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DC Circuit finds court-martial of military retirees constitutional

With the door open for court-martialing retired servicemembers, a dissenting judge argues millions of Americans have lost a constitutional right.

WASHINGTON (CN) — In a 2-1 vote, the D.C. Circuit ruled on Tuesday that it is constitutional for the military to court-martial retired servicemembers for post-retirement crimes. 

The appeals court panel’s ruling reverses a federal judge's decision. Two Trump-appointed judges — U.S. Circuit Judges Neomi Rao and Justin Walker — were in the majority. with Clinton-appointed U.S. Circuit Judge David Tatel dissenting. 

Writing for the majority, Rao said the jurisdiction question depends on a single factor.

“Whether a person may be subjected to court-martial jurisdiction turns ‘on one factor: the military status of the accused,’” Rao wrote. “Based on the Supreme Court’s precedents interpreting the Make Rules Clause as well as the original meaning of that Clause, we hold that a person has ‘military status' if he has a formal relationship with the military that includes a duty to obey military orders.” 

Steven Larrabee served as a Marine for 20 years before retiring as a reservist. Although no longer on active duty, Larrabee continued to reside near his former base in Iwakuni, Japan, working as a civilian employee on the base and managing two local bars. 

Larrabee sexually assaulted a bartender — who happened to be the wife of an active-duty Marine — after a night of drinking. Military Police obtained a video of the assault on Larrabee’s phone after the bartender reported the incident. The military charged Larrabee with sexual assault and indecent recording under the Uniform Code of Military Justice, or UCMJ. 

After pleading guilty at his court-martial, Larrabee was sentenced to 10 months of confinement and a dishonorable discharge. 

On appeal at the Navy-Marine Corps Court of Criminal Appeals, Larrabee claimed the military did not have jurisdiction to court-martial him. He said the UCMJ provision that allowed reservists to be court-martialed was unconstitutional because retirees are not part of the “land and naval forces” that Congress placed under the jurisdiction of the courts-martial. Larrabee’s conviction was upheld without reaching the constitutional question posed by the case. 

The U.S. Supreme Court declined to hear Larrabee’s case in 2019. 

After exhausting appeals in military courts, Larrabee brought his case to a federal district court, arguing that the UCMJ provision was unconstitutional because a Fleet Marine reservist is practically a civilian and not subject to regulation under the make rules clause. This clause falls under Article I of the Constitutional and allows Congress to make rules for the government and regulation of the land and naval forces.

The district court ruled in favor of Larrabee, but the D.C. Circuit reversed on Tuesday. The majority found that as a Fleet Marine reservist, Larrabee was a member or part of the armed forces so his case fell under military jurisdiction under the make rules clause. 

The Supreme Court has not created a specific test to distinguish civilians from servicemembers, but Rao said the high court's rulings can be taken to suggest that a person is part of the land and naval forces if they have a formal relationship with the military that includes a duty to obey orders.

Not only does Supreme Court precedent come to this conclusion, Rao said, but it is also consistent with the original meaning of the make rules clause. In fact, she said the court-martial is actually older than the Constitution itself so one must look at English constitutional history to interpret the clause. 

“The organization and regulation of the eighteenth-century British military, as well as an American court-martial proceeding at the end of the Revolutionary War, suggest that at the Founding, the term ‘land and naval Forces’ was understood to encompass inactive-duty personnel who remained obligated to obey military orders, including orders to serve again if called,” the ruling states. “Such inactive-duty soldiers, in other words, were regarded as having ‘military status.’” 

Rao cites an example from the 18th century involving half-pay officers. These officers — similar to reservists now — were allowed to live ordinary civilian lives but would return to active-duty service if ordered. Some of these officers were court-martialed under the Mutiny Act, beginning debate over if this jurisdiction should be applied to half-pay officers. Parliament ended up amending the Act in 1748 to specify that half-pay officers were subject to court-martial jurisdiction. However, this action was reversed after public outrage and Parliament amended the act to apply this jurisdiction to only certain ranks. 

Following this structure, the Continental Army gave retired American officers half pay. This action was solidified by Congress in 1781. 

“The idea that an inactive-duty soldier might be part of the Continental Army’s ‘forces’ was therefore not foreign to Founding-era Americans,” Rao wrote. 

Tatel agreed that the case hinged on military status, but did not agree with the majority’s conclusion. He warned that the court’s ruling extended court-martial jurisdiction beyond the bounds of the Constitution and supporting case law. 

“I disagree that the type of order to which Larrabee is potentially subject — a recall order summoning him from civilian life to take up arms — is like any other military order,” Tatel wrote. “By treating it as such, the court extends court-martial jurisdiction not only to the Fleet Marine Corps Reserve, but also to roughly two million military retirees. Because this dramatic expansion of court-martial jurisdiction is beyond what the Constitution allows and case law supports, I respectfully dissent from that portion of the court’s opinion.” 

While acknowledging the majority's correct interpretation of the make rules clause, Tatel said the ruling ignores the context of the rest of the Constitution. 

He said reservists are subject to recall orders but otherwise they are treated very differently from active-duty members. Members of the Fleet Marine Corps Reserve are unassigned to a specific command, ineligible for promotion, can’t issue binding orders, do not adhere to physical fitness maintenance standards, and may not serve on or refer to charges to courts-martial.

Tatel cited a specific example in the Covid-19 vaccine requirements, which are mandatory for all active and reserve component members of the Marine Corps but not for members of the Fleet Marine Corps Reserve. 

“A recall order, then, functions as a gateway to military status,” he wrote. “The possibility of such an order certainly means that the military status of members of the Fleet Marine Corps Reserve could change, but not that they are currently part of the armed forces. Before receiving any such order, they are entitled to all jury rights guaranteed by the Constitution.” 

Warning against the possible fallout from the ruling, Tatel said it allows Korean War veterans to be court-martialed for shoplifting a newspaper from a supermarket. He also cites the possible court-martial of retired generals and admirals who spoke out against former President Donald Trump and some that are speaking out against President Joe Biden. 

“The Supreme Court has repeatedly warned of the dangers of expanding court-martial jurisdiction,” Tatel wrote. “‘Every extension of military jurisdiction is an encroachment on the jurisdiction of the civil courts, and, more important, acts as a deprivation of the right to jury trial and of other treasured constitutional protections.’ As a result of today’s decision, millions of Americans have lost one such constitutional right.” 

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