[00:00:01] Speaker 03:
We'll turn to our next case.

[00:00:04] Speaker 03:
It's two cases consolidated, 24-3064 and 24-3065, Wilson versus Curtis and Dillon versus Curtis.

[00:00:31] Speaker 03:
Wait wait until he gets in.

[00:01:00] Speaker 03:
Thank you.

[00:01:01] Speaker 03:
Now you can start.

[00:01:09] Speaker 04:
Thank you, Your Honor.

[00:01:12] Speaker 04:
Good morning.

[00:01:12] Speaker 04:
May it please the court, Stephen Vladek, for the appellants.

[00:01:15] Speaker 04:
I'd like to focus on three points this morning.

[00:01:18] Speaker 04:
First, the Supreme Court has settled that the Constitution has nothing to say about which criminal offenses the military may try by court-martial, and only a little to say about the procedures by which those offenses can be tried.

[00:01:32] Speaker 04:
Instead, the principal constitutional limit the Court has recognized has involved who can be tried by the military,

[00:01:39] Speaker 04:
by requiring that defendants actually be in the military at the time of both their offense and their prosecution.

[00:01:46] Speaker 04:
Second, appellants were not in the military at the time of their court-martial.

[00:01:51] Speaker 04:
Not only were both retired from active duty, but they had been involuntarily retired due to their government-identified medical disabilities.

[00:02:00] Speaker 04:
That status reflects the military's own determination that appellants no longer were and never again will be

[00:02:07] Speaker 04:
fit for active service, a fact that distinguishes appellants' cases from both Begani and Larabee.

[00:02:15] Speaker 04:
Third, and unlike what was true in Toth and Covert and the three June 1960 cases, here the question is not whether appellants can be tried at all.

[00:02:24] Speaker 04:
Rather, it's merely in which court.

[00:02:27] Speaker 04:
Both appellants could have been prosecuted in civilian U.S.

[00:02:29] Speaker 04:
courts.

[00:02:30] Speaker 04:
Thus, even if the unavailability of a civilian criminal forum

[00:02:35] Speaker 04:
could bear on whether a permanently disabled retiree remains in the land and naval forces.

[00:02:41] Speaker 04:
That's just not an issue in these cases.

[00:02:43] Speaker 04:
For all those reasons, the courts' marshal and appellants' cases lacked jurisdiction to try them, and the district court's denials of their habeas petitions should be reversed.

[00:02:52] Speaker 03:
Let me ask you two questions.

[00:02:53] Speaker 03:
Please.

[00:02:53] Speaker 03:
I was raised by your summary.

[00:02:56] Speaker 03:
First, I thought each was accused of offenses in Korea.

[00:03:00] Speaker 03:
Is that right?

[00:03:02] Speaker 04:
Appellant Wilson

[00:03:03] Speaker 04:
Judge Hart was accused of offenses in Korea.

[00:03:05] Speaker 04:
Appellant Dillon was accused of offenses in Oklahoma.

[00:03:08] Speaker 04:
And so Appellant Dillon would have been subject to civilian criminal jurisdiction either in Oklahoma State or federal court.

[00:03:15] Speaker 04:
As for Appellant Wilson, the offenses were in Korea.

[00:03:18] Speaker 04:
This is exactly what Congress meant to cover when it enacted the Military Extraterritorial Jurisdiction Act of 2000, or MEJA.

[00:03:27] Speaker 04:
The government has not suggested at any point that if Appellant Wilson could not be tried by court martial, our submission here, he would not have been triable under MEJA.

[00:03:38] Speaker 04:
Judge Hart's MEJA is exactly for this kind of case.

[00:03:41] Speaker 04:
And so both appellants could have been tried in civilian courts.

[00:03:45] Speaker 03:
And for the offenses in Oklahoma, I assume the offense occurred in military base?

[00:03:52] Speaker 04:
So I must confess, Judge Harts, the record is not clear on this point.

[00:03:56] Speaker 03:
You're saying either civilian state court or civilian federal court?

[00:04:01] Speaker 04:
Correct.

[00:04:02] Speaker 04:
So either state authorities in Oklahoma or federal authorities under the Assimilative Crimes Act, if the crimes were committed on federal property.

[00:04:08] Speaker 04:
I just don't believe the record speaks to that question.

[00:04:13] Speaker 03:
The other question is, if he could be called back into service, if Mr. Dillon could be called back into service, do you think that would change this case?

[00:04:35] Speaker 04:
I don't, Your Honor, and I think that's true for two reasons.

[00:04:38] Speaker 04:
The first is that it has not been the rule for anyone other than a retired service member that the specter of future active service justifies being subject to the UCMJ while you are inactive.

[00:04:51] Speaker 04:
So, for example, with regard to reservists who are much more likely, Judge Hartz, to be called to active duty during ordinary times or during an emergency,

[00:05:00] Speaker 04:
The rule since the beginning and the rule currently codified in the UCMJ is that reservists are not subject to the UCMJ while they are inactive.

[00:05:10] Speaker 04:
So I don't think that even if the specter of recall were meaningful, that would change our position.

[00:05:15] Speaker 04:
But second, Judge Hartsley.

[00:05:17] Speaker 03:
But you're relying on what's constitutional.

[00:05:20] Speaker 03:
You're not relying on any statute.

[00:05:23] Speaker 04:
That's true.

[00:05:23] Speaker 04:
But I will just say, so it is true that Congress has carved reservists out.

[00:05:28] Speaker 04:
But the Court of Military Appeals, the predecessor to the Court of Appeals for the Armed Forces, has suggested that there would be grave constitutional questions.

[00:05:36] Speaker 04:
Should the military ever have the power to and ever try to court-martial an inactive reservist

[00:05:42] Speaker 04:
For the same reason why there are grave questions here, as the federal circuit recently concluded in the nicely case, these are civilians.

[00:05:50] Speaker 04:
They are, they have no ongoing military duties.

[00:05:54] Speaker 04:
They don't have to go through drug tests.

[00:05:56] Speaker 04:
They don't have to be vaccinated against.

[00:05:58] Speaker 04:
As all other military personnel were.

[00:06:01] Speaker 04:
And so, yes, if there were a recall order.

[00:06:04] Speaker 04:
We don't dispute that at that point they would be back in the land of naval forces.

[00:06:09] Speaker 04:
We just think Judge Tatel had it right in the DC Circuit that the recall order is a gateway to military status, not proof that there's military status all the way through while these folks are living what are for all intents and purposes, civilian lives.

[00:06:25] Speaker 02:
What's the difference between the retired personnel and discharged

[00:06:29] Speaker 02:
There's an advantage, I presume, to retirement.

[00:06:31] Speaker 04:
There is an advantage, I think, which is exactly right.

[00:06:33] Speaker 04:
So the advantage that you have by retiring instead of separating is that you get to keep your pension.

[00:06:39] Speaker 04:
So retirement is something that was meant as an incentive for folks to stay in the military.

[00:06:45] Speaker 04:
For non-disability retirees, for 20 years or more, disability retirees, obviously the clock is different.

[00:06:51] Speaker 04:
But the idea was, instead of separating and just walking away from the military, you stay in in exchange for a pension.

[00:06:57] Speaker 04:
You stay in in exchange for access to better health insurance.

[00:07:01] Speaker 04:
You stay in in exchange for access to what are technical but preferential veterans benefits.

[00:07:08] Speaker 04:
And so the idea was that the reason to stay in was because your career of distinguished service had entitled you to additional benefits that those who separated were not entitled to.

[00:07:19] Speaker 04:
Now, the problem, Judge Timkovich, is that disability retirees are really in a different category.

[00:07:25] Speaker 04:
The time limits are different.

[00:07:27] Speaker 04:
The pay is different.

[00:07:28] Speaker 04:
My clients as disabled retirees are receiving disability benefits, not retired pay.

[00:07:35] Speaker 04:
And that reflects the very different reality that if the government is permanently retiring you due to disability, the government is not trying to keep you around as a reserve source of manpower.

[00:07:47] Speaker 02:
Is that disability determination

[00:07:49] Speaker 02:
In other words, I don't know exactly how the disability is here, but one is a PSTD and maybe it would be resolved, cured.

[00:08:01] Speaker 02:
Does that matter?

[00:08:02] Speaker 02:
Is the determination of a permanent disability permanent?

[00:08:05] Speaker 04:
I believe it is, but I think it's also important, Judge Timkovich, in context, the permanent disability determination comes only after a period where there's a temporary disability determination.

[00:08:17] Speaker 04:
And so the government retains the authority while a retiree is on the TDRL, the temporary disability retired list, with the retiree's consent to recall them to active duty if the disability resolves itself.

[00:08:31] Speaker 04:
But what Congress provided in what's called Chapter 61, since Chapter 61 of Title 10, Congress provided that once you are diagnosed by the government's own experts with a permanent disability, your two choices at that point are separation or permanent retired status, a permanent status in which you would remain on the government's position, Judge Timkovich, permanently subject to the UCMJ for a disability the government itself has determined.

[00:08:58] Speaker 04:
renders you unfit for active service.

[00:09:00] Speaker 02:
And even if these individuals were capable of some type of desk job, something out there, that doesn't matter.

[00:09:09] Speaker 02:
In other words, there's a conflict.

[00:09:12] Speaker 02:
We need military personnel.

[00:09:15] Speaker 02:
Can these be recalled to do whatever job they might be?

[00:09:19] Speaker 04:
So on paper, Judge Timkovich, the government's mobilization criteria, and this is DOD instruction 1352.01, paragraph 3.2, subparagraph G2.

[00:09:32] Speaker 04:
On paper, it provides for the recall of disability retirees

[00:09:38] Speaker 04:
Quote, but they should be deployed to civilian defense jobs, unquote.

[00:09:43] Speaker 04:
And the Supreme Court in the Guagliardo case in 1960, held that it would be unconstitutional to subject those in civilian defense jobs to military jurisdiction.

[00:09:54] Speaker 04:
I think Judge Tim Cooch is also worth pointing out, the government has not cited to a single example, since the UCMJ was enacted in 1950, of a permanently disabled retiree ever being recalled.

[00:10:07] Speaker 04:
And so even though my answer to Judge Hartz is that that's not conclusive, we think it is strongly probative of what the law already reflects.

[00:10:14] Speaker 04:
These are not folks who are going to render a military service in the future.

[00:10:19] Speaker 03:
See, maybe there's a distinction here that I'm missing, but I thought the government's brief did say that retired and disabled people had been recalled on several occasions.

[00:10:31] Speaker 04:
So if I may judge hard, it's a distinction that's quite elusive in the government's brief, but it is a distinction between voluntary recalls, where the individuals are asked to return to active duty, and they volunteer to do so, and involuntary recall.

[00:10:45] Speaker 04:
And the reason why we believe that's relevant, Your Honors, is because anyone can volunteer if they meet the relevant criteria.

[00:10:51] Speaker 04:
But the question is whether you can be forced back into active duty,

[00:10:54] Speaker 04:
The government's brief cites to zero examples of that since the UCMJ was enacted.

[00:10:59] Speaker 04:
An involuntary recall.

[00:11:00] Speaker 04:
Of an involuntary recall of a permanently disabled retiree.

[00:11:04] Speaker 04:
And if I may.

[00:11:06] Speaker 03:
Retirees have been recalled due to saying permanently disabled can't be.

[00:11:11] Speaker 04:
And indeed, I'm not aware, Your Honor, of that many examples of even temporarily disabled retirees being recalled.

[00:11:17] Speaker 04:
The examples that government cites in its briefs are all examples of what we might refer to as non-disability retirees, the types of retirees who are at issue in the Bagani and Larabee cases.

[00:11:28] Speaker 04:
And we've argued in our briefs that we think those decisions are both wrong.

[00:11:32] Speaker 04:
I think the critical point for this court is it doesn't matter if they're right or wrong, because these cases are materially different.

[00:11:39] Speaker 03:
Does it matter whether it's 100% disability or 30% disability?

[00:11:43] Speaker 04:
So legally, no.

[00:11:44] Speaker 04:
The government's authorities are that the requirement in the statute is that you can be placed on the permanent disability retired list if your rating is 30% or higher.

[00:11:53] Speaker 04:
and that if it's between 30% and 100%, that's a distinction without a legal difference.

[00:12:00] Speaker 04:
It might bear upon the calculation of particular benefits, Your Honor, but it doesn't have jurisdictional significance.

[00:12:07] Speaker 04:
And so part of why we think this is such an important point, Your Honor, is because

[00:12:10] Speaker 04:
The Supreme Court really has sort of split the difference the way that I alluded to at the outset, that the way the court polices military jurisdiction is not by looking at the offenses that can be tried.

[00:12:22] Speaker 04:
Any offense could be tried.

[00:12:23] Speaker 04:
All of the offenses in both of these cases were civilian crimes that can be prosecuted in civilian courts.

[00:12:29] Speaker 04:
It's not by worrying too much about the procedures.

[00:12:32] Speaker 04:
Courts marshal can have non-unanimous convictions.

[00:12:35] Speaker 04:
They don't have what we would call juries.

[00:12:37] Speaker 04:
They don't have the full canopy of Sixth Amendment rights.

[00:12:40] Speaker 04:
The trade-off has always been that the Supreme Court has zealously policed the line between who can be fairly regarded as being in the land and naval forces and who cannot.

[00:12:53] Speaker 02:
I think it was the majority in Larabee, you know, really tried to dig

[00:12:58] Speaker 02:
dig back and see from an originalist perspective what the Constitution meant on this subject.

[00:13:04] Speaker 02:
And they marshaled some, you know, cases, you know, from England, Britain.

[00:13:13] Speaker 02:
And I thought Judge Tatel's argument was more of a policy argument, but help me out on that.

[00:13:18] Speaker 02:
Why shouldn't

[00:13:19] Speaker 02:
we look more closely at what the majority did there.

[00:13:22] Speaker 04:
So I mean, I would, whether we had time to do a full discourse on the history, Your Honor, but I will just say, I believe the history does not remotely support the larity majority, and briefly for two reasons, and I'd like to further afford this in rebuttal, if I may.

[00:13:34] Speaker 04:
But very briefly, with regard to the English history, the only real example that the larity majority had was Parliament's subjective of so-called half pay officers.

[00:13:45] Speaker 04:
to court-martial for a very brief period, from 1748 to 1751, Judge Timberlake's Parliament repudiated that practice because it was controversial, because those were civilians.

[00:13:56] Speaker 04:
And the amendment the government points to in its brief in 1786

[00:14:00] Speaker 04:
that subjected certain half pay officers, it was only when they were, quote, holding brevet rank, unquote, which meant they had been activated.

[00:14:08] Speaker 04:
So the British history actually is completely in line with our view, not with the government's.

[00:14:14] Speaker 04:
As for the American history, the Larrabee panel pointed to the so-called Pennsylvania mutiny.

[00:14:19] Speaker 04:
in which you had a group of Continental Army soldiers who, instead of being furloughed, mutinied.

[00:14:26] Speaker 04:
Your Honor, the critical point is those soldiers mutinied instead of taking the furlough.

[00:14:30] Speaker 04:
They were still in their barracks, on active duty at the time that they acted unlawfully.

[00:14:35] Speaker 04:
And indeed, I think it's telling that the government does not even cite the Pennsylvania mutiny in either of its briefs.

[00:14:40] Speaker 04:
If I may, I'd like to reserve the balance of my time.

[00:14:44] Speaker 03:
Thank you.

[00:14:45] Speaker 04:
Thank you very much.

[00:14:55] Speaker 01:
Thank you, Your Honor, and may it please the court, Graham White for the United States.

[00:14:59] Speaker 01:
The petitioners in these cases were convicted at court martial for sexually assaulting children prior to their retirement for the Army.

[00:15:06] Speaker 01:
They now ask this court to vacate their convictions as unconstitutional on the ground that the court martial proceedings did not commence until after their retirement.

[00:15:13] Speaker 01:
But this argument is meritless.

[00:15:15] Speaker 01:
Congress has plenary authority under the Make Rules Clause to extend court martial jurisdiction over those who are in the armed forces.

[00:15:22] Speaker 01:
And it is settled law that those who choose to have retirement status as opposed to those who voluntarily separate from the military at the completion of their active duty are in the armed forces.

[00:15:33] Speaker 01:
That is why this court's sister circuits and the military courts have unanimously rejected the arguments that would just say settle.

[00:15:40] Speaker 01:
You're talking about by lower courts, not by the Supreme Court.

[00:15:43] Speaker 01:
No, Your Honor.

[00:15:43] Speaker 01:
So with respect to the question of whether retirees are in the military, the Supreme Court has spoken to that question in a number of different cases.

[00:15:52] Speaker 01:
If I may, Convy Anderson, one of the holdings in that case was whether retired officers could serve

[00:15:58] Speaker 01:
on court-martial panels, and the Supreme Court said that they could because they were still in the military.

[00:16:04] Speaker 01:
Since Convy Anderson, the Supreme Court has said in United States v. Tyler, in McCarty, and in Barker, that retired military officials are unquestionably in the armed forces, and that is the only question that is relevant to this court's determination of whether the court-martial proceedings here were constitutional.

[00:16:24] Speaker 03:
Well, the language in the armed forces is

[00:16:28] Speaker 03:
That's the terminology in the Constitution with respect to court martial jurisdiction, right?

[00:16:34] Speaker 03:
Was that the language that was being interpreted in these other cases or were they looking at statutory provisions that related to whether someone is in the armed forces or not?

[00:16:46] Speaker 01:
So let me just say it more broadly in the Supreme Court's court martial jurisdiction cases.

[00:16:50] Speaker 01:
Yes, the Supreme Court in a number of cases

[00:16:52] Speaker 01:
has recognized that the Constitution, in particular the Make Rules Clause, authorizes court martial jurisdiction over those who are not

[00:17:00] Speaker 01:
on active duty or performing military functions in three specific cases and where the Supreme Court was directly addressing the constitutional text.

[00:17:07] Speaker 01:
Okay, that was an ex parte read where the Supreme Court recognized the propriety of court martial jurisdiction over the Navy paymaster's clerk, a civilian employee who had been bound to the Navy through various procedures.

[00:17:18] Speaker 01:
Okay, in Convy Anderson, with respect to the military prisoners who had already been separated from the military, had no military function, but were still in military custody.

[00:17:26] Speaker 01:
and in Billings, where the Supreme Court said that there was no question that Congress had the power to subject those who disobeyed lawful draft orders to court-martial jurisdiction.

[00:17:37] Speaker 01:
And so the test that petitioners are advancing here, which is that the court-martial jurisdiction is only proper where the accused has a military role at the time the court-martials were convened, is simply inconsistent with those precedents.

[00:17:50] Speaker 03:
In those cases, what's

[00:17:54] Speaker 03:
One of the distinctions that plaintiffs are relying on is that there's no way they can be ordered to perform any military service.

[00:18:05] Speaker 03:
Do you agree with that factually?

[00:18:07] Speaker 03:
And if you don't dispute it factually, why isn't that a significant distinction from any of the cases that you've recited?

[00:18:15] Speaker 01:
Well, let me make sure I'm understanding your question.

[00:18:17] Speaker 01:
The petitioner is in these cases.

[00:18:19] Speaker 01:
can't our subjects who are ordered to be recalled to active duty.

[00:18:22] Speaker 01:
So there is an order that continues to bind them to the military.

[00:18:25] Speaker 01:
And so that is why this case is consistent with the D.C.

[00:18:28] Speaker 01:
Circuit's ruling in Laramie, which is that there is a formal... So there can be, but no one ever has been.

[00:18:34] Speaker 01:
Disabled retirees?

[00:18:34] Speaker 01:
Yes.

[00:18:35] Speaker 01:
So let me speak to that specifically.

[00:18:37] Speaker 01:
So yes, permanently disabled retirees were actually recalled involuntarily during World War II.

[00:18:43] Speaker 01:
Now yes, it's true that there have not been involuntary recalls of disabled retirees since the UCMJ was passed.

[00:18:50] Speaker 01:
Recalled to military duty or to perform?

[00:18:52] Speaker 01:
Sorry, there have not been examples of involuntary recalls of disabled retirees since the UCFJ was passed in 1950, but that is because the military's authority to do an involuntary recall under 10 USC section 688 is limited where there is no formal declaration of war in place, and there has not been a declaration of war since World War II.

[00:19:14] Speaker 01:
I think we're fortunate for that.

[00:19:16] Speaker 01:
But let me also just say that Congress's authority under the Make Rules Clause is to prepare the nation for future conflict.

[00:19:22] Speaker 01:
And so its authority necessarily cannot be limited by how frequently or infrequently disability retirees have been recalled in the past.

[00:19:32] Speaker 01:
Now, if I could, I'd also like to respond to a question that Judge Kupkiewicz had asked about the difference between retirees and discharged service members and sort of the corollary to that, why it's important to extend court martial jurisdiction over retirees specifically.

[00:19:46] Speaker 01:
Okay, so military retirees,

[00:19:48] Speaker 01:
have an ongoing connection to the military.

[00:19:51] Speaker 01:
As we've discussed, they have the potential to be recalled to active duty.

[00:19:55] Speaker 01:
But in addition to that, retired officers can wear the uniform.

[00:19:58] Speaker 01:
They can use their official military titles.

[00:20:00] Speaker 01:
They can access military bases and other facilities, including commissaries, recreational centers, libraries.

[00:20:06] Speaker 01:
They can patronize officer's clubs.

[00:20:08] Speaker 01:
And many retirees can and do have mentor-mentee relationships with those on active duty service members.

[00:20:15] Speaker 01:
And so yes, as a general matter, there is a need

[00:20:18] Speaker 01:
to hold accountable this segment of the military community for post-retirement conduct that undermines the chain of command, that potentially influences active-duty service members in dangerous ways, and otherwise brings discredit to the armed forces.

[00:20:31] Speaker 02:
But that... You know, I think it was in the appellant's brief, and, I mean, that certainly raises the specter of these retirees being tried for all sorts of tradition, you know, civilian crimes, you know, you know, basic

[00:20:48] Speaker 02:
basic felonies or failure to appear, getting court-martialed for crimes that most people would say that has nothing to do with military discipline.

[00:20:58] Speaker 01:
So let me have a couple of responses to that, Judge Tinkovich.

[00:21:00] Speaker 01:
First, under Army regulations, they expressly state that retired officers should not be court-martialed except under extraordinary circumstances.

[00:21:09] Speaker 01:
And while court-martialed and retired officers has been consistent over the past 200 years, it has been rare

[00:21:14] Speaker 01:
I think in the past, since the year 2000, there have been fewer than two dozen reported legal decisions involving retired officers.

[00:21:21] Speaker 01:
So this is not... 2000.

[00:21:24] Speaker 01:
Sorry, since the year 2000.

[00:21:25] Speaker 01:
Okay.

[00:21:25] Speaker 01:
How many?

[00:21:28] Speaker 01:
Less than two dozen.

[00:21:29] Speaker 01:
And so there has not been sort of the widespread encroachment on the authority of civilian courts that my friend on the other side here is suggesting.

[00:21:36] Speaker 01:
Well, here the offenses were committed while they were in service, right?

[00:21:40] Speaker 03:
That's correct.

[00:21:41] Speaker 03:
So of those two dozen, do you know how many were

[00:21:44] Speaker 01:
I can't speak to that, but I would just note that the potential for a loophole that is being created by the rule that my friend on the other side is advocating for here, he mentioned during his opening that these vendors could potentially be tried in civilian courts.

[00:21:59] Speaker 01:
It is not clear that that is correct.

[00:22:01] Speaker 01:
And I think there are thorny and difficult jurisdictional questions about the Military Extraterritorial Jurisdiction Act that we didn't brief in this case.

[00:22:09] Speaker 01:
But I would just point to the Court of Appeals for the Armed Forces decision in Bugani, which touched upon this issue a little bit, as to whether retired officers could have been actually prosecuted in civilian courts.

[00:22:20] Speaker 01:
And the concern there was that they could not be because MEJA, that statute,

[00:22:24] Speaker 01:
was addressed to cover a jurisdictional gap from the Supreme Court's decision in Toth, where those who are completely separate from the military could potentially escape justice for crimes committed on active duty.

[00:22:34] Speaker 01:
MEJA contains an exception for those, in other words, it does not give civilian courts jurisdiction if the service member is covered by the UCMJ.

[00:22:42] Speaker 01:
And retired officers are covered by the UCMJ.

[00:22:44] Speaker 01:
So it's a very difficult, unclear question as to whether they could be prosecuted in civilian courts.

[00:22:49] Speaker 03:
But even if they could, let me just make an... Does that even apply

[00:22:53] Speaker 03:
to crimes committed by them once they start their retirement?

[00:22:59] Speaker 03:
Does it bar civilian courts from prosecuting retired officers, retired members of the service, who commit the crimes after they take retirement?

[00:23:11] Speaker 01:
So, let me just make sure I'm understanding your question.

[00:23:15] Speaker 03:
As a general matter... I got confused.

[00:23:17] Speaker 03:
Go ahead.

[00:23:18] Speaker 01:
So the UCMJ would, let me just say as a general matter, as a preparatory point here, the UCMJ would criminalize certain military-specific post-retirement conduct.

[00:23:29] Speaker 01:
MEJA, the statute that I referenced, again, would only apply to those who are discharged from the military, who aren't in a retirement status under the statute's fine terms.

[00:23:37] Speaker 01:
But if I could just return briefly to a point that I was addressing previously, which is that even if these offenders here could be charged in civilian courts, both petitioners were charged with military-specific crimes under Article 134 for bringing discredit to the armed forces, and there is no counterpart in state or federal criminal law for that.

[00:23:57] Speaker 01:
They were charged with sexual offenses as well under Articles 120 and 125, but in addition, they were also faced with military-specific crimes that have no civilian counterparts.

[00:24:06] Speaker 02:
To answer Judge Hartz's question, post-retirement, they're still fair game for court-martial.

[00:24:17] Speaker 02:
So any crimes committed post-retirement?

[00:24:19] Speaker 01:
So again, the circumstances under which retired officers could face court martial jurisdiction are exceedingly rare.

[00:24:26] Speaker 01:
And so, for example, there is a need to address circumstances where, for example, retired officers might encourage those who are on active duty to disobey lawful orders, or they could encourage their other retired officers to disobey a valid recall order.

[00:24:39] Speaker 01:
Under those circumstances, Congress determined that there is a need

[00:24:42] Speaker 01:
for military jurisdiction to ensure, to defend military readiness.

[00:24:47] Speaker 01:
And unfortunately, the rule adopted by my friend on the other side here would categorically prohibit Congress from ensuring military readiness in that way by preventing court marshals for that type of conduct.

[00:24:57] Speaker 02:
If Mr. Wilson had committed a child sex offense after retirement, while he's on his permanent retirement, could that be tried?

[00:25:07] Speaker 01:
It could be tried.

[00:25:08] Speaker 02:
Could that be a court marshal?

[00:25:09] Speaker 01:
It could be tried under the UCMJ, yes.

[00:25:11] Speaker 01:
But I think, as the facts in these cases demonstrate- That's disturbing.

[00:25:14] Speaker 03:
Doesn't that disturb you?

[00:25:16] Speaker 01:
I'm sorry.

[00:25:16] Speaker 03:
Doesn't that disturb you that that could happen?

[00:25:18] Speaker 01:
So let me just say, as the facts in these cases, sort of, and in Bugatti, underscore the circumstances under which the military is convening court marshals for sexual offenses, where those offenses are occurring generally while the offenders are on active duty, but aren't discovered until after their retirement.

[00:25:34] Speaker 01:
That's often the case with sexual assault cases, specifically, that the conduct is not uncovered until years later.

[00:25:40] Speaker 01:
And again, as I mentioned earlier,

[00:25:41] Speaker 01:
Army regulations expressly state that retired officers should not be prosecuted unless there are extraordinary circumstances present.

[00:25:48] Speaker 01:
So, look, nobody is trying to court-martial retired service members from any sort of civilian offense here, but the extraordinary circumstances under which they are subject to jurisdiction are generally where these offenses occur during their service of active duty or for post-retirement conduct that potentially discredits the armed forces or undermines military readiness.

[00:26:06] Speaker 02:
Although I guess the military could deem

[00:26:11] Speaker 02:
child sex offenses committed by permanent retirees to be a grave offense that would tarnish the image of the military and court-martial for those types of crimes, right?

[00:26:24] Speaker 02:
I think you're right.

[00:26:27] Speaker 02:
Why would they bother unless it's an extraordinary circumstance?

[00:26:31] Speaker 02:
But I can see a commanding officer deeming a predator in the community is reflecting poorly on the community.

[00:26:39] Speaker 02:
on the military and going after them for a court martial.

[00:26:42] Speaker 01:
So with the usual caveat that those facts are not what this case is presenting, yes, the Constitution would allow that because Congress made a determination that it was necessary to hold retired officers to a higher standard.

[00:26:52] Speaker 01:
But look, as a practical matter, the number of court martial proceedings over retired officers for post-retirement conduct is extremely rare.

[00:27:01] Speaker 01:
There is not some sort of widespread encroachment on civilian courts going on here.

[00:27:06] Speaker 03:
Let me get back to a question that

[00:27:09] Speaker 03:
Maybe I can do better at asking this time.

[00:27:13] Speaker 03:
You said there's some question whether civilian courts, federal or state, could have, whether those courts could prosecute the defendants here, the plaintiffs here actually.

[00:27:31] Speaker 03:
And that's because they could be court-martialed.

[00:27:34] Speaker 03:
But then why do federal and state courts have jurisdiction

[00:27:41] Speaker 03:
to prosecute, say, child sexual abuse by a retired officer, which could be court martialed.

[00:27:50] Speaker 03:
What is it that keeps the civilian courts from proceeding in these cases?

[00:27:55] Speaker 03:
And why doesn't that also apply?

[00:27:58] Speaker 03:
when a retired officer commits an offense.

[00:28:00] Speaker 01:
So there are more difficult jurisdictional questions when the offenses happen on military bases, especially overseas.

[00:28:06] Speaker 01:
And so for the example of petitioner of Sergeant Wilson, those offenses occurred on a military base in Korea.

[00:28:12] Speaker 01:
There are obviously questions about the status of forces agreement with South Korea and rules about who can exercise concurrent jurisdiction there.

[00:28:19] Speaker 01:
And so, yes, when the offenses happen on a military base, you know, there are rules about concurrent jurisdiction with states, and it will probably vary on a state-by-state basis.

[00:28:28] Speaker 01:
We didn't brief those questions here, so I don't want to get out in front of myself.

[00:28:31] Speaker 03:
Okay, so it's because it was on the base, not because they could be court-martialed.

[00:28:35] Speaker 03:
That complicates civilian jurisdiction.

[00:28:37] Speaker 03:
Is that right?

[00:28:38] Speaker 01:
The complications arise, yes, when the offenses occur on a military base.

[00:28:41] Speaker 01:
Okay, okay.

[00:28:41] Speaker 01:
That's strange enough.

[00:28:42] Speaker 01:
Sorry.

[00:28:42] Speaker 01:
Yes.

[00:28:44] Speaker 01:
So with my last minute, I'll just respond quickly to this point.

[00:28:47] Speaker 02:
Before you... And I am interested in what the...

[00:28:49] Speaker 02:
Continental Congress thought they were doing.

[00:28:51] Speaker 01:
That's where I was just going to go.

[00:28:53] Speaker 01:
So if you have a specific question, or can I please.

[00:28:56] Speaker 01:
So let me just make a prefatory point here that the DC circuit explained in its analysis in Larabee, which is that the plain text of the make rules clause gives Congress plenary authority

[00:29:06] Speaker 01:
to make rules for those who are in the armed service.

[00:29:08] Speaker 01:
So the relevant question for the purposes of this historical original meaning analysis is whether inactive duty officers or retired officers were in the armed forces at the time of ratification.

[00:29:20] Speaker 01:
Whether they were also subject to court martial jurisdiction is helpful to establishing military status, but it's not necessary, right?

[00:29:26] Speaker 01:
And so what the DC Circuit did in Larabee is explained that from the passing of the Mutiny Act in 1689, there was a longstanding practice of subjecting half pay officers to court martial jurisdiction.

[00:29:39] Speaker 01:
Now it's true that, and this was before the amendments to the Mutiny Act in 1748, for the preceding half century in practice, yes, half pay officers were court martialed.

[00:29:48] Speaker 01:
In the three year period from 1748 to 1751, they were also court martialed under a more clear legal authority.

[00:29:54] Speaker 01:
But even apart from that, and I see over time, can I wrap this or do you want me to?

[00:29:57] Speaker 02:
Yeah, go ahead.

[00:29:58] Speaker 02:
If you could.

[00:30:00] Speaker 01:
In addition to the court martial example, there are a number of examples that the DC Circuit discusses in Larabee of acts of parliament referencing half pay officers as being in her majesty's land and naval forces, which is the relevant consideration here for original meaning.

[00:30:14] Speaker 01:
Unless the court has any questions, we would ask for a firm.

[00:30:17] Speaker 01:
Thank you.

[00:30:17] Speaker 01:
Thank you.

[00:30:21] Speaker 03:
And how much time did he have left?

[00:30:25] Speaker 03:
Make it two minutes since you went over.

[00:30:27] Speaker 03:
So you've got two minutes.

[00:30:28] Speaker 04:
Thank you, Your Honor.

[00:30:28] Speaker 04:
I appreciate that.

[00:30:29] Speaker 04:
Very briefly, just a couple of clarifications might assist the court.

[00:30:33] Speaker 04:
First, government counsel invoked 10 U.S.E.

[00:30:35] Speaker 04:
Section 688 as the recall authority and says it only applies during a time of declared war.

[00:30:40] Speaker 04:
It's just not true.

[00:30:41] Speaker 04:
The statute says retired members can be recalled, quote, at any time.

[00:30:46] Speaker 04:
And indeed, the very authorities the government points to in its brief for voluntary recalls were based on that statute.

[00:30:52] Speaker 04:
With regard to MEJA, I think it's actually very important to quote the specific language of the statute, which says, offenses may be tried when committed outside the United States unless, quote, sorry, when, quote, such member, a reference to a former service member, ceases to be subject to such chapter.

[00:31:10] Speaker 04:
This is a reference to the UCMJ.

[00:31:12] Speaker 04:
This is 10 USC, sorry, 18 USC 3261 D1.

[00:31:17] Speaker 04:
Our position is that the appellants ceased to be subject to the jurisdiction of the UCMJ when they retired.

[00:31:24] Speaker 04:
Therefore, we do not dispute that MEJA applies, and there are multiple cases where other circuits have applied MEJA in those circumstances.

[00:31:32] Speaker 04:
Really, the concern about accountability, I'll just note the government did not explain why Appellant Dillon's offenses could not be tried in state or federal civilian court in Oklahoma.

[00:31:42] Speaker 04:
It has never explained why.

[00:31:43] Speaker 04:
We don't dispute that there are any number of ways to hold retired service members accountable.

[00:31:50] Speaker 04:
The HISS Act allows for the deprivation of their benefits.

[00:31:53] Speaker 04:
They can be tried in a civilian criminal court.

[00:31:55] Speaker 04:
They can be administratively separated.

[00:31:58] Speaker 04:
a position the government took in the D.C.

[00:32:00] Speaker 04:
Circuit in Larrabee.

[00:32:01] Speaker 04:
And so this is not about accountability.

[00:32:03] Speaker 04:
This is about... What if they encourage people on base to disobey orders?

[00:32:08] Speaker 04:
Then they can be prosecuted because then they are solicitating criminal activity.

[00:32:12] Speaker 04:
And so the general federal criminal solicitation statutes, I think, would be quite applicable in those contexts.

[00:32:18] Speaker 04:
We also, I think... Criminal activity includes disobedience of military orders?

[00:32:23] Speaker 04:
I mean, so I think, Your Honor, there would be a very strong case.

[00:32:26] Speaker 04:
And in so far as that's a problem, I think Congress would have the constitutional authority to clarify that.

[00:32:31] Speaker 04:
If I might briefly just make one last point.

[00:32:33] Speaker 04:
With regard to the Supreme Court precedents that the government refers to, I think it's worth pointing out that the Supreme Court has said over and over again that when it comes to the limits of the jurisdiction of civilian courts, we worry about the marginal cases because that's the slippery slope.

[00:32:50] Speaker 04:
The government says this hasn't happened very often.

[00:32:52] Speaker 04:
With respect, this is now the ninth case that's reported in the last seven years where the government has done this.

[00:32:58] Speaker 04:
There's been no suggestion, there's been no public explanation for what the extraordinary circumstances were in any of those nine cases.

[00:33:09] Speaker 03:
that occurred while they were in the military, on the military base.

[00:33:12] Speaker 04:
So I believe that these two are the first.

[00:33:16] Speaker 04:
The others, Larabee, Bugani, et cetera, I believe were all post-retirement offenses.

[00:33:20] Speaker 04:
But, Your Honor, the government was right about one thing.

[00:33:22] Speaker 04:
The law draws no distinction.

[00:33:24] Speaker 04:
The statute draws no distinction.

[00:33:25] Speaker 04:
the Supreme Court has drawn no distinction.

[00:33:28] Speaker 04:
The crime in Toth, the capital murder committed in Korea during the Korean War, was committed by an active duty service member while in active combat operations.

[00:33:38] Speaker 04:
And the Supreme Court still said the military can no longer exercise jurisdiction.

[00:33:43] Speaker 04:
In Toth, that allowed the service member to walk free for a capital crime.

[00:33:48] Speaker 04:
No one is suggesting that that's what should happen here.

[00:33:50] Speaker 04:
The question is just whether this court is going to take seriously the founder's deep distrust of military jurisdiction in a context in which the government is trying to apply it to two million civilians.

[00:34:01] Speaker 02:
Thank you very much, Your Honor.

[00:34:02] Speaker 02:
Can I ask you a question?

[00:34:04] Speaker 02:
Before you sit down, just a variation of Judge Hartz's question, I'm just imagining a scenario where, you know, your clients put on their military, their uniforms, and stand outside the entry to the base

[00:34:19] Speaker 02:
you know, basically advocate that the active duty service members disobey unconstitutional orders by the Joint Chiefs of Staff or a variation on that.

[00:34:30] Speaker 02:
They commit a series of crimes where they don their uniforms and that's the way they like to commit crimes, whether it's shoplifting, assault, etc.

[00:34:42] Speaker 02:
Wouldn't there be some military

[00:34:45] Speaker 02:
interest in preventing them from wearing their uniforms while committing crimes.

[00:34:50] Speaker 04:
Yes, and if I may, Your Honor, the relevant regulations which we did not cite in our briefs limit the circumstances in which appellant, in which retired service members like my clients are allowed to wear their uniforms and would not actually lawfully allow them to wear their uniforms in any of those circumstances.

[00:35:06] Speaker 04:
How did they enforce that?

[00:35:08] Speaker 04:
Civilly.

[00:35:09] Speaker 04:
But this has always been the point, Your Honor, which is that the government's approach to dealing with administrative infractions and other matters that retirees engage in that bring disrepute upon the military has been to go through civil or at least civilian administrative and, if necessary, criminal... Within the U.S.

[00:35:29] Speaker 02:
military or in a Oklahoma State court?

[00:35:32] Speaker 04:
It can be both because, of course, once you are out as a civilian, as my clients were,

[00:35:37] Speaker 04:
The question of your benefits and your other entitlements becomes often a mixed question of state and federal law.

[00:35:43] Speaker 02:
So it has to get a court order saying don't wear your uniform?

[00:35:46] Speaker 04:
No, I mean, I think it should tell us something, Judge Tinkovich, that this is a hypothetical that has never arisen.

[00:35:54] Speaker 04:
But if I may, just very briefly, I do think that if the question is a concern about future cases, we don't dispute Congress's power to address those.

[00:36:02] Speaker 04:
And just really quickly, we don't dispute that Congress could, if this really were a problem, invest retired service members with enough of a continuing relationship with the military to justify the assertion of court martial jurisdiction.

[00:36:15] Speaker 04:
The relevant point here is that there isn't one today.

[00:36:18] Speaker 04:
Thank you very much.

[00:36:22] Speaker 03:
Thank you, counsel.

[00:36:25] Speaker 03:
Case is submitted.

[00:36:26] Speaker 03:
Counselor excused.