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Military courts, authorized by Article I of the U.S. Constitution, have jurisdiction over cases
involving military servicemembers, including, in some cases, retired servicemembers. They have
the power to convict for crimes defined in the Uniform Code of Military Justice (UCMJ),
including both uniquely military offenses and crimes with equivalent definitions in civilian laws.
For example, in a 2008 case, United States v. Stevenson, military courts prosecuted a retired
serviceman for rape, a crime often tried in civilian courts.
The military court system includes military courts-martial; a Criminal Court of Appeals for each
branch of the armed services; and the U.S. Court of Appeals for the Armed Forces (CAAF),
which has discretionary appellate jurisdiction over all military cases. With the exception of
potential final review by the U.S. Supreme Court, these Article I courts handle review of military
cases in an appellate system that rarely interacts with Article III courts.
Criminal defendants in the Article III judicial system have an automatic right to appeal to federal
courts of appeal and then a right to petition the Supreme Court for final review. In contrast,
defendants in military cases typically may not appeal their cases to the U.S. Supreme Court
unless the highest military court, the CAAF, had also granted discretionary review in the case.
Companion bills introduced in the 111th Congress, the Equal Justice for Our Military Act of 2009
(H.R. 569) and the Equal Justice for Our Military Personnel Act of 2009 (S. 357), would
authorize appeals to the U.S. Supreme Court for all military cases, including cases that the CAAF
declined to review. The House passed a similar measure, H.R. 3174, during the 110th Congress.
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Introduction ..................................................................................................................................... 1
Military Courts’ Jurisdiction............................................................................................................ 1
Appellate Structure for Military Cases............................................................................................ 2
Interactions Between Article I and Article III Courts...................................................................... 4
United States v. Stevenson ............................................................................................................... 6
Legislative Proposals to Expand Jurisdiction.................................................................................. 6
Conclusion....................................................................................................................................... 7
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Author Contact Information ............................................................................................................ 8
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The U.S. military justice system exercises jurisdiction over criminal cases pursuant to Article I of
the U.S. Constitution and the Uniform Code of Military Justice (UCMJ). Military courts’
jurisdiction is limited to trying people connected to the armed forces for crimes defined by the
UCMJ. Within these constraints, military courts’ jurisdiction is relatively broad. For example, it
extends to retired servicemembers such as the defendant in United States v. Stevenson,1 a recent
case in which military courts convicted a man on the Navy’s temporary disability retired list. In
Stevenson, the Navy prosecuted the defendant for rape, a crime routinely tried in non-military
courts with civilian defendants.2
In general, the military justice system, including its system of appellate review, is separate and
distinct from the civilian judicial system. Some constitutional safeguards and Supreme Court
interpretations are inapplicable in military courts. Also, after following appellate review through
the military court system, military defendants may appeal to the U.S. Supreme Court only in
limited circumstances. Companion bills introduced in the 111th Congress, H.R. 569 and S. 357,
would broaden the Supreme Court’s statutory jurisdiction by authorizing Supreme Court review
of most military cases. This report surveys military courts’ jurisdiction, the structure of appellate
review for military cases, interactions between military and civilian courts, the Stevenson case,
and legislative proposals.
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Most criminal cases in the United States are tried either in state courts or in civilian federal
courts. The latter derive authority from Article III of the U.S. Constitution.3 However, the armed
forces may prosecute defendants with military connections in military courts, which derive
authority from Article I, sec. 8 of the Constitution.4
The Uniform Code of Military Justice (UCMJ), passed by Congress and implemented by the
President through the Manual for Courts-Martial (MCM), governs military courts’ jurisdiction
and procedures.5 Military courts exercise jurisdiction over officers and enlisted servicemembers
on active duty.6 The scope of their jurisdiction may extend to individuals other than active duty
and enlisted servicemembers. Specifically, such jurisdiction extends to cases involving retired
1 66 M.J. 15 (C.A.A.F. 2008).
2 Id. at 16. In Stevenson, the Naval Criminal Investigative Service investigated the defendant after determining that he
“was a possible suspect in a ... rape of a military dependent.” Id. Thus, military prosecutors tried the case in military
courts. However, a civilian court would have had jurisdiction over the same conduct in a case involving a civilian
defendant.
3 Article III vests judicial power in the Supreme Court and “such inferior courts as the Congress may from time to time
ordain and establish.” U.S. Const. art. III. Article III courts include the U.S. Supreme Court, federal courts of appeals,
federal district courts, and the U.S. Court of International Trade.
4 Relevant provisions of Art. I, sec. 8 empower Congress to “raise and support armies”; “provide and maintain a navy”;
and “make rules for the government and regulation of the land and naval forces.” The section also grants Congress
powers of “organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed
in the Service of the United States.” U.S. Const. art. I, § 8.
5 10 U.S.C. § 801 et. seq.
6 10 U.S.C. § 802.
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servicemembers who receive military pay or hospital care from an armed force; specified
members of reserve units; enemy combatants; and other individuals with connections to military
operations or benefits.7 As noted below in the discussion of United States v. Stevenson, questions
remain regarding the scope of military courts’ power over retired servicemembers. However, it is
clear that military courts’ jurisdiction extends to military veterans only when a veteran maintains
at least some current relationship with the military.8
If a defendant’s connection with the armed forces is sufficient to establish jurisdiction, a military
court may try that defendant for a broad range of activities, including conduct not related to
official military duties, as long as the alleged conduct constitutes a crime under the UCMJ. The
UCMJ includes some crimes that are unique to military service. For example, under the UCMJ, a
defendant might be prosecuted for effecting unlawful enlistment, appointment, or separation;
desertion; or absence without leave.9 However, the armed forces may also prosecute defendants
under the UCMJ for conduct over which civilian courts could also exert jurisdiction. For
example, the UCMJ criminalizes murder, rape, robbery, and other common law crimes.10
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Article I military courts handle military cases throughout the chain of appellate review. Appeal to
the U.S. Supreme Court is permitted at the end of the process only in specified circumstances.
The UCMJ creates various military courts and provides appellate procedures for them.11 After an
initial investigation and a court-martial, which is a trial-level proceeding, military cases undergo
various stages of review within the military justice system. First, each court-martial proceeding
has a “convening authority,” who is a commissioned officer (other than the defendant’s accuser)
who convenes the investigation and court-martial proceeding and then approves or modifies the
court-martial’s findings and sentences.12 Convening authorities do not provide legal review;
instead, they provide the equivalent of sentencing determinations by giving “full and fair
consideration to matters submitted by the accused and determining appropriate action on the
sentence.”13 Under the UCMJ, convening authorities have “substantial discretion” to modify
sentences and findings.14
After a convening authority approves or modifies a court-martial decision, a Court of Criminal
Appeals offers the first opportunity for legal review in military cases. Each branch of the armed
services has a Court of Criminal Appeals, comprised of panels of military judges15 established by
7 10 U.S.C. § 802(a).
8 Toth v. Quarles, 350 U.S. 11, 14-15 (1955) (“It has never been intimated by this Court ... that Article I military
jurisdiction could be extended to civilian ex-soldiers who had severed all relationship with the military and its
institutions.”).
9 10 U.S.C. §§ 884, 885, 886.
10 Id. at §§ 918, 920, 922.
11 10 U.S.C. § 801 et. seq. For an overview of courts-martial procedure, see CRS Report RS21850, Military Courts-
Martial: An Overview, by Jennifer K. Elsea.
12 10 U.S.C. § 860; United States v. Davis, 58 M.J. 100 (C.A.A.F. 2003).
13 Davis, 58 M.J. at 102.
14 10 U.S.C. § 860(c).
15 The UCMJ defines “military judge” as a “commissioned officer of the armed forces” whom the Judge Advocate
(continued...)
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the Judge Advocate General for each branch.16 The Courts of Criminal Appeals review cases in
panels or, occasionally, en banc.17 Review is not discretionary; each Judge Advocate General
“shall refer” to the relevant Court of Criminal Appeals every case involving a conviction that
imposes the death penalty or confinement for one year or more; a bad-conduct or dishonorable
discharge; or, in certain cases, dismissal from the respective service.18 Unlike convening
authorities, Courts of Criminal Appeals provide legal review of military cases. They “may affirm
only such findings of guilty, and the sentence ... as [they] fin[d] correct in law and fact and
determin[e], on the basis of the entire record, should be approved.”19
After a Court of Criminal Appeals has reviewed a case, the United States Court of Appeals for the
Armed Forces (CAAF) provides the final opportunity for appellate review within the military
court system. The CAAF is an Article I court, housed within the Department of Defense.20
However, unlike other military courts, the CAAF is comprised of civilian judges, whom the
President appoints.21
In general, the CAAF has discretion to grant or deny petitions for appeals, analogous to the U.S.
Supreme Court’s discretion to grant or deny writs of certiorari.22 However, the CAAF must accept
appeals in two circumstances: 1) all cases in which the relevant Court of Criminal Appeals has
affirmed a death sentence; and 2) all cases in which a Judge Advocate General has sent a case to
the CAAF for review after a final Court of Criminal Appeals decision.23
The CAAF’s appellate review is limited. The CAAF must act “only with respect to the findings
and sentence as approved by the [court-martial’s] convening authority and as affirmed or set aside
as incorrect in law by the Court of Criminal Appeals.”24 In other words, appeals to the CAAF
must involve issues originally heard by a court-martial and affirmed or denied by a convening
authority and the relevant Court of Criminal Appeals. The CAAF cannot hear appeals based on
the All Writs Act or other jurisdictional authority unless they aid direct review of court-martial
decisions.
For example, in Clinton v. Goldsmith,25 the Air Force had dropped from its rolls a servicemember
who had served an earlier sentence for engaging in unprotected sex without telling his partners of
(...continued)
General of the relevant branch has certified as qualified to serve in the branch in which the judge is a member. 10
U.S.C. § 826(b).
16 10 U.S.C. § 866(a). The four Courts of Criminal Appeals are the Army Court of Criminal Appeals, the Air Force
Court of Criminal Appeals, the Navy-Marine Corps’ Court of Criminal Appeals, and the Coast Guard Court of
Criminal Appeals.
17 Id.
18 10 U.S.C. § 866(b). Dismissals of commissioned officers, cadets, and midshipmen are subject to automatic review by
the Courts of Criminal Appeals. Id.
19 10 U.S.C. § 866(c).
20 See 10 U.S.C. § 941.
21 10 U.S.C. § 942(b) (“Each judge of [The CAAF] shall be appointed from civilian life by the President, by and with
the advice and consent of the Senate.... ”).
22 10 U.S.C. § 867(a)(3).
23 10 U.S.C. § 867(a)(1),(2).
24 10 U.S.C. § 867(c).
25 526 U.S. 529 (1999).
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his HIV-positive status. The servicemember had petitioned the Air Force Court of Criminal
Appeals for injunctive relief under the All Writs Act, but that court denied relief, holding that it
lacked jurisdiction. The CAAF then granted the injunctive relief.26 The U.S. Supreme Court held
that the CAAF had exceeded its jurisdiction in granting injunctive relief because the relief did not
involve review of a court-martial decision.27 In so holding, the Supreme Court rejected the
CAAF’s argument that jurisdiction was proper because the Air Force’s dropping of the
servicemember related to conduct at issue in an earlier court-martial proceeding; instead, the
Court emphasized that “there is no source of continuing jurisdiction for the CAAF over all
actions administering sentences that the CAAF at one time had the power to review.”28
With respect to appeals from the CAAF, the U.S. Supreme Court has jurisdiction to grant
certiorari in four specific circumstances: 1) cases in which a death sentence has been affirmed by
the relevant branch’s Court of Criminal Appeals; 2) cases that a Judge Advocate General has
certified to the CAAF; 3) cases in which the CAAF granted a petition for review, and 4) cases
that do not fall in the other categories but in which the CAAF has granted relief.29 The first two
categories represent the two circumstances in which the CAAF must grant appeals. The second
category represents cases in which the CAAF has exercised its discretion to grant an appeal. And
the final category is a catch-all provision for other cases in which the CAAF might grant relief.
Because the Supreme Court’s jurisdiction is limited to these four circumstances, its power to
review military cases generally extends only to cases that the CAAF has also reviewed. For this
reason, the CAAF’s discretion over the acceptance or denial of appeals often functions as a
gatekeeper for military appellants’ access to Supreme Court review. If the CAAF denies an
appeal, the U.S. Supreme Court will typically lack the authority to review the decision. In
contrast, criminal appellants in Article III courts have an automatic right of appeal to federal
courts of appeals and then a right to petition the Supreme Court for review. 30
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The U.S. armed forces have a long history of self-regulation. Except for limited interaction with
the U.S. Supreme Court, Article I military courts operate separately from the Article III judicial
system. As discussed above, military courts have distinct trial procedures and structures for
appellate review. In addition, because military courts’ jurisdictional authority arises under Article
I rather than Article III, defendants in military cases do not have the benefit of certain Article III
safeguards, such as lifetime appointments for judges.31 In addition, although military defendants
are entitled to due process rights under the Fifth Amendment to the Constitution, the Supreme
Court has upheld a narrowed interpretation of such rights in the context of military courts.32
26 Id. at 532-33.
27 Id. at 534-36.
28 Id. at 536.
29 28 U.S.C. § 1259 (2008).
30 28 U.S.C. § 1254(1).
31 Weiss v. United States, 510 U.S. 163, 177-81 (1994) (holding that lack of fixed terms for military court judges does
not violate Fifth Amendment due process guarantees).
32 Id.
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Furthermore, legal interpretations by Article III courts do not necessarily create binding precedent
for Article I courts, and vice versa. The only Article III court holdings that bind military courts
are those of the U.S. Supreme Court. However, military courts sometimes reject even Supreme
Court precedents as inapplicable in the military context. For example, in United States v.
Marcum,33 the CAAF declined to follow an interpretation of the constitutional right to privacy
that the Supreme Court had handed down a short while earlier. In Marcum, a court-martial had
convicted a servicemember of various crimes, including non-forcible sodomy.34 On appeal, the
servicemember argued that with respect to the non-forcible sodomy charge, he was protected by a
constitutional right to privacy in intimate relations under the Supreme Court case Lawrence v.
Texas.35 However, the CAAF declined to follow Lawrence.36 The CAAF’s rationale for diverging
from Supreme Court precedent in Marcum was that constitutional protections “may apply
differently to members of the armed forces than they do to civilians.”37 Thus, although
“constitutional rights identified by the Supreme Court generally apply to members of the
military,” such rights do not apply when “by text or scope they are plainly inapplicable.”38
Similarly, Article III courts are not bound by military courts’ decisions. The Supreme Court may
consider CAAF decisions or UCMJ provisions as potentially persuasive. For example, the
Supreme Court ordered briefs to examine the impact of a military code provision after it handed
down its decision in Kennedy v. Louisiana,39 a case involving the question of a death penalty
sentence for a child rapist.40 In Kennedy, the Supreme Court held that the 8th Amendment
prohibits punishment by death penalty for a defendant who rapes a child but did not cause or
intend to cause a child’s death.41 In so holding, the Court emphasized the “national consensus”
against the death penalty in such cases.42 In its petition for rehearing, Louisiana argued that
Congress’s recent amendment of the UCMJ to include a death penalty punishment in military
cases for the rape of a child undermined the Court’s “national consensus” argument.43 However,
the Supreme Court decided not to reconsider its Kennedy decision, instead reaffirming its prior
ruling with only minor modifications. In its opinion accompanying its denial of rehearing, the
Supreme Court disagreed with Louisiana’s interpretation of the death penalty language in the
UCMJ amendment, but it also emphasized that “authorization of the death penalty in the military
sphere does not indicate that the penalty is constitutional in the civilian context.”44
33 60 M.J. 198, 205 (C.A.A.F. 2004).
34 Id. at 199.
35 539 U.S. 558 (2003).
36 Marcum, 60 M.J. at 205.
37 Id.
38 Id. at 206.
39 128 S.Ct. 2641 (2008).
40 Kennedy, Docket No. 07-343, Order September 8, 2008.
41 Kennedy, 128 S.Ct. at 2645.
42 Id. at 2657-58. For more information on Kennedy v. Louisiana, see CRS Report RS22844, Capital Punishment:
Constitutionality for Non-Homicide Crimes Such as Child Rape, by Alison M. Smith.
43 Kennedy, Docket No. 07-343, Petition for Rehearing.
44 Kennedy, Denial of Petition for Rehearing, 129 S. Ct. 1, 2 (2009).
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A 2008 case, United States v. Stevenson, highlights two issues relevant to jurisdiction in military
cases.45 First, it raises questions regarding the scope of military courts’ jurisdiction over retired
servicemembers. Second, it raises a question regarding Supreme Court jurisdiction to review legal
questions when the CAAF denied review. The first question was the basis for the Stevenson
appellant’s petition to the Supreme Court for certiorari.46 The United States raised the second
question in its brief opposing appellant’s certiorari petition.47
Although the U.S. Supreme Court clearly has jurisdiction over cases in which the CAAF granted
review,48 it is unclear whether the Supreme Court’s jurisdiction extends to specific issues that the
CAAF declined to address. In Stevenson, Naval Criminal Investigative Service officials had
investigated the appellant, a man on the Navy’s temporary disability retired list, while he received
treatment at a Veterans Affairs hospital. A military court-martial then tried and convicted the
appellant for rape. On appeal, the CAAF remanded the case for fact finding regarding blood
draws taken while appellee was a patient at the VA hospital.49
After the United States Navy-Marine Corps’ Court of Criminal Appeals affirmed the court-
martial’s decision on remand, the CAAF granted a second review of the case.50 However,
exercising its discretion, the CAAF limited the issues on appeal to potential Fourth Amendment
violations, declining to review the question of the military court’s jurisdiction over a man on the
temporary disability retired list.51
In his petition to the Supreme Court for certiorari, the appellant in Stevenson requested review of
only the issue that the CAAF had declined to address—namely, the issue of military courts’
jurisdiction over a case involving a person on the temporary disability retired list.52 In response,
the United States argued in its opposing brief that the Supreme Court’s appellate review power
does not extend to issues that the CAAF declined to review.53 Thus, because the CAAF had
declined to review that portion of the Criminal Court of Appeals’ decision, the United States
argued that the Supreme Court lacked jurisdiction over the appeal.54
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Bills introduced during the 111th Congress, the Equal Justice for Our Military Act of 2009 (H.R.
569) and the Equal Justice for Our Military Personnel Act of 2009 (S. 357), would expand the
45 66 M.J. 15 (C.A.A.F. 2008).
46 Brief of Petitioner-Appellant, United States v. Stevenson, No. 07-1397 (C.A.A.F. February 14, 2008).
47 Brief for the United States in Opposition, United States v. Stevenson, No. 07-1397 (C.A.A.F. February 14, 2008).
48 28 U.S.C. § 1259(3).
49 Stevenson, 66 M.J. at 16-17.
50 Id.
51 Id. at 16.
52 Brief of Petitioner-Appellant at i.
53 Brief for the United States in Opposition at 7-10.
54 Id.
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U.S. Supreme Court’s appellate jurisdiction over military cases.55 Specifically, the legislation
would amend the UCMJ to authorize appeals to the Supreme Court in military cases, regardless
of the CAAF’s acceptance or denial of an appeal.56 The bills are identical to companion bills
(H.R. 3174 and S. 2052) offered during the previous congress.57 During the 110th Congress, the
House passed the measure by voice vote, and Senator Leahy reported the Senate version after
approval by the Senate Judiciary Committee.58
Bill sponsors have emphasized the need for the law to address the “disparity” between the broad
right to appeal to the Supreme Court in civilian cases, on one hand, and the limited ability to
appeal to the Supreme Court in military cases, on the other hand.59 When introducing S. 357,
Senator Feinstein stated that because “our U.S. service personnel place their lives on the line in
defense of American rights[, it] is unacceptable for us to continue to routinely deprive our men
and women in uniform one of those rights.”60
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Courts have recognized compelling justifications for a military justice system that is distinct from
Article III courts. For example, in Marcum, the CAAF emphasized the importance of ensuring
discipline and obedience in the armed forces.61 The Marcum court also stressed the military’s
interest in disciplining servicemembers differently according to their rank.62 However, it is
unclear whether such arguments justify a disparity in access to Supreme Court review, especially
in the context of servicemembers no longer on active duty or crimes that exist under both military
and civilian laws.
Military cases follow a unique process of appellate review, moving from courts-martial through
the following steps: 1) automatic appeals to Courts of Criminal Appeals for each armed forces
branch; 2) potential discretionary review by the highest military court, the CAAF; and 3) review
by the U.S. Supreme Court in limited circumstances, usually only when the CAAF has also
granted review. Legislative proposals in the 111th Congress would expand Supreme Court
jurisdiction over military cases by authorizing review even if the CAAF denies an appeal. If the
proposals became law, they would make moot the question highlighted by United States v.
Stevenson regarding the Supreme Court’s jurisdiction over specific issues that the CAAF had
declined to review.
55 Equal Justice for Our Military Act of 2009, H.R. 569, 111th Cong. (2009); Equal Justice for Our Military Personnel
Act of 2009, S. 357, 111th Cong. (2009).
56 Id.
57 Equal Justice for United States Military Personnel Act of 2007, S. 2052, 110th Cong. (2008); Equal Justice for Our
Military Act of 2007, H.R. 3174, 110th Cong. (2008).
58 See 154 Cong. Rec. H10264 (daily ed. Sept. 27, 2008); 154 Cong. Rec. S8479 (daily ed. Sept. 12, 2008).
59 155 Cong. Rec. S1125 (daily ed. Jan. 30, 2009) (statement of Sen. Feinstein on behalf of herself, Senator Specter,
and Senator Feingold).
60 Id.
61 Marcum, 60 M.J. at 207-208.
62 Id.
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Anna C. Henning
Legislative Attorney
ahenning@crs.loc.gov, 7-4067
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