The U.S. Supreme Court is shown as the court meets to issue decisions May 23, 2016 in Washington, DC.

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Army Sergeant Hasan K. Akbar is the first US soldier convicted for fragging since Vietnam

The Supreme Court said it won't take up his appeal of the death penalty

Austin, Texas CNN —  

The Supreme Court Monday declined to take up the appeal of an Army sergeant sentenced to death for an attack against his fellow soldiers at a US military outpost in Kuwait in 2003.

Army Sergeant Hasan K. Akbar was convicted and sentenced to death by a court-martial for killing two of his fellow soldiers and wounding 14 others during the attack in the run up to the invasion of Iraq. Akbar is the first US soldier convicted for “fragging” – intentionally killing fellow soldiers overseas during wartime – since Vietnam.

In deciding not to consider Akbar’s appeal, justices passed up not only an opportunity to clarify how two of their important death penalty precedents relate to each other, but also a chance to revisit the debate Justice Stephen Breyer rekindled 15 months ago over whether the death penalty itself might be unconstitutional.

Akbar initially appealed his conviction and death sentence on a number of grounds, all but one of which were rejected by the highest court in the military justice system – the Court of Appeals for the Armed Forces – in August 2015. The one question the military appeals court did not resolve, and the question Akbar asked the justices to answer, was a technical question about who prescribes the case-specific “aggravating factors” that, according to the Supreme Court, must be found to be present in an individual case to support imposition of a death sentence.

In its 2002 decision in Ring v. Arizona, the Supreme Court had held that aggravating factors in capital cases are elements of the underlying crime, and thus must not only be found by a jury – rather than the judge – but must be identified in advance by the legislature. In the federal military justice system, in contrast, Congress has delegated its responsibility to identify aggravating factors to the President, who has done so through the Manual for Courts-Martial, a series of administrative rules promulgated by the Secretary of Defense.

Such a procedure, Akbar argued, was inconsistent with the Supreme Court’s ruling in Ring, because Congress’s power to delegate such authority to the President was based on the view that aggravating factors are not elements of the crime – a view the court had expressly rejected in Ring.

The military court of appeals refused to consider Akbar’s argument because of a prior Supreme Court decision, Loving v. United States, that had upheld Congress’s power to delegate to the President the authority to identify aggravating factors in military capital cases. Even though Loving seemed to be called into question by the Supreme Court’s later decision in Ring, the appeals court held that only the Supreme Court could overrule its decisions – implying that the Justices should clarify the relationship between the two precedents.

Monday’s action, delivered without comment by the court, therefore leaves open the question of whether a practice that has been expressly ruled to be unconstitutional in the civilian courts is constitutional as applied to US military personnel.

Vladeck is a CNN contributor and professor of law at the University of Texas School of Law.