Treating Members of the Military at Least as Well as Inmates and Students: Determining When Military Necessity Requires Infringing upon Constitutional Rights in Cases before the Court of Appeals for the Armed Forces

By Caruco, Rodrigo M. | The University of Memphis Law Review, October 1, 2015 | Go to article overview

Treating Members of the Military at Least as Well as Inmates and Students: Determining When Military Necessity Requires Infringing upon Constitutional Rights in Cases before the Court of Appeals for the Armed Forces


Caruco, Rodrigo M., The University of Memphis Law Review


I. INTRODUCTION 62

A. The Inmate Community 64

B. The Student Community 68

C. The Military Community 74

II. THE CONSTITUTION AND THE MILITARY 77

A. The Military Deference Doctrine 78

B. The Military Community 81

C. The Court of Appeals for the Armed Forces 91

D. Evolution from Congressional Prerogative to Constitutional Roots 93

E. The Military Necessity Doctrine 101

III. SHAPING AN UNDERSTANDING OF MILITARY NECESSITY 105

A. Defining Military Necessity 105

B. Research Method 107

C. Some Initial Observations on the Results 108

1. Inconsistent Articulation of When and How the Military Necessity Doctrine is Applied 109

2. Simple Assertion is Not Enough 110

3. Military Necessity Examples in Light of the Evolution in the Military Community and the Court's Constitutional Interpretation 113

IV. THEMES AND EXAMPLES OF MILITARY NECESSITY 115

A. Mission Accomplishment 116

1. Essential to Mission Accomplishment 116

2. Impedes Mission Accomplishment 119

B. Injury A voidance 122

1. Grave Danger to Society 122

2. Manifest Injury to the Armed Forces 123

C. Good Order and Discipline 124

1. Demand for Discipline and Duty 125

2. Responsiveness to Command 127

V. A PROPOSED FRAMEWORK FOR THE MILITARY NECESSITY DOCTRINE 129

A. Meeting the Burden for a Different Application of a Rule 129

B. The Proposed Framework in Which to Argue Military Necessity 130

1. Similar Threshold Requirements 130

2. Military Necessity is a Compelling Interest 131

3. The Value of a Narrow Tailoring Approach 131

VI. CONCLUSION 132

I. INTRODUCTION

For substantially similar reasons, three communities in American society are not entitled to the full panoply of rights protected by the Constitution of the United States: inmates, students, and members of the United States military. The individuals within these communities do not give up their rights due to membership. The compelling need for order, discipline, and safety, however, requires that the Constitution be applied to each community differently than how it is applied to the remaining members of American society. For student and inmate communities, the Supreme Court of the United States ("the Court") has remained actively involved in this process. Not only has the Court determined that the needs of these two communities require a different application of the Constitution, it has also articulated the framework that specifically delineates how the Constitution is to be applied.

That has not been the case with regard to the Court's involvement in the military community. Instead, the Court has largely deferred supervision of service member rights to the United States Court of Appeals for the Armed Forces ("CAAF"), the highest court in the military criminal justice system. This Article proposes that the existence of CAAF makes it unnecessary for the Court to supervise the military community as actively as it has in both the inmate and student communities. Unlike the Court in these communities, however, CAAF has yet to adequately develop its framework for how the Constitution interacts with the military community in regards to criminal law.

Cases and controversies within the inmate and student communities arise under existing state and federal judicial systems, and the Court has declared that the unique need for order, discipline, and safety requires that the Constitution be applied to these communities differently than how it is applied to broader American society. Concerning the inmate community, the Court's decision in Turner v. Safley1 encapsulates its understanding of that community and includes the applicable framework to virtually all circumstances that arise in the inmate community.2 In slight contrast, the Court's understanding of the student community, as well as the appropriate framework to be applied in an individual case, is best understood through a series of decisions arising in various contexts. …

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