At the end of the last term, the Supreme Court decided in a 7-2 opinion that the high court exercises appellate jurisdiction over the United States’ military justice system—a system it says begins at the court-martial level, or trial level, through each Service’s Court of Criminal Appeals, up to the court of Appeals for the Armed Forces (CAAF), a tribunal with five president-appointed, Senate-confirmed civilian judges. The majority’s opinion in that case, Ortiz v. United States (argued and briefed as Dalmazzi v. U.S.), rests on its view that this “integrated court-martial system” is one that “closely resembles civilian structures of justice” and therefore has the same amount of “judicial character” that other non-Article III courts exhibit, which the Supreme Court has long established as part of its jurisdiction. Because of how the court defended its jurisdiction, which I describe below, this decision carries non-obvious, but somber, implications for the court’s precedent—which before Ortiz, had cleanly segregated military criminal justice from its civilian cousin. It may, as a result, inadvertently undermine the conventional arguments from within the military defending a muscular, quasi-judicial role for commanding officers.

Executive vs. Judicial Character of the Military Court System

To those practicing or observing military justice, the Ortiz result seems both uncontroversial and foreordained, as the court has reviewed CAAF cases nine times since the late 1980s without questioning its own statutory or constitutional basis for those reviews. But University of Virginia law professor Aditya Bamzai’s amicus brief and oral arguments in Ortiz suddenly compelled the court to confront this jurisdictional authority for the first time. Bamzai observes that the “integrated court-martial system” that climaxes in the CAAF arises from within the executive branch. This is uncontroversial: The military’s function as the organ of government responsible for executing national defense relies on the good order and discipline of its members and is under the authority of the president as commander in chief. The novel argument came next. Under a theory derived from Marbury v. Madison, he reasoned, an executive decision by a body such as CAAF is no different than then-Secretary of State James Madison’s decision to not convey the justice-of-the-peace commission William Marbury demanded (“for constitutional purposes, the members of the CAAF thus stand on equal footing with James Madison in Marbury,” Bamzai wrote). By analogy, then, since Justice Marshall explained that the court had no such Article III original jurisdiction to issue the writ Marbury sought, because the case or “cause” had not seen any lower appellate review, the court should have refused to hear Ortiz’s writ of certiorari from the CAAF. Bamzai argued that these military justice cases are not really cases at all, as understood by the Framers in drafting Article III or by Chief Justice Marshall. Instead, they are merely exercises in executive power, by executive branch officers, and not a reviewable exercise in judicial power.

There is little room to disagree that Bamzai’s arguments reflect a jurisdictional position that is, in the court’s words, both “new” and “serious.” His strategy aimed at convincing the court that the CAAF judges are executive branch officers, not judges in the sense of Article III, because they lack the indicia of other Article III judges (life tenure, un-diminishable salaries, etc.) and because the tribunal on which they sit is akin to executive branch panels addressing quintessentially executive branch prerogatives. Bamzai’s brief cites cases that predate the Uniform Code of Military Justice (UCMJ) involving military commissions from the Civil War, the Spanish-American War, World War II (citing Ex parte Vallandingham, In re Vidal, and In re Yamashita respectively) and compares the CAAF to the National Labor Relations Board, over which the Supreme Court exerts no original review (for the latter analogy, he refers an argument made by Richard Fallon in his treatise on Federal Courts). “Given that its members lack Article III’s structural protections for judges,” Bamzai wrote, “that conclusion is unassailable. The CAAF and its members do not exercise ‘judicial Power’ from which this Court may exercise direct review, but rather the ‘executive Power’ of the Executive Branch” (Brief of Amicus Curiae at 23).

In support, he offers us the works of two respected military law theorists—Col. William Winthrop and Gen. George Davis—both of whom noted that military law ought to be distinguished from civilian judicial work in both substance and procedure. (I would note that Col. Winthrop—who was also cited favorably by the majority in Ortiz—first opined on this matter before the Wright brothers flew, and Davis’s treatise was published during the McKinley administration. The modern military justice system was constituted by the enactment of the UCMJ in 1951 and the enactment of 28 U.S.C. § 1259, in 1983, giving the Supreme Court appellate authority over the CAAF.) So, Bamzai argued, the mere fact that a statute purports to create a “court” does not, by its words alone, make it a court that exercises judicial power in the sense intended by Article III. In essence, he wanted the court to assert, at least with respect to tribunals created to work within other Branches, that “it is substance, not form, that matters” as the defining characteristics of a court.

It is peculiar then that the amicus brief does not offer a compelling set of features about the military justice system that could have strengthened the position that its “courts” act as mere arms of the executive branch. The most striking feature, long recognized by the Supreme Court, is the fundamental role the lay commanding officer plays in this system. This “substance” might have undercut the basis on which the court erected its primary support for the judicial character of the “integrated court-martial system” and the CAAF.

The Majority’s Philosophical Defense of the CAAF’s Judicial Nature

Justice Elena Kagan’s opinion defended the judicial nature of courts-martial and appellate processes by reciting a half-dozen examples where the military system is similar to a typical civilian criminal regimes in its most salient features (e.g., due process protections for the accused, an appellate review system, a stable body of governing case and statutory law, the res judicata effect of its decisions, offenses—and punishments—that are indistinguishable from civilian jurisdictions) (Slip Opinion at 8-9). The court writes, “courts-martial have operated as instruments of military justice, not (as the dissent would have it) mere ‘military command.’ ... As one scholar has noted, courts-martial ‘have long been understood to exercise ‘judicial’ power of the same kind wielded by civilian courts” (Slip Opinion at 10).

In a subsequent footnote (Slip Opinion at 11, note 5), the court again remarks:

the independent adjudicative nature of courts-martial is not inconsistent with their disciplinary function, as the dissent claims. By adjudicating criminal charges against service members, courts-martial of course help to keep troops in line. But the way they do so—in comparison to, say, a commander in the field—is fundamentally judicial.

And, after referring to Colonel Winthrop’s treatise, Kagan writes:

when a military judge convicts a service member and imposes punishment ... he is not meting out extrajudicial discipline. He is acting as a judge, in strict compliance with legal rules and principles—rather than as an arm of military command.

Though the primary holding of the court in Ortiz addresses whether the CAAF correctly decided that a Court of Criminal Appeals judge (an officer on active duty) could simultaneously serve as a judge on the Court of Military Commission Review, it would be mistaken to diminish the majority’s recital of UCMJ characteristics as mere dicta. It is critical to Justice Kagan’s rebuttal to both Justice Samuel Alito’s dissent and Bamzai’s arguments.

What Alito and Bamzai could have presented, but did not, was a starkly different perspective on the “character” of military justice, based not solely on what the pinnacle of that system looks like relative to other executive branch tribunals, but on how a “case,” like that of Ortiz—an airman convicted of possessing and distributing child pornography—ever entered into the stream that emptied into the CAAF’s pool in the first place. This would have turned the attention to the quasi-judicial and prosecutorial function that a lay officer exercises when executing his or her executive responsibilities as a commander.

Command responsibility defines the system’s character

In fiscal 2017, the military convened 1,649 courts-martial, with a conviction rate of 77 percent. That means at least 1,649 times, an officer other than a judge advocate , in a command billet, made a “command decision” to charge a subordinate with an offense or series of offenses under the UCMJ. These charging decisions are available to any officer in command—which, in the Army for example—may be as junior and inexperienced as a captain in command of a company or detachment. (This is why the rules permit them to seek guidance from their senior leaders and counsel from judge advocates before they do so.) It also means that at least 1,649 times, an officer other than a judge advocate (upon legal advice) made a “command decision” to refer that accused service-member to a criminal trial of the facts where a potential outcome is the deprivation of life, liberty or property. Only commanders senior enough to be assigned court-martial convening authority have the decisional responsibility to commit that case to a trial of the facts before a neutral and chain-of-command-independent military judge. In the Army, for example, special and general court-martial convening authorities are typically colonels in command of brigades, major generals in command of divisions, and lieutenant generals in command of corps—but there are other, less prevalent examples of court-martial convening authorities too. If the accused elects to be tried by a jury-like “panel” rather than by judge alone, that panel was pre-selected (before the accused’s case was up for a referral decision) by a convening authority. Moreover, commanders, wearing their convening-authority hat, approve or disapprove government and defense requests for expert assistance and may negotiate and accept, on behalf of the government, offers to plead guilty in pretrial agreements. That is to say, commanding officers have a lot of power over what justice looks like within the military’s criminal justice system.

Under military law, commanders decide, in many instances, whether an allegation of wrongdoing is to be investigated at all, and whether to send that allegation to military law enforcement for investigation. In complex cases, like homicide or an economic crime, commanders are encouraged to refer the case to professional investigators (in sexual assault allegations, commanders now have no such discretion—any reported allegation becomes an open law enforcement case). In cases arising in the local community—outside of base, camp, post, installation—local law enforcement authorities generally have the right of first refusal to investigate and prosecute the suspect. Commanders have the discretion to place a suspect under pretrial restraints (sometimes called “conditions on liberty”) that restrict the accused’s freedom to leave defined areas or take certain actions without the commander’s notice and approval. Commanders have the discretion to order a suspect into pretrial confinement for up to seven days with no independent, neutral review of that decision. Commanders then have the discretion (except in sexual assault cases) to “dispose” of the matter in a manner they believe to be right and just. Rule for Court-Martial 306 discusses this discretion in detail:

The disposition decision is one of the most important and difficult decisions facing a commander. Many factors must be taken into consideration and balanced, including, to the extent practicable, the nature of the offenses, any mitigating or extenuating circumstances, the views of the victim as to disposition, any recommendations made by subordinate commanders, the interest of justice, military exigencies, and the effect of the decision on the accused and the command. The goal should be a disposition that is warranted, appropriate, and fair.

The rule goes on to list several other considerations to guide the lay officer in making this inherently-prosecutorial decision:

the extent of the harm caused by the offense, including the offense’s effect on morale, health, safety, welfare, and discipline; ... availability and admissibility of evidence; ... the willingness of the victim or others to testify; ... possible improper motives or biases of the person(s) making the allegation(s); ... appropriateness of the authorized punishment to the particular accused or offense.

The menu of options, considering these factors, is long. The commander may take no action, she may direct “non-judicial punishment” (a system intended for minor offenses, that provides limited due process, exposes the accused to limited punishments, and that the accused may turn down in favor of trial by court-martial), she may instead opt to impose “administrative corrective measures” (e.g., admonishments, written reprimands, transfers), or she may charge the servicemember with violations of the UCMJ, just as Ortiz’s commander opted to do.

By any reasonable reading of these rules, no accused servicemember ever enjoys access to those half-dozen features of due process that Justice Kagan and the majority highlight without an enforceable decision by a commanding officer. This implies an intimate and necessary judicial function for the commander. But it would be fair to object to this implication. Looking at the nature of the available actions a commander could take, they are not so different than a prosecutor working for a U.S. attorney under Justice Department regulations or the county district attorney. Indeed, the Manual for Courts-Martial mentions that rule 306 disposition decision-factors are based on a military context application of the American Bar Association Standards for the “Prosecution Function.” Note, however, that the manual drafters tell us these guidelines are adjusted to reflect the “practical considerations” driven by distinctions between military life and civilian life (See Manual for Courts-Martial (2016), Analysis of the Rules for Courts-Martial, page A21-21).

The military’s regulations articulate the principle behind this grant. The preamble to the Manual for Courts-Martial, for example, says:

The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.

In the Army’s regulation that defines and describes the nature of command responsibility, there is a not-so-subtle link between the UCMJ and the “purpose of military discipline” related to the “controls and obligations imposed on them by virtue of their military Service” (see Army Regulation 600-20, para. 1-5c.(4)(b)). Furthermore, “[c]ommanders are responsible for everything their command does or fails to do” (id., para. 2-1b.). Congress, not just the president, weighs in on the scale and scope of this responsibility. Section 3583 of Title 10 of the United States Code, detailing the requirements for a commanding officer’s exemplary conduct, reads:

All commanding officers and others in authority in the Army are required ... [t]o show in themselves a good example of virtue, honor, patriotism, and subordination ... [t]o be vigilant in inspecting the conduct of all persons who are placed under their command, ... [t]o guard against and suppress all dissolute and immoral practices, and to correct, according to the laws and regulations of the Army, all persons who are guilty of them, ... [t]o take all necessary and proper measures, under the laws, regulations, and customs of the Army, [and] [t]o promote and safeguard the morale, the physical well-being, and the general welfare of the officers and enlisted persons under their command or charge.

SCOTUS’s Precedent: Military Community v. the Civilian Community

But this important distinguishing feature about military justice has also been expounded, and defended, by the Supreme Court. In Parker v. Levy (1974), a case as fundamental to the review of substantive military criminal law as Marbury v. Madison is to judicial review, the court upheld the conviction of a captain for violating several UCMJ articles that—when applied to his conduct—look like restraints the servicemember’s First Amendment rights. In Parker, the court fully embraced that military and civilian criminal justice systems are—by virtue of what they intend to do and under what conditions they operate—necessarily and justly different. For example, “the armed forces depend on a command structure that, at times, must commit men to combat”—one of the “other considerations that must be weighed.” Speaking to the freedom of speech, the court wrote:

[T]he different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it.

This view echoes sentiments from respected military commanders dating back at least to Gen. William Tecumseh Sherman, who—as the Army’s Commanding General—told Congress in 1879:

it would be a grave error if by negligence we permit the military law to become emasculated by allowing lawyers to inject into the principles derived from their practice in the civil courts, which belong to a totally different system of jurisprudence . . . the object of military law is to govern armies if strong men, so as to be capable of exercising the largest measure of force at the will of the nation.

The Parker court also cited approvingly to two cases from 1953, after the UCMJ had been enacted: Orloff v. Willoughby, quoting that the military community requires “a separate discipline from that of the civilian”; and Burns v. Wilson, for the proposition that the “rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty.” Moreover, Burns described military law as “a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.”

The court in Parker said:

[t]he differences noted by this settled line of authority, first between the military community and the civilian community, and second between military law and civilian law, continue in the present day under the Uniform Code of Military Justice. That Code cannot be equated to a civilian code.

Fundamentally, therefore, the court’s argument was premised on two related features inapplicable to any civilian system of justice. First, the military justice system structures, by how it empowers commanders, the relationship between the government and military member as an employer to employee, not just as sovereign to a citizen. Second, the military justice system penalizes acts or omissions not criminalized by civilian law (e.g., fraudulent enlistment, desertion, disrespect toward a superior commissioned officer, dereliction of duty, failure to obey an order or regulation, misbehavior before the enemy, “conduct unbecoming an officer and a gentleman”). Without the first feature (essentially, the commander’s need to enforce among his or her subordinates good order and discipline in context of preparing, training, or executing military operations), there is no plausible justification for the second.

Nevertheless, this acknowledgement—saying the military’s justice system is essentially separate but equal—gets muddier when we look at Schlesinger v. Councilman, coming on the heels of Parker and largely accepting that case’s description of military justice. While not addressing the ultimate jurisdiction problem, Schlesinger addressed whether a federal district court could enjoin court-martial proceedings before the case is tried. In defending a largely hands-off approach to equitable intervention into military justice (and not questioning its ultimate jurisdiction), Schlesinger analogized courts-martial to state court criminal proceedings, a fellow “coordinate judicial system.” In other words, the court believed that, just like state courts, “it must be assumed that the military court system will vindicate servicemen’s constitutional rights” because it is a “system established by Congress and carefully designed to protect not only military interests, but his legitimate interests as well.” Justice Kagan makes the same analogy in Ortiz. But what marks Schlesinger as particularly noteworthy now in light of Ortiz is how it justifies its “federalism-like” approach, to adapt a term from Steve Vladeck’s recent essay). Even more so than for state criminal trials, the court disfavored equitable intervention because of the “unique military exigencies” for which this separate criminal code exists (again, emphasizing Parker). Ortiz, on the other hand, analogizes the military justice system to that of state courts but eschews any mention of “unique military exigencies” and focuses on the due process similarities they share with modern courts-martial.

Implications

The court in Ortiz did what Parker said not to do. It explicitly equated the military justice system (including the UCMJ) to civilian codes. It appears that the Ortiz court missed or ignored this critical characterization of military criminal law in its own jurisprudence, somehow finding the role of the commander to be irrelevant to the “character” of the military justice system atop which the CAAF sits in judgment. It also appears that Alito and Bamzai missed an opportunity to exploit the court’s own precedent about the discipline-centric, commander-driven, “integrated court-martial system,” not to mention the uncontested rules and regulations for how that system runs, as an alternative to the features Justice Kagan chose to highlight. Recall that part of the court’s proof of CAAF’s judicial character was the fact that the system includes a “vast swath of offenses, including garden-variety crimes unrelated to military service.” This proof is rendered less persuasive when we notice it ignores the vast swath of offenses that are clearly, and only, related to military service. Rather than argue dismissively that the CAAF is literally robed in “court-like ... adornments,” as Justice Alito did, the better argument against that court’s judicial character would have emphasized the two features of military justice undergirding the court’s logic in Parker and Schlesinger.

Finally, the arguments put forth in Ortiz should concern to those whose job it is to defend the intimate role that commanders have under UCMJ (in other than sexual assault cases). From public congressional testimony offered by the service chiefs and their senior judge advocates general, these defenses generally rely on a few propositions. First, crimes (any crimes) committed by servicemembers necessarily degrade unit “readiness” or its ability to accomplish its national security functions. But while offenses like absence without leave, drunkenness on duty, and mutiny and sedition clearly do impact mission accomplishment, the effect of crimes not intrinsically related to military functions (like housebreaking, fraud, and extortion) is less obvious. For this reason, defenders of the majority view offer a second value proposition: Commanders need to retain their role in order to encourage “trust” from their subordinates. In other words, indiscipline—especially harm caused by one servicemember against another—will result in serious people with serious authority taking the matter very seriously. Without this trust, the argument goes, the commander is unable to generate and sustain unit cohesion or troop morale necessary for mission accomplishment. Third, without that trust and without swift adjudication, commanders cannot wield the deterrent power of the UCMJ. This would suggest there is no point to a UCMJ if commanders are not its active managers. These contemporary arguments are not that far off from those of the traditional defenders of the status quo like Gen. Sherman quoted above. Before the dramatic reshaping (the “civilianization”) of military law with the enactment of the UCMJ, the conventional view held that a court-martial is more like a commander’s weapon against the insurgency of criminal activity in the ranks than a forum in which due process permits “justice” to happen.

Departing from those arguments, the court in Ortiz stresses that this system is primarily an “instrument of justice” and expressly says it is “not” an “instrument of command.” When the opinion states that “courts-martial of course help to keep troops in line, but . . . ,” it unmistakably suggests that the majority now believes that the fundamental purpose of military justice is justice, in the same substantial way that the purpose of Ohio’s criminal code is justice—implicitly rejecting the rationale behind Parker, Burns, and Orlof. If so, the primary purpose cannot be the commander’s need for discipline. Otherwise, there would be little advantage in opening the court-martial doors to prosecuting even more servicemembers for criminal acts completely unrelated to military service, as the court did in Solorio v. United States in 1987. The court seems to be saying that the two purposes are related but not equal, with justice laying the superior claim over “good order and discipline” because the latter is merely incidental or a byproduct of a system of rules and laws essentially of the same character as the civilian criminal courts. And well-worn tradition is certainly no bar to reconsidering the historical function of the commander. As the court said in Schlesinger, “ancient lineage, particularly if sprung from circumstances no longer existent, [does not] establish the contemporary utility of a rule.” We may take the recent, dramatic changes to the UCMJ by the Military Justice Act of 2016 as further “civilianization” of military law and circumstantial evidence that the circumstances once justifying the ancient lineage of the commander’s judicial power are slowly waning.

If the court is serious that commanders do not play a necessary function in making this system “judicial” in character, and that commanders’ valid reasons for good order and discipline are of a secondary consideration, then arguably there is no practical or philosophically sound reason for keeping commanders in the military justice decision loop at all, replacing them with either judge advocates or civilian criminal justice institutions. Ordering searches and seizures, compelling pretrial confinement, preferring and referring charges, convening courts-martial, and selecting panel members are now on the table as potential areas in which commanders should see their discretionary power (their “command decision” authority over legal matters) ebb, if we take the court’s meaning to its natural conclusion.

Even though this is not the holding of the case or a rule that rings with precedential value, the Ortiz argument surely does give opponents of the current structure a good argument for changing it, and should cause us to question whether Parker remains authoritative on the meaning and purpose of military law. And as Vladeck’s essay suggested, Ortiz may be a “harbinger of increased interest in military justice by the Justices themselves.” (Not an unwelcome development, given the range of ways in which the Constitution is said, by the CAAF, to apply differently to this separate “community.”) These are the unintended consequences of the court’s defense of its jurisdiction over the CAAF and was a missed opportunity for Alito and Bamzai to remind the court of its own entrenched characterization of military criminal law.

***

The opinions contained here do not reflect the official positions of the Army or the Judge Advocate General’s Corps.