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\deflang1033\pard\plain\f0\fs17 
\par No. 94-1966-1
\par 
\par In The Supreme Court of The United States
\par 
\par OCTOBER TERM, 1995
\par 
\par DWIGHT J. LOVING, PETITIONER
\par 
\par v.
\par 
\par UNITED STATES OF AMERICA
\par 
\par ON WRIT OF CERTIORARI 
\par TO THE UNITED STATES COURT OF APPEALS
\par FOR THE ARMED FORCES
\par 
\par BRIEF FOR THE UNITED STATES
\par 
\par JOHN M. SMITH
\par Colonel, USA
\par Government Appellate
\par Division
\par Falls Church, VA 22041
\par 
\par DREW S. DAYS, III
\par Solicitor General
\par 
\par JOHN C. KEENEY
\par Acting Assistant Attorney
\par General
\par 
\par EDWIN S. KNEEDLER
\par Deputy Solicitor General
\par 
\par MIGUEL A. ESTRADA
\par Assistant to the Solicitor
\par General
\par 
\par JOHN F. DE PUE
\par Attorney
\par 
\par Department of Justice
\par Washington, D.C. 20530
\par (202)514-2217
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par QUESTION PRESENTED
\par 
\par Whether the President had the authority to promulgate
\par Rule for Courts-Martial 1004 which prescribes aggravat-
\par ing factors for cases in which the death penalty is other-
\par wise expressly authorized by the Uniform Code of Military
\par Justice.
\par 
\par (I)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par TABLE OF CONTENTS
\par 
\par Opinions below . . . . 1 
\par Jurisdiction . . . . 1 
\par Statutes, rule, and constitutional provisions involved . . . . 2
\par Statement . . . . 2 
\par Summary of argument . . . . 8 
\par 
\par Argument:
\par 
\par The president properly promulgate Rule for
\par Courts-Martial 1004 to limit the class of cases in
\par which the death penalty, when it otherwise is ex-
\par pressly authorized by the Uniform Code of Military
\par Justice, may be imposed . . . . 10 
\par A. Nothing in the Constitution requires that Con-
\par   gress itself determine which capital defendants
\par   are executed . . . . 13
\par B. The UCMJ authorizes adoption of RCM 1004 and
\par   provides constitutionally adequate standards for
\par   doing  so . . . . 34 
\par Conclusion . . . . 47 
\par Appendix . . . . 1a 
\par 
\par TABLE OF AUTHORITIES
\par 
\par Cases:
\par 
\par American Power  &  Light Co. V. SEC, 323 U.S. 90
\par   (1946) . . . . 43 
\par Arave  V. Creech, 113 S. Ct. 1534 (1993) . . . . 30 
\par Babbitt V. Sweet Home Chapter of Communities
\par   for a Great Oregon, 115 S. Ct. 2407 (1995) . . . . 38 
\par Bank of the United States V. Halstead, 23 U.S. (10
\par   Wheat.) 51 (1825) . . . . 42
\par Biddle v. Perovich, 274 U.S. 480 (1927) . . . . 42 
\par Bowsher v. Synar, 478 U.S. 714 (1966) . . . . 20
\par Caldwell v. Parker, 252 U.S. 376 (1920) . . . . 28
\par 
\par (III)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par IV
\par     
\par Cases-Continued:             
\par 
\par Page
\par 
\par Cargo of the Brig  Aurora  V. United States, 11 U.S.
\par   (7 Cranch) 382 (1813) . . . . 14
\par Carter v. McClaughry, 183 U.S. 365 (1902) . . . . 35
\par Coker   v. Georgia, 433 U.S. 584 (1977) . . . . 45
\par Concrete Pipe & Prods. of California, Inc. V. Con-
\par   struction Laborers Pension Trust, 113 S. Ct.
\par   2264 (1993) . . . . 41
\par Consumer Product Safety Comm'n v. GTE Syl-
\par   vania, Inc., 447 U.S. 102 (1980) . . . . 39
\par Dames & Moore v. Regan, 453 U.S. 654 (1981) . . . . 40, 41
\par Dobbert v. Florida, 432 U.S. 282 (1977) . . . . 10, 11, 36, 40
\par Dreyer v. Illinois, 187 U.S. 71 (1902) . . . . 30
\par Dynes v. Hoover, 61 U.S. (20 How.) 65 (1858) . . . . 32
\par Field v. Clark, 143 U.S. 649 (1892) . . . . 20
\par Furman v. Georgia, 408 U.S. 238 (1972) . . . . 2, 7, 10
\par Godfrey v. Georgia, 446 U.S. 420 (1980) . . . . 30
\par Goldman v. Weinberger, 475 U.S. 503 (1986) . . . . 31
\par Gregg v. Georgia, 428 U.S. 153 (1976) . . . . 30, 45
\par Grimley, In re, 137 U.S. 147 (1890) . . . . 31
\par Haig v. Agee, 453 U.S. 280 (1981) . . . . 41
\par Hanna v. Plumer, 380 U.S. 460 (1965) . . . . 42
\par Irving v. State, 441 So. 2d 846 (Miss. 1983), cert.
\par   denied, 470 U.S. 1059 (1985) . . . . 36
\par J. W. Hampton, Jr. & Co., V. United States, 276 U.S.
\par   394 (1928) . . . . 19
\par Johnson v. Sayre, 158 U.S. 109 (1895) . . . . 27
\par Jordan v. Watkins, 681 F.2d 1067 (5th Cir. 1982) . . . . 36
\par Jurek  v. Texas, 428 U.S. 262 (1976) . . . . 30
\par Kinsella v, Singleton, 361 U.S. 234 (1960) . . . . 12, 22
\par Kurtz v. Moffitt, 115 U.S. 487 (1885) . . . . 16
\par Lewis v. Jeffers,  497 U.S. 764 (1990) . . . . 11, 36
\par Lichter v. United States, 334 U.S. 742 (1948) . . . . 42, 43
\par Lowenfield v. Phelps, 484 U.S. 231 (1988) . . . . 11
\par Marsh v. Chambers,  463 U.S. 783 (1983) . . . . 20
\par Martin v. Mott, 25 U.S. (12 Wheat) 19 (1827) . . . . 18, 19
\par                                                                                    27, 40
\par Mason, Ex  parte, 105 U.S. 696 (1881) . . . . 27
\par Maynard v. Cartwright, 486 U.S. 356 (1988) . . . . 30
\par McCleskey v. Kemp,  481 U.S. 279 (1987) . . . . 46
\par McGautha v. California, 402 U.S. 183 (1971) . . . . 27
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par V 
\par 
\par Cases-Continued:             
\par 
\par Page
\par 
\par Middendorf   v. Henry,  425 U.S. 25 (1976) . . . . 32
\par Milligan, Ex parte, 71 U.S. (4 Wall.) 2 (1866) . . . . 29
\par Mistretta  v. United States, 488 U.S. 361 (1989) . . . . 7, 20
\par                                                                                    26, 32, 33, 42
\par Moskal v. United States, 498 U.S. 103 (1990) . . . . 35, 41
\par NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) . . . . 38
\par National Broadcasting Co. V. United States, 319
\par   U.S. 190 (1943) . . . . 43
\par Neagle, In  re, 135 U.S. 1 (1890) . . . . 17
\par O'Callahan v. Parker, 395 U.S. 258 (1969) . . . . 28
\par Orloff v. Willoughby, 345 U.S. 83 (1953) . . . . 31
\par Panama Refining Co. v. Ryan, 293 U.S. 388
\par   (1935) . . . . 16
\par Parisi v. Davidson, 405 U.S. 34 (1972) . . . . 32
\par Parker v. Levy, 417 U.S. 733 (1974) . . . . 31, 40
\par Poland v. Arizona, 476 U.S. 147 (1986) . . . . 36
\par Proffitt v. Florida, 428 U.S. 242 (1976) . . . . 30, 45
\par Quirin,  Ex  parte, 317 U.S. 1 (1942) . . . . 16
\par Red Lion Broadcasting Co. V. FCC, 395 U.S. 367
\par   (1969) . . . . 39
\par Reid v. Covert, 354 U.S. 1 (1957) . . . . 29, 37, 40
\par Reno v. Koray, 115 S. Ct. 2021 (1995) . . . . 41
\par Romano v. Oklahoma, 114 S. Ct. 2004 (1994) . . . . 11
\par Rostker v. Goldberg, 453 U.S. 57 (1981) . . . . 18
\par Runkle v. United States, 122 U.S. 543 (1887) . . . . 32
\par Schick v. Reed, 419 U.S. 256 (1974) . . . . 11, 42
\par Schlesinger v. Councilman, 420 U.S. 738 (1975) . . . . 29, 31
\par Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479
\par   (1985) . . . . 35
\par Sibbach v. Wilson & Co., 312 U.S. 1 (1941) . . . . 42
\par Skinner v. Mid-America Pipeline Co., 490  U.S. 212
\par   (1989) . . . . 12, 14
\par Smith V. United States, 113 S. Ct. 2050 (1993) . . . . 34
\par Smith V. Whitney, 116 U.S. 167 (1886) . . . . 27
\par Solorio V. United States 483 U.S. 435 (1987) . . . . 12, 27, 28
\par Stanford V. Kentucky, 492 U.S. 361 (1989) . . . . 11, 45
\par State V. Coleman, 605 P.2d 1000 (Mont. 1979),
\par   cert. denied, 446 U.S. 970 (1980) . . . . 36
\par Stoutenburgh V. Hennick, 129 U.S. 141 (1889) . . . . 19
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par VI
\par 
\par Cases-Continued:
\par 
\par Page
\par 
\par Swaim v. United States:
\par    28 Ct. Ct. 173 (1893), aff'd, 165 U.S. 553
\par     (1897) . . . . 17, 32
\par    165 U.S. 553 (1897) . . . . 17
\par Tison v. Arizona, 481 U.S. 137 (1987) . . . . 45
\par Touby v. United States, 500 U.S. 160 (1991) . . . . 31
\par Tuilaepa v. California, 114  S. Ct. 2630 (1994 ) . . . . 11, 12
\par United States v. Bailey, 34 U.S. (9 Pet.) 238
\par   (1835) . . . . 43
\par United States v. Chemical Foundation, Inc., 272
\par   U.S. 1 (1926) . . . . 14
\par United States v. Curtis, 32 M.J. 252 (C.M.A.),
\par   cert. denied, 502 U.S. 952 (1991) . . . . 7, 8
\par United States v. Curtiss-Wright Export Corp., 299
\par   U.S. 304 (1936) . . . . 15, 19, 41
\par United States v. Eliasom, 41 U.S. (16 Pet.) 291
\par   (1842) . . . . 16
\par United States v. Flores, 63 F.3d 1342 (5th Cir.
\par   1995) . . . . 45      
\par  United States   v.  Grimaud, 220 U.S. 506 (1911) . . . . 12, 43
\par United States v. Matthews, 16 M.J. 354 (C.M.A.
\par   1983) . . . . 2, 3, 11
\par United States  v. Mazurie, 419 U.S. 544 (1975) . . . . 14
\par United States v. Ware, 1 M.J. 282 (C.M.A. 1976) . . . . 37
\par United States ex rel. Knauff  v. Shaughnessy, 338
\par   U.S. 537 (1950) . . . . 14, 16, 43
\par United States ex rel. Toth v. Quarles,  350 U.S. 11
\par   (1955) . . . . 25-26, 31
\par Walton v. Arizona., 497 U.S. 639 (1990) . . . . 30, 36
\par Walz v. Tax Comm'n, 397 U.S. 664 (1970) . . . . 20
\par Wayman v. Southard, 23 U.S. (10 Wheat.) 1
\par   (1825) . . . . 42
\par Weiss v. United States, 114 S. Ct. 752 (1994) . . . . 11, 32, 33
\par Wells, Ex parte, 59 U.S. (18 How.) 307 (1856) . . . . 42
\par Yakus v. United States, 321 U.S. 414 (1944) . . . . 43
\par  Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
\par   579 (1952) . . . . 29
\par Zant v. Stephens, 462 U.S. 862 (1983) . . . . 30
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par VII
\par 
\par Constitution,  statutes and rules:         
\par 
\par Page
\par 
\par U.S. Const:
\par    Art  I . . . . 2, 14, 32, la
\par      9, Cl. 3 (Ex Post Facto Clause) . . . . 36
\par    Art. II . . . . 2, 8, 17, 40, 2a  
\par     1, C1. 8 . . . . 17, 2a
\par     2, Cl.1. . . . 17, 42, 2a
\par     3 . . . . 9, 17, 2a
\par    Art III . . . . 42
\par   Amend. V . . . . 26 
\par   Amend. VIII . . . . passim
\par    Amend. XIV . . . . 29
\par Act of Sept. 29,1789, ch. 25, 4,1 Stat. 96 . . . . 21
\par Act of Apr. 30,1790, ch. 10, 13,1 Stat. 121 . . . . 21
\par Act of July 1,1797, ch 7, 8,1 Stat. 525 . . . . 21
\par Act of Mar. 2,1799, ch. 24,1, Art. 29,1 Stat. 712 . . . . 21
\par Act of Apr. 23,1800, ch. 33, 1,2 Stat. 45:
\par    Art. XVII, 2 stat. 47 . . . . 22, 27-28
\par Art. XXI, 2 Stat. 48 . . . . 22 
\par Art. XXXII, 2 Stat. 49 . . . . 22
\par Act of Apr. 10,1806, ch. 20, l, 2 Stat. 359:
\par Art. 7,2 Stat. 360 . . . . 24
\par Art. 9,2 Stat. 361 . . . . 24 
\par Art. 20,2 Stat. 362 . . . . 24
\par Act of Sept. 27,1890, ch. 998,26 Stat. 491 . . . . 24 
\par Act of Aug. 29,1916, ch. 418,$3,39 Stat. 650:
\par Art. 45,39 Stat. 657 . . . . 24
\par Art. 92,39 Stat. 664 . . . . 25 
\par Act of May 5, 1950, ch. 169,  1, Art. 36, 64  Stat.
\par 120 . . . . 37
\par American Articles of War of 1775 . . . . 20
\par Art. VII . . . . 20
\par American Articles of War of 1776, Section VI,
\par Art. 1 . . . . 20
\par American Articles of War of 1786, Art. 12 . . . . 20-21
\par American Articles of War of 1874, Arts. 41-46 . . . . 24
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par VIII
\par 
\par Statutes and rules-Continued:         
\par 
\par Page
\par 
\par Antihijacking Act of 1974, Pub. L. No. 93-966,
\par Tit. I,  105, 88 Stat. 412-413 . . . . 44 
\par 49 U.S.C. 1473 (c) (7) (1976) . . . . 44      
\par 49 U.S.C. 1473 (c) (7) (B) (iii) (1976) . . . . 44
\par Articles of Confederation (1777) . . . . 20
\par British Articles of War of 1765, Section VI,
\par Art. II . . . . 20
\par Department of Defense Authorization Act, 1986,
\par Pub. L. No. 99-145, 534, 99 Stat. 634 (1985) . . . . 38 
\par Federal Death Penalty Act of 1994, Pub. L. No.
\par 103-322, Tit. VI,  60002, 108 Stat. 1959 . . . . 46 
\par 18 U. S. C. 3591-3598 (1994) . . . . 46
\par 18 U.S.C. 3592(c) (1994) . . . . 47
\par 18 U.S.C. 3592(c) (1) (1994) . . . . 46 
\par 18 U.S.C. 3592 (c) (3) - (8) (1994) . . . . 46 
\par 18 U.S.C. 3592 (c) (12) (1994) . . . . 46
\par 18 U.S.C. 3592 (c) (14) (1994) . . . . 46 
\par Taft-Hartley Act, 29 U.S.C. 141 et seq. . . . . 29
\par Uniform Code of Military Justice, 10 U.S.C. 801
\par et seq.:
\par Art. 18,10 U.S.C. 818 . . . . passim
\par Art. 36,10 U.S.C. 836 . . . . 2, 3, 7, 29, 34, 36, 39, 40, 41, 45
\par Art. 36(a), 10 U.S.C. 836(a) . . . . 8, 9, 10, 13, 36, 37, 41, 44
\par Art. 51,10 U.S.C. 851 . . . . 33
\par Art. 55,10 U.S.C. 855 . . . . 2, 43,44, 3a
\par Art. 56,10 U.S.C. 856 . . . . passim 
\par Art. 60,10  U.S.C. 860 . . . . 7
\par Art. 66,10 U.S.C. 866 . . . . 7
\par Art. 71,10 U.S.C. 871 . . . . 33, 42
\par Art. 80,10 U.S.C. 880 . . . . 2
\par Art. 106a, 10 U.S.C. 906a . . . . 2, 38, 44
\par Art. 106a(c) (4), 10 U.S.C. 906a(c) (4) . . . . 38, 39
\par Art. 118,10 U.S.C. 918 . . . . passim
\par Art. 118 (4), 10 U.S.C. 918 (4) . . . . 46
\par  Art. 122,10 U.S.C. 922 . . . . 2
\par 18 U.S.C. 351 . . . . 46
\par 18 U.S.C. 1111 . . . . 46
\par 18 U.S.C. 1114 . . . . 46
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par IX
\par 
\par States and rules-Continued:         
\par 
\par Page
\par 
\par 18 U.S.C. 1751 . . . . 46
\par 21 U.S.C. 848 (e) . . . . 46
\par Mil. R. Evid. 606 (b) . . . . 33
\par Rules for Courts-Martial:
\par    Rule 1003 . . . . 26
\par    Rule 1003(d) . . . . 26
\par    Rule 1004 . . . . passim
\par    Rule 1004 (b) . . . . 4 
\par    Rule 1004 (c) . . . . 4
\par    Rule 1004 (c) (2) . . . . 45 
\par    Rule 1004 (c) (3) . . . . 45
\par    Rule 1004 (c) (4) . . . . 44
\par    Rule 1004 (c) (7) . . . . 46
\par    Rule 1004 (c) (7) (B) . . . . 6, 46
\par    Rule 1004 (c) (7) (C) . . . . 46
\par    Rule 1004 (c) (7) (F) . . . . 46 
\par    Rule 1004 (c) (7) (G) . . . . 46 
\par    Rule 1004 (c) (7) (J) . . . . 6 
\par    Rule 1004 (c) (8) . . . . 6, 45
\par    Rule 1004 (c) (9) . . . . 45
\par 
\par Miscellaneous:
\par 
\par I American State Papers Military Affairs (Lowrie
\par & Clarke  eds., 1832) . . . . 21 
\par 15 Annals of Cong.:
\par p. 263 (1805) . . . . 22 
\par p.326 (1806). . . . 22, 27
\par pp. 326-327 (1806) . . . . 23
\par p. 327 (1806) . . . . 23
\par p. 338 (1806) . . . . 23
\par DOD Directive No. 5500.17 (Jan. 23, 1985) . . . . 33
\par Dictionary of American Biography (1936) . . . . 23
\par Exec. Order No. 11,030,27 Fed. Reg. 5847 (1962 ) . . . . 33
\par Exec. Order No. 12,460,49 Fed. Reg. 3169 (1984 ). . . . 3, 40
\par Exec. Order No. 12,473, 49 Fed. Reg. 17,152
\par (1984) . . . . 4, 32
\par Exec. Order No. 12,484, 49 Fed. Reg. 28, 825
\par (1984) . . . . 4, 32-33
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par X
\par 
\par Miscellaneous-Continued:           
\par 
\par Page
\par 
\par Exec. Order No. 12,550,51 Fed. Reg. 6497 (1986 ) . . . . 4
\par Exec. Order No. 12,767, 56 Fed. Reg. 30,284
\par  (1991) . . . . 4
\par 47 Fed. Reg. 3401 (1982) . . . . 33
\par 48 Fed. Reg. 23,688 (1983) . . . . 4
\par H.R. Conf. Rep. No. 235, 99th Cong., 1st Sess.
\par   (1985) . . . . 39
\par H.R. Rep. No. 1051, 51st Cong., 1st Sess. (1890) . . . . 24, 35, 43
\par H.R. Rep. No. 491, 81st Cong., 1st Sess. (1949) . . . . 44
\par Manual for Courts-Martial;
\par    (1984 ed.) . . . . 3
\par    (1995 ed.) . . . . 4, 26, 44, 45, 46
\par Manual for Courts-Martial, U.S. Army  1917 . . . . 20, 25
\par Clinton Rossiter, The Supreme Court and the Com-
\par   mander in Chief (1976) . . . . 32
\par S. Rep. No. 486, 81st Cong., 1st Sess. (1949) . . . . 44
\par S. Rep. No. 197, 96th Cong., 1st Sess. (1979) . . . . 37
\par Frederick Bernays Wiener, Courts-Martial and the
\par   Bill of Rights: The Original Practice I, 72 Harv.
\par   L. Rev. 1 (1958) . . . . 21, 22, 23, 24, 28
\par William Winthrop, Military Law and Precedents
\par   (2d ed. 1920) . . . . 16, 20, 21, 24
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par In the Supreme Court of the United States
\par 
\par OCTOBER TERM, 1995
\par 
\par No. 94-1966
\par 
\par DWIGHT J. LOVING, PETITIONER
\par 
\par v.
\par 
\par UNITED STATES OF AMERICA
\par 
\par    ON WRIT OF CERTIORARI
\par TO THE UNITED STATES COURT OF APPEALS
\par    FOR THE ARMED FORGES
\par 
\par BRIEF FOR THE UNITED STATES
\par 
\par OPINIONS BELOW
\par 
\par The opinion of the United States Court of Appeals for
\par the Armed Forces (Pet. App. 1a-227a) is reported at 41
\par M.J. 213. The initial opinion of the United States Army
\par Court of Military Review, now the United States Army
\par Court of Criminal Appeals (Pet. App. 229a-256a), is
\par reported at 34 M.J. 956, and its opinion denying recon-
\par sideration (Pet. App. 257a-265a) is reported at 34 M.J.
\par 1065.     
\par 
\par  JURISDICTION
\par 
\par The judgment of the United States Court of Appeals
\par for the Armed Forces was entered on November 10, 1994.
\par A petition for reconsideration was denied on February 2,
\par 1995. Pet. App. 228a. On April 21, 1995, Chief Justice
\par Rehnquist extended the time within which to file a peti-
\par tion for a writ of certiorari to and including June 2,
\par 1995, and the petition was filed on that date. The petition
\par 
\par (1)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 2
\par 
\par for a writ of certiorari was granted on September 27,
\par 1995. 116 S. Ct. 39. The jurisdiction of this Court rests
\par upon 28 U.S.C. 1259(1) (Supp. V 1993).
\par 
\par STATUTES, RULE, AND
\par   CONSTITUTIONAL PROVISION INVOLVED
\par 
\par Articles 18, 36, 56, 106a, and 118 of the Uniform
\par Code of Military Justice, 10 U.S.C. 818, 836, 856, 906a,
\par and 918, and Rule for Courts-Martial 1004, are reprinted
\par in the Joint Appendix, J.A. 139-145, 132-138. Relevant
\par provisions of Articles I and II of the Constitution, and
\par Article 55 of the Uniform Code of Military Justice, are
\par reproduced in the appendix to this brief, infra, 1a-3a.
\par 
\par STATEMENT
\par 
\par Petitioner was convicted by a general court-martial of
\par premeditated murder, felony murder, attempted murder,
\par and robbery (four specifications ), in violation of Articles
\par 118, 80, and 122 of the Uniform Code of Military Justice
\par (UCMJ), 10 U.S.C. 918, 880, and 922. The court sen-
\par tenced petitioner to death, a dishonorable discharge, and
\par forfeiture of all pay and allowances. The United States
\par Army Court of Military Review affirmed. 34 M.J. 956
\par (Pet. App. 229a-256a), reconsideration denied, 34 M.J.
\par 1065 (A.C.M.R. 1992) (Pet. App. 257a-265a). The
\par United States Court of Appeals for the Armed Forces
\par affirmed. Pet. App. 1a-227a.
\par 1. In United States v. Matthews, 16 M.J. 354 (1983),
\par the United States Court of Military Appeals (now the
\par United States Court of Appeals for the Armed Forces)
\par analyzed the constitutionality of Article 118 of the UCMJ,
\par 10 U.S.C. 918, which authorizes the imposition of the
\par death penalty on defendants who are found guilty of cer-
\par tain murders. The court concluded that Furman v. Geor-
\par gia, 408 U.S. 238 (1972 ) (per curiam ), and its progeny,
\par which assessed the constitutionality of state death penalty
\par schemes, would apply without modification to the imposi-
\par tion of the death penalty in the military, at least when the
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par  3
\par 
\par offense is not inherently military but has a civil analogue.
\par 16 M.J. at 368-369.
\par After reviewing this Court's Eighth Amendment cases,
\par the Matthews court concluded that certain features ap-
\par peared in a constitutionally valid death penalty procedure:
\par a bifurcated sentencing proceeding; specific aggravating
\par circumstances to be identified by the sentencing authority;
\par selection of and findings on the particular aggravating
\par circumstances used by the sentencer to impose the death
\par penalty; unrestricted opportunity for the defendant to
\par present mitigation and extenuation evidence; and manda-
\par tory appellate review of the appropriateness of the sen-
\par tence. 16 M.J. at 377. The court found all of those
\par safeguards present in the military system except for a re-
\par quirement that court members identify the specific aggra-
\par vating factors upon which they relied in imposing the
\par death penalty. Id. at 379. Because of the absence of that
\par safeguard, the court reversed Matthews' death sentence.
\par ld. at 381-382. The court concluded, however, that either
\par Congress or the President, in his capacity as Commander-
\par in-chief and/or pursuant to the powers that Congress
\par delegated to him, could remedy the defect. Id. at 380
\par (citing Article 36 of the UCMJ, 10 U.S.C. 836).
\par On January 24, 1984, "[b]y the authority vested in
\par [him] as President by the Constitution of the United
\par States and by Chapter 47 of Title 10 of the United States
\par Code [i.e., the UCMJ]," the President responded by pro-
\par mulgating an amendment to the extant Manual for Courts-
\par Martial (Manual) that provided procedures for adjudicat-
\par ing cases in which the death penalty is authorized by the
\par UCMJ. See Exec. Order No. 12,460, 49 Fed. Reg. 3169
\par (1984). When a new revision of the Manual was pub-
\par lished later that year, the provisions of the Executive Or-
\par der were included as Rule for Courts-Martial (RCM)
\par 1004. See Manual (1984 ed.). 1.
\par 
\par ___________________(footnotes)
\par 
\par 1 Prior to the decision in Matthews, the Department of Defense
\par announced and solicited comments on the proposed changes to the
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 4
\par 
\par Briefly summarized, RCM 1004 requires that, before a
\par death penalty may be imposed following a general court-
\par martial conviction of an offense for which Congress has
\par expressly authorized the death penalty, the accused must
\par have been notified, prior to trial, of the aggravating factors
\par the prosecution intends to prove; the members of the
\par court-martial must unanimously find the existence of at
\par least one of the aggravating factors specified in the Rule;
\par the accused must be given broad latitude to present evi-
\par dence in extenuation and mitigation; and the members
\par must concur that such extenuating or mitigating circum-
\par stances are "substantially outweighed" by any aggravating
\par circumstances found to exist. See RCM 1004(b). In
\par addition, the Rule prescribes a list of aggravating factors,
\par some of which apply to all capital offenses, others of
\par which apply exclusively to specifically enumerated crimes.
\par See RCM 1004(c).
\par 2. During the evening of December 11, 1988, peti-
\par tioner, an Army private stationed at Fort Hood, Texas,
\par robbed at gun point two different 7-Eleven convenience
\par stores in Killeen, Texas. In the first robbery, petitioner
\par fired two shots into the counter and soda fountain, which
\par were behind the cashier; he obtained 38. In the second
\par 
\par ___________________(footnotes) 
\par 
\par Manual it was then considering for recommendation to the Presi-
\par dent, which included RCM 1004. See 48 Fed. Reg. 23,688 (1983) ;
\par Matthews, 16 M.J. at 381.
\par The Manual is an Executive Order. See Exec, Order No. 12,478
\par (Apr. 13, 1984), 49 Fed. Reg. 17,152 (1984), as amended by Exec.
\par Order No. 12,484 (July 13, 1984), 49 Fed. Reg. 28,825 (1984).
\par The Rules for Courts-Martial, which are part of the Manual,
\par "govern the procedures and punishments in all courts-martial and,
\par whenever expressly provided, preliminary, supplementary, and ap-
\par pellate procedures and activities." See Manual II-1. The text of
\par RCM 1004 was subsequently modified by additional Executive
\par Orders. See Exec. Order No. 12,550 (Feb. 19, 1986), 51  Fed. Reg.
\par 6497, 6498-6499 (1986) ; Exec. Order No. 12,767 (June 27, 19911,
\par 56 Fed. Reg. 30,284, 30,293 (1991). The most recent revision of
\par the Manual was issued in 1995. It included all amending Executive
\par Orders by the President up to that time. Unless otherwise noted,
\par citations to the Manual hereinafter are to the 1995 revision.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 5
\par 
\par robbery, petitioner fired a bullet into the cash register,
\par and demanded that the cashier put money in a paper bag.
\par As he ran out, petitioner fired a round back into the
\par store. He obtained approximately $52 from the second
\par robbery. Pet. App. 3a, 231a.
\par When the 7-Eleven robberies netted him only a small
\par amount of cash, petitioner conceived a plan to rob taxicab
\par drivers. On the evening of December 12, 1988, he called
\par a taxicab to take him from a store in Killeen to his bar-
\par racks at Fort Hood. The driver of the taxicab was an
\par active-duty soldier, Christopher Fay, who was working for
\par extra money. Petitioner directed Fay to a secluded area
\par on Fort Hood, where he demanded Fay's money at gun
\par point. After receiving some money from Fay, petitioner
\par shot him in the back of the head. "While looking at the
\par hole in the back of the victim's head and the blood
\par `gushing out,' " Pet. App, 232a, petitioner cocked his
\par pistol and again shot Fay in the back of the head, killing
\par him. Id. at 3a-4a, 23 la-232a.
\par Petitioner walked to his barracks and, after counting
\par the money he obtained from Fay, called a second taxi-
\par cab. That cab was driven by retired Army sergeant
\par Bobby Sharbino. Petitioner directed Sharbino to a se-
\par cluded street in Killeen, where he robbed Sharbino of
\par his money pouch, wallet. and other personal effects. Peti-
\par tioner then ordered Sharbino to lie down on a car seat
\par and shot him in the head, killing him. Pet. App. 4a,
\par 232a.
\par Later that evening, petitioner took his girlfriend to a
\par nightclub in Killeen. Upon leaving, petitioner and his
\par girlfriend entered a taxicab driven by Howard Harrison.
\par After dropping his girlfriend off near her residence, peti-
\par tioner directed Harrison to a secluded area and robbed
\par him at gun point. Petitioner then attempted to kill Harri-
\par son. Harrison struggled with petitioner, disarmed him, and
\par fled. Pet. App. 4a-5a, 232a-233a.
\par Acting on leads provided by Harrison, law enforcement
\par agents, including agents of the Army Criminal Investiga-
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par  
\par 6
\par 
\par tion Command (CID), arrested petitioner in the after-
\par noon of December 13, 1988. Petitioner was taken to the
\par CID office, where, after being advised of his rights, he
\par made a full videotaped confession describing his crimes in
\par detail. Searches of the area surrounding petitioner's girl-
\par friend's residence, and of the residence and other places
\par frequented by petitioner, resulted in the recovery of the
\par weapon used in the murders and robberies, spent and un-
\par spent bullets, petitioner's blood-stained jacket, and effects
\par taken from the murder victims. Pet. App. 5a, 6a-7a,
\par 232a n.2, 233a. Later, while incarcerated at the U.S.
\par Army facility at Fort Riley, Kansas, petitioner told a
\par fellow inmate that he had committed the first murder "to
\par see if he could get away with it," and the second murder
\par "because it was fun." He subsequently added that, "if
\par he had to do it over, the only difference is he wouldn't
\par get caught." Id. at 68a-69a.
\par An eight-member general court-martial panel unani-
\par mously found petitioner guilty of the premeditated murder
\par of Sharbino and of the felony murder of Fay. By a non-
\par unanimous vote, the court-martial also found petitioner
\par guilty of attempting to murder Harrison, of robbing Shar-
\par bino and Harrison, and of robbing the 7-Eleven stores,
\par Pet. App. 8a-9a. 2. After a hearing conducted in accord-
\par ance with RCM 1004, the court-martial unanimously
\par found, as aggravating factors, that the premeditated mur-
\par der of Sharbino was committed while petitioner was en-
\par gaged in a robbery (see RCM 1004(c) (7) (B); that, in
\par the felony murder of Fay, petitioner acted as the trigger-
\par man (see RCM 1004(c)(8); and that petitioner, having
\par been found guilty of the premeditated murder of Shar-
\par bino, was found guilty of another murder in the same
\par case (see RCM I004(c) (7) (J) ). Pet. App. 253a-254a.
\par The court-martial unanimously sentenced petitioner to
\par 
\par ___________________(footnotes)
\par 
\par 2 In addition, petitioner was also found guilty of the premedi -
\par tated murder of Fay, the robbery of Fay, and the felony murder of
\par Sharbino. After the findings were announced, the military judge
\par dismissed those specifications as multiplicitous. Pet. App. 9a.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 7
\par 
\par death, a dishonorable discharge, and forfeiture of all pay
\par and allowances. The convening authority approved the
\par findings and sentence. Id. at 9a, 230a. 3.
\par 3. The Army Court of Military Review affirmed the
\par findings and sentence. Pet. App. 229a-256a. In accord-
\par ance with Article 6.6 of the UCMJ, 10 U.S.C. 866, the
\par court independently weighed the evidence and "agree[d]
\par with each of the aggravating factors found by the court-
\par martial." Pet. App. 254a. The Court also found "that
\par any extenuating and mitigating circumstances are substan-
\par tially outweighed by the aggravating circumstances." Ibid.
\par On appeal, petitioner argued that Article 118 of the
\par UCMJ, 10 U.S.C. 918, is unconstitutional under Furman
\par V. Georgia, 408 U.S. 238 ( 1972) (per curiam), in that
\par it does not sufficiently narrow the class of death-eligible
\par defendants, and that the President exceeded his authority
\par under the Constitution and the UCMJ in promulgating
\par RCM 1004 to provide specific aggravating factors. The
\par court found those claims foreclosed by United States V.
\par Curtis, 32 M.J. 252 (C.M.A. ) (J.A. 88-131), cert. de-
\par nied, 502 U.S. 952 (1991 ). Pet. App. 230a.
\par The Curtis court concluded that, under the UCMJ, the
\par President has long "play[ed] the major role in determin-
\par ing what punishments may be imposed by courts-martial."
\par J.A. 107. It held that several provisions of the UCMJ,
\par particularly Articles 18, 36, and 56, 10 U.S.C. 818, 836,
\par and 856, authorized the President to promulgate aggra-
\par vating factors for capital cases. J.A. 107-108. Relying
\par on Mistretta v. United States, 488 U.S. 361 (1989), the
\par Curtis court rejected a separation-of-powers challenge to
\par 
\par ___________________(footnotes)
\par 
\par 3  The "convening authority" is the commander who convenes the
\par court-martial. The convening authority selects the court-martial
\par members, directs that the accused be tried by the court-martial for
\par the charged offenses, and conducts a poet-trial review of the pro-
\par ceedings. Upon such review, he is empowered to dismiss any charge
\par or specification by setting aside the finding of guilty or "approve,
\par disapprove, commute, or suspend the sentence in whole or in part."
\par See Art. 60, UCMJ, 10 U. S.C.  860.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par  8
\par 
\par that authorization, noting that "[i]n view of [the Presi-
\par dent's] inherent constitutional authority [as Commander-
\par in-Chief of the Army and Navy], a separation-of-powers
\par objection has much less merit in the present context than
\par if the 'aggravating factors' for capital cases tried by courts-
\par martial had been formulated by a specially created com-
\par mission." J.A. 106. Curtis also rejected the contention
\par that Congress failed to give the President an intelligible
\par principle for the exercise of his authority, explaining that
\par adequate standards are furnished by the UCMJ'S direc-
\par tion in Article 36(a) that the President "shall, so far as
\par he considers practicable," apply "the principles of law"
\par that are generally recognized in the trial of criminal cases
\par in federal district courts. J.A. 113-122.
\par 4. The Court of Appeals for the Armed Forces af-
\par firmed. Pet. App. 1a-227a. The court summarily re-
\par jected, on the authority of Curtis and Matthews, petition-
\par er's claims that the President lacked constitutional and
\par statutory authority to promulgate RCM 1004. Pet. App.
\par 141a-142a.
\par 
\par SUMMARY OF ARGUMENT
\par 
\par Article 118 of the Uniform Code of Military Justice
\par (UCMJ) expressly provides that a servicemember who
\par commits premeditated or felony murder "shall suffer death
\par or imprisonment for life as a court-martial may direct."
\par 10 U.S.C. 918. Rule for Courts-Martial (RCM) 1004,
\par first promulgated by the President in 1984, provides that
\par only a sub-class of those eligible for the death penalty
\par under Article 118-i.e., those who are guilty of certain
\par forms of aggravated conduct-may be sentenced to death
\par by a court-martial. The President's action was authorized
\par by other provisions of the UCMJ and by the President's
\par own powers under Article II of the Constitution. It does
\par not violate the separation-of-powers doctrine or the Eighth
\par Amendment.
\par A. The UCMJ authorizes the President's action be-
\par cause Articles 18 and 56 of the UCMJ provide that the
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 9
\par 
\par President may limit the punishment that courts-martial
\par may impose, including-as Article 18 makes clear-"the
\par penalty of death when specifically authorized by" the
\par UCMJ. 10 U.S.C. 818, 856. Article 36(a) further pro-
\par vides that the President may prescribe "post-trial proce-
\par dures" for cases arising under the UCMJ to conform to
\par the "principles of law * * * generally recognized" in the
\par trial of federal criminal cases. 10 U.S.C. 836(a). In
\par addition, the constitutional powers conferred on the Presi-
\par dent as Commander-in-Chief independently authorize him
\par to regulate military punishments, within the bounds au-
\par thorized by statute, because such punishments always
\par have been understood to be an aspect of military obedi-
\par ence and discipline. Because the Constitution also en-
\par joins the President to "take Care that the Laws be faith-
\par fully executed," Art. II, 3, it was especially appropriate
\par for him to exercise his statutory and constitutional au-
\par thority to. promulgate RCM 1004, because by so doing
\par he removed arguable Eighth Amendment defects in the
\par procedures by which Article 118 is implemented and
\par thereby ensured that it is enforced as contemplated by
\par Congress.
\par There is no merit to petitioner's argument that under
\par separation-of-powers principles Congress alone may prom-
\par ulgate aggravating factors. This Court has long recog-
\par nized that it is appropriate for Congress to grant the
\par President broad authority in areas in which the Constitu-
\par tion also gives him independent power to act. That prin-
\par ciple applies with special force with respect to the armed
\par forces and the President's role as their Commander-in-
\par Chief, and Congress has a long-standing practice of leav-
\par ing the regulation of military punishments, including death
\par when authorized by statute, to the Executive. Nothing in
\par the Eighth Amendment requires a different conclusion,
\par because this Court has never construed that provision to
\par embody its own separation-of-powers doctrine.
\par B. There is no greater merit to petitioner's claim that
\par the UCMJ'S grant of authority to the President is not
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 10
\par 
\par cabined by constitutionally adequate standards. In enact-
\par ing Articles 18 and 56, Congress must have contemplated
\par that the President would exercise his authority to limit
\par sentences by reference to the considerations that tradi-
\par tionally have controlled similar exercises of his discretion,
\par including the needs of military discipline, and the policy
\par of providing for evenhanded imposition of court-martial
\par punishments across the country. Article 36 (a ) gives the
\par President additional guidance by referring him to "prin-
\par ciples of law * * * generally recognized" by federal dis-
\par trict courts. Those principles include the Eighth Amend-
\par ment decisions of this Court and other death penalty
\par statutes on which the President relied in promulgating
\par RCM 1004.
\par 
\par ARGUMENT
\par 
\par THE PRESIDENT PROPERLY PROMULGATED RULE
\par FOR COURTS-MARTIAL 1004 TO LIMIT THE CLASS
\par OF CASES IN WHICH THE DEATH PENALTY, WHEN
\par IT OTHERWISE IS EXPRESSLY AUTHORIZED BY
\par THE UNIFORM CODE OF MILITARY JUSTICE, MAY
\par BE IMPOSED
\par 
\par The linchpin of the arguments advanced by petitioner
\par and his amici is the assumption, nowhere demonstrated,
\par that Furman v. Georgia, 408 U.S. 238 (1972), and its
\par progeny, rendered Article 118 of the UCMJ, 10 U.S.C.
\par 918, in which Congress expressly authorized the death
\par penalty for certain murders committed by military per-
\par sonnel, a nullity. Because of that assumption, petitioner
\par contends that the President must be deemed to have de-
\par fined new crimes punishable by death-i. e., to have pre-
\par scribed "what acts would be punished as criminal offenses
\par and what the punishment should be for those offenses."
\par Pet. Br. 6; see also ACLU Br. 7. That assumption, how-
\par ever, is wrong. See, e.g., Dobbert v. Florida, 432 U.S.
\par 282, 297-298 (1977 ). 4. Furman and its progeny held that
\par 
\par ___________________(footnotes)
\par 
\par 4 Dobbert rejected the defendant's argument that there "was! no
\par death penalty `in effect' in Florida" at the time of his crime because
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 11
\par 
\par the Eighth Amendment prohibits the imposition of the
\par death penalty under procedures that create a substantial
\par risk that it will be inflicted in an arbitrary manner. See
\par e.g., Lewis V. Jeffers, 497 U.S. 764, 774 ( 1990). Those
\par cases did not rule unconstitutional Congress's judgment
\par that death is a lawful punishment for premeditated or
\par felony murder in the military justice system. 5. Instead,
\par as the Court of Military Appeals recognized in United
\par States v. Matthews, 16 M.J. 354 (1983), those cases
\par require only that appropriate safeguards exist in order for
\par a death penalty statute to be implemented in a constitu-
\par tional manner i.e., that the fact-finder's judgment reason-
\par ably separate the murder committed by the defendant
\par from the general class of all murders. See, e.g., Tuilaepa
\par V. California, 114 S. Ct. 2630, 2634-2635 (1994);
\par Romano V. Oklahoma, 114 S. Ct. 2004, 2009 ( 1994);
\par Lowenfield v. Phelps, 484 U.S. 231, 244 ( 1988 ). 6.
\par 
\par ___________________(footnotes)
\par 
\par Florida had not yet acted to comply with the dictates of Furman.
\par Dobbert accordingly upheld retroactive application to the defendant
\par of that State's post-Furman capital sentencing law on the ground
\par that the changes were merely procedural. 432 U.S. at 296, 297.
\par 
\par 5 See Schick v. Reed, 419 U.S. 256, 260, 267 (1974) (expressly
\par leaving undecided whether Furman analysis applies to the mili-
\par tary) ; cf. Stanford v. Kentucky, 492 U.S. 361, 372 n.4 (1989)
\par (citing Article 118 as appropriately informing decision whether
\par there is a national consensus against execution of underage offend-
\par ers, thereby apparently assuming that Article 118 remains in
\par effect) ; Weiss V. United States, 114 S. Ct. 752, 760-761 (1994)
\par (noting that the constitutional tests and limitations applicable in
\par the military context may differ from those the Court has developed
\par for civilian society).
\par 
\par 6 While we need not quarrel here with Matthews' limited holding
\par that the Constitution requires additional findings as to aggravation
\par in cases brought under Article 118, this Court's subsequent cases
\par have cast doubt on the court's imposition of that requirement. In
\par Lowenfield V. Phelps, 484 U.S. 231 (1988), this Court held that the
\par "narrowing" required by the Eighth Amendment may be inherent
\par in the definition of the crime and occur at the penalty phase. See
\par Tuilaepa, 114 S. Ct. at 2634-2635; Romano, 114 S. Ct. at 2009
\par In enacting Article 118, Congress could reasonably have concluded
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 12
\par 
\par Thus, contrary to petitioner's basic submission (Br.
\par 39-43 ), Congress in this case has exercised its constitu-
\par tional authority to "creat[e] [the] offense[] [and] fix[]
\par * * * the punishment there for," Kinsella v. Singleton, 361
\par U.S. 234, 246 (1960); see Solorio v. United States, 483
\par U.S. 435, 438-439 (1987), by providing in Article 118
\par that any servicemember guilty of premeditated murder or
\par felony murder may be sentenced to death. "The statute,
\par not the [President], fixes the penalty," United States V.
\par Grinaud, 220 U.S. 506, 522 (1911), and the President,
\par "in order to administer the law and carry the statute into
\par effect," did "not go outside of the circle of that which
\par the [UCMJ] itself ha[s] affirmatively * * * treated as un-
\par lawful if done." Id. at 518. That power to make the
\par UCMJ system work in light of judicial rulings and other
\par changed circumstances was clearly conferred on the
\par President by the Constitution and by "entirely appropriate
\par delegations of discretionary authority by Congress."
\par Skinner V. Mid-America Pipeline Co., 490 U.S. 212, 222
\par (1989) ("without doubt" Congress may confer upon the
\par Executive "the authority to prescribe all needful rules
\par and regulations" for the enforcement of the Internal Rev-
\par enue Code, "including all rules and regulations as may
\par be necessary by reason of any alteration of law") (in-
\par ternal quotation marks omitted).
\par In addition to his constitutional authority as President,
\par three specific provisions of the UCM.J make clear that
\par the President has the power to restrict the class of defend-
\par ants who may be sentenced to death in the military jus-
\par 
\par ___________________(footnotes) 
\par 
\par that those whom the government trains to kill have a special
\par obligation of restraint that makes their commission of murder
\par more morally culpable than the general class of homicides com-
\par mitted by a civilian. Such a breach of trust also impairs the
\par effectiveness of an essential government function, because it under-
\par mines public confidence in the armed forces on which the citizenry
\par depends for its security. Those factors serve to make Article 118
\par applicable "only to a subclass of defendants convicted of murder."
\par Tuilaepa, 114 S. Ct. at 2635.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 13
\par 
\par tice system. Article 18, 10 U.S.C. 818, which sets forth
\par the jurisdiction of general courts-martial, provides that
\par such courts-martial "may, under such limitations as the
\par President may prescribe, adjudge any punishment not
\par forbidden by this chapter, including the penalty of death
\par when specifically authorized by this chapter." Article
\par 36(a), 10 U.S.C. 836(a), empowers the President to
\par prescribe "trial[] and post-trial procedures * * * for cases
\par arising under [the UCMJ] triable in courts-martial" by
\par regulations that "shall, so far as [the President] consid-
\par ers practicable, apply the principles of law * * * generally
\par recognized in the trial of criminal cases in the United
\par States district courts." And Article 56, 10 U.S.C. 856,
\par authorizes the President to limit the maximum punish-
\par ment a court-martial may impose.
\par Those provisions plainly authorize the President to pro-
\par vide that fewer than all the defendants whom Congress
\par has made eligible for the military death penalty may ac-
\par tually suffer that punishment, by incorporating into the
\par Rules for Courts-Martial (RCM) the procedures that
\par this Court's Eighth Amendment cases have upheld as con-
\par stitutionally sufficient in the civilian context. The Presi-
\par dent's decision to exercise his constitutional and statutory
\par authority in that manner not only removed any arguable
\par Eighth Amendment infirmity in how the military death
\par penalty is implemented, 7. but also is consistent with Con-
\par gress's long-standing practice, dating back to the framing
\par of the Constitution, of confiding similar decisions to the
\par judgment of the Executive.
\par 
\par A. Nothing In The Constitution Requires That Congress
\par      Itself  Determine which  Capital Defendants Are
\par      Executed
\par 
\par Petitioner contends (Br. 7-16, 37, 42-43) that the
\par Framers of the Constitution gave Congress the exclusive
\par 
\par ___________________(footnotes)
\par 
\par 7 Significantly, petitioner makes no claim that the aggravating
\par factors promulgated by the President in RCM 1004 would fail to
\par satisfy the Eighth Amendment's requirement of "narrowing" if
\par those factors had been enacted by Congress.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 14
\par 
\par authority to promulgate rules, regulations, and punish-
\par ments to be applied by courts-martial, that the Framers
\par never intended "the president's powers to be broad enough
\par to establish policy or rules for the government and regu-
\par lation of courts-martial," Br. 10, and that accordingly the
\par President's exercise of such "legislative" authority in
\par promulgating RCM 1004 violates the nondelegation doc-
\par trine and the Eighth Amendment. There is no merit to
\par those claims, which ignore not only the President's inde-
\par pendent role in the constitutional scheme but also 200
\par years of our Nation's history.
\par 1. There is no basis for petitioner's suggestion (Br.
\par 7-8) that, because Article I vests in Congress the au-
\par thority to make rules for the government of the armed
\par forces, Congress's ability to seek the aid of the Executive
\par in this area is subject to special restrictions. See Skinner
\par V. Mid-America Pipeline Co., 490 U.S. at 220-221 (no
\par distinction in Article I powers, including power to "raise
\par and support Armies" or to " `make Rules for the[ir] Gov-
\par ernment' * * * in terms of the scope and degree of dis-
\par cretionary authority that Congress may delegate to the
\par Executive"); see also id. at 222-223. Here, far more
\par pertinent than the specific head of Article I power in-
\par voked by Congress is the long-standing principle that the
\par limits on Congress's ability to confer authority on the
\par Executive Branch-under any of its Article I powers-
\par are "less stringent in cases where the entity exercising the
\par delegated authority itself possesses independent authority
\par over the subject matter." United States v. Mazurie, 419
\par U.S. 544, 556-557 ( 1975) (delegation to Indian tribe of
\par authority to regulate liquor, which gave rise to federal
\par criminal penalties ); see also United States ex rel. Knauff
\par v. Shaughnessy, 338 U.S. 537, 542-543 (1950) (immi-
\par gration); United States v. Chemical Foundation, Inc.,
\par 272 U.S. 1, 12 (1926) (Commander-in-chief power);
\par Cargo of the Brig Aurora v. United States, 11 U.S. (7
\par Cranch) 382, 387-388 (1813) (foreign affairs),
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 15
\par 
\par That principle is illustrated by United States v. Curtiss-
\par Wright Export Corp., 299 U.S. 304 ( 1936). In that
\par case, Congress had given the President authority to pro-
\par hibit arms sales to warring South American countries,
\par with whatever exceptions he might prescribe, if he should
\par conclude that such a prohibition would "contribute to the
\par re-establishment of peace" there. Id. at 312. That au-
\par thorization was attacked as an impermissible delegation
\par of Legislative power that was "controlled by no standard."
\par Id. at 314-315. Emphasizing the "unbroken legislative
\par practice * * * almost from the inception of the national
\par government," id. at 322, which provided for the President
\par to exercise primary control over matters involving foreign
\par affairs, this Court rejected that challenge:
\par 
\par   It is important to bear in mind that we are here
\par dealing not alone with an authority vested in the
\par President by an exertion of legislative power, but
\par with such an authority plus the very delicate, plenary
\par and exclusive power of the President as the sole
\par organ of the federal government in the field of inter-
\par national relations * * *.
\par 
\par Id. at 319-320. The Court made the same point in
\par Knauff, in rejecting an alien's challenge to her exclusion
\par from the United States pursuant to authority delegated
\par by statute to the President:
\par 
\par       [T]here is no question of inappropriate delegation
\par       of legislative power involved here. The exclusion of
\par       aliens is a fundamental act of sovereignty. The right
\par       to do so stems not alone from legislative power but
\par       is inherent in the executive power to control the
\par       foreign affairs of the nation. * * *
\par       * * * Normally Congress supplies the conditions
\par      of the privilege of entry into the United States. But
\par       because the power of exclusion of aliens is also
\par       inherent in the executive department of the sovereign,
\par       Congress may in broad terms authorize the executive
\par       to exercise the power, e.g., as was done here, for
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 16
\par 
\par the best interests of the country during a time of
\par national emergency.
\par 338 U.S. at 542-543.
\par 
\par The same is true here, because the authority exercised
\par by the President is "cognate to the conduct by him,"
\par Panama Refining Co. V. Ryan, 293 U.S. 388, 422
\par ( 1935), of his constitutional duties. "The power of the
\par executive to establish rules and regulations for the govern-
\par ment of the army, is undoubted," United States v. Eliason,
\par 41 U.S. (16 Pet.) 291, 301 (1842), because the Con-
\par stitution "invests the President, as Commander in Chief,
\par with the power to  * * * carry into effect all laws passed
\par by Congress for the conduct of war and for the govern-
\par ment and regulation of the Armed Forces." Ex parte
\par Quirin, 317 U.S. 1, 26 (1942); see also Kurtz V. Moffitt,
\par 115 U.S. 487, 503 (1885) (army regulations providing
\par rewards for the capture of deserters "derive their force
\par from the power of the President as commander-in-chief,
\par and are binding upon all within the sphere of his legal and
\par constitutional authority"); William Winthrop, Military
\par Law and Precedents 31 (2d ed. 1920) (Commander-
\par in-Chief "may, in the due execution of the laws for the
\par government of the army, make needful and proper regu-
\par lations without any legislative authority whatever"); id.
\par at 27, 59.
\par The Commander-in-Chief's  constitutional authority easily
\par encompasses the regulation, within prescribed statutory
\par bounds, of punishments imposed in the military. As the
\par Court of Claims noted in a landmark case, in which this
\par Court later concluded that the President has inherent
\par power to convene courts-martial in the absence of legisla-
\par tion expressly prohibiting him from doing so:
\par 
\par      [T]here remains the significant fact in our military
\par      system that the President is always the commander
\par      in chief. Congress may increase the Army, or reduce
\par      the Army, or abolish it altogether; but so long as
\par      we have a military force Congress can not take away
\par      from the President the supreme command. * * *
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 17
\par   
\par * * * The power to command depends upon disci-
\par pline, and discipline depends upon the power to
\par punish * * *. If the President has no authority in
\par matters pertaining to military tribunals unless it be
\par "expressly" granted by Congress, then Congress * * *
\par could practically defeat the express declaration of
\par the Constitution and strip the office of commander
\par in chief of all real powers of command.
\par 
\par Swaim v. United States, 28 Ct. Cl. 173, 221-222 ( 1893],
\par aff'd, 165 U.S. 553, 566 ( 1897) ("We have felt con-
\par strained to, at least briefly, consider the several proposi-
\par tions urged upon us * * *, though we might well have
\par contented ourselves with a reference to the able and
\par elaborate opinion of the Court of Claims.") . 8.
\par It is especially appropriate for the President to exercise
\par that power in order to ensure that criminal statutes duly
\par enacted by Congress in this setting-such as Article 118
\par of the UCMJ-are enforced in accordance with constitu-
\par tional guarantees. Article 11 of the Constitution, in addi-
\par tion to providing that the "President shall be Commander
\par in Chief of the Army and Navy," Art. II, 2, Cl.1,
\par imposes on the President the duty to "take Care that the
\par Laws be faithfully executed," Art. II, 3, and he must
\par swear or affirm that he will "faithfully execute the Office
\par * * * and will to the best of [his] Ability, preserve, pro-
\par tect and defend the Constitution of the United States."
\par Art. II, 1, Cl. 8. See also In re Neagle, 135 U.S. 1, 63-
\par 
\par ___________________(footnotes)
\par 
\par 8  In affirming, this Court also quoted at length from an 1835
\par report by the Senate Judiciary Committee. That report noted that
\par the 1806 Articles of War, in expressly authorizing certain named
\par officers to convene courts-martial, did not intend to "exclude the
\par inherent power residing in the President of the United States
\par under the Constitution. * * [Those articles do not in any
\par manner control or restrain the commander-in-chief of the army
\par from exercising the Power which the committee think, in the
\par absence of legislation expressly prohibitive, resides in him from
\par the very nature of his office. and which, as has been stated, has
\par always been exercised." 165 U.S. at 557-558.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 18
\par 
\par 68 ( 1890); Rostker v. Goldberg, 453 U.S. 57, 64 ( 1981)
\par ("we must have due regard to the fact that this Court is
\par not exercising a primary judgment but is sitting in judg-
\par ment upon those who also have taken the oath to observe
\par the Constitution and who have the responsibility for carry-
\par ing on government'"). Those constitutional duties surely
\par enable the President to use his authority as Commander-
\par in-Chief, and all authority conferred upon him by statute,
\par to eliminate any procedural infirmities in the administration
\par of the punitive articles of the UCMJ, so as to allow for
\par those articles to be "faithfully executed" and to retain the
\par force' Congress intended them to have in the governance
\par of the armed forces.
\par Indeed, the appropriateness of Congress's entrusting the
\par `Commander-in-Chief, in light of his special place in the
\par constitutional scheme, with special duties with respect to
\par the armed forces was recognized by this Court as early
\par as 1827, in Martin V. Mott, 25 U.S. (12 Wheat. ) 19.
\par The Court rejected Mott's challenge to the jurisdiction of
\par the court-martial that had convicted him for failing to
\par serve in the New York militia, which had been called into
\par `service by the President during the War of 1812 in accord-
\par ance with a statute authorizing him to do so when he
\par "judge[d] [it] necessary to repel [an] invasion." Id. at 31.
\par Speaking through Justice Story, the Court rejected (id.
\par at 32) Mott's attempt to apply to "the delegation and
\par exercise of this power" the "same principles * * * as
\par might be applied to the humblest officer in the govern-
\par ment":
\par 
\par        The power itself is confided to the executive * * *,
\par         to him who is, by the constitution, "the commander-
\par         in-chief of the militia, when called into the actual
\par         service of the United States," whose duty it is to
\par         "take care that the laws be faithfully executed," and
\par         whose responsibility y for an honest discharge of his
\par         official obligations is secured by the highest sanc-
\par          tions. * * * It is no answer, that such a power may
\par          be abused, for there is no power which is not suscepti-
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 19
\par 
\par      ble of abuse. The remedy for this, as well as for all
\par      other official misconduct, if it should occur, is to
\par      be found in the constitution itself. In a free govern-
\par      ment, the danger must be remote, since, in addition
\par      to the high qualities which the executive must be pre-
\par      sumed to possess, * * * the frequency of elections,
\par      and the watchfulness of the representatives of the
\par      nation, carry with them all the checks which can be
\par      useful to guard against usurpation or wanton tyranny.
\par 
\par Id. at 31-32. 9.
\par 
\par 2. That the President may exercise the type of author-
\par ity at issue here is also confirmed by Congress's long-
\par standing practice, from the founding of our Government,
\par of deferring to the President (or his subordinate, the
\par court-martial ) on questions of military discipline and pun-
\par ishment, including the circumstances that warrant the
\par penalty of death when otherwise authorized by statute.
\par "This Court has repeatedly laid down the principle that
\par a contemporaneous legislative exposition of the Constitu-
\par tion when the founders of our Government and framers
\par of our Constitution were actively participating in public
\par affairs, long acquiesced in, fixes the construction to be
\par given its provisions." J. W. Hampton, Jr. & Co. V. United
\par States, 276 U.S. 394, 412 ( 1928); see also Curtiss-Wright
\par Export Corp., 299 U.S. at 327-329; Stoutenburgh v. Hen-
\par nick, 129 U.S. 141, 147 ( 1889) (upholding grant of
\par lawmaking power to District of Columbia since "the cre-
\par 
\par ___________________(footnotes)
\par 
\par 9  Justice Story went on to reject Mott's claim-which recalls
\par petitioner's argument that the President's power should be more
\par circumscribed in peacetime that he should not have been tried
\par by court-martial "three years and more after the war was con-
\par cluded, and in a time of profound peace." 25 U.S. (12 Wheat.)  at
\par 37. In words equally applicable to petitioner's effort to qualify the
\par unrestricted language of the UCMJ, Justice Story noted that the
\par power conferred by the statute at issue was not "in any shape
\par dependent upon the fact of war or peace."  Ibid.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 20
\par 
\par ation of municipalities exercising local self-government"
\par is sanctioned by "immemorial practice") . 10.
\par At the inception of the American Revolution, the Brit-
\par ish Articles of War then in effect defined offenses subject
\par to trial by court-martial but directed that, in the case of
\par most offenses, the defendant be punished "according to
\par the Nature of his Offense at the Discretion of the Court-
\par martial." See British Articles of War of 1765, Section
\par VI, Art. II, reprinted in Winthrop, supra, App. VII at 934
\par (absence without leave). The Second Continental Con-
\par gress adopted a similar system for imposing punishment
\par following a court-martial conviction. Thus, the American
\par Articles of War of 1775, which were based upon the
\par British Articles, see Manual For Courts-Martial, U.S.
\par Army 1917 at ix, likewise defined offenses subject to
\par trial by court-martial but vested the court with almost
\par unfettered discretion in fixing punishment. 11. The follow-
\par ing year, when the Continental Congress adopted a new
\par set of articles, it again afforded to courts-martial similar
\par discretion in determining an appropriate punishment. 12.
\par Under the Articles of Confederation, the Congress con-
\par tinued this practice when, in 1786, it adopted "Rules and
\par Articles for the administration of justice in the holding
\par of courts-martial." See, e.g., American Articles of War of
\par 
\par ___________________(footnotes) 
\par                
\par 10 See also Mistretta  v. United States, 488 U.S. 361, "390 (1989); 
\par Bowsher v. Synar, 478 U.S. 714, 723-724 (1986) ; Marsh v. Cham-
\par bers, 463 U.S. 783, '790 (1983) ; Walz V. Tax Comm'n, 397 U.S. 664,
\par 678 (1970) ; Field v. Clark, 143 U.S. 649, 691 (1892).
\par 
\par 11 See, e.g., American Articles of War of 1775, Art. VII, reprinted
\par in Winthrop, .supra, App. IX at 954 (defendant, upon conviction for
\par striking or disobeying superior officer, "shall suffer such punish-
\par ment as shall, according to the nature of his offense, be ordered by
\par the sentence of a general court-martial").
\par 
\par 12 See, e.g., American Articles of War of 1776, Section VI, Art. 1.
\par reprinted in Winthrop, supra, App. X at 963 (upon conviction for
\par desertion, defendant "shall suffer death, or such other punishment
\par as by a court-martial shall be inflicted").
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 21
\par 
\par 1786, Art. 12, reprinted in Winthrop, supra, App. XI at
\par 973 (persons causing riots in order to disturb court-
\par martial proceedings to be "punished at the discretion of
\par the said court-martial").
\par The adoption of the Constitution and the Bill of Rights
\par did not alter the antecedent understanding concerning the
\par proper allocation of sentencing responsibility in courts-
\par martial between the Congress and the Executive. While
\par Secretary of War Knox noted in 1789 "that the change in
\par the Government of the United States will require that the
\par articles of war be revised and adapted to the constitu-
\par tion," Frederick Bernays Wiener, Courts-Martial and the
\par Bill of Rights: The Original Practice Z, 72 Harv. L. Rev.
\par 1, 8 (1958) (Wiener I) (quoting I American State Papers
\par Military Affairs 6 (Lowrie & Clarke eels., 1832)), the
\par First Congress evidently did not conclude that any sig-
\par nificant revisions would be required, because it continued
\par the Continental Articles of War without change in 1789,
\par see Act of Sept. 29, 1789, ch. 25, 4, 1 Stat. 96, and
\par simply reenacted them again in 1790 "as far as [they]
\par may be applicable to the constitution of the United
\par States." Act of Apr. 30, 1790, ch. 10, 13, 1 Stat.
\par 121; see also Act of July 1, 1797, ch. 7,  8, 1 Stat. 525
\par (same for navy).
\par Congress continued to rely on established military law
\par in new articles for the government of the navy, which
\par were adopted in 1799. Those articles "follow[ed] the
\par Continental articles closely," were adopted "without a
\par word of recorded debate," Wiener I, supra, 72 Harv. L.
\par Rev. at 14, and provided categorically that "[a]11 murder
\par shall be punished with death," Act of Mar. 2, 1799, ch.
\par 24,1, Art. 29, 1 Stat. 712-a punishment that was
\par made discretionary one year later. 13. Indeed, no significant
\par 
\par ___________________(footnotes)
\par 
\par 13 In 1800, Congress adopted new rules for the government of
\par the navy, which authorized, but did not require, the death penalty
\par in cases of murder committed "without the territorial jurisdiction"
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 22
\par 
\par debate on the question of military punishments occurred
\par until 1805, when Congress undertook a more detailed
\par review and revision of rules for the government of the
\par army in order to "adapt[] [them] to the provisions under
\par the present government." 15 Annals of Cong. 263 (1805)
\par (statement of Rep. Varnum); see also Wiener I, supra,
\par 72  Harv. L. Rev. at 8.
\par During debate in the House of Representatives the fol-
\par lowing year, Representative Campbell of Tennessee re-
\par peatedly moved to strike the death penalty as a punish-
\par ment that could permissibly be imposed by courts-martial.
\par According to the Annals of Congress:
\par 
\par   In support of this amendment, Mr. Campbell rep-
\par robated the idea of the lives of citizens being in the
\par power of a court martial. He compared soldiers to
\par mere machines, from the severity of the military law;
\par   he said almost every article in the bill was stained
\par   with blood; he drew a parallel between them, and
\par   the civil penal laws; and that when men know how
\par   small offenses subjected them to death, they would
\par   be deterred from or disgusted in serving their
\par   country.
\par 
\par 15 Annals of Cong. 326 (1806); see Kinsella, 361 U.S.
\par at 248-249. That proposal was "strenuously opposed"
\par (15 Annals of Cong., 326 (1806)) by other members of
\par the House, who were veterans of the Revolutionary War.
\par See Wiener I, supra, 72 Harv. L. Rev. at 20. Those
\par members
\par 
\par ___________________(footnotes)
\par 
\par of the United States. See Act of Apr. 23, 1800, ch. 33, 1, Art.
\par XXI, 2 Stat. 48. Other provisions of the 1800 articles, however,
\par appeared to incorporate that punishment for offenses committed in
\par the United States. See Art. XVII, 2 Stat. 47 ("All offenses com-
\par mitted by persons belonging to the navy while on shore, shall be
\par punished in the same manner as if they had been committed at
\par sea-") ; Art. XXXII, 2 Stat. 49 ("All crimes committed by persons
\par belonging to the navy, which are not specified in the foregoing
\par articles, shall be punished according to the laws and customs in
\par such cases at sea.").
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 23
\par 
\par represented the necessity of the bill standing as it
\par had hitherto done in this respect. They drew a pic-
\par ture of the Army without discipline, where every
\par soldier might think himself at his own disposal-f
\par an army being ordered to attack the enemy, and an
\par officer refusing, and drawing his sword on his com-
\par manding officer. The necessity of a code of laws
\par for the military differing from the civil law was
\par demonstrated; and having, by the law as it stands,
\par gone through the Revolutionary war with success,
\par and in peace found no ill consequence arising there-
\par from, they thought it neither prudent nor safe to
\par adopt the amendment.
\par 
\par 15 Annals of Cong. 326-327 ( 1806) . 14.  " Representative
\par Campbell's motion lost. Id. at 327.
\par Six days later, when the proposed articles of war were
\par again read, Mr. Campbell "moved to recommit the bill
\par to a select committee, with the view of modifying it so as
\par to render more definite the powers of courts martial, and
\par particularly that the power of inflicting the punishment of
\par death should be more guardedly bestowed." 15 Annals
\par of Cong. 338 ( 1806). That motion, too, was rejected,
\par and the bill passed as proposed. Ibid. In the Senate, the
\par only controversy as to punishment resulted from the
\par House's reduction of the number of lashes allowable for
\par certain infractions. The House view prevailed, and the
\par Senate approved the bill as well. President Jefferson signed
\par it on April 10, 1806. See Wiener I, supra, 72 Harv. L.
\par 
\par ___________________(footnotes)
\par 
\par 14 The  principal spokesman on behalf of the opponents of Repre-
\par sentative Campbell's amendment was Representative Tallmadge of
\par Connecticut, who had been a prominent officer in the Continental
\par Army and a confidant of general Washington. See Dictionary of
\par American Biography 284-285 (1936). Representative Tallmadge
\par "brought forward * * * instances of danger, when soldiers were
\par not subject to severe laws. Soldiers, he observed, were a description
\par of men that must be ruled with severity-and though officers were
\par invested with this authority, they were ever careful in exerting it."
\par 15 Annals of Cong. 327 (1806).
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 24
\par 
\par Rev. at 21-22. In the end, the new Articles of War-
\par which were intended to adapt military law to the dictates
\par of the Constitution, and which largely remained substan-
\par tively unchanged until 1916, see id. at 19 & n. 138-
\par continued the pre-constitutional practice of defining of-
\par fenses but affording to courts-martial almost unfettered
\par latitude in fixing punishment, including death where au-
\par thorized by statute. 15.
\par In 1890, Congress initiated the practice of directing
\par the President, rather than the court-martial itself, to fix
\par the maximum allowable punishment whenever the sen-
\par tence was left to the discretion of the court-martial by
\par the Articles of War. See Act of Sept. 27, 1890, ch. 998,
\par 26 Stat. 491. The House Committee Report that accom-
\par panied the draft legislation explained that "[a]t the pres-
\par ent time courts-martial sitting in different parts of the
\par country, without a common superior, adjudge and impose
\par very unequal penalties for the same offense, and often, it
\par is believed, excessive penal ties." H.R. Rep. No. 1051,
\par 51st Cong., 1st Sess. 1 ( 1890). In urging the legislation's
\par enactment, the Committee added:
\par 
\par   In such offenses the committee believe that there
\par should be some common standard, and think it very
\par fit that the Commander-in-Chief should have the
\par power to prescribe the limit.
\par 
\par Ibid.; see also Act of Aug. 29, 1916, ch. 418, 3, 39
\par Stat. 657 (Art. 45) ("Whenever the punishment for a
\par 
\par ___________________(footnotes)
\par 
\par 15 See Act of Apr. 10, 1806, ch. 20, 1, Art. 7, 2 Stat. 360 (upon
\par conviction of mutiny, defendant "shall suffer death, or such other
\par punishment as by a court martial shall be inflicted") ; Art. 9, 2
\par Stat. 361 (same-striking or disobeying a superior) ; Art. 20, 2
\par Stat. 362 (same-desertion j. To the same effect were the American
\par Articles of War of 1874, which made only minor changes to the
\par 1806 enactment, see Wiener I, supra, 72 Harv. L. Rev. at 19 n. 138.
\par See Winthrop, Supra, App. XIII at 989 (Arts. 41-46) (each provid-
\par ing that the defendant "shall suffer death, or such other punish-
\par ment as a court-martial may direct").
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 25
\par 
\par crime or offense made punishable by these "articles is left
\par to the discretion of the court-martial, the punishment shall
\par not, in time of peace, exceed such limit or limits as the
\par President may from time to time prescribe") . 16.  The Presi-
\par dent's authority to limit punishments extended to the
\par crimes of murder and rape, which were triable by court-
\par martial-except when they were committed within the
\par United States in time of peace-and which under Article
\par 92 of the 1916 Articles of War were punishable by "death
\par or imprisonment for life, as a court-martial may direct."
\par 39 Stat. 664.
\par In enacting the UCMJ in 1950, Congress repealed the
\par statutory limitations (as to geography and the existence
\par of war) on a court-martial's jurisdiction to try service-
\par members for murder, see Art. 118, 10 U.S.C. 918, and it
\par continued its long-standing practice of granting the Presi-
\par dent discretion to establish, within statutory limits, appro-
\par priate sentences and sentencing procedures in courts-
\par martial, see Arts. 18 and 56, 10 U.S.C. 818 and 856.
\par The Rules for Courts Martial, in reliance on that author-
\par it y, limit the permissible punishments in detail for capital
\par and noncapital offenses alike. 17. See United States ex rel.
\par 
\par ___________________(footnotes)
\par 
\par 16 Pursuant to the authority conferred by the 1890 Act, as re-
\par enacted in 1916, President Wilson issued an Executive Order on
\par December 15, 1916, prescribing in detail the maximum sentences
\par (including dishonorable discharge, periods of confinement at hard
\par labor, and forfeiture of pay) for numerous offenses, often calibrated
\par according to the circumstances of the particular offense. See
\par Manual for Courts-Martial, U.S. Army 1917 at 161-169 (reprinting
\par Executive Order). The 1917 Manual also included further stand-
\par ards for sentencing within the maxima prescribed by the President,
\par taking into account prior convictions, the presence or absence of
\par extenuating or aggravating circumstances, and the individual char-
\par acteristics of the accused. Id. at 159-160 (342, 343).
\par 
\par 17 The President has exercised his authority to regulate punish-
\par ments imposed by courts-martial by specifying the types of punish-
\par ment that may be imposed, RCM 1003, and by providing a maximum
\par punishment for each offense within the maxima established by
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 26
\par 
\par Toth v. Quarles, 350 U.S. 11, 20 (1955) ("punishment
\par can be raised or lowered at the will of the President").
\par In so doing, those rules do nothing more than continue
\par an unbroken practice that predates the Constitution itself,
\par and that shows that Congress has always understood the
\par determination of an appropriate court-martial sentence,
\par within maxima established by statute, properly to rest
\par within the competence of the President and his subordi-
\par nate officials who are the most directly responsible for
\par the maintenance of discipline within the armed forces.
\par Compare Mistretta v. United States, 488 U.S. 361, 395
\par (1989).
\par 3. Petitioner and his amici contend, however, that the
\par Framers specifically intended that the Constitution would
\par preclude the President from playing that role in "peace-
\par time" with respect to "civilian" capital offenses. Pet. Br.
\par 13-16; Navy Br. 7-12. That attempt to construct a histor-
\par ical argument to support petitioner's proposed rule is
\par deeply flawed and anachronistic in several respects.
\par The Fifth Amendment categorically exempts cases
\par "arising in the land or naval forces" from its requirement
\par of a grand jury indictment in every "capital or otherwise
\par infamous crime," which persuasively demonstrates that the
\par Framers contemplated that capital cases of W descrip-
\par tions-not merely those involving "military" offenses-
\par could be adjudged by the military justice system. The
\par Fifth Amendment also demonstrates that the Framers well
\par knew how to make the existence of war or peace relevant'
\par to a servicemember's constitutional protections, because it
\par states that a member of the militia may be deprived of
\par his right to a grand jury indictment only "when [the
\par militia is] in actual service in time of War or public
\par danger." This Court has repeatedly rejected attempts to
\par 
\par ___________________(footnotes)
\par 
\par Congress. See .Manual Part IV paragraph (e) for each offense &
\par App. 12 (Maximum Punishment Chart). In addition, in some cases,
\par the President has defined aggravating circumstances that warrant
\par increased punishment. See, e.g., RCM 1003 (d).
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 27
\par 
\par extend to the regular army and navy that "wartime"
\par limitation. See, e.g., Johnson v. Sayre  , 158 U.S. 109,
\par 114-115 (1895); Ex parte Mason, 105 U.S. 696, 700-
\par 701 (1881) 18.   Petitioner's attempt to impute to the
\par Framers a special concern with shielding soldiers from
\par the punishment of death is further belied by the legis-
\par lative debates on the 1806 Articles of War, and in the end
\par completely disregards the fact that significant constitu-
\par tional restrictions on the permissibility of the death pen-
\par alty even with respect to civilians are a relatively recent
\par development in our history. See, e.g., McGautha v. Cali-
\par fornia, 402 U.S. 183,207 (1971 ).
\par In addition, petitioner's emphasis on the "civilian" na-
\par ture of his capital offense is nothing but an attempt to
\par revive the "service connection" requirement that was re-
\par jected by the Court in Solorio, supra; accord Smith V.
\par Whitney, 116 U.S. 167, 183-184 ( 1886) ("Under every
\par system of military law" court-martial jurisdiction extends
\par to punishable acts, "whether those acts are done in the
\par performance of military duties, or in a civil position, or in
\par a social relation, or in private business"). According to
\par petitioner, that requirement makes sense in this context
\par because Congress decided only relatively recently to sub-
\par ject servicemembers to court-martial for capital "civilian"
\par offenses. Petitioner's portrayal of history is at least sub-
\par ject to significant question, because the regulations that
\par Congress adopted for the navy in 1800, while appearing
\par to limit the death penalty to murders committed outside
\par the United States, also provided that "[a]ll offences com-
\par mited by persons belonging to the navy while on shore,
\par shall be punished in the same manner as if they had been
\par committed at sea." Act of Apr. 23, 1800, ch. 33, 1,
\par 
\par ___________________(footnotes)
\par 
\par 18 See also Martin v. Mott, 25 U.S.  (12 Wheat.) at 37-38 ("The
\par act of 1795 is not confined in its operation to cases * * * in times
\par of public war. * * * It is sufficient for us to Say, that there is no
\par such limitation in the act itself") ; 15 Annals of Cong. 326 (1806)
\par (death penalty provision should remain because "in peace [we
\par have] found no ill consequence arising therefrom").
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 28
\par 
\par Art. XVII, 2 Stat. 47. As this Court noted in Solorio,
\par "[a]mong the offenses punishable if committed at sea were
\par murder, embezzlement, and theft," and "[t]his broad grant
\par of jurisdiction to naval courts-martial would suggest that
\par limitations on the power of other military tribunals during
\par this period were the result of legislative choice rather than
\par want of constitutional power." 483 U.S. at 445 n. 11. In
\par any event, even if Congress did not authorize early courts-
\par martial to impose capital punishment for a broader range
\par of offenses, that would be extremely weak evidence of a
\par lack of power to do so. See O'Callahan v. Parker, 395
\par U.S. 258, 280 n.6 (1969) (Harlan, J., dissenting) ("On
\par such a theory, for example, Congress could not have per-
\par missibly waited, as it did, until 1875 to confer federal-
\par question jurisdiction on the district courts; the present-day
\par exercise of this jurisdiction would be unconstitutional")
\par (citations omitted).
\par Petitioner's argument also overlooks the fact that the
\par early Congresses were creating a system of justice for a
\par force that in 1789 numbered only a few hundred soldiers,
\par and which remained under 3,700 strong when the Bill of
\par Rights was adopted. See Wiener I, supra, 72 Harv. L.
\par Rev. at 8-9; O'Callahan, 395 U.S. at 280 (Harlan, J.,
\par dissenting). Murders of civilians by members of such a
\par small force would not have been a major problem, and
\par could conveniently be dealt with by requiring commanding
\par officers, on pain of being cashiered, to deliver the offender
\par to state authorities. See Wiener I, supra, 72 Harv. L. Rev.
\par at 10-11; see also Caldwell v. Parker, 252 U.S. 376, 381-
\par 383 (1920) (discussing evolution of requirement). With-
\par out again lapsing into anachronism, petitioner cannot seri-
\par ously suggest that Congress's choice of that solution
\par reflected any special concern for limiting the soldier's
\par punishment, or preserving to him the benefit of any spe-
\par cific provision of the Bill of Rights. Not only was the
\par death penalty routinely inflicted by the civil courts of the
\par time, but also the Bill of Rights was not made applicable
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 29
\par 
\par to the States until after the Fourteenth Amendment was
\par adopted nearly one hundred years later.
\par Petitioner can derive no greater support from case law
\par than from history, because the cases on which he relies
\par (Br.9-10) do not bear on the President's authority to
\par regulate court-martial proceedings involving members of
\par the armed forces. In Youngstown Sheet & Tube Co. v.
\par Sawyer, 343 U.S. 579 ( 1952), the question was whether,
\par as Commander-in-Chief, the President could seize private
\par property, when Congress had impliedly prohibited that
\par action in the Taft-Hartley Act. See id. at 602 (Frank-
\par furter, J., concurring); id. at 634, 639 (Jackson, J., con-
\par curring); id. at 655, 660 (Burton, J., concurring); id. at
\par 660, 662 (Clark, J., concurring in the judgment). Simi-
\par larly, Ex parte Milligan, 71 U.S. (4 Wall. ) 2, 121
\par (1866), involved the authority of the President to direct
\par the trial of a civilian by a military commission in a juris-
\par diction where the courts remained open. And Reid v.
\par Covert, 354 U.S. 1 ( 1957), also involved the authority
\par of courts-martial to try civilians for criminal offenses. Id.
\par at 33 (plurality opinion) (noting "the deeply rooted and
\par ancient opposition in this country to the extension of
\par military control over civilians;' and citing, inter alia,
\par Milligan, supra). Reid recognized that, with respect to
\par members of the armed forces, "Congress has given the
\par President broad discretion to provide the rules governing
\par military trials." Id. at 38 (plurality opinion) (citing Art.
\par 36, UCMJ, now codified at 10 U.S.C. 836). Thus, "[i]n
\par each of [those] cases * * * [t]he constitutional question
\par presented turned on the status of the persons as to whom
\par the military asserted its power." Schlesinger v. Council-
\par man, 420 U.S. 738, 759 ( 1975). For that reason, those
\par cases are inapposite here.
\par 4. Petitioner is also wrong to contend that the Eighth
\par Amendment independently requires that a legislature, as
\par opposed to any other organ of government, prescribe.
\par aggravating factors in cases where the death penalty is
\par otherwise authorized by statute. That suggestion, which
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 30
\par 
\par would transform the Eighth Amendment into a separation-
\par of-powers rule applicable to the States, finds no support
\par in this Court's cases. Cf. Dreyer v. Illinois, 187 U.S. 71,
\par 83-84 ( 1902) (due process does not require separation of
\par state powers).
\par Petitioner observes (Br. 19-20; see also ACLU Br.
\par 3-4) that this Court's cases addressing the adequacy of
\par state capital sentencing schemes have, on several occa-
\par sions, referred to "legislative criteria" limiting the death
\par penalty for certain crimes. See Zant v. Stephens, 462 U.S.
\par 862. 877 n.15 ( 1983) (citing Gregg v. Georgia, 428
\par U.S. 153, 175, 184 ( 1976) (plurality opinion)). Those
\par decisions, however, merely reflect this Court's ordinary
\par practice of affording some deference to judgments that
\par legislatures in fact have made. See, e.g., Gregg, 428 U.S.
\par at 184; see id. at 175 & n.20. They cannot fairly be read
\par to stand for the proposition that the Eighth Amendment
\par requires that legislatures make such judgments. Indeed,
\par this Court has repeatedly recognized that aggravating
\par factors may be "legislative or court-imposed." Zant, 462
\par U.S. at 880; see also Proffitt v. Florida, 428 U.S. 242,
\par 255-256 ( 1976) (plurality opinion) (state courts can
\par narrow vague statutory factor so as to "provide[ ][ ]ade-
\par quate guidance to those charged with the duty of recom-
\par mending or imposing sentences in capital cases") . 19.  This
\par Court's cases therefore provide a complete answer to peti-
\par tioner's novel attempt to transform the Eighth Amendment
\par 
\par ___________________(footnotes)
\par 
\par 19 See, e.g., Arave v. Creech, 113 S. Ct. 1534, 1541 (1993) (noting
\par that state supreme court had adopted a limiting construction and
\par "we believe that construction meets constitutional requirements") ;
\par Walton V. Arizona, 497 U.S. 639, 654 (1990) ("[T]he Arizona
\par Supreme Court has sought to give substance to the operative terms
\par ['especially heinous, cruel or depraved'], and we find that its con-
\par struction meets constitutional requirements"; Maynard v, Cart-
\par wright, 486 U.S. .356, 360 (1985) (noting that state court could
\par have adopted narrowing requirement to validate otherwise vague
\par aggravating circumstance but failed to do SO) ; Jurek v. Texas, 428
\par U.S. 262, 272 (1976) [plurality opinion) (same) ; Godfrey V.
\par Georgia, 446 U.S. 420, 428-429 (1980) (plurality opinion).
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 31
\par 
\par into a rule for the allocation of authority among branches
\par of the state and federal governments.
\par 5. Petitioner suggests that a different result should ob-
\par tain here because vesting in the President the authority to
\par specify aggravating factors in military capital cases un-
\par constitutionally unites the power to legislate, prosecute,
\par and sentence in officials of one Branch. Pet. Br. 48-49;
\par see also Public Citizen Br. 28-29; Navy Br. 17-19. As we
\par have explained, however, it is Congress that has legislated,
\par by making murder a criminal offense, authorizing the
\par death penalty for it, and entrusting the implementation of
\par military punishments to the President. In any event, peti-
\par tioner's assertion, by itself, adds nothing to his claim that
\par Congress may not assign the authority at issue here to the
\par Executive at all, because, if petitioner is wrong on that
\par claim, this Court's cases make clear that the separation-
\par of-powers doctrine does not speak "to the manner in
\par which authority is parceled out within a single Branch."
\par Touby V. United States, 500 U.S. 160, 167-168 ( 1991)
\par (rejecting claim that Congress could not assign the power
\par to outlaw certain drugs to the Attorney General, rather
\par than the Secretary of Health and Human Services, "be-
\par cause [the Attorney General] wields the power to prose-
\par cute crimes" ).
\par Moreover, precisely because the military justice system
\par is at issue, those arguments have little force here. As this
\par Court has frequently noted, "[t]he military is a specialized
\par society separate from civilian society with laws and tradi-
\par tions of its own [developed] during its long history[,]
\par * * * [and whose] primary business * * * [is] to fight or
\par be ready to tight wars should the occasion arise." Coun-
\par cilman, 420 U.S. at 757 (internal quotation marks ,
\par omitted); see Goldman v. Weinberger, 475 U.S. 503, 506-
\par 507 ( 1986); Parker V. Levy, 417 U.S. 733, 743 ( 1974);
\par Quarles, 350 U.S. at 17; Orloff V. Willoughby, 345 U.S.
\par 83, 94 ( 1953); accord In re Grimley, 137 U.S. 147, 151
\par ( 1890). Because of the military's unique role in our
\par society, its system of justice has always to some extent
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 32
\par 
\par reflected the sharing of functions that petitioner decries.
\par See, e.g., Runkle v. United States, 122 U.S. 543, 557
\par (1887 ) (President's approval of court-martial sentence "is
\par judicial in its character"); see generally Clinton Rossiter,
\par The Supreme Court and the Commander in Chief 102-
\par 103 (1976) ("The President is the fountainhead of mili-
\par tary justice"). That is a reflection of the fact that military
\par justice and punishment are aspects of military discipline,
\par which always has been understood to flow from the Presi-
\par dent's role as Commander-in-Chief. See Swaim V. United
\par States, 28 Ct. C1. at 221-222. To read into the Constitu-
\par tion at this late date a requirement that those powers be
\par fully distributed among different branches of government,
\par "[o]ne must ignore history, tradition, and practice for
\par [more than] two centuries." Middendorf V. Henry, 425
\par U.S. 25, 50 ( 1976) (Powell, J., concurring); see also
\par Weiss v. United States, 114 S. Ct. 752, 761-762 (1994).
\par More fundamentally, courts-martial are Article I courts,
\par see Weiss, 114 S. Ct. at 760 (holding that the Constitu-
\par tion does not require that military judges have a fixed
\par term of office); Parisi V. Davidson, 405 U.S. 34, 41 &
\par n.7 ( 1972); Dynes v. Hoover, 61 U.S. (20 How. ) 65,
\par 79 (1858), and for that reason they not only are sub-
\par ordinate to the President's role as Commander-in-Chief
\par but are also subject to controls prescribed by Congress.
\par In the UCMJ, Congress tempered the historical practice
\par of leaving the infliction of punishment to the Executive
\par by providing significant safeguards for servicemembers.
\par Sentencing decisions in specific cases are not made by the
\par President, but are left to servicemembers who are pro-
\par tected against improper influence or retaliation.  20 See
\par 
\par ___________________(footnotes)
\par 
\par 20 Moreover, while the President ultimately is responsible for
\par promulgating and amending provisions of the Manual, the process
\par by which such amendments are issued is subject to significant
\par internal constraint. Cf. Mistretta, 488 U.S. at 303-304. The Secre-
\par tary of Defense must review the manual annually and recommend
\par appropriate amendments. See Exec. Order No. 12,473 (Apr. 13,
\par 1984), 49 Fed. Reg. 17,152 (1984), as amended by Exec. Order No.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 33
\par 
\par Weiss, 114 S. Ct. at 762 (detailing statutory safeguards
\par against improper influence). The President functions only
\par as an additional safeguard, because no sentence of death
\par imposed by a court-martial may be executed unless he
\par subsequently approves it. See Art. 71, UCMJ, 10 U.S.C.
\par 871. In addition, Article 51 provides that panel members
\par must vote by secret written ballot, and Mi1itary Rule of
\par Evidence 606 (b) permits court-martial members to be
\par questioned on "whether there was unlawful command in-
\par fluence," and that information may be used to impeach
\par the verdict. See Pet. App. 17a-18a. Finally, as this Court
\par noted in Weiss, "[t]he entire system * * * is overseen by
\par the Court of Military Appeals, which is composed of
\par civilian judges * * *. That Court has demonstrated its
\par vigilance in checking any attempts to exert improper in-
\par fluence." 114 S. Ct. at 762. Thus, although the authority
\par to promulgate aggravating factors is vested in the Presi-
\par dent, his "powers are not united with the powers of the
\par [sentencer] in a way that has meaning for separation-
\par of-powers analysis." See Mistretta, 488 U.S. at 393.
\par In sum, contrary to petitioner's contention, no prin-
\par ciple of constitutional law heretofore recognized by this
\par Court requires that Congress itself enact aggravating
\par 
\par ___________________(footnotes)
\par 
\par 12,484 (July 13, 1984), 49 Fed, Reg. 28,825 (1984). In turn, the
\par Secretary has established the Joint Service Committee on Military
\par Justice, consisting of one representative from the Offices of the
\par Judge Advocates-General of each of the armed forces and the Chief
\par Counsel of the Coast Guard. See DOD Directive No. 5500.17 (Jan.
\par 23, 1985). That Committee reviews the Manual each year to ensure
\par that it reflects current military practice and judicial precedent.
\par DOD Directive No. 5500.17, para. (d). Unless expressly exempted
\par by the Secretary, changes proposed by the Committee must be
\par published in the Federal Register for notice and comment and at
\par least 75 days allowed for such comment. See 47 Fed. Reg. 3401
\par (1982) ; DOD Directive No. 5500.17, para. (e) (3). Following the
\par notice and comment period, the DOD General Counsel must submit
\par the Joint Service Committee's report to both the Office of Manage-
\par ment and Budget and the Department of Justice for review and
\par approval before it can be transmitted to the President for final
\par action. See Exec. Order No. 11,030, 27 Fed. Reg. 5847 (1962).
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 34
\par 
\par factors to narrow the class of defendants who may be sen-
\par tenced to the death penalty that Congress expressly au-
\par thorized in Article 118 of the UCMJ. From the earliest
\par days of the Republic, Congress not only has authorized
\par courts-martial to impose capital punishment, but has left
\par to their or the President's discretion the circumstances
\par when that punishment should be imposed.
\par 
\par B. The UCMJ Authorizes Adoption Of RCM 1004 And
\par   Provides Constitutionally Adequate Standards For
\par   Doing So
\par 
\par Petitioner contends (Br. 16-27; see also ACLU Br. 6-
\par 10; Public Citizen Br. 9-21) that even if the Constitution
\par does not always require that Congress prescribe aggra-
\par vating factors in capital cases, Congress has not in fact
\par authorized the President to do so or, if it has, Congress
\par failed to prescribe constitutionally adequate standards to
\par guide or limit the exercise of the President's judgment.
\par There is no merit to those claims.
\par 1. At the outset, petitioner is wrong to maintain (Br.
\par 21; see ACLU Br. 7; Public Citizen Br. 10, 12; Navy
\par Br. 14) that Articles 18, 36, and 56 of the UCMJ cannot
\par be read to delegate to the President any authority to es-
\par tablish aggravating factors in capital cases, because their
\par enactment substantially predated Furman. The question
\par is not whether Congress foresaw this particular applica-
\par iton of those UCMJ articles, but whether RCM 1004
\par comes within their plain language and general purpose-
\par i.e., to give the President flexibility to limit which punish-
\par ments may be imposed by courts-martial and authority to
\par ensure that the military justice system, as enacted by
\par Congress, works. It is not the law that a statute can have
\par no effect that was not specifically contemplated by the
\par Congress that enacted it. See Smith v. United States, 113
\par S. Ct. 2050, 2059 (1993) (Congress may have "had in
\par mind a more obvious" application of the statute "but the
\par language * * * is not so limited; nor can we imagine any
\par reason why Congress would not have wished its language
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 35
\par 
\par to cover this situation") (internal brackets omitted);
\par Sedima, S.P.R.L. V. Imrex Co., 473 U.S. 479, 500
\par (1985); see also Moskal v. United States, 498 U.S. 103,
\par 111 ( 1990) ("This Court has never required that every
\par permissible application of a statute be expressly referred
\par to in its legislative history").
\par Articles 18 and 56 of the UCMJ could not be plainer
\par in scope, and together they grant the President authority
\par to limit punishments otherwise authorized by the UCMJ.
\par Article 18 states that courts-martial may "adjudge any
\par punishment not forbidden by [the UCMJ]''-specifically
\par "including the penalty of death when specifically author-
\par ized by [the UCMJ]''-"under such limitations as the
\par President may prescribe." 10 U.S.C. 818. Article 56
\par similarly provides that punishment may not "exceed such
\par limits as the President may prescribe for that offense."
\par 10 U.S.C. 856. article 118 expressly authorizes a court-
\par martial to sentence the defendant to death or life im-
\par prisonment in cases of premeditated murder or felony
\par murder. It is therefore plainly within the scope of Articles
\par 18 and 56 for the President to "limit" the availability of
\par the death penalty under Article 118 only to those cases,
\par like petitioner's, that involve some form of aggravated
\par conduct. 21.
\par 
\par ___________________(footnotes)
\par 
\par 21 It is difficult to understand petitioner's conclusory assertion
\par that Articles 18 and 56 "are irrelevant to this case," because,
\par " [l]ogically, no `limit' may be set on a penalty of death." Br. 18.
\par If petitioner means to suggest that such authority may be exercised
\par only on a case-by-case basis, and that the death penalty cannot be
\par limited in any one case, his argument overlooks the origins of the
\par President's authority to "limit" punishments. Articles 18 and 66
\par were meant to standardize punishments across the country, see
\par H.R. Rep. No. 1051, supra, at 1, and the President has long exer-
\par cised that authority with respect to classes of cases. See, e.g.,
\par Carter V. McClaughry, 138 U.S. 365, 382 (1902) (discussing 1891
\par use of authority to limit jail terms for enlisted men, but not for
\par commissioned officers). Indeed, the logical implication of petition-
\par er's argument is that the authority to "limit" has no application
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 36
\par 
\par An additional basis for such authority is Article 36(a)
\par of the UCMJ, which provides that the President may
\par prescribe "[pretrial, trial, and post-trial procedures" in
\par all "cases arising under [the UCMJ] triable in courts-
\par martial." 10 U.S.C. 836(a). Petitioner and his amici
\par maintain (Pet. Br. 18-21; ACLU Br. 8-10; Public Citizen
\par Br. 13-15) that Article 36 cannot support RCM 1004,
\par because aggravating factors in capital cases are not mat-
\par ters of "procedure" but are more properly classified as
\par "substantive." ACLU Br. 9. 22.  Apart from the difficulty
\par of reconciling that position with Dobbert V. Florida,
\par supra, 23. Congress has clearly expressed its intention that
\par the phrase "[pretrial, trial, and post-trial procedures"' in
\par Article 36(a) be broadly construed. Indeed, Congress
\par amended Article 36 in 1979 to disapprove statements of
\par the Court of Military Appeals to the effect that Article
\par 36, as it then read, narrowly confined the President's au-
\par 
\par ___________________(footnotes)
\par 
\par whatever with respect to capital cases, a position that renders
\par superfluous Article 18's express inclusion of capital cases within its
\par scope,
\par 
\par 22 The ACLU argues (ACLU Br. 8, 10-11) that aggravating
\par factors in capital cases are not only matters of substance, they
\par "define" or are "elements of [the] crime" and must therefore be
\par articulated by the legislature. That is wrong. "Aggravating cir-
\par cumstances are not separate penalties or offenses, but are `standards
\par to guide the making of [the] choice' between the alternative
\par verdicts of death and life imprisonment." Walton, 497 U.S. at 648
\par (quoting Poland v. Arizona, 476 U.S. 147, 156 (1986)) ; see also
\par Lewis, 497 U.S. at 782 (same).
\par 
\par 23 Dobbert held that, for purposes of the Ex Post Facto Clause
\par of the Constitution, U.S. Const. Art. I 9, Cl. 3, a capital sentenc-
\par ing mechanism was "clearly procedural" when it "simply altered
\par the methods employed in determining whether the death penalty
\par was to be imposed" and effected "no change in the quantum of
\par punishment attached to the crime." 432 U.S. at 293-294; accord
\par Jordan V. Watkins, 681 F.2d 1067, 1079 (5th Cir, 1982) ; Irving v.
\par State, 441 So. 2d 846, 852-853 (Miss. 1983). cert. denied. 470 U.S.
\par 1059 (1985); State v. Coleman, 605 P.2d 1000, 1012-1015 (Mont.
\par 1979), cert. Denied, 446 U.S. 970 (1980).
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par  
\par 37
\par 
\par thority to matters relating to the actual conduct of the
\par trial. 24. See S. Rep. No. 197, 96th Cong., 1st Sess. 124-
\par 125 ( 1979). The Committee Report explained that
\par 
\par [it] believe[d] that [the Court of Military Appeals']
\par interpretation flies in the face of history; if adopted,
\par it would severely threaten the integrity of the mili-
\par tary justice system and undermine the authority of the
\par President as Commander-in-Chief. The committee's
\par amendment clarifies what it believes Congress has
\par always intended by enacting Article 36 and its prede-
\par cessors. While Congress retains the power to amend
\par the UCMJ to alter the military justice system, it
\par entrusts to the President the promulgation of regula-
\par tions designed to implement the Code and operate
\par the system.
\par 
\par Id. at 123; see also Reid, 354 U.S. at 38 (plurality opin-
\par ion ). The Commander-in-Chief's promulgation of ag-
\par gravating factors, in order to ensure that capital offenses
\par under the UCMJ remained constitutionally viable in the
\par aftermath of Matthews, is, without doubt, the type of rule
\par "designed to implement the Code and operate the system"
\par (S. Rep. No. 197, supra, at 123) that Congress had in
\par mind when it enacted and amended Article 36.
\par Since that amendment, Congress has made even clearer
\par its view that Article 36 gives the President authority to
\par 
\par ___________________(footnotes)
\par 
\par 24 Prior to the 1979 amendment, Article 36 authorized the Presi-
\par dent to prescribe "[t]he procedure, including modes of proof, in
\par cases before courts-martial, courts of inquiry, military commis-
\par sions, and other military tribunals." See Act of May 5, 1950,
\par ch. 169, 1, Art. 36, 64 Stat. 120. Significantly, the amendment
\par was expressly intended to repudiate a decision on which petitioner
\par relies to support his claim that Article 36 applies only to purely
\par procedural matters. See Br. 18, citing United States V. Ware, 1
\par M.J. 282, 285 & n.10 (C.M.A. 1976) (stating, in dicta, that the
\par phrase "cases before courts-martial" restricted the President's
\par rule-making authority to those aspects of the case concerning the
\par actual trial and excluded, by implication, pretrial and post-trial
\par procedures).
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 38
\par 
\par promulgate factors that narrow the class of military ac-
\par cused eligible for the death penalty. In 1985, Congress 
\par enacted Article 106a of the UCMJ, 10 U.S.C. 906a,
\par which makes it a capital offense for a servicemember to
\par engage in espionage. See Department of Defense Author-
\par ization Act, 1986, Pub. L. No. 99-145, 534, 99 Stat. 
\par 634. The new article enumerates three specific aggravat-
\par ing factors and further states that such aggravating factors
\par may also include "[a]ny other factor that may be pre-
\par scribed by the President by regulations under section 836
\par of this title (Article 36)." 10 U.S.C. 906a(c) (4). "[T]he 
\par fact that Congress in [1985] authorized the [President] to 
\par [promulgate aggravating factors under Article 36] strongly 
\par suggests that Congress understood" the UCMJ to
\par such authority. Babbitt v. Sweet Home Chapter of Com-
\par munities for a Great Oregon, 115 S. Ct. 2407, 2414
\par (1995); see NLRB v. Bell Aerospace Co., 416 U.S. 267, 
\par 275 ( 19'74) ("recognizing] that subsequent legislation 
\par declaring the intent of an earlier statute is entitled to
\par significant weight" ). The Conference Report on the leg-
\par islation that became Article 106a makes the point even
\par more clearly. It states:
\par 
\par   Nothing in the new Article 106a is meant to pre-
\par   clude a prosecution under any other article of the
\par   UCMJ * * *. 
\par                       *  *  *  *  *
\par   The conferees did, however, adopt a statutory 
\par   formulation of capital sentencing standards for es- 
\par   pionage cases and intend that those standards be
\par   implemented in a manner consistent with the provi-
\par   sions of Rule for Courts-Martial 1004 of the Manual
\par   for Courts-Martial, 1984. The conferees do not in-
\par   tend that the enactment of statutory capital sen- 
\par   tenting standards for the new Article 106a be con- 
\par   strued as affecting the validity of the regulatory cap- 
\par   ital sentencing standards that already exist for the 
\par   other capital punitive articles.          
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 39
\par 
\par H.R. Conf. Rep. No. 235, 99th Cong., 1st Sess. 425
\par (1985 ). 25. The conferees' endorsement of the use of RCM
\par 1004's procedures in espionage cases, and their statement
\par that nothing in Article 106a would preclude prosecution
\par under other provisions of the UCMJ or affect the "valid-
\par ity" of RCM 1004, can only be read as expressing agree-
\par ment that RCM 1004 is a lawful exercise of Presidential
\par authority. 26.
\par There is no merit to petitioner's argument (Br. 11,
\par 21-22, 26-27 ) that Articles 18, 36, and 56 should be
\par construed "narrowly" to preclude the President from
\par adopting RCM 1004, based on the rule of lenity and in
\par order to avoid doubts as to the constitutionality of those
\par articles. It is anomalous to invoke the rule of lenity to
\par support a challenge to the President's decision to restrict
\par the class of defendants who are eligible for the death
\par 
\par ___________________(footnotes)
\par 
\par 25 To minimize the significance of the 1985 legislation, petitioner
\par cites (Br. 24-25) Consumer Product Safety Comm'n v. GTE Syl 
\par vania, Inc., 447 U.S. 102, 118 n.13 (1980), for the proposition that
\par "subsequent legislative history provide[s] an extremely hazardous
\par basis for inferring the meaning of a congressional enactment."
\par But as the GTE case also recognized (ibid., quoting Red Lion
\par Broadcasting Co. V. FCC, 395 U.S. 367, 380-381 (1969) (emphasis
\par added) ), "[s]ubsequent legislation declaring the intent of an earlier
\par statute is entitled to great weight in statutory construction." In
\par this case, both the "subsequent legislation" (Article 106a) and its
\par legislative history express the view that the UCMJ already granted
\par to the President authority to promulgate aggravating factors in
\par capital cases.
\par 
\par 26  Amicus Public Citizen argues (Br. 18-19) that Article 106a
\par evidences Congress's belief that the President lacks authority to
\par promulgate aggravating factors in capital cases, because Article
\par 106a delegates that authority to the President only in espionage
\par cases. The problem with that claim is that Article 106a did not
\par "delegate" that authority to the President; that authority already
\par existed by virtue of Article 36, a provision that is not limited to
\par espionage cases. The point of Article 106a(c) (4) is to ensure that
\par the enumeration of specific factors not be interpreted to oust the
\par President's pre-existing authority under Article 36 to promulgate
\par additional factors.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 40
\par 
\par penalty under Article 118, since by conforming sentencing
\par hearings to the dictates of Furman, RCM 1004 "pro-
\par vid[es] capital defendants with more, rather than less,
\par judicial protection." Dobbert, 432 U.S. at 294-295.
\par It is no less odd to assert that, to avoid constitutional
\par questions, Articles 18, 36, and 56 must be read to prohibit
\par promulgation of RCM 1004, since that argument is
\par advanced in aid of petitioner's claim that a different pro-
\par vision of the UCMJ-Article 118-is unconstitutional
\par insofar as it authorizes the death penalty for his crimes.
\par Petitioner's invocation of that canon of construction also
\par ignores the fact that the President expressly invoked his
\par constitutional authority under Article II when he promul-
\par gated RCM 1004. See Exec. Order No. 12,460, 49 Fed.
\par Reg. 3169 (1984). A conclusion that Articles 18, 36,
\par and 56 do not themselves authorize the President's action
\par therefore not only would be inconsistent with the broad
\par language and the purpose of those provisions, but also
\par would require this Court to decide whether the President
\par has the constitutional power to do so under Article II,
\par even in the absence of affirmative statutory authorization.
\par See Parker, 417 U.S. at 744-745 (quoting Martin, 25
\par U.S. (12 Wheat. ) at 35-36); see also Reid, 354 U.S. at
\par 38 & n.70 (plurality opinion).
\par If petitioner means to argue that the UCMJ should be
\par read to prohibit the President from restricting the class
\par of military defendants who may be sentenced to death
\par under Article 118, that argument would raise serious con-
\par stitutional questions in its own right, for we doubt that
\par Congress could so bluntly impair the President's authority
\par as Commander-in-Chief. As it happens, however, nothing
\par in the text or legislative history of the UCMJ remotely
\par suggests that Congress has prohibited the President from
\par adopting RCM 1004. To the contrary, the 1985 amend-
\par ments and the "general tenor of Congress' legislation in
\par this area" demonstrate that Congress has accepted and
\par indeed approved of such action by the President. See
\par Dames & Moore V. Regan, 453 U.S. 654, 678-688
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 41
\par 
\par (1981); id. at 668-669; Haig V. Agee, 453 U.S. 280,291-
\par 292, 300-301 (1981).
\par In any event, both lenity and the avoidance of inter-
\par pretations that would raise serious constitutional problems
\par are canons that apply at the end of the process of con-
\par struction, and then only in the face of a statutory "am-
\par biguity." Concrete Pipe & Prods. of California, Inc. V.
\par Construction Laborers Pension Trust, 113 S. Ct. 2264,
\par 2283 ( 1993); Reno V. Koray, 115 S. Ct. 2021, 2029
\par (1995 ). Moreover, a statute is not ambiguous "merely
\par because it [is] possible to articulate a construction more
\par narrow than that urged by the Government." Moskal,
\par 498 U.S. at 108. Here, with the exception of his strained
\par attempt to read narrowly the word "procedures" in Article
\par 36(a)j petitioner has not even attempted to offer a co-
\par herent interpretation of Articles 18, 36, and 56 that is
\par faithful to the language of those articles, to Congress's
\par long-standing practice of confiding to the Executive judg-
\par menace as to punishment (including death) within statutory
\par limits, to Congress's 1985 decision to build on the
\par President's ability to exercise the power that petitioner
\par disputes, and to the need to avoid the significant constitu-
\par tional questions raised by petitioner's own position. For
\par those reasons, petitioner can derive no help from the
\par canons of construction he invokes.
\par 2. Petitioner and his amici are also wrong to argue
\par (Pet. Br. 27-37; ACLU Br. 13-16; Public Citizen Br. 21-
\par 25; Navy Br. 12-15) that Articles 18, 36, and 56 fail to
\par provide the President constitutionally adequate guidance
\par for the exercise of the authority they confer. To begin
\par with, the President's independent constitutional authority
\par as Commander-in-Chief of the armed forces would make
\par appropriate even what petitioner characterizes (Br. 31)
\par as a standardless authorization to regulate military sen-
\par tences. Compare Curtiss-Wright Export Corp., 299 U.S.
\par at 321-322. The President's functions under the UCMJ,
\par "like the Court's function in promulgating procedural
\par rules, are clearly attendant to a central element of the
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 42
\par 
\par historically acknowledged mission of the [Executive]
\par Branch." Mistretta, 488 U.S. at 391. Where, as in this
\par case, the President has fulfilled his constitutional functions
\par by issuing rules to ensure that courts-martial impose sen-
\par tences in capital cases in a manner that assures their
\par constitutionality while protecting the needs of military
\par discipline, Congress has no greater duty to specify factors
\par he must consider than it must specify in granting power
\par to the federal judiciary, as an adjunct of its adjudicatory
\par powers under Article III, to make rules for the purpose
\par of ensuring that cases will be adjudicated properly. See,
\par e.g., id. at 387-388; Hanna v. Plumer, 380 U.S. 460,
\par 471-472 ( 1965); Sibbach v. Wilson & Co., 312 U.S. 1,
\par 9-10 ( 1941); Wayman v. Southard, 23 U.S. (10 Wheat. )
\par 1, 43 ( 1825); Bank of the United States v. Halstead, 23
\par U.S. (10 Wheat.) 51, 61-62 (1825). 27.
\par Thus, it is "not necessary that Congress supply [the
\par President] with a specific formula for [his] guidance,"
\par Lichter v. United States, 334 U.S. 742, 785 ( 1948),
\par when, as here, it is appropriate that the President retain
\par flexibility to adapt the broad outlines of congressional
\par 
\par ___________________(footnotes)
\par 
\par 27 Moreover, in exercising that power to preclude the imposition
\par of the death penalty except in cases of aggravated murder, and
\par to require a sentence of life imprisonment in the remaining cases,
\par the President made a decision that is similar in kind to those he
\par is called upon to make when he commutes a sentence under his
\par constitutional power "to grant Reprieves and Pardons." Art. II,
\par  2, Cl. 1. See Schick V. Reed, 419 U.S. 256 (1974); Ex parte Wells,
\par 59 U.S. (18 How.) 307 (1856) ; see also Biddle V. Perovich, 274
\par U.S. 480, 487 (1927) (Holmes, J.) (President may order life im-
\par prisonment in lieu of death sentence since "[b]y common under-
\par standing imprisonment for life is a less [er] penalty than death").
\par The President is, for that additional reason, uniquely qualified to
\par exercise the sentence-limiting authority granted by Articles 18 and
\par 56 with respect to the death penalty, and, by the same token, it is
\par especially unlikely that Congress would have intended to withhold
\par the power to do so in that setting. In fact, Article 71 of the UCMJ
\par requires that every sentence of death shall be personality approved
\par by the President before it is executed, which ensures an opportunity
\par for commutation. See 10 U.S.C. 871.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 43
\par 
\par policy to changing circumstances in the specialized field
\par of military discipline, over which the Constitution gives
\par Congress and the President shared authority. See ibid.;
\par id. at 778-779 (Congress's power to confer "authority
\par * * * sufficient to effect its purposes * * * is especially
\par significant in connection with constitutional war powers
\par under which the exercise of broad discretion * * * may
\par be essential"); Knauff, 338 U.S. at 543. Nonetheless,
\par history and the background of similar provisions of mili-
\par tary law indicate that the nature and scope of the Presi-
\par dent's discretion were well understood by the political
\par Branches. In light of the long-standing Presidential au-
\par thority to limit punishments, Congress doubtless expected
\par (see Grimaud, 220 U.S. at 518; United States v. Bailey,
\par 34 U.S. (9 Pet. ) 238, 255-256 (1835)) that the author-
\par ity conferred by Articles 18 and 56 would be exercised
\par by him by reference to the factors that have traditionally
\par informed his judgment-i.e., the needs of military dis-
\par cipline, evenhanded application of court-martial punish-
\par ments throughout the country, see H.R. Rep. No. 1051,
\par supra, at 1, and his own judgment regarding the sorts of
\par factors that would make a statutory sentence unduly harsh
\par as applied to specific circumstances. See American Power
\par & Light Co. v. SEC, 329 U.S. 90, 105 (1946) (delega-
\par tion is constitutionally sufficient "if Congress clearly
\par delineates the general policy * * * and the boundaries of
\par th[e] delegated authority"); see also Yakus v. United
\par States, 321 U.S. 414, 420, 426-427 (1944) (upholding
\par delegated authority to fix commodity prices that in judg-
\par ment of Price Administrator "will be generally fair and
\par equitable and will effectuate the purposes of" price control
\par legislation); National Broadcasting Co. v. United States,
\par 319 U.S. 190, 225-226 ( 1943) (upholding delegation to
\par FCC to promulgate regulations in accordance with its
\par view of the public interest).
\par In addition, Article 18 contemplates that the President
\par may "prescribe * * * any punishment not forbidden" by
\par the UCMJ. Article 55 of the UCMJ expressly forbids the
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 44
\par 
\par imposition of "cruel or unusual" punishments, 10 U.S.C.
\par 855, and the legislative history of the UCMJ shows that
\par Congress had Article 55 specifically in mind when it
\par referred in Article 18 to punishments "forbidden" by the
\par UCMJ. See S. Rep. No. 486, 81st Cong., 1st Sess. 13
\par ( 1949); H.R. Rep. No. 491, 81st Cong., 1st Sess. 16
\par ( 1949). Accordingly, the President surely must be under-
\par stood to have the authority under Article 18 to subject
\par sentences to "limitations" necessary to comply with Article
\par 55's prohibition against "cruel or unusual" punishments-
\par a statutory term that he could appropriately interpret
\par by considering, as he did, this Court's decisions construing
\par the parallel language of the Eighth Amendment.
\par The same result is compelled by the language of Article
\par 36(a), which gives the President still further guidance.
\par Article 36(a) states that the court-martial rules promul-
\par gated by the President "shall, so far as he considers prac-
\par ticable, apply the principles of law and the rules of evi-
\par dence generally recognized in the trial of criminal cases
\par in the United States district courts." 10 U.S.C. 836(a).
\par Petitioner nonetheless argues (Br. 31-32, 34; see Pub-
\par lic Citizen Br. 23) that Congress established no "prin-
\par ciples of law" on which the President could rely, because
\par when RCM 1004 was first promulgated only the federal
\par air piracy statute contained a list of aggravating factors. 28.
\par By the time RCM 1004 was adopted, however, this Court
\par 
\par ___________________(footnotes)
\par 
\par 28 See Antihijacking Act of 1974, Pub. L. No. 93-366, Tit. I,
\par 105, 88 Stat. 412-113, codified at 49 U.S.C. 1473 (c) (7) (1976).
\par Contrary to petitioner's argument (Br. 34) that the aggravating
\par factors in that statute bear "almost no similarity" to those later
\par adopted by the President, RCM 1004(c) (4) -which addresses the
\par creation of substantial danger to the lives of persons other than
\par the victim-is virtually identical to Section 1473 (c) (7) (B) (iii)
\par of the air piracy statute. Similarly, although petitioner maintains
\par (Br. 34) that the aggravating factors contained in Article 106a
\par could not have been relied upon by the President, the Rule was
\par amended in 1986 to reflect those factors. See Manual App. 21-73,
\par citing Art. 106a.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 45
\par 
\par had developed a substantial body of case law addressing
\par the adequacy of state capital sentencing schemes. Because
\par those cases set forth Eighth Amendment principles appli-
\par cable to any capital sentencing scheme enacted by Con-
\par gress, those cases plainly reflect "principles of law" that
\par must be "recognized" in "the trial of criminal cases in
\par the United States district courts." See, e.g., United
\par States V. Flores, 63 F.3d 1342, 1369-1373 (5th Cir.
\par 1995 ). This Court's cases therefore afforded a firm basis
\par upon which the President could rely in formulating con-
\par stitutionally sufficient aggravating factors. 29.
\par This Court's decisions are not the only source on which
\par the President could rely in ascertaining appropriate stand-
\par ards pursuant to Article 36. In defining both military and
\par civilian capital offenses, Congress had identified, even be-
\par fore Furman, factors that it considered sufficiently egre-
\par gious to merit the death penalty. See Stanford v. Ken-
\par tucky, 492 U.S. 361, 372 n.4 ( 1989) (collecting laws).
\par The President relied heavily on those congressional judg-
\par ments. See Manual App. 21-69 to 21-74. For example,
\par aggravating factors (c) (2) and (c) (3), which involve
\par the creation of "substantial damage to the national se-
\par 
\par ___________________(footnotes)
\par 
\par 29 Gregg V. Georgia, 428 U.S. 153, 193 n.44 (1976) (lead opinion),
\par approved the sentencing standards found in the Model Penal Code,
\par and also upheld the Georgia capital sentencing scheme, which
\par generally follows the Model Penal Code, id. at 164-166 & n.9, 196-
\par 198 (lead opinion) ; McCleskey v. Kemp, 481 U.S. 279, 302 & n.24
\par (1987) ; see also Profitt V. Florida, 428 U.S. 242, 248 n.6 (1976)
\par (lead opinion). The aggravating factors in Rule 1004 have, close
\par analogues in the Model Penal Code and the Georgia and Florida
\par statutes. The drafters of RCM 1004 also relied on other aspects of
\par this Court's Eighth Amendment case law. For example, aggravat-
\par ing factor's (c) (8), which limits the circumstances under which the
\par death penalty can be imposed for murder under the felony-murder
\par doctrine, and (c) (9), which specifies the circumstances tinder which
\par the death penalty can be imposed for the offense of rape, were
\par formulated to conform military capital sentencing practice to this
\par Court's decisions in Tison V. Arizona, 481 U.S. 137 (1987), and
\par Coker v. Georgia, 433 U.S. 584 (1977). See Manual App. 21-73.
\par 
\par ---------------------------------------- Page Break ----------------------------------------  
\par 
\par 46
\par 
\par curity of the United States," are based on the fact that, in
\par both the civilian and military contexts, Congress has spe-
\par cifically recognized that such damage may warrant im-
\par position of the death penalty. See Manual App. 21-72.
\par Likewise, in enacting 18 U.S.C. 1111 and Article 118 (4)
\par of the UCMJ, 10 U.S.C. 918(4), Congress expressly au-
\par thorized the death penalty for homicides committed during
\par the perpetration of certain violent felonies, including rob-
\par bery. Aggravating factor (c) (7) (B), which focuses upon
\par the commission of a murder during the commission or
\par attempted commission of such felonies, and aggravating
\par factor (c) (7) (C), which involves the. commission of a
\par murder "for the purpose of receiving money or a thing
\par of value," both reflect that congressional determination. 30.
\par Thus, as the Curtis court concluded (J.A. 122), in formu-
\par lating aggravating factors, "the President was not set
\par adrift in an uncharted sea * * * [but] was guided by the
\par Uniform Code and other federal legislation." Indeed,
\par when Congress enacted a new Federal Death Penalty Act
\par in 1994, Pub. L. No. 103-322, Tit. VI,  60002, 108 Stat.
\par 1959 (codified at 18 U.S.C. 3591-3598), many of the
\par aggravating factors it adopted for capital homicide of-
\par fenses were virtually identical to those earlier identified
\par by the President in subsection (c) (7) of RCM 1004. See,
\par 
\par ___________________(footnotes)
\par 
\par 30 Similarly, aggravating factors (c) (7) (F) and (c) (7) (G),
\par which focus upon the victim's status as a senior government official,
\par military superior, law enforcement officer, or public servant, are
\par based upon the congressional determination that such officials merit
\par special protection and that their murder warrants the death penalty,
\par See Manual App. 21-73, citing 18 U.S.C. 351, 1114, 1751. The
\par President recently amended aggravating factor (c) (7) (E) by the
\par addition of the fact that the murder was drug related. The amend-
\par ment was based upon the enactment of "[c]urrent federal statutes
\par [which] provide for a maximum punishment including the death
\par penalty for certain drug-related killings." Manual App. 21-73,
\par citing 21 U.S.C. 848 (e).
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 47
\par 
\par e.g., 18 U.S.C 3592(c) (l), (3)-(8), (12) and (14). 31.
\par With the actions of the President and Congress so closely
\par aligned, petitioner has given this Court no sound reason
\par to overturn the President's judgment in promulgating
\par RCM 1004.
\par 
\par CONCLUSION
\par 
\par The judgment of the United States Court of Appeals
\par for the Armed Forces should be affirmed.
\par 
\par Respectfully submitted.
\par 
\par Drew S. DAYS, III
\par Solicitor General
\par 
\par JOHN C. KEENEY
\par Acting Assistant Attorney
\par General
\par 
\par EDWIN S. KNEEDLER
\par Deputy Solicitor General
\par 
\par MIGUEL A. ESTRADA
\par Assistant to the Solicitor
\par General
\par 
\par JOHN F. DE PUE
\par Attorney
\par 
\par JOHN M. SMITH
\par Colonel, USA
\par Government Appellate
\par Division
\par 
\par DECEMBER 1995
\par 
\par ___________________(footnotes)
\par 
\par 31 Significantly, Congress also provided a catch-all provision
\par authorizing the jury to rely on "any other aggravating factor" of
\par  which the defendant has received notice from the prosecutor, irre-
\par spective of whether the factor is listed in the statute. See 18 U.S.C.
\par 3592 (c). That provision further undermines petitioner's contention
\par that the designation of specific aggravating factors is, and that
\par Congress would expect it to be, peculiarly a legislative choice.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par  APPENDIX
\par 
\par Article I of the Constitution provides in relevant part:
\par 
\par Section 8. [1] The Congress shall have Power
\par * * *
\par 
\par  *  *  *  *  *
\par [11] To declare War, grant, Letters of Marque
\par   and Reprisal, and make Rules concerning Cap-
\par   tures on Land and Water;
\par    [12] To raise and support Armies, but no
\par   Appropriation of Money to that Use shall be for
\par   a longer Term than two Years;
\par    [13] To provide and maintain a Navy;
\par    [14] To make Rules for the Government and
\par   Regulation of the land and naval Forces;
\par    [15] To provide for calling forth the Militia
\par   to execute the Laws of the Union, suppress In-
\par   surrections and repel Invasions;
\par    [16] To provide for organizing, arming, and
\par   disciplining, the Militia, and for governing such
\par   Part of them as may be employed in the Ser-
\par   vice of the United States, reserving to the States
\par   respectively, the Appointment of the Officers,
\par   and the Authority of training the Militia accord-
\par   ing to the discipline prescribed by Congress;
\par 
\par       *  *  *  *  *
\par 
\par    [18] To make all Laws which shall be neces-
\par   sary and proper for carrying into Execution the
\par   foregoing Powers, and all other Powers vested
\par   by this Constitution in the Government of the
\par   United States, or in any Department or Officer
\par   thereof.
\par 
\par (la)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 2a
\par 
\par Article II of the. Constitution provides in relevant part:
\par 
\par Section 1. [1] The executive Power shall be vested
\par in a President of the United States of America. * * *
\par 
\par * * * * *
\par 
\par [8] Before he enter on the Execution of his
\par Office, he shall take the following Oath or Af-
\par firmation: "I do solemnly swear (or affirm) that
\par I will faithfully execute the Office of President
\par of the United States, and will to the best of
\par my Ability, preserve, protect and defend the
\par Constitution of the United States."
\par 
\par Section 2. [1] The President shall be Commander
\par in Chief of the Army and Navy of the United States,
\par and of the militia of the several States, when called
\par into the actual Service of the United States; he may
\par require the Opinion, in writing, of the principal Offi-
\par cer in each of the executive Departments, upon any
\par Subject relating to the Duties of their respective
\par Offices, and he shall have Power to grant Reprieves
\par and Pardons- for offences against the United States,
\par except in Cases of Impeachment.
\par 
\par *   *   *   *   *
\par 
\par Section 3. He shall from time to time give to the
\par Congress Information of the State of the Union, and
\par recommend to their Consideration such Measures
\par as he shall judge necessary and expedient; he may,
\par on extraordinary Occasions, convene both Houses, or
\par either of them, and in Case of Disagreement between
\par them, with Respect to the Time of Adjournment, he
\par may adjourn them to such Time as he shall think
\par proper; he shall receive Ambassadors and other pub-
\par lic Ministers; he shall take Care that the Laws be
\par faithfully executed, and shall Commission all the
\par Officers of the United States.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 3a
\par 
\par Article 55 of the Uniform Code of Military Justice,
\par 10 U.S.C. 855, provides:
\par 
\par Art. 55. Cruel and unusual punishments prohibited
\par 
\par Punishment by flogging, or by branding, marking,
\par or tattooing on the body, or any other cruel or un-
\par usual punishment, may not be adjudged by any court-
\par martial or inflicted upon any person subject to this
\par chapter. The use of irons, single or double, except
\par for the purpose of safe custody, is prohibited.
\par 
\par U.S. Government Printing Office: 1995  405017   40024   
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par No. 94-1966
\par 
\par In the Supreme Court of the United States
\par 
\par October Term, 1995
\par 
\par DWIGHT J. LOVING, PETITIONER
\par 
\par v.
\par 
\par UNITED STATES OF AMERICA
\par 
\par ON PETITION FOR WRIT OF CERTIORARI
\par TO THE UNITED STATES COURT OF APPEALS
\par FOR THE ARMED FORCES
\par 
\par BRIEF FOR THE UNITED STATES IN OPPOSITION
\par 
\par DREW S. DAYS, III
\par Solicitor General
\par Department of Justice 
\par Washington, D.C. 20530
\par 
\par JOHN M. SMITH
\par Colonel, USA
\par 
\par JAMES L. POHL
\par Lieutenant Colonel, USA
\par 
\par MICHAEL E. MULLIGAN
\par KENNETH G. WILSON
\par Captains, USA
\par Appellate Government Counsel
\par Government Appellate division
\par Falls Church, VA 22041-5103
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par QUESTIONS PRESENTED
\par 
\par 1. Whether the President had the authority to
\par promulgate Rule for Courts-Martial 1004.
\par 2. Whether a defendant maybe sentenced to death
\par by a court-martial panel of fewer than twelve persons.
\par 
\par (I)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par TABLE OF CONTENTS
\par 
\par Page
\par 
\par Opinions below . . . . 1
\par Jurisdiction . . . . 1
\par Statement . . . . 2
\par Argument . . . . 9
\par Conclusion . . . . 24
\par 
\par TABLE OF AUTHORITIES
\par 
\par Cases:
\par 
\par A.L.A. Schechter Poultry Corp. v. United States, 295
\par U.S. 495 (1935) . . . . 13
\par Babbitt v. Sweet Home Chapter of Communities for a
\par Great Oregon, 115 S. Ct. 2407 (1995) . . . . 12
\par Ballew v. Georgia, 435 U.S. 223 (1978) . . . . 21
\par Bowsher v. Synar, 478 U.S. 714 (1986) . . . . 17
\par Branford v. United States, 356 F.2d 876 (7th Cir. 1966) . . . . 21
\par Burns v. Wilson, 346 U.S. 137 (1953) . . . . 22
\par California v. Brown, 479 U.S. 538 (1987) . . . . 10
\par Clemens v. Mississippi, 494 U.S. 738 (1990) . . . . 9
\par Dames & Moore v. Regan, 453 U.S. 654 (1981) . . . . 20
\par Dobbert v. Florida, 432 U.S. 282 (1977) . . . . 10
\par Dynes v. Hoover, 61 U.S. (20 How.) 65 (1858) . . . . 17
\par Field v. Clark, 143 U.S. 649 (1892) . . . . 13
\par Furman v. Georgia, 408 U.S. 238 (1972) . . . . 7, 10
\par Gregg v. Georgia, 428 U.S. 153 (1976) . . . . 10, 15, 16
\par Hanna v. Plumer, 380 U.S. 460 (1965) . . . . 15
\par Harris v. Alabama, 115 S. Ct. 1031 (1995) . . . . 22
\par Hildivin v. Florida, 490 U.S. 638 (1989) . . . . 22
\par Jackson v. Virginia, 443 U.S. 307 (1979) . . . . 24
\par King v. Moseley, 430 F.2d 732 (lOth Cir. 1970) . . . . 20-21
\par Kurtz v. Moffitt, 115 U.S. 487 (1885) . . . . 15
\par McCleskey v. Kemp, 481 U.S. 279 (1987) . . . . 10, 16
\par Mendrano v. Smith, 797 F.2d 1538 (lOth Cir. 1986) . . . . 20
\par 
\par (III)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par IV
\par 
\par Cases-Continued:              
\par 
\par Page
\par 
\par Milligan Ex parte, 71 U.S. (4 Wall.) 2 (1866) . . . . 20, 21
\par Mistretta. v. United States, 488  U.S. 361
\par (1989) . . . . 8, 15, 16, 18, 19
\par 0'Callahan v. Parker, 395 U.S. 258 (1969) . . . . 20
\par Owens v. Markley  289 F.2d 751 (7th Cir. 1961) . . . . 21
\par Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) . . . . 13, 14
\par Profitt v. Florida, 428 U.S. 242 (1976) . . . . 16
\par Quirin, Ex  parte, 317 U.S. 1 (1942) . . . . 9, 20, 21
\par Reid v. Covert, 354 U.S. 1 (1957) . . . . 20
\par Ryder v. United States, 115 S. Ct. 2031 (1995) . . . . 24
\par Schick v. Reed, 419 U.S. 256 (1974) . . . . 19
\par Sibbach v. Wilson & Co., 312 U.S. 1 (1941) . . . . 15
\par Skinner v. Mid-America Pipeline Co., 490 U.S, 212
\par (1989) . . . . 14-15
\par Solorio v. United States, 483 U.S. 435 (1987) . . . . 14, 20, 22, 23
\par Spaziano v. Florida, 468 U.S. 447 (1984) . . . . 9, 22
\par Stanford v. Kentucky, 492 U.S, 361 (1989) . . . . 16
\par Stone v. INS, 115 S. Ct. 1537 (1995) . . . . 12
\par Swaim v. United States, 165 U.S. 553 (1897) . . . . 15
\par United States v. Chemical Foundation. Inc., 272 U.S. 1
\par (1926) . . . . 14
\par United States v. Curtis, 32 M.J. 252 (C.M.A.), cert.
\par denied, 112 S. Ct. 406 (1991) . . . . 8, 9, 16, 24
\par United States v. Curtiss-Wright Export Corp., 299 U.S.
\par 304 (1936) . . . . 14
\par United States v. Eliason, 41 U.S. (16 Pet.) 291 (1842) . . . . 15
\par United States v. Matthews, 16 M.J. 354 (C.M.A. 1983) . . . . 2, 3
\par United States v. Mazurie, 419 U.S. 544 (1975) . . .. 14
\par United States v. McClain, 22 -M.J. 124 (C.M.A. 1986) . . . . 20
\par United States v. Palenius, 2 M.J. 86 (CM.A. 1977) . . . . 24
\par United States v. Prescott, 2 C.M.A. 122, 6 C.MR. 122
\par (1952) . . . . 11
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par V
\par 
\par Cases-Continued:                  
\par 
\par Page
\par 
\par United, States ex rel. Knauff v. Shaughnessy, 338 U.S.
\par 537 (1950) . . . . 14 
\par United States ex rel. Toth v. Quarles. 350 U.S. 11 (1955) . . . . 23
\par Walton v. Arizona, 497 U.S. 639 (1990) . . . . 22
\par Wayman v. Southard, 23 U.S. (10 Wheat.) 1 (1825) . . . . 15 
\par Weiss v. United States, 114 S. Ct. 752 (1994) . . . . 18, 22, 23
\par Wells, Ex parte, 59 U.S. (18 How.) 307 (1856) . . . . 19
\par Whelchel v. McDonald, 340 U.S. 122 (1950) . . . . 20, 22
\par Williams v. Florida., 399 U.S. 78 (1970) . . . . 20, 21
\par Youngstown Sheet & Tube Co. v. Sawyer, 343 US. 579
\par (1952) . . . . 20
\par Zant v. Stephens, 462 U.S. 862 (1983) . . . . 13
\par 
\par Constitution, statutes, regulations and rules:
\par 
\par U.S. Const.:
\par Art. I:
\par   8:
\par    Cl. 14 . . . . 14, 22
\par    Cl. 18 . . . . 13
\par Art. II . . . . 20 
\par  2, Cl. 1 . . . . 10, 14, 19
\par Art. III . . . . 15, 17, 21
\par Amend. V . . . . 20, 21
\par Due Process Clause . . . . 22
\par Amend. VI (Jury Trial Clause) . . . . 9, 20, 21, 22
\par Amend. VIII . . . . 13, 22
\par Act of Sept. 27, 1890, ch. 998, 26 Stat. 491 . . . . 17
\par Articles of War of 1874, Arts. 41-46 (reprinted W. Win-
\par throp, Military Law and Precedents (2d ed. 1920
\par reprint) . . . . 17
\par Uniform Code of Military Justice, 10 U.S.C. 801 et seq.:
\par Art. 16(1)(A), 10 U.S.C. 816(1)(A) . . . . 20
\par Art. 18, 10 U.S.C. 818 . . . . 8, 10, 14, 18
\par Art. 36, 10 U.S.C. 836 . . . . 3, 8, 11, 14, 15, 16, 18
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par VI
\par 
\par Statutes, regulations and rules-Continued:        
\par 
\par Page
\par 
\par Art. 51, 10 U.S.C. 851 . . . . 18 
\par Art. 52(b)(l), 10 U.S.C. 852(b)(l) . . . . 20 
\par Art. 56, 10 U.S.C. 856 . . . . 8, 11, 14,18,
\par Art. 66, 10 U.S.C. 866 . . . . 7
\par Art. 66(c), 10 U.S.C. 866(c) . . . . 24
\par Art. 80, 10 U.S.C. 880 . . . . 2
\par Art. 106a, 10 U.S.C. 906a . . . . 11, 14, 18
\par Art. 106a(c)(4) 10 U.S.C. 906a(c)(4) . . . . 11,12
\par Art. 118, 10 U.S.C. 918 . . . . 2, 4, 7, 10, 11,14
\par Art. 122, 10 U.S.C. 922 . . . . 2
\par Exec. Order No. 12, 473, 3 C.F.R. 201 . . . . 4
\par Mil. R. Evid. 606(b) . . . . 18
\par Rules for Courts-Martial:
\par Rule 1004 . . . . passim
\par Rule 1004(c)(7) . . . . 7
\par Rule 1004 (c)(7) (J) . . . . 7 
\par Rule 1004(c)(8) . . . . 7
\par Miscellaneous:
\par H.R. Conf. Rep. No. 235, 99th Cong., 1st Sess. (1985) . . . . 12
\par G. Henderson, Courts-Martial and the Constitution: The
\par Original Understanding, 71 Harv. I,. Rev. 293 (1957) . . . . 21
\par Manual , for Courts-Martial, United States, 1984 . . . . 4, 16
\par A. Sullivan, The President's Power to Promulgate
\par Death Penalty Standards, 125 Mil. L. Rev. 143
\par (1989) . . . . 3, 17
\par W. Winthrop, Military Law and Precedents (2d ed. 1920
\par reprint) . . . . 17
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par In the Supreme Court of the United States
\par      
\par OCTOBER TERM, 1995
\par 
\par No. 94-1966
\par 
\par DWIGHT J. LOVING, PETITIONER
\par 
\par v.
\par 
\par UNITED STATES OF AMERICA
\par 
\par ON PETITION FOR A WRIT OF CERTIORARI
\par TO THE UNITED STATES COURT OF APPEALS
\par FOR THE ARMED FORCES
\par 
\par BRIEF FOR THE UNITED STATES IN OPPOSITION
\par 
\par OPINIONS BELOW
\par 
\par The opinion of the United States Court of Appeals
\par for the Armed Forces (Pet. App. la-227a) is reported
\par at 41 M.J. 213. The initial opinion of the United
\par States Army Court of Military Review, now the
\par United States Army Court of Criminal Appeals (Pet.
\par App. 229a-256a), is reported at 34 M.J. 956, and its
\par opinion denying reconsideration (Pet. App. 257a-265a)
\par is reported at 34 M.J. 1065.
\par 
\par JURISDICTION
\par 
\par The judgment of the United States Court of
\par Appeals for the Armed Forces was entered on Novem-
\par 
\par  (1)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 2
\par 
\par ber 10, 1994. A petition for reconsideration was de-
\par nied on February 2, 1995. Pet. App. 228a. On April 21,
\par 1995, Chief Justice Rehnquist extended the time
\par within which to file a petition for a writ of certiorari
\par to and including June 2, 1995, and the petition was
\par filed on that date. The jurisdiction of this Court is
\par invoked under  28 U. S. C. 1259(1).
\par 
\par STATEMENT
\par 
\par Petitioner was convicted by a general court-martial
\par of premeditated murder, felony murder, attempted
\par murder, and robbery (four specifications), in violation
\par of Articles 118, 80, and 122, Uniform Code of Military
\par Justice (UCMJ), 10 U.S.C. 918, 880, and 922. The
\par court sentenced petitioner to death, a dishonorable
\par discharge, and forfeiture of all pay and allowances.
\par The United States Army Court of Military Review
\par affirmed. 34 M.J. 956, reconsideration denied, 34 M.J.
\par 1065 (A.C.M.R. 1992) (Pet, App. 229a-265a).  The
\par United States Court Appeals for the Armed Forces
\par affirmed. Pet. App. la-227a.
\par 1. In United States v. Matthews, 16 M.J. 354
\par (C.M.A. 1983), the United States Court of Military
\par Appeals (now the United States Court of Appeals for
\par the Armed Forces) analyzed the constitutionality of
\par the military's death penalty provisions, Article 118,
\par UCMJ, 10 U.S.C. 918. After reviewing this Court's
\par cases, the court concluded that certain common fea-
\par tures appeared in a constitutionally valid death penal-
\par ty procedure: a bifurcated sentencing proceeding spa-
\par civic aggravating circumstances; selection of and
\par findings on the particular aggravating circumstances
\par used by the sentencer to impose the death penalty;
\par unrestricted opportunity for the defendant to present
\par mitigation and extenuation evidence; and mandatory
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 3
\par 
\par appellate review of the appropriateness of the seen-
\par Tenneco. Id. at 377.
\par The Matthew's court found all of those safeguards
\par present in the military system except for specific
\par aggravating factors. 1. The court held that because
\par court-martial members were not required to identify
\par specifically the aggravating factors relied upon in
\par assessing the death sentence, it was impossible for
\par appellate courts to determine whether the members
\par had made an individualized sentencing determination
\par based on the character of the defendant and the
\par circumstances of the crime. 16 M.J. at 379. The court
\par indicated that either Congress or the President, in
\par his capacity as Commander in Chief and/or pursuant
\par to the powers that Congress delegated to him, could
\par take corrective action. Id. at 380 (citing Art. 36,
\par UCMJ, 10 U.S.C. 836).
\par 
\par ___________________(footnotes)
\par 
\par 1 The court noted (1) that the military follows a bifurcated
\par sentencing procedure; (2) that "[c]retain aggravating circus-
\par stances, such as premeditation, specific intent, and murder
\par during commission of specified felonies, must be found by the
\par court members * * *. These findings identify the instances in
\par which an accused is eligible for the death penalty. After the
\par findings, evidence may be submitted to identify other
\par aggravating circumstances." 16 M.J. at 378 (citation omitted);
\par (3) that the defendant has an unlimited opportunity to put on
\par evidence in extenuation and mitigation; (4) that there is
\par mandatory review of the facts, law, and sentence appro-
\par priateness followed by a mandatory review of the law by the
\par Court of Military Appeals (now the Court of Appeals for the
\par Armed Forces); and (5) that the President, who can take any
\par lesser action on the sentence, must ultimately approve any death
\par sentence.  Ibid. See generally A. Sullivan, The President's
\par Power to Promulgate Death Penalty Standards, 125 Mil. L.
\par Rev. 143 (1989).
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 4
\par 
\par The President responded by promulgating Rule for
\par Courts-Martial (RCM) 1004, which amended the Manual
\par for Courts-Martial to provide procedures for adjured-
\par icating cases in which the death penalty is authorized
\par for homicide by Article 118 of the Uniform Code of
\par Military Justice, 10 U.S.C. 918.  See Manual for
\par Courts-Martial, United States, 1984 (Manual).  RCM
\par 1004, which had been circulated for public comment
\par before the decision in Matthew's, rectified the
\par deficiency identified in that opinion by enumerating
\par specifiency identified in that opinion by enumerating
\par specific aggravating factors, at least one of which the
\par court-martial members must unanimously find in
\par order to impose the death penalty.  RCM 1004 also
\par provides that all members of the court-martial must
\par concur that the aggravating circumstance(s)  substan-
\par tially outweigh any extenuating or mitigating cir-
\par cumstances be fore death can be adjudged.  The Presi-
\par dent caused the 1984  Manual for Courts-Martial and 
\par its Rules for Courts-Martial to be issued by "virtue of
\par the authority invested in [him] as President by the
\par Constitution of the United States and by Chapater 47
\par of Title 10 of the United  States   Code [i.e., the
\par UCMJ]."  Exec. Order No. 12,473, 3 C.F.R. 201 (1984
\par comp.).
\par 2.  During the evening of December 11, 1988,
\par petitioner, an Army private stationed at Fort Hood,
\par Texas, robbed at gun point two different 7-Eleven
\par convenience stores in Killeen, Texas.  Pet. App. 3a,
\par 231a; Pet. 4-5.  In the first robbery, petitioner fired
\par two shots into  the counter and soda fountain, which
\par were behind the cashier;  he obtained $38.  In the
\par second robbery, petitioner fired a bullet into the cash
\par register, and demanded that the cashier put money in
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 5
\par 
\par a paper bag. As he ran out, petitioner fired a round
\par back into the store. He obtained approximately 52
\par from the second robbery. Id. at 3a, 231a.
\par When the 7-Eleven robberies netted him only a
\par small amount of cash, petitioner conceived a plan to
\par rob taxicab drivers. On the evening of December 12,
\par 1988, petitioner called a taxicab to take him from a
\par store in Killeen to his barracks in Fort Hood. The
\par driver of the taxicab was an active-duty soldier,
\par Christopher Fay, who was working for extra money.
\par Petitioner directed Fay to a secluded area on Fort
\par Hood, where he demanded Fay's money at gun point.
\par After receiving some money from Fay, petitioner shot
\par him in the back of the head. While looking at the
\par bleeding wound, petitioner cocked his pistol and again
\par shot Fay in the back of the head. Fay died. Pet. App.
\par 3a-4a, 231a-232a.
\par Petitioner fled to his barracks and, after counting
\par the money he obtained from Fay, called a second
\par taxicab.  That cab was driven by a retired Army
\par sergeant, Bobby Sharbino. Petitioner directed Shar-
\par bino to a secluded street in Killeen, where he robbed
\par Sharbino of his money pouch, wallet, and other
\par personal effects. Petitioner then ordered Sharbino to
\par lie down on a car seat and shot him in the head, killing
\par him. Pet. App. 4a, 232a.
\par Later that evening, petitioner took his girlfriend to
\par a nightclub in Killeen. Upon leaving, petitioner and
\par his girlfriend entered a taxicab driven by Howard
\par Harrison. After dropping his girlfriend off near her
\par residence, petitioner directed Harrison to a secluded
\par area and robbed him at gun point. Petitioner then
\par attempted to kill Harrison. Harrison struggled with
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 6
\par 
\par petitioner, disarmed him, and fled. Pet. App. 4a-5a,
\par 232a-233a.
\par Acting on leads provided by Harrison, law
\par enforcement agents, including agents of the Army
\par Criminal Investigation Command (CID), arrested
\par petitioner in the afternoon of December 13, 1988.
\par Petitioner was taken to the CID office, where, after
\par being advised of his rights, he made a full videotaped
\par confession describing his crimes in detail. Searches
\par of the area surrounding petitioner's girlfriend's resi-
\par dence, and of the residence and other places frequent-
\par ed by petitioner, resulted in the recovery of the
\par weapon used in the murders and robberies, spent and
\par Unspent bullets, petitioner's blood-stained jacket, and
\par effects taken from the murder victims. Pet. App. 232a
\par n.2, 233a, 5a, 7a. Later, while incarcerated at the U.S.
\par Army facility at Fort Riley, Kansas, petitioner told a
\par fellow inmate that he had committed the first murder
\par "to see if he could get away with it," and the second
\par murder "because it was fun," and that "if he had to do
\par it over, the only difference is he wouldn't. get caught. "
\par Id. at 68a-69a.
\par An eight-member court-martial unanimously found
\par petitioner guilty of the premeditated murder of
\par Sharbino and of the felony murder of Fay. By a non-
\par unanimous vote, the court-martial also found peti-
\par tioner guilty of attempting to murder Harrison, of
\par robbing Sharbino and Harrison, and of robbing the 7-
\par Eleven stores.  Pet. App. 8a-9a. 2. After a hearing
\par                    
\par ___________________(footnotes)
\par 
\par 2 In addition, petitioner was found guilty of the premeditated
\par murder of Fay, the robbery of Fay, and the felony murder of
\par Sharbino. After the findings were announced, the military
\par judge dismissed those specifications as multiplicitous. Pet. App.
\par 9a.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 7
\par 
\par conducted in accordance with RCM 1004, the court-
\par martial unanimously found, as aggravating factors,
\par that the premeditated murder of Sharbino was com-
\par mitted while petitioner was engaged in a robbery (see
\par RCM 1004(c)(7)), that in the felony murder of Fay
\par petitioner acted as the triggerman (see RCM
\par 1004(c)(8)), and that petitioner, having been found
\par guilty of the premeditated murder of Sharbino, was
\par found guilty of another murder in the same case (see
\par RCM 1004(c)(7)(J)). Pet. App. 253a-254a. The court-
\par martial unanimously sentenced petitioner to death, a
\par dishonorable discharge, and forfeiture of all pay and
\par allowances. The convening authority approved the
\par findings and sentence. Pet. App. 9a, 230a. 3.
\par 3. The Army Court of Military Review affirmed
\par the findings and sentence. Pet. App. 229a-256a. In
\par accordance with Article 66, UCMJ, 10 U. S. C. 866, the
\par court independently weighed the evidence and
\par "agree[d] with each of the aggravating factors found
\par by the court-martial." Pet. App. 254a. The court also
\par found "that any extenuating and mitigating circum-
\par stances are substantially outweighed by the aggra-
\par vating circumstances." Ibid.
\par On appeal, petitioner argued that Article 118,
\par UCMJ, 10 U.S.C. 918, is unconstitutional under
\par Furman v. Georgia, 408 U.S. 238 (1972), in that it
\par does not sufficiently narrow the class of death-
\par eligible defendants, and that the President exceeded
\par his authority under the Constitution and the UCMJ
\par 
\par ___________________(footnotes)
\par 
\par 3 The "convening authority" is the commander who con-
\par venes the court-martial. The convening authority selects the
\par court-martial members, directs that the accused be tried by the
\par court-martial for the charged offenses, and conducts a post-trial
\par review of the proceedings.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 8
\par 
\par in promulgating RCM 1004 to provide specific
\par aggravating factors. The court found those claims
\par foreclosed by United States v. Curtis, 32 M.J. 252
\par (C. M. A.), cert. denied, 112 S. Ct. 406(1991). Pet. App.
\par 230a. In that case, the Court of Military Appeals had
\par upheld RCM 1004 against similar attacks. See Pet.
\par App. 346a-384a (reproducing Curtis opinion).
\par The Curtis court concluded that under the Uniform
\par Code of Military Justice, the President has long
\par "play[ed] the major role in determining what punish-
\par ments may be imposed by courts-martial." Pet. App.
\par 362a-363a.  It held that several provisions of the
\par UCMJ, particularly Articles 18, 36, and 56, UCMJ, 10
\par U.S.C. 818, 836, and 856, authorized the President to
\par promulgate aggravating factors for capital cases.
\par Relying on Mistretta v. United States, 488 U.S. 361
\par (1989), the Curtis court rejected a separation-of-
\par powers challenge to that delegation, noting that "[i]n
\par view of [the President's] inherent constitutional
\par authority [as Commander-in-Chief of the Armed
\par Forces], a separation-of-powers objection has much
\par less merit in the present context than if the `aggra-
\par vating factors' for capital cases tried by courts-
\par martial had been formulated by a specially created
\par commission." Pet. App. 361a-362a. Curtis also rejecte-
\par d the contention that Congress failed to give the
\par President an intelligible principle for the exercise of
\par the delegated powers, explaining that the UCMJ'S
\par direction in Article 36 that the President apply "the
\par principles of law" that are generally applied in federal
\par district courts constitutes an adequate standard.
\par Pet. App. 368a.
\par Petitioner also argued that only a court-martial
\par panel composed of 12 members can constitutionally
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 9
\par 
\par impose the death penalty.  The Army Court of
\par Military Review found that claim meritless on the
\par authority of Curtis (Pet. App. 230a), which rejected
\par that claim on the grounds (1) that the jury-trial
\par requirement of the Sixth Amendment does not apply
\par to courts-martial, Pet. App. 375a-376a (citing Ex
\par parte Quirin, 317 U.S. 1 (1942)), (2) that a civilian
\par judge alone may be entrusted with imposing a death
\par sentence, Pet. App. 376a [citing, inter alia, Clemons
\par v. Mississippi, 494 U.S. 738 (1990), and Spaziano v.
\par Florida, 468 U.S. 447 (1984)), and (3) that the military
\par justice system includes significant post-sentence
\par safeguards to minimize the risk of erroneous imposi-
\par tion of the death penalty. Pet. App. 376a-377a.
\par 3. The Court of Appeals for the Armed Forces
\par affirmed. Pet. App. la-227a. The court summarily
\par rejected, on the authority of Curtis and Matthews,
\par petitioner's claims that the President lacked consti-
\par tutional and statutory authority to promulgate R CM
\par 1004, and that a court-martial panel of fewer than 12
\par members may not constitutionally  sentence a
\par defendant to death. Pet. App. 128a-129a (challenge to
\par size of court-martial panel); id. at 141a-142a (chal-
\par lenges to constitutionality of RCM 1004).
\par 
\par ARGUMENT
\par 
\par 1. Petitioner contends that Congress has not
\par explicitly or implicitly delegated to the President any
\par authority to prescribe aggravating- factors (Pet. 14-
\par 15), and, if Congress has done so, such delegation is
\par unconstitutional because that authority may not be
\par delegated at all (Pet. 9-11), because the delegation
\par impermissible combines in the President the power to
\par make and enforce laws (Pet. 11-14), or because Con-
\par gress failed to set forth sufficient standards to guide
\par 
\par ---------------------------------------- Page Break -------------------------------------------------------------------------
\par 
\par 10
\par 
\par the President's exercise of his authority (Pet. 19-23).
\par Those claims lack merit and do not warrant review.
\par a. In Furman v. Georgia, 408 U.S. 238 (1972), this
\par Court held that the death penalty cannot be imposed
\par under procedures that create a substantial risk that
\par it will be inflicted in an arbitrary manner. See, e.g.,
\par McCleskey V. Kemp, 481 U.S. 279, 301 (1987);
\par California v. Brown, 479 U.S. 538, 541 (1987); Gregg
\par v. Georgia, 428 U.S. 153, 188 (1976) (lead opinion).
\par Contrary to petitioner's contention (Pet. 8-9), Fur-
\par man did not hold unconstitutional Congress's judg-
\par ment that the death penalty is a lawful punishment
\par for premeditated or felony murder in the military
\par justice system. See Art. 118, UCMJ, 10 U.S.C. 918.
\par Furman requires only that appropriate safeguards
\par exist in order for Article 118 to be implemented in a
\par constitutional manner. Compare Dobbert v. Florida,
\par 432 U.S. 282, 293-294, 297-298 (1977) (rejecting argu-
\par ment that there "was no death penalty `in effect' in
\par Florida" at the time of defendant's crime, because
\par Florida had not yet acted to comply with the dictates
\par of Furman upholding retroactive application of
\par Florida's post-Furman capital sentencing law on the
\par ground that the changes were merely "procedural").
\par The President had ample authority to prescribe the
\par safeguards that will result in the constitutional
\par application of the statute that Congress enacted. In
\par addition to his constitutional authority as "Com-
\par mander in Chief of the Army and Navy," U.S. Const.
\par Art. II  2, Cl. 1, three provisions of the Uniform
\par Code of Military Justice make clear that the Presi-
\par dent has the power to devise sentencing procedures
\par for capital cases. Article 18, UCMJ, 10 U.S.C. 818,
\par which sets forth the jurisdiction of general courts-
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 11
\par 
\par martial, provides that such courts-martial "may,
\par under such limitations as the President may pre-
\par scribe, adjudge any punishment not forbidden by this
\par chapter." Article 36, UCMJ, 10 U.S.C. 836, empowers
\par the President to prescribe "trial[] and post-trial
\par procedures * * * for cases triable in courts-martial"
\par by regulations that "shall, so far as [the President]
\par considers practicable, apply the principles of law
\par * * * generally recognized in the trial of criminal
\par cases in the United States district courts." And
\par Article 56, UCMJ, 10 U.S.C. 856, authorizes the
\par President to limit the maximum punishment a court-
\par martial may impose.  See, e.g., United States v.
\par Prescott, 2 C.M.A. 122, 124-125, 6 C.M.R. 122, 124-125
\par (1952). Together, those Articles authorize the Presi-
\par dent to prescribe whatever procedures are necessary
\par to assure that Article 118 can be implemented consti-
\par tutionally.
\par Any doubt as to whether the UCMJ delegates to the
\par President authority to promulgate RCM 1004 was
\par eliminated by Congress's enactment in 1985 of Article
\par 106a, UCMJ, 10 U.S.C. 906a, which makes it a capital
\par offense for a servicemember to engage in espionage.
\par That provision lists three specific aggravating fac-
\par tors and further states that aggravating factors
\par include "[a]ny other factor that may be prescribed by
\par the President by regulations under [Article 36]." See
\par 10 U.S.C. 906a(c)(4). Article 106a therefore clearly
\par reflects congressional understanding that the UCMJ,
\par including Article 36, gives the President delegated
\par authority to promulgate aggravating factors in
\par capital cases. The conference report on the legis-
\par lation makes the point even more clearly, stating
\par that:
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 12
\par 
\par   Nothing in the new Article 106a is meant to
\par preclude a prosecution under any other article of
\par the UCMJ[.] * * *
\par 
\par         *****
\par   
\par The conferees did, however, adopt a statutory
\par formulation of capital sentencing standards for
\par espionage cases and intend that those standards
\par be implemented in a manner consistent with the
\par provisions of Rule for Courts-Martial 1004 of the
\par Manual for Courts-Martial, 1984, The conferees
\par do not intend that the enactment of statutory capi-
\par tal sentencing standards for the new Article l06a
\par be construed as affecting the validity of the regu-
\par latory capital sentencing standards that. already
\par exist for the other capital punitive articles.
\par 
\par H.R. Conf. Rep. No. 235, 99th Cong., 1st Sess. 425
\par (1985). Where Congress has, as it did here, passed
\par new legislation in specific reliance on a particular
\par interpretation of existing laws, there is strong rea-
\par son to give effect to that interpretation.  See, e.g.,
\par Babbitt v. Sweet Home Chapter of Communities for
\par a great Oregon, 115 S. Ct. 2407, 2414 (1995); Stone v.
\par INS, 115 S. Ct. 1537, 1545,1549 (1995). 4.
\par 
\par ___________________(footnotes)
\par  
\par 4 Petitioner suggests (Pet. 18-19) that Article 106a evidences
\par Congress's belief that the President lacks delegated authority to
\par promulgate aggravating factors in capital cases, because Article
\par 106a delegates that authority to the President only in espionage
\par cases. The problem with that claim is that Article 106a(c)(4)
\par expressly recognizes that the President's authority to promul-
\par gate aggravating factors will be exercised "under section 836 of
\par this title (article 36)," 10 U.S.C. 906a(c)(4), a provision that is
\par not limited to espionage cases. There is no greater merit to
\par petitioner's contention that Article 106a should not be read to
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 13
\par 
\par b. The President's exercise of that authority to
\par promulgate aggravating factors does not violate the
\par "nondelegation doctrine" or the Eighth Amendment.
\par Petitioner's broad claim that the Eighth Amendment
\par requires that Congress prescribe aggravating factors
\par (Pet. 9-10) is not supported by this Court's cases.
\par Nothing in the Eighth Amendment requires that a
\par legislature provide the narrowing of death-eligible
\par defendants required by this Court's cases. See, e.g.,
\par Zant v. Stephens, 462 U.S. 862, 880 (1983) (to
\par determine if jury's discretion is sufficiently chan-
\par neled in capital cases, court may look to "court-im-
\par posed standards to govern the jury" in its deliber-
\par ations).
\par As for the "nondelegation doctrine," it is directed
\par to situations in which Congress is alleged to have
\par given the Executive the power to "make a[] Law[],"
\par Art. I, 8, Cl. 18, in the first instance, rather than to
\par "take Care that the Laws be faithfully executed," Art.
\par II, 3. Panama Refining Co. v. Ryan, 293 U.S. 388,
\par 421 (1935); Field v. Clark, 143 U.S. 649, 692 (1892). 5.
\par 
\par ___________________(footnotes)
\par 
\par reflect congressional endorsement of RCM 1004, because the
\par conferees "clearly indicated]" that Article 106a should not be
\par "read as validating or invalidating" that Rule. Pet. 18. The
\par conferees, however, endorsed the use of RCM 1004's procedures
\par in espionage cases, and their statement that nothing in Article
\par 106a would preclude prosecution under other provisions of the
\par UCMJ or affect the "validity" of RCM 1004, can only be read as
\par expressing agreement that RCM 1004 is lawful.
\par 
\par 5 This Court has invalidated a law on the ground of improper
\par delegation in only two cases: Panama Refining Co. v. Ryan,
\par supra, and A.L.A. Schechter Poultry Corp. v. United States,
\par 295 U.S. 495 (1935). In each of those cases, the Court found that
\par the statute at issue "declare[d] no policy" as to the subject
\par matter of the delegation and left the Executive with "unlimited
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 14
\par 
\par Here, Congress has made the "law" governing the
\par conduct of servicemembers. The Constitution auth-
\par orizes Congress to "make Rules for the Government
\par and Regulation of the land and naval Forces," Art. I,
\par 8, Cl. 14. which includes the power to define crimes
\par and affix their punishment, Solorio v. United States,
\par 483 U.S. 435,438-439 (1987). Article 118 is just such a
\par "Rule[]"; it defines both the offense of murder and its
\par punishment. Congress therefore has exercised its
\par power to regulate the military. What Congress has
\par done through Articles 18, 36, 56, and 106a is to give
\par the President the power to ensure that Article 118
\par can be implemented in a constitutional manner by
\par courts-martial.  That power does not offend non-
\par delegation principles.
\par Contrary to petitioner's contention that the powers
\par already exercised by the President under the Consti-
\par tution make him categorically ineligible for exer-
\par cising additional delegated authority in this area
\par (Pet. 12-14), this Court has recognized that the limits
\par on Congress's delegation power are "less stringent in
\par cases where the entity exercising the delegated
\par authority itself possesses independent authority over
\par the subject matter."  United States v. Mazurie, 419
\par U.S. 544, 556-557 (1975); see also United States ex rel.
\par Knauff v. Shaughnessy, 338 US. 537, 542-543 (1950)
\par (immigration);  United States v. Curtiss-Wrighf
\par Export Corp., 299 U.S. 304, 319-322 (1936) (foreign
\par affairs); United States v. Chemical Foundation, Inc.,
\par 272 U.S. 1, 12 (1926) (Commander-in-Chief power); cf.
\par Skinner v. Mid-America Pipeline Co., 490 U.S. 212,
\par 
\par ___________________(footnotes)
\par 
\par authority to determine the policy * * * as he may see fit."
\par Panama Refining, 293 U.S. at 415.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 15
\par 
\par 220-223 (1989). This is such a case. As "Commander
\par in Chief of the Army and Navy," Art. II, 2, Cl. 1, the
\par President has the inherent power to adopt measures
\par necessary to promote military discipline, see United
\par States v. Eliason, 41 U.S. (16 Pet.) 291,301-302 (1842);
\par see also Kurtz v. Moffitt, 115 U.S. 487, 503 (1885), or
\par to regulate court-martial proceedings, cf. Swaim v.
\par United States, 165 U.S. 553, 557-558 (1897). Indeed,
\par this Court has consistently held that Congress can
\par grant rulemaking authority to Article III courts,
\par since that authority is a reasonable adjunct to their
\par inherent power to adjudicate cases.  See, e.g.,
\par Mistretta v. United States, 488 U.S. 361, 387-388
\par (1989); Hanna v. Plumer, 380 U.S. 460 (1965); Sibbach
\par v. Wilson & Co., 312 U.S. 1, 9-10 (1941); Wayman v.
\par Southard, 23 U.S. (10 Wheat.) 1, 43 (1825). Congress
\par has no greater duty to specify the factors for the
\par President to consider when he issues rules ensuring
\par that courts-martial operate in a constitutional
\par manner than Congress must specify for the federal
\par courts to consider in ensuring that cases will be
\par adjudicated properly.
\par Nonetheless, Congress has not left the President
\par without guidance. Article 36 states that the court-
\par martial rules promulgated by the President "shall, so
\par far as he considers practicable, apply the principles of
\par law and the rules of evidence generally recognized in
\par the trial of criminal cases in the United States
\par district courts." 10 U.S.C. 836. The "principles of
\par law" recognized by the district courts include consti-
\par tutional rules established by this Court's capital
\par punishment decisions. Gregg approved the sentencing
\par standards found in the Model Penal Code, 428 U.S. at
\par 193-194 n.44 (lead opinion), and also upheld the
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 16
\par 
\par Georgia capital sentencing scheme, which generally
\par follows the Model Penal Code, id. at 164-166 & n.9
\par 196-198 (lead opinion); McCleskey, 481 U.S. at 302 &
\par n.24; see also Proffitt v. Florida, 428 U.S. 242, 248-249
\par n.6 (1976) (lead opinion). The aggravating factors in
\par Rule 1004 have close analogues in the Model Penal
\par Code and the Georgia and Florida statutes. See
\par Manual A21-69. Moreover, Article 36 is not the only
\par source of congressional policy in this regard.
\par Congress has authorized the death penalty for var-
\par ious offenses, Stanford v. Kentucky, 492 U.S. 361, 372
\par n.4 (1989) (collecting laws), and those statutes
\par evidence Congress's policy judgments about the con-
\par duct warranting that sentence. The President can
\par take those judgments into account in formulating
\par aggravating factors, and, as the court of appeals
\par recognized in Curtis (Pet. App. 368a-375a), RCM 1004
\par does just that.
\par Nor does it matter whether the aggravating factors
\par in RCM 1004 are viewed as in some sense "sub-
\par stantive" (Pet. 11 & n.16), because separation-of-
\par powers analysis "does not turn on the labeling of an
\par activity as `substantive' as opposed to `procedural.'"
\par Mistretta, 488 U.S. at 393. More important is the fact,
\par that the delegation challenged by petitioner "pose[s 1
\par no threat of undermining the integrity of the
\par [Executive] Branch or of expanding [its] powers
\par * * *  beyond constitutional bounds,"  ibid., for
\par several reasons. First, as this Court recognized in
\par Mistretta, "the [federal] sentencing function long has
\par been a peculiarly shared responsibility among the
\par Branches of Government and has never been thought
\par of as the exclusive constitutional province of any one
\par Branch." Id. at 390. In the military context, that
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 17
\par 
\par responsibility has been historically shared princi-
\par pally by the Legislative and Executive Branches,
\par because courts-martial have never been thought to be
\par Article III courts. See Dynes v. Hoover, 61 U.S. (20
\par How.) 65,79 (1858). 6. Second, the President's exercise
\par of such rulemaking authority does not improperly
\par consolidate the prosecution and sentencing functions,
\par because the sentencing decision is left to serv-
\par icemembers who are protected against improper in-
\par 
\par ___________________(footnotes)
\par 
\par 6 Congress has traditionally left sentencing in military
\par prosecutions largely to the Executive Branch. Most of the
\par offenses enumerated in the Articles of War of 1776 provided
\par that the sentence upon conviction would be determined by the
\par judgment of the court-martial. See W. Winthrop, Military Law
\par and Precedents App. X. at 961-967 (2d ed. 1920 reprint). That
\par practice was continued when Congress revised the Articles of
\par War in 1806 and 1874, id. App. XII, at 976-981; App. XIII, at 986-
\par 991, and it extended to capital offenses. See, e.g., Articles of
\par War of 1874, Arts. 41-46 (each providing that defendant "shall
\par suffer death, or such other punishment as a court-martial may
\par direct"). In 1890 Congress directed that whenever the sentence
\par was left to the discretion of the court-martial by the Articles of
\par War, "the punishment * * * shall not, in time of peace, be in
\par excess of a limit which the President may prescribe." Act of
\par Sept. 27, 1890, ch. 998, 26 Stat. 491. Thus, a long history,
\par predating the Constitution itself, shows that Congress has always
\par understood the determination of court-martial sentences to be a
\par matter properly resting within the special competence of the
\par Executive Branch officials most directly responsible for the
\par maintenance of military discipline.  See A. Sullivan, The
\par President's Power to Promulgate Death Penalty Standards, 125
\par Mil. L. Rev. 143, 157 (1989). Cf. Bowsher v. Synar, 478 U.S.
\par 714, 723-724 (1986) (historical evidence is a valuable guide in
\par separation of powers controversies).
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 18
\par 
\par fluence or retaliation. Cf. Mistretta, 488 U.S. at 393-
\par 395. 7.
\par Third, Articles. 18, 36, 56, and 106a do not allow the
\par President to impose capital punishment in cases
\par where Congress has not itself authorized that pen-
\par 
\par ___________________(footnotes)
\par 
\par 7 Contrary to petitioner's repeated suggestions that the
\par President or military commanders can easily exert improper
\par influence over courts-martial and their members (Pet. 26-28 &
\par nn.28, 31), the military justice system includes strong safeguards
\par to prevent that from occurring.  This Court recently found
\par those safeguards significant in concluding that the Constitution
\par does not require that military judges be given a fixed term of
\par office:
\par 
\par Article 26 * * * protects against command influence by
\par precluding a convening officer or any commanding officer
\par from preparing or reviewing any report concerning the
\par effectiveness, fitness, or efficiency of a military judge relat-
\par ing to his judicial duties. Ibid. Article 37 prohibits conven-
\par ing officers from censuring, reprimanding, or admonishing
\par a military judge [or court-martial member] "with respect to
\par the findings or sentence adjudged by the court, or with
\par respect to any other exercise of its or his functions in the
\par conduct of the proceeding." 10 U.S.C.  837. Any officer
\par who "knowingly and intentionally fails to enforce or com-
\par ply" with Article 37 "shall be punished as a court-martial
\par may direct." Article 98, UCMJ, 10 U.S.C. 898.
\par 
\par Weiss v. United States, 114 S. Ct. 752, 762 (1994). In addition,
\par Article 51, 10 U.S.C. 851, provides that panel members must
\par vote by secret written ballot, and Mil. R. Evid. 606(b) permits
\par court-martial members to be questioned on "whether there was
\par unlawful command influence," and that information may be
\par used to impeach the verdict. See Pet. App. l7a-18a. Finally, as
\par this Court recently noted, "[t]he entire system * " * is
\par overseen by the Court of Military Appeals, which is composed
\par entirely of civilian judges * * *. That court has demonstrated
\par its vigilance in checking any attempts to exert improper
\par influence." Weiss. 114 S. Ct. at 762.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 19
\par 
\par alty. Those Articles only allow the President to limit
\par or regulate its use. The President has always had the
\par power to reduce a servicemernber's sentence under
\par his power "to grant Reprieves and Pardons," Art. II, 
\par 2, Cl. 1, regardless of minimum and maximum
\par penalties set by law. Schick v. Reed, 419 U.S. 256
\par (1974); Ex parte Wells, 59 U.S. (18 How.) 307 (1856).
\par And the President's power to channel the imposition
\par of the death penalty is a reasonable adjunct to his
\par authority to regulate courts-martial. Cf. Mistretta,
\par 488 U.S. at 395-396. While RCM 1004, like the Sen-
\par tencing Guidelines upheld in Mistretta, may influence
\par servicemembers' actions, the Rule does not "bind or
\par regulate the primary conduct" of servicemen, and
\par does "no more than fetter the discretion of [courts-
\par martial] to do what they have done for generations-
\par impose sentences within the broad limits established
\par by Congress." 488 U.S. at 396.
\par Finally, Congress's judgment that the President
\par should have the authority to promulgate sentencing
\par procedures, including aggravating factors for capital
\par or noncapital cases, is sensible. This Court's decis-
\par ions in cases such as Gregg have identified various
\par procedures that satisfy the concerns underlying
\par Furman. Because the President adopts the Manual
\par for use by courts-martial, Congress could reasonably
\par have believed that the President is in the best posi-
\par tion to ensure that the procedures required by this
\par Court's cases can be implemented quickly and revised
\par when necessary in that specialized field, just as he
\par can ensure that courts-martial follow whatever other
\par rules are imposed by this Court or the military
\par courts. Congress also could have believed that the
\par President is in a better position to determine what
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 20
\par 
\par factors are necessary to ensure adequate military
\par discipline.  In those circumstances, the combined
\par effect of the President's inherent Article 11 power and
\par the authority given him by the UCMJ means that the
\par President's power to adopt rules such as Rule 1004 is
\par at its zenith. See, e.g., Dames & Moore v. Regan, 453
\par U.S. 654, 668 (1981); Youngstown Sheet & Tube Co. v.
\par Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,
\par concurring).
\par 2. Petitioner also contends (Pet. 23-28) that the
\par military sentencing procedures are unconstitutional
\par because they allow a capital sentence to be imposed
\par when, as was the case here, the court-martial panel
\par consists of fewer than 12 members.  See Article
\par 16(1)(A), UCMJ, 10 U.S.C. 816(1)(A) (general court-
\par martial may consist of "a military judge and not less
\par than five members"); see also Article 52(b)(l), UCMJ,
\par 10 U.S.C. 852(b)(1) (unanimity required when court-
\par martial imposes sentence of death). That claim finds
\par no support in the controlling decisions of this Court.
\par While petitioner relies on this Court's decisions
\par construing the Sixth Amendment Jury Trial Clause,
\par Pet. 24, 26 (citing Williams v. Florida, 399 U.S. 78
\par (1970), and Ballew v. Georgia, 435 U.S. 223 (1978)), it
\par is well settled that the Jury Trial Clause does not
\par apply to courts-martial. E.g., Ex parte Milligan, 71
\par U.S. (4 Wall.) 2, 123 (1866) 8. The Fifth Amendment
\par 
\par ___________________(footnotes)
\par 
\par 8 See also Ex parte Quirin, 317 U.S. I, 40-41 (1942); Whelchel
\par V. McDonald, 340 U.S. 122, 127 (1950); Reid v. Covert, 354 U.S.
\par 1, 19 (1957) (plurality opinion); 0'Callahan v. Parker, 395 U.S.
\par 258, 261 (1969), overruled on other grounds, Solorio v. United
\par States, 483 U.S. 435 (1987); United States v. McClain, 22 M.J.
\par 124, 128 (C.M.A. 1986). Accord Mendrano v. Smith, 797 F.2d
\par 1538, 1544 (10th Cir. 1986); King v. Moseley, 430 F.2d 732, 734
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 21
\par 
\par specifically exempts "cases arising in the land or
\par naval forces" from the requirement of an indictment
\par by a grand jury for serious crimes. By drafting the
\par Fifth Amendment in that manner, "the framers of the
\par Constitution, doubtless, meant to limit the right of
\par trial by jury, in the sixth amendment, to those
\par persons who were subject to indictment or present-
\par ment in the fifth." Ex parte Milligan, 71 U.S. (4
\par Wall.) at 123. As the Court explained in Ex parte
\par Quirin, 317 U.S. 1,39 (1942), neither Article III of the
\par Constitution nor the Sixth Amendment requires a
\par trial by jury in the military, because those provisions
\par were intended "to preserve unimpaired trial by jury
\par in all those cases in which it had been recognized by
\par the common law * * * , but not to bring within the
\par sweep of the guaranty those cases in which it was
\par then well understood that a jury trial could not be
\par demanded as of right."  Accordingly, because peti-
\par tioner had no Sixth Amendment right to a trial by a
\par petit jury, he also had no right under the Jury Trial
\par Clause to a court-martial panel composed of 12 per-
\par sons. 9.
\par 
\par ___________________(footnotes)
\par 
\par (l0th Cir. 1970); Branford v. United States, 356 F.2d 876, 877
\par (7th Cir. 1966); Owens v. Markley, 289 F.2d 751, 752 (7th Cir.
\par 1961). See generally G. Henderson, Courts-Martial and the
\par Constitution: The Original Understanding, 71 Harv. L. Rev. 293
\par (1957).
\par 
\par 9 In any event, an eight-person panel, as petitioner had,
\par would be sufficiently large to satisfy the Constitution. Williams
\par V. Florida, 399 U.S. 78, 86-103 (1970) (a six-person jury is
\par sufficient). Petitioner's reliance (Pet. 26) on Ballew v. Georgia,
\par 435 U.S. 223 (1978), is misplaced, because Ballew involved a five-
\par person jury, whereas the panel in appellant's case had eight
\par members. Indeed, petitioner does not claim that the panel was
\par too small to find him guilty, but only to sentence him.  The
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 22
\par 
\par Petitioner's reliance on the Eighth Amendment is
\par similarly misplaced. The Eighth Amendment does
\par not guarantee a defendant in a capital case (or in any
\par other) the right to have the jury fix his punishment,
\par even when a sentence requires specific finding-s of
\par fact. See, e.g., Harris v. Alabama. 115 S. Ct. 1031,
\par 1034-1035 (1995); Walton v. Arizona, 497 U.S. 639.648
\par (1990); Spaziano v. Florida, 468 U.S. 447, 459 (1984.
\par Thus, while petitioner is correct that this Court's
\par cases reflect the need for a higher degree of reli-
\par ability in capital cases. this Court has repeatedly
\par rejected the claim that jury sentencing is an indis-
\par pensable means to achieving that reliability.
\par Petitioner's claim fares no better under the Due
\par Process Clause. Pet. 24-25 & n.26. The Constitution
\par authorizes Congress to "make Rules for the Govern-
\par ment and Regulation of the land and naval Force s,"
\par Art. I, 8, Cl. 14, and grants Congress "primary
\par responsibility for the delicate task of balancing the
\par rights of servicemen against the needs of the
\par military." Solorio v. United States, 483 U.S. 435, 447
\par (1987). See also Burns v. Wilson, 346 U.S. 137, 140
\par (1953) (plurality opinion). Congress's judgment about
\par the number of members that may appropriately com-
\par prise a court-martial is entitled to special deference,
\par not only because "[t]he constitution of courts-martial,
\par like other matters relating to their organization and
\par administration * * * is a matter appropriate for
\par congressional action," `Whelchel v. McDonald, 340
\par U.S. 122, 127 (1950); see also Weiss v. United States,
\par 114 S. Ct. 752, 760-761 (1994), but also because the
\par 
\par ___________________(footnotes)
\par 
\par Sixth Amendment, however, does not require jury sentencing at
\par all, even in capital cases. See, e.g., Hildwin v. Florida, 490 U. S.
\par 638, 639-640 (1989) (per curiam).
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 23
\par 
\par practices at issue have been carried forward from the
\par earliest days of our nation. Cf. Solorio v. United
\par States, 483 U.S. at 447.
\par In support of his due process argument, petitioner
\par relies heavily (Pet. 24-25) on the fact that many
\par States leave the capital sentencing decision to 12
\par jurors, rather than to some fewer number. Because
\par some States, such as Florida and Arizona, leave the
\par final decision to the trial judge, rather than to the
\par jury, there is no societal consensus as to 12-person
\par sentencing. And, in any event, the state experience is
\par in the civilian capital sentencing context and there-
\par fore does not bear on the proper sentencing pro-
\par cedures for courts-martial. Compare Weiss v. United
\par States, 114 S. Ct. at 760-761. In the military context,
\par Congress's judgment as to the appropriate size of
\par courts-martial is a reasonable one.  The essential
\par function of the military is "to fight or be ready to
\par fight wars should the occasion arise." United States
\par ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955). When
\par servicemembers are diverted from that function by
\par the need to serve as court-martial panel members,
\par "the basic fighting purpose of armies is not served."
\par Ibid. Congress reasonably determined that the rights
\par of servicemen are adequately protected by the court-
\par martial process without insisting on the further
\par diversion of resources that would be required
\par to provide 12-member panels in each case. 10.
\par 
\par ___________________(footnotes)
\par 
\par 10 Moreover, as the court of appeals noted in Curtis,
\par defendants found guilty and sentenced to death by courts-
\par martial enjoy safeguards not available to persons convicted and
\par sentenced to death in civilian courts, including the convening
\par authority's power to commute the sentence and the fact that "a
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 24
\par 
\par CONCLUSION
\par 
\par The petition for a writ of certiorari should be
\par denied.
\par 
\par Respectfully submitted.
\par 
\par DREW S. DAYS, III
\par Solicitor General 
\par 
\par JOHN M. SMITH
\par Colonel, USA
\par 
\par JAMES L. POHL
\par Lieutenant Colonel, USA
\par 
\par MICHAEL E. MuLLIGAN
\par KENNETH G. WILSON
\par Captains, USA
\par Appellate Government Counsel
\par Government Appellate division
\par Falls Church, VA 22041-5013
\par 
\par SEPTEMBER 1995
\par 
\par ___________________(footnotes)
\par 
\par Court of Military Review, composed of trained appellate
\par military judges, must thoroughly review the law, the facts, and
\par the appropriateness of the accused's sentence." Pet. App. 377a;
\par see also id. at 152s (opinion below) ("the convening authority
\par may set aside or reduce the sentence for any reason"). Indeed,
\par unlike civilian appellate courts that review sufficiency claims
\par under a deferential standard, Jackson v. Virginia, 443 U.S. 307,
\par 319 1979), military courts have required the prosecution
\par independently to prove the defendant's guilt before a court of
\par military review. A court of military review must independently
\par review the record and be convinced of the correctness of the
\par court-martial panel's findings, including its ultimate finding
\par that the accused is guilty, before the findings may be upheld.
\par See Art. 66(c), UCMJ. 10 U.S.C. 866(c); United States v.
\par Palenius, 2 M.J. 86, 91 n.7 (C.M.A. 1977); see also Ryder v.
\par United States, 115 S. Ct. 2031, 2037-20.38 (1995); Pet. App. 152a
\par (opinion below).
\par 
\par 
\par }