United States ex rel. New v. Gates - Opposition

Docket number: 
No. 06-691
Supreme Court Term: 
2006 Term
Court Level: 
Supreme Court


No. 06-691

In the Supreme Court of the United States

UNITED STATES OF AMERICA
EX REL. MICHAEL G. NEW, PETITIONER

v.

ROBERT M. GATES, SECRETARY OF DEFENSE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record

ALICE S. FISHER
Assistant Attorney General

THOMAS E. BOOTH
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly rejected peti tioner's collateral challenge to his conviction by court- martial for failing to obey a lawful order issued by a member of the armed forces, in violation of Article 92(2) of the Uniform Code of Military Justice, 10 U.S.C. 892(2).

In the Supreme Court of the United States

No. 06-691

UNITED STATES OF AMERICA
EX REL. MICHAEL G. NEW, PETITIONER

v.

ROBERT M. GATES, SECRETARY OF DEFENSE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-14a) is reported at 448 F.3d 403. The opinion of the district court granting respondents' motion to dismiss (Pet. App. 15a-53a) is reported at 350 F. Supp. 2d 80.

JURISDICTION

The judgment of the court of appeals was entered on May 23, 2006. A petition for rehearing was denied on August 17, 2006 (Pet. App. 54a). The petition for a writ of certiorari was filed on November 15, 2006. The juris diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

At a special court-martial, petitioner was convicted of failing to obey a lawful order issued by a member of the armed forces, in violation of Article 92(2) of the Uni form Code of Military Justice, 10 U.S.C. 892(2). Peti tioner was sentenced to a bad-conduct discharge. The Army Court of Criminal Appeals affirmed, 50 M.J. 729 (1999), and the Court of Appeals for the Armed Forces affirmed. Pet. App. 55a-131a. Petitioner then filed a civil action against respondents, the Secretary of De fense and the Secretary of the Army, in the United States District Court for the District of Columbia, chal lenging his conviction on various grounds. Id. at 170a- 186a. The district court granted respondents' motion to dismiss for failure to state a claim. Id. at 15a-53a. The court of appeals affirmed. Id. at 1a-14a.

1. Petitioner was a medic in the United States Army. In 1992, the United Nations established a protective force in the Former Yugoslav Republic of Macedonia. In 1995, petitioner's unit was ordered to deploy to Macedo nia as part of the United Nations protective force. In connection with the deployment, members of the unit were ordered to wear various items of United Nations insignia along with their ordinary Army uniforms. Peti tioner expressed concerns to his supervisors about the lawfulness of the Army's participation in the mission generally and the lawfulness of the uniform-modification order more specifically. Petitioner's unit was ordered to begin wearing the modified uniform at a battalion for mation on October 10, 1995. When petitioner appeared at the battalion formation, he was wearing a uniform without the required United Nations insignia. He was removed from the formation and subsequently declared non-deployable. Pet. App. 1a-2a, 57a-59a.

2. On October 17, 1995, petitioner was charged be fore a special court-martial with failing to obey a lawful order issued by a member of the armed forces, in viola tion of Article 92(2) of the Uniform Code of Military Jus tice, 10 U.S.C. 892(2). Petitioner moved to dismiss the charge on the grounds, inter alia, (1) that the uniform- modification order was unlawful under Army Regulation 670-1, which governs Army uniforms and insignia, and Article I, Section 9, of the Constitution, which prohibits a federal officeholder from accepting an emolument from a foreign government without congressional con sent, and (2) that the Army's participation in the peace keeping mission, and thus the underlying deployment order, were also unlawful. The military judge denied petitioner's motions to dismiss, reasoning that the uniform-modification order was lawful and that peti tioner's challenge to the underlying deployment order presented a nonjusticiable political question. After a trial, the court-martial panel found petitioner guilty, and petitioner was sentenced to a bad-conduct discharge. Pet. App. 2a-3a.

3. On appeal, petitioner renewed the arguments from his motions to dismiss and also argued that the military judge erred by deciding the lawfulness of the uniform-modification order, rather than submitting it to the court-martial panel. The Army Court of Criminal Appeals affirmed. 50 M.J. 729 (1999). It held that the military judge correctly concluded that the uniform- modification order was lawful, id. at 740; that the mili tary judge correctly concluded that petitioner's chal lenge to the underlying deployment order presented a nonjusticiable political question, id. at 739-740; and that the military judge properly decided the lawfulness of the uniform-modification order, on the ground that, "[w]hen disobedience of an order is charged, the legality of the order is normally a question of law to be determined by the military judge as an interlocutory matter." Id. at 738.

4. The Court of Appeals for the Armed Forces (CAAF) affirmed. Pet. App. 55a-131a.

a. As is relevant here, the CAAF first held that the military judge properly decided the lawfulness of the uniform-modification order, rather than submitting it to the court-martial panel. Pet. App. 63a-76a. The court reasoned that "lawfulness of an order * * * is not a discrete element of an offense under Article 92" but is instead "a question of law" that the military judge could validly decide. Id. at 64a. The court explained that "[i]nclusion of the word 'lawful' in Article 92 did not add a separate element to the offense of violating a regula tion or order"; rather, it "simply reinforce[d] the oppor tunity for the accused to challenge the validity of the regulation or order." Id. at 73a. "Adjudicating the issue of lawfulness as a question of law for the military judge," the court continued, "ensures that the validity of the regulation or order will be resolved in a manner that provides for consistency of interpretation through appel late review." Id. at 74a.

The CAAF then held that the uniform-modification order was lawful. Pet. App. 76a-81a. The court rea soned that "[o]rders are clothed with an inference of lawfulness," id. at 77a, and determined that "the evi dence presented by [petitioner] did not overcome the presumption of lawfulness." Ibid. The court explained that "it is difficult to think of a requirement more neces sary to promoting the basic [peacekeeping] mission or to safeguarding discipline and morale of deployed troops than uniform requirements." Id. at 80a.

Finally, the CAAF held that petitioner's challenge to the underlying deployment order presented a nonjustici able political question. Pet. App. 81a-83a. The CAAF reasoned that "[c]ourts have consistently refused to con sider the issue of the President's use of the Armed Forces." Id. at 82a.

b. Judge Effron concurred. Pet. App. 84a-94a. While he agreed that the military judge was not re quired to "submit the issue of legality to the [panel] members as an essential element of the offense," id. at 85a, he suggested that the Manual for Courts-Martial should "provide more detailed guidance as to the appro priate means by which the legality of an order should be raised and adjudicated in a court-martial." Id. at 88a.

c. Judge Sullivan concurred in the result. Pet. App. 94a-126a. He concluded that the military judge had erred by deciding the lawfulness of the uniform-modifi cation order because the lawfulness of the order consti tuted "an element of the crime which is a mixed question of fact and law." Id. at 115a. He reasoned that this case was therefore analogous to United States v. Gaudin, 515 U.S. 506 (1995), in which the Court held that the materi ality of a fact contained in a false statement should be submitted to the jury in a prosecution under 18 U.S.C. 1001. Pet. App. 115a-121a. Judge Sullivan concluded, however, that any error in failing to submit the lawful ness of the order to the court-martial panel was harm less because "it was uncontroverted in [petitioner's] case that he was ordered to wear the UN badges and cap per tinent to the official deployment of his unit to Macedonia as part of a peacekeeping mission"; "[i]t was also uncontroverted that the order to wear these badges was given by his commanders as part of the operations plans for the mission and for safety purposes"; and petitioner "proffered no [contrary] evidence." Id. at 124a-125a.

d. Judge Everett concurred in part and concurred in the result. Pet. App. 126a-131a. He reasoned that the political question doctrine precluded petitioner's chal lenge to the lawfulness of the deployment order, id. at 129a, and that any question of fact relating to the lawful ness of the uniform-modification order was "so insub stantial that the judge's failure to instruct thereon was not reversible error." Id. at 131a.

5. This Court denied review of the CAAF's decision. 534 U.S. 955 (2001).

6. Petitioner filed a civil action against respondents in the United States District Court for the District of Columbia, which, as amended, challenged his conviction on various grounds. In that action, petitioner claimed that he was denied due process because (1) the military judge, rather than the court-martial panel, decided the lawfulness of the uniform-modification order; (2) the military judge held that the legality of the underlying deployment order presented a nonjusticiable political question; (3) the military courts should have more fully considered his claim that the uniform-modification order violated Article I, Section 9, of the United States Consti tution; and (4) the military judge erred by determining that the items of United Nations insignia were justified under Army Regulation 670-1. Pet. App. 22a-23a, 170a- 186a.

Treating the action as a petition for habeas corpus under 28 U.S.C. 2241, the district court granted respon dents' motion to dismiss for failure to state a claim. Pet. App. 15a-53a. As a preliminary matter, the court rea soned that, while it could consider constitutional as well as non-constitutional claims on collateral review of a military conviction, it would "afford substantial defer ence to the military courts in their application of mili tary law." Id. at 31a.

On the merits of petitioner's claims, the district court first rejected petitioner's claim that the military judge erred by deciding the lawfulness of the uniform-modifi cation order. Pet. App. 32a-34a. The court reasoned that, "[t]o the extent that a right to jury trial exists in this context, it is a creation of the Uniform Code of Mili tary Justice, not the United States Constitution," id. at 33a (footnote omitted), and that petitioner's claim in volved "rather specialized questions of military law on which the Court defers to the military courts." Id. at 34a. The court then rejected petitioner's challenge to the deployment order. Id. at 34a-50a. The court rea soned that each of petitioner's bases for challenging the order either implicated a nonjusticiable political ques tion or lacked merit. Id. at 40a-50a. Finally, the court rejected petitioner's challenges to the uniform-modifica tion order. Id. at 50a-52a. With regard to petitioner's claim under Article I, Section 9, of the Constitution, the court reasoned that the claim "was extensively litigated at trial" and "raised and rejected on appeal," id. at 51a; that "[p]etitioner has offered (and there appears to be) no Supreme Court precedent defining the scope and application of [Section 9]," ibid.; and that, "[i]n any event, in the judgment of this Court[,] the uniform order does not violate the plain language" of that provision. Id. at 52a n.16. With regard to petitioner's claim under Army Regulation 670-1, the court reasoned that "[p]etitioner in essence asks this Court to re-weigh the evidence presented to the trial judge," Pet. App. 51a; that "[t]he military judge found petitioner's fundamental proffer insufficient to rebut the presumption of lawful ness that attaches to military orders," ibid.; and that "it is not for this Court to disturb that finding." Ibid.

7. The court of appeals affirmed. Pet. App. 1a-14a.

a. As a preliminary matter, the court of appeals de termined that jurisdiction rested not on the habeas stat ute, 28 U.S.C. 2241, but on the general federal-question statute, 28 U.S.C. 1331, because petitioner was not in custody. Pet. App. 4a. The court explained that, in Schlesinger v. Councilman, 420 U.S. 738 (1975), this Court had suggested that, although there was federal jurisdiction over a collateral challenge to a military con viction even in the absence of custody, collateral review was available only to challenge "fundamental" defects that rendered the conviction "void." Pet. App. 4a. The court reasoned that this standard of review was "more deferential than habeas review of military judgments," which was itself at least as deferential as habeas review of state-court judgments. Id. at 5a. The court noted that, in Burns v. Wilson, 346 U.S. 137 (1953), a plurality of this Court had suggested that the relevant inquiry, in conducting habeas review of military judgments, was whether the military had given "fair consideration" to each of the habeas petitioner's claims. Pet. App. 5a. The court indicated that it was unclear whether, in light of the fact that state-court judgments are entitled to greater deference on habeas review now than they were at the time of Burns, military judgments should be enti tled to greater deference as well. Id. at 6a-7a. The court added, however, that "we have serious doubt whether the judicial mind is really capable of applying the sort of fine gradations in deference that the varying formulae may indicate." Id. at 7a. "It suffices for our purposes," the court concluded, "to repeat Councilman's statement that errors must be fundamental to void a court-martial judgment on collateral review." Ibid.

b. The court of appeals proceeded to hold that, un der a deferential standard of review, all of petitioner's claims lacked merit. Pet. App. 7a-14a.

The court of appeals first rejected petitioner's claim that the military judge erred by deciding the lawfulness of the uniform-modification order. Pet. App. 7a-9a. The court noted that petitioner could invoke only the Due Process Clause to support that claim, because the right to a jury trial under the Sixth Amendment is inapplica ble in a court-martial. Id. at 7a. The court additionally noted that it was only "by virtue of a statute" that "any element of the offense must be submitted to the military jury for evaluation under the reasonable doubt stan dard." Id. at 8a (citing 10 U.S.C. 851(c)). Whatever the source of the right on which petitioner relied, the court reasoned that "[i]dentifying the elements of a statutory provision defining a crime is an exercise in statutory interpretation," ibid., and concluded that there was "no fundamental defect in the [CAAF's] conclusion that the lawfulness of an order is not a separate and distinct ele ment of the offense." Ibid.

The court of appeals next rejected petitioner's chal lenges to the uniform-modification order. Pet. App. 9a- 11a. With regard to petitioner's claim under Army Reg ulation 670-1, the court reasoned that petitioner had "acknowledge[d] the presumption of lawfulness that attaches to military orders" but "did not proffer any evi dence" to overcome that presumption. Pet. App. 10a. The court noted that Judge Sullivan, who had disagreed with the CAAF majority on whether the military judge could decide the lawfulness of the uniform-modification order, had concluded that any error was harmless be cause the commanders had "indisputably" issued the order for mission-related and safety purposes. Ibid. The court therefore concluded that it "c[ould] find no fundamental defect in the [CAAF's] consideration of the issue." Id. at 11a. With regard to petitioner's claim un der Article I, Section 9, of the Constitution, the court noted that petitioner "offer[ed] no legal analysis" sup porting his claim, and that the claim was "a stretch at best." Pet. App. 11a. For that reason, the court con cluded, the military judge did not err by disposing of that claim summarily. Ibid.

Finally, the court of appeals rejected petitioner's challenge to the deployment order. Pet. App. 11a-14a. The court stated that "the military courts' use of the political question doctrine deserves deference." Id. at 12a. The court reasoned that, regardless whether peti tioner's claims would be barred by the political question doctrine in an ordinary civil suit, "the military justice context compels a somewhat broader doctrine in light of the implications of any alternative view." Id. at 13a. The court explained that a contrary holding would allow a soldier to invoke "a self-help remedy of disobedience" and to use a court-martial as "a vehicle for altering the traditional relationship between the armed forces and the civilian policy making branches of government." Ibid. (citation omitted). "Given the threat to military discipline," the court concluded, "we have no difficulty accepting the military courts' reliance on the [political question] doctrine." Id. at 14a.

ARGUMENT

Petitioner contends (Pet. 11-20) that the court of ap peals applied an erroneous standard of review to claims raised in a collateral federal-court challenge to a convic

tion by court-martial. Petitioner also contends (Pet. 20- 30) that the military judge deprived him of due process by deciding the lawfulness of the uniform-modification order, rather than submitting that issue to the court- martial panel, and by holding that the lawfulness of the deployment order presented a nonjusticiable political question. None of those contentions warrants further review.

1. This Court's most relevant decision on the stan dard of review for claims raised in a collateral challenge to a conviction by court-martial is Burns v. Wilson, 346 U.S. 137 (1953). In Burns, this Court affirmed the dis missal of petitions for habeas corpus filed by two mili tary prisoners convicted by courts-martial of murder and rape. In a plurality opinion, four members of the Court concluded that, on habeas review of military judg ments, the appropriate inquiry was "whether the mili tary have given fair consideration to each of [peti tioner's] claims." Id. at 144. Because the military courts had "heard petitioners out on every significant allega tion which they now urge," the plurality concluded that "[p]etitioners ha[d] failed to show that this military re view was legally inadequate." Id. at 144, 146. By con trast, the plurality reasoned, a district court could re view claims de novo where the underlying allegations were "sufficient to depict fundamental unfairness" and "the military courts [had] manifestly refused to consider those claims." Id. at 142. Justice Minton concurred in the judgment, reasoning that the sole function of a court conducting habeas review was "to see that the military court ha[d] jurisdiction, not whether it ha[d] committed error in the exercise of that jurisdiction." Id. at 147. Justice Jackson concurred in the result without opinion. Id. at 146.

As one court of appeals recently noted, since this Court's decision in Burns, "[t]he degree to which a fed eral habeas court may consider claims of errors commit ted in a military trial has * * * been the subject of con troversy and remains unclear." Brosius v. Warden, U.S. Penitentiary, 278 F.3d 239, 242 (3d Cir.) (Alito, J.), cert. denied, 537 U.S. 947 (2002). Although the courts of ap peals have articulated the standard of review for claims raised in a habeas petition in different ways, however, they have been in broad agreement on two principles. First, the courts of appeals have generally held that, where the claims at issue have already been considered by the military courts, only claims involving fundamen tal or substantial constitutional errors are cognizable on collateral review. See, e.g., Bowling v. United States, 713 F.2d 1558, 1561 (Fed. Cir. 1983) (explaining that "the constitutional claims made must be serious ones" and "demonstrate convincingly that in the court-martial proceedings there has been such a deprivation of funda mental fairness as to impair due process"); Calley v. Callaway, 519 F.2d 184, 199 (5th Cir. 1975) (stating that "[t]he asserted error must be of substantial constitu tional dimension"). Second, the courts of appeals have generally held that, even with regard to such constitu tional claims, the decisions of the military courts are entitled to at least some degree of deference. See, e.g., Brosius, 278 F.3d at 245 (stating that "our inquiry in a military habeas case may not go further than our inquiry in a state habeas case" and assuming, for the sake of argument, that the deferential standard of 28 U.S.C. 2254(d) was applicable to the substantive determinations of military courts); Kauffman v. Secretary of the Air Force, 415 F.2d 991, 997 (D.C. Cir. 1969) (explaining that "the test of fairness requires that military rulings on constitutional issues conform to Supreme Court stan dards, unless it is shown that conditions peculiar to mili tary life require a different rule").

Insofar as the courts of appeals have articulated dif ferent formulations of the standard of review for collat eral challenges to convictions by courts-martial, this case would constitute a poor vehicle in which to address those inconsistencies, because it presents an additional complication: viz., that, because petitioner is not in cus tody, jurisdiction rests not on the habeas statute, 28 U.S.C. 2241, but on the general federal-question statute, 28 U.S.C. 1331. See Pet. App. 4a. In this case, the court of appeals suggested that the standard of review in a collateral challenge under 28 U.S.C. 1331 was "more def erential" than the standard of review on habeas, Pet. App. 5a, though it ultimately concluded only that "errors must be fundamental to void a court-martial judgment on collateral review." Id. at 7a. As the court of appeals noted (id. at 5a), moreover, this Court's decision in Schlesinger v. Councilman, 420 U.S. 738 (1975), seemingly supports the proposition that the standard of review in collateral challenges under Section 1331 should be more deferential. See id. at 753 (noting that "grounds of impeachment cognizable in habeas proceed ings may not be sufficient to warrant other forms of col lateral relief"). Although petitioner and his amicus cite various cases (including Kauffman) in which lower courts have applied the same standard of review in col lateral challenges under Section 1331 as on habeas, they do not identify any case (other than this one) that has even discussed, much less rejected, the argument that the standards should be different. To the extent that the Court wishes to clarify the standard of review for collateral challenges to convictions by courts-martial, therefore, it should either do so in a case in which the defendant is proceeding under the habeas statute, or await further percolation on the applicable standard of review in a collateral challenge under Section 1331.

2. In any event, even assuming, arguendo, that the courts of appeals' differing formulations of the standard of review for collateral challenges to convictions by courts-martial would lead to different results in any given case, this case would constitute a poor vehicle for addressing the issue for the additional reason that, un der any plausible formulation of the applicable standard, petitioner would not prevail on either of the underlying claims that he continues to advance.1 All of the numer ous courts to have considered those claims (or variations of them) have rejected them, and this Court denied cer tiorari on those claims on direct review. See Pet. at 14- 19, 21-29, New v. United States, cert. denied, 534 U.S. 955 (2001) (No. 01-425).

a. Petitioner first contends (Pet. 22-27) that the court of appeals erred by rejecting his claim that the military judge violated his right to due process by failing to submit the lawfulness of the uniform-modification order to the court-martial panel, on the ground that the lawfulness of the order is an element of the underlying offense of failing to obey a lawful order issued by a member of the armed forces. See 10 U.S.C. 892(2). That claim lacks merit and does not independently warrant review.

The Due Process Clause requires that, in a criminal prosecution, the government "pro[ve] beyond a reason able doubt * * * every fact necessary to constitute the crime with which [the defendant] is charged." In re Winship, 397 U.S. 358, 364 (1970). Even assuming that the lawfulness of the order is an element of the offense of failing to obey a lawful order issued by a member of the armed forces, petitioner does not support his asser tion (Pet. 23-25) that the military judge failed to apply the reasonable-doubt standard in determining that the uniform-modification order was lawful. Indeed, he ap pears to have made "no real contest" on any factual is sue relevant to the lawfulness of the order. See Pet. App. 125a.2 Apart from the standard-of-proof question, to the extent that petitioner claims that the court-mar tial panel (which serves as the military equivalent of a civilian jury), and not the military judge, should have evaluated the lawfulness of the order, see id. at 181a (contending, in the relevant count of the complaint, that the CAAF erred by ruling that "lawfulness was not an element of the offense * * * and therefore[] not an issue for the military jury"), his claim is not of constitu tional dimension.

As petitioner concedes (Pet. 8, 26), the Sixth Amend ment does not confer the right to a jury in a court-mar tial proceeding. See, e.g., Ex parte Quirin, 317 U.S. 1, 39 (1942). Accordingly, petitioner does not ground his claim on the Sixth Amendment, but instead seemingly grounds his claim on Article 51(c) of the Uniform Code of Military Justice, 10 U.S.C. 851(c), which provides that the military judge should submit all of the elements of the offense to the members of the court-martial panel. Petitioner cannot contend, however, that a violation of Article 51(c) involves the kind of fundamental unfairness that implicates the Fifth Amendment guarantee of due process-especially in light of the more limited role that the Due Process Clause plays in the military justice sys tem. See, e.g., Weiss v. United States, 510 U.S. 163, 176- 178 (1994). Even assuming that the lawfulness of the order is an element of the offense that should have been submitted to the court-martial panel under Article 51(c), therefore, petitioner has failed to state a valid due pro cess claim-and his non-constitutional claim, which peti tioner advanced on direct review, would not be cogniza ble on collateral review. See, e.g., Bowling, 713 F.2d at 1562; Calley, 519 F.2d at 199.

In any event, the military courts did not err by con cluding that the lawfulness of the order did not consti tute an element of the underlying offense of failing to obey a lawful order issued by a member of the armed forces. The better view is that, as the term suggests, the "lawfulness" of an order should be treated as a question of law that need not be submitted to the court-martial panel under Article 51(c), rather than as a mixed ques tion of law and fact (like the materiality of a fact con tained in a false statement in a prosecution under 18 U.S.C. 1001). See United States v. Gaudin, 515 U.S. 506, 511-515 (1995). As the CAAF noted, if a contrary rule were applied, "the validity of regulations and orders of critical import to the national security would be sub ject to unreviewable and potentially inconsistent treat ment by different court-martial panels." Pet. App. 74a. Moreover, as Judge Sullivan concluded in his concurring opinion, even if the military judge had erred by failing to submit the lawfulness of the uniform-modification order to the court-martial panel (or by applying some thing less than the reasonable-doubt standard), any er ror was harmless, because petitioner made no factual showing relevant to the ultimate question whether the order was invalid under Army Regulation 670-1. See Pet. App. 124a-125a.

b. Petitioner next contends (Pet. 27-30) that the court of appeals erred by rejecting his claim that the military judge violated his right to due process by hold ing that the legality of the underlying deployment order presented a nonjusticiable political question. That claim also lacks merit and does not independently warrant review.

In Baker v. Carr, 369 U.S. 186 (1962), this Court enu merated six factors, any one of which would render a case nonjusticiable under the political question doctrine:

[1] [A] textually demonstrable constitutional commit ment of the issue to a coordinate political depart ment; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the im possibility of deciding without an initial policy deter mination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court's undertaking inde pendent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potential ity of embarrassment from multifarious pronounce ments by various departments on one question.

Id. at 217. At least two of those factors-"an unusual need for unquestioning adherence to a political decision already made" and "the potentiality of embarrassment from multifarious pronouncements by various depart ments on one question"-would render some, and argu ably all, of petitioner's challenges to the deployment order nonjusticiable under the political question doc trine even in an ordinary civil action. Ibid. Moreover, as the court of appeals noted, even assuming that some of petitioner's challenges would be justiciable in a civil action, "the military justice context compels a somewhat broader [political question] doctrine in light of the impli cations of any alternative view." Pet. App. 13a. As Judge Effron explained in his concurring opinion on di rect review (and as the court of appeals reiterated), were it the case that a member of the military could dis obey a deployment order and subsequently challenge the validity of that order before a court-martial, it would effectively transform court-martial proceedings into "a vehicle for altering the traditional relationship between the armed forces and the civilian policy making branches of government." Id. at 13a, 84a; see In re Grimley, 137 U.S. 147, 153 (1890) (noting that "[n]o question can be left open as to the right to command in the officer, or the duty of obedience in the soldier"). Petitioner cites no authority for the proposition that a member of the military can challenge the validity of a deployment order in such a manner.

In any event, petitioner does not merely contend that the military judge erred by prohibiting him from chal lenging the underlying deployment order under the po litical question doctrine, but instead contends that, in so doing, the military judge deprived him of his ability to present a complete defense (and therefore violated his right to due process). See, e.g., Pet. 29, 30. Petitioner, however, was fully able to challenge the validity of the uniform-modification order, the disobeyance of which was the subject of the immediate charge against him. The military judge considered petitioner's challenges to that order and ultimately concluded that the uniform- modification order was lawful. See Pet. App. 3a. Partic ularly in light of the more limited role that the Due Pro cess Clause plays in the military justice system, see, e.g., Weiss, 510 U.S. at 176-178, the application of the politi cal question doctrine to prohibit petitioner from chal lenging the validity of the underlying deployment order constituted a reasonable restriction on the scope of peti tioner's defense and thus did not offend due process.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

ALICE S. FISHER
Assistant Attorney General

THOMAS E. BOOTH
Attorney

MARCH 2007

1 Before this Court, petitioner has apparently abandoned his claims that he was denied due process because the military courts should have more fully considered his claim that the uniform-modification order violated Article I, Section 9, of the United States Constitution, and because the military judge erred by determining that the items of United Nations insignia were justified under Army Regulation 670-1.

2 Although petitioner contends (Pet. 24) that "the CAAF majority imposed the burden of proving the unlawfulness of the order" upon him, the cited portion of the CAAF's opinion stands only for the proposition that a military order is presumed to be lawful. See Pet. App. 80a. Elsewhere in his petition, petitioner seemingly concedes the applicabil ity of that presumption in courts-martial, at least as a general matter. See Pet. 27 (noting that, "[i]n a court-martial for disobedience of a lawful order, a military order is presumed to be lawful").

Type: 
Petition Stage Response
Updated October 21, 2014