JURISDICTION OVER QUASI-MILITARY PERSONNEL UNDER UCMJ ARTICLE 2(A) (8).

Author:Western, David J.
Position:Uniform Code of Military Justice
 
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  1. THE CONSTITUTIONAL SCOPE OF JURISDICTION OVER CIVILIANS A. Could Congress Impose UCMJ Jurisdiction over Civilian Organizations? B. Could Congress Assimilate Civilian Organizations Into the Armed Forces? C. Could Congress Subject a Quasi-Military Individual to the UCMJ? II. THE LEGISLATIVE HISTORY PROBLEM A. The Possible Meanings of Article 2(a)(8) B. The Legislative History of Article 2(a)(8) III. CONCLUSION "Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces" (1) are subject to the Uniform Code of Military Justice (UCMJ) and to trial by court-martial, pursuant to Article 2(a)(8), UCMJ. Public Health Service (PHS) and National Oceanic and Atmospheric Administration (NOAA) officers wear U.S. Navy-style uniforms, but are not members of the armed forces as defined by Title 10. (2) Accordingly, Article 2(a) (8) implies that quasi-military (3) personnel, based on their duties and functions with the armed forces, can be made subject to military justice.

    Article 2(a)(8) has even broader implications because the "and other organizations" clause raises the possibility of jurisdiction over others associated with, but not exactly "in" the armed forces. If this clause applies to any existing organization, it might well apply to the uniformed auxiliaries created by Congress to assist the armed forces. Therefore, for example, it could apply to civilian members of the U.S. Coast Guard Auxiliary (USCGA), (4) or the Civil Air Patrol (CAP)--the U.S. Air Force Auxiliary (5) performing duties with the armed forces. Indeed, during World War II, CAP pilots flying armed missions were subject to court-martial jurisdiction. (6)

    PHS and NOAA regulations provide that their officers are subject to the UCMJ when assigned to military branches. (7) PHS officers have served as members of courts-martial (8) and been tried before them. (9) Accordingly, it is clear that Article 2(a)(8) is operative. However, although the text of Article 2(a)(8) has been part of the UCMJ since its enactment, (10) there has been little discussion of its constitutionality or scope. (11) This article explores the constitutional and statutory questions raised by Article 2(a)(8).

    Part I explores the limits on subjecting members of quasi-military groups to courts-martial. It concludes that during peacetime in the United States, Congress cannot subject members of even essential non-military organizations to military law unless they could be considered part of the land and naval forces. However, Congress can make particular organizations, not currently assigned to the military, part of the land and naval forces, and subject them to military control. If Congress so acted, even as to groups not traditionally part of the military, the groups may properly be subjected to military law. In addition, the Constitution permits the exercise of court-martial jurisdiction over an otherwise non-military individual performing military service under military discipline with the armed forces. On this rationale, in the leading case of United States v. Braud, (12) the Court of Military Appeals held that Article 2(a)(8) made military law applicable to a PHS doctor assigned to a military unit to treat military personnel.

    Part II examines Article 2(a)(8) and outlines its possible meanings. It concludes that Article 2(a)(8) has been misread. At least as a matter of legislative history, Article 2(a)(8) was not intended to be an independent grant of military jurisdiction over members of specified organizations when they are assigned to and serving with the armed forces. Instead, the officers who drafted it and the Congress that enacted it into law, contemplated that it would apply only when, based on some statute other than Article 2(a)(8), an individual was made part of an armed force, or an existing government organization was made its own branch within the land and naval forces. The normal predicate for such assignment would be armed conflict or other national defense emergency. Accordingly, the cases and regulations allowing for court-martial jurisdiction are in tension with the intent of Congress and the drafters of the UCMJ. Congress should reexamine this section and make a judgment about when jurisdiction is appropriate, and amend the section to make its decision clear.

  2. THE CONSTITUTIONAL SCOPE OF JURISDICTION OVER CIVILIANS

    Court-martial jurisdiction is limited by the Constitution. One important constraint is that grand jury indictment is required in federal criminal prosecutions, "except in cases arising in the land or naval forces, or in the Militia, when in actual service, in time of War, or public danger.'" (13) In addition, the Constitution gives Congress authority to create an army, navy, call forth the militia, and "[t]o make Rules for the Government and Regulation of the land and naval Forces." (14) The text of the Constitution then, contemplates that "the land and naval Forces" (15) may be subject to substantive law and procedural processes distinct from those applicable to civilians. But those not in the land and naval forces cannot be subjected to these special laws and tribunals. (16)

    In the early 1950s, military courts read the jurisdictional grants of the UCMJ broadly. Accordingly, dependents (17) and civilian employees (18) overseas were regularly prosecuted by court-martial under a provision of the UCMJ granting jurisdiction to those "serving with, employed by, or accompanying the armed forces without the continental limits of the United States." (19)

    The Supreme Court upheld this exercise of jurisdiction in 1956, (20) but reversed course almost immediately. (21) In a series of cases, the Court held the UCMJ unconstitutional as applied to court-martial jurisdiction over civilian employees (22) and dependents, (23) even overseas, at least in peacetime. (24) The key decision is Reid v. Covert, (25) a plurality opinion by a short-handed court which was later treated as a holding. (26) Reid v. Covert held that the spouse of a service member, living on a U.S. military base and enjoying military benefits, was nevertheless not subject to the UCMJ. The Court explained:

    There is no indication that the Founders contemplated setting up a rival system of military courts to compete with civilian courts for jurisdiction over civilians who might have some contact or relationship with the armed forces. Courts-martial were not to have concurrent jurisdiction with courts of law over non-military America. (27) The Court concluded that "the power granted Congress 'To make Rules' to regulate 'the land and naval Forces' would seem to restrict court-martial jurisdiction to persons who are actually members or part of the armed forces.'" (28)

    The Court also concluded "that we must limit the coverage of Clause 14," the constitutional authority to regulate the land and naval forces, "to 'the least possible power adequate to the end proposed.'" (29)

    Yet, the Supreme Court did not dogmatically insist that only members of the armed forces, as defined by statute, could constitutionally be subject to court-martial jurisdiction. Reid v. Covert recognized that there was a grey area:

    Even if it were possible, we need not attempt here to precisely define the boundary between "civilians" and members of the "land and naval Forces." We recognize that there might be circumstances where a person could be "in" the armed services for purposes of Clause 14 even though he had not formally been inducted into the military or did not wear a uniform. (30) This section will examine three scenarios in which members of the PHS, NOAA, or other organizations could be subject to UCMJ jurisdiction. First, Congress might subject members of the organizations to military law, without declaring the organizations to be part of the land and naval forces. Second, Congress might declare the organizations, as a whole, to be part of the armed forces, or land and naval forces, as such, put them in the chain of command and subject each member of those organizations to military law. Third, examining these scenarios will inform the constitutionality of another option, deeming individual members subject to military law only when assigned to and serving with the armed forces.

    1. Could Congress Impose UCMJ Jurisdiction over Civilian Organizations?

      Congress, conceivably, could recognize that the PHS and NOAA are civilian organizations whose mission, duties, and lines of authority will be unchanged, yet conclude that they are sufficiently closely associated with military goals that they should, by statute, be subject to the UCMJ to the same extent as soldiers and sailors. Congress might reason that the knowledge of the environment generated by the NOAA and the PHS's role protecting the health of the people of the United States are essential to the national defense. But there are grave doubts that such a statute would be constitutional.

      First, undeniably, many civilian employees of the services, Department of Defense, Department of Homeland Security, and other parts of the federal, state and local government, play critical roles in national defense. However, in Grisham v. Hagan and McElroy v. U.S. ex rel. Guagliardo, the Court held that, across the board, civilian employees of branches of the armed services or of the Department of Defense could not be subject to court-martial jurisdiction, even overseas, at least in peacetime. It is also clear from those cases that consent, while not necessarily irrelevant, is insufficient to validate a jurisdictional statute; that is, even though the civilian employees and dependents knew the law on the books subjected them to court-martial, that was not enough.

      Second, the PHS and NOAA are almost certainly not currently part of "the land and naval Forces." The PHS is a component of the Department of Health and Human Services; the NOAA is part of the Department of Commerce; they...

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