Courts-martial in The United States - Courts-Martial and Appellate Courts As Legislative (Article I) Courts

Courts-Martial and Appellate Courts As Legislative (Article I) Courts

In parsing the debate about command selection of jury members, it is important to place the court-martial in its context as a legislative (Article I) court. Article III courts do not handle all of the judicial business in the United States. For over two hundred years, Congress has used its enumerated powers under the Constitution in conjunction with the Necessary and Proper Clause to create specialized tribunals, including courts-martial, which are free from the protections of Article III. There are no constitutional infirmities in the creation of these courts. In fact, these courts help Congress carry out its enumerated powers efficiently - the court-martial is an example where the protections, procedures, and inherent inefficiencies of Article III courts would interfere with the military's ability to use the system effectively to help maintain good order and discipline. In fact, Article I, Section 8 of the Constitution says Congress shall have the power "To make Rules for the Government and Regulation of the land and naval forces."

Even where life and liberty are at stake, legislative courts are not required to grant due process rights that are intrinsic to the Article III courts. The Supreme Court has, instead, employed an analysis that examines whether the statutory due process system of a given legislative court grants what it calls "fundamental rights." The Supreme Court simply applies a different constitutional analysis to legislative courts than to Article III courts.

Of all the legislative courts created by Congress, courts-martial have received the most deference from Article III courts. Under a standard of review known as the "separate community" or "military deference" doctrine, the courts have proclaimed the armed forces to be a distinct subculture with unique needs, "a specialized society separate from civilian society." While some scholars have argued against the idea of a separate legal system for the military, the Article III courts continue the doctrine of deference. Where there is a conflict between the constitutional rights of the individual service member and an asserted military purpose, the courts have deferred to Congress' ability, and duty, to balance the appropriate factors and reach a necessary compromise.

Today's court-martial system, including command selection of jurors, would seem to pass muster under the Supreme Court's constitutional analysis for legislative courts. The accused enjoys due process rights similar to the "fundamental rights" the Court recognized in other legislative courts. A defendant has many rights, including:

1. assistance of counsel at all levels of the court-martial;
2. information of the charges brought against the defendant, including a bill of particulars;
3. a speedy trial;
4. compulsory process of witnesses and evidence;
5. the privilege against self-incrimination; and
6. extensive appellate review.

When placed in its context as a legislative court, the statutory grant of due process in a court-martial compares favorably with what an accused criminal can demand as a matter of right in other legislative courts. The balance that Congress has struck between an individual's rights and the purposes of the military will not lightly be disturbed by an Article III court.