In the 1972 case Gosa v. Mayden, Warden, the U.S. Supreme Court was tasked with deciding whether court-martials conducted by American military forces in foreign countries during times of war were constitutional under Article III and the Fifth Amendment. The petitioners were servicemen who had been convicted by such courts-martial for crimes committed overseas while on active duty during World War II and sought to have their convictions overturned on grounds that they violated their rights to a jury trial as guaranteed by these provisions of the Constitution. The Supreme Court ruled against them in a 5-4 decision, holding that Congress has broad power under Article I Section 8 Clause 14 (the "Make Rules" clause) to regulate all aspects of military justice without interference from other branches of government or restrictions imposed by other parts of the Constitution. This includes authority over courts-martial proceedings involving service members stationed abroad during wartime. The majority opinion reasoned that this interpretation is consistent with historical practice dating back to Revolutionary War era and necessary for maintaining discipline within armed forces operating outside U.S territory where convening civilian juries would be impractical if not impossible.

In the dissenting opinion for Gosa v. Mayden, Justice Brennan disagreed with the majority's decision to uphold court-martial convictions of servicemen who committed crimes overseas during peacetime. He argued that this violated their Fifth Amendment rights to a grand jury indictment and trial by jury. He believed that these constitutional protections should not be suspended just because an American citizen is abroad or in military service. Furthermore, he contended that applying such penalties retroactively was unjust as it did not provide fair warning to those affected about potential consequences of their actions. In his view, the Court’s ruling undermined fundamental principles of justice and fairness embodied in U.S law.