# Amicus Curiae Brief — Gray v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1441%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 919

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1441%3A2. Public record. Not legal advice.