Toward a Coherent Theory of the “Military Exception” to Article III

My very first Lawfare post, back in December 2011, focused on the messy constitutional question raised by United States v. Ali—a case then pending before the Court of Appeals for the Armed Forces that raised the constitutionality of subjecting civilian military contractors to military, rather than civilian, trials. Although they raise different questions, I was struck by the analogy between Ali and the ongoing contretemps over whether military commissions may try offenses not recognized as international war crimes—and the rather systematic indifference courts have shown in both sets of cases to larger questions about the permissible scope of adjudication by non-Article III military courts as a general matter. And the more I looked, the less I found—such that there appeared to be a lack of any coherent relationship between these two departures from the norm in our constitutional system, i.e., that Article III courts are the preferred constitutional medium for federal adjudication, wholly apart from policy arguments in favor of civilian, rather than military, trials. (Further complicating matters is the underappreciated third example of sustained military adjudication—trials of civilian offenses by military courts acting as occupation courts, as in Madsen v. Kinsella.) As I noted this morning over at Just Security, I’ve now posted my effort to give this issue the treatment it deserves—a draft of a law review article (sorry, Ben) that’s forthcoming in the Georgetown Law Journal. As this morning’s post suggested, the paper seeks to offer three different contributions to the (surprisingly sparse) literature on the subject:

(1) notwithstanding repeated assertions to the contrary by courts and commentators, the “military exception” to Article III is analytically incoherent–and has been for some time;

(2)the incoherence has been exacerbated by three recent expansions to the scope of military jurisdiction–the abolition of the “service connection” test for courts-martial of servicemembers; the expansion of court-martial jurisdiction over civilian contractors; and the codification of military commission jurisdiction over offenses not recognized as international war crimes; and

(3)the Supreme Court’s historical jurisprudence regarding military commissions offers one potential (albeit controversial) basis for restoring coherence to the military exception—by re-conceiving the departure from Article III as authorized only for offenses and offenders subject to trial by military court (court-martial, military commission, or otherwise) under international law.

Needless to say, it’s still a draft, and so reader comments are most welcome!