Should retired servicemembers be subject to military jurisdiction? A retiree’s perspective

Should retired servicemembers receiving pay be subject to court-martial jurisdiction?  I think so, and I respectfully disagree with my friend Steve Vladeck’s argument in his recent post, “The Supreme Court and Military Jurisdiction Over Retired Servicemembers.”

Steve contends that the Constitution does not permit the trial in military courts of those who have retired from active duty (and are receiving pay), especially for nonmilitary offenses committed while they are retired.  Allow me to offer the perspective of a retired servicemember subject to the jurisdiction Steve decries.

Some context: Steve is counsel for Marine sergeant Steven M. Larrabee’s petition seeking to have the Supreme Court grant a Writ of Certiorari in his case.  Larrabee had retired in 2015 from active duty while assigned to Marine Corps Air Station Iwakuni, Japan.  He was then immediately transferred to the Fleet Marine Corps Reserve, but remained in Japan working as a bar manager.

According to Elura Nanos (writing on the Law & Crime website), three months after Larrabee retired he allegedly sexually assaulted “one of his bartenders (the wife of an active-duty Marine sergeant) while she was unconscious and slumped over a bar stool, and recorded both the assault and his subsequent laughter and jeering comments on his cell phone.”  On 25 May 2016, the Secretary of the Navy authorized the convening authority to “apprehend, confine, or, exercise general-court martial convening authority” over Larrabee.  His case was subsequently referred to trial by general court-marital, and it resulted in Larrabee pleading guilty to “one specification of sexual assault and one specification of indecent recording.” 

This is not a case of the military doing something without specific statutory authorization. To the contrary, Congress rather clearly provided for military justice jurisdiction in cases like Larrabee’s. In 10 U.S.C. §802, it explicitly provided for court-martial jurisdiction of not only “retired members of a regular component of the armed forces who are entitled to pay” like myself, but also of “members of the…Fleet Marine Corps Reserve.

The latter provision is especially important because there is no dispute that Larrabee was a member of it.  Moreover, as explained by the Solicitor General, Larrabee could have requested discharge in lieu of transfer to Fleet Marine Corps Reserve if he had wanted to do so. If he had, he would have avoided potential court-martial jurisdiction, but doing so would have also ended his entitlement to retired pay. Thus, the exact question before the Court is:

“Whether Congress’s determination in Article 2(a)(6) of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. 802(a)(6), that the UCMJ applies to military servicemembers like petitioner—a Staff Sergeant in the United States Fleet Marine Corps Reserve—is a constitutional exercise of Congress’s authority “[t]o make Rules for the Government and Regulation of the land and naval Forces,” U.S. Const. Art. I, § 8, Cl. 14.”

Although the question involves the implications of Larrabee’s status as a member of the Fleet Marine Corps Reserve, Steve nevertheless relies on the 1992 tax case of Barker v. Kansas to claim that the Supreme Court “wiped out the justification for trying retired service members by court-martial.”

Steve says that because, as he puts it, Barker concluded that “retired pay for former service members constitutes deferred compensation.”  Steve evidently believes that because retired pay was not technically compensation for current service in a tax law context, the military’s assertion of jurisdiction over retirees in a criminal law context must also fail. I submit that’s a mistaken analysis of Barker.

As Steve concedes, in Barker the Court did not address criminal justice jurisdiction in any way, but rather was limited its decision to the treatment of military retired pay under Kansas state tax law. What Steve misses is that the Court in Barker made it abundantly clear in that “[m]ilitary retirees unquestionably remain in the service and are subject to restrictions and recall.” (Emphasis added.)

Let’s agree that there’s really no serious Constitutional question as to Congress’ authority to establish a separate military justice system, particularly with respect to those who “unquestionably remain in the service.”  As recently as last June in the Ortiz case, Justice Kagan, writing for the majority, observed that:

Congress has long provided for specialized military courts to adjudicate charges against service members. Today, trial-level courts-martial hear cases involving a wide range of offenses, including crimes unconnected with military service…” (Emphasis added)

She later gave a full-throated endorsement of Congressional power:

“[B]y [the Constitution’s] granting legislative power “[t]o make Rules for the Government and Regulation of the land and naval Forces,” the Framers also authorized Congress to carry forward courts-martial. Congress did not need to be told twice. The very first Congress continued the court-martial system as it then operated. And from that day to this one, Congress has maintained courts-martial in all their essentials to resolve criminal charges against service members.” (Citations omitted).

The Court in Barker did find that “Congress for many purposes does not consider military retirement pay to be current compensation for current services,” but that is not the same thing as saying Congress concluded that for all purposes. Indeed, the Barker Court limited its holding to “purposes of state taxation,” and merely concluded that for “purposes of 4 U. S. C. § 111, military retirement benefits are to be considered deferred pay for past services.”  It said nothing about purposes related to other statutes, including the Uniform Code of Military Justice.

Additionally, Steve cites the 1955 case of Toth v. Quarles for the proposition that “that former service members who had fully separated from the military could not be tried even for crimes committed while on active duty.” The key there, however, is “fully separate.”

In Toth, the Court was only barring court-marital jurisdiction over, as Justice Black put it, “civilian ex-soldiers who had severed all relationship with the military and its institutions.” Indeed, unlike Larrabee who had not severed “all” relationship with the military, the appellant in Toth had, as Justice Black points out, “no relationship of any kind with the military.” (Emphasis added.) Current military justice law is fully in accord: as each category enumerated in 10 U.S.C. §802 makes clear, there must have some kind of relationship with the military.

Put simply, in the case of retired personnel voluntarily collecting retired pay, to include those in the Fleet Marine Reserve, they have chosen to keep a relationship with the military.

This is also true, incidentally, for the retired generals and admirals Steve frets about being possibly subject to court-martial for allegedly using unlawful “contemptuous language” regarding the president.  Why?  None of them has chosen to tender a resignation of their commission, an act which, if accepted, would sever “all relationship with the military,” at least for purposes of military justice jurisdiction – but doing so would also end retired pay. (While the statements of these officers may be professionally inappropriate, it’s beyond the scope of this post to address whether a criminal charge under 10 U.S.C. § 888 would be Constitutional as applied in their situations.)

Furthermore, Steve apparently is convinced that from a military perspective, reliance on retirees as a strategic reserve is “deeply anachronistic” because in the past only a tiny number of have been involuntarily recalled to active duty.  Steve apparently has concluded that relying on reserves is strategically sufficient.

I disagree, in part because forecasting the future of warfare is highly problematic.  With respect to manpower in particular, we are living in an age when only a tiny percentage of American youth are qualified for, and willing to undertake, military service.  Meeting a crisis with China, Russia, Iran, or North Korea (or some collection of the same or more) with Army that has shrunk to nearly pre-World War II levels might well create a need for troops that cannot be quickly or easily filled by volunteers from civilian life.  In my view, it’s quite possible to envision a future where America must be ready to use all available manpower, including specifically retired members of the armed forces who have already experienced the rigors of military training and service.

In a real way, that future is now. In 2017 Executive Order 13223 was amended to expand the peacetime authority of the Secretary of Defense to recall retirees. Why? The stated purpose was to allow “the Air Force to recall as many as 1,000 retired pilots to active duty to address a shortage in combat fliers.” In fact, just last year the Air Force took advantage of the new authority to announce that as “many as 1,000 recently retired Air Force pilots, combat systems officers and air battle managers could return to active duty under a major new expansion of a recall program.”

That Air Force’s retiree recall program (and one by the Army) is voluntary – for now – but it’s not unimaginable that the exigencies of national security may require a different approach. With the Army falling “thousands of troops short of its recruiting goals,” and with the U.S. military tasked with defending a quarter of humanity, it may be necessary to call upon retirees to help fill the gap. I would not expect the Supreme Court to hinder the ability of the government to do so. After all, as the Court said in Haig v. Agree, “it is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.”

Regardless, Steve – and any other law professor or citizen – is fully entitled to an opinion as how to best employ military assets as a strategic reserve, but I would not expect the Court to follow suit. As it said in the 1973 case of Gilligan v. Morgan,

It would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches directly responsible — as the Judicial Branch is not — to the electoral process. Moreover, it is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.”

Steve seems perplexed by the idea that the military doesn’t have jurisdiction over certain reservists for crimes committed while not on active duty. (I think Steve is referring to the Ready Reserve but there are several categories of reservists with differing obligations.) But don’t you agree that it’s hardly unreasonable for the Congress to distinguish between military retirees who are drawing retired pay, and those reservists who are unpaid when not serving?

Again, whether or not this is a wise decision by Congress is not something the courts should determine. As the Court said in Burns v. Wilson, 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.’’ (Emphasis added.)

Surprising to me, Steve resorts to the reductio ad absurdum argument that absent a win by his client, Congress could “subject to military jurisdiction any offense committed by the 17 million men currently registered for the Selective Service.”

Let’s be clear about this red herring: not only does his client’s case have nothing to do with draft registration, no law asserts military jurisdiction merely for registering for the draft, nor is anything of the sort even being contemplated.  Draft registration with the Selective Service System is not the same as induction, enlistment, or appointment into the armed forces, and it doesn’t create court-martial jurisdiction.  (Likewise, Steve himself is not subject to court-martial jurisdiction, even though Militiaman Vladeck is part of the “unorganized militia of the United States.”)

Draft registration alone does not connect a person to the armed forces. Steve cites Reid v. Covert approvingly, but that case really stands for the proposition that simply being a relative of a servicemember, even when living with that servicemember at an overseas duty location, is not itself sufficient connection with the military to impose court-martial jurisdiction.  Justice Black sensibly makes it clear that “some” contact or relationship with the armed forces is not enough.

Thus, it’s rather obvious that registration with a civilian entity that is no part of the armed forces (the Selective Service System is an “independent agency within the Executive Branch of the U.S. Federal government”) is not sufficient contact with the military to alone ever permit court-martial jurisdiction. And, of course, voluntarily transferring to the Fleet Marine Reserve and/or drawing retired pay is vastly more contact with the armed forces than anything Justice Black was talking about in Covert.

Steve also fears the military could prosecute an “octogenarian Vietnam veteran for Medicare fraud.”  In the first place, you won’t find too many vets losing sleep over the idea of a court-martial for Medicaid fraud – a crime draining $140 billion from taxpayer coffers every year – but the real point is that there is no law that would impose military jurisdiction over all veterans. Rather, it’s almost exclusively imposed on those vets who draw the retired pay portion (less than 20% of those who served) of the complex military compensation scheme.

Conjuring up reductio ad absurdum examples make for fun academic discussions, but in the real world, the military takes its exercise of criminal justice jurisdiction quite seriously. That’s one reason why exercising jurisdiction over retirees is rare (though not unheard of because of less than a handful of cases in recent year). I believe the public would have faith in the military exercising it power judiciously, given that its confidence in the military as an institution vastly exceeds the public’s confidence in the civilian criminal justice system.

I recognize that Steve’s client may now regret transferring to the Fleet Marine Reserve given the outcome of his trial, but my bet – based on literally everyone I know – is that the overwhelming majority of retired military personnel are proud of their service, and would hardly be pleased to have it downgraded to some lesser “connection” simply so that a rogue vet might not be held accountable in the military justice system.

That system, by the way, was recently characterized as a fair one by Justice Kagan in Ortiz.  She noted it handles its cases “in strict accordance with a body of federal law (of course including the Constitution),” and offers “procedural protections… to a service member [that] are ‘virtually the same’ as those given in a civilian criminal proceeding, whether state or federal.”   What, really, is wrong with judging military retirees in such forum?  Would Larrabee have seriously preferred trial in Japanese court?

As a retired servicemember subject to military jurisdiction, count me among those of my comrades-in-arms who believe it a small price to pay to maintain the connection with the armed forces. The data suggest others may think so as well: a January 2019 Smithsonian Magazine poll of active and retired military personnel shows that “if given the opportunity,” they “would join the military again as a career option” – a career spent unquestionably subject to military justice jurisdiction.

I believe that those who have served understand that, as the Court said in Orloff v. Willoughby, the military is ‘‘a specialized community governed by a separate discipline from that of the civilian,” and they accept that as such their rights relative to civilians must, as noted above, “perforce be conditioned to meet certain overriding demands of discipline and duty.”

So why do they do they sacrifice rights that most Americans take for granted?  As I’ve discussed elsewhere recently, I appreciate that it is increasingly difficult for civilians to grasp why people choose to serve in uniform.  As President Barack Obama asked in 2009:

“What tugs at a person until he or she says “Send me”? Why, in an age when so many have acted only in pursuit of the narrowest self-interest, have the soldiers, sailors, airmen and Marines of this generation volunteered all that they have on behalf of others? Why have they been willing to bear the heaviest burden?”

I’ve met many vets, aging and otherwise – to include those disabled in the service of their country – who would, as Lee Greenwood immortalized in his classic, God Bless the USA, say that they “won’t forget the men who died.”  I believe Greenwood also spoke for most of them when he sang:

And I’d gladly stand up next to you

And defend Her still today

‘Cause there ain’t no doubt

I love this land

God Bless the U.S.A.

Some may think such love of country is hokey or out-of-date,  but I would caution against saying that to most Americans, and especially to a veteran (and, BTW, I’d wager that Steve – who is a patriot of the first order – is on the same sheet with me as to that).

If the Court decides to categorize retirees (who are, because of their lengthy service or their disabilities, eligible for retired pay) as merely “ex-soldiers who had severed all relationship with the military,” my bet is that many vets would see it as an insulting and twisted form of ‘thank-you-for-your-service’ from a military-insensitive judiciary.  The Court ought not go there, and I really don’t think it will choose to defy Congress on this one.

So let me close by saying this: I’m aware of nothing that would suggest that anyone should think that the Supreme Court would be doing the vast majority of retirees any favors if it upends military jurisdiction over them.

Update: Today (Feb 19) the Supreme Court denied without comment Larrabee’s request for a writ of certiorari, and that means his conviction stands as I think it should.

Still, as we like to say at Lawfire®, check the facts, assess the law and the arguments, and decide for yourself!

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