The Constitution. the United States Court of Military Appeals and the Future

• Author: By Captain John T. Willis
• Pages: 03

In Volume 55, XilitarU Law Reuiew, Captain Willis studied the creation and growth of the United States Court of ,Militaru Aoaeals. In this wtiele he examines the Court's tveaiment of eonstitationnl issues and its search far n constitutional phzlosophy. Finding disturbing evidence of judicial atrophy in recent years, the author suggests a varietg of remedies to enhance the Court's reputation and its role as cimlian watchdog mer the military itatice system.

I. INTRODUCTION

After outlining the origin and operation of the United States Court of Military Appeals in a previous article, I hinted that further examination of the decisions and structure of the Court would reveal a need for its revitalization.: Far several reasons, the Court of Military Appeals decisions of constitutional signifiemee provide an excellent springboard into a discussion of possible changes in the "Military Supreme Court." First, there has been a plethora of nates, comments, and articles on the constitutional rights of servicemen which generally compare individual rights in military and civilian criminal proceedings.* Second, the Court

*The opinions and conclusions presented herein are those of the author and do not necessarily repment the views of The Judge Advocate General's School or any governmental sgeney.

*'dAGC, U.S. Army; U.S. A m y Judiciary. A.B., 1968, Bueknell h i - versity J.D, 1971, Harvsrd Law School; member of the Maryland and District of Co1umb:a Bars.

' Willis, The Cnited States Court o/ Militmy Apped: Its Ongin. Opela-lion and Future, 55 MIL. L. Rm. 5893 (1972) [hereinafter cited 8s Willi~].

'Collina, Con8titutionol Rights o/ MzlzLary Personnel, 1959 (unpublished thesis presented to The Judge Advocate General's School, Charlottesuiile, Virginia) : Everett, Mziitam Jiretice IB Lo Justioe , . ., 12 A.F. JAG L. REV.202 (19701: Finan & Vorbaeh, The Court a/ Milztom Appevls and the Bill 01 Rights: A New Look, 38 Gm. WASH. L. RET 435 (19671; Kent, Pme t i C d Banelits JOY the Accused-A Case Conparison o/ the C.S. Civthan and ~thtam system of J U ~ W , 8 DUPUESNE L. m. 186 (mw;

~ o y e ~ ,

P m w d w d Rights ai the Milifom Aomsed. AdvonLages Over a C(uiiian. Defendant, 22 MALRE L. REV. 105 (19701 Nichols, The Juattre o/ Militand Juatire, 12 Wm.

AND MARY L. Rm. 482 (1971) ; Quinn, Sone Conpanaam Between Courts-Martmi and Civilian Praetioe, 15 U.C.L.A. L. RN. 1240 (1968); Quinn, The Umtrd States Court of Yzlitaw Appeals ond Indivd

of Military Appeals has made its most dramatic contribution to military justice by embracing constitutional principles notaith-standing the history of separation between militars and civilian jurisprudence.~ Lastly, the Structural limitations and decision-making iveakneases of the Court are most nsible and important in the area of constitutional law.

It is not the intent of this article to be another recital of the individual rights of servicemen vis-a-vis uviliana. Rather, this article is primarily interested in focusing on the Court of Military Appeals as an institution in the belief that Its strengthening will assure constitutional due process for those who serve their count?? in the armed seirices and ivill improve military justice in general.

11. THE COURT OF MILITARY APPEALS ASDTHE CONSTITUTIOS

A THE DEYELOPWEVT OF PHlLOSOPHlC4L DOCTRISE

The relationship between the Constitution and military justice as first perceived by the Court of Military dppeals was outlined h? Judge Latimer in L'nited States Y. Clq:

Generally speaking. due process meane B course of legal pro-ceedinps accoiding IO those rules and prmelple~ nhxh have beenestablished ~n our nsfem of jurmprudenee for the enforcement and prateciian of pnlrate ?Ights. €01 mr purposes. and ~n keeping wth the principles of m~llfary developed mer the yesre, we do

By declanng that the Constitution flowed through the Uniform Code of Military Justice to a defendant before a court-martial, the Court was only embracing the prevailing doctrine among mdl-t a v legal scholars and federal courta that the Constitution did nor restrict cmPie8sional power to make rules far the governing of the armed serriees. Additionally. there nas little reason for depaiture from the orthodox viewpoint as the neivly enacted UCMJ.' with the corresponding and complementary Manual pro,-isioiis, offered parallel protections for individual rights. The L'CXJ expressly proxided a right to a speedy trial,. the nght to

he informed of the charges,' a light to coansel. a right to confront witnesses:' a right apinst self-inc,imination.' a pmtectlon against double jeopardy,' a right to obtain \\itnesses, and piotection against cruel and unusual punishments.' To expiesb provision was made for bail hkt the mpastramt was paitiallr circumscribed ConsAmendment " no grand ,uig was Inc.uded,tigation was ieqriired in general courtsagainst unreasoiiahle searches and demnethe Code hut was provided through Piesidential authoiity to prescribe rules of evidence" So article of the UCMJ contained a but the Code sought to msure falineas in efiiiing the compositioii of B court-martial.'

I influence on a court-martial: and prorld. srstein of appellate review Judge Latimer's refore evidenced an attempt. 011 one hand. LOSatisfl- the high congressional expectations of the Code andby proclaiming the intended equalizatiaii of miiitar] and c justice and, on the othei hand. to calm military apprehabout the new Court by bottoming the rights of servicemen 011

the Uniform Code of 3Iilitaru Justice rather than the uneerfainties of constitutional law However, the question of the proper

The ilanual WBJ revised to refleet tire changes oeeamred by the Court of \Iilitais Appeals. the 3hhtarr Jurace Act ai 1988. aid orher pmpoaala

CilJ. srtr. 26-29,

C031.4

relationship between the Constitution and courts-martial was not resolved by the Clog decision.on, B Nary board of review, rel~ing ction of an accused hecause a deposition, taken without the presence of the accused or his trial defense courmel, had been admitted into evidence.*- After certification by The Judge Advocate General of the Nary the Court of 1Iili-tary Appeals reversed the Karr hoard which had, in effect. declared a part of Article 49 unconstitutional . In the decision Of the Court, Judge Latimer partially retreated from his opinion in Ciaa:

Surely >\e are seeking to place ifice on -he same plane 8s elrillan JYS[:CB but ?!e ale :o do that in those inatances \$here Cong?ess "rarset

a different level *

Judge Latimer supported his opinion by disclaming the Court's ability to overrule Congress and by demonstrating how the Code adequately protected the rights of an accused. Judge Brosman, reflecting on the Court's ability to declare part of the UCYJ unconstitutional, concurred, finding no "fatal infirmity" in Art49 as an exception required by practieChief Judge Quinn dissented, taking toson's recent admonition in Burns v.courts, like the state courts, have the same responsibilities as do the federal courts to protect B person from a violation of his constitutional rights." Judge Quinn, refusing to accede to the claim of military necessity, declared:

I have absolutely no daubt in my mmd that accused persons ~nthe militair aervxe of :he Sation ere enrirled to the rights and

'United States v Suffon. No 2-62-6-411. BR. (Uavyl (1963) (not re-yorted) (It should be noted that the accused had a" officer-lasser nt the time the depoiition was raker but he did not submit anv interrogatories and was not presented at the rakine of the depmtmn.1

'O United States V. Sutfon, 3 c 8 C I1 A. 220. 11 C.31 R. 220 (1Ss3).'Id., at 222-23, 11 C.M R. at 222-23.

" I d , at 221-28, 11 CX R. at 227-28. 346 US. 137. 142 (18j3).

federa. mum and ,),so iocto of no mwit under rnihtai? lap..' olhy resting a decision on congiessional intent and the UCXI :' Seierthelees, the earl>- Court vas unable to insulate itself completely from constitutional questions became the UCKJ and Xanuai far Courts-Ifartid contained many proceduial and substantive gaps. , !Then confronted with a need for guidance in Ita decision making the Court unheaitantlr looked to federal precedent again relying on congressional intent and notmp the man- President in Article 36. Even then answers were readily available. Once embarked on the load of judithe Court of lfliitary Appeals was destined to create new principles of law A court, beharing as a judicial body, cannot escape beinp a court and thereby engaging in creative interpretation If not law making.

, 11 C.31 R. 220, 228

ported m Congress

Difficulty with the majority position on the applicability of constitutional guaiantees for military defendants soon surfaced In consideration of the light against self-incrimination the Court had noted:

Tte ~ i P c heie violated flor s, thioigi, Congieriianal enactment.

from the Conmt~fion of the Unired Statel. Military due process e canduefed not ~n violation of t k i e h Cangieir has seen fit to accord to

members of the Armed F

In a case decided two weeks before Swtton, the Court of Military Appeals held the compulsioii of B handwriting Specimen violated the right against self-incrimination, drawing the distinction between affirmatire conduct and passire cooperation '' Judge Brosman, writing for the unanimous Court, stated:

Pndoubtedly ~f !\as the menf of Conpiers in this diviiian of the Article to secure to perrons mbjeet to the Code the me right6 secured to those of the ciwlisn comeunity under the Fifth

the Code includes the same coverage

Though refraining ~n Swttoii from applb-ing constitutional principles to overrule a provision of the UCMJ, the Court of IIilitary Appeals, in deciding a case according to the Intent of Congress to confer an egiinl self-incrimination privilepe, formulated a constitutional principle in an unsettled area of the law. This anomalous situation was also created 111 Cnited States v. Gresr by the Court's holding that an accused could not be compelled to utter irords for the purpose of voice...