Military Law

Perhaps no area of American law better illustrates the limits of the Bill of Rights than military law. While Abe Fortas memorably stated in Tinker v. Des Moines School District, 393 U.S. 503 (1969), that students do not ‘‘shed their constitutional rights to freedom of speech . . . at the schoolhouse gate,’’ these and other civil liberties are routinely withheld from military personnel.

The guiding principle, stated most clearly in Orloff v. Willoughby, 354 U.S. 83 (1953), is that the military is ‘‘a specialized community governed by a separate discipline from that of the civilian.’’ As a separate society, the military is not bound by customary civil liberties conventions and is allowed to infringe upon individual rights to a degree unheard of in civilian settings. This separation is so stark that civilian courts generally will not even hear cases filed by service personnel unless they have exhausted their military justice system appeals.

Furthermore, the military receives nearly total deference from civilian courts. The Supreme Court starkly outlined its deferential approach in Burns v. Wilson, 346 U.S. 137 (1953): ‘‘the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise balance to be struck in this adjustment.’’ Departures from this approach are rare; while the Court briefly imposed a rule that the military could not court-martial service personnel for non-service-related offenses committed in peacetime (invalidating the court-martial of an army sergeant accused of rape in O’Callahan v. Parker, 395 U.S. 258, in 1969), this rule was discarded in 1987 in Solorio v. United States, 483 U.S. 435 (1987).

Consequently, normal application of American civil liberties is invariably subordinated to military imperatives. In Goldman v. Weinberger, 475 U.S. 503 (1986), the Court acknowledged the invasion of the religious rights of a Jewish Air Force chaplain barred from wearing his yarmulke under his uniform cap, but nevertheless held that military esprit de corps trumped the free exercise clause. Military discretion also won out over civil rights claims in Chappell v. Wallace, 462 U.S. 496 (1983), in which the courthouse door was barred for naval enlisted men who filed a civil lawsuit accusing their commanding officer of taking their race into account when meting out discipline.

The Court has even grafted dubious military interests onto otherwise blatant civil liberties violations. In United States v. O’Brien, 391 U.S. 367 (1968), the Court prioritized the purported military necessity of maintaining a bureaucratically efficient draft system ahead of the free-speech rights of an antiwar protestor who burned his draft card. They did so notwithstanding voluminous evidence in the Congressional Record that the authors of the legislation were trying to censor antiwar speech and not trying to streamline Selective Service procedures.

Deference to the military, while overwhelming, is not absolute. Civilian courts will freely correct the military if it is attempting to court-martial individuals over whom it does not have authority, such as dependents of military personnel or civilian employees of the military. Additionally, this tradition of deference ebbs when there is an intersection of military life and civilian life. In Flower v. United States, 407 U.S. 197 (1972), the Court reversed a military order barring an antiwar leaflet from a public street that ran through an open army post. On the other hand, in Greer v. Spock, 424 U.S. 828 (1975), the Court rejected the argument that the military had created a public forum by opening up parts of Fort Dix to civilian access and held that the military could permissibly ban political protests from these unrestricted areas.

Arguably, the most controversial dimension of military law is the use of military tribunals. In comparison with civilian juries, military commissions may meet in secret, need not follow ordinary evidentiary rules, and may convict with less than a unanimous vote. During World War II, the Court sanctioned the trial of eight accused Nazi saboteurs by military tribunal in Ex Parte Quirin, 317 U.S. 1 (1942); all eight were convicted, and six were electrocuted. After the events of September 11, 2001, President George W. Bush authorized trial by military tribunal for any non-U.S. citizen accused of terrorism or accused of harboring terrorists. While this order has not yet had occasion to be evaluated by the Supreme Court, the Court rebuffed the government in Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Noting the unconventional nature of the war on terrorism, the Court observed that the government’s asserted ability to hold Yaser Hamdi as an ‘‘enemy combatant’’ for the war’s duration without allowing him to contest his detention could result in Hamdi’s indefinite confinement without trial. If nothing else, Hamdi and its companion cases make clear that this aspect of military law is undergoing comprehensive contemporary reassessment.

STEVEN B. LICHTMAN

References and Further Reading

• Fisher, Louis. Military Tribunals and Presidential Power: American Revolution to the War on Terrorism. Lawrence: University of Kansas Press, 2005.
• Scheppele, Kim Lane, Law in Time of Emergency: States of Exception and the Temptations of 9/11, University of Pennsylvania Journal of Constitutional Law 6 (May 2004): 1001.
• Turley, Jonathan, The Military Pocket Republic, Northwestern University Law Review 97 (2002): 1.

Cases and Statutes Cited

• Burns v. Wilson, 346 U.S. 137 (1953)
• Chappell v. Wallace, 462 U.S. 496 (1983)
• Ex Parte Quirin, 317 U.S. 1 (1942)
• Flower v. United States, 407 U.S. 197 (1972)
• Goldman v. Weinberger, 475 U.S. 503 (1986)
• Greer v. Spock, 424 U.S. 828 (1975)
• Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
• O’Callahan v. Parker, 395 U.S. 258 (1969)
• Orloff v. Willoughby, 354 U.S. 83 (1953)
• Solorio v. United States, 483 U.S. 435 (1987)
• Tinker v. Des Moines School District, 393 U.S. 503 (1969)
• United States v. O’Brien, 391 U.S. 367 (1968)

See also Freedom of Speech: Modern Period (1917– Present); Free Exercise Clause Doctrine: Supreme Court Jurisprudence; Military Tribunals; Tinker v. Des Moines School District, 393 U.S. 503 (1969); United States v. O’Brien, 391 U.S. 367 (1968)