Military justice

Separate body of law and procedure that applies almost exclusively to persons serving in the armed forces.

As the Supreme Court noted in Parker v. Levy[case]Parker v. Levy[Parker v. Levy] (1974), military jurisprudence exists separate and apart from the federal judicial system. This separateness is authorized by Article I, section 8, clause 14 of the U.S. Constitution, which permits Congress to make rules to govern and regulate the armed forces, and Article II, section 2, clause 1, which makes the president the commander in chief of the U.S. Army and Navy.

After World War II, revisions were made to the Uniform Code of Military JusticeUniform Code of Military Justice, which defines military crimes, and the Manual for Courts-MartialManual for Courts-Martial, which specifies military justice procedures. After these revisions were in place, commanding officers, under article 15 of the uniform code, could impose nonjudicial, disciplinary punishments for minor offenses. More serious offenses could be deal with in courts-martial, military courts that take into account the special requirements of the military for order, discipline, and efficiency. The military’s appellate system consists of a Court of Criminal Appeals for each service branch (army, navy, and air force) and the U.S. Court of Appeals for the Armed Forces, which provides for discretionary review by writ of certiorari to the U.S. Supreme Court.

Except during wartime, the jurisdiction of the military justice system is confined to military personnel. Military jurisdiction is not exclusive, however, and civilian authorities have concurrent jurisdiction with the military over service members who commit nonmilitary crimes both in the United States and abroad, under the authority of status of forces agreements, treaties, or international agreements concluded with host countries.

Article 15 and Courts-Martial

Jurisdiction is limited exclusively to criminal matters, primarily those defined in the Uniform Code of Military Justice. In order to be the subject of an article 15 proceeding, the matter must be a crime under the military code. Punishments for such infractions are limited by a table of maximum punishments and may be informal or formal. The severity of punishment that can be imposed is also affected by the rank of the officer conducting the procedure. A service member need not accept trial by nonjudicial punishment but may choose to do so because the penalties possible are limited and trial of a minor infraction by a commander under article 15 will bar retrial by court-martial, a limitation that acts like double jeopardy.

There are three categories of courts-martial: summary, special, and general. A summary court-martial is provided for the trial of enlisted personnel only. It is presided over by a nonlawyer judge who serves, as the Supreme Court noted in Middendorf v. Henry[case]Middendorf v. Henry[Middendorf v. Henry] (1976), “as judge, fact finder, prosecutor, and defense counsel.” For that reason, the summary court-martial is limited in the sanctions it can impose. An accused may refuse trial by a summary court-martial. A special court-martial is a true court presided over by a qualified military judge and a jury of court members made up of not fewer than three service members who decide guilt or innocence and recommend a sentence. General courts-martial have the power to try any person subject to the military code and may impose any punishment allowed. Only a general court-martial may impose a dishonorable discharge, and more serious penalties such as death. A general court-martial consists of a legally qualified military judge and not fewer than five court members, unless the accused elects to be tried by the judge alone. In Ex parte Quirin[case]Quirin, Ex parte[Quirin, Ex parte] (1941), the Supreme Court found that general courts-martial may try any persons subject to trial under the law of war when civilian authority is displaced by miliary occupation.

An accused person tried by either a special or general court-martial is entitled to be represented by assigned military counsel and enjoys rights against self-incrimination, exclusionary rule protection, and other protections similar to those enjoyed by civilians. Those safeguards are provided for by the military code. In Parker v. Levy, the Supreme Court recognized that due process protections for service members are provided by Congress and therefore are statutory, not constitutional in origin.

Commanders convene courts-martial and select court members, and the results of the trial are a recommendation to the commander on which he or she acts. The commander must accept a finding of not guilty but has discretion to disapprove all or any portion of a guilty verdict and may reduce, mitigate, or disapprove altogether a sentence or portion of a sentence. A unique problem growing out of the role of the commander in military justice is that of unlawful command influence or the improper interference by a military superior in the exercise of independent judgment by those charged with making decisions about the trial of service members accused of crimes. Clear regulatory prohibitions and the provision of a qualified, legally trained cadre of judge-advocates (or military lawyers) works to assure the functioning of a military justice system that meets the requirements of the U.S. Constitution and the expectations of fair treatment for those who serve in the nation’s armed forces.

Further Reading

  • Bishop, Joseph W., Jr. Justice Under Fire: A Study of Military Law. New York: Charterhouse, 1974.
  • Lurie, Jonathan. Arming Military Justice: Origins of the United States Court of Military Appeals, 1775-1950. Princeton, N.J.: Princeton University Press, 1992.
  • _______. Pursuing Military Justice: The History of the United States Court of Appeals for the Armed Forces, 1951-1980. Princeton, N.J.: Princeton University Press, 1998.
  • Shanor, Charles A., and L. Lynn Hogue. Military Law in a Nutshell. 2d ed. St. Paul, Minn.: West Publishing, 1996.

Certiorari, writ of

Constitution, U.S.

Counsel, right to

Double jeopardy

Exclusionary rule

Fifth Amendment

Martial law

Military and the Court

National security

Quirin, Ex parte