SOLORIO v. UNITED STATES
Legal provision: Article 1, Section 8, Paragraph 14: Governance of the Armed Forces
Argument of Ribert W. Bruce, Jr.
Chief Justice Rehnquist: We will hear arguments first this morning in No. 85-1581, Solorio against the United States.
Mr. Bruce, you may proceed whenever you're ready.
Mr. Bruce: Mr. Chief Justice, and may it please the Court:
The question presented in this case is whether the offenses committed by the petitioner, off base and off duty in Juno, Alaska, are subject to court martial jurisdiction.
The Court of Military Appeals decision in this case should be reversed for two reasons, which I'd like to discuss.
First, the facts of this case do not establish a service connection.
Second, the Court of Military Appeals found that there was court martial jurisdiction in this case because it employed an erroneous and deficient service connection test.
This Court has recognized that the special needs of the military justify a unique military justice system.
But it has also recognized that court martial jurisdiction should be limited to the least possible power adequate to the end proposed.
In this Court's O'Callahan and Relford decisions it has limited court martial jurisdiction by requiring that a service connection be established before a service member can be tried for civilian type offenses committed off base.
This purpose of this service connection requirement is to balance the interests of the service member in the greater protections of a civilian trial against the military interest in trying the case at a court martial.
Unknown Speaker: We're speaking only now of the alleged Alaska offense, are we not?
Mr. Bruce: --That's correct, Justice Blackmun.
Unknown Speaker: Not the New York ones.
Mr. Bruce: Not the New York offense.
Unknown Speaker: Had the Alaska authorities indicated any interest in prosecution?
Mr. Bruce: The Alaska... the Alaska authorities have given a tentative deferral of the prosecution to the Coast Guard.
But there were also indications of interest on the part of Alaska in the record.
In the record it indicated that Alaska was continuing to investigate allegations of charges against others daughters of civilians in the community there.
And there was also a message from the Coast Guard that indicated that the State of Alaska had previously, and fairly recently previously, prosecuted Coast Guardsmen for similar offenses.
Unknown Speaker: But these particular victims and their fathers are no longer there?
Mr. Bruce: That's correct, Justice Blackmun.
The criteria that are relevant to the balancing test have been limited so that the infinite permutations of possibly relevant factors will not cause confusion about the proper limits of court martial jurisdiction.
And the outcome of the balancing tests depends on the facts in each case.
In this case there's no military interest that outweighs the petitioner's interest in the greater protections of a civilian trial.
Now the limits on court martial jurisdiction are not based solely on the facts, the fact that court martials do not give service members all of the protections they would receive in a civilian trial.
The military justice system was created to serve a fundamentally different purpose than the purpose of civilian courts.
The military justice system is a tool for maintaining discipline in the military.
And another reason for limiting court martial jurisdiction is the historic disapproval of trying ordinary crimes at court martial.
Unknown Speaker: Well, you say historic disapproval.
I mean, O'Callahan, decided, what, '68, '69, was a departure from virtually a century of precedent.
There was no disapproval prior to O'Callahan.
Mr. Bruce: Well, the O'Callahan decision basically goes through the history, especially at the time of the founding of this country, and also the history of our English ancestors, and basically states that there has been a disapproval of generally trying civilian type offenses by court martial.
Unknown Speaker: Well, certainly not in this country.
Look at all the cases that O'Callahan impliedly overruled from this Court.
Mr. Bruce: Well, that... it did perhaps impliedly overturn these decisions.
But it was part of a--
Unknown Speaker: Well, then where do you get your historic disapproval from in this country?
Mr. Bruce: --Well, even after the founding of this country, O'Callahan seems to indicate that there was a period of time when in this country most ordinary offenses were not tried by court martial.
And certain for a court martial... to try to court martial a dependent or a military contractor for an ordinary type of crime would be disapproved.
Unknown Speaker: Disapproved by whom and when?
Mr. Bruce: Well, it would be disapproved by this Court.
This Court has decided--
Unknown Speaker: Before O'Callahan?
Mr. Bruce: --As I say, I believe that the founding fathers had a... and the history of our ancestors in England indicate--
Unknown Speaker: Well, do you think then the early cases from this Court didn't properly reflect this view of the founding fathers?
Mr. Bruce: --I don't think the early decisions of this Court directly addressed this particular issue.
Unknown Speaker: I think your statement, there's a historic disapproval in this country, simply isn't supported by those early cases.
I mean, O'Callahan was a sharp departure from the precedents of this Court, I think.
Mr. Bruce: Well, it was an extension, I believe, of some cases that had started to limit jurisdiction over people like military contractors and dependents.
The Court of Military Appeals did not apply this Court's Relford service connection analysis in this case.
It totally ignored, or unjustifiable minimized petitioner's interest in the greater protections of a civilian trial.
But even so, if the Court of Military Appeals had applied the Relford criteria, it would have found that the service connection question here isn't even close.
The facts of this case simply do not show significant impact from these offenses on the Coast Guard.
The petitioner in this case is an enlisted man in the Coast Guard.
At a court martial convened at the Coast Guard base on Governor's Island, he was charged with 21 specifications alleging sexual molestation of four girls.
Fourteen of the specifications alleged offenses against two of the victims committed off base and off duty in Juno, Alaska.
These are the offenses that the trial judge dismissed for lack of a service connection.
The seven remaining specifications alleged offenses against two different victims on base at Governor's Island.
Jurisdiction over these offenses has never been contested.
All of the victims are the daughters of Coast Guardsmen.
The government has tried to establish a service connection in this case by asserting every imaginable impact on the Coast Guard that could possibly result from the effect of these offenses on the victims and their fathers.
Factually, however, the government was unable to prove any significant or direct impact on the Coast Guard at trial.
As the trial judge properly found, any impact was remote or indirect, and any military interest in these offenses could be adequately vindicated in a civilian trial.
When make-weight arguments concerning nondispositive factors are stripped away from the Court of Military Appeals' decision, it's clear that it's based entirely on the dependent status of the victims.
The Court of Military Appeals did discuss two other factors that are unrelated to the dependent status of the victims, that is, the pendency of other court martial charges, and the difficulties that the State of Alaska might face in prosecuting the petitioner.
These are simply make-weight arguments, however.
They have nothing to do with the impact of these offenses on the Coast Guard.
And factors such as these are too easily manipulated and too far removed from the real interests that should be balanced to be helpful in setting clear limits on court martial jurisdiction.
Because of the dependent status of the victims, the Court of Military Appeals also discussed the nature of the offenses and the age of the victims.
It found that these offenses made the fathers less effective and unwilling to serve with the petitioner in the future.
From this it inferred that their units would suffer some less of morale.
This overstated and rather unlikely loss of morale is really the only direct... arguably direct impact on the Coast Guard that the Court of Military Appeals discussed.
Unknown Speaker: Mr. Bruce, could you give me another example, the one that you would consider the closest, where a threshold question of whether the Court has jurisdiction over the matter is to be determined on the basis of, what do we have, 21 factors, and I assume that they're not exhausted?
Is there a comparable area of the law where we've gotten ourselves into that kind of a fix, that you don't even know what court is supposed to dispose of the matter until you engage in the kind of balancing test that you're talking about?
Mr. Bruce: --Offhand, Justice Scalia, I can't think of one.
But that doesn't mean that there aren't others.
Another problem with this inference that... based on the impact of these offenses on the victims and the fathers, is that these kind of inferences can be drawn from any serious offense against a dependent victim.
Therefore, holding that these kind of factors are significant is tantamount to holding that the dependent status of the victim by itself is sufficient to establish a service connection.
But basically, whether or not the Court of Military Appeals' decision is viewed as resting entirely on the dependent status of the victims, or other factors, it should be reversed because it relied on an erroneous service connection test that did not require proof of a military interest, or that that military interest outweighed the petitioner's interest in a civilian trial.
The Court of Military Appeals' decision glossed over the fact that the trial judge applied all of the Relford criteria in this case, and didn't find a single one that supported service connection.
Unknown Speaker: xxx speaks of the military interest in so many words?
Mr. Bruce: Well, I think O'Callahan and Relford, and also this Court's Schlesinger decision, all imply that there's a balancing here between the military's interest in prosecuting a case, and the service member's interest in trial at a civilian court.
Unknown Speaker: But they don't... they don't really say that, do they?
Mr. Bruce: Justice White, that's my reading of the cases.
Unknown Speaker: Do you find the words, military interest, in the O'Callahan?
Mr. Bruce: No.
sir, I think the closest--
Unknown Speaker: Or the word, balance?
Mr. Bruce: --I think the closest that comes to that is perhaps language in Schlesinger that basically summarizes the service connection test, when it indicates that there should be a unique military interest that can't be adequately vindicated in a civilian court.
Now, admittedly, that's just a summarization.
It's a kind of a shorthand, and doesn't take in all of the factors that have to go into the test.
But I think it indicates that that's where the good... the crisis comes.
Unknown Speaker: So you don't... I take it you're not urging that there must be some finding that military discipline will be disturbed, or interfered with?
Mr. Bruce: I think that's one of the main justifications--
Unknown Speaker: But not essential?
Mr. Bruce: --Well, the other one would be something that affected a--
Unknown Speaker: Well, is it essential or not?
That's my question.
Mr. Bruce: --No, sir.
The other thing that would--
Unknown Speaker: Well, that's all I really asked.
Mr. Bruce: --Yes, sir.
The other thing that would trigger it would be an impact on the mission of the military.
I think something that affected discipline or the mission of the military would justify court martial jurisdiction.
Unknown Speaker: Well, is that just a restatement of the service connected language in O'Callahan, or is that a narrowing or a broadening of O'Callahan?
Mr. Bruce: --I intended it to be just a restatement of the language in O'Callahan.
Unknown Speaker: xxx offsenses had occurred on the base, would there be court martial jurisdiction?
Mr. Bruce: I believe that under the Relford decision, if they had occurred on a military base, there would be court martial jurisdiction.
Unknown Speaker: Even though the victims were the same?
Mr. Bruce: That's correct, Your Honor.
Unknown Speaker: And... all right.
What if the victims were not related to military personnel?
Is the base factor alone enough?
I mean, I thought the base factor was just one of the 12.
Mr. Bruce: I think that the Relford decision has indicated that a crime of violence or that violates property on a military base may be sufficient to justify service connection.
Unknown Speaker: May or is?
Mr. Bruce: Is, excuse me, Justice White.
The service connection analysis applied by the Court of Military Appeals is not bound by the result that this Court's service connection... this Court's Relford service connection analysis requires.
Rather, it seems that any military interest is sufficient to outweight the petitioner's interest in a civilian trial.
The Court of Military Appeals seems to have embraced the position of one writer who suggested that the imagination of the prosecutor was the only limitation on court martial jurisdiction now.
The Court of Military Appeals service connection analysis is so flexible, it's meaningless.
It permits military courts to base jurisdiction on any single factor or combination of factors, tangible or intangible, proven or presumed.
It invites the confusion that this Court has eliminated by its remarkably clear Relford decision.
The Court of Military Appeals analysis doesn't set any limits--
Unknown Speaker: xxx divided up argument with the amicus, but is either you or the amicus going to address the portion of the Solicitor General's brief that urges that if we agree with you, that the factors in Relford were not met, that we should overrule Relford and O'Callahan?
Mr. Bruce: --Yes, sir.
Unknown Speaker: Because if the amicus is not going to address that, I'd like to talk to you about it.
Mr. Bruce: Justice Scalia, I believe Mr. Fidell is going to address that point.
The Court of Military Appeals analysis doesn't set any limits on the factors that can be considered.
It sets the law of service connection back to the time before the Relford decision when there was concern that the infinite permutations of possibly relevant factors would cause confusion about the proper limits of court martial jurisdiction.
This Court's Relford decision is especially clear and helpful.
It sets out an analytic framework based on definite criteria.
Those Relford criteria should be the touchstone for any service connection analysis.
Even accepting for argument's sake that those criteria are not exhaustive, that doesn't justify the Court of Military Appeals ignoring the Relford criteria and deciding the service connection question in this case solely on the basis of a few other factors.
If there are no other questions, I'd like to reserve the remainder of my time.
Argument of Eugene R. Fidell
Chief Justice Rehnquist: Thank you Mr. Bruce.
We'll hear now from you, Mr. Fidell.
Mr. Fidell: Mr. Chief Justice, and may it please the Court:
First, if I may respond briefly to a question that Justice Blackmun raised during Commander Bruce's presentation.
On page 57 of the Joint Appendix there is a stipulation that indicates that if the Coast Guard were to determine that the court martial were without jurisdiction to prosecute the Alaska offenses, the district attorney's office would reconsider its decision not to prosecute.
So that there's no sense in this case that the state has washed its hands of the matter.
It's simply waiting to see the outcome.
There are, we submit, no reasons to reconsider the O'Callahan and Relford cases.
There are three possibilities that might lead the Court, as a conceptual matter, to reconsider one of its prior decisions.
One would be, for example, if it proved that the historic data on which an earlier decision had been predicated were incorrect or incomplete.
The government has pointed to nothing in this case that cast doubts on the historical materials that were presented earlier.
And we know of nothing we can add to what was before the Court when O'Callahan was decided.
A second factor that might lead the Court to reconsider a prior determination would be if the test had proved to be unworkable.
But that also is not the case with respect to the O'Callahan and Relford decisions.
The O'Callahan and Relford decisions, though they've generated some decisions, some decisional law, in the military, and in the Article III courts, have not presented a substantial problem.
Unknown Speaker: Well, one reason to reconsider O'Callahan would be if we simply felt it was wrong as a matter of constitutional law.
And of course those questions are open.
Mr. Fidell: That question obviously is always on the table, Mr. Chief Justice.
And yet I would submit that the decision is not wrong, and certainly not so clearly wrong that it would lead the Court to overturn a precedent that has--
Unknown Speaker: It has to be clearly wrong, rather than just wrong, before we overrule it?
Mr. Fidell: --I think it should be very clearly wrong.
But be that as it may, I don't think this is clearly wrong.
I don't think it was wrong at all, in fact.
I think the Court was on good ground.
And I frankly think that subsequent history has proven the Court's judgment to have been a profoundly wise matter.
Unknown Speaker: Mr. Fidell, you say that it hasn't created any decision problems.
The briefs all address the problem of drug offenses.
And I gather than the Court of Military Appeals has taken the position that drug offenses are automatically related, wherever they occur, and so forth; is that right?
Mr. Fidell: Not quite, Justice Scalia.
The position of the Court of Military Appeals with respect to drug offenses... which obviously are not this case; there's nothing in the record about drug offenses, effect of drug use on the performance of duty and so on, so it's not really an appropriate vehicle to get into that, and I think there will be an appropriate vehicle.
But the position of the Court of Military Appeals has varied over the years, basically, as I read the precedents, as the membership of the court has changed.
For some time there was a per se rule in the Beaker case, and that was overruled in 1976.
There was a subsequent rule.
At the moment the rule is not a 100 percent any drug case, there's a service connection.
Unknown Speaker: Not at the moment, but it has been?
Mr. Fidell: For awhile, but that was departed from--
Unknown Speaker: Well, here's my problem with it.
O'Callahan and Relford being constitutional decisions, every case has to decide the jurisdictional question on the basis of a rational line, is it... does it so much affect the military and so forth.
That's a very difficult process, and it's very fact bound.
Now, if we said that it isn't a matter of constitutional law, that it's up to the Congress, if Congress doesn't want all of this stuff in the military courts, they can take it out and they can adopt a clear line that says, all drug offenses will be tried... by military personnel will be tried in military courts.
One cannot arrive at any clear lines by constitutional interpretation on a question of jurisdiction that, to the extent possible, ought to be clear.
Mr. Fidell: --Well, if Congress had taken the matter in hand, it might be a different question.
But they haven't taken it in hand, and it wasn't appropriate in fact... it's not appropriate, I think--
Unknown Speaker: Well, they couldn't take it in hand, once we tell... once we tell them it's a constitutional point.
Mr. Fidell: --Yes, that's correct.
But I would quarrel with the assumption that there has been a substantial problem in terms of understanding the parameters of what the O'Callahan decision and the Relford decision say.
Unknown Speaker: I don't know what I would do with a particular drug offense.
And I think it to be very difficult to say, as a constitutional matter, whether all drug offenses are in or out.
It seems to me a hard point.
Mr. Fidell: Well, but it's a point that the Court of Military Appeals, and the other military courts, have been grappling with.
The law grows.
The military courts are in this sense no different from any other court under the Constitution, that it grows as a decisional matter, and with increasing experience, and as more is learned, for example, about the science and the toxicological aspects of drug use... all of which I feel somewhat uncomfortable about discussing in this case, because this is not a drug case, and I don't think this should be... okay, I think we understand one another.
Unknown Speaker: xxx about the forgery and fraud cases?
Mr. Fidell: You're think, I think, Justice White, of the Lockwood case.
And the problem with the Lockwood was, a chain of events that began on case, and had to do with the larceny of a wallet on base, and the larceny and use of a government identification card.
So far, we have no problem with what the Court of Military Appeals did in that case.
It's what they said in that case that gives us a lot of trouble.
And that, I think, was where the train went off the tracks in terms of the O'Callahan and Relford analysis.
That was the beginning of the substantial confusion as to what O'Callahan and Relford said.
Indeed, I don't think there was confusion, and I don't think there's confusion now.
It takes only a page and a half, in the manual for courts martial, for the President to furnish a restatement of the law of service connection.
It's not a confusing area.
It was pretty much established by 1970, particularly as regards the specific narrow issue in this case, which is, is it enough that the victim happened to be a dependent.
Unknown Speaker: Well, you could restate the law of torts in, you know, a couple of lines.
That doesn't make it clear, does it?
Mr. Fidell: I'd need more time.
Unknown Speaker: xxx anything that a reasonable man wouldn't do.
Mr. Fidell: But the problem... the problem, Justice Scalia, it might be my last clear chance.
I'd like to point cut that there are some anomalies that flow from the decision of the Court of Military Appeals.
For example, how can it be... and I'm referring here to the notion of the nonbase base... how can it be that the less base the Coast Guard has in Juno, the greater the district commander's responsibility for his personnel?
That's an irrational outcome.
Or why should it make a difference to look, for example, at the danger to morale, why should it make a difference for purposes of military jurisdiction, whether or not the victim is a dependent of a member of the Coast Guard or a dependent of a member of the Navy?
Many towns are both Navy towns and Coast Guard towns.
Or why should it make a difference if the victim was a dependent of a member of the Coast Guard, but assigned to some other unit where the morale issue wouldn't take place.
And indeed, I'd like to draw the Court's attention to another point in the Joint Appendix.
There was testimony on page 101:
Would the reputation of the Coast Guard be enhanced if the Coast Guard turned the individual who is charged over to the Alaska state authorities?
And the answer from a government witness was, I think it would, yes.
And that's the answer to the problem.
If you have a concern that people in the Coast Guard are going to feel angry that their... let's call them shipmates, even though they work in a federal building... are going to escape punishment, that would be one thing.
But there's no issue of that here.
What people, according to that witness, want, is they want to make sure that the Coast Guard is going to assist the local authorities who have primarily jurisdiction for law and order in the community.
That's where these offenses in Juno took place.
And the only problem was that if somebody misled the district attorney in thinking there might be court martial jurisdiction here and that maybe he wouldn't have to prosecute this case, a disservice was done to that district attorney.
And it's a disservice that's easily remedied.
I would like to, if I have a moment, comment briefly on the Bouie and Marks issue, only to suggest that Solorio was deprived of two things of value by the decision of the Court of Military Appeals.
Number one, he was deprived of a complete defense to the court martial, because the Court of Military Appeals changed the rules on him.
Number two, because the U.S. and Alaska are separate sovereigns, the punishment is additive; it is cumulative.
The consequence is that the net punishment for which Solorio was exposed... is exposed... has been increased on him.
And that is a black letter violation of ex post facto analysis.
I would also comment that there's no notion here about reliance interests being frustrated.
Reliance plays no role, in our submission, on this issue.
Suppose, for example, an accused was ignorant... subjectively ignorant... of what the punishment was for a particular offense.
Chief Justice Rehnquist: You're now using up your colleague's rebuttal.
Mr. Fidell: Thank you, Chief Justice Rehnquist.
And then his offense was committed, and thereafter the legislature changed the penalty.
Can there be any question but that that violates the ex post facto clause?
Argument of Charles Fried
Chief Justice Rehnquist: Thank you, Mr. Fidell.
We'll hear now from you, General Fried.
Mr. Fried: In this case... thank you, Mr. Chief Justice, and may it please the Court:
In this case, petitioner was convicted of preying sexually on the young daughters of fellow servicemen, on and off base in Alaska and New York.
The Coast Guard Court of Military Review and the Court of Military Appeals found that such charges were sufficiently service connected to justify trial by the military authorities.
Unknown Speaker: The military judge, however, found otherwise?
Mr. Fried: That is correct, Justice Blackmun.
Unknown Speaker: Was it on base in Alaska?
Mr. Fried: In Alaska it was off base--
Unknown Speaker: Off base in Alaska; on base in New York.
Mr. Fried: --in New York, the offenses were on base.
Unknown Speaker: But the New York offenses are not at issue here?
Mr. Fried: They are not at issue here.
They are relevant to our consideration, Justice Blackmun, because one of the reasons that it is appropriate to have... to have military trial here is so that the whole set... the whole set of offenses can be disposed of in one proceeding.
The power of Congress to prohibit and to provide for court martial jurisdiction of such offenses is the power in the Constitution to make rules for the government and regulation of the law and naval forces.
The exception, in the Fifth Amendment grand jury clause, for cases arising in the land or naval forces, is not so much a grant of authority as an acknowledgement that that congressional authority was there in Article I of the Constitution.
Until O'Callahan, it was quite clear, and was restated many times... in the Reid v. Covert case, in Toth v. Quarles, in Kinsella v. Singleton... that, and I quote here from Singleton, the test for jurisdiction is one of status, whether the accused can be regarded as falling within the term, land or naval forces.
That is the language of Article I.
O'Callahan added to this test an additional requirement: the the crime be service connected, in what this Court characterized as a clear break with the past.
Taking this case at its narrowest, we ask the Court to affirm the judgment that the tendency of such crimes is sufficiently poisonous of military morale, and for the indispensable relations of trust which should obtain between service members, that they satisfy the O'Callahan test, and are indeed service connected.
We submit that taking the paraphrase, the expansion of O'Callahan, in Councilman in the 1974 term, gauging the impact of an offense on miliary discipline and effectiveness, that the O'Callahan test is amply satisfied here.
The argumentation by petitioner and amici have taken us far afield from this simple truth about this case.
Particularly, they make rather heavy weather of the Relford decision and its 21 criteria.
And I think they miss the point about what Relford represented in the law when Relford came along after the shock to the system which O'Callahan represented.
Relford was decided two terms after O'Callahan, and performed the signal and the clarifying service of laying down a categorical per se rule: all offenses by service members on base, the serious offenses, are subject to court martial jurisdiction.
So what you had there was a per se categorical rule.
That's the principal effect of Relford.
Now in order to justify and to explain that rule, and further to give guidance because the Relford Court said that that per se rule marked an area, perhaps not the limit, in order to give further guidance, the Court did lay dawn, in addition, 21 factors.
What petitioner and amici due is to overlook the fact that Relford laid down a categorical per se rule of the sort we seek here.
And to suggest that each case requires the courts to solve a system of equations in 21 unknowns before they have jurisdiction, that it seems to me turns Relford on its head.
We urge, first of all, that on its individual facts, and second, as a categorical matter, that this case and cases like it, which involve serious depradations against military defendants by members of the Armed Services be admitted within the limits set out by Relford, and that this be done by a per se rule such as Relford itself set out.
First of all, it should be noted that in Relford the status of the victims as persons connected to the Armed Forces... there was a military defendant there... was specifically mentioned by the court.
Second, it would be, we think, an anomaly to be concerned for the integrity of the topographical limits of the command, and to overlook the fact that the integrity of a command is after all an integrity of an organization of people.
But there is, as Justice Scalia has pointed during the petitioner's argument, the looming problem of off base drug offenses.
This is not a drug case, to be sure.
But the issue is, has the Court of Military Appeals Trottier decision in 1980, which creates again a categorical rule for off base drug offenses, with very little exception, is that an improper understanding of this Court's jurisprudence?
If it is, then the very successful approach to drug offenses which the military has had is cast in doubt by the kind of procedure, by this complex eschewing of any kind of categorical approach which the petitioners urge on the Court today.
Finally, we urge that the Court fulfill the work of Relford by returning the law to what it was when it was announced in such landmark decisions as Reid v. Covert, Toth v. Quarles, Kinsella against Singleton, and throughout the whole history of our Constitution, which is that service... that membership in the service was a sufficient condition for court martial jurisdiction.
Unknown Speaker: You want to go back, then, to the old status argument?
Mr. Fried: We do indeed, Justice Blackmun.
We think that returning to the status argument as it was announced in cases like Reid and Toth and Kinsella, which were, after all, greatly concerned with the civil liberties issues which concern the petitioners, going back to that rule would be no violent unsettling of the law at all.
It was O'Callahan--
Unknown Speaker: It would merely overrule O'Callahan, and with it Relford, of course.
Mr. Fried: --It would overrule O'Callahan.
Relford started a process of narrowing O'Callahan, and it did so in a very substantial way.
Because it set down that per se categorical rule for all on base offenses by service members.
And the point about O'Callahan is that if we pull this one thread, which we think is a bad thread in the fabric, it would require no unravelling of the fabric of the law.
There has been only one decision since O'Callahan in which this Court once again considered the service connection decision, and that was Relford, which was a considerable narrowing... I would say taming... of O'Callahan itself.
Unknown Speaker: General Fried, before you go further on the constitutional point, let's assume we stand by Relford.
I don't understand why you think it affects military discipline or morale if... let's say I'm an officer on a base, and I learn that another officer or enlisted man for that matter is a child molester.
Now I can understand how that might affect military discipline or morale.
But I don't know why it would affect it any more if I found out that, moreover the child that this officer or enlisted man molested, was a military child; not on the base... somewhere else.
Why would that have any incremental affect whatever upon the morale of the unit?
I mean, the fact that you have a child molester in the unit, I can understand.
But what difference does it make that the child is the child of another serviceman?
Mr. Fried: --It seems to me, Justice Scalia, to make an enormous difference.
Because we are talking about the esprit and the sense of comradeship which is supposed to obtain within the military services.
So preying upon dependents of your fellow service members, in addition to being a pretty deplorable offense, is an offense to the relation of trust and comradeship which is supposed to obtain within the military services, and is an indispensable condition of the kind of morale and trust which is supposed to obtain among people who serve on ships together, whose lives depend on the exact performance of duty.
It seems to me that that comradeship is an important factor; not an irrelevance.
And was so judge to be by the Court of Military Appeals.
That's the best answer I can offer to you.
It was thought to be a powerful one by the courts below.
Unknown Speaker: So he's a thief, but he doesn't steal from his comrades.
Mr. Fried: Stealing from his comrades does aggravate the offense, and does indeed implicate the concerns of the military, is the argument we are submitting; that is correct, Justice Scalia.
It should be noted, and it's a matter of very great importance, that the O'Callahan decision, on its own terms, is by now at least obsolete.
O'Callahan was tried... although the case was decided in the '59... '68 term, O'Callahan had been tried in 1956 under the 1950 Uniform Code of Military Justice.
That Code has been twice revised since O'Callahan was tried, and important changes have occurred in 1969 and again, in 1983.
The most important of these changes were, first of all, to remove, both organizationally and in terms of evaluation, the military judge and the defense counsel from the command and from the designation by them convening authority.
They no... the convening authority no longer picks the military judge, as he did in O'Callahan's time; no longer picks the defense counsel.
That has been taken out of their hands.
Unknown Speaker: What if they change back?
Do we then change our constitutional interpretation once again, and go back to O'Callahan?
Mr. Fried: --I would think not.
I would think not.
However, the... what O'Callahan did indeed depend on was a description of the military justice system which simply is not a correct description of the military justice system as it now obtains.
It may be, Justice Scalia, that if the rule we propose, which is the pre-O'Callahan rule, of status only, were to be reinstated, aspects of the military justice system would be subject to review, not on jurisdictional grounds, but on due process grounds.
Indeed, the question of command influence, which has been very significantly address by both Congress and regulation since O'Callahan has been tried, are issues which have been brought to this Court, and which as recently as yesterday, the Court denied certiorari in cases raising that issue.
So it's not as if the O'Callahan concerns might not be addressed.
We suggest that they are not appropriately addressed in terms of a jurisdictional line.
In fact, the very best example, the very best testimony for the current state of military justice, the independence and the zeal of the defense function, has been the defense of this case in the courts below and in this Court, both in the oral and written presentations.
It seems to us that a system which nurtures such a system of advocacy against the extensions of its own authority cannot be fairly described, in Justice Douglass' mysterious term, as responding to the age-old manifest destiny of retributive justice.
It seems to me that we have seen exemplified here is a system of justice pure and simple, and that the congressional determination of what the jurisdiction of that system of justice is, the congressional determination and the determination of this Court, up until O'Callahan, should be the determination that spells the limit of when that system of justice has power over a member of the Armed Forces.
If there are no further questions, I thank the Court.
Unknown Speaker: Did you intend to address at all the ex post facto argument?
Mr. Fried: Well, the ex post facto argument troubles us a great deal, because it does not seem to us to be properly here.
The Court of Military... Coast Guard Court of Military Review determined that there was service connection in this case, and did so according to what I would call the intermediate ground which we ask from this Court; that is to say, the categorical rule of dependency status.
There was no ex post facto objection raised in the Court of Military Appeal from that objection, and therefore, it seems to us that the issue is not properly here; it was waived.
And we have not been able to discover in the petitioner's argumentation any response to this point.
Rebuttal of Ribert W. Bruce, Jr.
Chief Justice Rehnquist: Thank you, General Fried.
Mr. Bruce, you have two minutes remaining.
Mr. Bruce: First of all, I'd like to address the suggestion that there should be a per se rule, that any offense against a dependent should be service connected.
I believe it was in the case of Toth v. Quarles that this Court pointed out that the purpose of the military is to fight wars, and that other things that it does tend to detract from that.
And I would say that if all of the offenses against dependents are held to be service connected, that's going to seriously detract from the military's primary purpose of fighting wars.
I mean, you can obviously think of cases that are even further removed from military interest and discipline, or its military--
Unknown Speaker: Well, that's a good policy argument, but that can be made to the Congress.
We wouldn't be saying, you know, that it must be done this way; we'd just be saying that it can be, as a constitutional matter, it's permissible.
Now if Congress agrees with you that the military should expend its energies on something else, it takes a stroke of the pen.
Mr. Bruce: --Well, Justice Scalia, I think it's really a constitutional issue.
I mean, obviously, there are limits on Congress' authority to expand court martial jurisdiction.
Unknown Speaker: The argument you're making isn't a constitutional one.
You mean as a constitutional matter, the military should spend most of its energies fighting war?
Mr. Bruce: That's correct.
But there are constitutional arguments to be made.
And I believe that this Court would be evading its duty if it deferred to the military courts when they exceed court martial jurisdiction in a particular case.
Thank you very much.
Chief Justice Rehnquist: Thank you, Mr. Bruce.
The case is submitted.