Beyond all the gnashing of teeth and tearing of clothes over the various proposals to dismantle the Uniform Code of Military Justice in an effort to eliminate “sexual assault” in the military, there are some who envision a much more terrifying future.

Last month I noted (here and here) the Supreme Court’s consideration of United States v. Kebodeaux, No. 12-418. SCOTUSblog has a great writeup of the case in its argument preview here. In short, Kebodeaux was convicted by a special court-martial in 1999 of carnal knowledge, arising from a “consensual” sexual relationship with a 15 year old. He moved to Texas and registered as a sex offender, but failed to update his registration when he moved within Texas in 2007. He was arrested in 2008, indicted for violating the federal Sex Offender Registration and Notification Act (SORNA) (enacted in 2006), and convicted.

The district court denied a constitutional challenge to the application of the statute to Kebodeaux, and a panel of the Fifth Circuit affirmed. But then the Fifth Circuit reversed in a sharply-divided en banc opinion, finding that because Kebodeaux was unconditionally released after he served the sentence of the court-martial, the federal government lacked the power to “reassert” authority over him under SORNA when he only moved within a state. The Government then petitioned SCOTUS, which granted review.

So the federal government wants to preserve the constitutionality of SORNA as applied to pre-SORNA offenses. A fairly narrow question, right? Tell me if you think so after you read the following segment from the transcript of the oral argument before SCOTUS on Wednesday, April 17, 2013 (audio here).

Note: If you’re drinking coffee, put down the cup before you read further.

MR. DREEBEN (Deputy Solicitor General): Justice Alito, I think the most helpful way to do that would be for me to progress through a series of examples that illustrate how protecting the public against a Federal sex offender is a legitimate aim under the Necessary and Proper Clause to implement the underlying constitutional authority.


MR. DREEBEN: So start with a sex offender who commits a sex offense in the military, is tried, court-martialed and sentenced. Subject to cruel and unusual punishment limitations, due process limitations, et cetera, that individual can be incarcerated, placed on supervised release potentially up to life. A condition of supervised release, well-recognized and now mandated by Federal law, is that that individual register as a sex offender. And the reason that that is tied to Federal law is that when an individual violates Federal law it is a legitimate purpose of Congress to protect the public against recidivism by that individual. So that’s the criminal example that I believe is undisputed.

Now, suppose that the Federal Government didn’t actually get the sex offender while he was in the military. It missed the crime, but later information comes to light still within the statute of limitations that shows that while this person was in the military they committed a sex offense. This court in United States ex rel. Toth v. Quarles made clear that that individual can be tried in an Article III court for his criminal violation even though he’s out of the military. It’s enforcing the rules that were impressed upon him at the time while he was in the military.

Now let me give a civil example and then I will bring it right back to this case. Suppose that Congress concludes that sex offenses in the military are a very serious problem and that there are a lot of people who have escaped prosecution because of lax interest in pursuing those crimes. And after a period of years, it sets up a board of inquiry and it says this board of inquiry is going to look into sex offenses that were committed at the time that people were in the military, even if they’re out of the military, and we’re going to subpoena people to testify, and if individuals are determined in a civil proceeding to have committed sex offenses they may have their military records revised, they may lose military benefits, and they may have other civil sanctions imposed upon them.

JUSTICE ALITO: When you say in a civil proceeding, you mean?

MR. DREEBEN: Yes, noncriminal. Noncriminal.

JUSTICE SCALIA: So it’s just by a preponderance of the evidence we think this guy probably, you know, 51/49, committed a sex crime.

MR. DREEBEN: Not going to be a criminal punishment that’s imposed at the end of the day.

JUSTICE SCALIA: So just — just more -more likely than not is the test.

MR. DREEBEN: That’s an acceptable level of proof for the civil law.

And if Congress can do that in order to protect the integrity of the military and to promote confidence in the military, then it’s a very small step, if any step at all, to SORNA.

For those with skeletons in their closets, now might be a good time to take your framed honorable discharge certificate off the wall…

9 Responses to “Limiting clemency and discretion could be just the beginning”

  1. Contact Lawyer says:

    An excellent way to reduce expenditures. Of course someone is going to have to set up a process to conduct these civil proceedings.

  2. Dew_Process says:

    I don’t think that you can stretch Toth that far.  It was a military habeas case where after Toth was legitimately discharged, they found out he’d been involved in a murder while stationed in Korea.  The AF brought Toth back to active duty for purposes of court-martialing him – he sought habeas relief alleging that the military had no in personam jurisdiction over him, which SCOTUS ultimately agreed with.  It was the 3 dissenting justices in Toth which made the “Necessary and Proper” clause argument that ASG Dreeben is arguing – an argument rejected by the 6 Justice majority.

  3. Zachary Spilman says:

    DP: I had the same thought when I heard the argument. But I think the Government’s point goes to this language from Toth:

    Fear has been expressed that if this law is not sustained discharged soldiers may escape punishment altogether for crimes they commit while in the service. But that fear is not warranted and was not shared by the Judge Advocate General of the Army who made a strong statement against passage of the law. He asked Congress to ‘confer jurisdiction upon Federal courts to try any person for an offense denounced by the (military) code if he is no longer subject thereto. This would be consistent with the fifth amendment of the Constitution.’ The Judge Advocate General went on to tell Congress that ‘If you expressly confer jurisdiction on the Federal courts to try such cases, you preserve the constitutional separation of military and civil courts, you save the military from a lot of unmerited grief, and you provide for a clean, constitutional method for disposing of such cases.’ It is conceded that it was wholly within the constitutional power of Congress to follow this suggestion and provide for federal district court trials of discharged soldiers accused of offenses committed while in the armed services. This concession is justified. There can be no valid argument, therefore, that civilian ex-servicemen must be tried by court-martial or not tried at all. If that is so it is only because Congress has not seen fit to subject them to trial in federal district courts.
    U. S. ex rel. Toth v. Quarles, 350 U.S. 11, 20-21 (1955) (citations omitted) (emphasis added).
  4. Dew_Process says:

    ZS – I agree to a point.  But, it seems to me that Congress has spoken – at least in the context of former military members via MEJA, as the indictment of former Marine, Jose Nazario demonstrated.,_Jr.
    Dreeben’s argument appears to be advocating an ex post facto position which raises its own constitutional concerns.

  5. Zachary Spilman says:

    You and me both DP.

    I said “more terrifying future.” I warned everyone to “put down” their coffee cups. And while I didn’t explicitly say duck and cover, I think I made that point.

    As much as we think our justice system is under attack now, the SG’s office just used Kebodeaux to remind us that it could get much worse (assuming, as I think it’s safe to do so, that Mr. Dreeben’s hypothetical was appropriately vetted).

  6. Paleo Living says:

    1) How is Mr. Dreeben justifying that his hypothetical kangaroo court is going to somehow preserve the integrity of the military justice system and preserve confidence in the military? For starters, since the issue of the day / week / year is sexual assault, are these civil proceedings really going to represent justice to a rape victim? Will the friends and family of that victim have confidence in the military because of a civil proceeding years after the fact? Oh, by the way, what happens when these alleged offenders allegedly do something in year 3 of a 20 year career, or otherwise leave the military after the statute of limitations expires? What justice is to be done then? 2) Aside from the fact that such an idea is more like the Salem Witch Trials than a prudent system of justice, what about the issue of equal protection such that those is similar situations receive the same treatment? What if Joe Infantry goes out assaults Bob Supply at a bar, breaks his face apart and Bob leaves the military. Joe isn’t punished in the military but Bob is messed up for life. Is the Government going to set up special boards to punish Joe? If Person X is raped and makes allegations and the rapist is finally thrown into this civil proceeding to rescue the sanctity and good name of the military, but Bob’s allegations fall on deaf ears, then what’s been done for Bob and what’s happened to his voice and his right to be heard, etc? Isn’t Bob just as much of a victim? All crimes produce victims and they are all unique and there are certainly some tiers of severity. But a victim of a brutal assault, or victim of an arsonist that burns down his home, they will have trauma to deal with. Do they not deserve justice too?
    The other thing I surmise from Mr. Dreeben’s narrative is this: If such a plan is in the works then there are likely two reasons why: a) enactment will be used solely for votes not for justice, and b) Congress has no hope for, and no confidence in, the senior leaders of the military to work through current difficulties to make the military justice system a platform of excellence rather than a platform of endless disappointments.
    If ‘b’ is at all true, then it speaks volumes for the perceived lack of integrity within the ranks and should signal to the SecDef that this is not a rough patch, it’s a crisis, a true crisis. 

  7. k fischer says:

    I didn’t have to put my coffee down, as I’m not the least bit surprised by the SG’s comments.  I see the connection between what is happening with Colleges and the “Dear Colleague” letter and the future application to the Armed Services.   Federal funding for the Violence Against Women Act creates over a half-billion dollars in 2010, and between 6-10 million dollars each year for campus funding.  Just think what VAWA organizations can do when they tap into the DoD budget.  
    From looking at what these groups are doing in the collegic environment, it seems likely that these organizations perceive the burden of proof as the problem in investigating and prosecuting sexual offenses.
    What is clear is that these organizations have targeted the military and a tsunami of pro-accuser federal dollars is coming to combat the problem.  The options for stakeholders in the military legal community are: (1) duck dive the swell and move onto some other area of the law that is less emotionally draining; (2) stand in front of the tsunami and attempt to fight the legislative changes that are coming; or (3) recognize the coming swell, paddle outside, catch the wave, and ride it for all its worth.  

  8. Charlie Gittins says:

    KF:  I gave up MJ and found a nice corporate lawyer job where I get to chase, investigate and help convict bad guys stealing from my company.  Much less stress than what will be coming for defense counsel in the military justice system.  You are totally right about the VAWA organizations getting ready to feed at the slop chute of federal dollars.  It will be “justice” part of military justice that is damaged in the end

  9. k fischer says:

    Ever thought about writing a book?  Kind of a practice manual of sorts.  For instance, I used your cross examination script of a Drug Lab Expert that you provided a CLE one time in a separation board for an E7 accused of using cocaine.  Worked like a charm; the board found misconduct, but retained him based on residual doubt.  
    I bet you have a folder on your desktop full of stuff like that:  Direct and cross scripts, trial transcripts, closing arguments, trial strategies, marketing strategies, Motions, etc. that would be very helpful to a military practitioner defending Servicemembers against sexual assault, war crimes, drug offenses.
     ‘Twould be a shame to let all that knowledge go to waste.