Stephen I. Vladeck is a Professor of Law and the Associate Dean for Scholarship at American University Washington College of Law. His teaching and research focus on federal jurisdiction, constitutional law, national security law, and international criminal law. A nationally recognized expert on the role of the federal courts in the war on terrorism, he was part of the legal team that successfully challenged the Bush Administration's use of military tribunals at Guantánamo Bay, Cuba, in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), and has co-authored party and amicus briefs in a host of other major lawsuits, many of which have challenged the U.S. government’s surveillance and detention of terrorism suspects. Vladeck, who is a co-editor of Aspen Publishers’ leading national security and counterterrorism law casebooks, has authored reports on related topics for a wide range of organizations, including the First Amendment Center, the Constitution Project, and the ABA’s Standing Committee on Law and National Security.
“Military Justice and Article III”
The Supreme Court has long held that federal adjudication before judges lacking Article III’s salary and tenure protections is permissible today only in the three categories of cases in which the Court has previously allowed it — all cases before federal “territorial” courts; criminal prosecutions before 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. Although these expansions have been especially pronounced with regard to the scope of court-martial jurisdiction, they are also reflected in, for example, the en banc D.C. Circuit’s 2014 decision in the Al Bahlul Guantánamo military commission appeal. Given these expansions, the litigation that they have provoked, and the tensions they have placed upon the military exception, the time has long since passed for a reassessment of where and how military justice fits into our understanding of Article III.