Amicus Curiae Brief — Gray v. United States

Supreme Court of the United States

RONALD A. GRAY,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

BRIEF OF NATIONAL INSTITUTE OF

MILITARY JUSTICE AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

STEPHEN A. SALTZBURG EUGENE R. FIDELL

720 20th Street, N.W. (Counsel of Record)

Washington, DC 20052 FELDESMAN, TUCKER, LEIFER,

(202) 994-7089 FIDELL & BANK LLP

2001 L St., N.W., 2d Floor

KEVIN J. BARRY Washington, DC 20036

13406 Sand Rock Court (202) 466-8960

Chantilly, VA 20151

(703) 968-7247 Attorneys for National Institute

of Military Justice

PHILIP D. CAVE

515 King St., Ste. 420

Alexandria, VA 22314

(703) 549-6075

\4oPm

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE...............+++ 1

I. FOREIGN CASE LAW DEMONSTRATES

THE IMPORTANCE OF DETERMINING

WHETHER THE CONVENING AUTHORITY’S

SELECTION OF MEMBERS IN CAPITAL

COURTS-MARTIAL IS CONSTITUTIONAL ........ 2

Il. THIS CASE PRESENTS THE OPTIMAL

VEHICLE FOR ADJUDICATING THE

CONSTITUTIONALITY OF ARTICLE 25(d)(2)....5

CARAT sceitbtihtaisiniisdcintelicblinihivaseakstacaineadabwobei 8

TABLE OF AUTHORITIES

CASES

Burns v. Wilson, 346 U.S. 137 (1953) ..........cccceeceeeeseeeeeees 7

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

Coyne v. United Kingdom, 1997-V Eur. Ct. H.R.

POR, <<:vsinanthebecdetadalsaidnntebcldaenaeieslemaatisbcig cies 3

Findlay v. United Kingdom, 1997-I Eur. Ct. H.R. 263 ....... 2

Freedom of Expression Inst. v. President, Ordinary

Court Martial, 1999 (3) BCLR 261 (Cape

DD ii niices canticinasepeeaeanenMih fad pialdiwilinis dass 3

Lane v. United Kingdom, App. No. 27347/95 (Eur.

Comm’n of H.R. Oct. 21, 1998) 00.000... cece eee 3

Lips v. Commandant, U.S. Disciplinary Barracks, 997

Fe re LN A RE icin tent bchcaeticsesincebetenss 6

Loving v. United States, 517 U.S. 748 (1996) ...........00.0.... 7

President, Ordinary Court Martial v. Freedom of

Expression Inst., 1999 (11) BCLR 1219 (CC)........ 4

Printz v. United States, 521 U.S. 898 (1997)... 4

WR. ¥. COG, TIDUS FE Be veces iinsesicascvctinscsconences 2

Re Tyler; Ex parte Foley, (1994) 181 CLR 18 2.00.00... 4

Solorio v. United States, 483 U.S. 435 (1987)............0000... 5

United States v. Loving, 41 M.J. 213, 297 (1994).......... 4,5

Woodson v. North Carolina, 428 U.S. 280 (1976)............. 7

STATUTES

Military Discipline Supplementary Measures Act, No.

Ee Fe ie i teiarsedniccs 4

Strom Thurmond National Defense Authorization Act

for Fiscal Year 1999, Pub. L. No. 105-261,

1a OO. 6

Uniform Code of Military Justice art. 25(d)(2), 10

U.5.C. § B2S(GNZ) CIGIA) x... .ccsvecseccpecseveseses passim

OTHER AUTHORITY

Stephen Breyer, Constitutionalism, Privatization, and

Globalization: Changing Relationships

Among European Constitutional Courts, 21

Cardozo L. Rev. 1045 (2000) ..............eccceeeeeeeeee

Sujit Choudhry, Globalization in Search of

Justification: Toward a Theory of

Comparative Constitutional Interpretation, 74

Be TN ale cronccshcackccecspessttscceckocantcas

Comment, Reforming Court-Martial Panel Selection:

Why Change Makes Sense for Military

Commanders and Military Justice, 7 Geo.

Mason L. Rev. 1013 (1999) 000.0... ceceeeeeteeeeeees

John S. Cooke, The Twenty-Sixth Annual Kenneth J.

Hodson Lecture: Manual for Courts-Martial

BE BO IE Bs BHU, BEEP OED vescrcsiscveicscceccsscssescess

Dep’t of Defense, Joint Service Comm. on Mil. Just.,

Report on the Method of Selection of

Members of the Armed Forces to Serve on

Courts-Martial (Aug. 19, 1999)..............0.cccceceeee

Dep’t of Defense, Report of the Task Force on the

Administration of Military Justice in the

HT IO POPU RD voi svsccscacccaisscsccssccrcscnccssseeee

' Eugene R. Fidell, A World-Wide Perspective on

Change in Military Justice, 48 A.F. L. Rev.

Ruth Bader Ginsburg & Deborah Jones Merritt,

Affirmative Action: An International Human

Rights Dialogue, 54 Rec. of Ass’n of B. of

City of N.Y. 278 (1999), reprinted in 21

SE ac ET. UD CEPI ED vcrcksvccscvencccercsconssosenesss

Guy P. Glazier, He Called for His Pipe, and He

Called for His Bowl, and He Called for His

Members Three—Selection of Military Juries

by the Sovereign: Impediment to Military

Justice, 157 Mil. L. Rev. 1 (1998)...0.....cccecceeeeeees

Kenneth J. Hodson, The Manual for Courts-Martial

EPGE, SF WR. Be: Ws BEY oie sscsscnsstsiersnscisivcess

OB, SOM: CII, CEP ae ciceisconsteter es ies te si.

Vicki C. Jackson, Ambivalent Resistance and

Comparative Constitutionalism: Opening Up

the Conversation on “Proportionality, ”

Rights and Federalism, 1 U. Pa. J. Const. L.

Pe I hadi k ncsicnpladibated Seti dala Actuated cise

Seth F. Kreimer, Commentary: Invidious

Comparisons: Some Cautionary Remarks on

the Process of Constitutional Borrowing, 1 U.

Pa. 5. Comat. 1 GO Cine Sash ccdoccc ness

Stephen A. Lamb, The Court-Martiai Panel Selection

Process: A Critical Analysis, 137 Mil. L. Rev.

OI

Sandra Day O’Connor, Broadening Our Horizons:

Why American Lawyers Must Learn About

Foreign Law, 45 Fed. L., Sept. 1998, at 20............

3 Papers of John Adams (Robert J. Taylor, ed. 1979).......

Joseph Remcho, Military Juries: Constitutional

Analysis and the Need for Reform, 47 Ind.

Rei RO CR NUI iiciiiccsssissielabbliaaeciaeiisle eividiancssies

Resolution DH (2000) 92 (Comm. of Ministers,

Council of Eur. July 24, 2000) o.oo cccccececeseeees

David A. Schlueter, The Twentieth Annual Kenneth J.

Hodson Lecture: Military Justice for the

1990°s—A Legal System Looking for Respect,

EP WR Bi, WOE, FD oe ccevcaseeincossscersescerercs

Gary C. Smallridge, The Military Jury Selection

Reform Movement, 19 A.F. L. Rev. 343

Alexander Somek, The Deadweight of Formulae:

What Might Have Been the Second

Germanization of American Equal Protection

Review, 1 U. Pa. J. Const. L. 284 (1998)............ ae

Paul H. Turney, New Developments in Military

Capital Litigation: Four Cases Highlight the

Fundamentals, Army L., May 2000, at 103........ ~ %

Mark Tushnet, The Possibilities of Comparative

Constitutional Law, 108 Yale L.J. 1225

RDI iin kcns cites insschcishasnah ieee hanes ieee 4

James A. Young, III, Revising the Court Member

Selection Process, 163 Mil. L. Rev. 1 (2000)......... 6

~~ ~

The National Institute of Military Justice (“NIM”)

respectfully submits this brief amicus curiae in support of the

petitioner with regard to the second question presented. NIMJ

takes no position on the first and third questions presented or the

proper resolution of the second issue.

INTEREST OF THE AMICUS CURIAE

NIMS is a District of Columbia nonprofit corporation

organized in 1991." Its overall purpose is to advance the fair

administration of justice in the Armed Forces of the United

States. NIMJ fosters improved public understanding by such

means as publication of the Guide to the Rules of Practice and

Procedure for the United States Court of Appeals for the Armed

Forces and the monthly Military Justice Gazette, and the

sponsorship of seminars and training programs. Notably, in 1998

NIMJ sponsored an international conference on “Continuity and

Change in Military Justice,” in London. See http://www.

freeyellow.com/members/S/uppmij/erflon.htm. NIMJ has also

commented on and proposed changes to military procedural

tules, testified before Congress, and appeared as an amicus

curiae in the United States Court of Appeals for the Armed

Forces and before this Court 2i the petition stage in Clinton v.

Goldsmith, 526 U.S. 529 (1999). NIMJ’s directors include law

professors, private practitioners and other experts in the field,

none of whom is currently on active duty, but nearly all of whom

have served as active duty military lawyers, up to and including

flag and general officer ranks. NIMJ is entirely independent of

the government and relies exclusively on voluntary contributions

for its programs.

' No counsel for a party authored this brief in whole or in part.

No person or entity other than the amicus made a monetary

contribution to the preparation or submission of this brief.

Counsel for the parties have consented to the filing of

this brief. Copies of their responses to our requests for consent

have been lodged with the Clerk.

ARGUMENT

I

FOREIGN CASE LAW DEMONSTRATES

THE IMPORTANCE OF DETERMINING

WHETHER THE CONVENING

AUTHORITY’S SELECTION OF

MEMBERS IN CAPITAL COURTS-

MARTIAL IS CONSTITUTIONAL

The second question presented concerns the

constitutionality of Article 25(d)(2) of the Uniform Code of

Military Justice (“UCMJ”), which directs convening

authorities to select court-martial members who “are best

qualified for the duty by reason of age, education, training,

experience, length of service, and judicial temperament.” 10

U.S.C. § 825(d)(2) (1994). Recent foreign cases address the

issue of commanding officers’ power to handpick

court-martial members from among their subordinates. This

jurisprudence indicates that the method of court-martial

member selection is one of the most fundamental and

important legal questions currently faced by military justice

in democratic societies.

Petitioner points to the Canadian Supreme Court’s

decision in R. v. Généreux, [1992] 1 S.C.R. 259, and the

European Court of Human Rights’ decision in Findlay v.

United Kingdom, 1997-I Eur. Ct. H.R. 263. Pet. at 21-22.

Findlay, which held that the British Army Act 1955 violated

the European Charter of Human Rights by allowing convening

authorities to appoint court-martial members, is but one of a

2

impartiality in violation of Article 6 of the Charter. Lane v.

United Kingdom, App. No. 27347/95 (Eur. Comm’n of H.R.

Oct. 21, 1998), available at http://www.dhcour.coe.ff/

Hudoc2doc2/HEREP/199910/27347r31.ex.doc.” The European

Court reached a similar conclusion regarding Royal Air Force

courts-martial. Coyne v. United Kingdom, 1997-V Eur. Ct. H.R.

1842.

The decisions invalidating the procedures for selecting

British Army and Royal Navy court-martial members are

particularly significant. John Adams, principal author of the

1775 Rules for the Regulation of the Navy of the United

Colonies of North America and the 1776 Articles of War for

the Continental Army, patterned both after their British

counterparts. See 5 J. Cont. Cong. 670-71 n.2 (1776); 3

Papers of John Adams 147-56 (Robert J. Taylor ed., 1979).

The Uniform Code of Military Justice thus shares a common

ancestry with the British systems found insufficiently

independent in Findlay and Lane.’

A South African court cited Généreux and Findlay in

the course of holding that that country’s courts-martial were

insufficiently independent of the Executive Branch, although it

did so on grounds other than the convening authority’s

selection of the members. Freedom of Expression Inst. v.

President, Ordinary Court Martial, 1999 (3) BCLR 261

2 The Council of Europe’s Committee of Ministers has adopted

the Commission’s conclusion. See Resolution DH (2000) 92 (Comm. of

Ministers, Council of Eur. July 24, 2000), available at http://www.

dhcour.coe. fr/Hudoc2doc2/HERES32/2000 10/eresdh2000.92.doc.

> The Canadian system invalidated in Généreux shares that

common ancestor as well. See Eugene R. Fidell, A World-Wide

Perspective on Change in Military Justice, 48 AF. L. Rev. 195, 206

(2000) (noting that common law democracies trace their military justice

systems to the British Articles of War).

3

(Cape High Ct.), rev'd as moot, 1999 (11) BCLR 1219

(CC).“ On the other hand, when confronted with a

constitutional challenge to its military justice system, the High

Court of Australia considered but declined to follow

Généreux in the course of holding that Australian general

courts-martial are sufficiently independent. Re Tyler; Ex parte

Foley, (1994) 181 CLR 18.

This body of foreign case law is significant in several

respects. The decisions—and their distinct results—point to

the issue’s importance, complexity and persistence. In

contrast, the Court of Appeals for the Armed Forces sought

to resolve challenges to Article 25(d)(2)’s constitutionality in

capital cases with a single paragraph in petitioner's case and a

single paragraph in United States v. Loving. Pet. 131a-32a:

41 MJ. 213, 297 (1994), aff'd on other grounds, 517 U.S.

748 (1996). The issue merits deeper analysis.

Considering Article 25(d)(2)’s constitutionality will also

allow the Court to revisit an important jurisprudential dispute:

the proper role of foreign law in constitutional adjudication.

Since the Court declared “comparative analysis inappropriate to

the task of interpreting a constitution,” Printz v. United States,

521 U.S. 898, 921 n.11 (1997), a substantial body of

commentary has emerged on the subject,” including some by

* The Constitutional Court held that new military justice

legislation had rendered the case moot. President, Ordinary Court

Martial v. Freedom of Expression Inst., 1999 (11) BCLR 1219 (CC).

Under § 20 of that legislation, military assessors are appointed not by

the commanding officer, but by the director of military judges or an

officer appointed by the director, from a list maintained by the local

representative of the Adjutant General. Military Discipline

Supplementary Measures Act, No. 16 of 1999 (S. Aff.) (cited in Fidell,

supra note 3, at 196 n.5).

* Some academic commentary advocates comparative analysis

as a tool of constitutional interpretation. E.g., Vicki C. Jackson,

Ambivalent Resistance and Comparative Constitutionalism: Opening

Up the Conversation on “Proportionality,” Rights and Federalism, 1 U.

Pa. J. Const. L. 583 (1999); Mark Tushnet, The Possibilities -of

4

members of the Court.°

-

I

THIS CASE PRESENTS THE OPTIMAL

VEHICLE FOR ADJUDICATING THE

CONSTITUTIONALITY OF ARTICLE 25(4)(2)

The issue of Article 25(d)(2)’s constitutionality is

unlikely to percolate further in the lower courts. The Court of

for the Armed Forces has disposed of it twice in

opinions that offer little analysis. Pet. 13 la-32a; Loving, 41 M.J.

at 297. Nor will the issue be further developed on federal habeas

review of a military death sentence. Because all military death

row inmates are housed at the United States Disciplinary

Barracks at Fort Leavenworth, Kansas, habeas review will be

conducted under the Tenth Circuit’s standard of review for

collateral challenges to courts-martial. See Paul H. Tumey, New

Developments in Military Capital Litigation: Four Cases

Comparative Constitutional Law, 108 Yale L.J. 1225 (1999); Sujit

Choudhry, Globalization in Search of Justification: Toward a Theory of

Comparative Constitutional Interpretation, 74 Ind. L.J. 819 (1999).

Other commentary opposes the practice or urges caution in its use. E.g.,

Seth F. Kreimer, Commentary: Invidious Comparisons: Some

Cautionary Remarks on the Process of Constitutional Borrowing, | U.

Pa. J. Const. L. 640 (1999); Alexander Somek, The Deadweight of

Formulae: What Might Have Been the Second Germanization of

American Equal Protection Review, | U. Pa. J. Const. L. 284 (1998).

6 " Stephen Breyer, Constitutionalism, Privatization, and

Globalization: Changing Relationships Among European Constitutional

Courts, 21 Cardozo L. Rev. 1045, 1060-61 (2000), Ruth Bader Ginsburg

& Deborah Jones Merritt, Affirmative Action: An International Human

Rights Dialogue, 54 Rec. of Ass'n of B. of City of N.Y. 278 (1999)

(“comparative analysis emphatically is relevant to the task of

interpreting constitutions and enforcing human rights”) (emphasis in

original), reprinted in 21 Cardozo L. Rev. 253 (1999); Sandra Day

O’Connor, Broadening Our Horizons: Why American Lawyers Must

Learn About Foreign Law, 45 Fed. L., Sept. 1998, at 20.

5

Highlight the Fundamentals, Army L., May 2000, at 103, 104

n.16. Under Tenth Circuit case law, federal habeas review will

not reach the merits of an issue that was “given full and fair

consideration by the military courts.” Lips v. Commandant, U.S.

Disciplinary Barracks, 997 F.2d 808 (10th Cir. 1993), cert.

denied, 510 U.S. 1091 (1994). An issue that was raised before a

military court is deemed “fully and fairly considered” even if that

court rejected the claim without explanation. /d. at 812 n.2.

Thus, absent review by this Court, the Court of Appeals for the

Armed Forces’ perfunctory resolution of Article 25(d)(2)’s

constitutionality in capital cases will likely be the final word.

Despite the limited judicial consideration of Article

25(d)(2)’s constitutionality, the issue has been analyzed

thoroughly. Numerous commentators have scrutinized the

proper method of member selection.’ Pursuant to a

congressional directive, see Strom Thurmond National

Defense Authorization Act for Fiscal Year 1999, Pub. L. No.

105-261, § 552, 112 Stat. 1920, 2023 (1998), in 1999 the

Department of Defense issued a report recommending

retention of the status quo. Dep’t of Defense, Joint Service

Comm. on Mil. Just., Report on the Method of Selection of

Members of the Armed Forces to Serve on Courts-Martial

” See, e.g., James A. Young, Ill, Revising the Court Member

Selection Process, 163 Mil. L. Rev. 1 (2000); Comment, Reforming

Court-Martial Panel Selection’ Why Change Makes Sense for Military

Commanders and Military Justice, 7 Geo. Mason L. Rev. 1013 (1999);

Guy P. Glazier, He Called for His Pipe, and He Called for His Bowl,

and He Called for His Members Three—Selection of Military Juries by

the Sovereign: Impediment to Military Justice, 157 Mil. L. Rev. 1

(1998); John S. Cooke, The Twenty-Sixth Annual Kenneth J. Hodson

Lecture: Manual for Courts-Martial 20X, 156 Mil. L. Rev. 1, 25 (1998);

Stephen A. Lamb, The Court-Martial Panel Selection Process: A

Critical Analysis, 137 Mil. L. Rev. 103 (1992); David A. Schlueter, The

Twentieth Annual Kenneth J. Hodson Lecture: Military Justice for the

1990’s—A Legal System Looking for Respect, 133 Mil. L. Rev. 1, 19-20

(1991); Kenneth J. Hodson, The Manual for Courts-Martial 1984, 57

Mil. L. Rev. 1 (1972); Joseph Remcho, Military Juries: Constitutional

Analysis and the Need for Reform, 47 Ind. L.J. 193 (1972).

6

(Aug. 19, 1999). That recommendation conflicts with a

previous Department of Defense analysis, which concluded

that “the convening authority should play no part in the

selection process,” and that a system of random selection

should be adopted. Dep’t of Defense, Report of the Task

Force on the Administration of Military Justice in the Armed

Forces 90 (1972) (quoted in Gary C. Smallridge, The

Military Jury Selection Reform Movement, 19 A.F. L. Rev.

343, 351 (1978)). Thus, the question comes to the Court as

thoroughly developed as it is likely ever to be.

The narrow scope of habeas review for court-martial

convictions, see Burns v. Wilson, 346 U.S. 137 (1953),

further supports a grant of certiorari. If a military death

sentence were to reach this Court on appeal from 2 denial of

habeas, the standard of review may not allow consideration of

the merits of the petitioner’s claims. The Court should

therefore grant certiorari to ensure the issue’s full

consideration on direct review.

Finally, that this is a capital case makes it an especially

appropriate vehicle for determining Article 25(d)\2)’s

constitutionality. Resolution of this issue could, of course, affect

capital and non-capital courts-martial alike. After all, Généreux

and Findlay were both non-capital cases. But the Court may

well hold that Article 25(d)(2) offends the Eighth Amendment’s

heightened reliability requirement for capital cases, see Woodson

v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion),

and reserve for another day its constitutionality in non-capital

cases. Cf Loving v. United States, 517 U.S. 748, 774 (1996)

(Stevens, J., concurring) (reserving application of Solorio v.

United States, 483 U.S. 435 (1987), to capital cases). Such a

holding would immediately affect only six cases. See Turey,

supra, at 104. At the same time, it would provide guidance

conceming the Court’s view of Article 25(d)(2), thereby

affording Congress and the President an opportunity to correct

any constitutional defects before the Court is called upon to

consider the issue in a non-capital case that could affect a far

larger number of courts-martial.

7

CONCLUSION

For the foregoing reasons, certiorari should be granted

as to the second question presented.

Respectfully submitted,

EUGENE R. FIDELL

(Counsel of Record)

FELDESMAN, TUCKER, LEIFER,

FIDELL & BANK LLP ;

2001 L St., N.W., 2d Floor

Washington, DC 20036

(202) 466-8960

STEPHEN A. SALTZBURG

720 20" Street, N.W.

Washington, DC 20052

(202) 994-7089

KEVIN J. BARRY

13406 Sand Rock Court

Chantilly, VA 20151

(703) 968-7247

PHILIP D. CAVE

515 King St., Ste. 420

Alexandria, VA 22314

(703) 549-6075

Attorneys for National Institute

of Military Justice

November 2000