The Doctrine of Military Necessity in the Federal Courts

• Author: by Major Stanley Levine
• Pages: 01

In this arttele, Major Leutne dzscusses wrious decisions of

the United States Supreme Coud and other fedeml couds @f-fecting reliance by the military seruices on the doetnne of mil-itary neeesstty as a boszs for issuing a rnvitztude oJregulations concerning the aetivitzes of senme personnel.

The C m e s 1969 deeiszon tn O'Callahan i.. Parker sharply undereut the daetnne of military necessity, but the strength of the doctrine was parfly restored only fice years later, in Parker II. Leu.#. ,Wore recently, in Brown v. Glines and in Secretary of

Navy v. Huff,the Coud has westablished mzlitary necessity

as the controlling doctrine in eases involving challenges to mil-itary lazcs, regulations, and orders.

Mapjor Levine eautzons, koweuer, that the Supmm Coari has decided its most recent military necessity cases xith a 5-3 mte. AminorchangeintheCourt's membershipcould leadtoam7or change in the law

The opinion8 and eoneluiiani presented m thm article _e those of the author and do not necessarily represent the view-s of The Judge Advocate Genersa School. the Depalrment of the Amy. 01 my other governmental agency.

*'United State8 Air Force Reserve. Atfornei m prwafe pmtae. at Hartbdale. New York. April 1917 Lo preaent Ariatant diatnef attorney, Keiieheeter County, SBN York, 191671, ctate pamie officer, Neu, York State Department of Carreetmai Serr~ces, 1911-16. Sened on actire duty in the Umfed States Aa Force 8s an inteihgence omcer, 1967.71, Liiinp to the rank of captain J D , Braoklyn Lar School, BrooWp N Y., 1915, LL.B candidare, Kew- Yark Unrversifg Law- School Author of Incedigation Qf Pomle Vtolaliane Fwdh and Ftflh Amendment Pmtecirans. 3 K Y S Bar J. 628 (1919).

1. INTRODUCTION

   During the 19th and earl) 20th centunes, iederal court review of mii-itary decisions was strictly limited to jurisdictional issues.' As recently the Supreme Court adhered ta this limitation sing the Fifth Cmuit's application of the Due ary court decision. For over 150 years, the Supreme Court applied in the field of military law the same hmdwfi doctrine urged by the Mth-centuq economist, Adam Smith, vis-a-vis the government's regulation of the economy.

   In Reaces 0. AinsiLol?h,a the High Court had decreed that it is not the function af courts ta "regulate the Army."' Likenise in Orlofi Y Wzl/oughby,j the court admonished that "judges are not given the task of running the Army,"6 and the courts must be "scrupulous not to interfere with legitimate Army matters."' Even as late as 1953, in Orloff, the Supreme Court spoke about the "substantial degree of civilian deference"s which must be accorded military tribunals, in that review of military decisions by civilian courts muat take into account the necessities of military life Shortly thereaiter, in a landmark decision which formalized this emerging doctrine of military necessity, the Supreme Court ruled in Bz~nisc W'ilaong that "certain overriding demands of discipline and duty" might limit "the rights af men in the armed forces."1°

   However, the Court's longstanding doctrines oi minimal interference with military courts, and of limitations on constitutional rights oi ser- a See Kignr~

   G L'mtrd Statra. la8 U 3 336 340 (18831, Kurli b Moffitt. 116 C.S. 481, 604IlEs5)

   '339 C 5 103, 11M11 (15501 ' 218 U S. 296 11911)d Id at 304

   3 345 u 8 ad llYi3,

   ~

   Id at 93. - I d at 91

   . Id* 346 L'S 137 115531

   "'Id ai 140

   I

   19801 MILITARY NECESSITY

   vicemembers under the justification of military neces rejected in an important 1969 decision, O'Callahan

   Justice Douglaa, writing the OCailakan opinion foor the Wanen Court, was suddenly citing an entirely different line of cases. Although Douglas conceded the need foor specialized military courts, he was now quoting the admonition from Toth u. Quarleslg that, because of "dangers lurking in military trials . . ., free countries have tried to restrict military tribunals to the narrorvest jurisdiction deemed absolutely essential to maintain discipline among troops in active 8ervice."La

   Even more reveahng of the Court's sentiment were references to "so-called military justice" and "the travesties of justice perpetrated under the Uniform Code of Military Justice."L'

   An oveniding concern of the Supreme Court, in both Toth and OCallahan, is a perceived distrust of the militaq justice system, nhich mandates a need to limit the military's junadiction. Therefore, in Toth, the Court held to be unconstitutional a section of the Uniform Code of Military Justice authorizing the court-martial of former servicemembers for crimes committed m the military but discovered after discharge. Furthermore, the Court rejected any claim of mditary necessity. In O'Callahan, the Supreme Court further restneted the jurisdiction of military court8 to offenses which are deemed to be "serrice-connected," thereby precluding the court-martial of servicemembers for non-service-connected crimes.

   However, a mere five years later, after a significant change in the membership and philaaophy of the Supreme Court, a more conservative Court under Chief Justice Burger decided Parker 1.. which marked a return to the Court's earlier doctrine of military necessity formulated initially in Bums v. Il'zlson. The decision indicated an ap-parent diminution of the Supreme Court's distrust of miiitary justice and its inereased perception of the uniqueness of the military community and of military criminal codes. It did not effect a complete return to the pre-1960 era when the federal courts would not delve into the merits of

   d Id at 266

   117 L S 733 119741

   constitutional claims raised by milnary per~onnel:~

   But Parker presents veq strong dictum far invoking the militaryneeersity doctrine a3 a means

   to limit the constitutional safeguards available to servicemembers.

   The landmark 1969 O'Callahan decision marked a high point m judicial intervention aith military law and it appeared LO be the ioorerunner of greater constitutional restraints on the dt;U?. jmtm system. OCallaka~i also exemplified the Warren Court's distrust of military justice, the decision was an attempt to confine military justice as nanow.1: as possible.

   Equally histolic was the 1974 decision of Parkwz,. Levy. which marked a r h q turning point in the treatment accorded mditary justice by federal courts. A different Supreme Court under Chief Justice Burger no longer felt compelled to distrust the military justice snized that the military necessity ioor order andthe need for constitutional safeguards for servicemembers.

   From O'Callakon in 1969, a demaon nntten by Justice Douglas during the Ranen Court era, to Parker v Leuy in 1974, a 5-3 decision written by Justice Rehnquiat of the Burger Court. the High Court had reversed itself completely within the short span of five years. Nowhere was this more evident than in the Court's 1973 decision, Gosa r .Clvyden,?'ivritten by Justice Blaehun. which demed retroactive application of the O'CaIlahmi decision. Blackmun called O'Callaha~

   "a clear break with the past"18 and

   Rehnquiit, in a concurring opinion, flatly announced that O'Callaknn was "arongly decided and should be overruled ior the reasons set forth by Xr. Justice Harlan m his dissenting opinion"19 in that case.

   This paper rv1.111 examine closel? the emerglng doctrine of military necessity and its effect on the body of ease lair related to rnditaqjustice.

   11. PARKER v. LEVY

   There IS no better starting point, in dissecting the doctrine of military necessity, than to focus upon the case of Parker L. L e ~ , g , ~ ~ which has as

   'I See Hinit v Broun. 339 U 5 103 (19601

   - 413 C S 665 r19731 '#Id at 630s Id. at 692

   417 U E 733 (19ii'

   19801 MILITARY XECESSITY

   much of the drama and intensity of the Vietnam War as that which one can wtness in the currently papular movies, "The Deer Hunter," and "Cammg Home."

   Captain Howard Levy was a medical doctor drafted into the United States Army during the time of the Vietnam War. Captain Levy was ordered to establiah and operate a training program for h y

   Special

   Forces going to Vietnam, and he refused; Levy was charged, therefore, with violation of Article 9W1of the Uniform Code of llilitary Justice for willful disobedience af the lawfui order of a superior.

   Tu.0 additional charges were filed against Captain Levy because of a

   letter written by Levy in which he criticized the United States effort in Vietnam and made public utterances wherein he promoted insubordination and disloyalty. The particular letter was mailed by Levy to a black Serviceman stationed in Vietnam, and it involved two additional violations under Articles 133 and 134 of the UChKa At Captain Levy's court-martial, a finding of guilty was returned by the all-officer juv on eachof the three charges;" to d t , that Captain Levy had, in fast, "disobeyed orders of a superior"21 in refusing to set up a training program for h y Special Forces, and had engaged in conduct "unbecoming an officer anda gentleman"p5 and "to the prejudice of good order and discipline"" by virtue of his public utterances to enlisted personnel

   At the court-martial, the moat damaging evidence that emerged against Levy was that he had publicly criticized the government's conduct in front of enlisted men, and had labeled the Special Forces as "liars,

   10 U S C 8% (1916). u.h)ch makei It B vioi8tion of the Cmfom Code of Mdrtary Justice todisaheyrhe1saf"lorderof asupelior...