Military justice and the Supreme Court
Military justice in the United States operates under a distinct framework separate from the civilian judicial system, a separation sanctioned by the U.S. Constitution. Specifically, Congress is authorized to regulate the armed forces, and the President serves as commander in chief. The Uniform Code of Military Justice (UCMJ) outlines military offenses and procedural guidelines, enabling commanders to impose disciplinary actions for minor infractions through Article 15 nonjudicial punishment, while more serious crimes are addressed in courts-martial. There are three types of courts-martial: summary, special, and general, each with varying levels of authority and procedural protections for the accused. The military justice system includes appellate courts and allows for some review by the U.S. Supreme Court, although its jurisdiction primarily applies to military personnel and is concurrent with civilian legal systems for nonmilitary offenses. Due process rights for service members are primarily statutory, highlighting the unique challenges within military justice, such as the potential for unlawful command influence. Overall, military justice seeks to maintain order and discipline while ensuring fair treatment for those serving in the armed forces.
Military justice and the Supreme Court
Description: Separate body of law and procedure that applies almost exclusively to persons serving in the armed forces.
Significance: Military justice differs from civilian law in that constitutional guarantees have limited application to members of the military. Instead, Congress is responsible for the rights and safeguards applicable to members of the military.
As the Supreme Court noted in 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 Justice, which defines military crimes, and the Manual 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 dealt with in courts-martial, military courts that consider 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 non-lawyer judge who serves, as the Supreme Court noted in 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 (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 military 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 ensure 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.
Bibliography
Bishop, Joseph W., Jr. Justice Under Fire: A Study of Military Law. Charterhouse, 1974.
Lurie, Jonathan. Arming Military Justice: Origins of the United States Court of Military Appeals, 1775-1950. Princeton UP, 1992.
Lurie, Jonathan. Pursuing Military Justice: The History of the United States Court of Appeals for the Armed Forces, 1951-1980. Princeton UP, 1998.
"Military Justice Overview." Victim and Witness Assistance Council, vwac.defense.gov/military.aspx. Accessed 8 Apr. 2023.
Shanor, Charles A., and L. Lynn Hogue. Military Law in a Nutshell. 4th ed. West Publishing, 2013.