For some time, I’ve been working on the larger implications of the jurisprudence arising from the Guantánamo military commissions and the Court of Appeals for the Armed Forces’ largely neglected 2012 decision in the Ali case (upholding the court-martial of a civilian contractor on the ground that the defendant was a non-citizen lacking substantial voluntary connections to the United States) for the larger relationship between military courts and Article III. With that in mind, I’ve now posted to SSRN a draft of a new article, “Military Courts and Article III,” that’s forthcoming in the Georgetown Law Journal.

The abstract is reprinted below the fold, but, in a nutshell, the paper offers three different contributions to the (surprisingly sparse) literature on the subject: (1) notwithstanding repeated assertions to the contrary by courts and commentators, the “military exception” to Article III is analytically incoherent–and has been for some time; (2) the incoherence has been exacerbated by three recent expansions to the scope of military jurisdiction–the abolition of the “service connection” test for courts-martial of servicemembers; the expansion of court-martial jurisdiction over civilian contractors; and the codification of military commission jurisdiction over offenses not recognized as international war crimes–and (3) the Supreme Court’s jurisprudence regarding military commissions offers one potential (albeit controversial) basis for restoring coherence to the military exception, by re-conceiving the departure from Article III as authorized only for offenses and offenders subject to trial by military court under international law. Needless to say, comments are most welcome!


The Supreme Court has held that non-Article III federal adjudication is permissible only in the three categories of cases in which the Court has previously allowed it—all cases before federal “territorial” courts; criminal prosecutions in military tribunals; and “public rights” adjudication before non-Article III judicial or administrative bodies. And although the Justices have repeatedly grappled with the outer bounds of this last category in recent years, they have generally accepted the first two as settled. Scholars have followed suit, with virtually all of the extensive literature in the field focusing on the specific scope of the public rights exception, or on the search for cross-cutting theories of Article III.

As a result, it has been decades since any concerted effort has been undertaken to rationalize the scope of the military exception—whether to the Constitution’s text or purpose or to more prudential considerations. And although the similarly neglected territorial courts have remained largely untouched over the past quarter-century, the same period has witnessed significant expansions in the scope of both court-martial and military commission jurisdiction to encompass offenses and offenders not previously thought to be amenable to military, rather than civilian, trials. Given these expansions, the litigation that they have provoked, and the tension they have placed upon the military exception, the time has long since passed for a reassessment of where and how military courts fit into our understanding of Article III—and the exceptions thereto.

This article undertakes such a reassessment. It demonstrates not only that these expansions cannot be reconciled with the underlying justifications for the military exception, but that they only further illuminate a series of deeper puzzles raised—and never answered—by the Supreme Court’s historical articulation of the military exception. As it explains, one way to resolve these puzzles—and to place the military exception on far sounder philosophical, analytical, and constitutional footing going forward—is to appreciate the long-neglected role of international law in at once authorizing and circumscribing departures from Article III. And although this conclusion has already started to emerge in litigation over the Guantánamo military commissions, its implications for courts-martial have not yet been appreciated.