military law

military law system of rules established for the government of persons in the armed forces. In most countries the legislature establishes the code of military law. It is distinguished from both martial law (rule by domestic military forces over an area) and military government (rule by the military over occupied foreign territory). The scope of military law differs somewhat in peace and in war. In time of peace it is generally limited to military offenses—e.g., absence without leave, desertion, breach of orders; during war it usually extends to crimes of a civil nature as well, and the penalties may be more severe.

The Uniform Code of Military Justice

Regular systems of military law existed in ancient Rome, with severe penalties for such offenses as desertion. In the Middle Ages procedures were less regularized, but written codes began to appear. The origin of much military law is found in the codes and statutes enacted in England in the 17th cent. These were substantially adopted in the United States.

It was widely felt after World War II that many abuses had occurred in the administration of American military justice and that excessively severe sentences had been imposed, especially on the enlisted ranks. The armed forces responded by establishing civilian review boards, which recommended reduction of the punishment inflicted on a large percentage of those convicted (some 100,000) by general court-martial during the war. In 1951, Congress extensively revised the codes of military law enacting a uniform code of military justice for all branches of the armed services. This code placed operations more in the hands of professional lawyers and ensured fairer review procedures.

An important change permitted an enlisted person tried by a general court-martial to demand that one third of the court be composed of enlisted personnel. The uniform code defines the offenses for which a person under the jurisdiction of the armed forces may be subjected to court-martial. In addition to allowing punishments by the commanding officer, including confinement not to exceed one week, the code establishes three levels of court-martial. The summary court-martial consists of a single officer, and may impose a maximum penalty of imprisonment for one month. The special court-martial consists of at least three officers and may impose a prison sentence of up to six months. The general court-martial is composed of five members and one law officer who must be a trained lawyer admitted to practice before a state's highest court. The general court-martial may impose any authorized sentence including dishonorable discharge or death.

One of the principal differences between the procedure in court-martial and in criminal cases in civil courts is the absence of a jury. Cases are decided by a vote of two thirds or three fourths of the court, depending on the severity of the offense. For the death penalty, the vote must be unanimous. The accused is permitted to have counsel, to compel the attendance of witnesses, and to enjoy the usual protections of the law of evidence.

Bibliography

See W. B. Aycock and S. W. Wurfel, Military Law under the Uniform Code of Military Justice (1955, repr. 1973); R. O. Everett, Military Justice in the Armed Forces of the United States (1956); R. S. Rivkin, G.I. Rights and Army Justice (1970); W. E. Schug, United States Law and the Armed Forces (1972); J. W. Bishop, Jr., Justice under Fire (1974); R. H. Kohn, ed., Military Laws of the U.S. (1979).

Military Trials and Martial Law Although these two kinds of legal procedure are often conceptually linked, they are in fact separate and widely disparate. Military trials, usually referred to as courts‐martial, are judicial proceedings conducted under the control of military, rather than civilian, authorities. Martial law, more difficult to define, can be described as simply the will of the commanding general.

Courts‐martial are the oldest federal tribunals in American legal history. Rules for their operation were enacted by the Continental Congress in 1775, a year before the Declaration of Independence and twelve years before the Constitution was written. Historically, the U.S. Supreme Court has, with few exceptions, declined to accept appeals from or to enjoin military trials. The Court states its rationale for this position in Dynes v. Hoover (1858), in which it ruled that, where a military trial has been duly authorized and has exercised lawful jurisdiction, its findings cannot be altered by civilian courts. The Court based its conclusion on Article I of the Constitution, which specifically grants Congress the authority to make rules and regulations for the governance of the armed forces, including military trials. This authority has usually been held to be independent of the judicial power conferred by Article III. Further, the Fifth Amendment specifically exempts courts‐martial from grand jury proceedings.

This virtual independence of military courts from supervision by civilian courts has posed difficulties for litigants seeking relief from improper verdicts. They have had to attack the military judicial process collaterally by, for example, challenging the jurisdiction of the military court to try them in the first place. The Supreme Court has been sympathetic to this tactic only on rare occasions. The case of Ex parte Milligan (1866) held that military courts could not try a civilian when civilian courts were open and outside the theater of war, and civil government in control of the community. In O'Callahan v. Parker (1969), a divided Court held that in order for a military trial to be lawful, the offense for which the defendant is tried must be “service connected”: that is, it must be directly related to the functions of the military. Less than twenty years later, however, the Court overruled O'Callahan and substituted service status as the criterion for military trial. In recent years the Court has made it clear that military appellate procedures are to be the primary, and often the only, route available to litigants involved in military trials.

American legal scholars have had difficulty in defining martial law. A slightly more elegant definition than the “will of the commanding general” might be that martial law is simply whatever it takes to preserve governmental authority within an area and protect it from enemy attack. In the American context, martial law is the rare exception. It presumes a breakdown in normal civilian governmental operations, and it has always been conceived of as a strictly temporary substitute for civil public law and administration. Its imposition is not authorized by specific constitutional provision, and because martial law has usually been imposed during a time of crisis, the Supreme Court has tried to avoid placing itself in conflict with the military.

The Milligan case might appear to be an exception to this tendency. In actuality, the dispute concerned a civilian, not a member of the military, and the decision was handed down long after Civil War hostilities had ended, when its implementation could do no harm to the war effort. Indeed, in the earlier case of Ex parte Vallandigham (1864), involving much the same question, the Court refused to intervene. This preference was again reflected during World War II, when the Court refused to entertain a challenge to military actions leading to the internment of Japanese‐Americans in concentration camps. Thus, to some extent, martial law and judicial tolerance for military‐trial procedures remain difficult to reconcile with traditional conceptions of American civil rights. Historically, the demands of “military necessity,” especially when raised in time of war, have been and probably will continue to be inhibiting factors in the Supreme Court's decisions.

See also Military Justice.

Bibliography

Charles A. Shanor and and Timothy P. Terrell , Military Law (1980).

Jonathan Lurie