According to the Supreme Court, “it must be assumed that the military court system will vindicate servicemen’s constitutional rights.” But what happens when the military courts get it wrong?

The Supreme Court’s Deference to Military Courts

The Supreme Court “has long recognized that the military is . . . a specialized society separate from civilian society. [It has] also recognized that the military has . . . developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.”[1]

Because of this, the Supreme Court has developed a deference to military courts.  In doing so, it has explicitly held that “congressional judgment must be respected and [] it must be assumed that the military court system will vindicate servicemen’s constitutional rights.”[2]  In order to provide the military court’s the ability to vindicate the service members rights, the Supreme Court has applied what it calls the “exhaustion” doctrine.[3]  But what happens when the military courts fail to vindicate a military member’s rights?

Recent Military Case Law

For some time now, the Court of Appeals for the Armed Forces has held it has jurisdiction to review what are called “extraordinary writs,”[4] even in cases that were considered “final.”[5] This position was supported by the Supreme Court.[6]  Nevertheless, the Court of Appeals for the Armed Forces appears to have recently changed course.  Specifically, in the case of Gray v. United States, the Court held a “threshold question is whether this Court has jurisdiction to entertain a request for [the extraordinary writ of] coram nobis in a case that is final in all respects under the UCMJ. We hold that we do not.”[7]  This position seems counter to Supreme Court precedent in Denedo.[8] Additionally, the Supreme Court, the Court of Appeals for the Armed Forces, and the lower military Courts of Criminal Appeals, have perpetuated a “Catch-22” in which the military courts “may not issue [extraordinary writs] when alternative remedies, such as habeas corpus, are available” in civilian courts.[9]  This is because “federal courts normally will not entertain habeas petitions by military prisoners unless all available military remedies have been exhausted.”[10]  In other words, each court points to the other to act first.

So now what?

It is unclear what happens next in what almost appears to be a game of chicken between the military and civilian federal courts.  Importantly, the Court of Appeals for the Armed Forces’ case in Gray has been appealed to the Supreme Court.  And there is a line in Schlesinger that states the “judgments of the military court system remain subject in proper cases to collateral impeachment.”[11]  Perhaps the Supreme Court will take this opportunity in Gray to clarify, again, that the military courts have jurisdiction over extraordinary remedies, even in cases which are final, and work to resolve the “Catch-22” in habeas cases.

If you find yourself in this Catch-22, or otherwise need a highly experienced military appeals counsel, feel free to contact my office.  I’d welcome the opportunity to speak with you about the best way ahead in your case.


[1] Parker v. Levy, 417 U.S. 733, 743 (1974) citing United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955).

[2] Schlesinger v. Councilman, 420 U.S. 738, 758 (1975).

[3] See Clinton v. Goldsmith, 526 U.S. 529 (1999).

[4] An extraordinary writ is an order issued “by a court exercising unusual or discretionary power.”

[5] Denedo v. United States, 66 M.J. 114, 120 (C.A.A.F. 2008).

[6] United States v. Denedo, 556 U.S. 904, 916 (2009).

[7] 77 M.J. 5, 6 (C.A.A.F. 2017).

[8] 556 U.S. at 916.  In Denedo, the Supreme Court held that

“the long-recognized authority of a court to protect the integrity of its earlier judgments impels the conclusion that the finality rule is not so inflexible that it trumps each and every competing consideration.  Our holding allows military courts to protect the integrity of their dispositions and processes by granting relief from final judgments in extraordinary cases when it is shown that there were fundamental flaws in the proceedings leading to their issuance.”

Emphasis added.

[9] Denedo, 556 U.S. at 911.

[10] Schlesinger, 420 U.S. at 758.

[11] 420 U.S. at 758.

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