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36 Geo. Wash. L. Rev. 435 (1967-1968)
Court of Military Appeals and the Bill of Rights: A New Look

handle is hein.journals/gwlr36 and id is 437 raw text is: THE COURT OF MILITARY APPEALS
The degree of individual protection afforded members of the armed forces by
the Bill of Rights has been the subject of much comment and controversy,'
and although the Supreme Court has never expressly held the Bill of Rights
inapplicable to the military, it strongly intimated that position more than ioo
years ago when Chief Justice Chase declared that the power of Congress, in
the government of the land and naval forces and of the militia, is not at all
affected by the fifth or any other amendment.'2 More recently, however, the
Court observed that military courts... have the same responsibilities as do
the federal courts to protect a person from a violation of his constitutional
rights.' Apparently the Court would now interpret the Bill of Rights as ex-
tending to the serviceman.4
Correspondingly the Court of Military Appeals5 has specifically held that
the protections in the Bill of Rights, except those which are expressly or by
necessary implication inapplicable, are available to members of our armed
forces.6 It has declared that the impact of the Supreme Court's decision in
i. E.g., Henderson, Courts-Marital and the Constitution: The Original Understanding,
71 Harv. L. Rev. 293 (1957); Quinn, The United States Court of Military Appeals and In-
dividual Rights in the Military Service, 35 Notre Dame Law. 491 (1960); Vagts, Free Speech
in the Armed Forces, 57 Colum. L. Rev. 187 (1957); Warren, The Bill of Rights and the Mili-
tary, 37 N.Y.U.L. Rev. x8% (1962); Wiener, Courts-Marital and the Bill of Rights: The Orig-
inal Practice (pts. - & 2), 72 Harv. L. Rev. 1, 266 (1958); Note, Constitutional Rights of
Servicemen Before Courts-Marital, 64 Colum. L. Rev. 127 (19641; Note, Military Law-The
Constitution v. Congress, 12 N.Y.L.F. 459 (1966).
z. Ex parte Milligan, 71 U.s. (4 Wall.) 2, 138 (1866) (concurring opinion (dictum). The
Court was referring to the power of Congress under U.S. Const. art. I, § 8.
3. Bums v. Wilson, 346 U.S. 137, 142 (1953). But cf. Reid v. Covert, 354 U.S 1, 37 (T956).
4. Expressly excepted from the fifth amendment requirement of indictment by grand jury
are cases arising in the land or naval forces. Similarly, members of the armed forces are
impliedly excepted from the petit jury guarantee of the sixth amendment. Ex parte Quirin,
317 U.S. 1, 40 (1942). The argument has been made that these exclusions evidence an intent
of the Framers to include the military in the other provisions of the Bill of Rights. See Hen-
derson, supra note T, at 303-16. The issue remains unsettled among lower federal courts.
Compare Application of Stapley, 246 F. Supp. 316 (D. Utah 1965), with Kennedy v. Com-
mandant, 258 F. Supp. 967 (D. Kan. 1966) and LeBalister v. Warden, 247 F. Supp. 349 (D.
Kan. %965).
5- The Court of Military Appeals consists of three judges appointed from civil life by
the President... for a term of fifteen years. Uniform Code of Military Justice art. 67(a) (T),
10 U.S.C. § 867(a)(T) (1964) [hereinafter cited as UCMJ]. During the period from 1 July
965 to 30 June 1966, the i.5th year of the court's operations, it reviewed 796 court-martial
cases of 69,174 tried in all the services. [966] Joint Rep. Court of Mil. App., JAG and Gen.
Couns. Treas.
6. United States v. Jacoby, 11 U.S.C.M.A. 428, 430-31, 29 C.M.R. 244, 246-47 (1960), over-
ruling United States v. Sutton, 3 U.S.C.M.A. 220, 1% C.M.R. 220 (1953).
December 1967 Vol. 36 No. 2

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