Military law mavens will recognize Professor Katyal as the counsel who brilliantly argued, and won, Hamdan v. Rumsfeld, 548 U.S. 557 (2006), which invalidated the old military commission system largely on the ground that it violated Article 36 of the UCMJ.
The Kennedy rehearing petition focuses on Section 552(b) of the National Defense Authorization Act for Fiscal Year 2006, 119 Stat. 3136, 3363 (2006), and the President's subsequent MCM changes to incorporate that statute into military practice. The petition is rich in military legal history. It notes that under military law, rape has been "punishable by death at least since the 1863 Army Articles of War." Petition for Rehearing at 1-2. The Petition also observes that the Supreme Court "has looked to military law to interpret the Eighth Amendment since at least 1879," citing a case that upheld this sentence imposed by a Utah judge for premeditated murder: that "between the hours of ten o'clock in the forenoon and three o'clock in the afternoon of [December 14] you be taken from your place of confinement to some place within this district, and that you there be publicly shot until you are dead." See id. at 10 (citing Wilkerson v. Utah, 99 U.S. 130 (1879)). The petition also observes that in his concurring opinion in Furman v. Georgia, 408 U.S. 238 (1972), Justice Brennan "referred to the practice of 'review[ing] various treatises on military law' when seeking societal trends." Id. (quoting Furman, 408 U.S. at 275 (Brennan, J., concurring)).
After asking the Supremes to reconsider Kennedy based on military law's effect on the opinion, the petition asks the Court to reconsider Kennedy based on its effect on military law. The petition argues that Kennedy "invalidates a federal statute without argument. There is no obvious way to read the decision that maintains Section 552(b). Military courts, for example, have applied Coker [v. Georgia, 433 U.S. 584 (1977)] without entertaining any notion that courts-martial are exempt from this Court's Eighth Amendment pronouncements regarding civilians. See United States v. Clark, 18 M.J. 775, 776 (N-M.C.M.R. 1984)." Id. at 13. But in Matthews, CMA entertained just such a notion when it observed:
Congress obviously intended that in cases where an accused servicemember is convicted of premeditated murder, certain types of felony murder, or rape, the court-martial members should have the option to adjudge a death sentence. See Articles 118 and 120. Probably this intent cannot be constitutionally effectuated in a case where the rape of an adult female is involved, Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977) -- at least, where there is no purpose unique to the military mission that would be served by allowing the death penalty for this offense.United States v. Matthews, 16 M.J. 354, 377 (C.M.A. 1983).
All eyes now turn to the Acting Solicitor General. He may have to walk a tightrope; presumably he won't want to argue that Kennedy necessarily invalidates the death penalty under Article 120 because he will want to retain the maneuver room that CMA created in Matthews.
The point of my original post on this subject was that the military justice system is invisible. But as a result of Linda Greenhouse's NYT piece on the overlooked Section 552(b) of the NDAA for FY 2006, that's certainly not the case today.