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Introduction: Chief Justice Warren on the Bill of Rights and the military.

Forty-five years ago, United States Supreme Court Chief Justice Earl Warren delivered a remarkable lecture at the New York University Law Center. (1) He addressed the interplay between the Bill of Rights and the United States military, focusing on the balance between Constitutional protections and the sometimes competing considerations of national security. When he delivered his lecture, America was entrenched in the early years of the Cold War struggle. Today's challenges make this an apt time to review Chief Justice Warren's remarks.

We are grateful to the staff of the New York University Law Review for their gracious permission to reprint the lecture in the pages that follow. The lecture contains many memorable phrases and provides a superb overview of this important issue. As Chief Justice Warren noted years ago, the relationship of the Bill of Rights to the military has "rapidly assumed increasing importance because of changing domestic and world conditions." (2) Through the years, the tension between our free society's responsibility to maintain both the safety and the personal liberties of its people has remained a vibrant issue.

In the aftermath of the September 11, 2001 attacks on this Nation, the balance of Constitutional protections and national security interests has generated substantial debate. Consider, for example, the treatment and interrogation methods of enemy combatants and detainees; the rendition of suspected terrorists; and the National Security Agency's warrantless Terrorist Surveillance Program.

The men and women of our JAG Corps are making significant contributions during this historic period. We must heed the advice of Chief Justice Warren and be especially vigilant to "the day-to-day job of upholding the Constitution." (3)

In his lecture, Chief Justice Warren discusses a basic set of principles that has guided the Supreme Court in the resolution of cases involving the exercise of military power: subordination of the military to civil authority; (4) the fact that military members "may not be stripped of basic rights simply because they have doffed their civilian clothes"; (5) and the deference afforded claims of military necessity in times of war. (6)

While much has changed since Chief Justice Warren's lecture, his basic construct for resolving disputes over the exercise of military power remains valid. Today, there are many sharp debates between the Executive and Legislative branches concerning the Constitutional division of authority over the military--but no one doubts civilian supremacy over the military.

Concerning the military's treatment of its own personnel, Chief Justice Warren highlighted the establishment of the United States Court of Appeals for the Armed Forces (7) along with the creation of the Uniform Code of Military Justice as Congressional efforts to "insure that the military justice system is administered in accord with the demands of due process." (8) Today, our military justice system provides protections above and beyond those afforded in the civilian criminal system (such as broader discovery obligations on the part of the government; (9) equal access to witnesses; (10) unparalleled opportunities for clemency; (11) and more frequent Supreme Court review of military cases; (12) to name a few (13)).

The final principle Chief Justice Warren identified--judicial deference to claims of military necessity--has received considerable attention in recent years. When he reviewed the Court's scrutiny of "attempts of our civilian Government to extend military authority into other areas," (14) the Chief Justice contrasted the Court's tendency to defer to claims of military necessity during wartime with the more active judicial role during what he called the "recent years of peacetime tension." (15) The World War II-era cases of Hirabayashi v. United States (16) and Korematsu v. United States, (17) sustained the detention of Japanese nationals and American citizens of Japanese descent living in the United States. In contrast, the Eisenhower-era case of Reid v. Covert (18) rejected the extension of court-martial jurisdiction over civilian dependents and employees of the Armed Forces overseas, in his lecture, Chief Justice Warren concluded that "[w]hile situations may arise in which deference by the Court is compelling, the cases in which this has occurred demonstrate that such a restriction upon the scope of review is pregnant with danger to individual freedom." (19)

These cases have modem-day parallels in the litigation arising out of the detainment program and whatever litigation may arise from the recent amendment to the Uniform Code of Military Justice (UCMJ) allowing for prosecution by courts-martial of civilians during contingency operations. (20) There are, of course, differences: unlike the interned Japanese, the detainees at Guantanamo Bay have been accused of taking action against America and its allies; and, unlike the civilian court-martialed in the 1950s, the civilian contractors now subject to UCMJ jurisdiction frequently fulfill traditional military roles.

The nature of today's conflicts may lead to an expansive interpretation of military authority and jurisdiction under the Constitution. Nevertheless, we must be mindful of Chief Justice Warren's warning that while the America of 1962 faced a precarious peace, the America of 1787 also faced difficult problems. Nonetheless, "our Founding Fathers conceived a Constitution and Bill of Rights replete with provisions indicating their determination to protect human rights." (21)

The same is true today. No one should conclude our Constitutional guarantees are merely the products of a bygone era. Chief Justice Warren quotes President Lincoln, who asked: "'[Is] it possible to lose the nation and yet preserve the Constitution?'" (22) Chief Justice Warren provides the timeless answer: "[o]ur Constitution and Nation are one. Neither can exist without the other." (23)

Members of the JAG Corps are known for doing the right things for the right reasons. In this critical area, we must continue to formulate and advocate approaches that preserve the Constitutional balance, assuring a strong and effective national security establishment while protecting the individual freedoms that have made this Nation great.

(1) The lecture, entitled The Bill of Rights and the Military, was delivered on February 1, 1962, and first reported in the New York University Law Review. Earl Warren, The Bill of Rights and the Military, 37 N.Y.U.L. REV. 181 (1962). Chief Justice Warren's was the third in a series of lectures addressing the role of the Bill of Rights in contemporary American life. See infra at 6 n.1.2.

(2) Infra at 6.

(3) Infra at 26.

(4) Chief Justice Warren described civilian supremacy as "an essential constituent of the fabric of our political life." Infra at 10.

(5) Infra at 12.

(6) Infra at 15-16.

(7) Then the Court of Military Appeals. See infra at 12.

(8) Id.

(9) See MANUAL FOR COURTS-MARTIAL (MCM), UNITED STATES, R.C.M. 701(a) (2005).

(10) See id., R.C.M. 701(e).

(11) See id., R.C.M. 1105 (concerning post-trial matters submitted by the accused), 1107 (concerning action by the convening authority), 1108 (concerning suspension and remission of execution of sentence).

(12) See id., R.C.M. 1205 (identifying cases subject to review by the Supreme Court); see also United States v. Scheffer, 523 U.S. 303 (1998) (concerning exclusion of polygraph results in courts-martial): Loving v. United States, 517 U.S. 748 (1996) (addressing death penalty procedures in courts-martial); Weiss v. United States, 510 U.S. 163 (1994) (involving the appointment of military judges).

(13) Within several years of Chief Justice Warren's address, the Supreme Court seemed dismissive of the military justice system's capacity to safeguard servicemembers' constitutional rights. See O'Callahan v. Parker, 395 U.S. 258, 265 (1969), (stating military courts are designed to preserve military discipline: are incapable of upholding service members' constitutional rights: and, therefore, lack jurisdiction over nonmilitary crimes servicemember committed off-post while on pass) overruled by United States v. Solorio, 483 U.S. 669 (1987): Relford v. Commandant, United States Disciplinary Barracks, 401 U.S. 355, 363 (1971) (elaborating on the "service-connected" test of O'Callahan and commenting that "military courts, of necessity, are not impartial weighers of justice"). However, since Relford the Court has expressed increasing confidence in the fairness of the military justice system. See Parker v. Levy, 417 U.S. 733, 758-59 (1974) (finding UCMJ Articles 133 and 134 neither unconstitutionally vague nor overbroad); Schlesinger v. Councilman, 420 U.S. 738, 758 (1975) ("[I]t must be assumed that the military court system will vindicate servicemen's constitutional rights."): Solorio v. United States, 483 U.S. 669 (1987) (overruling the O'Callahan "service-connected" test for jurisdiction): Weiss v. United States. 510 U.S. 163, 178-79 (1994) (finding the L1CMJ and associated regulations insulate military judges from command influence and "sufficiently preserve judicial impartiality so as to satisfy the Due Process Clause"): Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2770 (2006) (holding out court-martial procedures as the standard against which to measure the fairness of military commissions and restating its "expectation that the military court system established by Congress--with its substantial procedural protections and provision for appellate review by independent civilian judges--'will vindicate servicemen's constitutional rights'" (quoting Councilman, 420 U.S. at 758)). And see generally Carr. John A., Free Speech in the Military Community: Striking a Balance Between Personal Rights and Military Necessity, 43 A.F.L. Rev. 303 (1998).

(14) Infra at 15.

(15) Infra at 18.

(16) 320 U.S. 81 (1943).

(17) 323 U.S. 214 (1944).

(18) 354 U.S. 1 (1957).

(19) Infra at 21.

(20) The apparent purpose of the change is to extend UCMJ jurisdiction to contractor employees during contingency operations. Congress amended Article 2(a)(10). UCMJ, as part of the FY 2007 National Defense Authorization Act, to subject "persons serving with or accompanying an armed three in the field" to UCMJ jurisdiction when accompanying the Armed Forces in contingency operations, while UCMJ had been limited to a time of war.

(21) Infra at 17.

(22) Infra at 24.

(23) Id.

MAJOR GENERAL JACK L. RIVES

THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE
COPYRIGHT 2007 U.S. Air Force Academy, Department of Law
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Author:Rives, Jack L.
Publication:Air Force Law Review
Date:Dec 22, 2007
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