,10 U.S.C. 836 . . . . 2, 3, 7, 29, 34, 36, 39, 40, 41, 45

Art. 36(a), 10 U.S.C. 836(a) . . . . 8, 9, 10, 13, 36, 37, 41, 44

Art. 51,10 U.S.C. 851 . . . . 33

Art. 55,10 U.S.C. 855 . . . . 2, 43,44, 3a

Art. 56,10 U.S.C. 856 . . . . passim

Art. 60,10 U.S.C. 860 . . . . 7

Art. 66,10 U.S.C. 866 . . . . 7

Art. 71,10 U.S.C. 871 . . . . 33, 42

Art. 80,10 U.S.C. 880 . . . . 2

Art. 106a, 10 U.S.C. 906a . . . . 2, 38, 44

Art. 106a(c) (4), 10 U.S.C. 906a(c) (4) . . . . 38, 39

Art. 118,10 U.S.C. 918 . . . . passim

Art. 118 (4), 10 U.S.C. 918 (4) . . . . 46

Art. 122,10 U.S.C. 922 . . . . 2

18 U.S.C. 351 . . . . 46

18 U.S.C. 1111 . . . . 46

18 U.S.C. 1114 . . . . 46

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IX

States and rules-Continued:

Page

18 U.S.C. 1751 . . . . 46

21 U.S.C. 848 (e) . . . . 46

Mil. R. Evid. 606 (b) . . . . 33

Rules for Courts-Martial:

Rule 1003 . . . . 26

Rule 1003(d) . . . . 26

Rule 1004 . . . . passim

Rule 1004 (b) . . . . 4

Rule 1004 (c) . . . . 4

Rule 1004 (c) (2) . . . . 45

Rule 1004 (c) (3) . . . . 45

Rule 1004 (c) (4) . . . . 44

Rule 1004 (c) (7) . . . . 46

Rule 1004 (c) (7) (B) . . . . 6, 46

Rule 1004 (c) (7) (C) . . . . 46

Rule 1004 (c) (7) (F) . . . . 46

Rule 1004 (c) (7) (G) . . . . 46

Rule 1004 (c) (7) (J) . . . . 6

Rule 1004 (c) (8) . . . . 6, 45

Rule 1004 (c) (9) . . . . 45

Miscellaneous:

I American State Papers Military Affairs (Lowrie

& Clarke eds., 1832) . . . . 21

15 Annals of Cong.:

p\. 263 (1805) . . . . 22

p.326 (1806). . . . 22, 27

pp. 326-327 (1806) . . . . 23

p\. 327 (1806) . . . . 23

p\. 338 (1806) . . . . 23

DOD Directive No. 5500.17 (Jan. 23, 1985) . . . . 33

Dictionary of American Biography (1936) . . . . 23

Exec. Order No. 11,030,27 Fed. Reg. 5847 (1962 ) . . . . 33

Exec. Order No. 12,460,49 Fed. Reg. 3169 (1984 ). . . . 3, 40

Exec. Order No. 12,473, 49 Fed. Reg. 17,152

\(1984\) . . . . 4, 32

Exec. Order No. 12,484, 49 Fed. Reg. 28, 825

\(1984\) . . . . 4, 32-33

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X

Miscellaneous-Continued:

Page

Exec. Order No. 12,550,51 Fed. Reg. 6497 (1986 ) . . . . 4

Exec. Order No. 12,767, 56 Fed. Reg. 30,284

\(1991\) . . . . 4

47 Fed. Reg. 3401 (1982) . . . . 33

48 Fed. Reg. 23,688 (1983) . . . . 4

H.R. Conf. Rep. No. 235, 99th Cong., 1st Sess.

\(1985\) . . . . 39

H.R. Rep. No. 1051, 51st Cong., 1st Sess. (1890) . . . . 24, 35, 43

H.R. Rep. No. 491, 81st Cong., 1st Sess. (1949) . . . . 44

Manual for Courts-Martial;

(1984 ed.) . . . . 3

(1995 ed.) . . . . 4, 26, 44, 45, 46

Manual for Courts-Martial, U.S. Army 1917 . . . . 20, 25

Clinton Rossiter, The Supreme Court and the Com-

mander in Chief (1976) . . . . 32

S. Rep. No. 486, 81st Cong., 1st Sess. (1949) . . . . 44

S. Rep. No. 197, 96th Cong., 1st Sess. (1979) . . . . 37

Frederick Bernays Wiener, Courts-Martial and the

Bill of Rights: The Original Practice I, 72 Harv.

L. Rev. 1 (1958) . . . . 21, 22, 23, 24, 28

William Winthrop, Military Law and Precedents

(2d ed. 1920) . . . . 16, 20, 21, 24

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In the Supreme Court of the United States

OCTOBER TERM, 1995

No. 94-1966

DWIGHT J. LOVING, PETITIONER

v\.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORGES

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Armed Forces (Pet. App. 1a-227a) is reported at 41

M.J. 213. The initial opinion of the United States Army

Court of Military Review, now the United States Army

Court of Criminal Appeals (Pet. App. 229a-256a), is

reported at 34 M.J. 956, and its opinion denying recon-

sideration (Pet. App. 257a-265a) is reported at 34 M.J.

1065\.

JURISDICTION

The judgment of the United States Court of Appeals

for the Armed Forces was entered on November 10, 1994.

A petition for reconsideration was denied on February 2,

1995\. Pet. App. 228a. On April 21, 1995, Chief Justice

Rehnquist extended the time within which to file a peti-

tion for a writ of certiorari to and including June 2,

1995, and the petition was filed on that date. The petition

\(1\)

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2

for a writ of certiorari was granted on September 27,

1995\. 116 S. Ct. 39. The jurisdiction of this Court rests

upon 28 U.S.C. 1259(1) (Supp. V 1993).

STATUTES, RULE, AND

CONSTITUTIONAL PROVISION INVOLVED

Articles 18, 36, 56, 106a, and 118 of the Uniform

Code of Military Justice, 10 U.S.C. 818, 836, 856, 906a,

and 918, and Rule for Courts-Martial 1004, are reprinted

in the Joint Appendix, J.A. 139-145, 132-138. Relevant

provisions of Articles I and II of the Constitution, and

Article 55 of the Uniform Code of Military Justice, are

reproduced in the appendix to this brief, infra, 1a-3a.

STATEMENT

Petitioner was convicted by a general court-martial of

premeditated murder, felony murder, attempted murder,

and robbery (four specifications ), in violation of Articles

118, 80, and 122 of the Uniform Code of Military Justice

(UCMJ), 10 U.S.C. 918, 880, and 922. The court sen-

tenced petitioner to death, a dishonorable discharge, and

forfeiture of all pay and allowances. The United States

Army Court of Military Review affirmed. 34 M.J. 956

(Pet. App. 229a-256a), reconsideration denied, 34 M.J.

1065 (A.C.M.R. 1992) (Pet. App. 257a-265a). The

United States Court of Appeals for the Armed Forces

affirmed. Pet. App. 1a-227a.

1\. In United States v. Matthews, 16 M.J. 354 (1983),

the United States Court of Military Appeals (now the

United States Court of Appeals for the Armed Forces)

analyzed the constitutionality of Article 118 of the UCMJ,

10 U.S.C. 918, which authorizes the imposition of the

death penalty on defendants who are found guilty of cer-

tain murders. The court concluded that Furman v. Geor-

gia, 408 U.S. 238 (1972 ) (per curiam ), and its progeny,

which assessed the constitutionality of state death penalty

schemes, would apply without modification to the imposi-

tion of the death penalty in the military, at least when the

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3

offense is not inherently military but has a civil analogue.

16 M.J. at 368-369.

After reviewing this Court\'s Eighth Amendment cases,

the Matthews court concluded that certain features ap-

peared in a constitutionally valid death penalty procedure:

a bifurcated sentencing proceeding; specific aggravating

circumstances to be identified by the sentencing authority;

selection of and findings on the particular aggravating

circumstances used by the sentencer to impose the death

penalty; unrestricted opportunity for the defendant to

present mitigation and extenuation evidence; and manda-

tory appellate review of the appropriateness of the sen-

tence. 16 M.J. at 377. The court found all of those

safeguards present in the military system except for a re-

quirement that court members identify the specific aggra-

vating factors upon which they relied in imposing the

death penalty. Id. at 379. Because of the absence of that

safeguard, the court reversed Matthews\' death sentence.

ld. at 381-382. The court concluded, however, that either

Congress or the President, in his capacity as Commander-

in-chief and/or pursuant to the powers that Congress

delegated to him, could remedy the defect. Id. at 380

(citing Article 36 of the UCMJ, 10 U.S.C. 836).

On January 24, 1984, \"\[b\]y the authority vested in

\[him\] as President by the Constitution of the United

States and by Chapter 47 of Title 10 of the United States

Code \[i.e., the UCMJ\],\" the President responded by pro-

mulgating an amendment to the extant Manual for Courts-

Martial (Manual) that provided procedures for adjudicat-

ing cases in which the death penalty is authorized by the

UCMJ. See Exec. Order No. 12,460, 49 Fed. Reg. 3169

(1984). When a new revision of the Manual was pub-

lished later that year, the provisions of the Executive Or-

der were included as Rule for Courts-Martial (RCM)

1004\. See Manual (1984 ed.). 1.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

1 Prior to the decision in Matthews, the Department of Defense

announced and solicited comments on the proposed changes to the

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4

Briefly summarized, RCM 1004 requires that, before a

death penalty may be imposed following a general court-

martial conviction of an offense for which Congress has

expressly authorized the death penalty, the accused must

have been notified, prior to trial, of the aggravating factors

the prosecution intends to prove; the members of the

court-martial must unanimously find the existence of at

least one of the aggravating factors specified in the Rule;

the accused must be given broad latitude to present evi-

dence in extenuation and mitigation; and the members

must concur that such extenuating or mitigating circum-

stances are \"substantially outweighed\" by any aggravating

circumstances found to exist. See RCM 1004(b). In

addition, the Rule prescribes a list of aggravating factors,

some of which apply to all capital offenses, others of

which apply exclusively to specifically enumerated crimes.

See RCM 1004(c).

2\. During the evening of December 11, 1988, peti-

tioner, an Army private stationed at Fort Hood, Texas,

robbed at gun point two different 7-Eleven convenience

stores in Killeen, Texas. In the first robbery, petitioner

fired two shots into the counter and soda fountain, which

were behind the cashier; he obtained 38. In the second

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

Manual it was then considering for recommendation to the Presi-

dent, which included RCM 1004. See 48 Fed. Reg. 23,688 (1983) ;

Matthews, 16 M.J. at 381.

The Manual is an Executive Order. See Exec, Order No. 12,478

(Apr. 13, 1984), 49 Fed. Reg. 17,152 (1984), as amended by Exec.

Order No. 12,484 (July 13, 1984), 49 Fed. Reg. 28,825 (1984).

The Rules for Courts-Martial, which are part of the Manual,

\"govern the procedures and punishments in all courts-martial and,

whenever expressly provided, preliminary, supplementary, and ap-

pellate procedures and activities.\" See Manual II-1. The text of

RCM 1004 was subsequently modified by additional Executive

Orders. See Exec. Order No. 12,550 (Feb. 19, 1986), 51 Fed. Reg.

6497, 6498-6499 (1986) ; Exec. Order No. 12,767 (June 27, 19911,

56 Fed. Reg. 30,284, 30,293 (1991). The most recent revision of

the Manual was issued in 1995. It included all amending Executive

Orders by the President up to that time. Unless otherwise noted,

citations to the Manual hereinafter are to the 1995 revision.

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5

robbery, petitioner fired a bullet into the cash register,

and demanded that the cashier put money in a paper bag.

As he ran out, petitioner fired a round back into the

store. He obtained approximately \$52 from the second

robbery. Pet. App. 3a, 231a.

When the 7-Eleven robberies netted him only a small

amount of cash, petitioner conceived a plan to rob taxicab

drivers. On the evening of December 12, 1988, he called

a taxicab to take him from a store in Killeen to his bar-

racks at Fort Hood. The driver of the taxicab was an

active-duty soldier, Christopher Fay, who was working for

extra money. Petitioner directed Fay to a secluded area

on Fort Hood, where he demanded Fay\'s money at gun

point. After receiving some money from Fay, petitioner

shot him in the back of the head. \"While looking at the

hole in the back of the victim\'s head and the blood

\`gushing out,\' \" Pet. App, 232a, petitioner cocked his

pistol and again shot Fay in the back of the head, killing

him. Id. at 3a-4a, 23 la-232a.

Petitioner walked to his barracks and, after counting

the money he obtained from Fay, called a second taxi-

cab. That cab was driven by retired Army sergeant

Bobby Sharbino. Petitioner directed Sharbino to a se-

cluded street in Killeen, where he robbed Sharbino of

his money pouch, wallet. and other personal effects. Peti-

tioner then ordered Sharbino to lie down on a car seat

and shot him in the head, killing him. Pet. App. 4a,

232a.

Later that evening, petitioner took his girlfriend to a

nightclub in Killeen. Upon leaving, petitioner and his

girlfriend entered a taxicab driven by Howard Harrison.

After dropping his girlfriend off near her residence, peti-

tioner directed Harrison to a secluded area and robbed

him at gun point. Petitioner then attempted to kill Harri-

son. Harrison struggled with petitioner, disarmed him, and

fled. Pet. App. 4a-5a, 232a-233a.

Acting on leads provided by Harrison, law enforcement

agents, including agents of the Army Criminal Investiga-

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6

tion Command (CID), arrested petitioner in the after-

noon of December 13, 1988. Petitioner was taken to the

CID office, where, after being advised of his rights, he

made a full videotaped confession describing his crimes in

detail. Searches of the area surrounding petitioner\'s girl-

friend\'s residence, and of the residence and other places

frequented by petitioner, resulted in the recovery of the

weapon used in the murders and robberies, spent and un-

spent bullets, petitioner\'s blood-stained jacket, and effects

taken from the murder victims. Pet. App. 5a, 6a-7a,

232a n.2, 233a. Later, while incarcerated at the U.S.

Army facility at Fort Riley, Kansas, petitioner told a

fellow inmate that he had committed the first murder \"to

see if he could get away with it,\" and the second murder

\"because it was fun.\" He subsequently added that, \"if

he had to do it over, the only difference is he wouldn\'t

get caught.\" Id. at 68a-69a.

An eight-member general court-martial panel unani-

mously found petitioner guilty of the premeditated murder

of Sharbino and of the felony murder of Fay. By a non-

unanimous vote, the court-martial also found petitioner

guilty of attempting to murder Harrison, of robbing Shar-

bino and Harrison, and of robbing the 7-Eleven stores,

Pet. App. 8a-9a. 2. After a hearing conducted in accord-

ance with RCM 1004, the court-martial unanimously

found, as aggravating factors, that the premeditated mur-

der of Sharbino was committed while petitioner was en-

gaged in a robbery (see RCM 1004(c) (7) (B); that, in

the felony murder of Fay, petitioner acted as the trigger-

man (see RCM 1004(c)(8); and that petitioner, having

been found guilty of the premeditated murder of Shar-

bino, was found guilty of another murder in the same

case (see RCM I004(c) (7) (J) ). Pet. App. 253a-254a.

The court-martial unanimously sentenced petitioner to

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

2 In addition, petitioner was also found guilty of the premedi -

tated murder of Fay, the robbery of Fay, and the felony murder of

Sharbino. After the findings were announced, the military judge

dismissed those specifications as multiplicitous. Pet. App. 9a.

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7

death, a dishonorable discharge, and forfeiture of all pay

and allowances. The convening authority approved the

findings and sentence. Id. at 9a, 230a. 3.

3\. The Army Court of Military Review affirmed the

findings and sentence. Pet. App. 229a-256a. In accord-

ance with Article 6.6 of the UCMJ, 10 U.S.C. 866, the

court independently weighed the evidence and \"agree\[d\]

with each of the aggravating factors found by the court-

martial.\" Pet. App. 254a. The Court also found \"that

any extenuating and mitigating circumstances are substan-

tially outweighed by the aggravating circumstances.\" Ibid.

On appeal, petitioner argued that Article 118 of the

UCMJ, 10 U.S.C. 918, is unconstitutional under Furman

V. Georgia, 408 U.S. 238 ( 1972) (per curiam), in that

it does not sufficiently narrow the class of death-eligible

defendants, and that the President exceeded his authority

under the Constitution and the UCMJ in promulgating

RCM 1004 to provide specific aggravating factors. The

court found those claims foreclosed by United States V.

Curtis, 32 M.J. 252 (C.M.A. ) (J.A. 88-131), cert. de-

nied, 502 U.S. 952 (1991 ). Pet. App. 230a.

The Curtis court concluded that, under the UCMJ, the

President has long \"play\[ed\] the major role in determin-

ing what punishments may be imposed by courts-martial.\"

J.A. 107. It held that several provisions of the UCMJ,

particularly Articles 18, 36, and 56, 10 U.S.C. 818, 836,

and 856, authorized the President to promulgate aggra-

vating factors for capital cases. J.A. 107-108. Relying

on Mistretta v. United States, 488 U.S. 361 (1989), the

Curtis court rejected a separation-of-powers challenge to

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

3 The \"convening authority\" is the commander who convenes the

court-martial. The convening authority selects the court-martial

members, directs that the accused be tried by the court-martial for

the charged offenses, and conducts a poet-trial review of the pro-

ceedings. Upon such review, he is empowered to dismiss any charge

or specification by setting aside the finding of guilty or \"approve,

disapprove, commute, or suspend the sentence in whole or in part.\"

See Art. 60, UCMJ, 10 U. S.C. 860.

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8

that authorization, noting that \"\[i\]n view of \[the Presi-

dent\'s\] inherent constitutional authority \[as Commander-

in-Chief of the Army and Navy\], a separation-of-powers

objection has much less merit in the present context than

if the \'aggravating factors\' for capital cases tried by courts-

martial had been formulated by a specially created com-

mission.\" J.A. 106. Curtis also rejected the contention

that Congress failed to give the President an intelligible

principle for the exercise of his authority, explaining that

adequate standards are furnished by the UCMJ\'S direc-

tion in Article 36(a) that the President \"shall, so far as

he considers practicable,\" apply \"the principles of law\"

that are generally recognized in the trial of criminal cases

in federal district courts. J.A. 113-122.

4\. The Court of Appeals for the Armed Forces af-

firmed. Pet. App. 1a-227a. The court summarily re-

jected, on the authority of Curtis and Matthews, petition-

er\'s claims that the President lacked constitutional and

statutory authority to promulgate RCM 1004. Pet. App.

141a-142a.

SUMMARY OF ARGUMENT

Article 118 of the Uniform Code of Military Justice

(UCMJ) expressly provides that a servicemember who

commits premeditated or felony murder \"shall suffer death

or imprisonment for life as a court-martial may direct.\"

10 U.S.C. 918. Rule for Courts-Martial (RCM) 1004,

first promulgated by the President in 1984, provides that

only a sub-class of those eligible for the death penalty

under Article 118-i.e., those who are guilty of certain

forms of aggravated conduct-may be sentenced to death

by a court-martial. The President\'s action was authorized

by other provisions of the UCMJ and by the President\'s

own powers under Article II of the Constitution. It does

not violate the separation-of-powers doctrine or the Eighth

Amendment.

A. The UCMJ authorizes the President\'s action be-

cause Articles 18 and 56 of the UCMJ provide that the

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9

President may limit the punishment that courts-martial

may impose, including-as Article 18 makes clear-\"the

penalty of death when specifically authorized by\" the

UCMJ. 10 U.S.C. 818, 856. Article 36(a) further pro-

vides that the President may prescribe \"post-trial proce-

dures\" for cases arising under the UCMJ to conform to

the \"principles of law \* \* \* generally recognized\" in the

trial of federal criminal cases. 10 U.S.C. 836(a). In

addition, the constitutional powers conferred on the Presi-

dent as Commander-in-Chief independently authorize him

to regulate military punishments, within the bounds au-

thorized by statute, because such punishments always

have been understood to be an aspect of military obedi-

ence and discipline. Because the Constitution also en-

joins the President to \"take Care that the Laws be faith-

fully executed,\" Art. II, 3, it was especially appropriate

for him to exercise his statutory and constitutional au-

thority to. promulgate RCM 1004, because by so doing

he removed arguable Eighth Amendment defects in the

procedures by which Article 118 is implemented and

thereby ensured that it is enforced as contemplated by

Congress.

There is no merit to petitioner\'s argument that under

separation-of-powers principles Congress alone may prom-

ulgate aggravating factors. This Court has long recog-

nized that it is appropriate for Congress to grant the

President broad authority in areas in which the Constitu-

tion also gives him independent power to act. That prin-

ciple applies with special force with respect to the armed

forces and the President\'s role as their Commander-in-

Chief, and Congress has a long-standing practice of leav-

ing the regulation of military punishments, including death

when authorized by statute, to the Executive. Nothing in

the Eighth Amendment requires a different conclusion,

because this Court has never construed that provision to

embody its own separation-of-powers doctrine.

B. There is no greater merit to petitioner\'s claim that

the UCMJ\'S grant of authority to the President is not

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10

cabined by constitutionally adequate standards. In enact-

ing Articles 18 and 56, Congress must have contemplated

that the President would exercise his authority to limit

sentences by reference to the considerations that tradi-

tionally have controlled similar exercises of his discretion,

including the needs of military discipline, and the policy

of providing for evenhanded imposition of court-martial

punishments across the country. Article 36 (a ) gives the

President additional guidance by referring him to \"prin-

ciples of law \* \* \* generally recognized\" by federal dis-

trict courts. Those principles include the Eighth Amend-

ment decisions of this Court and other death penalty

statutes on which the President relied in promulgating

RCM 1004.

ARGUMENT

THE PRESIDENT PROPERLY PROMULGATED RULE

FOR COURTS-MARTIAL 1004 TO LIMIT THE CLASS

OF CASES IN WHICH THE DEATH PENALTY, WHEN

IT OTHERWISE IS EXPRESSLY AUTHORIZED BY

THE UNIFORM CODE OF MILITARY JUSTICE, MAY

BE IMPOSED

The linchpin of the arguments advanced by petitioner

and his amici is the assumption, nowhere demonstrated,

that Furman v. Georgia, 408 U.S. 238 (1972), and its

progeny, rendered Article 118 of the UCMJ, 10 U.S.C.

918, in which Congress expressly authorized the death

penalty for certain murders committed by military per-

sonnel, a nullity. Because of that assumption, petitioner

contends that the President must be deemed to have de-

fined new crimes punishable by death-i. e., to have pre-

scribed \"what acts would be punished as criminal offenses

and what the punishment should be for those offenses.\"

Pet. Br. 6; see also ACLU Br. 7. That assumption, how-

ever, is wrong. See, e.g., Dobbert v. Florida, 432 U.S.

282, 297-298 (1977 ). 4. Furman and its progeny held that

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

4 Dobbert rejected the defendant\'s argument that there \"was! no

death penalty \`in effect\' in Florida\" at the time of his crime
because

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11

the Eighth Amendment prohibits the imposition of the

death penalty under procedures that create a substantial

risk that it will be inflicted in an arbitrary manner. See

e.g., Lewis V. Jeffers, 497 U.S. 764, 774 ( 1990). Those

cases did not rule unconstitutional Congress\'s judgment

that death is a lawful punishment for premeditated or

felony murder in the military justice system. 5. Instead,

as the Court of Military Appeals recognized in United

States v. Matthews, 16 M.J. 354 (1983), those cases

require only that appropriate safeguards exist in order for

a death penalty statute to be implemented in a constitu-

tional manner i.e., that the fact-finder\'s judgment reason-

ably separate the murder committed by the defendant

from the general class of all murders. See, e.g., Tuilaepa

V. California, 114 S. Ct. 2630, 2634-2635 (1994);

Romano V. Oklahoma, 114 S. Ct. 2004, 2009 ( 1994);

Lowenfield v. Phelps, 484 U.S. 231, 244 ( 1988 ). 6.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

Florida had not yet acted to comply with the dictates of Furman.

Dobbert accordingly upheld retroactive application to the defendant

of that State\'s post-Furman capital sentencing law on the ground

that the changes were merely procedural. 432 U.S. at 296, 297.

5 See Schick v. Reed, 419 U.S. 256, 260, 267 (1974) (expressly

leaving undecided whether Furman analysis applies to the mili-

tary) ; cf. Stanford v. Kentucky, 492 U.S. 361, 372 n.4 (1989)

(citing Article 118 as appropriately informing decision whether

there is a national consensus against execution of underage offend-

ers, thereby apparently assuming that Article 118 remains in

effect) ; Weiss V. United States, 114 S. Ct. 752, 760-761 (1994)

(noting that the constitutional tests and limitations applicable in

the military context may differ from those the Court has developed

for civilian society).

6 While we need not quarrel here with Matthews\' limited holding

that the Constitution requires additional findings as to aggravation

in cases brought under Article 118, this Court\'s subsequent cases

have cast doubt on the court\'s imposition of that requirement. In

Lowenfield V. Phelps, 484 U.S. 231 (1988), this Court held that the

\"narrowing\" required by the Eighth Amendment may be inherent

in the definition of the crime and occur at the penalty phase. See

Tuilaepa, 114 S. Ct. at 2634-2635; Romano, 114 S. Ct. at 2009

In enacting Article 118, Congress could reasonably have concluded

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12

Thus, contrary to petitioner\'s basic submission (Br.

39-43 ), Congress in this case has exercised its constitu-

tional authority to \"creat\[e\] \[the\] offense\[\] \[and\] fix\[\]

\* \* \* the punishment there for,\" Kinsella v. Singleton, 361

U.S. 234, 246 (1960); see Solorio v. United States, 483

U.S. 435, 438-439 (1987), by providing in Article 118

that any servicemember guilty of premeditated murder or

felony murder may be sentenced to death. \"The statute,

not the \[President\], fixes the penalty,\" United States V.

Grinaud, 220 U.S. 506, 522 (1911), and the President,

\"in order to administer the law and carry the statute into

effect,\" did \"not go outside of the circle of that which

the \[UCMJ\] itself ha\[s\] affirmatively \* \* \* treated as un-

lawful if done.\" Id. at 518. That power to make the

UCMJ system work in light of judicial rulings and other

changed circumstances was clearly conferred on the

President by the Constitution and by \"entirely appropriate

delegations of discretionary authority by Congress.\"

Skinner V. Mid-America Pipeline Co., 490 U.S. 212, 222

\(1989\) (\"without doubt\" Congress may confer upon the

Executive \"the authority to prescribe all needful rules

and regulations\" for the enforcement of the Internal Rev-

enue Code, \"including all rules and regulations as may

be necessary by reason of any alteration of law\") (in-

ternal quotation marks omitted).

In addition to his constitutional authority as President,

three specific provisions of the UCM.J make clear that

the President has the power to restrict the class of defend-

ants who may be sentenced to death in the military jus-

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

that those whom the government trains to kill have a special

obligation of restraint that makes their commission of murder

more morally culpable than the general class of homicides com-

mitted by a civilian. Such a breach of trust also impairs the

effectiveness of an essential government function, because it under-

mines public confidence in the armed forces on which the citizenry

depends for its security. Those factors serve to make Article 118

applicable \"only to a subclass of defendants convicted of murder.\"

Tuilaepa, 114 S. Ct. at 2635.

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13

tice system. Article 18, 10 U.S.C. 818, which sets forth

the jurisdiction of general courts-martial, provides that

such courts-martial \"may, under such limitations as the

President may prescribe, adjudge any punishment not

forbidden by this chapter, including the penalty of death

when specifically authorized by this chapter.\" Article

36(a), 10 U.S.C. 836(a), empowers the President to

prescribe \"trial\[\] and post-trial procedures \* \* \* for cases

arising under \[the UCMJ\] triable in courts-martial\" by

regulations that \"shall, so far as \[the President\] consid-

ers practicable, apply the principles of law \* \* \* generally

recognized in the trial of criminal cases in the United

States district courts.\" And Article 56, 10 U.S.C. 856,

authorizes the President to limit the maximum punish-

ment a court-martial may impose.

Those provisions plainly authorize the President to pro-

vide that fewer than all the defendants whom Congress

has made eligible for the military death penalty may ac-

tually suffer that punishment, by incorporating into the

Rules for Courts-Martial (RCM) the procedures that

this Court\'s Eighth Amendment cases have upheld as con-

stitutionally sufficient in the civilian context. The Presi-

dent\'s decision to exercise his constitutional and statutory

authority in that manner not only removed any arguable

Eighth Amendment infirmity in how the military death

penalty is implemented, 7. but also is consistent with Con-

gress\'s long-standing practice, dating back to the framing

of the Constitution, of confiding similar decisions to the

judgment of the Executive.

A. Nothing In The Constitution Requires That Congress

Itself Determine which Capital Defendants Are

Executed

Petitioner contends (Br. 7-16, 37, 42-43) that the

Framers of the Constitution gave Congress the exclusive

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

7 Significantly, petitioner makes no claim that the aggravating

factors promulgated by the President in RCM 1004 would fail to

satisfy the Eighth Amendment\'s requirement of \"narrowing\" if

those factors had been enacted by Congress.

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14

authority to promulgate rules, regulations, and punish-

ments to be applied by courts-martial, that the Framers

never intended \"the president\'s powers to be broad enough

to establish policy or rules for the government and regu-

lation of courts-martial,\" Br. 10, and that accordingly the

President\'s exercise of such \"legislative\" authority in

promulgating RCM 1004 violates the nondelegation doc-

trine and the Eighth Amendment. There is no merit to

those claims, which ignore not only the President\'s inde-

pendent role in the constitutional scheme but also 200

years of our Nation\'s history.

1\. There is no basis for petitioner\'s suggestion (Br.

7-8) that, because Article I vests in Congress the au-

thority to make rules for the government of the armed

forces, Congress\'s ability to seek the aid of the Executive

in this area is subject to special restrictions. See Skinner

V. Mid-America Pipeline Co., 490 U.S. at 220-221 (no

distinction in Article I powers, including power to \"raise

and support Armies\" or to \" \`make Rules for the\[ir\] Gov-

ernment\' \* \* \* in terms of the scope and degree of dis-

cretionary authority that Congress may delegate to the

Executive\"); see also id. at 222-223. Here, far more

pertinent than the specific head of Article I power in-

voked by Congress is the long-standing principle that the

limits on Congress\'s ability to confer authority on the

Executive Branch-under any of its Article I powers-

are \"less stringent in cases where the entity exercising the

delegated authority itself possesses independent authority

over the subject matter.\" United States v. Mazurie, 419

U.S. 544, 556-557 ( 1975) (delegation to Indian tribe of

authority to regulate liquor, which gave rise to federal

criminal penalties ); see also United States ex rel. Knauff

v\. Shaughnessy, 338 U.S. 537, 542-543 (1950) (immi-

gration); United States v. Chemical Foundation, Inc.,

272 U.S. 1, 12 (1926) (Commander-in-chief power);

Cargo of the Brig Aurora v. United States, 11 U.S. (7

Cranch) 382, 387-388 (1813) (foreign affairs),

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15

That principle is illustrated by United States v. Curtiss-

Wright Export Corp., 299 U.S. 304 ( 1936). In that

case, Congress had given the President authority to pro-

hibit arms sales to warring South American countries,

with whatever exceptions he might prescribe, if he should

conclude that such a prohibition would \"contribute to the

re-establishment of peace\" there. Id. at 312. That au-

thorization was attacked as an impermissible delegation

of Legislative power that was \"controlled by no standard.\"

Id. at 314-315. Emphasizing the \"unbroken legislative

practice \* \* \* almost from the inception of the national

government,\" id. at 322, which provided for the President

to exercise primary control over matters involving foreign

affairs, this Court rejected that challenge:

It is important to bear in mind that we are here

dealing not alone with an authority vested in the

President by an exertion of legislative power, but

with such an authority plus the very delicate, plenary

and exclusive power of the President as the sole

organ of the federal government in the field of inter-

national relations \* \* \*.

Id. at 319-320. The Court made the same point in

Knauff, in rejecting an alien\'s challenge to her exclusion

from the United States pursuant to authority delegated

by statute to the President:

\[T\]here is no question of inappropriate delegation

of legislative power involved here. The exclusion of

aliens is a fundamental act of sovereignty. The right

to do so stems not alone from legislative power but

is inherent in the executive power to control the

foreign affairs of the nation. \* \* \*

\* \* \* Normally Congress supplies the conditions

of the privilege of entry into the United States. But

because the power of exclusion of aliens is also

inherent in the executive department of the sovereign,

Congress may in broad terms authorize the executive

to exercise the power, e.g., as was done here, for

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16

the best interests of the country during a time of

national emergency.

338 U.S. at 542-543.

The same is true here, because the authority exercised

by the President is \"cognate to the conduct by him,\"

Panama Refining Co. V. Ryan, 293 U.S. 388, 422

( 1935), of his constitutional duties. \"The power of the

executive to establish rules and regulations for the govern-

ment of the army, is undoubted,\" United States v. Eliason,

41 U.S. (16 Pet.) 291, 301 (1842), because the Con-

stitution \"invests the President, as Commander in Chief,

with the power to \* \* \* carry into effect all laws passed

by Congress for the conduct of war and for the govern-

ment and regulation of the Armed Forces.\" Ex parte

Quirin, 317 U.S. 1, 26 (1942); see also Kurtz V. Moffitt,

115 U.S. 487, 503 (1885) (army regulations providing

rewards for the capture of deserters \"derive their force

from the power of the President as commander-in-chief,

and are binding upon all within the sphere of his legal and

constitutional authority\"); William Winthrop, Military

Law and Precedents 31 (2d ed. 1920) (Commander-

in-Chief \"may, in the due execution of the laws for the

government of the army, make needful and proper regu-

lations without any legislative authority whatever\"); id.

at 27, 59.

The Commander-in-Chief\'s constitutional authority easily

encompasses the regulation, within prescribed statutory

bounds, of punishments imposed in the military. As the

Court of Claims noted in a landmark case, in which this

Court later concluded that the President has inherent

power to convene courts-martial in the absence of legisla-

tion expressly prohibiting him from doing so:

\[T\]here remains the significant fact in our military

system that the President is always the commander

in chief. Congress may increase the Army, or reduce

the Army, or abolish it altogether; but so long as

we have a military force Congress can not take away

from the President the supreme command. \* \* \*

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17

\* \* \* The power to command depends upon disci-

pline, and discipline depends upon the power to

punish \* \* \*. If the President has no authority in

matters pertaining to military tribunals unless it be

\"expressly\" granted by Congress, then Congress \* \* \*

could practically defeat the express declaration of

the Constitution and strip the office of commander

in chief of all real powers of command.

Swaim v. United States, 28 Ct. Cl. 173, 221-222 ( 1893\],

aff\'d, 165 U.S. 553, 566 ( 1897) (\"We have felt con-

strained to, at least briefly, consider the several proposi-

tions urged upon us \* \* \*, though we might well have

contented ourselves with a reference to the able and

elaborate opinion of the Court of Claims.\") . 8.

It is especially appropriate for the President to exercise

that power in order to ensure that criminal statutes duly

enacted by Congress in this setting-such as Article 118

of the UCMJ-are enforced in accordance with constitu-

tional guarantees. Article 11 of the Constitution, in addi-

tion to providing that the \"President shall be Commander

in Chief of the Army and Navy,\" Art. II, 2, Cl.1,

imposes on the President the duty to \"take Care that the

Laws be faithfully executed,\" Art. II, 3, and he must

swear or affirm that he will \"faithfully execute the Office

\* \* \* and will to the best of \[his\] Ability, preserve, pro-

tect and defend the Constitution of the United States.\"

Art. II, 1, Cl. 8. See also In re Neagle, 135 U.S. 1, 63-

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

8 In affirming, this Court also quoted at length from an 1835

report by the Senate Judiciary Committee. That report noted that

the 1806 Articles of War, in expressly authorizing certain named

officers to convene courts-martial, did not intend to \"exclude the

inherent power residing in the President of the United States

under the Constitution. \* \* \[Those articles do not in any

manner control or restrain the commander-in-chief of the army

from exercising the Power which the committee think, in the

absence of legislation expressly prohibitive, resides in him from

the very nature of his office. and which, as has been stated, has

always been exercised.\" 165 U.S. at 557-558.

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18

68 ( 1890); Rostker v. Goldberg, 453 U.S. 57, 64 ( 1981)

(\"we must have due regard to the fact that this Court is

not exercising a primary judgment but is sitting in judg-

ment upon those who also have taken the oath to observe

the Constitution and who have the responsibility for carry-

ing on government\'\"). Those constitutional duties surely

enable the President to use his authority as Commander-

in-Chief, and all authority conferred upon him by statute,

to eliminate any procedural infirmities in the administration

of the punitive articles of the UCMJ, so as to allow for

those articles to be \"faithfully executed\" and to retain the

force\' Congress intended them to have in the governance

of the armed forces.

Indeed, the appropriateness of Congress\'s entrusting the

\`Commander-in-Chief, in light of his special place in the

constitutional scheme, with special duties with respect to

the armed forces was recognized by this Court as early

as 1827, in Martin V. Mott, 25 U.S. (12 Wheat. ) 19.

The Court rejected Mott\'s challenge to the jurisdiction of

the court-martial that had convicted him for failing to

serve in the New York militia, which had been called into

\`service by the President during the War of 1812 in accord-

ance with a statute authorizing him to do so when he

\"judge\[d\] \[it\] necessary to repel \[an\] invasion.\" Id. at 31.

Speaking through Justice Story, the Court rejected (id.

at 32) Mott\'s attempt to apply to \"the delegation and

exercise of this power\" the \"same principles \* \* \* as

might be applied to the humblest officer in the govern-

ment\":

The power itself is confided to the executive \* \* \*,

to him who is, by the constitution, \"the commander-

in-chief of the militia, when called into the actual

service of the United States,\" whose duty it is to

\"take care that the laws be faithfully executed,\" and

whose responsibility y for an honest discharge of his

official obligations is secured by the highest sanc-

tions. \* \* \* It is no answer, that such a power may

be abused, for there is no power which is not suscepti-

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19

ble of abuse. The remedy for this, as well as for all

other official misconduct, if it should occur, is to

be found in the constitution itself. In a free govern-

ment, the danger must be remote, since, in addition

to the high qualities which the executive must be pre-

sumed to possess, \* \* \* the frequency of elections,

and the watchfulness of the representatives of the

nation, carry with them all the checks which can be

useful to guard against usurpation or wanton tyranny.

Id. at 31-32. 9.

2\. That the President may exercise the type of author-

ity at issue here is also confirmed by Congress\'s long-

standing practice, from the founding of our Government,

of deferring to the President (or his subordinate, the

court-martial ) on questions of military discipline and pun-

ishment, including the circumstances that warrant the

penalty of death when otherwise authorized by statute.

\"This Court has repeatedly laid down the principle that

a contemporaneous legislative exposition of the Constitu-

tion when the founders of our Government and framers

of our Constitution were actively participating in public

affairs, long acquiesced in, fixes the construction to be

given its provisions.\" J. W. Hampton, Jr. & Co. V. United

States, 276 U.S. 394, 412 ( 1928); see also Curtiss-Wright

Export Corp., 299 U.S. at 327-329; Stoutenburgh v. Hen-

nick, 129 U.S. 141, 147 ( 1889) (upholding grant of

lawmaking power to District of Columbia since \"the cre-

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

9 Justice Story went on to reject Mott\'s claim-which recalls

petitioner\'s argument that the President\'s power should be more

circumscribed in peacetime that he should not have been tried

by court-martial \"three years and more after the war was con-

cluded, and in a time of profound peace.\" 25 U.S. (12 Wheat.) at

37\. In words equally applicable to petitioner\'s effort to qualify the

unrestricted language of the UCMJ, Justice Story noted that the

power conferred by the statute at issue was not \"in any shape

dependent upon the fact of war or peace.\" Ibid.

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20

ation of municipalities exercising local self-government\"

is sanctioned by \"immemorial practice\") . 10.

At the inception of the American Revolution, the Brit-

ish Articles of War then in effect defined offenses subject

to trial by court-martial but directed that, in the case of

most offenses, the defendant be punished \"according to

the Nature of his Offense at the Discretion of the Court-

martial.\" See British Articles of War of 1765, Section

VI, Art. II, reprinted in Winthrop, supra, App. VII at 934

(absence without leave). The Second Continental Con-

gress adopted a similar system for imposing punishment

following a court-martial conviction. Thus, the American

Articles of War of 1775, which were based upon the

British Articles, see Manual For Courts-Martial, U.S.

Army 1917 at ix, likewise defined offenses subject to

trial by court-martial but vested the court with almost

unfettered discretion in fixing punishment. 11. The follow-

ing year, when the Continental Congress adopted a new

set of articles, it again afforded to courts-martial similar

discretion in determining an appropriate punishment. 12.

Under the Articles of Confederation, the Congress con-

tinued this practice when, in 1786, it adopted \"Rules and

Articles for the administration of justice in the holding

of courts-martial.\" See, e.g., American Articles of War of

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

10 See also Mistretta v. United States, 488 U.S. 361, \"390 (1989);

Bowsher v. Synar, 478 U.S. 714, 723-724 (1986) ; Marsh v. Cham-

bers, 463 U.S. 783, \'790 (1983) ; Walz V. Tax Comm\'n, 397 U.S. 664,

678 (1970) ; Field v. Clark, 143 U.S. 649, 691 (1892).

11 See, e.g., American Articles of War of 1775, Art. VII, reprinted

in Winthrop, .supra, App. IX at 954 (defendant, upon conviction for

striking or disobeying superior officer, \"shall suffer such punish-

ment as shall, according to the nature of his offense, be ordered by

the sentence of a general court-martial\").

12 See, e.g., American Articles of War of 1776, Section VI, Art. 1.

reprinted in Winthrop, supra, App. X at 963 (upon conviction for

desertion, defendant \"shall suffer death, or such other punishment

as by a court-martial shall be inflicted\").

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21

1786, Art. 12, reprinted in Winthrop, supra, App. XI at

973 (persons causing riots in order to disturb court-

martial proceedings to be \"punished at the discretion of

the said court-martial\").

The adoption of the Constitution and the Bill of Rights

did not alter the antecedent understanding concerning the

proper allocation of sentencing responsibility in courts-

martial between the Congress and the Executive. While

Secretary of War Knox noted in 1789 \"that the change in

the Government of the United States will require that the

articles of war be revised and adapted to the constitu-

tion,\" Frederick Bernays Wiener, Courts-Martial and the

Bill of Rights: The Original Practice Z, 72 Harv. L. Rev.

1, 8 (1958) (Wiener I) (quoting I American State Papers

Military Affairs 6 (Lowrie & Clarke eels., 1832)), the

First Congress evidently did not conclude that any sig-

nificant revisions would be required, because it continued

the Continental Articles of War without change in 1789,

see Act of Sept. 29, 1789, ch. 25, 4, 1 Stat. 96, and

simply reenacted them again in 1790 \"as far as \[they\]

may be applicable to the constitution of the United

States.\" Act of Apr. 30, 1790, ch. 10, 13, 1 Stat.

121; see also Act of July 1, 1797, ch. 7, 8, 1 Stat. 525

(same for navy).

Congress continued to rely on established military law

in new articles for the government of the navy, which

were adopted in 1799. Those articles \"follow\[ed\] the

Continental articles closely,\" were adopted \"without a

word of recorded debate,\" Wiener I, supra, 72 Harv. L.

Rev. at 14, and provided categorically that \"\[a\]11 murder

shall be punished with death,\" Act of Mar. 2, 1799, ch.

24,1, Art. 29, 1 Stat. 712-a punishment that was

made discretionary one year later. 13. Indeed, no significant

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

13 In 1800, Congress adopted new rules for the government of

the navy, which authorized, but did not require, the death penalty

in cases of murder committed \"without the territorial jurisdiction\"

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22

debate on the question of military punishments occurred

until 1805, when Congress undertook a more detailed

review and revision of rules for the government of the

army in order to \"adapt\[\] \[them\] to the provisions under

the present government.\" 15 Annals of Cong. 263 (1805)

(statement of Rep. Varnum); see also Wiener I, supra,

72 Harv. L. Rev. at 8.

During debate in the House of Representatives the fol-

lowing year, Representative Campbell of Tennessee re-

peatedly moved to strike the death penalty as a punish-

ment that could permissibly be imposed by courts-martial.

According to the Annals of Congress:

In support of this amendment, Mr. Campbell rep-

robated the idea of the lives of citizens being in the

power of a court martial. He compared soldiers to

mere machines, from the severity of the military law;

he said almost every article in the bill was stained

with blood; he drew a parallel between them, and

the civil penal laws; and that when men know how

small offenses subjected them to death, they would

be deterred from or disgusted in serving their

country.

15 Annals of Cong. 326 (1806); see Kinsella, 361 U.S.

at 248-249. That proposal was \"strenuously opposed\"

(15 Annals of Cong., 326 (1806)) by other members of

the House, who were veterans of the Revolutionary War.

See Wiener I, supra, 72 Harv. L. Rev. at 20. Those

members

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

of the United States. See Act of Apr. 23, 1800, ch. 33, 1, Art.

XXI, 2 Stat. 48. Other provisions of the 1800 articles, however,

appeared to incorporate that punishment for offenses committed in

the United States. See Art. XVII, 2 Stat. 47 (\"All offenses com-

mitted by persons belonging to the navy while on shore, shall be

punished in the same manner as if they had been committed at

sea-\") ; Art. XXXII, 2 Stat. 49 (\"All crimes committed by persons

belonging to the navy, which are not specified in the foregoing

articles, shall be punished according to the laws and customs in

such cases at sea.\").

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23

represented the necessity of the bill standing as it

had hitherto done in this respect. They drew a pic-

ture of the Army without discipline, where every

soldier might think himself at his own disposal-f

an army being ordered to attack the enemy, and an

officer refusing, and drawing his sword on his com-

manding officer. The necessity of a code of laws

for the military differing from the civil law was

demonstrated; and having, by the law as it stands,

gone through the Revolutionary war with success,

and in peace found no ill consequence arising there-

from, they thought it neither prudent nor safe to

adopt the amendment.

15 Annals of Cong. 326-327 ( 1806) . 14. \" Representative

Campbell\'s motion lost. Id. at 327.

Six days later, when the proposed articles of war were

again read, Mr. Campbell \"moved to recommit the bill

to a select committee, with the view of modifying it so as

to render more definite the powers of courts martial, and

particularly that the power of inflicting the punishment of

death should be more guardedly bestowed.\" 15 Annals

of Cong. 338 ( 1806). That motion, too, was rejected,

and the bill passed as proposed. Ibid. In the Senate, the

only controversy as to punishment resulted from the

House\'s reduction of the number of lashes allowable for

certain infractions. The House view prevailed, and the

Senate approved the bill as well. President Jefferson signed

it on April 10, 1806. See Wiener I, supra, 72 Harv. L.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

14 The principal spokesman on behalf of the opponents of Repre-

sentative Campbell\'s amendment was Representative Tallmadge of

Connecticut, who had been a prominent officer in the Continental

Army and a confidant of general Washington. See Dictionary of

American Biography 284-285 (1936). Representative Tallmadge

\"brought forward \* \* \* instances of danger, when soldiers were

not subject to severe laws. Soldiers, he observed, were a description

of men that must be ruled with severity-and though officers were

invested with this authority, they were ever careful in exerting it.\"

15 Annals of Cong. 327 (1806).

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24

Rev. at 21-22. In the end, the new Articles of War-

which were intended to adapt military law to the dictates

of the Constitution, and which largely remained substan-

tively unchanged until 1916, see id. at 19 & n. 138-

continued the pre-constitutional practice of defining of-

fenses but affording to courts-martial almost unfettered

latitude in fixing punishment, including death where au-

thorized by statute. 15.

In 1890, Congress initiated the practice of directing

the President, rather than the court-martial itself, to fix

the maximum allowable punishment whenever the sen-

tence was left to the discretion of the court-martial by

the Articles of War. See Act of Sept. 27, 1890, ch. 998,

26 Stat. 491. The House Committee Report that accom-

panied the draft legislation explained that \"\[a\]t the pres-

ent time courts-martial sitting in different parts of the

country, without a common superior, adjudge and impose

very unequal penalties for the same offense, and often, it

is believed, excessive penal ties.\" H.R. Rep. No. 1051,

51st Cong., 1st Sess. 1 ( 1890). In urging the legislation\'s

enactment, the Committee added:

In such offenses the committee believe that there

should be some common standard, and think it very

fit that the Commander-in-Chief should have the

power to prescribe the limit.

Ibid.; see also Act of Aug. 29, 1916, ch. 418, 3, 39

Stat. 657 (Art. 45) (\"Whenever the punishment for a

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

15 See Act of Apr. 10, 1806, ch. 20, 1, Art. 7, 2 Stat. 360 (upon

conviction of mutiny, defendant \"shall suffer death, or such other

punishment as by a court martial shall be inflicted\") ; Art. 9, 2

Stat. 361 (same-striking or disobeying a superior) ; Art. 20, 2

Stat. 362 (same-desertion j. To the same effect were the American

Articles of War of 1874, which made only minor changes to the

1806 enactment, see Wiener I, supra, 72 Harv. L. Rev. at 19 n. 138.

See Winthrop, Supra, App. XIII at 989 (Arts. 41-46) (each provid-

ing that the defendant \"shall suffer death, or such other punish-

ment as a court-martial may direct\").

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25

crime or offense made punishable by these \"articles is left

to the discretion of the court-martial, the punishment shall

not, in time of peace, exceed such limit or limits as the

President may from time to time prescribe\") . 16. The Presi-

dent\'s authority to limit punishments extended to the

crimes of murder and rape, which were triable by court-

martial-except when they were committed within the

United States in time of peace-and which under Article

92 of the 1916 Articles of War were punishable by \"death

or imprisonment for life, as a court-martial may direct.\"

39 Stat. 664.

In enacting the UCMJ in 1950, Congress repealed the

statutory limitations (as to geography and the existence

of war) on a court-martial\'s jurisdiction to try service-

members for murder, see Art. 118, 10 U.S.C. 918, and it

continued its long-standing practice of granting the Presi-

dent discretion to establish, within statutory limits, appro-

priate sentences and sentencing procedures in courts-

martial, see Arts. 18 and 56, 10 U.S.C. 818 and 856.

The Rules for Courts Martial, in reliance on that author-

it y, limit the permissible punishments in detail for capital

and noncapital offenses alike. 17. See United States ex rel.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

16 Pursuant to the authority conferred by the 1890 Act, as re-

enacted in 1916, President Wilson issued an Executive Order on

December 15, 1916, prescribing in detail the maximum sentences

(including dishonorable discharge, periods of confinement at hard

labor, and forfeiture of pay) for numerous offenses, often calibrated

according to the circumstances of the particular offense. See

Manual for Courts-Martial, U.S. Army 1917 at 161-169 (reprinting

Executive Order). The 1917 Manual also included further stand-

ards for sentencing within the maxima prescribed by the President,

taking into account prior convictions, the presence or absence of

extenuating or aggravating circumstances, and the individual char-

acteristics of the accused. Id. at 159-160 (342, 343).

17 The President has exercised his authority to regulate punish-

ments imposed by courts-martial by specifying the types of punish-

ment that may be imposed, RCM 1003, and by providing a maximum

punishment for each offense within the maxima established by

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26

Toth v. Quarles, 350 U.S. 11, 20 (1955) (\"punishment

can be raised or lowered at the will of the President\").

In so doing, those rules do nothing more than continue

an unbroken practice that predates the Constitution itself,

and that shows that Congress has always understood the

determination of an appropriate court-martial sentence,

within maxima established by statute, properly to rest

within the competence of the President and his subordi-

nate officials who are the most directly responsible for

the maintenance of discipline within the armed forces.

Compare Mistretta v. United States, 488 U.S. 361, 395

(1989).

3\. Petitioner and his amici contend, however, that the

Framers specifically intended that the Constitution would

preclude the President from playing that role in \"peace-

time\" with respect to \"civilian\" capital offenses. Pet. Br.

13-16; Navy Br. 7-12. That attempt to construct a histor-

ical argument to support petitioner\'s proposed rule is

deeply flawed and anachronistic in several respects.

The Fifth Amendment categorically exempts cases

\"arising in the land or naval forces\" from its requirement

of a grand jury indictment in every \"capital or otherwise

infamous crime,\" which persuasively demonstrates that the

Framers contemplated that capital cases of W descrip-

tions-not merely those involving \"military\" offenses-

could be adjudged by the military justice system. The

Fifth Amendment also demonstrates that the Framers well

knew how to make the existence of war or peace relevant\'

to a servicemember\'s constitutional protections, because it

states that a member of the militia may be deprived of

his right to a grand jury indictment only \"when \[the

militia is\] in actual service in time of War or public

danger.\" This Court has repeatedly rejected attempts to

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

Congress. See .Manual Part IV paragraph (e) for each offense &

App. 12 (Maximum Punishment Chart). In addition, in some cases,

the President has defined aggravating circumstances that warrant

increased punishment. See, e.g., RCM 1003 (d).

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27

extend to the regular army and navy that \"wartime\"

limitation. See, e.g., Johnson v. Sayre , 158 U.S. 109,

114-115 (1895); Ex parte Mason, 105 U.S. 696, 700-

701 (1881) 18. Petitioner\'s attempt to impute to the

Framers a special concern with shielding soldiers from

the punishment of death is further belied by the legis-

lative debates on the 1806 Articles of War, and in the end

completely disregards the fact that significant constitu-

tional restrictions on the permissibility of the death pen-

alty even with respect to civilians are a relatively recent

development in our history. See, e.g., McGautha v. Cali-

fornia, 402 U.S. 183,207 (1971 ).

In addition, petitioner\'s emphasis on the \"civilian\" na-

ture of his capital offense is nothing but an attempt to

revive the \"service connection\" requirement that was re-

jected by the Court in Solorio, supra; accord Smith V.

Whitney, 116 U.S. 167, 183-184 ( 1886) (\"Under every

system of military law\" court-martial jurisdiction extends

to punishable acts, \"whether those acts are done in the

performance of military duties, or in a civil position, or in

a social relation, or in private business\"). According to

petitioner, that requirement makes sense in this context

because Congress decided only relatively recently to sub-

ject servicemembers to court-martial for capital \"civilian\"

offenses. Petitioner\'s portrayal of history is at least sub-

ject to significant question, because the regulations that

Congress adopted for the navy in 1800, while appearing

to limit the death penalty to murders committed outside

the United States, also provided that \"\[a\]ll offences com-

mited by persons belonging to the navy while on shore,

shall be punished in the same manner as if they had been

committed at sea.\" Act of Apr. 23, 1800, ch. 33, 1,

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

18 See also Martin v. Mott, 25 U.S. (12 Wheat.) at 37-38 (\"The

act of 1795 is not confined in its operation to cases \* \* \* in times

of public war. \* \* \* It is sufficient for us to Say, that there is no

such limitation in the act itself\") ; 15 Annals of Cong. 326 (1806)

(death penalty provision should remain because \"in peace \[we

have\] found no ill consequence arising therefrom\").

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28

Art. XVII, 2 Stat. 47. As this Court noted in Solorio,

\"\[a\]mong the offenses punishable if committed at sea were

murder, embezzlement, and theft,\" and \"\[t\]his broad grant

of jurisdiction to naval courts-martial would suggest that

limitations on the power of other military tribunals during

this period were the result of legislative choice rather than

want of constitutional power.\" 483 U.S. at 445 n. 11. In

any event, even if Congress did not authorize early courts-

martial to impose capital punishment for a broader range

of offenses, that would be extremely weak evidence of a

lack of power to do so. See O\'Callahan v. Parker, 395

U.S. 258, 280 n.6 (1969) (Harlan, J., dissenting) (\"On

such a theory, for example, Congress could not have per-

missibly waited, as it did, until 1875 to confer federal-

question jurisdiction on the district courts; the present-day

exercise of this jurisdiction would be unconstitutional\")

(citations omitted).

Petitioner\'s argument also overlooks the fact that the

early Congresses were creating a system of justice for a

force that in 1789 numbered only a few hundred soldiers,

and which remained under 3,700 strong when the Bill of

Rights was adopted. See Wiener I, supra, 72 Harv. L.

Rev. at 8-9; O\'Callahan, 395 U.S. at 280 (Harlan, J.,

dissenting). Murders of civilians by members of such a

small force would not have been a major problem, and

could conveniently be dealt with by requiring commanding

officers, on pain of being cashiered, to deliver the offender

to state authorities. See Wiener I, supra, 72 Harv. L. Rev.

at 10-11; see also Caldwell v. Parker, 252 U.S. 376, 381-

383 (1920) (discussing evolution of requirement). With-

out again lapsing into anachronism, petitioner cannot seri-

ously suggest that Congress\'s choice of that solution

reflected any special concern for limiting the soldier\'s

punishment, or preserving to him the benefit of any spe-

cific provision of the Bill of Rights. Not only was the

death penalty routinely inflicted by the civil courts of the

time, but also the Bill of Rights was not made applicable

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29

to the States until after the Fourteenth Amendment was

adopted nearly one hundred years later.

Petitioner can derive no greater support from case law

than from history, because the cases on which he relies

(Br.9-10) do not bear on the President\'s authority to

regulate court-martial proceedings involving members of

the armed forces. In Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579 ( 1952), the question was whether,

as Commander-in-Chief, the President could seize private

property, when Congress had impliedly prohibited that

action in the Taft-Hartley Act. See id. at 602 (Frank-

furter, J., concurring); id. at 634, 639 (Jackson, J., con-

curring); id. at 655, 660 (Burton, J., concurring); id. at

660, 662 (Clark, J., concurring in the judgment). Simi-

larly, Ex parte Milligan, 71 U.S. (4 Wall. ) 2, 121

(1866), involved the authority of the President to direct

the trial of a civilian by a military commission in a juris-

diction where the courts remained open. And Reid v.

Covert, 354 U.S. 1 ( 1957), also involved the authority

of courts-martial to try civilians for criminal offenses. Id.

at 33 (plurality opinion) (noting \"the deeply rooted and

ancient opposition in this country to the extension of

military control over civilians;\' and citing, inter alia,

Milligan, supra). Reid recognized that, with respect to

members of the armed forces, \"Congress has given the

President broad discretion to provide the rules governing

military trials.\" Id. at 38 (plurality opinion) (citing Art.

36, UCMJ, now codified at 10 U.S.C. 836). Thus, \"\[i\]n

each of \[those\] cases \* \* \* \[t\]he constitutional question

presented turned on the status of the persons as to whom

the military asserted its power.\" Schlesinger v. Council-

man, 420 U.S. 738, 759 ( 1975). For that reason, those

cases are inapposite here.

4\. Petitioner is also wrong to contend that the Eighth

Amendment independently requires that a legislature, as

opposed to any other organ of government, prescribe.

aggravating factors in cases where the death penalty is

otherwise authorized by statute. That suggestion, which

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30

would transform the Eighth Amendment into a separation-

of-powers rule applicable to the States, finds no support

in this Court\'s cases. Cf. Dreyer v. Illinois, 187 U.S. 71,

83-84 ( 1902) (due process does not require separation of

state powers).

Petitioner observes (Br. 19-20; see also ACLU Br.

3-4) that this Court\'s cases addressing the adequacy of

state capital sentencing schemes have, on several occa-

sions, referred to \"legislative criteria\" limiting the death

penalty for certain crimes. See Zant v. Stephens, 462 U.S.

862\. 877 n.15 ( 1983) (citing Gregg v. Georgia, 428

U.S. 153, 175, 184 ( 1976) (plurality opinion)). Those

decisions, however, merely reflect this Court\'s ordinary

practice of affording some deference to judgments that

legislatures in fact have made. See, e.g., Gregg, 428 U.S.

at 184; see id. at 175 & n.20. They cannot fairly be read

to stand for the proposition that the Eighth Amendment

requires that legislatures make such judgments. Indeed,

this Court has repeatedly recognized that aggravating

factors may be \"legislative or court-imposed.\" Zant, 462

U.S. at 880; see also Proffitt v. Florida, 428 U.S. 242,

255-256 ( 1976) (plurality opinion) (state courts can

narrow vague statutory factor so as to \"provide\[ \]\[ \]ade-

quate guidance to those charged with the duty of recom-

mending or imposing sentences in capital cases\") . 19. This

Court\'s cases therefore provide a complete answer to peti-

tioner\'s novel attempt to transform the Eighth Amendment

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

19 See, e.g., Arave v. Creech, 113 S. Ct. 1534, 1541 (1993) (noting

that state supreme court had adopted a limiting construction and

\"we believe that construction meets constitutional requirements\") ;

Walton V. Arizona, 497 U.S. 639, 654 (1990) (\"\[T\]he Arizona

Supreme Court has sought to give substance to the operative terms

\[\'especially heinous, cruel or depraved\'\], and we find that its con-

struction meets constitutional requirements\"; Maynard v, Cart-

wright, 486 U.S. .356, 360 (1985) (noting that state court could

have adopted narrowing requirement to validate otherwise vague

aggravating circumstance but failed to do SO) ; Jurek v. Texas, 428

U.S. 262, 272 (1976) \[plurality opinion) (same) ; Godfrey V.

Georgia, 446 U.S. 420, 428-429 (1980) (plurality opinion).

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31

into a rule for the allocation of authority among branches

of the state and federal governments.

5\. Petitioner suggests that a different result should ob-

tain here because vesting in the President the authority to

specify aggravating factors in military capital cases un-

constitutionally unites the power to legislate, prosecute,

and sentence in officials of one Branch. Pet. Br. 48-49;

see also Public Citizen Br. 28-29; Navy Br. 17-19. As we

have explained, however, it is Congress that has legislated,

by making murder a criminal offense, authorizing the

death penalty for it, and entrusting the implementation of

military punishments to the President. In any event, peti-

tioner\'s assertion, by itself, adds nothing to his claim that

Congress may not assign the authority at issue here to the

Executive at all, because, if petitioner is wrong on that

claim, this Court\'s cases make clear that the separation-

of-powers doctrine does not speak \"to the manner in

which authority is parceled out within a single Branch.\"

Touby V. United States, 500 U.S. 160, 167-168 ( 1991)

(rejecting claim that Congress could not assign the power

to outlaw certain drugs to the Attorney General, rather

than the Secretary of Health and Human Services, \"be-

cause \[the Attorney General\] wields the power to prose-

cute crimes\" ).

Moreover, precisely because the military justice system

is at issue, those arguments have little force here. As this

Court has frequently noted, \"\[t\]he military is a specialized

society separate from civilian society with laws and tradi-

tions of its own \[developed\] during its long history\[,\]

\* \* \* \[and whose\] primary business \* \* \* \[is\] to fight or

be ready to tight wars should the occasion arise.\" Coun-

cilman, 420 U.S. at 757 (internal quotation marks ,

omitted); see Goldman v. Weinberger, 475 U.S. 503, 506-

507 ( 1986); Parker V. Levy, 417 U.S. 733, 743 ( 1974);

Quarles, 350 U.S. at 17; Orloff V. Willoughby, 345 U.S.

83, 94 ( 1953); accord In re Grimley, 137 U.S. 147, 151

( 1890). Because of the military\'s unique role in our

society, its system of justice has always to some extent

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32

reflected the sharing of functions that petitioner decries.

See, e.g., Runkle v. United States, 122 U.S. 543, 557

(1887 ) (President\'s approval of court-martial sentence \"is

judicial in its character\"); see generally Clinton Rossiter,

The Supreme Court and the Commander in Chief 102-

103 (1976) (\"The President is the fountainhead of mili-

tary justice\"). That is a reflection of the fact that military

justice and punishment are aspects of military discipline,

which always has been understood to flow from the Presi-

dent\'s role as Commander-in-Chief. See Swaim V. United

States, 28 Ct. C1. at 221-222. To read into the Constitu-

tion at this late date a requirement that those powers be

fully distributed among different branches of government,

\"\[o\]ne must ignore history, tradition, and practice for

\[more than\] two centuries.\" Middendorf V. Henry, 425

U.S. 25, 50 ( 1976) (Powell, J., concurring); see also

Weiss v. United States, 114 S. Ct. 752, 761-762 (1994).

More fundamentally, courts-martial are Article I courts,

see Weiss, 114 S. Ct. at 760 (holding that the Constitu-

tion does not require that military judges have a fixed

term of office); Parisi V. Davidson, 405 U.S. 34, 41 &

n.7 ( 1972); Dynes v. Hoover, 61 U.S. (20 How. ) 65,

79 (1858), and for that reason they not only are sub-

ordinate to the President\'s role as Commander-in-Chief

but are also subject to controls prescribed by Congress.

In the UCMJ, Congress tempered the historical practice

of leaving the infliction of punishment to the Executive

by providing significant safeguards for servicemembers.

Sentencing decisions in specific cases are not made by the

President, but are left to servicemembers who are pro-

tected against improper influence or retaliation. 20 See

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

20 Moreover, while the President ultimately is responsible for

promulgating and amending provisions of the Manual, the process

by which such amendments are issued is subject to significant

internal constraint. Cf. Mistretta, 488 U.S. at 303-304. The Secre-

tary of Defense must review the manual annually and recommend

appropriate amendments. See Exec. Order No. 12,473 (Apr. 13,

1984), 49 Fed. Reg. 17,152 (1984), as amended by Exec. Order No.

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33

Weiss, 114 S. Ct. at 762 (detailing statutory safeguards

against improper influence). The President functions only

as an additional safeguard, because no sentence of death

imposed by a court-martial may be executed unless he

subsequently approves it. See Art. 71, UCMJ, 10 U.S.C.

871\. In addition, Article 51 provides that panel members

must vote by secret written ballot, and Mi1itary Rule of

Evidence 606 (b) permits court-martial members to be

questioned on \"whether there was unlawful command in-

fluence,\" and that information may be used to impeach

the verdict. See Pet. App. 17a-18a. Finally, as this Court

noted in Weiss, \"\[t\]he entire system \* \* \* is overseen by

the Court of Military Appeals, which is composed of

civilian judges \* \* \*. That Court has demonstrated its

vigilance in checking any attempts to exert improper in-

fluence.\" 114 S. Ct. at 762. Thus, although the authority

to promulgate aggravating factors is vested in the Presi-

dent, his \"powers are not united with the powers of the

\[sentencer\] in a way that has meaning for separation-

of-powers analysis.\" See Mistretta, 488 U.S. at 393.

In sum, contrary to petitioner\'s contention, no prin-

ciple of constitutional law heretofore recognized by this

Court requires that Congress itself enact aggravating

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

12,484 (July 13, 1984), 49 Fed, Reg. 28,825 (1984). In turn, the

Secretary has established the Joint Service Committee on Military

Justice, consisting of one representative from the Offices of the

Judge Advocates-General of each of the armed forces and the Chief

Counsel of the Coast Guard. See DOD Directive No. 5500.17 (Jan.

23, 1985). That Committee reviews the Manual each year to ensure

that it reflects current military practice and judicial precedent.

DOD Directive No. 5500.17, para. (d). Unless expressly exempted

by the Secretary, changes proposed by the Committee must be

published in the Federal Register for notice and comment and at

least 75 days allowed for such comment. See 47 Fed. Reg. 3401

\(1982\) ; DOD Directive No. 5500.17, para. (e) (3). Following the

notice and comment period, the DOD General Counsel must submit

the Joint Service Committee\'s report to both the Office of Manage-

ment and Budget and the Department of Justice for review and

approval before it can be transmitted to the President for final

action. See Exec. Order No. 11,030, 27 Fed. Reg. 5847 (1962).

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34

factors to narrow the class of defendants who may be sen-

tenced to the death penalty that Congress expressly au-

thorized in Article 118 of the UCMJ. From the earliest

days of the Republic, Congress not only has authorized

courts-martial to impose capital punishment, but has left

to their or the President\'s discretion the circumstances

when that punishment should be imposed.

B. The UCMJ Authorizes Adoption Of RCM 1004 And

Provides Constitutionally Adequate Standards For

Doing So

Petitioner contends (Br. 16-27; see also ACLU Br. 6-

10; Public Citizen Br. 9-21) that even if the Constitution

does not always require that Congress prescribe aggra-

vating factors in capital cases, Congress has not in fact

authorized the President to do so or, if it has, Congress

failed to prescribe constitutionally adequate standards to

guide or limit the exercise of the President\'s judgment.

There is no merit to those claims.

1\. At the outset, petitioner is wrong to maintain (Br.

21; see ACLU Br. 7; Public Citizen Br. 10, 12; Navy

Br. 14) that Articles 18, 36, and 56 of the UCMJ cannot

be read to delegate to the President any authority to es-

tablish aggravating factors in capital cases, because their

enactment substantially predated Furman. The question

is not whether Congress foresaw this particular applica-

iton of those UCMJ articles, but whether RCM 1004

comes within their plain language and general purpose-

i.e., to give the President flexibility to limit which punish-

ments may be imposed by courts-martial and authority to

ensure that the military justice system, as enacted by

Congress, works. It is not the law that a statute can have

no effect that was not specifically contemplated by the

Congress that enacted it. See Smith v. United States, 113

S. Ct. 2050, 2059 (1993) (Congress may have \"had in

mind a more obvious\" application of the statute \"but the

language \* \* \* is not so limited; nor can we imagine any

reason why Congress would not have wished its language

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35

to cover this situation\") (internal brackets omitted);

Sedima, S.P.R.L. V. Imrex Co., 473 U.S. 479, 500

(1985); see also Moskal v. United States, 498 U.S. 103,

111 ( 1990) (\"This Court has never required that every

permissible application of a statute be expressly referred

to in its legislative history\").

Articles 18 and 56 of the UCMJ could not be plainer

in scope, and together they grant the President authority

to limit punishments otherwise authorized by the UCMJ.

Article 18 states that courts-martial may \"adjudge any

punishment not forbidden by \[the UCMJ\]\'\'-specifically

\"including the penalty of death when specifically author-

ized by \[the UCMJ\]\'\'-\"under such limitations as the

President may prescribe.\" 10 U.S.C. 818. Article 56

similarly provides that punishment may not \"exceed such

limits as the President may prescribe for that offense.\"

10 U.S.C. 856. article 118 expressly authorizes a court-

martial to sentence the defendant to death or life im-

prisonment in cases of premeditated murder or felony

murder. It is therefore plainly within the scope of Articles

18 and 56 for the President to \"limit\" the availability of

the death penalty under Article 118 only to those cases,

like petitioner\'s, that involve some form of aggravated

conduct. 21.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

21 It is difficult to understand petitioner\'s conclusory assertion

that Articles 18 and 56 \"are irrelevant to this case,\" because,

\" \[l\]ogically, no \`limit\' may be set on a penalty of death.\" Br.
18.

If petitioner means to suggest that such authority may be exercised

only on a case-by-case basis, and that the death penalty cannot be

limited in any one case, his argument overlooks the origins of the

President\'s authority to \"limit\" punishments. Articles 18 and 66

were meant to standardize punishments across the country, see

H.R. Rep. No. 1051, supra, at 1, and the President has long exer-

cised that authority with respect to classes of cases. See, e.g.,

Carter V. McClaughry, 138 U.S. 365, 382 (1902) (discussing 1891

use of authority to limit jail terms for enlisted men, but not for

commissioned officers). Indeed, the logical implication of petition-

er\'s argument is that the authority to \"limit\" has no application

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36

An additional basis for such authority is Article 36(a)

of the UCMJ, which provides that the President may

prescribe \"\[pretrial, trial, and post-trial procedures\" in

all \"cases arising under \[the UCMJ\] triable in courts-

martial.\" 10 U.S.C. 836(a). Petitioner and his amici

maintain (Pet. Br. 18-21; ACLU Br. 8-10; Public Citizen

Br. 13-15) that Article 36 cannot support RCM 1004,

because aggravating factors in capital cases are not mat-

ters of \"procedure\" but are more properly classified as

\"substantive.\" ACLU Br. 9. 22. Apart from the difficulty

of reconciling that position with Dobbert V. Florida,

supra, 23. Congress has clearly expressed its intention that

the phrase \"\[pretrial, trial, and post-trial procedures\"\' in

Article 36(a) be broadly construed. Indeed, Congress

amended Article 36 in 1979 to disapprove statements of

the Court of Military Appeals to the effect that Article

36, as it then read, narrowly confined the President\'s au-

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

whatever with respect to capital cases, a position that renders

superfluous Article 18\'s express inclusion of capital cases within its

scope,

22 The ACLU argues (ACLU Br. 8, 10-11) that aggravating

factors in capital cases are not only matters of substance, they

\"define\" or are \"elements of \[the\] crime\" and must therefore be

articulated by the legislature. That is wrong. \"Aggravating cir-

cumstances are not separate penalties or offenses, but are \`standards

to guide the making of \[the\] choice\' between the alternative

verdicts of death and life imprisonment.\" Walton, 497 U.S. at 648

(quoting Poland v. Arizona, 476 U.S. 147, 156 (1986)) ; see also

Lewis, 497 U.S. at 782 (same).

23 Dobbert held that, for purposes of the Ex Post Facto Clause

of the Constitution, U.S. Const. Art. I 9, Cl. 3, a capital sentenc-

ing mechanism was \"clearly procedural\" when it \"simply altered

the methods employed in determining whether the death penalty

was to be imposed\" and effected \"no change in the quantum of

punishment attached to the crime.\" 432 U.S. at 293-294; accord

Jordan V. Watkins, 681 F.2d 1067, 1079 (5th Cir, 1982) ; Irving v.

State, 441 So. 2d 846, 852-853 (Miss. 1983). cert. denied. 470 U.S.

1059 (1985); State v. Coleman, 605 P.2d 1000, 1012-1015 (Mont.

1979), cert. Denied, 446 U.S. 970 (1980).

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37

thority to matters relating to the actual conduct of the

trial. 24. See S. Rep. No. 197, 96th Cong., 1st Sess. 124-

125 ( 1979). The Committee Report explained that

\[it\] believe\[d\] that \[the Court of Military Appeals\'\]

interpretation flies in the face of history; if adopted,

it would severely threaten the integrity of the mili-

tary justice system and undermine the authority of the

President as Commander-in-Chief. The committee\'s

amendment clarifies what it believes Congress has

always intended by enacting Article 36 and its prede-

cessors. While Congress retains the power to amend

the UCMJ to alter the military justice system, it

entrusts to the President the promulgation of regula-

tions designed to implement the Code and operate

the system.

Id. at 123; see also Reid, 354 U.S. at 38 (plurality opin-

ion ). The Commander-in-Chief\'s promulgation of ag-

gravating factors, in order to ensure that capital offenses

under the UCMJ remained constitutionally viable in the

aftermath of Matthews, is, without doubt, the type of rule

\"designed to implement the Code and operate the system\"

(S. Rep. No. 197, supra, at 123) that Congress had in

mind when it enacted and amended Article 36.

Since that amendment, Congress has made even clearer

its view that Article 36 gives the President authority to

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

24 Prior to the 1979 amendment, Article 36 authorized the Presi-

dent to prescribe \"\[t\]he procedure, including modes of proof, in

cases before courts-martial, courts of inquiry, military commis-

sions, and other military tribunals.\" See Act of May 5, 1950,

ch. 169, 1, Art. 36, 64 Stat. 120. Significantly, the amendment

was expressly intended to repudiate a decision on which petitioner

relies to support his claim that Article 36 applies only to purely

procedural matters. See Br. 18, citing United States V. Ware, 1

M.J. 282, 285 & n.10 (C.M.A. 1976) (stating, in dicta, that the

phrase \"cases before courts-martial\" restricted the President\'s

rule-making authority to those aspects of the case concerning the

actual trial and excluded, by implication, pretrial and post-trial

procedures).

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38

promulgate factors that narrow the class of military ac-

cused eligible for the death penalty. In 1985, Congress

enacted Article 106a of the UCMJ, 10 U.S.C. 906a,

which makes it a capital offense for a servicemember to

engage in espionage. See Department of Defense Author-

ization Act, 1986, Pub. L. No. 99-145, 534, 99 Stat.

634\. The new article enumerates three specific aggravat-

ing factors and further states that such aggravating factors

may also include \"\[a\]ny other factor that may be pre-

scribed by the President by regulations under section 836

of this title (Article 36).\" 10 U.S.C. 906a(c) (4). \"\[T\]he

fact that Congress in \[1985\] authorized the \[President\] to

\[promulgate aggravating factors under Article 36\] strongly

suggests that Congress understood\" the UCMJ to

such authority. Babbitt v. Sweet Home Chapter of Com-

munities for a Great Oregon, 115 S. Ct. 2407, 2414

(1995); see NLRB v. Bell Aerospace Co., 416 U.S. 267,

275 ( 19\'74) (\"recognizing\] that subsequent legislation

declaring the intent of an earlier statute is entitled to

significant weight\" ). The Conference Report on the leg-

islation that became Article 106a makes the point even

more clearly. It states:

Nothing in the new Article 106a is meant to pre-

clude a prosecution under any other article of the

UCMJ \* \* \*.

\* \* \* \* \*

The conferees did, however, adopt a statutory

formulation of capital sentencing standards for es-

pionage cases and intend that those standards be

implemented in a manner consistent with the provi-

sions of Rule for Courts-Martial 1004 of the Manual

for Courts-Martial, 1984. The conferees do not in-

tend that the enactment of statutory capital sen-

tenting standards for the new Article 106a be con-

strued as affecting the validity of the regulatory cap-

ital sentencing standards that already exist for the

other capital punitive articles.

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39

H.R. Conf. Rep. No. 235, 99th Cong., 1st Sess. 425

(1985 ). 25. The conferees\' endorsement of the use of RCM

1004\'s procedures in espionage cases, and their statement

that nothing in Article 106a would preclude prosecution

under other provisions of the UCMJ or affect the \"valid-

ity\" of RCM 1004, can only be read as expressing agree-

ment that RCM 1004 is a lawful exercise of Presidential

authority. 26.

There is no merit to petitioner\'s argument (Br. 11,

21-22, 26-27 ) that Articles 18, 36, and 56 should be

construed \"narrowly\" to preclude the President from

adopting RCM 1004, based on the rule of lenity and in

order to avoid doubts as to the constitutionality of those

articles. It is anomalous to invoke the rule of lenity to

support a challenge to the President\'s decision to restrict

the class of defendants who are eligible for the death

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

25 To minimize the significance of the 1985 legislation, petitioner

cites (Br. 24-25) Consumer Product Safety Comm\'n v. GTE Syl

vania, Inc., 447 U.S. 102, 118 n.13 (1980), for the proposition that

\"subsequent legislative history provide\[s\] an extremely hazardous

basis for inferring the meaning of a congressional enactment.\"

But as the GTE case also recognized (ibid., quoting Red Lion

Broadcasting Co. V. FCC, 395 U.S. 367, 380-381 (1969) (emphasis

added) ), \"\[s\]ubsequent legislation declaring the intent of an
earlier

statute is entitled to great weight in statutory construction.\" In

this case, both the \"subsequent legislation\" (Article 106a) and its

legislative history express the view that the UCMJ already granted

to the President authority to promulgate aggravating factors in

capital cases.

26 Amicus Public Citizen argues (Br. 18-19) that Article 106a

evidences Congress\'s belief that the President lacks authority to

promulgate aggravating factors in capital cases, because Article

106a delegates that authority to the President only in espionage

cases. The problem with that claim is that Article 106a did not

\"delegate\" that authority to the President; that authority already

existed by virtue of Article 36, a provision that is not limited to

espionage cases. The point of Article 106a(c) (4) is to ensure that

the enumeration of specific factors not be interpreted to oust the

President\'s pre-existing authority under Article 36 to promulgate

additional factors.

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40

penalty under Article 118, since by conforming sentencing

hearings to the dictates of Furman, RCM 1004 \"pro-

vid\[es\] capital defendants with more, rather than less,

judicial protection.\" Dobbert, 432 U.S. at 294-295.

It is no less odd to assert that, to avoid constitutional

questions, Articles 18, 36, and 56 must be read to prohibit

promulgation of RCM 1004, since that argument is

advanced in aid of petitioner\'s claim that a different pro-

vision of the UCMJ-Article 118-is unconstitutional

insofar as it authorizes the death penalty for his crimes.

Petitioner\'s invocation of that canon of construction also

ignores the fact that the President expressly invoked his

constitutional authority under Article II when he promul-

gated RCM 1004. See Exec. Order No. 12,460, 49 Fed.

Reg. 3169 (1984). A conclusion that Articles 18, 36,

and 56 do not themselves authorize the President\'s action

therefore not only would be inconsistent with the broad

language and the purpose of those provisions, but also

would require this Court to decide whether the President

has the constitutional power to do so under Article II,

even in the absence of affirmative statutory authorization.

See Parker, 417 U.S. at 744-745 (quoting Martin, 25

U.S. (12 Wheat. ) at 35-36); see also Reid, 354 U.S. at

38 & n.70 (plurality opinion).

If petitioner means to argue that the UCMJ should be

read to prohibit the President from restricting the class

of military defendants who may be sentenced to death

under Article 118, that argument would raise serious con-

stitutional questions in its own right, for we doubt that

Congress could so bluntly impair the President\'s authority

as Commander-in-Chief. As it happens, however, nothing

in the text or legislative history of the UCMJ remotely

suggests that Congress has prohibited the President from

adopting RCM 1004. To the contrary, the 1985 amend-

ments and the \"general tenor of Congress\' legislation in

this area\" demonstrate that Congress has accepted and

indeed approved of such action by the President. See

Dames & Moore V. Regan, 453 U.S. 654, 678-688

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41

(1981); id. at 668-669; Haig V. Agee, 453 U.S. 280,291-

292, 300-301 (1981).

In any event, both lenity and the avoidance of inter-

pretations that would raise serious constitutional problems

are canons that apply at the end of the process of con-

struction, and then only in the face of a statutory \"am-

biguity.\" Concrete Pipe & Prods. of California, Inc. V.

Construction Laborers Pension Trust, 113 S. Ct. 2264,

2283 ( 1993); Reno V. Koray, 115 S. Ct. 2021, 2029

(1995 ). Moreover, a statute is not ambiguous \"merely

because it \[is\] possible to articulate a construction more

narrow than that urged by the Government.\" Moskal,

498 U.S. at 108. Here, with the exception of his strained

attempt to read narrowly the word \"procedures\" in Article

36(a)j petitioner has not even attempted to offer a co-

herent interpretation of Articles 18, 36, and 56 that is

faithful to the language of those articles, to Congress\'s

long-standing practice of confiding to the Executive judg-

menace as to punishment (including death) within statutory

limits, to Congress\'s 1985 decision to build on the

President\'s ability to exercise the power that petitioner

disputes, and to the need to avoid the significant constitu-

tional questions raised by petitioner\'s own position. For

those reasons, petitioner can derive no help from the

canons of construction he invokes.

2\. Petitioner and his amici are also wrong to argue

(Pet. Br. 27-37; ACLU Br. 13-16; Public Citizen Br. 21-

25; Navy Br. 12-15) that Articles 18, 36, and 56 fail to

provide the President constitutionally adequate guidance

for the exercise of the authority they confer. To begin

with, the President\'s independent constitutional authority

as Commander-in-Chief of the armed forces would make

appropriate even what petitioner characterizes (Br. 31)

as a standardless authorization to regulate military sen-

tences. Compare Curtiss-Wright Export Corp., 299 U.S.

at 321-322. The President\'s functions under the UCMJ,

\"like the Court\'s function in promulgating procedural

rules, are clearly attendant to a central element of the

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42

historically acknowledged mission of the \[Executive\]

Branch.\" Mistretta, 488 U.S. at 391. Where, as in this

case, the President has fulfilled his constitutional functions

by issuing rules to ensure that courts-martial impose sen-

tences in capital cases in a manner that assures their

constitutionality while protecting the needs of military

discipline, Congress has no greater duty to specify factors

he must consider than it must specify in granting power

to the federal judiciary, as an adjunct of its adjudicatory

powers under Article III, to make rules for the purpose

of ensuring that cases will be adjudicated properly. See,

e.g., id. at 387-388; Hanna v. Plumer, 380 U.S. 460,

471-472 ( 1965); Sibbach v. Wilson & Co., 312 U.S. 1,

9-10 ( 1941); Wayman v. Southard, 23 U.S. (10 Wheat. )

1, 43 ( 1825); Bank of the United States v. Halstead, 23

U.S. (10 Wheat.) 51, 61-62 (1825). 27.

Thus, it is \"not necessary that Congress supply \[the

President\] with a specific formula for \[his\] guidance,\"

Lichter v. United States, 334 U.S. 742, 785 ( 1948),

when, as here, it is appropriate that the President retain

flexibility to adapt the broad outlines of congressional

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

27 Moreover, in exercising that power to preclude the imposition

of the death penalty except in cases of aggravated murder, and

to require a sentence of life imprisonment in the remaining cases,

the President made a decision that is similar in kind to those he

is called upon to make when he commutes a sentence under his

constitutional power \"to grant Reprieves and Pardons.\" Art. II,

2, Cl. 1. See Schick V. Reed, 419 U.S. 256 (1974); Ex parte Wells,

59 U.S. (18 How.) 307 (1856) ; see also Biddle V. Perovich, 274

U.S. 480, 487 (1927) (Holmes, J.) (President may order life im-

prisonment in lieu of death sentence since \"\[b\]y common under-

standing imprisonment for life is a less \[er\] penalty than death\").

The President is, for that additional reason, uniquely qualified to

exercise the sentence-limiting authority granted by Articles 18 and

56 with respect to the death penalty, and, by the same token, it is

especially unlikely that Congress would have intended to withhold

the power to do so in that setting. In fact, Article 71 of the UCMJ

requires that every sentence of death shall be personality approved

by the President before it is executed, which ensures an opportunity

for commutation. See 10 U.S.C. 871.

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43

policy to changing circumstances in the specialized field

of military discipline, over which the Constitution gives

Congress and the President shared authority. See ibid.;

id. at 778-779 (Congress\'s power to confer \"authority

\* \* \* sufficient to effect its purposes \* \* \* is especially

significant in connection with constitutional war powers

under which the exercise of broad discretion \* \* \* may

be essential\"); Knauff, 338 U.S. at 543. Nonetheless,

history and the background of similar provisions of mili-

tary law indicate that the nature and scope of the Presi-

dent\'s discretion were well understood by the political

Branches. In light of the long-standing Presidential au-

thority to limit punishments, Congress doubtless expected

(see Grimaud, 220 U.S. at 518; United States v. Bailey,

34 U.S. (9 Pet. ) 238, 255-256 (1835)) that the author-

ity conferred by Articles 18 and 56 would be exercised

by him by reference to the factors that have traditionally

informed his judgment-i.e., the needs of military dis-

cipline, evenhanded application of court-martial punish-

ments throughout the country, see H.R. Rep. No. 1051,

supra, at 1, and his own judgment regarding the sorts of

factors that would make a statutory sentence unduly harsh

as applied to specific circumstances. See American Power

& Light Co. v. SEC, 329 U.S. 90, 105 (1946) (delega-

tion is constitutionally sufficient \"if Congress clearly

delineates the general policy \* \* \* and the boundaries of

th\[e\] delegated authority\"); see also Yakus v. United

States, 321 U.S. 414, 420, 426-427 (1944) (upholding

delegated authority to fix commodity prices that in judg-

ment of Price Administrator \"will be generally fair and

equitable and will effectuate the purposes of\" price control

legislation); National Broadcasting Co. v. United States,

319 U.S. 190, 225-226 ( 1943) (upholding delegation to

FCC to promulgate regulations in accordance with its

view of the public interest).

In addition, Article 18 contemplates that the President

may \"prescribe \* \* \* any punishment not forbidden\" by

the UCMJ. Article 55 of the UCMJ expressly forbids the

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44

imposition of \"cruel or unusual\" punishments, 10 U.S.C.

855, and the legislative history of the UCMJ shows that

Congress had Article 55 specifically in mind when it

referred in Article 18 to punishments \"forbidden\" by the

UCMJ. See S. Rep. No. 486, 81st Cong., 1st Sess. 13

( 1949); H.R. Rep. No. 491, 81st Cong., 1st Sess. 16

( 1949). Accordingly, the President surely must be under-

stood to have the authority under Article 18 to subject

sentences to \"limitations\" necessary to comply with Article

55\'s prohibition against \"cruel or unusual\" punishments-

a statutory term that he could appropriately interpret

by considering, as he did, this Court\'s decisions construing

the parallel language of the Eighth Amendment.

The same result is compelled by the language of Article

36(a), which gives the President still further guidance.

Article 36(a) states that the court-martial rules promul-

gated by the President \"shall, so far as he considers prac-

ticable, apply the principles of law and the rules of evi-

dence generally recognized in the trial of criminal cases

in the United States district courts.\" 10 U.S.C. 836(a).

Petitioner nonetheless argues (Br. 31-32, 34; see Pub-

lic Citizen Br. 23) that Congress established no \"prin-

ciples of law\" on which the President could rely, because

when RCM 1004 was first promulgated only the federal

air piracy statute contained a list of aggravating factors. 28.

By the time RCM 1004 was adopted, however, this Court

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

28 See Antihijacking Act of 1974, Pub. L. No. 93-366, Tit. I,

105, 88 Stat. 412-113, codified at 49 U.S.C. 1473 (c) (7) (1976).

Contrary to petitioner\'s argument (Br. 34) that the aggravating

factors in that statute bear \"almost no similarity\" to those later

adopted by the President, RCM 1004(c) (4) -which addresses the

creation of substantial danger to the lives of persons other than

the victim-is virtually identical to Section 1473 (c) (7) (B) (iii)

of the air piracy statute. Similarly, although petitioner maintains

(Br. 34) that the aggravating factors contained in Article 106a

could not have been relied upon by the President, the Rule was

amended in 1986 to reflect those factors. See Manual App. 21-73,

citing Art. 106a.

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45

had developed a substantial body of case law addressing

the adequacy of state capital sentencing schemes. Because

those cases set forth Eighth Amendment principles appli-

cable to any capital sentencing scheme enacted by Con-

gress, those cases plainly reflect \"principles of law\" that

must be \"recognized\" in \"the trial of criminal cases in

the United States district courts.\" See, e.g., United

States V. Flores, 63 F.3d 1342, 1369-1373 (5th Cir.

1995 ). This Court\'s cases therefore afforded a firm basis

upon which the President could rely in formulating con-

stitutionally sufficient aggravating factors. 29.

This Court\'s decisions are not the only source on which

the President could rely in ascertaining appropriate stand-

ards pursuant to Article 36. In defining both military and

civilian capital offenses, Congress had identified, even be-

fore Furman, factors that it considered sufficiently egre-

gious to merit the death penalty. See Stanford v. Ken-

tucky, 492 U.S. 361, 372 n.4 ( 1989) (collecting laws).

The President relied heavily on those congressional judg-

ments. See Manual App. 21-69 to 21-74. For example,

aggravating factors (c) (2) and (c) (3), which involve

the creation of \"substantial damage to the national se-

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

29 Gregg V. Georgia, 428 U.S. 153, 193 n.44 (1976) (lead opinion),

approved the sentencing standards found in the Model Penal Code,

and also upheld the Georgia capital sentencing scheme, which

generally follows the Model Penal Code, id. at 164-166 & n.9, 196-

198 (lead opinion) ; McCleskey v. Kemp, 481 U.S. 279, 302 & n.24

\(1987\) ; see also Profitt V. Florida, 428 U.S. 242, 248 n.6 (1976)

(lead opinion). The aggravating factors in Rule 1004 have, close

analogues in the Model Penal Code and the Georgia and Florida

statutes. The drafters of RCM 1004 also relied on other aspects of

this Court\'s Eighth Amendment case law. For example, aggravat-

ing factor\'s (c) (8), which limits the circumstances under which the

death penalty can be imposed for murder under the felony-murder

doctrine, and (c) (9), which specifies the circumstances tinder which

the death penalty can be imposed for the offense of rape, were

formulated to conform military capital sentencing practice to this

Court\'s decisions in Tison V. Arizona, 481 U.S. 137 (1987), and

Coker v. Georgia, 433 U.S. 584 (1977). See Manual App. 21-73.

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46

curity of the United States,\" are based on the fact that, in

both the civilian and military contexts, Congress has spe-

cifically recognized that such damage may warrant im-

position of the death penalty. See Manual App. 21-72.

Likewise, in enacting 18 U.S.C. 1111 and Article 118 (4)

of the UCMJ, 10 U.S.C. 918(4), Congress expressly au-

thorized the death penalty for homicides committed during

the perpetration of certain violent felonies, including rob-

bery. Aggravating factor (c) (7) (B), which focuses upon

the commission of a murder during the commission or

attempted commission of such felonies, and aggravating

factor (c) (7) (C), which involves the. commission of a

murder \"for the purpose of receiving money or a thing

of value,\" both reflect that congressional determination. 30.

Thus, as the Curtis court concluded (J.A. 122), in formu-

lating aggravating factors, \"the President was not set

adrift in an uncharted sea \* \* \* \[but\] was guided by the

Uniform Code and other federal legislation.\" Indeed,

when Congress enacted a new Federal Death Penalty Act

in 1994, Pub. L. No. 103-322, Tit. VI, 60002, 108 Stat.

1959 (codified at 18 U.S.C. 3591-3598), many of the

aggravating factors it adopted for capital homicide of-

fenses were virtually identical to those earlier identified

by the President in subsection (c) (7) of RCM 1004. See,

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

30 Similarly, aggravating factors (c) (7) (F) and (c) (7) (G),

which focus upon the victim\'s status as a senior government official,

military superior, law enforcement officer, or public servant, are

based upon the congressional determination that such officials merit

special protection and that their murder warrants the death penalty,

See Manual App. 21-73, citing 18 U.S.C. 351, 1114, 1751. The

President recently amended aggravating factor (c) (7) (E) by the

addition of the fact that the murder was drug related. The amend-

ment was based upon the enactment of \"\[c\]urrent federal statutes

\[which\] provide for a maximum punishment including the death

penalty for certain drug-related killings.\" Manual App. 21-73,

citing 21 U.S.C. 848 (e).

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47

e.g., 18 U.S.C 3592(c) (l), (3)-(8), (12) and (14). 31.

With the actions of the President and Congress so closely

aligned, petitioner has given this Court no sound reason

to overturn the President\'s judgment in promulgating

RCM 1004.

CONCLUSION

The judgment of the United States Court of Appeals

for the Armed Forces should be affirmed.

Respectfully submitted.

Drew S. DAYS, III

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor General

MIGUEL A. ESTRADA

Assistant to the Solicitor

General

JOHN F. DE PUE

Attorney

JOHN M. SMITH

Colonel, USA

Government Appellate

Division

DECEMBER 1995

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

31 Significantly, Congress also provided a catch-all provision

authorizing the jury to rely on \"any other aggravating factor\" of

which the defendant has received notice from the prosecutor, irre-

spective of whether the factor is listed in the statute. See 18 U.S.C.

3592 (c). That provision further undermines petitioner\'s contention

that the designation of specific aggravating factors is, and that

Congress would expect it to be, peculiarly a legislative choice.

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APPENDIX

Article I of the Constitution provides in relevant part:

Section 8. \[1\] The Congress shall have Power

\* \* \*

\* \* \* \* \*

\[11\] To declare War, grant, Letters of Marque

and Reprisal, and make Rules concerning Cap-

tures on Land and Water;

\[12\] To raise and support Armies, but no

Appropriation of Money to that Use shall be for

a longer Term than two Years;

\[13\] To provide and maintain a Navy;

\[14\] To make Rules for the Government and

Regulation of the land and naval Forces;

\[15\] To provide for calling forth the Militia

to execute the Laws of the Union, suppress In-

surrections and repel Invasions;

\[16\] To provide for organizing, arming, and

disciplining, the Militia, and for governing such

Part of them as may be employed in the Ser-

vice of the United States, reserving to the States

respectively, the Appointment of the Officers,

and the Authority of training the Militia accord-

ing to the discipline prescribed by Congress;

\* \* \* \* \*

\[18\] To make all Laws which shall be neces-

sary and proper for carrying into Execution the

foregoing Powers, and all other Powers vested

by this Constitution in the Government of the

United States, or in any Department or Officer

thereof.

(la)

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2a

Article II of the. Constitution provides in relevant part:

Section 1. \[1\] The executive Power shall be vested

in a President of the United States of America. \* \* \*

\* \* \* \* \*

\[8\] Before he enter on the Execution of his

Office, he shall take the following Oath or Af-

firmation: \"I do solemnly swear (or affirm) that

I will faithfully execute the Office of President

of the United States, and will to the best of

my Ability, preserve, protect and defend the

Constitution of the United States.\"

Section 2. \[1\] The President shall be Commander

in Chief of the Army and Navy of the United States,

and of the militia of the several States, when called

into the actual Service of the United States; he may

require the Opinion, in writing, of the principal Offi-

cer in each of the executive Departments, upon any

Subject relating to the Duties of their respective

Offices, and he shall have Power to grant Reprieves

and Pardons- for offences against the United States,

except in Cases of Impeachment.

\* \* \* \* \*

Section 3. He shall from time to time give to the

Congress Information of the State of the Union, and

recommend to their Consideration such Measures

as he shall judge necessary and expedient; he may,

on extraordinary Occasions, convene both Houses, or

either of them, and in Case of Disagreement between

them, with Respect to the Time of Adjournment, he

may adjourn them to such Time as he shall think

proper; he shall receive Ambassadors and other pub-

lic Ministers; he shall take Care that the Laws be

faithfully executed, and shall Commission all the

Officers of the United States.

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3a

Article 55 of the Uniform Code of Military Justice,

10 U.S.C. 855, provides:

Art. 55. Cruel and unusual punishments prohibited

Punishment by flogging, or by branding, marking,

or tattooing on the body, or any other cruel or un-

usual punishment, may not be adjudged by any court-

martial or inflicted upon any person subject to this

chapter. The use of irons, single or double, except

for the purpose of safe custody, is prohibited.

U.S. Government Printing Office: 1995 405017 40024

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No. 94-1966

In the Supreme Court of the United States

October Term, 1995

DWIGHT J. LOVING, PETITIONER

v\.

UNITED STATES OF AMERICA

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. DAYS, III

Solicitor General

Department of Justice

Washington, D.C. 20530

JOHN M. SMITH

Colonel, USA

JAMES L. POHL

Lieutenant Colonel, USA

MICHAEL E. MULLIGAN

KENNETH G. WILSON

Captains, USA

Appellate Government Counsel

Government Appellate division

Falls Church, VA 22041-5103

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QUESTIONS PRESENTED

1\. Whether the President had the authority to

promulgate Rule for Courts-Martial 1004.

2\. Whether a defendant maybe sentenced to death

by a court-martial panel of fewer than twelve persons.

\(I\)

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TABLE OF CONTENTS

Page

Opinions below . . . . 1

Jurisdiction . . . . 1

Statement . . . . 2

Argument . . . . 9

Conclusion . . . . 24

TABLE OF AUTHORITIES

Cases:

A.L.A. Schechter Poultry Corp. v. United States, 295

U.S. 495 (1935) . . . . 13

Babbitt v. Sweet Home Chapter of Communities for a

Great Oregon, 115 S. Ct. 2407 (1995) . . . . 12

Ballew v. Georgia, 435 U.S. 223 (1978) . . . . 21

Bowsher v. Synar, 478 U.S. 714 (1986) . . . . 17

Branford v. United States, 356 F.2d 876 (7th Cir. 1966) . . . . 21

Burns v. Wilson, 346 U.S. 137 (1953) . . . . 22

California v. Brown, 479 U.S. 538 (1987) . . . . 10

Clemens v. Mississippi, 494 U.S. 738 (1990) . . . . 9

Dames & Moore v. Regan, 453 U.S. 654 (1981) . . . . 20

Dobbert v. Florida, 432 U.S. 282 (1977) . . . . 10

Dynes v. Hoover, 61 U.S. (20 How.) 65 (1858) . . . . 17

Field v. Clark, 143 U.S. 649 (1892) . . . . 13

Furman v. Georgia, 408 U.S. 238 (1972) . . . . 7, 10

Gregg v. Georgia, 428 U.S. 153 (1976) . . . . 10, 15, 16

Hanna v. Plumer, 380 U.S. 460 (1965) . . . . 15

Harris v. Alabama, 115 S. Ct. 1031 (1995) . . . . 22

Hildivin v. Florida, 490 U.S. 638 (1989) . . . . 22

Jackson v. Virginia, 443 U.S. 307 (1979) . . . . 24

King v. Moseley, 430 F.2d 732 (lOth Cir. 1970) . . . . 20-21

Kurtz v. Moffitt, 115 U.S. 487 (1885) . . . . 15

McCleskey v. Kemp, 481 U.S. 279 (1987) . . . . 10, 16

Mendrano v. Smith, 797 F.2d 1538 (lOth Cir. 1986) . . . . 20

\(III\)

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IV

Cases-Continued:

Page

Milligan Ex parte, 71 U.S. (4 Wall.) 2 (1866) . . . . 20, 21

Mistretta. v. United States, 488 U.S. 361

\(1989\) . . . . 8, 15, 16, 18, 19

0\'Callahan v. Parker, 395 U.S. 258 (1969) . . . . 20

Owens v. Markley 289 F.2d 751 (7th Cir. 1961) . . . . 21

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) . . . . 13, 14

Profitt v. Florida, 428 U.S. 242 (1976) . . . . 16

Quirin, Ex parte, 317 U.S. 1 (1942) . . . . 9, 20, 21

Reid v. Covert, 354 U.S. 1 (1957) . . . . 20

Ryder v. United States, 115 S. Ct. 2031 (1995) . . . . 24

Schick v. Reed, 419 U.S. 256 (1974) . . . . 19

Sibbach v. Wilson & Co., 312 U.S. 1 (1941) . . . . 15

Skinner v. Mid-America Pipeline Co., 490 U.S, 212

\(1989\) . . . . 14-15

Solorio v. United States, 483 U.S. 435 (1987) . . . . 14, 20, 22, 23

Spaziano v. Florida, 468 U.S. 447 (1984) . . . . 9, 22

Stanford v. Kentucky, 492 U.S, 361 (1989) . . . . 16

Stone v. INS, 115 S. Ct. 1537 (1995) . . . . 12

Swaim v. United States, 165 U.S. 553 (1897) . . . . 15

United States v. Chemical Foundation. Inc., 272 U.S. 1

\(1926\) . . . . 14

United States v. Curtis, 32 M.J. 252 (C.M.A.), cert.

denied, 112 S. Ct. 406 (1991) . . . . 8, 9, 16, 24

United States v. Curtiss-Wright Export Corp., 299 U.S.

304 (1936) . . . . 14

United States v. Eliason, 41 U.S. (16 Pet.) 291 (1842) . . . . 15

United States v. Matthews, 16 M.J. 354 (C.M.A. 1983) . . . . 2, 3

United States v. Mazurie, 419 U.S. 544 (1975) . . .. 14

United States v. McClain, 22 -M.J. 124 (C.M.A. 1986) . . . . 20

United States v. Palenius, 2 M.J. 86 (CM.A. 1977) . . . . 24

United States v. Prescott, 2 C.M.A. 122, 6 C.MR. 122

\(1952\) . . . . 11

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V

Cases-Continued:

Page

United, States ex rel. Knauff v. Shaughnessy, 338 U.S.

537 (1950) . . . . 14

United States ex rel. Toth v. Quarles. 350 U.S. 11 (1955) . . . . 23

Walton v. Arizona, 497 U.S. 639 (1990) . . . . 22

Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825) . . . . 15

Weiss v. United States, 114 S. Ct. 752 (1994) . . . . 18, 22, 23

Wells, Ex parte, 59 U.S. (18 How.) 307 (1856) . . . . 19

Whelchel v. McDonald, 340 U.S. 122 (1950) . . . . 20, 22

Williams v. Florida., 399 U.S. 78 (1970) . . . . 20, 21

Youngstown Sheet & Tube Co. v. Sawyer, 343 US. 579

\(1952\) . . . . 20

Zant v. Stephens, 462 U.S. 862 (1983) . . . . 13

Constitution, statutes, regulations and rules:

U.S. Const.:

Art. I:

8:

Cl. 14 . . . . 14, 22

Cl. 18 . . . . 13

Art. II . . . . 20

2, Cl. 1 . . . . 10, 14, 19

Art. III . . . . 15, 17, 21

Amend. V . . . . 20, 21

Due Process Clause . . . . 22

Amend. VI (Jury Trial Clause) . . . . 9, 20, 21, 22

Amend. VIII . . . . 13, 22

Act of Sept. 27, 1890, ch. 998, 26 Stat. 491 . . . . 17

Articles of War of 1874, Arts. 41-46 (reprinted W. Win-

throp, Military Law and Precedents (2d ed. 1920

reprint) . . . . 17

Uniform Code of Military Justice, 10 U.S.C. 801 et seq.:

Art. 16(1)(A), 10 U.S.C. 816(1)(A) . . . . 20

Art. 18, 10 U.S.C. 818 . . . . 8, 10, 14, 18

Art. 36, 10 U.S.C. 836 . . . . 3, 8, 11, 14, 15, 16, 18

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VI

Statutes, regulations and rules-Continued:

Page

Art. 51, 10 U.S.C. 851 . . . . 18

Art. 52(b)(l), 10 U.S.C. 852(b)(l) . . . . 20

Art. 56, 10 U.S.C. 856 . . . . 8, 11, 14,18,

Art. 66, 10 U.S.C. 866 . . . . 7

Art. 66(c), 10 U.S.C. 866(c) . . . . 24

Art. 80, 10 U.S.C. 880 . . . . 2

Art. 106a, 10 U.S.C. 906a . . . . 11, 14, 18

Art. 106a(c)(4) 10 U.S.C. 906a(c)(4) . . . . 11,12

Art. 118, 10 U.S.C. 918 . . . . 2, 4, 7, 10, 11,14

Art. 122, 10 U.S.C. 922 . . . . 2

Exec. Order No. 12, 473, 3 C.F.R. 201 . . . . 4

Mil. R. Evid. 606(b) . . . . 18

Rules for Courts-Martial:

Rule 1004 . . . . passim

Rule 1004(c)(7) . . . . 7

Rule 1004 (c)(7) (J) . . . . 7

Rule 1004(c)(8) . . . . 7

Miscellaneous:

H.R. Conf. Rep. No. 235, 99th Cong., 1st Sess. (1985) . . . . 12

G. Henderson, Courts-Martial and the Constitution: The

Original Understanding, 71 Harv. I,. Rev. 293 (1957) . . . . 21

Manual , for Courts-Martial, United States, 1984 . . . . 4, 16

A. Sullivan, The President\'s Power to Promulgate

Death Penalty Standards, 125 Mil. L. Rev. 143

\(1989\) . . . . 3, 17

W. Winthrop, Military Law and Precedents (2d ed. 1920

reprint) . . . . 17

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In the Supreme Court of the United States

OCTOBER TERM, 1995

No. 94-1966

DWIGHT J. LOVING, PETITIONER

v\.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Armed Forces (Pet. App. la-227a) is reported

at 41 M.J. 213. The initial opinion of the United

States Army Court of Military Review, now the

United States Army Court of Criminal Appeals (Pet.

App. 229a-256a), is reported at 34 M.J. 956, and its

opinion denying reconsideration (Pet. App. 257a-265a)

is reported at 34 M.J. 1065.

JURISDICTION

The judgment of the United States Court of

Appeals for the Armed Forces was entered on Novem-

\(1\)

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2

ber 10, 1994. A petition for reconsideration was de-

nied on February 2, 1995. Pet. App. 228a. On April 21,

1995, Chief Justice Rehnquist extended the time

within which to file a petition for a writ of certiorari

to and including June 2, 1995, and the petition was

filed on that date. The jurisdiction of this Court is

invoked under 28 U. S. C. 1259(1).

STATEMENT

Petitioner was convicted by a general court-martial

of premeditated murder, felony murder, attempted

murder, and robbery (four specifications), in violation

of Articles 118, 80, and 122, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. 918, 880, and 922. The

court sentenced petitioner to death, a dishonorable

discharge, and forfeiture of all pay and allowances.

The United States Army Court of Military Review

affirmed. 34 M.J. 956, reconsideration denied, 34 M.J.

1065 (A.C.M.R. 1992) (Pet, App. 229a-265a). The

United States Court Appeals for the Armed Forces

affirmed. Pet. App. la-227a.

1\. In United States v. Matthews, 16 M.J. 354

(C.M.A. 1983), the United States Court of Military

Appeals (now the United States Court of Appeals for

the Armed Forces) analyzed the constitutionality of

the military\'s death penalty provisions, Article 118,

UCMJ, 10 U.S.C. 918. After reviewing this Court\'s

cases, the court concluded that certain common fea-

tures appeared in a constitutionally valid death penal-

ty procedure: a bifurcated sentencing proceeding spa-

civic aggravating circumstances; selection of and

findings on the particular aggravating circumstances

used by the sentencer to impose the death penalty;

unrestricted opportunity for the defendant to present

mitigation and extenuation evidence; and mandatory

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appellate review of the appropriateness of the seen-

Tenneco. Id. at 377.

The Matthew\'s court found all of those safeguards

present in the military system except for specific

aggravating factors. 1. The court held that because

court-martial members were not required to identify

specifically the aggravating factors relied upon in

assessing the death sentence, it was impossible for

appellate courts to determine whether the members

had made an individualized sentencing determination

based on the character of the defendant and the

circumstances of the crime. 16 M.J. at 379. The court

indicated that either Congress or the President, in

his capacity as Commander in Chief and/or pursuant

to the powers that Congress delegated to him, could

take corrective action. Id. at 380 (citing Art. 36,

UCMJ, 10 U.S.C. 836).

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

1 The court noted (1) that the military follows a bifurcated

sentencing procedure; (2) that \"\[c\]retain aggravating circus-

stances, such as premeditation, specific intent, and murder

during commission of specified felonies, must be found by the

court members \* \* \*. These findings identify the instances in

which an accused is eligible for the death penalty. After the

findings, evidence may be submitted to identify other

aggravating circumstances.\" 16 M.J. at 378 (citation omitted);

\(3\) that the defendant has an unlimited opportunity to put on

evidence in extenuation and mitigation; (4) that there is

mandatory review of the facts, law, and sentence appro-

priateness followed by a mandatory review of the law by the

Court of Military Appeals (now the Court of Appeals for the

Armed Forces); and (5) that the President, who can take any

lesser action on the sentence, must ultimately approve any death

sentence. Ibid. See generally A. Sullivan, The President\'s

Power to Promulgate Death Penalty Standards, 125 Mil. L.

Rev. 143 (1989).

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The President responded by promulgating Rule for

Courts-Martial (RCM) 1004, which amended the Manual

for Courts-Martial to provide procedures for adjured-

icating cases in which the death penalty is authorized

for homicide by Article 118 of the Uniform Code of

Military Justice, 10 U.S.C. 918. See Manual for

Courts-Martial, United States, 1984 (Manual). RCM

1004, which had been circulated for public comment

before the decision in Matthew\'s, rectified the

deficiency identified in that opinion by enumerating

specifiency identified in that opinion by enumerating

specific aggravating factors, at least one of which the

court-martial members must unanimously find in

order to impose the death penalty. RCM 1004 also

provides that all members of the court-martial must

concur that the aggravating circumstance(s) substan-

tially outweigh any extenuating or mitigating cir-

cumstances be fore death can be adjudged. The Presi-

dent caused the 1984 Manual for Courts-Martial and

its Rules for Courts-Martial to be issued by \"virtue of

the authority invested in \[him\] as President by the

Constitution of the United States and by Chapater 47

of Title 10 of the United States Code \[i.e., the

UCMJ\].\" Exec. Order No. 12,473, 3 C.F.R. 201 (1984

comp.).

2\. During the evening of December 11, 1988,

petitioner, an Army private stationed at Fort Hood,

Texas, robbed at gun point two different 7-Eleven

convenience stores in Killeen, Texas. Pet. App. 3a,

231a; Pet. 4-5. In the first robbery, petitioner fired

two shots into the counter and soda fountain, which

were behind the cashier; he obtained \$38. In the

second robbery, petitioner fired a bullet into the cash

register, and demanded that the cashier put money in

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a paper bag. As he ran out, petitioner fired a round

back into the store. He obtained approximately 52

from the second robbery. Id. at 3a, 231a.

When the 7-Eleven robberies netted him only a

small amount of cash, petitioner conceived a plan to

rob taxicab drivers. On the evening of December 12,

1988, petitioner called a taxicab to take him from a

store in Killeen to his barracks in Fort Hood. The

driver of the taxicab was an active-duty soldier,

Christopher Fay, who was working for extra money.

Petitioner directed Fay to a secluded area on Fort

Hood, where he demanded Fay\'s money at gun point.

After receiving some money from Fay, petitioner shot

him in the back of the head. While looking at the

bleeding wound, petitioner cocked his pistol and again

shot Fay in the back of the head. Fay died. Pet. App.

3a-4a, 231a-232a.

Petitioner fled to his barracks and, after counting

the money he obtained from Fay, called a second

taxicab. That cab was driven by a retired Army

sergeant, Bobby Sharbino. Petitioner directed Shar-

bino to a secluded street in Killeen, where he robbed

Sharbino of his money pouch, wallet, and other

personal effects. Petitioner then ordered Sharbino to

lie down on a car seat and shot him in the head, killing

him. Pet. App. 4a, 232a.

Later that evening, petitioner took his girlfriend to

a nightclub in Killeen. Upon leaving, petitioner and

his girlfriend entered a taxicab driven by Howard

Harrison. After dropping his girlfriend off near her

residence, petitioner directed Harrison to a secluded

area and robbed him at gun point. Petitioner then

attempted to kill Harrison. Harrison struggled with

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petitioner, disarmed him, and fled. Pet. App. 4a-5a,

232a-233a.

Acting on leads provided by Harrison, law

enforcement agents, including agents of the Army

Criminal Investigation Command (CID), arrested

petitioner in the afternoon of December 13, 1988.

Petitioner was taken to the CID office, where, after

being advised of his rights, he made a full videotaped

confession describing his crimes in detail. Searches

of the area surrounding petitioner\'s girlfriend\'s resi-

dence, and of the residence and other places frequent-

ed by petitioner, resulted in the recovery of the

weapon used in the murders and robberies, spent and

Unspent bullets, petitioner\'s blood-stained jacket, and

effects taken from the murder victims. Pet. App. 232a

n.2, 233a, 5a, 7a. Later, while incarcerated at the U.S.

Army facility at Fort Riley, Kansas, petitioner told a

fellow inmate that he had committed the first murder

\"to see if he could get away with it,\" and the second

murder \"because it was fun,\" and that \"if he had to do

it over, the only difference is he wouldn\'t. get caught. \"

Id. at 68a-69a.

An eight-member court-martial unanimously found

petitioner guilty of the premeditated murder of

Sharbino and of the felony murder of Fay. By a non-

unanimous vote, the court-martial also found peti-

tioner guilty of attempting to murder Harrison, of

robbing Sharbino and Harrison, and of robbing the 7-

Eleven stores. Pet. App. 8a-9a. 2. After a hearing

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

2 In addition, petitioner was found guilty of the premeditated

murder of Fay, the robbery of Fay, and the felony murder of

Sharbino. After the findings were announced, the military

judge dismissed those specifications as multiplicitous. Pet. App.

9a.

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conducted in accordance with RCM 1004, the court-

martial unanimously found, as aggravating factors,

that the premeditated murder of Sharbino was com-

mitted while petitioner was engaged in a robbery (see

RCM 1004(c)(7)), that in the felony murder of Fay

petitioner acted as the triggerman (see RCM

1004(c)(8)), and that petitioner, having been found

guilty of the premeditated murder of Sharbino, was

found guilty of another murder in the same case (see

RCM 1004(c)(7)(J)). Pet. App. 253a-254a. The court-

martial unanimously sentenced petitioner to death, a

dishonorable discharge, and forfeiture of all pay and

allowances. The convening authority approved the

findings and sentence. Pet. App. 9a, 230a. 3.

3\. The Army Court of Military Review affirmed

the findings and sentence. Pet. App. 229a-256a. In

accordance with Article 66, UCMJ, 10 U. S. C. 866, the

court independently weighed the evidence and

\"agree\[d\] with each of the aggravating factors found

by the court-martial.\" Pet. App. 254a. The court also

found \"that any extenuating and mitigating circum-

stances are substantially outweighed by the aggra-

vating circumstances.\" Ibid.

On appeal, petitioner argued that Article 118,

UCMJ, 10 U.S.C. 918, is unconstitutional under

Furman v. Georgia, 408 U.S. 238 (1972), in that it

does not sufficiently narrow the class of death-

eligible defendants, and that the President exceeded

his authority under the Constitution and the UCMJ

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

3 The \"convening authority\" is the commander who con-

venes the court-martial. The convening authority selects the

court-martial members, directs that the accused be tried by the

court-martial for the charged offenses, and conducts a post-trial

review of the proceedings.

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in promulgating RCM 1004 to provide specific

aggravating factors. The court found those claims

foreclosed by United States v. Curtis, 32 M.J. 252

(C. M. A.), cert. denied, 112 S. Ct. 406(1991). Pet. App.

230a. In that case, the Court of Military Appeals had

upheld RCM 1004 against similar attacks. See Pet.

App. 346a-384a (reproducing Curtis opinion).

The Curtis court concluded that under the Uniform

Code of Military Justice, the President has long

\"play\[ed\] the major role in determining what punish-

ments may be imposed by courts-martial.\" Pet. App.

362a-363a. It held that several provisions of the

UCMJ, particularly Articles 18, 36, and 56, UCMJ, 10

U.S.C. 818, 836, and 856, authorized the President to

promulgate aggravating factors for capital cases.

Relying on Mistretta v. United States, 488 U.S. 361

(1989), the Curtis court rejected a separation-of-

powers challenge to that delegation, noting that \"\[i\]n

view of \[the President\'s\] inherent constitutional

authority \[as Commander-in-Chief of the Armed

Forces\], a separation-of-powers objection has much

less merit in the present context than if the \`aggra-

vating factors\' for capital cases tried by courts-

martial had been formulated by a specially created

commission.\" Pet. App. 361a-362a. Curtis also rejecte-

d the contention that Congress failed to give the

President an intelligible principle for the exercise of

the delegated powers, explaining that the UCMJ\'S

direction in Article 36 that the President apply \"the

principles of law\" that are generally applied in federal

district courts constitutes an adequate standard.

Pet. App. 368a.

Petitioner also argued that only a court-martial

panel composed of 12 members can constitutionally

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9

impose the death penalty. The Army Court of

Military Review found that claim meritless on the

authority of Curtis (Pet. App. 230a), which rejected

that claim on the grounds (1) that the jury-trial

requirement of the Sixth Amendment does not apply

to courts-martial, Pet. App. 375a-376a (citing Ex

parte Quirin, 317 U.S. 1 (1942)), (2) that a civilian

judge alone may be entrusted with imposing a death

sentence, Pet. App. 376a \[citing, inter alia, Clemons

v\. Mississippi, 494 U.S. 738 (1990), and Spaziano v.

Florida, 468 U.S. 447 (1984)), and (3) that the military

justice system includes significant post-sentence

safeguards to minimize the risk of erroneous imposi-

tion of the death penalty. Pet. App. 376a-377a.

3\. The Court of Appeals for the Armed Forces

affirmed. Pet. App. la-227a. The court summarily

rejected, on the authority of Curtis and Matthews,

petitioner\'s claims that the President lacked consti-

tutional and statutory authority to promulgate R CM

1004, and that a court-martial panel of fewer than 12

members may not constitutionally sentence a

defendant to death. Pet. App. 128a-129a (challenge to

size of court-martial panel); id. at 141a-142a (chal-

lenges to constitutionality of RCM 1004).

ARGUMENT

1\. Petitioner contends that Congress has not

explicitly or implicitly delegated to the President any

authority to prescribe aggravating- factors (Pet. 14-

15), and, if Congress has done so, such delegation is

unconstitutional because that authority may not be

delegated at all (Pet. 9-11), because the delegation

impermissible combines in the President the power to

make and enforce laws (Pet. 11-14), or because Con-

gress failed to set forth sufficient standards to guide

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10

the President\'s exercise of his authority (Pet. 19-23).

Those claims lack merit and do not warrant review.

a\. In Furman v. Georgia, 408 U.S. 238 (1972), this

Court held that the death penalty cannot be imposed

under procedures that create a substantial risk that

it will be inflicted in an arbitrary manner. See, e.g.,

McCleskey V. Kemp, 481 U.S. 279, 301 (1987);

California v. Brown, 479 U.S. 538, 541 (1987); Gregg

v\. Georgia, 428 U.S. 153, 188 (1976) (lead opinion).

Contrary to petitioner\'s contention (Pet. 8-9), Fur-

man did not hold unconstitutional Congress\'s judg-

ment that the death penalty is a lawful punishment

for premeditated or felony murder in the military

justice system. See Art. 118, UCMJ, 10 U.S.C. 918.

Furman requires only that appropriate safeguards

exist in order for Article 118 to be implemented in a

constitutional manner. Compare Dobbert v. Florida,

432 U.S. 282, 293-294, 297-298 (1977) (rejecting argu-

ment that there \"was no death penalty \`in effect\' in

Florida\" at the time of defendant\'s crime, because

Florida had not yet acted to comply with the dictates

of Furman upholding retroactive application of

Florida\'s post-Furman capital sentencing law on the

ground that the changes were merely \"procedural\").

The President had ample authority to prescribe the

safeguards that will result in the constitutional

application of the statute that Congress enacted. In

addition to his constitutional authority as \"Com-

mander in Chief of the Army and Navy,\" U.S. Const.

Art. II 2, Cl. 1, three provisions of the Uniform

Code of Military Justice make clear that the Presi-

dent has the power to devise sentencing procedures

for capital cases. Article 18, UCMJ, 10 U.S.C. 818,

which sets forth the jurisdiction of general courts-

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martial, provides that such courts-martial \"may,

under such limitations as the President may pre-

scribe, adjudge any punishment not forbidden by this

chapter.\" Article 36, UCMJ, 10 U.S.C. 836, empowers

the President to prescribe \"trial\[\] and post-trial

procedures \* \* \* for cases triable in courts-martial\"

by regulations that \"shall, so far as \[the President\]

considers practicable, apply the principles of law

\* \* \* generally recognized in the trial of criminal

cases in the United States district courts.\" And

Article 56, UCMJ, 10 U.S.C. 856, authorizes the

President to limit the maximum punishment a court-

martial may impose. See, e.g., United States v.

Prescott, 2 C.M.A. 122, 124-125, 6 C.M.R. 122, 124-125

(1952). Together, those Articles authorize the Presi-

dent to prescribe whatever procedures are necessary

to assure that Article 118 can be implemented consti-

tutionally.

Any doubt as to whether the UCMJ delegates to the

President authority to promulgate RCM 1004 was

eliminated by Congress\'s enactment in 1985 of Article

106a, UCMJ, 10 U.S.C. 906a, which makes it a capital

offense for a servicemember to engage in espionage.

That provision lists three specific aggravating fac-

tors and further states that aggravating factors

include \"\[a\]ny other factor that may be prescribed by

the President by regulations under \[Article 36\].\" See

10 U.S.C. 906a(c)(4). Article 106a therefore clearly

reflects congressional understanding that the UCMJ,

including Article 36, gives the President delegated

authority to promulgate aggravating factors in

capital cases. The conference report on the legis-

lation makes the point even more clearly, stating

that:

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Nothing in the new Article 106a is meant to

preclude a prosecution under any other article of

the UCMJ\[.\] \* \* \*

\*\*\*\*\*

The conferees did, however, adopt a statutory

formulation of capital sentencing standards for

espionage cases and intend that those standards

be implemented in a manner consistent with the

provisions of Rule for Courts-Martial 1004 of the

Manual for Courts-Martial, 1984, The conferees

do not intend that the enactment of statutory capi-

tal sentencing standards for the new Article l06a

be construed as affecting the validity of the regu-

latory capital sentencing standards that. already

exist for the other capital punitive articles.

H.R. Conf. Rep. No. 235, 99th Cong., 1st Sess. 425

(1985). Where Congress has, as it did here, passed

new legislation in specific reliance on a particular

interpretation of existing laws, there is strong rea-

son to give effect to that interpretation. See, e.g.,

Babbitt v. Sweet Home Chapter of Communities for

a great Oregon, 115 S. Ct. 2407, 2414 (1995); Stone v.

INS, 115 S. Ct. 1537, 1545,1549 (1995). 4.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

4 Petitioner suggests (Pet. 18-19) that Article 106a evidences

Congress\'s belief that the President lacks delegated authority to

promulgate aggravating factors in capital cases, because Article

106a delegates that authority to the President only in espionage

cases. The problem with that claim is that Article 106a(c)(4)

expressly recognizes that the President\'s authority to promul-

gate aggravating factors will be exercised \"under section 836 of

this title (article 36),\" 10 U.S.C. 906a(c)(4), a provision that is

not limited to espionage cases. There is no greater merit to

petitioner\'s contention that Article 106a should not be read to

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b\. The President\'s exercise of that authority to

promulgate aggravating factors does not violate the

\"nondelegation doctrine\" or the Eighth Amendment.

Petitioner\'s broad claim that the Eighth Amendment

requires that Congress prescribe aggravating factors

(Pet. 9-10) is not supported by this Court\'s cases.

Nothing in the Eighth Amendment requires that a

legislature provide the narrowing of death-eligible

defendants required by this Court\'s cases. See, e.g.,

Zant v. Stephens, 462 U.S. 862, 880 (1983) (to

determine if jury\'s discretion is sufficiently chan-

neled in capital cases, court may look to \"court-im-

posed standards to govern the jury\" in its deliber-

ations).

As for the \"nondelegation doctrine,\" it is directed

to situations in which Congress is alleged to have

given the Executive the power to \"make a\[\] Law\[\],\"

Art. I, 8, Cl. 18, in the first instance, rather than to

\"take Care that the Laws be faithfully executed,\" Art.

II, 3. Panama Refining Co. v. Ryan, 293 U.S. 388,

421 (1935); Field v. Clark, 143 U.S. 649, 692 (1892). 5.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

reflect congressional endorsement of RCM 1004, because the

conferees \"clearly indicated\]\" that Article 106a should not be

\"read as validating or invalidating\" that Rule. Pet. 18. The

conferees, however, endorsed the use of RCM 1004\'s procedures

in espionage cases, and their statement that nothing in Article

106a would preclude prosecution under other provisions of the

UCMJ or affect the \"validity\" of RCM 1004, can only be read as

expressing agreement that RCM 1004 is lawful.

5 This Court has invalidated a law on the ground of improper

delegation in only two cases: Panama Refining Co. v. Ryan,

supra, and A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935). In each of those cases, the Court found that

the statute at issue \"declare\[d\] no policy\" as to the subject

matter of the delegation and left the Executive with \"unlimited

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Here, Congress has made the \"law\" governing the

conduct of servicemembers. The Constitution auth-

orizes Congress to \"make Rules for the Government

and Regulation of the land and naval Forces,\" Art. I,

8, Cl. 14. which includes the power to define crimes

and affix their punishment, Solorio v. United States,

483 U.S. 435,438-439 (1987). Article 118 is just such a

\"Rule\[\]\"; it defines both the offense of murder and its

punishment. Congress therefore has exercised its

power to regulate the military. What Congress has

done through Articles 18, 36, 56, and 106a is to give

the President the power to ensure that Article 118

can be implemented in a constitutional manner by

courts-martial. That power does not offend non-

delegation principles.

Contrary to petitioner\'s contention that the powers

already exercised by the President under the Consti-

tution make him categorically ineligible for exer-

cising additional delegated authority in this area

(Pet. 12-14), this Court has recognized that the limits

on Congress\'s delegation power are \"less stringent in

cases where the entity exercising the delegated

authority itself possesses independent authority over

the subject matter.\" United States v. Mazurie, 419

U.S. 544, 556-557 (1975); see also United States ex rel.

Knauff v. Shaughnessy, 338 US. 537, 542-543 (1950)

(immigration); United States v. Curtiss-Wrighf

Export Corp., 299 U.S. 304, 319-322 (1936) (foreign

affairs); United States v. Chemical Foundation, Inc.,

272 U.S. 1, 12 (1926) (Commander-in-Chief power); cf.

Skinner v. Mid-America Pipeline Co., 490 U.S. 212,

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

authority to determine the policy \* \* \* as he may see fit.\"

Panama Refining, 293 U.S. at 415.

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15

220-223 (1989). This is such a case. As \"Commander

in Chief of the Army and Navy,\" Art. II, 2, Cl. 1, the

President has the inherent power to adopt measures

necessary to promote military discipline, see United

States v. Eliason, 41 U.S. (16 Pet.) 291,301-302 (1842);

see also Kurtz v. Moffitt, 115 U.S. 487, 503 (1885), or

to regulate court-martial proceedings, cf. Swaim v.

United States, 165 U.S. 553, 557-558 (1897). Indeed,

this Court has consistently held that Congress can

grant rulemaking authority to Article III courts,

since that authority is a reasonable adjunct to their

inherent power to adjudicate cases. See, e.g.,

Mistretta v. United States, 488 U.S. 361, 387-388

(1989); Hanna v. Plumer, 380 U.S. 460 (1965); Sibbach

v\. Wilson & Co., 312 U.S. 1, 9-10 (1941); Wayman v.

Southard, 23 U.S. (10 Wheat.) 1, 43 (1825). Congress

has no greater duty to specify the factors for the

President to consider when he issues rules ensuring

that courts-martial operate in a constitutional

manner than Congress must specify for the federal

courts to consider in ensuring that cases will be

adjudicated properly.

Nonetheless, Congress has not left the President

without guidance. Article 36 states that the court-

martial rules promulgated by the President \"shall, so

far as he considers practicable, apply the principles of

law and the rules of evidence generally recognized in

the trial of criminal cases in the United States

district courts.\" 10 U.S.C. 836. The \"principles of

law\" recognized by the district courts include consti-

tutional rules established by this Court\'s capital

punishment decisions. Gregg approved the sentencing

standards found in the Model Penal Code, 428 U.S. at

193-194 n.44 (lead opinion), and also upheld the

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16

Georgia capital sentencing scheme, which generally

follows the Model Penal Code, id. at 164-166 & n.9

196-198 (lead opinion); McCleskey, 481 U.S. at 302 &

n.24; see also Proffitt v. Florida, 428 U.S. 242, 248-249

n.6 (1976) (lead opinion). The aggravating factors in

Rule 1004 have close analogues in the Model Penal

Code and the Georgia and Florida statutes. See

Manual A21-69. Moreover, Article 36 is not the only

source of congressional policy in this regard.

Congress has authorized the death penalty for var-

ious offenses, Stanford v. Kentucky, 492 U.S. 361, 372

n.4 (1989) (collecting laws), and those statutes

evidence Congress\'s policy judgments about the con-

duct warranting that sentence. The President can

take those judgments into account in formulating

aggravating factors, and, as the court of appeals

recognized in Curtis (Pet. App. 368a-375a), RCM 1004

does just that.

Nor does it matter whether the aggravating factors

in RCM 1004 are viewed as in some sense \"sub-

stantive\" (Pet. 11 & n.16), because separation-of-

powers analysis \"does not turn on the labeling of an

activity as \`substantive\' as opposed to \`procedural.\'\"

Mistretta, 488 U.S. at 393. More important is the fact,

that the delegation challenged by petitioner \"pose\[s 1

no threat of undermining the integrity of the

\[Executive\] Branch or of expanding \[its\] powers

\* \* \* beyond constitutional bounds,\" ibid., for

several reasons. First, as this Court recognized in

Mistretta, \"the \[federal\] sentencing function long has

been a peculiarly shared responsibility among the

Branches of Government and has never been thought

of as the exclusive constitutional province of any one

Branch.\" Id. at 390. In the military context, that

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17

responsibility has been historically shared princi-

pally by the Legislative and Executive Branches,

because courts-martial have never been thought to be

Article III courts. See Dynes v. Hoover, 61 U.S. (20

How.) 65,79 (1858). 6. Second, the President\'s exercise

of such rulemaking authority does not improperly

consolidate the prosecution and sentencing functions,

because the sentencing decision is left to serv-

icemembers who are protected against improper in-

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

6 Congress has traditionally left sentencing in military

prosecutions largely to the Executive Branch. Most of the

offenses enumerated in the Articles of War of 1776 provided

that the sentence upon conviction would be determined by the

judgment of the court-martial. See W. Winthrop, Military Law

and Precedents App. X. at 961-967 (2d ed. 1920 reprint). That

practice was continued when Congress revised the Articles of

War in 1806 and 1874, id. App. XII, at 976-981; App. XIII, at 986-

991, and it extended to capital offenses. See, e.g., Articles of

War of 1874, Arts. 41-46 (each providing that defendant \"shall

suffer death, or such other punishment as a court-martial may

direct\"). In 1890 Congress directed that whenever the sentence

was left to the discretion of the court-martial by the Articles of

War, \"the punishment \* \* \* shall not, in time of peace, be in

excess of a limit which the President may prescribe.\" Act of

Sept. 27, 1890, ch. 998, 26 Stat. 491. Thus, a long history,

predating the Constitution itself, shows that Congress has always

understood the determination of court-martial sentences to be a

matter properly resting within the special competence of the

Executive Branch officials most directly responsible for the

maintenance of military discipline. See A. Sullivan, The

President\'s Power to Promulgate Death Penalty Standards, 125

Mil. L. Rev. 143, 157 (1989). Cf. Bowsher v. Synar, 478 U.S.

714, 723-724 (1986) (historical evidence is a valuable guide in

separation of powers controversies).

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18

fluence or retaliation. Cf. Mistretta, 488 U.S. at 393-

395\. 7.

Third, Articles. 18, 36, 56, and 106a do not allow the

President to impose capital punishment in cases

where Congress has not itself authorized that pen-

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

7 Contrary to petitioner\'s repeated suggestions that the

President or military commanders can easily exert improper

influence over courts-martial and their members (Pet. 26-28 &

nn.28, 31), the military justice system includes strong safeguards

to prevent that from occurring. This Court recently found

those safeguards significant in concluding that the Constitution

does not require that military judges be given a fixed term of

office:

Article 26 \* \* \* protects against command influence by

precluding a convening officer or any commanding officer

from preparing or reviewing any report concerning the

effectiveness, fitness, or efficiency of a military judge relat-

ing to his judicial duties. Ibid. Article 37 prohibits conven-

ing officers from censuring, reprimanding, or admonishing

a military judge \[or court-martial member\] \"with respect to

the findings or sentence adjudged by the court, or with

respect to any other exercise of its or his functions in the

conduct of the proceeding.\" 10 U.S.C. 837. Any officer

who \"knowingly and intentionally fails to enforce or com-

ply\" with Article 37 \"shall be punished as a court-martial

may direct.\" Article 98, UCMJ, 10 U.S.C. 898.

Weiss v. United States, 114 S. Ct. 752, 762 (1994). In addition,

Article 51, 10 U.S.C. 851, provides that panel members must

vote by secret written ballot, and Mil. R. Evid. 606(b) permits

court-martial members to be questioned on \"whether there was

unlawful command influence,\" and that information may be

used to impeach the verdict. See Pet. App. l7a-18a. Finally, as

this Court recently noted, \"\[t\]he entire system \* \" \* is

overseen by the Court of Military Appeals, which is composed

entirely of civilian judges \* \* \*. That court has demonstrated

its vigilance in checking any attempts to exert improper

influence.\" Weiss. 114 S. Ct. at 762.

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19

alty. Those Articles only allow the President to limit

or regulate its use. The President has always had the

power to reduce a servicemernber\'s sentence under

his power \"to grant Reprieves and Pardons,\" Art. II,

2, Cl. 1, regardless of minimum and maximum

penalties set by law. Schick v. Reed, 419 U.S. 256

(1974); Ex parte Wells, 59 U.S. (18 How.) 307 (1856).

And the President\'s power to channel the imposition

of the death penalty is a reasonable adjunct to his

authority to regulate courts-martial. Cf. Mistretta,

488 U.S. at 395-396. While RCM 1004, like the Sen-

tencing Guidelines upheld in Mistretta, may influence

servicemembers\' actions, the Rule does not \"bind or

regulate the primary conduct\" of servicemen, and

does \"no more than fetter the discretion of \[courts-

martial\] to do what they have done for generations-

impose sentences within the broad limits established

by Congress.\" 488 U.S. at 396.

Finally, Congress\'s judgment that the President

should have the authority to promulgate sentencing

procedures, including aggravating factors for capital

or noncapital cases, is sensible. This Court\'s decis-

ions in cases such as Gregg have identified various

procedures that satisfy the concerns underlying

Furman. Because the President adopts the Manual

for use by courts-martial, Congress could reasonably

have believed that the President is in the best posi-

tion to ensure that the procedures required by this

Court\'s cases can be implemented quickly and revised

when necessary in that specialized field, just as he

can ensure that courts-martial follow whatever other

rules are imposed by this Court or the military

courts. Congress also could have believed that the

President is in a better position to determine what

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20

factors are necessary to ensure adequate military

discipline. In those circumstances, the combined

effect of the President\'s inherent Article 11 power and

the authority given him by the UCMJ means that the

President\'s power to adopt rules such as Rule 1004 is

at its zenith. See, e.g., Dames & Moore v. Regan, 453

U.S. 654, 668 (1981); Youngstown Sheet & Tube Co. v.

Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,

concurring).

2\. Petitioner also contends (Pet. 23-28) that the

military sentencing procedures are unconstitutional

because they allow a capital sentence to be imposed

when, as was the case here, the court-martial panel

consists of fewer than 12 members. See Article

16(1)(A), UCMJ, 10 U.S.C. 816(1)(A) (general court-

martial may consist of \"a military judge and not less

than five members\"); see also Article 52(b)(l), UCMJ,

10 U.S.C. 852(b)(1) (unanimity required when court-

martial imposes sentence of death). That claim finds

no support in the controlling decisions of this Court.

While petitioner relies on this Court\'s decisions

construing the Sixth Amendment Jury Trial Clause,

Pet. 24, 26 (citing Williams v. Florida, 399 U.S. 78

(1970), and Ballew v. Georgia, 435 U.S. 223 (1978)), it

is well settled that the Jury Trial Clause does not

apply to courts-martial. E.g., Ex parte Milligan, 71

U.S. (4 Wall.) 2, 123 (1866) 8. The Fifth Amendment

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

8 See also Ex parte Quirin, 317 U.S. I, 40-41 (1942); Whelchel

V. McDonald, 340 U.S. 122, 127 (1950); Reid v. Covert, 354 U.S.

1, 19 (1957) (plurality opinion); 0\'Callahan v. Parker, 395 U.S.

258, 261 (1969), overruled on other grounds, Solorio v. United

States, 483 U.S. 435 (1987); United States v. McClain, 22 M.J.

124, 128 (C.M.A. 1986). Accord Mendrano v. Smith, 797 F.2d

1538, 1544 (10th Cir. 1986); King v. Moseley, 430 F.2d 732, 734

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21

specifically exempts \"cases arising in the land or

naval forces\" from the requirement of an indictment

by a grand jury for serious crimes. By drafting the

Fifth Amendment in that manner, \"the framers of the

Constitution, doubtless, meant to limit the right of

trial by jury, in the sixth amendment, to those

persons who were subject to indictment or present-

ment in the fifth.\" Ex parte Milligan, 71 U.S. (4

Wall.) at 123. As the Court explained in Ex parte

Quirin, 317 U.S. 1,39 (1942), neither Article III of the

Constitution nor the Sixth Amendment requires a

trial by jury in the military, because those provisions

were intended \"to preserve unimpaired trial by jury

in all those cases in which it had been recognized by

the common law \* \* \* , but not to bring within the

sweep of the guaranty those cases in which it was

then well understood that a jury trial could not be

demanded as of right.\" Accordingly, because peti-

tioner had no Sixth Amendment right to a trial by a

petit jury, he also had no right under the Jury Trial

Clause to a court-martial panel composed of 12 per-

sons. 9.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

(l0th Cir. 1970); Branford v. United States, 356 F.2d 876, 877

(7th Cir. 1966); Owens v. Markley, 289 F.2d 751, 752 (7th Cir.

1961). See generally G. Henderson, Courts-Martial and the

Constitution: The Original Understanding, 71 Harv. L. Rev. 293

(1957).

9 In any event, an eight-person panel, as petitioner had,

would be sufficiently large to satisfy the Constitution. Williams

V. Florida, 399 U.S. 78, 86-103 (1970) (a six-person jury is

sufficient). Petitioner\'s reliance (Pet. 26) on Ballew v. Georgia,

435 U.S. 223 (1978), is misplaced, because Ballew involved a five-

person jury, whereas the panel in appellant\'s case had eight

members. Indeed, petitioner does not claim that the panel was

too small to find him guilty, but only to sentence him. The

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22

Petitioner\'s reliance on the Eighth Amendment is

similarly misplaced. The Eighth Amendment does

not guarantee a defendant in a capital case (or in any

other) the right to have the jury fix his punishment,

even when a sentence requires specific finding-s of

fact. See, e.g., Harris v. Alabama. 115 S. Ct. 1031,

1034-1035 (1995); Walton v. Arizona, 497 U.S. 639.648

(1990); Spaziano v. Florida, 468 U.S. 447, 459 (1984.

Thus, while petitioner is correct that this Court\'s

cases reflect the need for a higher degree of reli-

ability in capital cases. this Court has repeatedly

rejected the claim that jury sentencing is an indis-

pensable means to achieving that reliability.

Petitioner\'s claim fares no better under the Due

Process Clause. Pet. 24-25 & n.26. The Constitution

authorizes Congress to \"make Rules for the Govern-

ment and Regulation of the land and naval Force s,\"

Art. I, 8, Cl. 14, and grants Congress \"primary

responsibility for the delicate task of balancing the

rights of servicemen against the needs of the

military.\" Solorio v. United States, 483 U.S. 435, 447

(1987). See also Burns v. Wilson, 346 U.S. 137, 140

\(1953\) (plurality opinion). Congress\'s judgment about

the number of members that may appropriately com-

prise a court-martial is entitled to special deference,

not only because \"\[t\]he constitution of courts-martial,

like other matters relating to their organization and

administration \* \* \* is a matter appropriate for

congressional action,\" \`Whelchel v. McDonald, 340

U.S. 122, 127 (1950); see also Weiss v. United States,

114 S. Ct. 752, 760-761 (1994), but also because the

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

Sixth Amendment, however, does not require jury sentencing at

all, even in capital cases. See, e.g., Hildwin v. Florida, 490 U. S.

638, 639-640 (1989) (per curiam).

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23

practices at issue have been carried forward from the

earliest days of our nation. Cf. Solorio v. United

States, 483 U.S. at 447.

In support of his due process argument, petitioner

relies heavily (Pet. 24-25) on the fact that many

States leave the capital sentencing decision to 12

jurors, rather than to some fewer number. Because

some States, such as Florida and Arizona, leave the

final decision to the trial judge, rather than to the

jury, there is no societal consensus as to 12-person

sentencing. And, in any event, the state experience is

in the civilian capital sentencing context and there-

fore does not bear on the proper sentencing pro-

cedures for courts-martial. Compare Weiss v. United

States, 114 S. Ct. at 760-761. In the military context,

Congress\'s judgment as to the appropriate size of

courts-martial is a reasonable one. The essential

function of the military is \"to fight or be ready to

fight wars should the occasion arise.\" United States

ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955). When

servicemembers are diverted from that function by

the need to serve as court-martial panel members,

\"the basic fighting purpose of armies is not served.\"

Ibid. Congress reasonably determined that the rights

of servicemen are adequately protected by the court-

martial process without insisting on the further

diversion of resources that would be required

to provide 12-member panels in each case. 10.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

10 Moreover, as the court of appeals noted in Curtis,

defendants found guilty and sentenced to death by courts-

martial enjoy safeguards not available to persons convicted and

sentenced to death in civilian courts, including the convening

authority\'s power to commute the sentence and the fact that \"a

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24

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREW S. DAYS, III

Solicitor General

JOHN M. SMITH

Colonel, USA

JAMES L. POHL

Lieutenant Colonel, USA

MICHAEL E. MuLLIGAN

KENNETH G. WILSON

Captains, USA

Appellate Government Counsel

Government Appellate division

Falls Church, VA 22041-5013

SEPTEMBER 1995

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_(footnotes)

Court of Military Review, composed of trained appellate

military judges, must thoroughly review the law, the facts, and

the appropriateness of the accused\'s sentence.\" Pet. App. 377a;

see also id. at 152s (opinion below) (\"the convening authority

may set aside or reduce the sentence for any reason\"). Indeed,

unlike civilian appellate courts that review sufficiency claims

under a deferential standard, Jackson v. Virginia, 443 U.S. 307,

319 1979), military courts have required the prosecution

independently to prove the defendant\'s guilt before a court of

military review. A court of military review must independently

review the record and be convinced of the correctness of the

court-martial panel\'s findings, including its ultimate finding

that the accused is guilty, before the findings may be upheld.

See Art. 66(c), UCMJ. 10 U.S.C. 866(c); United States v.

Palenius, 2 M.J. 86, 91 n.7 (C.M.A. 1977); see also Ryder v.

United States, 115 S. Ct. 2031, 2037-20.38 (1995); Pet. App. 152a

(opinion below).