Civilian Courts and the Military Justice System: Collateral Review of Courts-Martial

Authorby Majar Richard D. Rosen

Ths article examines the historical relathhip between the civilian and military cam, with emphasis on arrent dewlop-ments in the law. The f e h l cwum do not pre.sently apply a uniform standnrdofcollateTa1 review to militarypmeediqp. This d i w w e in approach PTejYdices the rights of military chiman&and threatens to undermine the vitality of the military jwtice syston. l%is author propases a standard ofcollatoal inyuiry that wouldstrikeabalance between therolesofthefederaljudicianJand the military cam.

How much. . . is it to be regretted that a set of men, whose bravery has so often preserved the liberties of their country, should be reduced to a state of servitude in the midst of a nation of freemen!'

A civilian trial . , . is held in an atmosphere conducive to the protection of individual rights, while a military trial is marked by the age-old manifest destiny of retributive jus-tice.l


    Historically, the relationship between the civilian courts and the military justice sptem has been marked with mistrust,g misunder-

    1W Blacksfane, Cornmentarlei *416'0 Caliahan v Parker, 385 D S 258, 266 (1868) (footnote omated).

    Vser, e g , Sehleringer Y Councilman. 420 US 738, 762-66 (19751 (Brenoan, J , dssentmg). 0 Callahm VQ Parker. 385 U S 258, 265-66 (1868): United States #z ?el Tofh Y Quarks. 350 C S. 11. 22-23 (19551

    standing,* and even antipathy.6 Until recently, however, civilian judicial intrusion into court-martial proceedings wm relatively circumscribed and predictable.' Prior to World War 11, "there was a nearly monolithic harmony"' with the proposition that civil court review of court-martial proceedings, being solely coiiateral in char-acter,B must be limited to technical issues of junsdiction; that is, whether the courtmartiai wm properly convened and constituted. whether it had jurisdiction over the subjectmatter and the pemn of the accused, and whether the sentence adjudged was duly approved and authorized by iaw.O With the expansion of federal habeas relief from civilian criminal convictions immediately preceding World War ll,lo the harmony began to dissolve. Relying on the widening scope of inquiry in civilian habeas corpus, a number of lower federal courts reviewed allegations of constitutional deprivations in coliateral chaiienges to court-martial convictions." The harmony diwpwared al-

    together in 1963 when the Supreme Court, in Bumv. Wilson,lz

    "officially" opened collateral attacks an military sentences to eonstitutional

    in Bum,a plurality decision, the Court acknowledged that ser- wce members have constitutional rights," but held that civiimn courts could review only those constitutional claims that the military had not "fully and fairly" The Court, however, pmvided little direction for applying this "full and fair" consideration test,le causing considerable confusion among the iower federal courts Consequently, the iawer courts took diverse approaches to constitutional challenges to military convictions,'s ranging from strict refusal to review issues considered by the military courtsln to de novo review of constitutional The Supreme Court added to the confusion by its virtual silence in the matter, despite being presented with several opportunities to clanfy Its

    In recent yean, while some federal courts continue to adhere, at least in part, to Bum,s' or attempt to miculate other restrictions on the scope of collateral review,zg a growing number of courts have entertained collateral challenges to courts-martial without any ap-

    '*346 U.S 137 (18531.1SJurf three years before IUdecision mdum. lhe Court disapproved the extension of habeas review to constitutional clams, holding that ' ltlhe single mqury. the test.

    L S. 103. 111 (1950)

    (quofmg Unlfed States 7

    20 Wayne L Rev 810, 824 (18741.

    Courts, 76 Yale L.J 380. 387 (18661

    "See. e g , "ore, Ctvilion Court Ra,mio of Cart MmtidAdjudicot,o, 68 Colum L Rev 1269, 1262 (18681, helopmole in the Law-Federal Habeas Cmpus, 83 Haw L. Rev 1038, 1217-18 (1868) [hereinafter cited as ha@& m the Lax-Federal Habeas Cmpusl. Kofe, Cwzlion Raze". o/Mzliiory H a h a Cmpus Peftitm' Is JulmeBetng S m d " 44 Fordham L Rev 1228, 1235-36 (1876).

    >*E I,

    Palomera v Taylor, 344 F 26 837 (10th Cir I, cm dentad, 382 U S 846 (18651

    '*Eg, Application of Srapley, 346 F Supp 316 (D CIah ig66)

    Parkerv Levy. 417 U.S 733 (1874). reuP478F 26773(3d C r 1873); United States v Augenbllck, 383 U S 348 (18691. ?a,'g 377 F 26 6% (Ct CI 18671, and rab sub nom Juhl Y United States, 383 F 26 IW8 (Ct CI 1867)

    '*E.g.. Bowllng Y United States. 713 F 2d 1518 (Fed. Cu 1883). Kehrli Y Sprinkle, 524 F 2d 328 (10th Ca. 18751. cer1 denied. 426 U S 860 (18761.

    '#Eg, Calley Y Csllax.ay. 518 F 2d 184 (5th Clr I (en bane], cmt. denwd, 421 C S

    811 (1875)

    parent iimitatioma4 There 1s little to distinguish the latter line of cases from those involving direct appeals.86

    This trend is disturbing for a number af reasons First, because of the divergent approaches adopted by the federal courts, the scope of review accorded a claim will be dependent upon the particular district or circuit in which the claimant files his petition. In habea corpus cases, this situs will be the district or circuit in which the claimant, through no choice of his own, happens to be confined.26 Moreover, courts that undertake unlimited de novo review of constitutional claims, regardless of the prior proceedings and determmatmns of the military tnbunals, fail to accord the deference due the military courts by virtue of their independent constitutional source2'


    Schlomann I Ralrion 681 F 26 401 (8th Cir 1882). ce?I denied 103 S i f 1229 (1983)

    "Indeed, in Cuher Y Secretar~ of the Air Force. 658 F 26 623 ID C Cii I8771 Judge Lerenthal in a concurring opmm wrote that. where B claimant uzs not afforded mditary appellate C D U ~ revie* because ha sentence was nor Eiiffrclently severe I feel free to approach [the claimant's e~nirnurmnal ~laims] almost a? though I *ere amemberoffhecourfof Milltar) Appeals undertakingdirect iejleuId at 631 (Leuenthal J , coneurnngl

    "The lack of unlforrn~ty among the courts m asressrng the pmper scope of pre Bunu haheas corpus review of court-martial c~nvi~rmn~ua;l the source of some criticism See Bishop mpm note 6. at 40-43 For example ~n Anthony 5 Hunter. 71 F Supp 823(D Kan 1847) ~millfaiypri~~nei

    Private Anthon) succesrfullyobtam ed his release on habeas corpur because of elmis in his court-martial proceedings amounting to B denial of due process His co-accused, Private Arnold, who -ai Wed jointly with Anthony but who happened to be rmprisoned in a different judicial district w u denied relief beesuse the court refused to extend tti ~ e j l e ~ beyond

    teehn,caljuriidicrion Arnold b COEBT~.

    75 F Supp 47 13 D Tex 1848) The present disparity among the C O U ~ ~ J

    concervably could lead to similar aburer

    lribunal IS an Article I leglslarii e court wifhjur ower created an defined by Arfirle Ill ' Gaoi

    Congreri has the power to jxo"de far the trial and punishment of militar~and na\d offenres I" the manner then and n n ~ marticed b\

    clvlllred naflons. and that the p o ~ e r to do so 8s glren wlfhoul ani

    conne~rmnbetween II and the 36 ~iflcleof the C~nifiturion defining the

    iudieial _we/ of the Cniled States. indeed that the two mnel3 are en

    "tirely inhependent of each other \orthem Ploellne Consrr Cn ,

    Marathon P l ~ e

    Llne Ca 73 L Ed Zd 598 612 (18821 (quoting Dynes v Hoover. 61 C S (20 Haw 165, 79 (1858)) See nlso Burns t Wxlson 346 L S 137, 139-40019531 Kurtz, MofCm 115 L S 487 600(18851 Swgenprally Rartker ,

    Goldberg 453 US 57 66-67 ll981j. Orloff % Willoughbi 345 5 83 81 Conpess for the firsf time m the nation's history, recently extended to the SupremeCoufl the powerto dire~tlyre~iewfhedecisionsofthe Court of Military AP peak through writ9 of cenmrsii Military Juirl~e Act of 1983. Pub L Yo 88.208, 5

    1. 97 Stat. 1383 The possible effect of the Act on future ~~llaferal

      challenger 18

      discussed below Ser text accompanying notes 467-84 WIO

      and their expertise in tailoring individual nghts to military requirements.18

      In light of the traditional judicial mistmst and antipathy towards the miiitary justice system, unlimited federal court review of court-martial convictions rmght well emasculate the role of the military courts in balancing the rights of senice members against the needs of the On the other hand, federal judges are the final arbiters of federal constitutional They should be afforded a role in the resolution of constitutional claims raised in collateral attacks on courts-martial beyond merely ascertaining whether the military courts considered the claims.8' While it is apparent that a nuddle

      11 'DeabngwithareasaflawpecvIisrrothemilitaryhranehes,theCovnoiM~htary

      Appeals' judgments ace nmmall) entitled to seat deference." Middendorf v Henry. 425 E 8 25, 43 (1876) See eiso Burns v. Wilson 346 U.S 137, 140 (1953J. Calley V.Callaway, 619 F 26 184. 200-03 (5th Ckr.), 0m1. denud, 425 U S 911 (1975). Hodgea Y.

      Brawn. 500 F Supp. 26, 28 (E.D. Pa 1984, W d , 649 F 2d 869 (3d Clr 1981). Robb Y.

      Knited Stales, 456 F Zd 768 (Cf CI. 1972) Seegmnerally Note, Czr.%Bon Cmrt Rak' OJ Covrf Nartral Aqiud?Lcatim, 68 Colum. L. Rer. 1269, 1278 (1969). helqrments tn L b

      LOu-Fedmal Hobem Carpus, mpro note 18, 81 1225, late, FedrralHabear C o w s Jumdwtton Ole? CourtMarlral Pmecdinya. 20 Wayne L Rev 818.831-32 (1874) Note. Sentcnnen m Czrillan CourB.

      76 Yale L J 380. 400-04 (1966) But see

      Comment Federal C~~,tllan

      Court lnlenmnlron m Pendzng Coum-Mcrttol, mpro note 5. at 467-68 (argues military courts have no expenise to add to the ~esoiut~~n of

      conitrturmna1 I3B"es).

      In Lhls regard the Court of Military Appeals generally has applied the proie~imn~ of

      the Blll of Rlghts to sewice members, Courtney \, Willlami. 1 M J 267. 270 (C M A ents dictate a different rule See, e y , Knifed 1861) (elimmatmg Oath requirement for search n a number of different context8 h a...

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