Military Justice

Military Justice is the system of legal policies, procedures, and penalties applicable to persons under the jurisdiction of the armed services. Congressional rules for American military justice, first adopted in 1775, drew heavily upon the British Articles of War. Although there have been some minor modifications at varying times in our history, from 1775 until 1951 administration of American military justice remained virtually the same. Intended to be rapid in execution, real in example, and rigorous in application, the principles of military justice have been designed for a military environment rather than administration in local courthouses before civilian judges. Moreover, unlike its civilian counterpart, military justice remains inextricably connected to military discipline.

Responsibility for the administration of military justice rests primarily with Congress, with one of its mandates under Article I of the Constitution being to make rules for the governance of the armed services. The president's role as commander in chief also can apply in this area, however. Generally, these two sources of constitutional authority complement rather than collide with each other. Congress has established general regulations for military justice, the latest complete revision being the Uniform Code of Military Justice (UCMJ), adopted in 1950, while the source for more specific provisions is the Manual for Courts Martial, which has traditionally been issued in the name of the president.

Before 1950, the army and navy each had independent institutions of military justice. A single military justice system applicable to all branches of the service was a logical corollary to the unification of the armed services in 1948. Such a statute was drafted in 1948–1949 by the office of Secretary of Defense James Forrestal, and President Harry S. Truman signed this Uniform Code of Military Justice into law in 1950. Although the code makes extensive use of federal rules of evidence, it is the basis of a separate body of jurisprudence, even having its own national reporting system. While military‐justice procedures are similar in many ways to civilian criminal law, there are some important differences. Contrary to popular assumption, in certain instances military justice has been more solicitous of the rights of defendants than its civilian counterpart.

The Uniform Code provides for a pretrial investigation that is considerably fairer than the grand jury proceedings common to civilian criminal law. The military also required appointment of counsel and banned compulsory self‐incrimination long before the Supreme Court undertook these same actions. On the other hand, military justice has long had the potential for abuse in a matter unique to itself—the role of the commander. Today, however, the commander's authority is much more restricted than it was prior to 1950. Still, the commander—also known as the convening authority—has the authority to select the members of a court‐martial, a procedure very different from that of civilian criminal trials. While the commander must approve the sentence, he or she may not increase—but can decrease—the penalty meted out by the court. The trial judge, trial counsel (the equivalent of the prosecutor in civilian court), and defense counsel are all appointed independently of the commander. Because military policy holds a commander responsible for his or her command, it is not surprising that military justice grants the commander a dominant voice in initiating the trial process and in approving or rejecting the outcome, unless, of course, it is an acquittal.

On a formal level, the military has three kinds of courts‐martial: summary, special, and general. The uniform code also provides for a more informal and less stringent disciplinary proceeding known as nonjudicial punishment. Still called “captain's mast” in the navy, this type of process is usually held before the commanding officer alone. The code establishes an extensive appellate review system within the armed services: every branch has its own court of review, and above them is the U.S. Court of Military Appeals, which is composed of five judges drawn from civil life and appointed by the president for fifteen‐year terms. The U.S. Supreme Court can hear certain cases on appeal from the Court of Military Appeals, but for the most part military justice and the courts that dispense it remain free from intervention by their civilian counterparts.

See also Military Trials and Martial Law.

Bibliography

Joseph W. Bishop, Jr. , Justice under Fire (1974).
Robinson O. Everett , Military Justice in the Armed Forces of the United States (1956).

Jonathan Lurie