Justice, Military
Justice, Military: Articles of War (1775–1950) Articles of War was the term used to describe the statutes governing military discipline and justice in the American armed services from 1775 to 1950, when they were replaced by the Uniform Code of Military Justice.
With the outbreak of the Revolutionary War, the Continental Congress in 1775 adopted two codes of military law: the “Rules for the Regulation of the Navy of the United Colonies” and the “American Articles of War” (the latter revised in 1776). Both were written by John Adams—then an attorney, representative from Massachusetts, and chair of the Naval Committee—and both were drawn largely from the codes governing the Royal Navy and the British army.
After the adoption of the Constitution and the establishment of the federal government, the first Congress merely stated that the provisions from the earlier period would continue to apply. The U.S. Navy was expanded in the late 1790s, and in 1799, Congress adopted an Act for Government of the Navy, revising the Continental Rules. These also applied to the Marine Corps, as part of the navy. A year later, Congress passed the Articles for the Government of the Navy (1800). Within the navy, this governing statute was nicknamed “Rocks and Shoals” because that phrase was included in the provision authorizing punishment for those responsible for damage to ships due to improper navigation. The statute was amended periodically to reflect changes in the service. In one important reform of discipline, flogging (the whipping of sailors with a lash) was abolished as a punishment in 1850. An amendment in 1855 authorized summary courts‐martial, with a single officer sitting as the military tribunal. During the dramatic, if temporary, expansion of the navy in the Civil War, the Articles for the Government of the Navy were recompiled, and this compilation, as amended, remained in effect through World War II. The navy's ambitious plans to rewrite the articles after 1945 were overtaken by the drive for “unification” of the armed services and by the passage of the Uniform Code of Military Justice, which was modeled largely after the army's Articles of War.
The Articles of War governing discipline and justice in the army, first formulated in 1775 and revised in 1776, underwent minor revisions in 1806 by John Quincy Adams, son of the original drafter. The basic Articles of War remained in effect for 111 years, from 1776 to 1917. During that period, there were a number of important changes: one in 1830 regarding the appointment of courts‐martial; and several during the Civil War, primarily intended to extend courts' jurisdiction over crimes and persons. Some articles of the code were deleted, such as those relating to irreverent or indecent behavior at worship services, or the use of oaths or other offensive utterances.
The Articles of War were substantially revised to deal with the mass army of citizen‐soldiers in World War I. At the instigation of Enoch Crowder, judge advocate general of the U.S. Army, Congress passed a complete revision in March 1917. There were major problems with this revision, however. For example, in November 1917, under its wartime provisions, thirteen black enlisted men were too hastily executed after a court‐martial following a race riot in Houston. Secretary of War Newton D. Baker prohibited any further executions without express approval from Washington. During World War I, a number of other citizen‐soldiers were sentenced to long prison terms or even to death for breaches of military discipline, although these sentences were subsequently modified. Widespread complaints in the press and Congress against such mistreatment led to Senate hearings in 1919, which contributed to a revision of the Articles of War in 1920, although the liberal reforms proposed by Samuel T. Ansell, acting judge advocate general while Crowder had been provost marshal general in charge of the draft, were rejected after a heated public debate.
Similar complaints of the harshness of military discipline during and after World War II led Congress to adopt the Elston Act of 1948, modifying the code of conduct for the army and the newly independent air force. In 1950, as part of the movement toward unification as well as modernization of the postwar armed forces, Congress made the name Articles of War obsolete when it adopted the Uniform Code of Military Justice.
During the period 1775–1950 in which the army and navy Articles of War were in effect, they were supplemented by a number of various publications. General Orders issued by the commanding general of the army or his subordinates, particularly during the Civil War, set maximum punishments, established court‐martial procedures, and formally supplemented the Articles of War. The general regulations for the navy and Marine Corps, first published in 1841, contained provisions relating to courts‐martial. The army published its first Manual for Courts‐Martial in 1917, an amended version in 1921, and another in 1928; the last remained in effect through World War II. The navy's counterpart to the army's Manual was Naval Courts and Boards, the 1937 edition of which was used throughout World War II. These manuals provided details for the implementation in all services of the military laws designed to maintain discipline and secure justice in the armed forces.
Bibliography
William Winthrop , Military Law and Precedents, 1886; 2nd ed., 1920.
Robert Pasley and and Felix E. Larkin , The Navy Court‐Martial: Proposals for Its Reform, Cornell Law Quarterly, 33 (1947), pp. 195–234.
Frederick B. Weiner , Courts‐Martial and the Bill of Rights: The Original Practice, Harvard Law Review, 72 (1958–59), pp. 1–304.
Frederick B. Weiner , American Military Law in the Light of the First Mutiny Act's Tricentennial, Military Law Review, 126 (1989), pp. 1–88.
John M. Lindley , A Soldier Is Also a Citizen: The Controversy over Military Justice in the U.S. Army, 1917–1920, 1990.
Jonathan Lurie , Arming Military Justice: The Origins of the United States Court of Appeals, 1775–1950, 1992.
Jonathan Lurie , Pursuing Military Justice: The History of the United States Court of Appeals for the Armed Forces, 1951–1980, 1998.
Michael Noone
Justice, Military: Uniform Code of Military Justice (1950–present) The Uniform Code of Military Justice (UCMJ) is a comprehensive federal statute that established essential procedures, policies, and penalties for the military justice system. Enacted by Congress in 1950, the UCMJ continues in effect to the present with few alterations since its passage.The UCMJ actually resulted from the confluence of two factors. First was underlying dissatisfaction with some existing practices of military justice, especially as related to courts‐martial appeals. Second was the unification of the armed forces into one Department of Defense “establishment” in 1947–48. This step rendered retention of traditional systems such as the army's Articles of War and the navy's Articles for the Government of the Navy impractical and unnecessary.
The UCMJ was essentially the work of civilian committee selected by Secretary of Defense James V. Forrestal. It included the three undersecretaries of the army, navy, and air force, with a well‐known professor of evidence from Harvard Law School, Edmund Morgan, as its chair. This committee was assisted by a “working group” that consisted of several military lawyers, as well as some civilian attorneys from the newly established Defense Department. Although the military was well represented on the working group, which undertook the initial drafting of most articles in the new code, in general the UCMJ was a civilian effort. Indeed, Forrestal made it clear that where the Morgan Committee could not agree, he would ultimately decide, and that once the proposed code was submitted to Congress, the military's role was over. Unlike earlier attempts to reform military justice, in the case of the UCMJ, although the military might discuss and even debate, it was unable to derail.
Nevertheless, Morgan's committee recognized that the two basic sources of military discipline that had effectively guided the armed services since the Revolutionary era had to be considered and to a great extent integrated into the new legislation. Indeed, its great challenge was to synthesize key provisions from both army and navy regulations into a uniform, workable system, as well as to introduce new innovations now deemed necessary. Thus, it retained—and still retains—some traditional prohibitions that had existed for almost two centuries such as the bans against “conduct unbecoming an officer and a gentlemen,” “dueling,” and “improper use of a countersign.”
Based upon plenary congressional authority to enact rules and regulations for the military, the UCMJ ranks just below the Constitution as the basis for federal military regulation. Indeed, on several occasions its provisions have been held to supersede those found in the Manual for Courts‐Martial, the detailed book of regulations supposedly issued by the president in his capacity as commander in chief, but in fact drafted largely by the military. The court that made these rulings may be the best example of innovative change produced by the UCMJ.
Creation of an appeals court within the military had been proposed during World War I by acting Judge Advocate General (JAG) officer Samuel Ansell, but strong opposition from the army doomed both Ansell's efforts and his continued military career. He was still alive, however, in 1951 when the UCMJ, replete with not one but two levels of appellate review, became law. As submitted to Congress, the UCMJ included two separate appellate systems: an intermediate court, administered within the military; and an appellate tribunal, to consist of three judges drawn from “civilian life.” Morgan had intended the new court to have the same perquisites and benefits as other federal Courts of Appeals, including life tenure; and indeed, as passed by the House in 1949, the UCMJ so provided. But the final Congressional product rejected life tenure, and substituted limited terms of fifteen, ten, and five years. To this day, while emphasizing that its highest court for military appeals is no different from other federal appellate tribunals in terms of salary, Congress has consistently declined to give its judges life tenure.
Although justifiably described a civilian effort, the UCMJ was heavily influenced by the military viewpoint. Thus, commanders retained (and still do) authority to select members of a court‐martial. The intermediate appellate courts, controlled by the military, received greater authority than Morgan had originally intended. Moreover, the code failed to set out a clear demarcation between the JAGs and the new court concerning supervision over military justice. In spite of these possible weaknesses, the basic premises of the UCMJ—that a single military justice system can be applicable to all branches of the American military, and that its “uniformity” would not undercut its effectiveness in time of armed conflict—have been vindicated since 1951.
Bibliography
Homer F. Moyer, Jr. , Justice and the Military, 1972.
Jonathan Lurie , Arming Military Justice. Vol. 1 of Origins of the United States Court of Appeals for the Armed Forces 1775–1950, 1992.
Jonathan Lurie , Pursuing Military Justice. Vol. 2 of History of the United States Court of Appeals for the Armed Forces, 1951–1980, 1998.
Jonathan Lurie
Justice, Military: Military Crimes The Articles of War adopted by the Continental Congress in 1775 and based largely on those of the British army specified military offenses ranging from mutiny to misbehavior before the enemy. However, there was no American counterpart to a British provision which, if the offenses occurred where there were no civil courts, granted jurisdiction over soldiers who committed common law crimes (murder, theft, robbery, and rape) to courts‐martial. Congress assumed that these crimes, if committed by soldiers, would be punished by U.S. civilian courts. The navy and Marine Corps were, of course, permitted to try their overseas and afloat offenders according to naval custom. A congressional act of 1863 first gave the army concurrent jurisdiction over common law crimes, if they occurred where the civil courts were functioning; otherwise, the military had exclusive jurisdiction. Thus, any history of military crimes must distinguish between the land and sea services and between military offenses and civil offenses, while recognizing that some military offenses, such as theft of government property, will have a civil analog.The military crimes specified in the present Uniform Code of Military Justice can be found in the 1775 articles: absence offenses, disrespect and disobedience, offenses involving military property, misbehavior (mutiny, malingering, provoking speech or gestures). The articles followed British practice and provided for the discharge of any officer convicted of “behaving in a scandalous, infamous manner, such as is unbecoming the character of an officer and a gentleman.”
In 1776, when the articles were revised, Congress added a provision that had, in various forms, been in the British code since 1686 and that prohibited “[a] 11 Crimes not Capital and all Disorders and Neglects, which Officers and soldiers may be guilty of to the Prejudice of good Order and Military Discipline, though not mentioned in the above Articles of War.” The “conduct unbecoming” provision was amended in 1806 by deletion of the phrasing “scandalous and infamous,” although the words were retained in the Naval Code. Nineteenth‐ and early‐ twentieth‐century military law treaties listed the kinds of behavior that usually involved lying or dishonorable failure to meet financial obligations but also applied to public drunkenness, bigamy, wife abuse, association with prostitutes, and mistreatment of, or undue fraternization with, enlisted men. The 1951 Manual for Courts‐Martial discussion of Article 133, where the provision is now found, acknowledged the presence of women in forces by providing that they should be held to the standards of a “gentlewoman.” In recent years, however, officer misconduct is usually charged under Article 134, as conduct prejudicial to good order and discipline.
Article 134 serves as the legal basis for charging three classes of offenses, two found in the 1776 articles: crimes and offenses not capital, and conduct prejudicial to good order and discipline; while the third, conduct of a nature to bring discredit upon the military service, was added after World War I. The “crimes and offenses” provisions incorporate all federal crimes that are not punishable by another article. Thus, a military counterfeiter of U.S. currency would be charged under this provision. If there were a violation of a state law that had no federal counterpart, the offender could only be charged under Article 134 if the conduct was service‐discrediting. Officers who failed to pay their debts were often charged under this provision which, unlike the “conduct unbecoming” article, did not require dismissal on conviction. Gen. Billy Mitchell was court‐martialed in 1925 for service‐discrediting behavior after issuing a press release accusing the War and Naval Departments of “incompetency, criminal negligence, and almost treasonable administration of the National Defense.”
Of the three provisions, that relating to conduct prejudicial to good order and discipline is the most comprehensive and potentially the most subject to abuse; hence its traditional British nickname, “the Devil's Article.” The 1928 Manual for Courts‐Martial listed typical offenses ranging from abuse of a public animal to self‐maiming. The list was not intended to be exclusive: adultery was added in the 1951 Manual, but there had been prosecutions for adultery during and immediately after World War II. Fraternization—undue familiarity between individuals of different rank—is considered to be prejudicial to good order and discipline. However, a 1985 decision by the Court of Military Appeals, Johanns v. United States, concluded that a male officer's sexual relationship with three enlisted women in his unit was not prejudicial in the absence of an explicit prohibition in service regulations. Subsequently the services issued regulations intended to define fraternization.
Crimes that have no counterpart in civilian life—mutiny, desertion, misbehavior before the enemy—have been the subject of numerous monographs, as have war crimes. The term war crime has no legal meaning, but it is used to describe deviations from accepted standards of what used to be called the law of war and now is called international humanitarian law. General Order 100 (1863), “Instructions for the Government of Armies of the United States in the Field,” prepared by Professor Francis Lieber of Columbia College, was the first codification of these standards. War crimes encompass both offenses against a belligerent's armed forces and against the civilian population in the war zone.
Crimes committed overseas by visiting forces create particular problems because international law gives the local country the right to prosecute. When U.S. troops were first deployed overseas to France and England during World War I, Washington agreed to a distribution of jurisdiction based on the nature of the offense. Similar agreements were entered into during World War II and became formalized as Status of Forces Treaties when Cold War requirements mandated a continued U.S. troop presence in Europe and the Far East. The treaties established three categories. Behavior that was a crime in the sending state but not in the receiving state would be tried by the sender. Behavior that was a crime in the receiving state but not in the sending state would be tried by the receiver. When behavior violated both countries' laws, the receiving state had primary claim but was expected to give “sympathetic consideration” to the sender's request to try the offender. Host country waivers of jurisdiction, permitting the United States to try military rapists and murderers of local citizens, were, and continue to be, a persistent source of controversy.
Bibliography
George Davis , A Treatise on the Military Law of the United States, 1915.
Richard C. Knopf , Crime and Punishment in the Legion, 1792–1793, Bulletin of the Historical and Philosophical Society of Ohio (July 1956), pp. 232–38.
Clifton D. Bryant , Khaki‐Collar Crime, 1979.
Lawrence J. Morris , Our Mission, No Future: The Case for Closing the United States Army Disciplinary Barracks, Kansas Journal of Law and Public Policy, 6 (Fall 1996), pp. 77–98.
Gary Solis , Son Thang, an American War Crime, 1997.
Michael Noone
Justice, Military: Military Police Military forces have always assigned some personnel to ensure that order was maintained, stragglers or deserters were brought under control, and prisoners of war taken into custody. In the Revolutionary War, the Continental army in 1778 adopted British practice by creating a provost unit, but calling it by the French name, the Marechaussée Corps. From 1783 to 1861, however, the U.S. Army simply detailed regular troops to perform military police functions when necessary.The Civil War led to the creation of a massive if temporary system of provost marshals. The huge armies of citizen‐soldiers proved unruly in camp and field. Consequently, in 1861, the Union army established regimental provost marshals assisted by designated enlisted personnel to serve as a permanent police force, with the duties of preventing riotous conduct, controlling stragglers, and preventing looting and personal violence against civilians as the army advanced into the South. In March 1863, the army created a Provost Marshal Department, which, with congressional authorization, extended the role of the provost marshals from controlling undisciplined Union troops and guarding Confederate prisoners of war to including operation of the system of conscription even at the local level, as well as control of local government in occupied Southern states.
In World War I, a temporary Military Police Corps was created, with assigned soldiers wearing “MP” armbands. It garnered soldiers absent without leave (AWOL), guarded prisoners of war in France, and investigated desertion, draft evasion, and related military offenses, as well as policing military prisons and prisoner‐of‐war camps in the United States. In 1920, Congress refused a permanent MP corps, but authorized reserve MP units.
Similarly, for most of its history, the navy relied primarily upon temporary assignment of regular personnel to maintain order and discipline. The navy assigns sailors to duty as a shore patrol (with “SP” armbands) to prevent disorder between crew members on liberty and local civilians. Longer‐term security is provided by naval masters‐at‐arms or by Marines, who are assigned to guard naval “brigs” aboard ship or ashore.
With the United States mobilization for World War II, Secretary of War Henry L. Stimson, on 26 September 1941 authorized a Military Police Corps, and it has remained a permanent part of the U.S. Army ever since. Nearly 210,000 officers and enlisted personnel served in the army's MP Corps in 1941–45, and an MP school was established, first in Arlington, Virginia, and after the war in Fort McClellan, Alabama. During World War II and the wars in Korea, Vietnam, and the Persian Gulf, MPs secured movement in and out of theaters of operation, processed and guarded thousands of prisoners of war, and in war and peace provided protection for military facilities.
During the guerrilla‐style Vietnam War, MP units sometimes engaged directly with the enemy, securing lines of communication by preventing Viet Cong roadblocks, ambushes, and attacks on U.S. facilities. Such active participation in tactical operations led to the redesignation of the Military Police Corps as an arm and a service with a primary mission of combat support. In Kuwait during the Persian Gulf War, the MPs processed and secured nearly 70,000 Iraqi prisoners of war.
[See also Prisoners of War: Enemy POWs.]
Bibliography
Brent L. Richens and and Russell B. Shor , 18th Military Police Brigade, Three Years in Vietnam, Military Police Journal, 19 (September 1969); p. 5.
Mary R. Hines , Military Police Duties in the Federal Army, Military Police Journal, 11 (Summer 1984), p. 20.
Thomas J. Johnson and and Mary R. Himes , The Battle of the American Embassy, Military Police Journal, 11 (Summer 1984), p. 6.
U.S. Army Military Police School , Military Police Corps Regimental History, 1986.
John Whiteclay Chambers II
Justice, Military: Military Courts Military courts can be classified by the persons over whom they exercise their jurisdiction. Courts‐martial and military courts of inquiry are concerned with members of the armed forces. Military commissions and provost courts (operated by officers of the provost marshal general) exercise their power over civilians who, although not affiliated with the military, may face a military court in time of war or rebellion. In the early days of the republic, the distinction was not as clearly drawn. Winthrop's Military Law and Precedents remarks on the courts‐martial of civilians for collaboration with the traitor Benedict Arnold in 1780, for spying on New Orleans in 1815, and for inciting and supplying the Creek Indians in Florida in 1818.The same confusion attended courts of inquiry, authorized by the Articles of War, and considered to be quasi‐judicial boards of investigation; yet it was such a court, convened by Gen. George Washington, which recommended that Maj. John André of the British army be treated as a spy and executed. Courts of inquiry were common in the 19th century, when one was used to inquire into the conduct of Major Reno at the 1876 Battle of the Little Bighorn. However, they came to be replaced by less formal administrative boards. Still authorized by the Uniform Code of Military Justice, they have in recent years only been utilized by the U.S. Navy, for example, to deal with the losses of vessels such as the USS Scorpion, and in the Pueblo incident (1968).
Similarly, military commissions (established to try civilians for criminal offenses) and provost courts (intended to resolve civil disputes) are still authorized by the Uniform Code. When established in occupied territory and utilized to try cases involving local residents, these courts derive their authority from international law. Their authority over U.S. citizens was challenged in Ex parte Milligan (1866) and Duncan v. Kahanamoku (1946), in which majorities of the Supreme Court held that jurisdiction could not be exercised in areas where U.S. civil courts were open and functioning. However, in Ex parte Quirin (1942), a case involving Nazi saboteurs, a majority of the Court approved of a commission that tried alien enemies found in the United States. The Court similarly approved their use to try war crimes overseas, for example, in In re Yamashita (1946), which led to the execution of the Japanese general in charge of Manila in 1945.
Courts‐martial are the best known military courts. The 1775 Articles of War, following British practice, established three categories of such courts for the army: general, for the most serious offenses and for cases involving officers; regimental; and detachment or garrison courts. The so‐called inferior courts were limited in their jurisdiction to noncapital offenses, to offenders who were enlisted men (and, in the case of regimental courts, to enlisted personnel who were members of that unit), and by the kinds of punishment they could impose. The Naval Rules made no such distinction and relied on naval custom. Military law treatises uniformly state that courts‐martial were always composed of officers; had to consist of at least three members; and that there was no American equivalent of the English “Drum Head” court‐martial, where punishment was summarily imposed. However, Stephen Ambrose's account, in Undaunted Courage (1996), of the Lewis and Clark Expedition (1804–06) reports instances where enlisted men were appointed as the court‐martial to decide what punishment should be imposed on a fellow soldier, and one case in which the joint commanders appointed themselves as the court. The punishments imposed (typically flogging) were within statutory limits. The history of such informal courts remains to be written, as does the use of these courts to try prisoners of war (POWs). During World War II, seven German POWS in the United States were convicted of murder of fellow prisoners and were executed at the U.S. Disciplinary Barracks at Fort Leavenworth.
Nonjudicial punishment, permitted by naval custom (called in the navy, “Captain's Mast,” and in the Marine Corps, “Office Hours”), was prohibited in the army, whose statutes and regulations required a court‐martial composed of at least three officers. During the Civil War, single officer field officer's courts were permitted but ceased at the war's end. In 1890, the first single army summary courts were established by regulation; it was not until World War I and congressional passage of Article 104 that army commanders were permitted to impose minor punishments without trial. Even as army commanders' authority was thus enhanced, it was also curtailed by legislation which required that courts‐martial convictions be scrutinized by Boards of Review. With the passage of the Uniform Code of Military Justice (1950) that practice was extended to the air force, Coast Guard, the navy, and the Marine Corps. Board decisions could be reviewed by the Court of Military Appeals, subsequently renamed the U.S. Court of Appeals for the Armed Forces, as the boards became known as Military Courts of Appeal. Thus, for the past half century, the organization of courts‐martial has remained unchanged.
Bibliography
William C. Dehart , Observations on Military Law, and the Practice of Courts‐Martial, with a Summary of the Laws of Evidence, as Applicable to Military Trials; Adapted to the Laws, Regulations and Customs of the Army and Navy of the United States, 1846, reprinted in Vol. XVIII, Classics in Legal History, ed. Roy M. Mersky and J. Myron Jacobstein, 1973.
Edward M. Byrne , Military Law: A Handbook for the Navy and Marine Corps, 1970.
Richard Whittingham , Martial Justice: The Last Mass Execution in the United States, 1988; repr. 1997.
David J. Danecski , The Saboteurs Case, Journal of Supreme Court History (1996), pp. 61–82. The Army Lawyer: A History of the Judge Advocate General's Corps, 1993.
Michael Noone
Justice, Military: Military Punishment Few punishments were specified in the American Articles of War of 1775. The death penalty was limited to specified offenses—“nor shall any punishment be inflicted at the discretion of a court‐martial, other than degrading, cashiering, drumming out of the army, whipping not exceeding thirty‐nine lashes, fine not exceeding two months pay of the offender, imprisonment not exceeding one month.” The articles' naval counterpart similarly relied on custom rather than specifying punishments. The most noticeable characteristic of the “old” (pre–Civil War) army and navy is the fact that deterrence seems to have been punishment's only goal. This policy is exemplified by the navy's practice of summarily executing seamen who left their posts in battle. Because a jailed soldier or sailor was considered to be evading the hardships of military life, commanders relied on flogging as the punishment. The maximum number of lashes allowed to army courts‐martial was increased to 100 in the 1776 articles and then curtailed to 50 in 1806. In 1812, Congress eliminated flogging as a permitted punishment in the army, reinstated it for desertion in 1833, and finally abolished it in 1861.Flogging and “colting” (striking with a rope end) were the main punishments used in the navy. Naval regulations permitted up to 12 lashes as nonjudicial punishment; naval courts‐martial awarded 100 lashes for drunkenness and mutinous behavior. Branding with a hot iron or tattooing was permitted until Congress forbade the practice in 1872. Army records confirm the wearing of irons, placarding, gagging, standing on or wearing a barrel, and tarring and feathering. The navy imposed similar punishments after flogging was abolished by Congress in 1850 following a campaign waged by the author Herman Melville, who had served on the “hell ship” United States. Sweatboxes, dousing with bilge water, tricing to the rigging, or hanging from a boom were other naval punishments. Not all punishments were, to modern eyes, barbaric: dismissal or dishonorable discharge; demotion, fines, or forfeitures (the last from pay prospectively due); confinement; and, for officers, suspension from command or active command or active service were also permitted.
The military courts' discretion, in noncapital cases, to impose punishment was gradually curtailed. In 1855, when Congress established naval summary courts‐martial, limits on minor punishments—confinement and re‐duced rations—were included in the statute. In 1862, PresidentAbraham Lincoln issued a list of maximum pun ishments that could be imposed for various offenses, and in 1890, Congress ordered that, where an article provided that punishment would be left to the discretion of the court, the punishment could not exceed that directed by the president.
The army and navy codes limited the death penalty to specified offenses, or those made capital by local state law, and required a higher percentage of the court members to agree on the sentence than was required for lesser punishments. Statutes required presidential approval of the penalty if it had been imposed by a court‐martial within the United States; when, in 1849, Commodore Thomas Jones of the Pacific Squadron permitted the hanging of two mutineers in California, he was court‐martialed and received five years' suspension from duty. Nineteenth‐century army tradition dictated that capital military offenses, with the exception of desertion, be punished by shooting, while hanging was dictated for civilian capital crimes, or for desertion or spying. Naval tradition called for hanging from the fore yardarm of the vessel. The 1917 Texas Mutiny Cases, in which black American soldiers were hastily hanged after their court‐martial, led to a revision of the 1916 Articles of War, as the World War II execution of Private Eddy Slovik after the Battle of the Bulge led to postwar reform efforts, although the death penalty is still permitted by the Uniform Code of Military Justice.
After 1916, the army articles, unlike those of the navy, required a Board of Review if the sentence included the death penalty or dismissal of an officer (which required presidential approval in the navy) or dishonorable discharge (there was no similar provision in the navy). However, in the post–World War II period, when manpower requirements exceeded enlistments, prisoner rehabilitation units were established in each of the armed services. With the advent of the All‐Volunteer Force in 1973 and its higher standards of pay and performance, such units were disbanded.
Bibliography
John S. Hare , Military Punishments in the War of 1812, Journal of American Military History, 4 (Winter 1940), pp. 225–29.
Leo F.S. Horan , Flogging in the United States Navy, Unfamiliar Facts Regarding Its Origins and Abolition, United States Naval Institute Proceedings, 76 (1950), pp. 969–75.
Frederick B. Wiener , Crime and Justice in the Days of Empire, History, Numbers, and War, 2 (1980), pp. 23–28.
Robert I. Alotta , Civil War Justice, Union Army Executions Under Lincoln, 1989.
Mark A. Vargas , The Military Justice System and the Use of Illegal Punishments as Causes of Desertion in the U.S. Army, 1821–1835, Journal of Military History, vol. 55, no. 1 (1991), pp. 1–19.
Michael Noone
Justice, Military: Military Prisons For short‐term confinement for purposes of discipline or criminal proceedings involving their own military personnel (prisoners of war fall into a separate category), the armed forces have used various temporary and long‐term facilities. Temporary arrangements range from the U.S. Navy's brigs (restraining cells aboard ship or guardhouses ashore) to the U.S. Army's stockades at particular posts or camps or holding cells in nineteenth‐century fortresses. Some of the short‐term facilities were subsequently expanded for long‐term use. The navy established prisons at Portsmouth, New Hampshire, and later on Treasure Island near San Francisco. The army long maintained a prison at Fortress Monroe, Virginia. Most famously, the army created a prison on Alcatraz Island in San Francisco Bay, where a wooden stockade added to the fort there in 1861 was replaced by a modern concrete cell block in 1909. In 1934, the military prison on Alcatraz became a federal civil penitentiary (nicknamed “the Rock”), which it remained until closed in 1963.The first federal military prison was the U.S. Military Prison, established at Fort Leavenworth, Kansas, in 1875, in response to complaints of varied and often harsh treatment of military prisoners at post stockades and state penitentiaries. In 1873, Congress had approved a military prison, but directed that it be constructed near the federal arsenal at Rock Island, Illinois, to employ prison labor. After the Ordnance Department and the secretary of war protested that prisoners could not be trusted to work with munitions, Congress passed an 1874 amendment to locate the prison at Fort Leavenworth, a military post dating from 1827.
The Leavenworth facility, about twenty miles from Kansas City, later also served as a federal prison for civil offenders. In 1895, it was transferred to the U.S. Department of Justice, but returned in 1906 to the army and renamed in 1915, the U.S. Disciplinary Barracks. During World War I, a number of conscientious objectors were confined there along with uniformed personnel. In 1929, the facility was again transferred to the Department of Justice and designated the Leavenworth Penitentiary Branch.
In November 1940, it was returned to the army and redesignated the U.S. Disciplinary Barracks. Since then, it has been operated by the army. Today, it is the only long‐term maximum security facility operated by the Department of Defense, and includes inmates from each of the armed services.
Although the maximum housing capacity is 1,500, the average population in the 1990s was 1,350 inmates. These men and women, officers and enlisted personnel, were serving terms from a few years to life imprisonment; half a dozen were serving death sentences. The average sentence length is fourteen years; most inmates were first‐time offenders.
In the 1990s, approximately three‐quarters of the inmates at the U.S. Disciplinary Barracks were confined for crimes against persons—from assault to murder. Nearly half were convicted of sexually related offenses. Slightly more than 10 percent also involved drug‐related offenses. Another 10 percent had committed property crimes. In the 1990s, only 1 percent of inmates were confined for strictly military‐related offenses. Nearly 96 percent were sentenced to punitive discharge. In addition to the military prison, a civil prison, the U.S. Penitentiary, Leavenworth, is also located on the grounds of Fort Leavenworth.
[See also Conscientious Objection; Justice, Military: Military Crimes; Justice, Military: Military Police.]
Bibliography
United States Disciplinary Barracks: Fort Leavenworth, Kansas, n.d.
John Whiteclay Chambers II
Military Law
Military Law
Military law, in the sense of a distinctive body of law relating to the armed forces and their activities, is probably as old as law and war themselves, which is to say about as old as organized human polities. The term embraces the codes that govern the members of a nation’s armed forces (military justice), the relationship of the military to the civilian community (martial law or military government), and the conduct of belligerents in time of war (the law of war). In all of these areas the military, independently of civilian magistrates, may exercise some degree of jurisdiction, conferred by domestic legislation or international law or a combination of the two.
Military justice
It may be surmised that pre-Roman military codes amounted to little more than the complete subjection of the soldier to the will of the commander, the deprivation of whatever right to due process he might otherwise have had as a citizen. This was certainly the basic principle of Roman military law; the field commander and his delegates were empowered to inflict any punishment for any offense, military or civilian. The common military offenses were in general akin to those proscribed by modern codes—desertion, cowardice, insubordination, and the like. As was the case with most military codes until comparatively recent times, punishment was swift, severe, and often brutal. Corporal and capital punishment were very freely inflicted (in part, no doubt, because imprisonment was not available as an alternative), and resort was occasionally had to decimation and other punitive measures that have long been obsolete. Other Roman military penalties, such as ignominious expulsion, reduction in rank, and forfeiture of pay, are still standard features of military justice.
Medieval military justice was as simple and crude as medieval tactics and logistics: Richard I’s Ordinance of 1190, intended to deter theft and fighting among his Crusaders, is probably a representative specimen. It provided, inter alia: “Whoever shall slay a man on shipboard, he shall be bound to the dead man and thrown into the sea. If he shall slay him on land, he shall be bound to the dead man and buried in the earth.” Procedural provisions were entirely lacking; the court-martial, as a distinct tribunal, had not yet evolved. It probably traces its ancestry to the court of chivalry of the later Middle Ages. In late medieval and Renaissance times, there appeared in western Europe more elaborate and sophisticated military codes, in part derived from Roman precedents and in part based on the laws and customs of the Franks and other German nations. The best-known of these is the Constitutio Criminalis Carolina, promulgated by the Emperor Charles v in 1532, which served as a model for a number of other European codes. One of these was the Articles of War of Gustavus Adolphus, dated 1621, which was translated into English shortly before the English Civil War and may fairly be described as the direct ancestor of modern British and American articles of war, to which the following description is chiefly directed. The military codes of many other nations are, however, derived from, or strongly influenced by, the Anglo-American model, and even those which are based on other sources and traditions have many points of generic resemblance.
The basic reasons for the existence of a separate system of military justice may be summarized as (1) the need for swift and summary machinery for the maintenance of discipline; (2) the fact that the adjudication of military crimes may require military expertise by the court; and (3) the fact that the armed forces may be stationed abroad, outside the jurisdiction of their country’s civil courts. The English Articles of War, from Richard I’s Ordinance to James n’s detailed Articles of 1688, were wholly exercises of the crown’s prerogative, having no parliamentary sanction and, in time of peace, no lawful application in domestic territory. Military crimes, military punishments, and military courts had no place in the common law; in Macaulay’s words, “A soldier, therefore, by knocking down his colonel, incurred only the ordinary penalties of assault and battery, and by refusing to obey orders, by sleeping on guard, or by deserting his colours, incurred no penalty at all” ([1849-1861] 1953, vol. 1, p. 222). Given the necessity of a standing army, such a situation was intolerable. Parliament dealt with it by the Mutiny Act of 1689, which permitted courts-martial to punish mutiny, sedition, or desertion by death or such lesser penalty as the court might adjudge. For nearly two centuries, the Articles of War, applicable only to troops stationed abroad, and the Mutiny Act, annually re-enacted, existed side by side. Not until 1881 were the two jurisdictions fused.
No such dichotomy exists in the history of the American Articles of War, which have always been statutory. Congress enacted the original articles, largely borrowed from the British, in 1775. Since the adoption of the constitution their enactment has been an exercise of Congress’ power (art. i, sec. 8) “to make Rules for the Government and Regulation of the land and naval Forces.” There have been several revisions, mostly with war in prospect or its lessons in retrospect. The principal ones are those of 1776, 1786, 1806, 1874, 1916, and 1920. In 1950 the Articles of War and the Articles for the Government of the Navy (basically similar, although differing in a number of details) were superseded by the Uniform Code of Military Justice, which applies alike to the army, navy, and air force. Like its predecessors, the Uniform Code specifies the persons who are amenable to military jurisdiction, defines offenses, prescribes punishments, and establishes trial and appellate procedure for courts-martial.
Jurisdiction over persons
Courts-martial of the United States, like those of most nations, exercise criminal jurisdiction primarily over members of the armed forces on active duty, including cadets and midshipmen, in both peace and war. The U.S. code followed previous articles in subjecting to military law civilians accompanying or serving with the armed forces, such as dependents of military personnel and civilian employees, in time of war or outside the United States. Similarly the code attempted to deal with a serious problem that developed during and after World War II: it provided for the court-martial of discharged servicemen for serious offenses committed while the accused was subject to military law, offenses which could not be tried in an American court—for example, a murder committed in a foreign country. In a series of major decisions between 1955 and 1960, however, the Supreme Court held that Congress could not constitutionally subject to military jurisdiction either an honorably discharged serviceman who had severed all connection with the military or, in time of peace, any civilian. Whether such jurisdiction may be exercised in time of war and whether it is constitutional in regard to certain categories of quasi civilians (such as retired regulars, some reservists, and dishonorably discharged prisoners in military custody) must, in the light of these decisions, be regarded as open to question. In time of war, courts-martial are empowered to try “any person” for aiding the enemy or espionage; the same constitutional question might, however, be raised if the act took place in the United States and particularly if the accused were an American citizen.
Military jurisdiction is not exclusive. If an offense committed by a soldier is denounced by both the code and state or federal law, he may be tried by either a court-martial or a civilian court. Moreover, since the constitutional prohibition against double jeopardy bans only a second trial by the same sovereign for the same offense, he may be tried by both a court-martial and a state court or (if the act embraces two distinct offenses—for example, the civilian offense of assault and the military offense of striking a superior officer) by both a federal court and a court-martial. As a general rule, however, the policy of the military, in peacetime and within the United States, is to leave to civilian justice a soldier who commits a civilian offense that does not directly affect the military. Soldiers stationed in friendly foreign countries are likewise subject to the jurisdiction of both courts-martial and the local civilian courts, although in the absence of agreement between the two sovereigns the jurisdiction of the host country is primary. In practice, the matter has been regulated by so-called status-of-forces agreements, which usually give American courts-martial primary jurisdiction over purely military offenses and other offenses not involving citizens, property, or other interests of the host nation.
Jurisdiction over offenses
Courts-martial have, of course, long had jurisdiction over the traditional military offenses, such as desertion, absence without leave, mutiny, insubordination, disobedience, misbehavior before the enemy, drunkenness on duty, and a few whose interest is largely antiquarian, such as improper use of a parole or countersign, forcing a safeguard, and dueling. In 1916 American courts-martial were given jurisdiction in both war and peace over virtually all the common law crimes except the capital offenses of rape and murder committed in the United States in peacetime. The Uniform Code made even these offenses triable by court-martial. But court-martial jurisdiction of offenses is in reality still broader, for the “general article,” which has no real analogue in civilian penal codes, covers “crimes and offenses not capital,” which means acts that are not specifically covered by other articles of the code but are made criminal by other federal laws. Still more broadly, it denounces “disorders and neglects to the prejudice of good order and discipline in the armed forces” and “conduct of a nature to bring discredit upon the armed forces.” The military authorities have traditionally been accorded broad, although not unlimited, discretion in giving content to these vague phrases; in practice almost any violation of the law of a state or foreign country can be fitted into one or the other category—or in the case of officers, cadets, and midshipmen, into “conduct unbecoming an officer and a gentleman.”.
Punishments
Courts-martial may impose a number of distinctively military punishments, such as dishonorable or bad-conduct discharge, reduction in rank or grade, forfeiture of pay, and reprimand. They may also impose sentences of death, imprisonment, and fine. In time of peace the death penalty is limited to mutiny, sedition, murder, and rape. In wartime, since the maintenance of discipline by deterrence is still the prime object of military justice, death may be inflicted for a number of military offenses, of which the chief are desertion, assaulting or willfully disobeying a superior officer, misbehavior before the enemy, aiding the enemy, and espionage; for the latter offense, the death sentence is mandatory. (It should be remarked, however, that during and since World War ii there appears to have been only one case, involving a second desertion, in which an American soldier was actually executed for a military offense.) These punishments may be, and commonly are, combined in a single sentence, for example, dishonorable discharge, forfeiture of pay, and confinement at hard labor for a term of years.
General courts-martial may impose any authorized penalty. Special courts-martial are in substance limited to bad-conduct discharges and six months’ imprisonment, and summary courts, to a month’s confinement, plus corresponding forfeiture of pay. Although a court-martial may not inflict the death sentence unless explicitly authorized by the code itself, Congress has placed all lesser sentences within the court’s discretion; in strict theory a soldier might be sentenced to life imprisonment for addressing rude language to his sergeant. The president, however, is empowered to prescribe maximum punishments for those offenses for which Congress has set no mandatory punishment—i.e., all save espionage (death) and premeditated or felony murder (death or life imprisonment). The “Table of Maximum Punishments,” contained in the Manual for Courts-Martial, places limits that approximate civilian norms on the penalties for specific crimes. Corporal punishments, notably flogging and branding, which were a distinctive feature of military justice until well into the nineteenth century, have long been expressly prohibited, as has “any other cruel or unusual punishment.”.
The military authorities maintain their own prison system—in the case of the army, post stockades (for minor offenders) and disciplinary barracks—for those military convicts who are judged capable of rehabilitation and ultimate restoration to duty; others serve their confinement in federal reformatories and penitentiaries. If the authorities conclude that salvage is feasible, the execution of a punitive discharge will normally be suspended and ultimately, if the prisoner behaves himself, remitted.
Procedure
The Uniform Code regulates in detail the appointment, composition, jurisdiction, procedure, and appellate review of courts-martial. Authority to convene a general court-martial is normally given only to a commander of a division, a task force, or a comparable unit; a special court-martial may be convened by the commander of a regiment or of a naval vessel; and summary courts-martial, by commanders of detached companies. (Authority to convene a general or special court includes authority to convene the inferior types.) A general court consists of not fewer than five members plus a law officer; a special court, of not fewer than three members; and a summary court, of a single officer. Prior to the enactment of the Uniform Code, members of a court-martial were required to be commissioned officers, but an accused enlisted man may now request that a minimum of one-third of the members be enlisted men—a privilege rarely exercised in practice.
Traditionally the procedure of military courts has been swifter and more summary than that of civilian criminal courts; according to Macaulay again “a summary jurisdiction of terrible extent must, in camps, be entrusted to rude tribunals composed of men of the sword” ([1849-1861] 1953, vol. 2, p. 414). This splendid rhetoric is not applicable to the Uniform Code, whose protection of the rights of the accused is so extensive that some critics fear that it would be unworkable in time of war. Although the procedure of a court-martial differs in many respects from that of a civil court, an accused has—at least in a general court-martial—virtually all the substantial protections that he would have in a civil proceeding and even some that he might not have in many civil courts. The functions of the law officer—who must be a lawyer and is usually a member of the judge advocate general’s corps, hence a specialist in military law—are roughly analogous to the functions of a trial judge; and the functions of the courtmartial members, to those of the jury; the principal difference is that the members not only deter-mine guilt or innocence but also assess the sentence. The rules of evidence are approximately the same as in a criminal trial in a federal court. The Uniform Code, like the bill of rights, prohibits compulsory self-incrimination, double jeopardy, and cruel or unusual punishments; the charges must be investigated before the accused is arraigned; he must be apprised of the charges against him; he is entitled to counsel of his choice and to compulsory process to obtain defense witnesses. His counsel must be a qualified lawyer, at least in a trial before a general court-martial, and pressure upon courts by commanders is forbidden—although it is not always easy to eradicate such influence. The principal differences are that the military accused is not entitled to bail and that he may be convicted and sentenced by vote of two-thirds of the members, although unanimity is required for a death sentence.
Appellate review under the code is probably more extensive than is common in civilian practice. All findings and sentences (other than acquittals) must be approved by the authority who convened the court-martial, after review of the record for legal sufficiency by his staff judge advocate. The convening authority may order a rehearing, or order the charges dismissed, or modify or remit the sentence in the exercise of clemency. Sentences that, as approved, include death, a punitive discharge, or confinement for a year or more are referred to board of review (whose members must be lawyers) in the office of the judge advocate general of the service concerned. Death sentences or sentences involving general or flag officers require presidential approval; the dismissal of a commissioned officer requires the approval of the secretary or an assistant secretary of the department. At the top of the military appellate structure is the Court of Military Appeals, whose creation was the major innovation of the Uniform Code. Considering that the armed forces include some two million men, most of them in the age brackets in which crime is most frequent, it is perhaps the most important court of criminal appeal in the United States. Its three judges, who must be lawyers, are appointed by the president “from civilian life” and have no connection with the military establishment. They must review all death sentences and any cases certified to them by the judge advocate general of any of the services and may grant review of any case passed upon by a board of review. Their jurisdiction is otherwise essentially like that of a civilian appellate court, including power to set aside any conviction in which they find errors of law or insufficient evidence. Since its inception, the court has proved to be no rubber stamp. It has developed and applied a concept of “military due process,” derived from both the code and the constitution and much influenced by the Supreme Court’s holdings on constitutional due process. Experience so far indicates that a court-martial in which there has been substantial unfairness is unlikely to survive review by the Court of Military Appeals—although it should be recalled that its powers of review are in effect limited to fairly serious cases, those involving punitive discharges or confinement for a year or more. It is probable that many inferior courts-martial are still somewhat summary in operation, as are many inferior civilian criminal courts.
Although there can be no direct appeal to a civilian court from the decisions of the military reviewing authorities, there may be Collateral review of the court-martial’s jurisdiction by such proceedings as petition for a writ of habeas corpus in a federal district court or suit for pay in the Court of Claims.
Military nonjudicial or “disciplinary” punishments may be imposed by commanding officers without trial for offenses not deemed sufficiently serious to require reference to a court-martial. Depending on the rank of the commander and the offender, such punishments may include forfeitures, reduction in grade (of enlisted men), and comparatively short periods of additional fatigues or confinement. While the accused can always demand trial by court-martial, he is usually well-advised to accept company punishment in lieu thereof. Since punishments equivalent to (and in some cases slightly greater than) those within the competence of a summary court-martial may be imposed under the code’s article on disciplinary punishment, the summary court has become more or less obsolete.
Martial law
The term “martial law” describes the exercise of military force to preserve order and insure the public safety in domestic territory in a time of emergency, when the civilian authorities are unable to deal with the situation. In one form or another, under such names as “state of siege” or “state of emergency,” the concept is found in every country. In some countries it is almost the normal type of government. In Anglo-American law, its only proper purpose is to restore order with a view to the restoration of civilian government, and the degree to which the military may properly assume governmental functions depends entirely on the needs of the situation. In its mildest form martial law may amount to no more than the employment of troops, in aid of and under the direction of the civil authorities, to supplement the regular police in the control of riots and other public disorders and the enforcement of the law, as was done in connection with integration of the schools in Arkansas and Mississippi. At the other extreme, if the emergency is great enough, such as actual or imminent invasion, the military authorities may assume all the functions of government, including the legislative and judicial. In such a situation statutes and even the constitution may be suspended and replaced by ordinances of the military commander, and the civilian courts superseded by military tribunals. Such courts, although they bear a generic resemblance to courts-martial, are not bound to follow the same procedure, but may employ whatever rules are called for by the needs of the emergency. The best-known example of such a situation in recent American history is the declaration of martial law in Hawaii immediately after the Japanese attack on Pearl Harbor.
Martial law is nowhere explicitly mentioned in the constitution but is simply an inherent attribute of sovereignty, the right of every government to take whatever steps are necessary for its own preservation. As such it is a part, although an extraordinary part, of the common law. Although the constitution does not explicitly either authorize or limit the executive’s invocation of martial law, it is now well established that there are constitutional checks upon the exercise of this power. To the extent that the measures of martial law encroach upon the citizen’s rights under state and federal constitutions, the civil courts have jurisdiction to determine whether the measures taken are in fact commensurate with the emergency and to annul them to the extent that they are more drastic than the court deems requisite. Although the courts are usually disposed to give considerable weight to the executive’s judgment of the crisis, there are numerous cases in which they have found martial law measures to be unjustified. Most such cases have involved the governors of states (some of whom have been tempted to use martial law whenever a political goal could not be achieved by lawful methods), but the Supreme Court has on occasion applied the same test to the exercise of war power by the president and Congress. One famous instance is Ex parte Milligan (71 U.S. 2, 1867), decided shortly after the Civil War, in which the Supreme Court freed a Copperhead leader who had been sentenced to death by a military commission in Union territory at a time when the civil courts were open and functioning normally. Another is Ex parte Endo (323 U.S. 283, 1944), in which the court, having previously upheld most of the restrictive measures applied to American citizens of Japanese descent in World War n, finally concluded that certain relocation measures, involving drastic interference with normal constitutional rights, could not be justified by military need.
Military government
Military government is a belligerent’s exercise, through its armed forces, of governmental powers in the conquered and occupied territory of another nation. It presupposes actual, effective physical control of the territory in question and ability to impose on its inhabitants the will of the military commander.
International law recognizes the occupant’s right to govern the conquered territory, but it also imposes restrictions on the exercise of this right. The principal limitations are embodied in the Hague Convention of 1907 and the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War. Essentially, the occupant is required to preserve public order and to respect the laws in force “unless absolutely prevented”—a phrase of ambiguous content, which occupying powers have traditionally construed extremely broadly. The persons and property of inhabitants of the occupied territory are accorded some basic protections. Such aspects of former military occupations as pillage and the taking of hostages are forbidden. While the occupant may impose taxes and levy contributions for the needs of the occupying forces, he is bound also to defray the usual costs of government in the occupied territory. He may promulgate such ordinances as are reasonably necessary to protect his forces and govern the territory and may try violations thereof in his military government courts. Such trials must meet elemental standards of fairness, such as giving the accused the right to counsel and an interpreter and the right to call witnesses. Military government courts may supersede the indigenous courts and, to the extent authorized by the military governor, exercise criminal and civil jurisdiction over all persons in the occupied territory, including citizens of the occupying power and even members of its forces. In practice, matters which do not affect the interests of the occupant, its forces, or its nationals are usually left to the local courts—if they are open and can be trusted not to discriminate against persons friendly to the occupant.
The difficulty lies in the enforcement of the rules designed to protect the inhabitants of occupied areas. It is common knowledge that in World War n, German, Japanese, and Russian occupations of conquered territory were marked by atrocities on an enormous scale. Such violations can, of course, be punished as are other violations of the law of war, discussed below, but for the duration of hostilities the degree of the occupant’s compliance with the rules of international law regarding belligerent occupation must depend on his conscience and his estimate of the likelihood of retribution.
In normal circumstances an occupation endures until it is ended by the expulsion of the occupying forces, the annexation of the territory by a victorious belligerent, or the conclusion of a treaty of peace. The abnormally prolonged occupation of Berlin after World War n results simply from the inability of the victorious allies to agree on a peace treaty or any other method of bringing the occupation to an end. Upon the termination of the occupation and the return of the legitimate sovereign there are always difficult questions concerning the extent to which the restored courts and other authorities of the occupied nation should treat as valid the executive, legislative, and judicial acts of the occupant—the so-called problem of postliminium. In principle, those acts of the occupant which were within its lawful powers ought to be accorded as full force and effect by the returning sovereign as they would be if done under its own authority. In practice this has usually been done only with respect to routine governmental acts, such as the collection of normal taxes and the punishment of common crimes. Where an occupant has inflicted punishments, such as fines and imprisonment, for acts directed against the occupying forces, the returning sovereign can hardly be expected to give them effect—unless it has by treaty obligated itself to do so, as the Federal Republic of Germany did when the Western allies terminated their occupation of its territory.
Historically the powers of the United States as a military occupant have been exercised by the president as commander-in-chief of the armed forces, usually through the highest military commander in the occupied territory as the military governor thereof, but occasionally (as in Germany after 1949) through civilian officials. Congress has never attempted to control the president’s discretion, and it is doubtful that it could constitutionally do so. Also uncertain is the extent, if any, to which the bill of rights and other parts of the constitution apply to the acts of American military government in foreign territory. The Supreme Court held in 1900 that the constitution had no application to a criminal trial in occupied Cuba, even though the accused was an American citizen. This must still be regarded as the orthodox view, although in recent years some members of the court have suggested that the powers of American military authorities in occupied territory are subject to the more basic provisions of the bill of rights.
It may be that the legal problems of military government are likely to be less important in the future than they have been in the past. They can be circumvented by the establishment of a friendly, or even a puppet, indigenous government and the recognition of that government as the legitimate sovereign. What would otherwise be occupation forces thus become merely visiting forces in the territory of a friendly power. The Soviet Union, although it did not invent the technique, brought it to a high degree of perfection after World War n, and the lesson has not been lost on other powers.
The law of war
The law of war comprises that branch of international law which governs the rights and obligations of belligerents. Its basic object is to protect combatants and noncombatants from unnecessary suffering and to safeguard the fundamental human rights of the victims of war, such as prisoners of war, the wounded and sick, and civilians, including the inhabitants of occupied territory. Its basic problem is to reconcile that policy with military necessity.
Belligerents in ancient times seem to have recognized few, if any, rules; the attitude of the Greeks and Romans is accurately summarized in Cicero’s maxim, Silent enim leges inter arma (“When men fight, laws have no voice”). Customary limitations upon the conqueror’s freedom to massacre, enslave, and loot began to evolve in the Middle Ages and to take coherent form in the sixteenth and seventeenth centuries, as exemplified by the writings of Hugo Grotius. The first really important and influential attempt to codify the rules recognized by the consensus of civilized nations was probably Francis Lieber’s “Instructions for the Government of the Armies of the United States in the Field,” drafted at President Lincoln’s request and promulgated as a general order of the War Department in 1863. Lieber’s “Instructions” were followed by a number of similar unilateral declarations by Italy, Russia, France, and other countries. The Brussels Conference of 1874 marked the beginning of an effort to embody the customary laws of war in international treaties, an effort which ultimately led to the Hague conventions of 1899 and 1907. The Hague conventions, still a basic source for the laws of war, have been supplemented by a number of other major treaties to which practically all of the great powers have acceded (sometimes with particular reservations). The most important of these are the Geneva Conventions of 1949 relating to the wounded and sick, prisoners of war, and the protection of civilians in time of war.
The law of war as established by custom and treaty, to the extent that it is observed and enforced, is calculated to mitigate the hardships of conventional war. Enforcement, however, is entirely unilateral. There is as yet no permanent international tribunal with jurisdiction to punish war crimes. The Nuremberg and Tokyo international tribunals, which tried violations of the laws of war committed by the German and Japanese defendants, were created ad hoc. If a belligerent is guilty of war crimes, the nation aggrieved may resort to protest and ultimately to reprisals in kind. The law of war may also be enforced by the punishment of captured violators. The Geneva Conventions of 1949 obligate each signatory to search out and try in its own courts persons guilty of “grave breaches” thereof, a provision which is essentially a declaration of the prior customary law. In theory, jurisdiction to try war crimes is universal—that is, any nation having physical custody of a war criminal may try and punish him. In practice, nations have not typically displayed much diligence or zeal in trying war criminals of their own nationality. Neither have they typically been concerned to punish violations which did not directly affect their own interests. The post-World War n trials of some German war criminals in the courts of the Federal Republic of Germany, although many criminals have gone unpunished and others have received sentences hardly commensurate with the enormity of the crimes, probably constitute the outstanding example of a nation punishing its own war criminals. In most of the cases in which war criminals have actually been tried and punished, the trials have taken place in the courts of a victorious enemy. Typically such jurisdiction is exercised by military tribunals; this has always been the practice of the United States. After World War ii the United States tried before military commissions—tribunals akin to courts-martial but not bound by such rigid rules of procedure and evidence—many Germans and Japanese charged with offenses against prisoners of war or civilian nationals of the United States and its allies. The jurisdiction of military commissions to try such offenses was upheld by the Supreme Court in Ex parte Quirin (317 U.S. 1, 1942), the case of nine saboteurs landed in Long Island and Florida by German submarines in 1942, and In re Yamashita (327 U.S. 1, 1946), which concerned the trial of the commanding general of Japanese forces in the Philippines. Under the Geneva Conventions of 1949, persons accused of war crimes are, however, afforded basic guarantees of a fair trial.
The laws of war as they now stand are open to the criticism that they do not deal with the realities of present-day wars. The use of nuclear weapons is not prohibited, and the Geneva Conventions could hardly do much to soften the impact of a hydrogen bomb. On the other hand, nonnuclear belligerency at the present time is likely to take the form of subversion, insurrection, and guerrilla warfare, covertly instigated and supported by nations that are not officially belligerents. The laws of war, being part of international law, are difficult to apply to domestic insurrection, short of a full-fledged civil war in which the parties are accorded belligerent status by other nations. Guerrillas, who wear no uniforms, do not carry arms openly, and usually do not obey the laws of war themselves, are not regarded as entitled to the benefit of those laws. In theory at least, every such guerrilla is an unlawful combatant, a war criminal, if not simply a violator of the laws of the recognized sovereign of the territory. However, article 3 of each of the Geneva Conventions of 1949 does apply to “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties,” and it does prescribe minimum human rights for persons involved in such insurrections by prohibiting, for example, murder, torture or other cruel treatment, and execution without fair trial.
Joseph W. Bishop, Jr.
[See alsoInternational Law; Legal Systems; Military.]
BIBLIOGRAPHY
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Military Law
MILITARY LAW
The body of laws, rules, and regulations that have been developed to meet the needs of the military. It encompasses service in the military, the constitutional rights of service members, the military criminal justice system, and theinternational lawof armed conflict.
The Framers of the Constitution vigorously debated the necessity and advisability of a standing army. Federalists such as alexander hamilton and james madison argued that a standing army was needed for the maintenance of a unified defense. Others, like thomas jefferson and george mason, were fearful of instituting a military establishment that could be an instrument of governmental abuse. They argued that the Constitution should prohibit, or at least limit, the size of the armed forces. The opposing sides compromised by approving a standing army but limiting appropriations for its support to two-year terms, thereby imposing a continual check on the military's activities.
The authority of the government to maintain a military and to develop rules and regulations governing it is found in Article I, Section 8, of the Constitution, which grants Congress the power to provide for the common defense and to raise and support armed forces.
The U.S. Supreme Court confirmed the legality of the standing army in ex parte milligan, 71 U.S.(4 Wall.) 2, 18 L. Ed. 281 (1866). It held that the Constitution allows Congress to enact rules and regulations to punish any member of the military when he or she commits a crime, in times of war or peace and in any location. The Court further confirmed the constitutionality of martial law in situations where ordinary law is insufficient to secure public safety and private rights.
Service in the Military
Congress's duty to provide for the national defense is carried out through four basic routes into military service: enlistment, activation of reservists, conscription, and appointment as an officer.
Typically, military enlistment entails a six-year service obligation, usually divided between active and reserve duty. Enlistees agree to abide by the provisions of the uniform code of military justice, (UCMJ) obey lawful orders, serve in combat as required, and accept any changes in status or benefits brought about by war or statutory amendments. In return, the military branch agrees to provide the enlistee with compensation and to honor promises concerning assignment, education, compensation, and support of dependents.
Enlistment is open to persons who are at least 17 years old and who enter into the enlistment agreement voluntarily. It is not available to declared homosexuals (although the military may not inquire as to sexual orientation) or to unmarried parents of children under 18 years of age. Enlistees are required to sign the enlistment agreement and, in most cases, to take the oath of allegiance.
Enlistment in the armed forces creates both a contractual obligation and a change in the recruit's legal status. (See United States v. Grimley, 137 U.S. 147, 11 S. Ct. 54, 34 L. Ed. 636 [1890].) Although personal service contracts are generally not enforceable, the courts recognize the special legal status of military enlistees and have required those who breach the enlistment contract to remain in the service or serve a prison term. However, after the institution of the all-volunteer military during the 1970s and 1980s, the courts relied more on traditional contract law when ruling on breach-of-enlistment suits. (See Woodrick v. Hungerford, 800 F.2d 1413 [5th Cir. 1986], cert. denied, 481 U.S. 1036, 107 S. Ct. 1972, 95 L. Ed. 2d 812 [1987], and Cinciarelli v. Carter, 662 F.2d 73, 213 U.S. App. D.C. 228 [D.C. Cir. 1981], where the courts applied contract law principles and found that the enlistments in question were void or voidable.)
Reservists or national guard members are civilians who are subject to active service to execute laws, suppress insurrections, and repel invasions. Several suits by state governors have challenged congressional power to call up reservists. In Perpich v. Department of Defense, 496 U.S. 334, 110 S. Ct. 2418, 110 L. Ed. 2d 312 (1990), a suit by Minnesota's governor challenging Congress's authority to call reservists to active duty, the U.S. Supreme Court confirmed that the reserve system, under which members serve in both the state National Guard and the federal National Guard, is a necessary and proper exercise of Congress's power to raise and support armies.
Conscription, also known as the draft, is another route by which individuals are inducted into military service. The draft was the primary means of filling the ranks of the military from world war i through world war ii, the korean war, and the vietnam war. Although many cases challenged the constitutionality of conscription, the U.S. Supreme Court has consistently held that Congress's power to conscript Americans for military service is "beyond question." (See United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 [1968].) Deferments and exemptions from the draft were granted for certain physical, mental, and religious reasons, or where induction would cause an undue hardship on the draftee or the draftee's family. The draft was abolished in 1972.
The final method of entry into the military is through appointment as an officer. Officer appointments are governed by the Appointments Clause of the Constitution (Art. II, Sec. 2, Cl. 2). Officers are appointed to a rank within a specific branch of the service.
Most military personnel serve their entire tour of duty and are discharged without any complications. An honorable discharge must be issued when a service member's record reflects acceptable military conduct and performance of duty (32 C.F.R. pt. 41, app. A). An honorable discharge cannot be denied without due process of law. (See United States ex rel. Roberson v. Keating, 121 F. Supp. 477 [N.D. Ill. 1949].) A general discharge under honorable conditions may be issued when the service member's record does not warrant an honorable discharge because of ineptitude, defective attitude, or apathy (32 C.F.R. pt. 41, app. A).
A discharge under other than honorable conditions may be issued under certain circumstances indicating that a service member's behavior is inconsistent with conduct expected of military personnel (32 C.F.R. pt. 41, app. A, pt. 2). In most cases, the service member must be notified and given an opportunity to request review of the discharge by an administrative review board.
Bad-conduct and dishonorable discharges are punitive discharges that may be issued only after a full court-martial. Each results in loss of veterans' benefits and, in some cases, loss of civil rights.
In addition to discharges, separations from military service may be accomplished through administrative proceedings (10 U.S.C.A. § 1169). The Department of Defense outlines the reasons, guidelines, and procedures for administrative separation (32 C.F.R. pt. 41, app. A). Administrative separation may be allowed to permit a service member to pursue educational opportunities or to accept public office; to alleviate hardship or dependency; to accommodate the demands of pregnancy or parenthood; to address religious concerns or conscientious objections; or to address physical and mental conditions that interfere with an assignment or the performance of duty.
Administrative separation may be initiated when a service member is found to have engaged in homosexual conduct. The National Defense Authorization Act for Fiscal Year 1994, Pub. L. No. 103-160, Nov. 30, 1993, 107 Stat. 1547, states,"The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability." The courts have consistently upheld the congressional prerogative to discharge homosexuals from the military.
During the 1980s, the military discharged service members for homosexual orientation as well as homosexual conduct. In 1993, President bill clinton attempted to change the military's policy of discharging gays and lesbians because of their sexual orientation. He struck a compromise with those who were opposed to changing the policy in the National Defense Authorization Act of 1994, which requires separation from service of individuals who voluntarily declare their homosexuality, but bars military personnel from inquiring into a service member's sexual orientation. This has become known as the "don't-ask-don't-tell" policy.
Two administrative bodies review military discharges: the Discharge Review Board and the Board for Correction of Military Records. Service members also may seek judicial review of a discharge, but the courts generally require exhaustion of administrative remedies before they will accept jurisdiction over a discharge review. (See Seepe v. Department of Navy, 518 F.2d 760 [6th Cir. 1975], and Woodrick v. Hungerford, 800 F.2d 1413 [5th Cir. 1986], cert. denied, 481 U.S. 1036, 107 S. Ct. 1972, 95 L. Ed. 2d 812 [1987].)
Rights of Service Members
In the past, some legal analysts contended that those in the military receive a level of constitutional protection that is inferior to that afforded to civilians. However, in United States v. Stuckey, 10 M.J. 347 (1981), the Court of Military Appeals (now called the U.S. Court of Appeals for the Armed Services) held that "the bill of rights applies with full force to men and women in the military service. …"
Congress, under its authority to regulate the armed forces, generally determines the due process and equal protection rights of service personnel, and most courts defer to congressional authority in this area. However, the U.S. Supreme Court has made it clear that Congress must heed the Constitution when it enacts legislation that concerns the military.
Because both the first amendment and the authority to regulate the military are found in the Constitution, a balance must be struck between First Amendment freedoms and the needs of the military. For example, Article 88 of the UCMJ makes it a crime for a commissioned officer to use contemptuous words against the president, vice president, Congress, and other government officials. Although this probably would be a violation of First Amendment freedom of speech outside the military context, constitutional challenges to Article 88 have consistently failed. In United States v. Howe, 37 C.M.R. 555 (A.B.R. 1966), reconsideration denied, 37 C.M.R. 429 (C.M.A. 1967), a second lieutenant was convicted of violating Article 88 when he participated in an antiwar demonstration in which he carried a sign derogating President lyndon b. johnson. The court allowed his conviction to stand, even though he was off duty and wearing civilian clothes at the time of the demonstration. Similar limitations on the speech of enlisted personnel have been upheld, as well.
Military personnel are entitled to certain rights and benefits by virtue of their service. They retain the right to vote and participate in the election of the government. For income and property tax purposes, they retain the domicile in which they reside at the time of enlistment and cannot be taxed by other states where they may be stationed. The Soldiers and Sailors Civil Relief Act Amendments of 1942 (SSCRA) (50 U.S.C.A. app. §§ 514–591) protects military personnel from legal or financial disadvantage that results from their being ordered to active duty. A variety of remedies to alleviate hardship are available under the SSCRA, including stays of civil proceedings; stays of execution of judgments, attachments, or garnishments; protection against foreclosures on real or personal property; a cap on interest rates charged on obligations incurred before active duty; and protection against evictions.
The Uniformed Services Employment and Reemployment Rights Act of 1994 (38 U.S.C.A. §§ 4301 et seq.) requires employers to rehire former employees who serve in the military for five years or less, with certain exceptions. The act also protects insurance, pension, and fringe benefits. The Veterans' Preference Act (1944) (5 U.S.C.A. §§ 2108 and 3309–3320) grants an employment preference to certain veterans and their survivors and enhances their job security.
Veterans also receive education benefits under the Post-Vietnam Era Veterans' Educational Assistance Program (1976) (38 U.S.C.A. ch. 32) and the New GI Bill (1987) (38 U.S.C.A. ch. 30). Education benefits are granted to spouses and dependent children of certain veterans in the Survivors' and Dependents' Educational Assistance Act (38 U.S.C.A. § 3501). Finally, most veterans are eligible for assistance in purchasing a home under a federal lender-guarantee program that lowers the mortgage interest rate and down payment that a veteran must pay (38 U.S.C.A. § 3710).
Under some circumstances, military personnel may seek compensation from the federal government for injury or death that occurs during service under the federal tort claims act (28 U.S.C.A. §§ 2675). The most notable exceptions under the act are claims that arise out of combat during time of war and claims that arise while the service member is in a country outside the United States. In addition, the Military Claims Act (10 U.S.C.A. § 2733) provides an administrative remedy for those who incur damage to, or loss of, property, personal injury, or death caused by a civilian employee or a member of the armed services. The Military Claims Act addresses injuries that are not covered by the Federal Tort Claims Act.
Military Criminal Justice System
The military justice system is the primary legal enforcement tool of the armed services. It is similar to, but separate from, the civilian criminal justice system. The Uniform Code of Military Justice, first enacted in 1950, is the principal body of laws that apply to members of the military. Military tribunals interpret and enforce it.
There are several rationales for a separate military justice system. The system's procedures are efficient and ensure swift and certain decisions and punishments, which are essential to troop discipline. By comparison, the civilian criminal justice system can be cumbersome and slow and may yield unanticipated or inconsistent results. Speedy trials and predictable decisions aid the military in its effort to maintain order and uniformity. This, in turn, contributes to national security. In addition, the court-martial system fulfills the civilian public's expectation of a disciplined and efficient military.
In addition to enhancing discipline, order, uniformity, efficiency, and obedience, the UCMJ addresses certain offenses that are unique to the military, such as desertion, insubordination, or absence without leave. Finally, the military requires a uniform system that can be administered at the location of the crime to adjudicate offenses committed by service members outside U.S. jurisdiction.
The jurisdiction of the military courts is established when the court is properly convened, the membership of the court satisfies the requirements of the UCMJ, the court has the power to try the accused, and the offense is addressed in the UCMJ. The UCMJ provides that military courts have jurisdiction over all members of the armed services and certain civilians who meet limited, well-defined criteria.
The three tiers of military courts are courts-martial, Courts of Criminal Appeals, and the United States Court of Appeals for the Armed Services.
Courts-Martial The three types of courtsmartial—summary, general, and special—comprise the trial level of the military justice system. Courts-martial were originally authorized by an amendment to the Articles of War (Act of March 3, 1863, ch. 75, sec. 30, 12 Stat. 736). The amendment gave courts-martial jurisdiction over military personnel in times of war, insurrection, or rebellion to prosecute such crimes as murder, robbery, arson, burglary, rape, and other common crimes. The UCMJ authorizes military commanders to convene courts-martial on an ad hoc basis to try a single case or several cases of service members who are suspected of having violated the code.
Summary Courts-Martial Summary courts-martial adjudicate minor offenses. Their jurisdiction is limited to enlisted personnel. Summary courts-martial may impose a sentence of confinement for not more than one month, hard labor without confinement for not more than 45 days, restriction to specified limits for not more than two months, or forfeiture of not more than two-thirds of one month's pay (UCMJ art. 20, 10 U.S.C.A. § 820). Although the summary court-martial is intended to dispose of petty criminal cases promptly, it must fully and fairly investigate both sides of the case. Nevertheless, the protections guaranteed in special or general courts-martial are diminished in a summary hearing. Therefore, a summary court-martial may be conducted only with the consent of the accused.
The defendant in a summary court-martial may consult with military counsel before trial but is not entitled to military defense counsel at the hearing. A summary court-martial is presided over by a single commissioned officer who conducts the trial with minimal input from adversarial counsel and acts as judge, fact finder, and counsel. Thus, a summary court-martial is more similar to the inquisitorial courts of the civil-law system than to the Anglo-American adversarial model. Summary courts-martial are employed less frequently than are other types of courts-martial. With increased recognition of the constitutional rights of the accused during the last part of the twentieth century, their use has greatly diminished.
Special Courts-Martial A special court-martial generally consists of a military judge and at least three armed-service members. However, under Article 16(2) of the UCMJ (10 U.S.C.A. § 816(2)), the members may sit without a judge, or the accused may choose to be tried by a judge alone.
The military-judge position was authorized by the Military Justice Act of 1968 (UCMJ art. 26, 10 U.S.C.A. § 826). The military judge's role is similar to that of a civilian trial judge. Military judges do not determine penalties and may only instruct the members of the court, who act as a jury, as to the kind and degree of punishment that the court may legally impose, unless the accused elects to have the judge sit as both judge and jury. This dual role is permissible only in non-capital cases. In any case, the judge rules on all legal questions.
The UCMJ requires that service members who are selected for the special court-martial be the best qualified to serve, as measured by their age, education, training, experience, length of service, and judicial temperament.
Special courts-martial have jurisdiction over most offenses under the UCMJ and may impose a range of sentences, including confinement for no longer than six months; three months of hard labor without confinement; a bad-conduct discharge; forfeiture of pay not to exceed twothirds of monthly pay; withholding of pay for no more than six months; or a reduction in rank (UCMJ art. 19, 10 U.S.C.A. § 819).
General Courts-Martial The general court-martial is the most powerful trial court in the military justice system. A general court-martial is presided over by either a military judge and at least five service members, or a judge alone if the accused so requests and the case involves a non-capital offense (UCMJ art. 16(1), 10 U.S.C.A. § 816(1)). General courts-martial may try all offenses under the UCMJ and may impose any lawful sentence, including the death penalty, dishonorable discharge, total forfeiture of all pay and allowances, and confinement. General courts-martial have jurisdiction over all persons who are subject to the UCMJ.
A general court-martial may be convened only by a high-ranking official, such as the president, the secretary of a military branch, a general, or a commander of a large unit or major installation. The commander of a smaller unit may only convene a special court-martial. Trial attorneys who are appointed to represent the accused in a general court-martial must be certified military lawyers. Verbatim recordings of general courts-martial are required by the Rules for Court-Martial.
The constitutionality of the court-martial system has been upheld in a number of cases under the theory that the military constitutes a separate society that requires its own criminal justice system. The U.S. Supreme Court has consistently deferred to the authority of the military, as conferred by Congress, to govern its members. In Solorio v. United States, 483 U.S. 435, 107 S. Ct. 2924, 97 L. Ed. 2d 364 (1987), the Court held that "Congress has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military. … [W]e have adhered to this principle of deference in a variety of contexts where, as here, the constitutional rights of servicemen were implicated."
Courts of Criminal Appeals The intermediate appellate courts in the military justice system are the four Courts of Criminal Appeals (CCA), one for each branch of the armed services (i.e., the Army, Navy, Air Force, and Marines). Before 1995, these courts were called the Courts of Military Review (CMR).
The Military Justice Act of 1968 (10 U.S.C.A. § 866) established the CMR to review court-martial convictions. They generally have three-judge panels that review all cases in which the sentence exceeds one year of confinement, involves the dismissal of a commissioned officer, or involves the punitive discharge of an enlisted person (UCMJ art. 66, 10 U.S.C.A. § 866). Courts of Criminal Appeals may review findings of fact and findings of law and may reduce the sentence, dismiss the charges, or order a new trial.
Review by the CCA is mandatory and automatic in cases where the sentence is death, dismissal, dishonorable or bad-conduct discharge, or imprisonment for one year or more, and the right to appellate review has not been waived or an appeal has not been withdrawn. CCA judges may be commissioned officers or civilians, but all must be members of a bar of a federal court or of a state's highest court. The judges are selected by the judge advocate general of the appropriate service branch. CCA judges do not have tenure or fixed terms. They serve at the pleasure of the judge advocate general. Decisions of the CCA are subject to review by the United States Court of Appeals for the Armed Forces.
U.S. Court of Appeals for the Armed Forces Congress established the U.S. Court of Appeals for the Armed Forces (USCAAF), formerly known as the Court of Military Appeals (CMA), in 1950 (10 U.S.C.A. § 867). It is the highest civilian court that is responsible for reviewing decisions of military tribunals. It is exclusively an appellate criminal court. The court consists of three civilian judges appointed by the president, with the advice and consent of the Senate, to serve 15-year terms.
The USCAAF has jurisdiction over all cases in which the death penalty is imposed, all cases sent by the judge advocate general for review after CCA review, and certain appeals petitioned by the accused that the court agrees to review. The court may only review questions of law. Decisions of the USCAAF may be appealed to the U.S. Supreme Court, which may grant or deny review.
Jurisdictional Questions Involving Military Courts On a number of occasions in U.S. history, the jurisdiction of military courts has come into question. Congress resolved many of these disputes through legislation, the most significant of which was the Uniform Code of Military Justice. Although military courts generally have powers that are analogous to those of their counterparts in the civilian system, they are subject to limitations in the federal laws creating them.
The U.S. Supreme Court resolved a major jurisdictional question involving the military courts in Clinton v. Goldsmith, 526 U.S. 529, 119 S. Ct. 1538, 143 L. Ed. 2d 720 (1999). The Court ruled that the USCAAF did not have the authority to issue an injunction preventing the U.S. Air Force from dropping a convicted officer from its rolls. The decision made clear that the president has the power to fire military personnel for the same offenses that resulted in their courts-martial and convictions.
In 1996, Congress passed legislation that expanded the president's authority over the military. The president was empowered to drop from the rolls of the armed forces any officer who had been sentenced by a court-martial to more than six months' confinement and who had served at least six months. The case in Goldsmith arose when an Air Force major, who was HIV-positive, continued to have unprotected sex after a superior had ordered him to inform his sexual partners of his disease. When the officer had sex with two partners, including a fellow officer and a civilian, he was convicted by a court-martial of willful disobedience of an order from a superior officer and two other related charges.
The officer appealed his conviction to the Court of Criminal Appeals and, later, the USCAAF, seeking an injunction to prevent the president and the Air Force from dropping the officer from the Air Force rolls. Although the CCA refused, indicating that it lacked jurisdiction, the USCAAF issued the injunction. A unanimous U.S. Supreme Court, per Justice david h. souter, ruled that the USCAAF lacked this form of injunctive power. According to the Court, the USCAAF's authority is limited to the review of sentences imposed by courts-martial and appellate decisions by the Court of Criminal Appeals.
Law of Armed Conflict
The international law of armed conflict applies to situations involving an armed, hostile conflict that is not a civil or internal matter.
An armed conflict may begin by declaration of war, by the announcement of one governmental entity that it considers itself at war with another, or through the commission of hostile acts by the military forces of one entity against another. In the past, a formal declaration of hostilities was required before a conflict was legally interpreted as a war. Thus, in Savage v. Sun Life Assurance Co., 57 F. Supp. 620 (W.D. La. 1944), the court found that the insured, who died in the Japanese attack on Pearl Harbor, had not died as a result of war because the United States had not yet formally declared itself at war with Japan. Rather, the court found that the insured's death was accidental and that his beneficiary could collect double indemnity under an accidental death policy. In modern times, the outbreak of hostilities even without a formal declaration or ultimatum is regarded as war in a legal sense, unless both parties deny the existence of a state of war.
Armed conflict may be terminated by a peace treaty, a cessation of hostilities and establishment of peaceful relations, unconditional surrender, or subjugation.
The United States, as a member of the united nations, is bound by the U.N. Charter, which requires that its members refrain from the threat or use of force in any manner that is not consistent with U.N. policies. In addition, the United States is a signatory to most major treaties relating to warfare, including the Hague Conference of 1907, the Geneva conferences of 1929 and 1949, and the Genocide Convention of 1948. All of these treaties set forth basic principles that govern the conduct of war: Force should be directed only at targets that are directly related to the enemy's ability to wage war (military necessity); the degree of force used should be directly related to the importance of the target and should be no more than is necessary to achieve the military objective (proportionality); and the force used should cause no unnecessary suffering, destruction of civilian property, loss of civilian life, or loss of natural resources (humanitarian principle). In addition, the Hague Conference provided that captured prisoners may not be killed; captured towns may not be pillaged; and the property, rights, and lives of civilians in armed conflict areas must be respected.
In addition to written treaties relating to war, international armed conflict is governed by customary international law, or the common law of armed conflict. Under this constantly evolving body of law, certain conduct is proscribed because world opinion forbids it. In Ex parte Quirin, 317 U.S. 1, 63 S. Ct. 2, 87 L. Ed. 3 (1942), order modified by 63 S. Ct. 22, the Court upheld jurisdiction of a military tribunal over German saboteurs who used civilian disguises, even though no written law or treaty justified their trial. The Court based its decision on the ground that infiltration by disguise violated the customary law of armed conflict. (See also The Paquete Habana, 175 U.S. 677, 20 S. Ct. 290, 44 L. Ed. 320 [1900].) The customary law of war is based on the same principles embodied in the Hague Conference and subsequent treaties and reflects international agreement that actions that are inconsistent with those principles should not go unpunished even in the absence of express prohibitions. Many nations, including the United States, have codified significant portions of the common law of armed conflict. (See U.S. Department of the Army, The Law of Land Warfare [Field Manual 27-10, 1956].)
In response to the september 11th attacks in 2001, when terrorists hijacked four U.S. planes and used them to destroy the World Trade Center in New York and seriously damage the Pentagon, President george w. bush led the country into a war on terrorism. As part of this war, Bush signed a military order on November 13, 2001 that, among other provisions, allows the United States to try suspected terrorists in a military tribunal, rather than the federal court system.
According to the order,"To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order …to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals." The order authorizes the secretary of defense to issue regulations establishing military commissions to try any and all offenses subject to the order. These regulations must ensure a full and fair trial and must provide rules pertaining to procedures, evidence, issuance of process, qualifications of attorneys, and other similar matters.
The defense department issued regulations on March 21, 2002. Many of the provisions in the regulations are similar or analogous to rules that apply in the civilian courts. These regulations provide that an accused must be provided with a defense counsel, or may choose his or her own attorney. The accused is presumed innocent until proven guilty, and the prosecution must prove its case beyond a reasonable doubt. The rules also ensure the rights against self-incrimination and double jeopardy.
As the United States engaged in military action in Afghanistan, suspected members of the Taliban regime and the al-Qaeda organization were held at U.S. military bases, and could have been subjected to the military tribunals. Supporters of this plan indicate that military tribunals are necessary because the United States is at war with terrorists, and alien enemies are generally not afforded the protection of the U.S. Constitution at times of war. Moreover, supporters note that during critical wars in the nation's history, leaders often have used military tribunals. These leaders include george washington, during the Revolutionary War; abraham lincoln, during the Civil War; and franklin delano roosevelt, during World War II.
Critics note that the use of military tribunals has serious constitutional implications. Certain constitutional rights might not apply in a military tribunal as they do in the regular court system. Whereas a conviction in a regular court requires a unanimous vote, a military tribunal, which makes all determinations of the law and the facts, must agree by a two-thirds majority. Moreover, a trial in a military court need not be held in public, and the right to an appeal is limited. No ruling by a military tribunal is final until approved by the president or the secretary of defense.
Bush's order generally has not been popular overseas, as the use of these tribunals has been seen as a means by which the U.S. can avoid fair trials in its civilian system. Nevertheless, the Bush administration has defended the development of the system. According to Bush, "We are an open society, but we are at war. We must not let foreign terrorists use the forums of liberty to destroy freedom itself."
further readings
Bishop, Joseph W., Jr. 1974. Justice Under Fire: A Study of Military Law. New York: Charterhouse.
Duignan, Kathleen A. 1996."Military Justice." Federal Lawyer 43.
Falvey, Joseph L. 1995. "United Nations Justice or Military Justice." Fordham International Law Journal 19.
Fuger, Stanley J. 1992. "Military Justice." Connecticut Bar Journal 66.
Gilligan, Francis A. 1990."Civilian Justice v. Military Justice." Criminal Justice 5 (summer).
Kohlmann, Ralph H. 1996. "Saving the Best-Laid Plans." Army Lawyer 3 (August).
U.S. Department of Defense. 2002. Manual for Courts-Martial. Washington, D.C.: Department of Defense.
Wiener, Frederick B. 1989. "American Military Law in the Light of the First Mutiny Act's Tricentennial." Military Law Review 126 (fall).
Winthrop, William. 2000. Military Law and Precedents. Buffalo, N.Y.: William S. Hein & Co., Inc.
cross-references
Arms Control and Disarmament; Conscientious Objector; Gay and Lesbian Rights; Geneva Conventions, 1949; Genocide; GI Bill; Just War; Military Government; Military Occupation; Militia; Nuremberg Trials; Rules of War; Selective Service System; Solomon Amendment; Veterans Affairs Department; War; War Crimes.
Military Law
MILITARY LAW
Morality and War in Judaism
The prophetic view of the end of days is expressed in the words: "and they shall beat their swords into plowshares, and their spears into pruning hooks; nation shall not lift up sword against nation, neither shall they learn war any more" (Isa. 2:4). But until those days arrive, there may be times when war is required. In such circumstances, halakhah views war as a necessity, and participation therein as an obligation under certain circumstances.
A soldier acting in accordance with halakhah may not indulge in the naked exercise of force, brutality, or vandalism, but rather must be guided by the recognition of an obligation imposed by an exigency brought about by reality. The Torah establishes the boundaries of what is permitted and forbidden in war for both individual and for society, with the view of achieving the military objective while striking a balance between recognition of the nature of soldiers in war – who must, at times, be permitted to behave in ways that would be forbidden in peacetime – and the need to imbue those soldiers with the qualities of compassion and holiness, even during times of war. It is instructive that the laws of prayer and of the sanctity of the synagogue are derived from the laws governing a military camp (Ber. 25a). Although under certain circumstances the Torah views war as an obligation incumbent upon every man in Israel, King David was not allowed to build the Temple because he had fought many wars (i Chron. 22:7–10). This exemplifies the potentially problematic nature of war, and the need to strike an appropriate balance between single-minded combat against the enemy and preserving the moral standards of the combatants.
In this entry, we shall briefly consider the salient issues of military law in Jewish law. We shall examine the classic commandments related to war as they appear in the Bible, in Talmudic literature, and in halakhic decisions, and consider the contemporary ramifications of some of them and their expression in modern society.
The Sanctity of the Camp in Time of War
The Torah states (Deut. 23:10): "When you go forth against your enemies and are in camp, then you shall keep yourself from every evil thing." In the tannaitic Midrash, the Sages interpreted this verse as implying a special warning in time of war to be careful regarding matters of defilement and purity, tithes, incest, idolatry, bloodshed, and slander (Sif. Deut. 254, ed. Finkelstein). In his commentary to Deuteronomy 23:10, Nahmanides explains that human nature is such that moral restraints are loosened at time of war, and we shed the sense of shame felt in normal human society, with regard to such acts as licentiousness and theft. This is a by-product of the cruelty that envelops soldiers when they go to war. The Torah therefore saw need for reinforcement of these matters through a special proscription. In the ensuing verses, the Torah cautions about purity and physical cleanliness in the military camp. The section concludes with a general explanation that these commandments are required so that the Divine presence not abandon the Israelite camp: "Because the Lord your God walks in the midst of your camp, to save you and to give up your enemies before you; therefore your camp must be holy, that He may not see anything indecent among you, and turn away from you" (Deut. 23:15).
Discretionary War and Obligatory War
The Mishnah (Sot. 8:7) distinguishes between two types of war: discretionary war and obligatory war. According to Maimonides, an obligatory war is like that fought by Joshua to liberate the land of Israel from the Seven Nations, the war to eradicate Amalek, or a war "to defend Israel against an enemy that attacks them." A discretionary war is one undertaken to extend the borders of the state, such as the wars fought by King David (Yad, Melakhim 5:1; Sot. 44b; tj, Sot. 8:10). Later rabbinical authorities differed on the interpretation of the term "to defend Israel against an enemy that attacks them." Some explained that this refers to a situation in which Israel is attacked by her enemies, constituting a defensive war (obligatory). This is as opposed to a preventive war in which a preemptive strike is made against an enemy before it is able to realize its intention to attack, which constitutes a discretionary war (Leḥem Mishnah ad loc.). Others extended the scope of the term "to defend Israel against an enemy" (and hence of an obligatory war) to include a preventive war, inasmuch as a defensive war – i.e., once Israel is actually under attack – is clearly obligatory, just as one is always obligated to rescue a victim from an assailant (Sheyarei Korban commentary to tj, Sot. loc. cit.).
The decision to embark upon a discretionary war requires the approval of a court of 71 (Mish., Sanh. 1:5; Yad, Melakhim 5:2). However, the court cannot initiate the war. The initiative must come from the king, who must then seek the court's approval (Tosefot Yom Tov on Mish. Sanh. loc. cit.). According to Nahmanides (Hassagot Ramban, on Sefer ha-Mitzvot, gloss no. 17), the Urim and Thummim must also be consulted, as going to war must be done at the behest of the priest who wears them.
The Obligation to Serve, Fear, and Conscientious Objection
According to the Torah, the minimum age for military service is 20 (Num. 1:3, and Rashi and Naḥmanides ad loc.). The Torah does not expressly establish a maximum age. Some hold that the maximum age for military service is 60 (Sforno, Num. 1:45), while others suggest that it was 40 (according to certain versions of Sif. Deut., ed. Finkelstein, 197).
The book of Deuteronomy provides guidelines for exemption from military service. The Torah (Deut. 20) provides that, before venturing into battle, the priest–referred to in the Mishnah as the "Anointed for Battle" (Sot. 8:1) – must speak to the people and encourage them so that they not fear the enemy and to place their trust in God, as the Torah expressly forbids fear of the enemy in war (Maim., Sefer ha-Mitzvot, negative precept 58; Sefer ha-Ḥinnukh, 525). Following the priest's speech, the officers address the people and exempt the following four categories of people: (a) one who has built a home and not dedicated it; (b) one who has planted a vineyard but not yet enjoyed its fruit (the fruit can only be used after the fourth year); (c) one who has betrothed a woman but not yet married her (see *Marriage); (d) one who is afraid and fainthearted, "lest he cause his comrades to be afraid." Later sources explain the application of these exemptions in practice. Thus, prior to the battle with the Midianites, God commands Gideon to tell the fearful to return home; more than one third of the force leaves (Judges 7:3). The Book of Maccabees (i Maccabees 3:55) relates that soldiers were exempted for the same reasons. There is some disagreement among the tannaim regarding the nature of the fear that exempts a person from going to war (Mish. Sot. 8:5; Sot. 44a). In Rabbi Akiva's view, this alludes to fear of war. According to the mishnaic citation of R. Akiva, his concern was fear of the dangers of war, whereas according to the Tosefta (Sot. 7:24), R. Akiva's concern was not the fear of war per se, but rather the fear that his sense of mercy would affect his ability to fight, and even a stony and mighty warrior was commanded to return home in the event of his feelings of mercy being likely to impair his ability to fight. According to R. Yose the Galilean, this exemption also refers to a person who is fearful because he knows himself to be a sinner, his feelings of guilt leading him to fear that he will be punished for his sins by death in battle. Although these four categories of people are exempted from battle, they are commanded to contribute to the war effort by providing food and water for the troops, and by repairing the roads (Mish., Sot. 8; Yad, Melakhim 7:9).
In addition to the above, a man is exempt from going to war during the first year of his marriage, in order to make his wife happy (Deut. 24:5). The Sages extended this one-year exemption to building a house and harvesting a vineyard, as well (tj, Sot. 8:8; Yad, Melakhim 7:9). Unlike the other exemptions, a person exempt for these reasons is not required to contribute to the war effort, but simply stays home (Deut. 24:5; Sot. 44a).
All these exemptions apply exclusively to a discretionary war; in the case of an obligatory war, "all go forth, even the bridegroom out of his chamber and the bride from her bridal pavilion" (Mish., Sot. 8:8).
The Israel Supreme Court discussed these issues at length in its decision in the Schein case (hc 734/83 Shein v. Minister of Defense, 38 (iii) pd 393, per M. Elon). The petitioner in that case was a reserve soldier who refused a call-up order to serve in southern Lebanon, on grounds of conscience. He argued that he opposed the Israeli army's presence in Lebanon, and believed that presence to be illegal. The petitioner had already been tried for a previous refusal, and the petition related to a new call-up order and to the sentence that he had served. In denying the petition, Justice Elon surveyed philosophical and legal positions accepted by various states in regard to conscientious objection, and addressed the distinction between general conscientious objection and selective conscientious objection, that only relates to a specific type of military service. Justice Elon went on to examine the view of Jewish law. "In principle, the issue before us was addressed by Jewish law in its earliest days, as a matter related to the subject of exemption from the obligation of military service" (p. 403). After reviewing the above-mentioned sources and the opinions expressed by the tannaim, he concluded: "The foregoing quotations reflect the various opinions in Jewish law concerning an issue essentially comparable to the question of exemption from military service for reasons of conscience. The reasons for exemption are general and inclusive, and they concern the character of the person and his attitude to violence. They are not selective. They do not pertain to a particular time and place, and they are not based on ideological-social outlooks. Finally, even the general and inclusive reasons are applicable only to a "discretionary" war, but not to an obligatory war in a time of emergency (p. 405).
Participation of Women in War
From the Mishnah's statement that "all go forth, even the bridegroom out of his chamber and the bride from her bridal pavilion," one may conclude that both men and women are required to serve in an obligatory war. Certain later rabbinical authorities sought to limit this rule by saying that women are only required to help provision the troops (Rashash on Sot. 44b), while others opined that only the bridegroom goes to war, whereas the bride merely cancels her wedding (Radbaz on Maimonides, Melakhim 7:4).
The verse that forbids a woman from wearing a man's garments (Deut. 22:5) has been interpreted as prohibiting a woman from carrying arms, and thus prohibiting her going to war (Ibn Ezra). Others saw the verse as limited to matters of modesty, and therefore not to be taken as forbidding the participation of women in war (Rabbenu Perez, in Shitat Kadmonim le-Nazir, 1972). The subject assumed practical significance in the State of Israel with regard to the question of the conscription of women. Some authorities, relying upon some of the above-mentioned sources, argued that it is prohibited, while others expressed the view that it is not, so long as modesty is preserved. Under Section 39(c) of the Defense Service Law [Consolidated Version], 5746 – 1986, a woman may be exempted from service if she shows that it would be incompatible with "her family's religious way of life."
The Commandment to Sue for Peace
"When you draw near to a city to fight against it, offer terms of peace to it" (Deut. 20:10). Before launching war against a city or placing it under siege, the Torah requires an offer of peace. There is dispute as to whether this duty also applies to an obligatory war, as held by Maimonides (Melakhim 6:1), or only applies to a discretionary war, as is the view of Rashi (Deut. 20:10, based upon Sif. Deut., ed. Finkelstein, 199, and Rabad, on Maimonides ad loc.). Maimonides interprets the offer of peace as the granting of an opportunity to surrender and to accept subjugation to Israel and the obligation to pay tribute. Some commentators suggest that, practically speaking, this approach sees the purpose of the offer of peace as a means for achieving the objectives of war in an easier, more efficient manner, while avoiding the loss of life. Under this approach, the call for peace applies to an obligatory war as well, inasmuch as it is clearly preferable to achieve the objectives of an obligatory war without resort to combat. Another approach sees the call for peace as an end in itself, which prevents war and teaches compassion (Sefer ha-Ḥinnukh, Mitzvah 527). Therefore, it is not required in an obligatory war.
This mitzvah led the Sages to the midrashic statement regarding the importance of peace in Judaism: "Great is peace, for Israel requires it even in war" (Sif. Deut., loc. cit.).
The Laws of Siege
the duty to leave one direction open for escape
The Midrash (Sif. Num., ed. Horowitz, 157) cites the opinion of the tanna Rabbi Nathan, that when Israel laid siege in its war with Midian (Num. 31), one side was left open so that the Midianites could flee. Naḥmanides (Hassagot al Sefer ha-Mitzvot la-Rambam, 5), suggests two reasons for this. The first is educational, namely, to encourage compassion even for an enemy in time of war. The second reason is tactical: to avoid emboldening the enemy by putting it in a position from which there can be no escape, and in which it has nothing to lose. In his opinion, this rule only applies to a discretionary war. As opposed to this, Maimonides sees it as a duty in every war. Rabbi Meir Simhah ha-Kohen of Dvinsk (Meshekh Ḥokhmah, at Num. 31:6) explains that the source of the disagreement between Nahmanides and Maimonides is that Maimonides views this primarily as a matter of military tactics. Therefore it is not an obligation, but rather a recommendation applying even to an obligatory war. Naḥmanides sees the underlying reason as that of compassion, which applies only to a discretionary war.
This dispute has practical ramifications to this day. Is there a halakhic obligation to allow the enemy an avenue of escape? Contemporary halakhic authorities disagreed as to whether the halakhah required the Israeli army to allow plo terrorists to escape during the 1982 siege of Beirut. Rabbi S. Goren rejected the distinction of the Meshekh Ḥokhmah, and ruled that according to Maimonides there was a duty to allow them to escape, even in an obligatory war. Rabbi S. Yisraeli accepted the distinction and ruled that according to Maimonides there was no such duty in an obligatory war, and the matter was subject to the discretion of the military commanders and the government (see Bibliography).
destruction of trees during a siege
A special provision of the rules of siege concerns the status of trees in and around the besieged city: "When you besiege a city for a long time, making war against it in order to take it, you shall not destroy its trees by wielding an axe against them; for you may eat of them, but you shall not cut them down. For is the tree of the field man that it should be besieged by you?" (Deut. 20:19). This rule applies only to a discretionary war (Sif. Deut., ed. Finkelstein, 203).
It should be noted that this verse constitutes the basis for the general prohibition upon destroying fruit trees, and of the destruction of property in general, independent of the rules of war (Maim., Sefer ha-Mitzvot, negative commandments, 57; Yad, Melakhim 6:8).
The prohibition only applies to unnecessary destruction. Felling trees for the purpose of constructing the siege, or to deprive the besieged enemy of wood for its own use, or to prevent the enemy from using the trees as cover, is permitted (Hassagot ha-Ramban al Sefer ha-Mitzvot la-Rambam, 6). Although the language of the Torah only prohibits the destruction of fruit trees, according to a baraita (bk 91b), the prohibition applies to all trees, and where there is need for wood, non-fruit bearing trees must be used first (bk 91b).
In his Torah commentary (Deut. 20:19–20), Naḥmanides explains that the reason for this special prohibition is that once the city is captured its property will fall into the hands of Israel, and the soldiers must have faith in God that they will be victorious and that they will inherit the spoils. Thus, the prohibition derives from the rule that a person may not destroy his own property. According to Naḥmanides, when the purpose of the war is not conquest but the destruction of the city, all the trees may be destroyed.
The closing expression, "Are the trees in the field man that it should be besieged by you?" has been variously interpreted by biblical commentators. Rashi understood it as a rhetorical question, expressing the idea that trees are not the enemy, and hence their destruction is not justified. Ibn Ezra explained: "For the tree is man's life"; therefore, in harming the trees we harm ourselves.
During Israel's war with Moab, the prophet Elisha expressly commanded that the army "fell every good tree, and stop up all springs of water, and ruin every good piece of land with stones" (ii Kings 3:19). The explanation given for this deviation from the language of the Torah is that it was an emergency measure (Radak).
Spoils and Looting
From the Torah, it would appear that the taking of spoils was common, and was viewed as an integral part of war (Genesis 11:24; i Samuel 30:24). This conclusion can also be reached on the basis of the prohibition against destroying trees, discussed above. In Deuteronomy, following the command to sue for peace, we are told that Israel shall enjoy the spoils of a city that refuses the offer of peace (Deut. 20:14). In the Midrash, the Sages emphasized that it was not only permissible to plunder, but that the spoils could be taken for the personal use of the soldiers (Sif. Deut., ed. Finkelstein, 200). According to Maimonides, the spoils were intended solely for the soldiers, and might be described as their payment (Maimonides, Melakhim 4:9). In accordance with David's instruction that the spoils be divided equally between the front-line soldiers and those in the rear who stay "on the baggage" (i Samuel 30:24), Maimonides ruled that the spoils must be equally apportioned.
Although permitted, it would seem to be considered inappropriate to take more than the costs of war. This is concluded from Abraham's decision to take from the king of Sodom "nothing but what the young men have eaten, and the share of the men who went with me" (Gen. 14:24; Radak and Sforno, loc. cit.). In the Scroll of Esther we find that the Jews were permitted to plunder the property of their enemies, yet the text emphasizes "but they laid no hands on the plunder" (Esther 8:11; 9:15).
Taking spoils can bring about the undesirable result of lowered moral standards in war, such as occurred at the time of King Saul (i Samuel 14:31–32), when the people, in their excitement over the spoils, transgressed the prohibition of "eating with the blood." As earlier noted, the Torah considers maintaining the moral standards of the army to be an exalted goal and this is another argument against taking spoils. In view of this, some are of the opinion that taking spoils is permitted only for the army as a whole, in accordance with the instructions of the relevant authorities, but is not permitted to individual soldiers.
Harming Innocent Civilians
The language of the Torah leads to the conclusion that if, in a discretionary war, the enemy does not accept the terms of surrender offered by the Israelite army, then all the men are to be killed: "But if it makes no peace with you… you shall put all its males to the sword" (Deut. 20:12–13). This is the conclusion drawn by Maimonides (Melakhim 6:4), who emphasizes the corollary that women and children are not to be killed. Maimonides does not distinguish between combatants and non-combatants. This should perhaps be viewed in its historical and cultural context. In the ancient world, the enemy army comprised the entire male population, whether as direct participants in the fighting or as support. The correct translation of this rule to contemporary law might be that only combatants may be targeted, and that the innocent civilian population must not be harmed.
Over the last few generations, since the beginning of the Zionist enterprise, and particularly since the establishment of the State of Israel, contemporary halakhic authorities have addressed these issues. Rabbi S. Yisraeli (see Bibliography) was of the opinion that there is justification for harming a civilian population that supports the enemy forces and voluntarily assists them, even under the doctrine of the "pursuer" (rodef) (see *Penal Law). However, when the enemy forces compel that assistance from the civilian population, there is no justification for harming non-combatant civilians.
The biblical story of Simeon and Levi and the city of Shechem (Gen. 34) is germane to this discussion. After Shechem ben Hamor, son of the city's king, rapes Jacob's daughter Dinah, Simeon and Levi kill all of the males of the city. Some commentators (Naḥmanides, at Gen. 34:13) take a dim view of what they see as their immoral conduct, and argue that this is why Simeon and Levi were reprimanded by their father Jacob (Gen. 49:5–7). Others justify the act, arguing that it is of the nature of war that the acts of one obligate all (Maharal, Gur Aryeh al ha-Torah, Gen. 34:13), or that it was justifiable from a formal halakhic point of view (Yad, Melakhim 9:14). Some have responded that, even if it were halakhically permitted, it must nevertheless be morally condemned, as we should be strict in capital matters (Rabbi S. Goren, Bibliography, 1:28).
Rabbi S. Yisraeli addressed the question of the relationship between the international law of armed conflicts and Torah law (see Bibliography), expressing the view that the rule that the law of the country is binding (see entry *Dina de-Malkhuta Dina) may apply not only to the spheres of civil and criminal law, but to international law, as well. According to this approach, international conventions on what is permitted and forbidden in war are halakhically valid (except, of course, in regard to what constitutes an "obligatory war").
bibliography:
M. Elon, Ha-Mishpat ha-Ivri (1988), 1:454; idem, Jewish Law (1994), 2:554; idem, Jewish Law (Cases and Materials) (1999), 539–44; G. Garman, Melekh Yisrael, 297–313; S. Goren, Meshiv Milḥamah, 3 vols. (1983–86); I.Y. Herzog, S. Yisraeli, D. Lishinsky, S. Cohen, Y. Gershuni, S. Min-Ha-Har, Y. Shaviv, M. Ushpizai, in: Teḥumin, 4 (1983), 13–96; S. Rosenfeld, "Ḥalukat Shalal u-Bizzah be-Milḥamot Yamenu," in: Teḥumin, 23 (2003), 52–59; N.D. Shapira, "Ha-Kri'ah le-Shalom," in: Torah she-be-al Peh, 39 (1998), 82–90; A. Sharir, "Etika Ẓeva'it al pi ha-Halakhah," in: Teḥumin, 25 (2005), 426; E. Shochetman, "Sikkun Ḥayyalei Ẓahal le-shem Meni'at Pegi'ah be-Ezraḥei ha-Oyev," in: Netiv, 2 (2003), 25; 3 (2003), 28; Y. Unger and M. Finkelstein, Parashot Lekh Lekha, Va-Yishlah, in: Parshat ha-Shavu'a (2006); S. Yisraeli, Amud ha-Yemini (1992).
[Ariel Ehrlich (2nd ed.)]
Military Law
Military Law
The body of laws, rules, and regulations developed to meet the needs of the military. It encompasses service in the military, the constitutional rights of service members, the military criminal justice system, and the international law of armed conflict.
U.S. Soldiers Guilty of Murder and Rape in Iraq
President George W. Bush referred to the 2004 scandal involving abuse and mistreatment of Iraqi prisoners at Baghdad's now infamous Abu Ghraib facility as the "biggest mistake" made by the United States in Iraq. Little did he know that another horror was looming. In July 2006, six U.S. soldiers were charged in the rape and murder of an innocent 14-year-old Iraqi girl and the murder of her entire family. The March 12, 2006 incident took place in Mahmoudiya, a little town 20 miles south of Baghdad.
The soldiers, all from the 101st Airborne Division based in Fort Campbell, Kentucky, faced court-martial after an Article 32 hearing was held in Baghdad (parallel to a grand jury or preliminary hearing in civilian law). Specialist James P Barker, 23; Sergeant Paul Cortez, 23; Private First Class (Pfc) Jesse V. Spielman, 21; and Pfc. Bryan L. Howard, 19, were charged with participation in the rape and murder of the girl and her family. A fifth soldier, Sgt. Anthony W. Yribe, was charged with dereliction of duty for failing to report the incident.
Additionally, all five were charged with conspiring with former Pfc. Steven D. Green to commit the atrocities. Green, who was considered the ringleader in the incident, was discharged from the Army in May 2006 because of an "anti-social personality disorder" prior to his superiors knowing of his involvement. He was separately charged in a civilian federal court in Kentucky.
The sordid details of the incident were brought forward in the soldiers' own statements to military authorities. In their own words, they told of drinking whiskey, playing cards, and hitting golf balls when Green suggested they go to a house near the checkpoint where they were stationed and rape the young girl that lived there. They took the time to change into dark clothing and cover their faces, even providing a two-way radio for one of them who served as a lookout. The four remaining soldiers then entered the house. One rounded up a five-year-old child and the parents, herding them all into a bedroom. Then while one soldier pushed the young girl down, the other held her hands as they switched positions and raped her.
At this point, according to their statements, they heard gunshots coming from the bedroom. Green allegedly exited from the bedroom in an agitated state, announced he had killed the family, laid down the AK-47 he had been carrying, then raped the girl while another held her down. He then picked up the gun and shot her several times. Green then allegedly went into the kitchen. When he emerged from that room, he told the soldiers to get out of the house because he had opened a propane tank and the house would explode. One of the soldiers then poured kerosene from a lamp onto the girl's body to hide evidence. One of the soldiers later burned all the bloodstained clothes they were wearing and threw the AK-47 into a nearby canal.
The incident was originally reported as the work of insurgents. However, Pfc. Justin Watt, a soldier not connected with the murders, testified at the Article 32 hearing that a fellow soldier, Yribe, confided to him that Green had been bragging about the rape and killings. Watt then asked Howard what had happened, and Howard confirmed the plan to rape the girl and his role as the lookout. Howard told Watt that when he saw a Humvee, he radioed the others frantically, but when they returned from the house, their clothes were covered with blood. Watt then pieced the information together and reported it to authorities. Yribe was charged with dereliction of duty for failing to report the incident. The others faced court-martial and the possibility of a death sentence.
At the start of his court martial in November 2006, Sgt. James Barker pleaded guilty to rape and murder, and agreed to cooperate with prosecutors by testifying against the others. He did not receive the death penalty but was sentenced to 90 years in military prison with the possibility of parole in 20 years.
Not until February 2007 did the second soldier, Sgt. Paul Cortez, plead guilty at the start of his court martial to four counts of murder, rape, and conspiracy to rape. He was sentenced to 100 years in military prison. In March 2007, Pfc. Bryan Howard (the "lookout") pleaded guilty to being an accessory to the rape and murders as well as conspiracy to obstruct justice for lying to authorities and superiors about the atrocity. He received 27 months in military prison.
Also in March 2007, the court martial of Pfc. Jesse Spielman was delayed until July 23, 2007 at the request of defense counsel, who ostensibly received "new information" regarding witnesses. There was no direct evidence that Spielman participated in the rape or murders, but the other soldiers identified him as being present and being the one who burned their clothes and threw the gun into the canal. Also pending was the civilian court trial of ex-soldier Steven Green, the alleged key player in the incident, in the U.S. District Court for the Western District of Kentucky, Case No. 3:06-MJ-230-R.
When asked by a military judge why he participated in the shocking events, Spec. Barker, who wept during his closing statement, responded that the violence in Irag had had left him "angry and mean." He accepted responsibility for the rape and killings, but told the judge, "I hated Iraqis, your honor. They can smile at you, then shoot you in the face without even thinking about it." Pfc. Watt (who had reported information to authorities) had also testified that the stressful conditions the soldiers experienced were affecting everyone. He said they had been living in the basement of a "dilapidated, abandoned water treatment facility" and had gone 30 days without being able to take a shower. "I was going to get a memorial tattoo of all the guys [who were killed], but there's not enough room on my arm," he told CNN reporters.
The Military Commissions Act of 2006
In Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2005), the U.S. Supreme Court held that neither the U.S. Constitution (including the inherent powers of the Executive) nor any act of Congress expressly authorized the type of "military commissions" created by the Bush Administration to try detained enemy combatants for war crimes. Absent that express authorization, the commissions had to comply with the ordinary laws of the United States and the laws of war, including parts of the Geneva Convention and the statutory Uniform Code of Military Justice (UCMJ). However, nothing in the Court's decision gave detainees direct access to federal courts ; they need only have access to a fair and impartial hearing in a tribunal constitutionally authorized by Congress and proceeding with certain due process guarantees.
In response to the Court's ruling, Congress enacted the U.S. Military Commissions Act, Pub. L. 109-366, 120 Stat. 2600, on September 29, 2006 (the "Act"). (President Bush signed it on October 10, 2006.) Its stated purpose was to "facilitate bringing to justice terrorists and other unlawful enemy combatants through full and fair trials by military commissions, and for other purposes."
The Act expressly provides the President with the authority not only to establish military commissions, but also to determine what constitutes breaches of the Geneva Conventions other than those already constituting "grave breaches." Further, the Act expressly prohibits U.S. courts from using foreign or international sources of law to interpret provisions of 18 USC §2441 on war crimes,—grave breaches of the Geneva Convention.
Importantly, the Act specifically defines an "unlawful enemy combatant" as a person who engaged in hostilities or purposefully and materially supported such acts against the United States or our allies who is not an enemy combatant (including a member of the Taliban, al Qaeda, or associated groups); or someone who, after the date of enactment of the Act, was determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established pursuant to the authority of the President or of the Secretary of Defense.
Conversely, and equally importantly, a "lawful enemy combatant" is defined as a member of regular forces of a state party engaged in hostilities against the United States; or a member of a militia, volunteer corps, or organized resistance movement belonging to a state party participating in hostilities under a responsible command, wearing a distinctive sign recognizable at a distance, carrying arms openly, and following "the law of war;" or a member of a regular armed force professing allegiance to a government engaged in such hostilities, but not recognized by the United States.
Another key provision of the Act is that it specifically exempts military commissions from having to follow a number of requirements found in the UCMJ. Unlawful enemy combatants are not permitted to avail themselves of speedy trials, nor can they invoke the Geneva Convention as a source of rights. Further, no precedental weight is to be accorded findings, holdings, interpretations, or other determinations in military commissions.
A less publicized provision follows the tradition of allowing military commissions (as was done in World War II and is currently done in most modern European criminal courts and the International Criminal Court) to consider hearsay evidence or information gathered without a search warrant. These may be used as admissible evidence if the military judge determines they have probative value.
One of the more controversial provisions of the Act is its amendment of the federal habeas corpus statute, 28 USC §2241. The new subsection (e) prevents courts from exercising jurisdiction to consider applications for writs of habeas corpus filed by or on behalf of aliens detained by the United States who have been determined to be detained as enemy combatants or those who are awaiting such determination.
However, the Act does provide some protections, including the prohibition of cruel and unusual punishment, including flogging, branding, marking, or tattooing, as well as the use of either single or double restraining irons, except for safe custody. Finally, the Act providesdouble jeopardy protection for military commission proceedings.
Almost immediately upon its enactment, legal challenges to some of the Act's provisions were filed. On April 2, 2007, the U.S. Supreme Court declined certiorari in two cases involving Guantanamo Bay detainees seeking habeas corpus review of their detainment (not permitted under the Act) in Boumedienne v. Bush, and Odah v. United States. Three weeks later, on April 30, 2007, the Court denied certiorari of two more Guantanamo Bay detainees in Hamdan v. Gates, and Khadr v. Bush. These latter cases had a new twist. The same Salim Ahmed Hamdan who had prevailed in the 2005 case of Hamdan v. Rumsfeld, (see above) was now facing the possibility of being tried under the new Act. This time he attempted to challenge the constitutionality of Congress' decision to deny habeas relief under the Act. His lawyers unsuccessfully argued that the new tribunal system was substantially similar to the old one. As of June 2007, several cases were still pending in lower courts in which detainees were challenging their status as "enemy combatants" under the Act.
Military Law
MILITARY LAW
MILITARY LAW. A nation's armed forces are governed by and subject to military law. In the United States, military law includes statutes enacted by Congress as well as regulations promulgated by the president as commander in chief, by the Department of Defense, or by the individual branches of the military (the army, navy, air force, marine corps, and coast guard), as well as relevant federal constitutional provisions and the inherent authority of military commanders. Military law is one type of military jurisdiction and is distinct from martial law, which is the temporary governance of the civilian population by the military, and from military government, which is the governance of the civilian population in enemy territory by a belligerent military force. Sources of military law in the United States are the Constitution and international law, including the law of war or national security law.
The U.S. Constitution confers broad powers on both Congress and the president with respect to military law. Article I grants Congress the power to declare war, to raise and support armies, to create and maintain a navy, and to provide disciplinary regulations and administrative procedures applicable to the uniformed services. The militia clauses allow Congress to call up state militias to enforce federal laws (as in the 1957 Little Rock school desegregation struggle), as well as to suppress insurrections and to repel invasions. Militias, now known as the national guard, remain under state control until called into federal service.
National security powers are divided between Congress and the president: Congress has the power to initiate or recognize war ("declare war"), while the power to conduct war belongs to the president. The Charter of the United Nations, a treaty that under the supremacy clause of the Constitution is part of U.S. law, plays a role in modern declarations of war. Because Article 2(4) of the Charter outlaws aggressive war, the United States no longer declares war at the commencement of hostilities, but rather engages in hostilities under Article 51 of the U.N. Charter, which recognizes the right to individual or collective self-defense. (Congress may authorize the use of force under the War Powers Resolution [1973] as it did against Iraq in Operation Desert Storm, or not—for example, military actions during the fall of Saigon in 1975. No president has conceded the constitutionality of the War Powers Resolution.)
Codification
Primarily a body of criminal law and criminal procedure, including the Military Rules of Evidence (MRE), military law is codified in the Constitution; the Uniform Code of Military Justice (UCMJ), a federal statute; and the Manual for Courts-Martial (MCM). (Civil issues, such as divorce and child custody, inheritance, property disputes, torts, and contract disputes are not addressed by military law and are handled in civilian courts.)
Military law governs those who have military status, for example, those enlisted or commissioned into the armed forces, and may continue after retirement or while serving a sentence imposed by court martial. Members of the armed forces reserves or the army or air national guard are subject to federal military law only when in federal service.
Beginnings and Evolution
Military law in the United States began on 30 June 1775, with the adoption by Congress of Articles of War for the regulation and discipline of members of the Continental Army. In 1775, William Tudor, a prominent Boston lawyer, became the first judge advocate of the army; in 1776, the title changed to judge advocate general, a designation of the chief legal officer in each branch of service that continues to the present. Tudor was involved in several prominent prosecutions in the Revolutionary War, including those of generals Benedict Arnold, Charles Lee, and Philip Schuyler. John Laurance, who succeeded Tudor in 1777, was involved in the prosecution of the British Maj. John André who conspired with Benedict Arnold for the surrender of West Point.
In 1806, the Articles of War were revised to include new, distinctly military offenses, for example, the use of contemptuous or disrespectful language directed at the president (now Art. 88 of the UCMJ). The modern Code retains a number of peculiarly military offenses such as absence without leave or "AWOL" (Art. 86), conduct unbecoming an officer and gentleman (Art. 133), and violations of the general article (Art. 134), which include "disorders and neglects to the prejudice of good order and discipline" and service-discrediting conduct.
Civilian Issues
Jurisdiction over civilians under military law is generally disfavored as a result of the Supreme Court's ruling in Ex parte Milligan (1866). In that case, the Court ruled that civilians could not be tried in military tribunals in areas where regular courts continue to function. The Milligan ruling is subject to four exceptions: civilians are subject to military law during occupation by a belligerent nation due to the obligation to preserve the security of civilians during a state of war (Leitensdorfer vs. Webb [1857]); spies and saboteurs can be tried under military law either by court-martial or by military tribunal; service-connected civilians, or "persons serving with, employed by, or accompanying the armed forces" abroad are subject to military law. In 1957, the Supreme Court ruled against military jurisdiction over civilian dependents (Reid vs. Covert), and, in 1960, over civilian employees (McElroy vs. United States ex rel. Guagliardo), leaving little to this exception. The fourth exception relates to "persons serving with or accompanying an armed force in the field … in time of war." During the Vietnam War, this provision was narrowly construed by a military appellate court to apply only to wars declared by Congress (United States vs. Averette [1970]). Service members abroad provide a special challenge for military law since under international law nations have jurisdiction over persons and events occurring with in their borders. Unless provided for by an international agreement, service members who are nonbelligerent guests in a foreign state would be subject only to the laws of the host nation and not to the military law of the nation they are serving. To address this issue of authority, nations enter into Status of Forces Agreements (SOFA) with each other. Such agreements allocate jurisdiction between the host country and the guest military. For example, SOFAs allow the United States to retain court-martial jurisdiction over members of the armed services with respect to military offenses but allow host-country jurisdiction over other serious offenses.
Enforcement of military law is in the hands of commanders. Minor offenses may be handled by nonpunitive disciplinary measures under Article 15 of the UCMJ. Article 15 includes due process rights such as the rights to remain silent, to call witnesses and cross-examine adverse witnesses, to consult with counsel and have a spokesperson, and to appeal. The privilege against self-incrimination under military law practice predates the adoption of the Fifth Amendment of the Constitution; it was incorporated in Article 6 of the 1786 Articles of War. Nonjudicial procedure or trial by a commander under Article 15 developed after World War II in response to a perceived need for a process to dispose of minor offenses without permanently stigmatizing the person convicted.
Courts-Martial
There are three types of courts-martial: summary courts-martial with jurisdiction limited to enlisted personnel and limited authority to punish; special courts-martial, which may try serious but noncapital crimes or those that do not carry the death penalty; and general courts-martial, which may try any person subject to the UCMJ or any offense punishable by the Code and may impose a full range of punishments including death, dishonorable discharge, total forfeiture of all pay and allowances, and confinement. Trials by general court-martial include most rights familiar to civilian jurisprudence, including a right to counsel, to call and confront witnesses, and the right to remain silent. These rights are guaranteed by military law.
Reviews and Reform
Review of convictions by courts-martial evolved over time. Under current practice, convictions are reviewed by the convening authority, or commander who ordered the court-martial of the accused, often with the advice of a staff judge advocate or military lawyer who is part of the commander's staff. A commander may not change a finding of not guilty but may reverse a finding of guilty and reduce, mitigate, or disapprove a sentence. The role of the commander in the exercise of military law remains controversial, and command influence is a persisting issue. Each branch of the service has a Court of Criminal Appeals to which appeals may be taken. From there, further review may be sought in a civilian court or the three-judge United States Court of Appeals for the Armed Forces. From there, review may be sought by certiorari in the Supreme Court.
Major themes of reform of military law involved conforming of military law to civilian concepts of justice, including the right of appeal and the replacement of military officers lacking legal training with trained lawyers who could ensure the fairness and integrity of the judicial process. For example, outrage over the authority of individual commanders to impose and carry out sentences without higher approval or effective review in the case of African American troops tried and summarily executed following the Fort Sam Houston mutiny of 1917 prompted reforms.
BIBLIOGRAPHY
Bishop, Joseph W., Jr. Justice Under Fire: A Study of Military Law. New York: Charterhouse, 1974.
Generous, William T., Jr. Swords and Scales: The Development of the Uniform Code of Military Justice. New York: Kennikat Press, 1973.
Lurie, Jonathan. Arming Military Justice: The 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.
United States. Army. Judge Advocate General's Corp. The Army Lawyer: A History of the Judge Advocate General's Corps, 1775–1975. Washington, D.C.: Government Printing Office, 1975.
L. LynnHogue
courts martial
Maureen Mulholland