Supreme Court Appellate Jurisdiction over Military Court Cases
Released: 2011-03-30T00:00:00

Introduction

The U.S. military justice system exercises jurisdiction over criminal cases pursuant to Article I of the U.S. Constitution and the Uniform Code of Military Justice (UCMJ). Military courts' jurisdiction is limited to trying people connected to the armed forces for crimes defined by the UCMJ. Within these constraints, military courts' jurisdiction is relatively broad. For example, it extends to retired servicemembers such as the defendant in United States v. Stevenson , a case in which military courts convicted a man on the Navy's temporary disability retired list. In Stevenson , the Navy prosecuted the defendant for rape, a crime routinely tried in non-military courts with civilian defendants.

In general, the military justice system, including its system of appellate review, is separate and distinct from the civilian judicial system. Some constitutional safeguards and Supreme Court interpretations are inapplicable in military courts. Also, after following appellate review through the military court system, military defendants may appeal to the U.S. Supreme Court only in limited circumstances. Companion bills introduced in the 111 th Congress, H.R. 569 and S. 357 , would have broadend the Supreme Court's statutory jurisdiction by authorizing Supreme Court review of most military cases. This report surveys military courts' jurisdiction, the structure of appellate review for military cases, interactions between military and civilian courts, the Stevenson case, and past legislative proposals.

Military Courts' Jurisdiction

Most criminal cases in the United States are tried either in state courts or in civilian federal courts. The latter derive authority from Article III of the U.S. Constitution. However, the armed forces may prosecute defendants with military connections in military courts, which derive authority from Article I, sec. 8 of the Constitution.

The UCMJ, passed by Congress and implemented by the President through the Manual for Courts-Martial (MCM), governs military courts' jurisdiction and procedures. Military courts exercise jurisdiction over officers and enlisted servicemembers on active duty. However, the scope of their jurisdiction may extend beyond individuals serving on active duty. Specifically, such jurisdiction extends to cases involving retired servicemembers who receive military pay or hospital care from an armed force; specified members of reserve units; enemy combatants; and other individuals with connections to military operations or benefits. As noted below in the discussion of United States v. Stevenson , questions remain regarding the scope of military courts' power over retired servicemembers. However, it is clear that military courts' jurisdiction extends to military veterans only when a veteran maintains at least some current relationship with the military.

If a defendant's connection with the armed forces is sufficient to establish jurisdiction, a military court may try that defendant for a broad range of offenses, including conduct not related to official military duties, as long as the alleged conduct constitutes a crime under the UCMJ. The UCMJ includes some crimes that are unique to military service. For example, under the UCMJ, a defendant might be prosecuted for effecting unlawful enlistment, appointment, or separation; desertion; or absence without leave. However, the armed forces may also prosecute defendants under the UCMJ for conduct over which civilian courts could also exert jurisdiction. For example, the UCMJ criminalizes murder, rape, robbery, and other common law crimes.

Appellate Structure for Military Cases

Article I military courts handle military cases throughout the chain of appellate review. Appeal to the U.S. Supreme Court is permitted at the end of the process only in specified circumstances.

The UCMJ creates various military courts and provides appellate procedures for them. After an initial investigation and a court-martial, which is a trial-level proceeding, military cases undergo various stages of review within the military justice system. First, each court-martial proceeding has a "convening authority," who is a commissioned officer (other than the defendant's accuser) who convenes the investigation and court-martial proceeding and then approves or modifies the court-martial's findings and sentences. Convening authorities do not provide legal review; instead, they provide the equivalent of sentencing determinations by giving "full and fair consideration to matters submitted by the accused and determining appropriate action on the sentence." Under the UCMJ, convening authorities have "substantial discretion" to modify sentences and findings.

After a convening authority approves or modifies a court-martial decision, a Court of Criminal Appeals offers the first opportunity for legal review in military cases. Each branch of the armed services has a Court of Criminal Appeals, comprised of panels of military judges established by the Judge Advocate General for each branch. The Courts of Criminal Appeals review cases in panels or, occasionally, en banc . Review is not discretionary; each Judge Advocate General "shall refer" to the relevant Court of Criminal Appeals every case involving a conviction that imposes the death penalty or confinement for one year or more; a bad-conduct or dishonorable discharge; or, in certain cases, dismissal from the respective service. Unlike convening authorities, Courts of Criminal Appeals provide legal review of military cases. They "may affirm only such findings of guilty, and the sentence ... as [they] fin[d] correct in law and fact and determin[e], on the basis of the entire record, should be approved."

After a Court of Criminal Appeals has reviewed a case, the United States Court of Appeals for the Armed Forces (CAAF) provides the final opportunity for appellate review within the military court system. The CAAF is an Article I court, housed within the Department of Defense. However, unlike other military courts, the CAAF is comprised of civilian judges, whom the President appoints.

In general, the CAAF has discretion to grant or deny petitions for appeals, analogous to the U.S. Supreme Court's discretion to grant or deny writs of certiorari. However, the CAAF must accept appeals in two circumstances: (1) all cases in which the relevant Court of Criminal Appeals has affirmed a death sentence; and (2) all cases in which a Judge Advocate General has sent a case to the CAAF for review after a final Court of Criminal Appeals decision.

The CAAF's appellate review is limited. The CAAF must act "only with respect to the findings and sentence as approved by the [court-martial's] convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals." In other words, appeals to the CAAF must involve issues originally heard by a court-martial and affirmed or denied by a convening authority and the relevant Court of Criminal Appeals. The CAAF cannot hear appeals based on the All Writs Act or other jurisdictional authority unless they aid direct review of court-martial decisions.

For example, in Clinton v. Goldsmith , the Air Force had dropped from its rolls a servicemember who had served an earlier sentence for engaging in unprotected sex without telling his partners of his HIV-positive status. The servicemember had petitioned the Air Force Court of Criminal Appeals for injunctive relief under the All Writs Act, but that court denied relief, holding that it lacked jurisdiction. The CAAF then granted injunctive relief enjoining the President and other officials from dropping the servicemember from the active duty rolls. The U.S. Supreme Court held that the CAAF had exceeded its jurisdiction in granting injunctive relief because the relief did not involve review of a court-martial decision. In so holding, the Supreme Court rejected the CAAF's argument that jurisdiction was proper because the Air Force's dropping of the servicemember related to conduct at issue in an earlier court-martial proceeding; instead, the Court emphasized that "there is no source of continuing jurisdiction for the CAAF over all actions administering sentences that the CAAF at one time had the power to review."

With respect to appeals from the CAAF, the U.S. Supreme Court has jurisdiction to grant certiorari in four specific circumstances: (1) cases in which a death sentence has been affirmed by the relevant branch's Court of Criminal Appeals; (2) cases that a Judge Advocate General has certified to the CAAF; (3) cases in which the CAAF granted a petition for review; and (4) cases that do not fall in the other categories but in which the CAAF has granted relief. The first two categories represent the two circumstances in which the CAAF must grant appeals. The second category represents cases in which the CAAF has exercised its discretion to grant an appeal. And the final category is a catch-all provision for other cases in which the CAAF might grant relief.

Because the Supreme Court's jurisdiction is limited to these four circumstances, its power to review military cases generally extends only to cases that the CAAF has also reviewed. For this reason, the CAAF's discretion over the acceptance or denial of appeals often functions as a gatekeeper for military appellants' access to Supreme Court review. If the CAAF denies an appeal, the U.S. Supreme Court will typically lack the authority to review the decision. In contrast, criminal appellants in Article III courts have an automatic right of appeal to federal courts of appeals and then a right to petition the Supreme Court for review.

Interactions Between Article I and Article III Courts

The U.S. armed forces have a long history of self-regulation. Except for limited interaction with the U.S. Supreme Court, Article I military courts operate separately from the Article III judicial system. As discussed above, military courts have distinct trial procedures and structures for appellate review. In addition, because military courts' jurisdictional authority arises under Article I rather than Article III, defendants in military cases do not have the benefit of certain Article III safeguards, such as lifetime appointments for judges. In addition, although military defendants are entitled to due process rights under the Fifth Amendment to the Constitution, the Supreme Court has upheld a narrowed interpretation of such rights in the context of military courts.

Furthermore, legal interpretations by Article III courts do not necessarily create binding precedent for Article I courts, and vice versa. The only Article III court holdings that bind military courts are those of the U.S. Supreme Court. However, military courts sometimes reject even Supreme Court precedents as inapplicable in the military context. For example, in United States v. Marcum , the CAAF declined to follow an interpretation of the constitutional right to privacy that the Supreme Court had handed down a short while earlier. In Marcum , a court-martial had convicted a servicemember of various crimes, including non-forcible sodomy. On appeal, the servicemember argued that with respect to the non-forcible sodomy charge, he was protected by a constitutional right to privacy in intimate relations under the Supreme Court case Lawrence v. Texas . However, the CAAF declined to follow Lawrence . The CAAF's rationale for diverging from Supreme Court precedent in Marcum was that constitutional protections "may apply differently to members of the armed forces than they do to civilians." Thus, although "constitutional rights identified by the Supreme Court generally apply to members of the military," such rights do not apply when "by text or scope they are plainly inapplicable."

Similarly, Article III courts are not bound by military courts' decisions. The Supreme Court may consider CAAF decisions or UCMJ provisions as potentially persuasive. For example, the Supreme Court ordered briefs to examine the impact of a military code provision after it handed down its decision in Kennedy v. Louisiana , a case involving the question of a death penalty sentence for a child rapist. In Kennedy , the Supreme Court held that the Eighth Amendment prohibits punishment by death penalty for a defendant who rapes a child but did not cause or intend to cause a child's death. In so holding, the Court emphasized the "national consensus" against the death penalty in such cases. In its petition for rehearing, Louisiana argued that Congress's recent amendment of the UCMJ to include a death penalty punishment in military cases for the rape of a child undermined the Court's "national consensus" argument. However, the Supreme Court decided not to reconsider its Kennedy decision, instead reaffirming its prior ruling with only minor modifications. In its opinion accompanying its denial of rehearing, the Supreme Court disagreed with Louisiana's interpretation of the death penalty language in the UCMJ amendment, but it also emphasized that "authorization of the death penalty in the military sphere does not indicate that the penalty is constitutional in the civilian context."

United States v. Stevenson

United States v. Stevenson highlights two issues relevant to jurisdiction in military cases. First, it raises questions regarding the scope of military courts' jurisdiction over retired servicemembers. Second, it raises a question regarding Supreme Court jurisdiction to review legal questions when the CAAF denied review. The first question was the basis for the Stevenson appellant's petition to the Supreme Court for certiorari. The United States raised the second question in its brief opposing appellant's certiorari petition.

Although the U.S. Supreme Court clearly has jurisdiction over cases in which the CAAF granted review, it is unclear whether the Supreme Court's jurisdiction extends to specific issues that the CAAF declined to address. In Stevenson , Naval Criminal Investigative Service officials had investigated the appellant, a man on the Navy's temporary disability retired list, while he received treatment at a Veterans Affairs hospital. A military court-martial then tried and convicted the appellant for rape. On appeal, the CAAF remanded the case for fact finding regarding blood draws taken while appellee was a patient at the VA hospital.

After the United States Navy-Marine Corps Court of Criminal Appeals affirmed the court-martial's decision on remand, the CAAF granted a second review of the case. However, exercising its discretion, the CAAF limited the issues on appeal to potential Fourth Amendment violations, declining to review the question of the military court's jurisdiction over a man on the temporary disability retired list.

In his petition to the Supreme Court for certiorari, the appellant in Stevenson requested review of only the issue that the CAAF had declined to address—namely, the issue of military courts' jurisdiction over a case involving a person on the temporary disability retired list. In response, the United States argued in its opposing brief that the Supreme Court's appellate review power does not extend to issues that the CAAF declined to review. Thus, because the CAAF had declined to review that portion of the Criminal Court of Appeals' decision, the United States argued that the Supreme Court lacked jurisdiction over the appeal. Ultimately, the Supreme Court declined to hear the case. On remand to the Navy-Marine Corps Court of Criminal Appeals, for the second time, the court set aside both the findings and the sentence and authorized a rehearing. The questions raised by the petition to the Supreme Court for certiorari remain unanswered.

Legislative Proposals to Expand Jurisdiction

Bills introduced during the 111 th Congress, the Equal Justice for Our Military Act of 2010 ( H.R. 569 ) and the Equal Justice for United States Military Personnel Act of 2009 ( S. 357 ), would have expanded the U.S. Supreme Court's appellate jurisdiction over military cases. Specifically, the legislation would have amended the UCMJ to authorize appeals to the Supreme Court in military cases, regardless of the CAAF's acceptance or denial of an appeal. Bill sponsors emphasized the need for the law to address the "disparity" between the broad right to appeal to the Supreme Court in civilian cases, on one hand, and the limited ability to appeal to the Supreme Court in military cases, on the other hand. When introducing S. 357 , Senator Feinstein stated that because "our U.S. service personnel place their lives on the line in defense of American rights[, it] is unacceptable for us to continue to routinely deprive our men and women in uniform one of those rights."

H.R. 569 , reported to the House on July 15, 2010, as amended, included language not found in the companion bill, S. 357 . The amended bill authorized the Supreme Court, through its rules, to prescribe the time limit for application for a writ of certiorari of a decision of the CAAF, or the refusal of the CAAF to grant a petition of review. The bill would have been effective at the conclusion of the 180-day period beginning on the date of enactment and then only to decisions of the CAAF handed down on or after that date. Additionally, the bill provided that the authority of the Supreme Court to prescribe necessary rules shall take effect on the date of enactment of the act. To date, similar legislation has not been introduced in the 112 th Congress.

Conclusion

Courts have recognized compelling justifications for a military justice system that is distinct from Article III courts. For example, in Marcum , the CAAF emphasized the importance of ensuring discipline and obedience in the armed forces. The Marcum court also stressed the military's interest in disciplining servicemembers differently according to their rank. However, it is unclear whether such arguments justify a disparity in access to Supreme Court review, especially in the context of servicemembers no longer on active duty or crimes that exist under both military and civilian laws.

Military cases follow a unique process of appellate review, moving from courts-martial through the following steps: (1) automatic appeals to Courts of Criminal Appeals for each armed forces branch; (2) potential discretionary review by the highest military court, the CAAF; and (3) review by the U.S. Supreme Court in limited circumstances, usually only when the CAAF has also granted review. Legislative proposals in the 111 th Congress would expand Supreme Court jurisdiction over military cases by authorizing review even if the CAAF denies an appeal. If the proposals became law, they would make moot the question highlighted by United States v. Stevenson regarding the Supreme Court's jurisdiction over specific issues that the CAAF had declined to review.