Court-Martial Jurisdiction Over Military-Civilian Hybrids

University of Pennsylvania Law Review FOUNDED 1852 Formerly American Law Register VOL. 112 JANUARY 1964 No. 3 COURT-MTARTIAL JUIRISDICTION OVER MILITARY-CIVILIAN HYBRIDS: RETIRED REGULARS, RESERVISTS, AND DISCHARGED PRISONERS JosEPH W. BIsHop, J:R.t One of the numerous constitutional questions about which the Constitution itself tells us very little is the extent to which persons who are not soldiers or sailors on active duty may be subjected to trial by court-martial. Clause 14 of article 1, section 8, says that Congress may "make Rules for the Government and Regulation of the land and naval Forces;" clause 18 adds that Congress may "make all Laws which shall be necessary and proper" to that end. The fifth amendment exempts from its requirement of grand jury indictment "cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger." The rest is silence. But if the Constitution itself is laconic, or even cryptic, the Supreme Court has in recent years told us a good deal more. Since 1955 the Court has held, without qualifying hedges or ambiguities, that Congress cannot constitutionally authorize a court-martial to try in time of peace, for any offense, any person who is a "civilian." In United States ex rel. Toth v. Quarles,1 it held that a court-martial t Professor of Law, Yale University; Lieutenant Colonel, JAGC, USAR A.B. 1936, Dartmouth College; LL.B. 1940, Harvard University. Member, D.C. Bar. 1350 U.S. 11 (1955). The case held unconstitutional application of Article 3(a) of the Uniform Code of Military Justice, 10 U.S.C. 803(a) (1958), to an honorably discharged soldier who had not retained or reacquired any connection with the military. It should be observed that article 3(a) jurisdiction was thrust upon the army over the strong objection of its Judge Advocate General, who correctly foresaw the Supreme Court's attitude. See Hearings on S. 857 and H.R. 4080 Before a Sub- committee of the Senate Committee on Armed SerAces, 81st Cong., 1st Sess. 256-57 (1949). Hereinafter citations to the Uniform Code of Military Justice will be made solely by article number. Its complete provisions are set forth in 10 U.S.C. §§ 801-940 (1958). (317) 318 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.112:317 cannot try a discharged soldier, who has wholly severed his connection with the armed forces, for an offense committed while he was subject to military jurisdiction. The line of cases starting with Reid v. Covert2 held that a court-martial cannot in peacetime try civilians, whether employees or dependents of military personnel, who accom- pany or serve with the armed forces overseas, for any offense whatso- ever, whether capital or noncapital. But it is a commonplace of constitutional law that whenever one question is settled, another springs up to take its place. It is now clear that civilians cannot in peacetime be court-martialed; but who is a civilian, and how does a court tell one when it sees him? Among the people whom Congress, by Article 2 of the Uniform Code of Military Justice, has purported to subject to military jurisdiction, are several categories whose proper classification may puzzle the courts. They are certainly not obvious members of the armed forces, as are soldiers on active duty; on the other hand they are not "full-fledged" civilians. Three of these categories-retired regulars, certain reservists, and military prisoners with executed dis- honorable or bad-conduct discharges-present the problem of classification 8 in acute form. It may be that the questions raised by them and their trespasses cannot be answered simply by reading the opinions (majority, plurality, and concurring) in Toth, Covert, et al., and then, with the wisdom thereby acquired, examining the individual to see whether, on balance, he resembles a civilian more than he does a soldier. Does he always wear a fedora, or may he on occasion wear the cap, garrison? Is his underwear purchased from Macy's or the Quartermaster? Is his pay check, if any, signed by the Finance Officer? These tests may be significant, but they do not, somehow, seem decisive. Perhaps there are other relevant factors, such as the offense charged and the punishment inflicted, for these, too, may be essentially civilian or essentially military. In short, examination should be made of the necessities and nature of the present military 2354 U.S. 1 (1957). Following Covert were: Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960) ; Grisham v. Hagan, 361 U.S. 278 (1960) ; McElroy v. United States ex rel. Guagliardo, 361 U.S. 281 (1960). See generally Girard, The Constitution and Court-Martial of Civilians Accompanying the Armed Forces-A PreliminaryAnalysis, 13 STAN. L. RF-v. 461 (1961). These cases held unconstitutional article 2(11) of the Uniform Code. 3 Article 2(1) covers, inter alia, reservists ordered to active duty who have failed to enter upon such duty; 2(4), retired regulars entitled to receive pay; 2(6), members of the Navy's Fleet and Marine Corps Reserves; and 2(7), dishonorably discharged prisoners in military custody. Other groups might, in theory, raise the question, but the military authorities have not attempted to try them, and are not likely to do so. These include reservists on inactive duty training, article 2(3), retired reservists receiving hospitalization from the armed forces, article 2(5), and certain civilian employees of the Government when assigned to and serving with the armed forces, article 2(8). MILITARY-CIVILIAN HYBRIDS establishment, and of the long history of military jurisdiction over persons and offenses not purely military. I. HISTORICAL VIEW OF COURT-MARTIAL JURISDICTION The common law, and the Anglo-American polity in general, have for some centuries been marked by a peculiar, but very natural, ambivalence toward the military. On the one hand, a standing army is a standing menance to republican institutions and civil freedom. English and American statesmen of the seventeenth and eighteenth centuries had not far to look in time or space to find examples of that proposition. [T]he liberties of Rome proved the final victim to her military triumphs, and . the liberties of Europe, as far as they ever existed, have, with few exceptions, been the price of her military establishments. A standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision. On the smallest scale, it has its inconveniences. On an extensive scale, its consequences may be fatal. On any scale, it is an object of laudable circumspection and precaution.4 On the other hand, there imdoubtedly were (and are) times when the presence of large, well-trained, well-equipped, and well-disciplined armed forces is intensely comforting. The disciplined armies always kept on foot on the continent of Europe, though they bear a malignant aspect to liberty and economy, have, notwithstanding, been productive of the signal advantage of rendering sudden conquests impractic- able, and of preventing that rapid desolation, which used to mark the progress of war, prior to their introduction.' The dilemma is most acute when the military asserts some degree of control over civilians, specifically when military tribunals exercise criminal jurisdiction over persons who are not soldiers. It is self- evident that such jurisdiction, however necessary it may sometimes seem, is pro tanto a supersession of, and an encroachment upon, civilian government, without (in the circumstances here considered) the excuse of war or other emergency. In addition, the major purpose of military justice has always been deterrence.6 It has traditionally 4 THE FEDERALIST No. 41 (Madison). 5 THE FEDERALIST No. 8 (Hamilton). 6 See, e.g., the testimony of Colonel Frederick Bernays Wiener, who won Covert and other cases cited in note 2 supra, and who may be described as the contemporary equivalent of Colonel Winthrop as an experton military.law and.its history, in Hear- 320 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol.112:317 placed primary emphasis on the swift and severe suppression of license and insubordination. The pious doctrine that it is better that ninety- nine guilty men go free than that one innocent be convicted is not easily squared with the demands of military discipline. If a soldier who runs away is shot, in Voltaire's expressive phrase, "pour en- courager les autres," the heartening effect is sadly diminished if ninety-nine out of a hundred deserters get away. The result of this difference in objectives and approach, as seen by Mr. Justice Black, a frequent and articulate spokesman for those who are opposed to any expansion of military jurisdiction, is that "traditionally, military justice has been a rough form of justice, emphasizing summary pro- cedures, speedy convictions and stern penalties . " Therefore, he concludes, "military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts." 8 This jaundiced view of courts-martial is, of course, of some antiquity,' and until comparatively recent times was pretty well supported by the facts."0 Justice Black's strictures seem somewhat excessive, as he himself recognized, in the light of the present-day Uniform Code of Military Justice. In theory, the Uni- form Code confers on the accused in a court-martial most of the im- portant constitutional rights, other than the grand and petit juries, which he would have in a civilian criminal court." In practice, as ings on S. 857 Before a Subcommittee of the Senate Committee on Armed Services, 81st Cong., 1st Sess.

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