Rights in the Military, Citizens’

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Rights in the Military, Citizens’. In 1962, Earl Warren, then Chief Justice of the United States, lectured at New York University on “The Bill of Rights and the Military” and expressed his conviction that the guarantees of the Bill of Rights were not antithetical to military discipline. In doing so, he acknowledged that military service would affect the exercise of those rights, and he also alluded to a perennial problem: deciding who would be subject to military law and thus within the jurisdiction of courts‐martial.

The military codes and justice systems were intended to ensure discipline in the land and naval forces. What of civilians accompanying the forces? British tradition, carried over into American law, provided that “retainers to the camp, and persons serving with the army in the field,” although not enlisted, were in time of war subject to military discipline. These provisions were routinely applied in all American wars until Vietnam, when two of the three members of the U.S. Court of Military Appeals ruled that the “war” had to have been formally declared by Congress. This ruling was extended to civilian paymasters' clerks and other navy employees who had been traditionally subject to military law as “persons in the naval service.” Since the 1960s, civilian employees of the Department of Defense, and of government contractors, have not been subject to military trial for offenses committed overseas, even though the offense was committed in a designated war zone like Somalia or the Persian Gulf. Precedent for this decision was a series of 1950s U.S. Supreme Court rulings which held that the military could not court‐martial dependents of American military personnel for crimes committed overseas. The same series of decisions prohibited the recall from civilian life and court‐martial of persons who had committed crimes while in military service. These decisions relied on World War II precedent, which held that U.S. civilians in Hawaii could not, in the years following the attack on Pearl Harbor, remain subjected to martial law. The World War II martial law cases relied in turn on the precedent of Ex parte Milligan, a Civil War–era decision in which the Supreme Court ruled 5 to 4 that military tribunals could not exercise their jurisdiction over civilians as long as civil courts were open. Thus, in the past century, the classes of persons subject to military law—and whose civil rights are therefore limited—have been severely curtailed by judicial decisions.

The focus here is on members of the armed forces who are indisputably subject to court‐martial jurisdiction and who have asserted claims either that their military status should protect them from some consequence of civil law or that civil rights doctrines should protect them from the military. Cases in the first (immunity) category are rare. In Little v. Barreme (1804), the Supreme Court ruled that immunity would not protect a naval officer who had relied on President Thomas Jefferson's illegal orders and seized a neutral ship. Congress has, on occasion, provided that service members be indemnified for civil legal liability, as it did when Andrew Jackson, then military governor of New Orleans, was successfully sued for imprisoning an editor without legal authority. In 1940, Congress passed the Soldiers and Sailors Civil Relief Act, which still protects service members from some civil actions, and in 1988 Congress provided that the United States, not government employees (including members of the armed forces), would be civilly liable for official acts of those employees. Thus, service members gain few rights by virtue of their status.

When members of the armed forces claim a violation of rights, they point either to a statute that grants the right or to the U.S. Constitution. If the right is based on a statute, courts have routinely “second‐guessed” the military's interpretation of the law and protected the right. In Brooks v. United States (1949), the Supreme Court rejected the government's interpretation of the Federal Tort Claims Act, which would have precluded service members' claims; but in Feres v. United States (1950), the Court ruled that claims incident to service were barred by the Tort Claims Act. In Bell v. United States (1961), the Court concluded that the military could not refuse to pay Korean War “turncoats” as prisoners of war otherwise eligible under the Missing Persons Act.

The most difficult cases arise, however, when the service member claims the protection of a constitutional right. The Constitution itself speaks only once of the rights of members of the armed forces. The Fifth Amendment, which grants the right of a grand jury indictment for serious crimes, makes an exception for courts‐martial. Therefore, all other constitutional claims involve assertions by the individual that members of the armed forces should have the same civil rights accorded other citizens, while the executive branch argues that military requirements warrant disparate treatment. Nineteenth‐century constitutional challenges that claimed that a court‐martial had failed to grant the petitioner the due process guaranteed by the Fifth Amendment uniformly failed. The Supreme Court ruled that as long as the court‐martial had jurisdiction over the person and the offense, and the power to authority to impose the sentence, civil courts should not interfere.

In the aftermath of World War II, several subordinate courts did question the fairness of a serviceman's court‐martial conviction. The Supreme Court routinely rejected such collateral attacks. Similarly, claims—particularly common during the Vietnam War—that the armed forces were infringing on a service member's constitutional rights of speech and worship were consistently rejected by the Supreme Court on the rationale that “due deference” should be given to commanders' discretionary judgments because the judiciary was ill‐suited to second‐guess those decisions. The military was seen as a “separate community,” which would appropriately be judged by standards different from those applied in the civilian world. Deference reached its apogee in Goldman v. Weinberger (1986) when, by a 5–4 vote, the Supreme Court sustained the conviction of a Jewish officer who had violated regulations by wearing his yarmulke while in uniform. Deference may also grant certain benefits, as in Katcoff v. Marsh (1985), in which an intermediate appeals court concluded that the Constitution's establishment clause was not violated by funding and support for military chaplains.

There have, however, been exceptions to the doctrine of deference. On occasion, as in Anderson v. Laird (1972), when a subordinate court held that compulsory chapel attendance at the service academies was unconstitutional, the Supreme Court would not hear the government's appeal. In others, deference will not be granted because the judgment involved was neither military nor discretionary. In Frontiero v. Richardson (1973), the Supreme Court decided that a congressional pay statute which discriminated against military females claiming compensation for dependents was unconstitutional. In Ryder v. United States (1995), the Court ruled that the Coast Guard acted in violation of the appointments clause of the Constitution in staffing its Court of Military Review.

Any historical survey of service members' rights must conclude that the Supreme Court has consistently deferred to executive branch judgments that did not violate a statute or regulation but that would have been unconstitutional had a civilian been affected. Pending constitutional challenges to the military's treatment of homosexuals must be evaluated in that light.
[See also “Camp Followers”; Gay Men and Lesbians in the Military; Religion in the Military; Supreme Court, War, and the Military; Women in the Military.]


Frederick B. Wiener , Civilians Under Military Justice, 1967.
Joseph W. Bishop, Jr. , Justice Under Fire, a Study of Military Law, 1974.
John M. Lindley , “A Soldier Is Also a Citizen”: The Controversy Over Military Justice, 1917–1920, 1990.
Allan R. Millett , The Constitution and the Citizen Soldier, Revue internationale d’historire militaire, 69 (1990), pp. 97–119.
Jonathan Lurie , The Role of the Federal Judiciary in the Goverance of the American Military: The U.S. Supreme Court and Civil Rights Supervision Over the Armed Forces, in The United States Military under the Constitution of the United States, ed. Richard H. Kohn, 1991.

Michael Noone