MILITARY GOVERNMENT A government that is established during or after military occupation by the victorious country in an armed conflict.. In more recent times, the United States, after i
Trang 1public safety outweighs the need for the prophy-lactic rule protecting the Fifth Amendment’s privilege against self-incrimination.”
In Elstad the Court held that a second confession, immediately preceded by the
Miran-da warning, was admissible, although an earlier statement from the defendant had been obtained
in violation of Miranda The Court noted that suppression of a defendant’s statements assumes
a “constitutional violation” but that unwarned questioning in itself violated only prophylactic standards laid down to safeguard against such a violation Using the reasoning in Tucker the Court ruled that a noncoercive Miranda viola-tion will not result in the suppression of the
“accused’s own voluntary testimony.” The im-plication of Tucker and the two later decisions is that all types of evidence will not be suppressed because of Miranda violations
FURTHER READINGS Brandt, Charles 1989 The Right to Remain Silent New York: St Martins.
Graham, Fred P 1970 The Self-Inflicted Wound: The Warren Court’s Revolutionary Ruling in Criminal Law New York: Macmillan.
White, Welsh S 2003 Miranda’s Warning Protections: Police Interrogation Practices After Dickerson Ann Arbor, MI:
Univ of Michigan.
CROSS REFERENCES Criminal Law; Criminal Procedure; Custodial Interro-gation; Due Process of Law; Right to Counsel.
MIDNIGHT JUDGES
Presidents throughout history have sought to influence law through their judicial appoint-ments However, the skirmish involving the midnight judges had a much broader significance:
it belonged to a fight that had begun shortly after theWAR OF INDEPENDENCEbetween the leaders of the new nation The argument pitted the Federalists (led byJOHN ADAMS) against the Republicans (led
byTHOMAS JEFFERSON) over a fundamental problem:
How much power should be given to the federal government and, in particular, the federal judi-ciary? The answer would influence the course of U.S law for generations to come
When Adams lost the 1800 election, the nation was only 24 years old The Constitution, ratified in
1789, was even younger For more than two decades, the Federalists and the Republicans had argued over their competing visions of strong federal government versusSTATES’RIGHTS The 1800 election crystallized these opposing philosophies
Adams and the Federalists accused the
Republicans of intending to plunder property and undermine civilized society On the other side, Jefferson and the Republicans attacked the Federalists for trying to subvert the guarantees of theBILL OF RIGHTS The election tipped the balance
of power With the Republicans capturing the White House and Congress, it appeared that Jefferson’s party would at last have the upper hand But the Federalists intended to preserve their power Just before time ran out on the Adams administration, they enacted the Judiciary Act of
1801 This sweeping law struck at a key point of contention: the jurisdiction of the federal courts The Republicans wanted the federal courts to be constrained, but the new law gave these courts increased jurisdiction over land andBANKRUPTCY
cases The federal courts now had greater authority at the expense of the states The act added six new federal circuits with sixteen new judges As a final measure, they also added dozens of new justices of the peace to the District
of Columbia Between December 12 and March
4, President Adams, with the approval of the Senate, busily stacked the courts with his own people If the Federalists could not control Washington through elected office, they would
at least dictate the composition of the judiciary The Republicans could not tolerate this bold maneuver Enraged, Jefferson declared that “the Federalists have retired into the judiciary as a stronghold” where his own party’s efforts would
be“beaten down and erased.” Once in power the Republicans quickly repealed the 1801 act, thus restoring the original jurisdictional authority of the federal courts But removing the midnight judges presented a difficult constitutional ques-tion The Constitution provided that federal judges were to hold office as long as they demonstrated good behavior—in effect, for life The Republicans’ plan was therefore to abolish the new circuit courts The Federalists called this
an unconstitutional attack on the independence
of the judiciary and predicted that the Supreme Court—which was dominated by Federalists— would not allow it The Republican-controlled Congress stalled a decision on their actions by eliminating the 1802 term of the Court
The action only delayed an inevitable ruling Fortunately for the Republicans, Adams had to leave office before he could secure commit-ments from his appointees, and several declined
to serve Those who accepted did not manage to challenge their removal But one appointment
of a midnight judge had gone largely unnoticed,
58 MIDNIGHT JUDGES
Trang 2and it proved to be one of the most important
appointments in U.S history This was the
nomination ofJOHN MARSHALLas chief justice of
the Supreme Court Marshall, who was an
ardent Federalist, viewed President Jefferson as
nothing less than an“absolute terrorist.”
In 1803, when the Court reconvened, it
ruled on a case that arose from Adams’s District
of Columbia appointments Prevented from
receiving his commission as a JUSTICE OF THE
PEACE, William Marbury asked the Court to
order that his commission be honored
The Court’s landmark opinion inMARBURY V
MADISON, 5 U.S (1 Cranch) 137, 2 L Ed 60
(1803), settled the immediate dispute and
partially answered the constitutional question at
stake Writing for the unanimous Court, Chief
Justice Marshall dismissed Marbury’s suit on the
grounds that the Supreme Court lacked
jurisdic-tion Marshall wanted to avoid an impasse
between the judiciary and the White House
However, Marshall’s opinion also greatly
ex-panded the power of the Court by holding that
the judiciary has the power to say what the law is,
and, if necessary, to overturn acts of Congress
that it finds unconstitutional The Court did this
in Marbury for the first time in history, striking
down a section of theJUDICIARY ACT OF1789
The problem of the midnight judges was
settled, but with unexpected results The judges
appointed by Adams could not take office, and
in this way the Federalists were thwarted Yet in
an indirect way, they triumphed Marshall
would serve on the Supreme Court for the next
34 years and in the process become perhaps the
greatest chief justice in history Moreover, with
his opinion in Marbury v Madison, the Court
established its power of JUDICIAL REVIEW, a
principal goal of the Federalists
FURTHER READINGS
Lukens, Robert J 1997 “Jared Ingersoll’s Rejection of
Appointment as One of the ‘Midnight Judges’ of 1801:
Foolhardy or Farsighted, ” Temple Law Review 70 (spring).
Stephenson, D Grier 1999 Campaigns and The Court: The
U.S Supreme Court in Presidential Elections New York:
Columbia Univ Press.
Streich, Michael 2008 “Judicial Review & the Marbury
Case ” American History, Suite101.com (October 30).
Available online at http://americanhistory.suite101.com/
article.cfm/judicial_review_the_marbury_case; website
home page: http://americanhistory.suite101.com (accessed
September 7, 2009).
CROSS REFERENCES
Constitution of the United States; Supreme Court of the
United States.
MIGRATORY BIRD TREATY OF 1918
The Migratory Bird Treaty of 1918 between the United States and Great Britain prohibited the killing of many species of birds that traversed certain parts of the United States and Canada
Such species were of great value both as a source
of food and because they destroyed insects injurious to vegetation, but they were in danger
of extermination through lack of protection
The state of Missouri sought to have the treaty declared an unconstitutional interference with the rights that are reserved to the states by the TENTH AMENDMENT to the Constitution In Missouri v Holland, 252 U.S 416, 40 S.Ct 382,
64 L.Ed 641 (1920), the Supreme Court held that a valid treaty must prevail over state law, even if a federal statute on the subject would
be unconstitutional Acts of Congress are the supreme law of the land only when made pur-suant to the Constitution, and treaties are accorded the same status when made under the authority of the United States
MILITARY GOVERNMENT
A government that is established during or after military occupation by the victorious country in
an armed conflict According to INTERNATIONAL LAW, the territory that has been placed under the authority of a hostile army continues to belong to the state that has been ousted However, it may be ruled by the occupiers under a special regime
When a country’s army achieves decisive victory over an enemy, the victor may supple-ment military presence in the enemy territory with some type of government If the victor is a signatory to certain international agreements, it must follow international RULES OF WAR that outline the rights and responsibilities when governing a territory under belligerent occupa-tion This military government is not the same
as MARTIAL LAW, although the occupiers may impose martial law as part of maintaining order
Certain species of birds that traverse the United States and Canada, including these snow geese, are protected by the Migratory Bird Treaty of 1918 The Supreme Court held that this treaty, and others like it, must prevail over state law, even if a federal statute concerning the same matter would be held unconstitutional.
AP IMAGES
MILITARY GOVERNMENT 59
Trang 3The rules of military government are established in various international agreements, primarily the Hague Conference of 1907 and the Geneva Conference of 1949 These docu-ments provide guidelines on such topics as rights and duties of the occupying power, protection of civilians, treatment of prisoners
of war, coordination of relief efforts, property rights of the ousted state, and other wartime and postwar concerns A country that estab-lishes a military government and steps beyond its allotted rights runs the risk of international censure or criticism Countries sometimes try to deny that they have imposed a military govern-ment For example, in the Persian Gulf War, Iraq claimed that Kuwait is an Iraqi province and therefore not eligible for the protections given by the law of belligerent occupation
TheU.S.CIVIL WAR(1861–1865) contributed to the development of rules for military behavior and belligerent occupation The Lieber Instruc-tions is considered a first attempt to codify the laws of war as they existed during the Civil War era Columbia College Professor Francis Lieber prepared this list of laws in 1863 at the request of PresidentABRAHAM LINCOLN They led in part to the Brussels Conference of 1887 and the Hague Conferences of 1899 and 1907 on land warfare
The Lieber Instructions included sections on military jurisdiction, protection of persons, and public and private property of the enemy
The U.S Civil War pitted the Confederacy—a group of southern states that wanted to secede from the United States—against Union forces, made up of primarily northern and newly formed states After the victory of Union forces, the U.S
government had to decide how to treat the defeated South Some vocal members of Congress insisted that because the Confederate states had violated the Constitution by seceding, they had committed “state suicide” and should be treated like conquered provinces
These politicians finally got their way in
1867, two years after the war ended State governments were abolished in the rebel states, and the territory was split into five districts, each commanded by a major general of the Union army Gradually public opinion in the North pushed for home rule for the South, and
by 1870 all southern states were restored to the Union President RUTHERFORD B HAYES took office in 1877 and removed the army from the last three occupied southern states
By means of the Hague and Geneva Conferences, and organizations such as the International Committee of the Red Cross, the rules of war have evolved beyond those in the Lieber Instructions When following these general rules, victorious countries continue to have broad discretion in how they govern con-quered zones The United States has used various approaches to establish postwar governments For example, afterWORLD WAR II, the United States established very different types of governments
to oversee the reconstruction of Germany and Japan, which were defeated by Allied forces After Germany surrendered in World War II, the country and its capital were each divided into four zones Government of the zones was assigned to four different countries: the United States, Great Britain, France, and the Soviet Union The occupiers differed in their opinions about what type of permanent government should follow military occupation, and the zones occupied by the Soviet Union became communist East Germany The other zones became demo-cratic West Germany The two Germanys were reunited in October 1990
Unlike the military government in Ger-many, the U.S occupation of Japan did not involve a large military presence After Japan surrendered, its existing civilian governing structure was left mostly intact, directed by General Douglas MacArthur and the Supreme Command of the Allied Powers (SCAP) During occupation, Japan—a nation of seventy million people—was supervised by 600,000 troops, whose number was soon reduced to 200,000 During more than six years of U.S occupa-tion, the Japanese Diet (legislature) met and passed laws that were subject to VETOby SCAP The Japanese army and navy were abolished, weapons were destroyed, 4,200 Japanese were found guilty of WAR CRIMES, Shinto was dis-established as the state religion, and a new constitution—the “MacArthur Constitution”— was adopted SCAP accomplished land reform, strengthened trade unions, and placed limits on Japan’s powerful monopolistic corporations After World War II the international community agreed that more safeguards were necessary to protect civilians and their property
in occupied territories As a result the Fourth Geneva Conference was established in 1949 to tackle these issues
In more recent times, the United States, after invading Grenada and Panama, established
60 MILITARY GOVERNMENT
Trang 4a military government in each country during a
brief belligerent occupation
FURTHER READINGS
Chapman, William 1991 Inventing Japan: An
Unconven-tional Account of the Post-War Years Englewood Cliffs,
NJ: Prentice-Hall.
Craven, Avery 1969 Reconstruction: The Ending of the Civil
War New York: Holt, Rinehart and Winston.
de Mulinen, Frederic 1987 Handbook on the Law of War for
the Armed Forces Geneva: International Committee of
the Red Cross.
Dolan, Ronald E., and Robert L Worden 1992 Japan: A
Country Study Washington, D.C.: Government
Print-ing Office.
Lawson, Gary, and Guy Seidman 2001 “The Hobbesian
Constitution: Governing without Authority
North-western Univ Law Review 95 (winter).
Thomas, David Yancey 2001 A History of Military
Government in Newly Acquired Territory of the United
States New York: Columbia Univ Press Available
on-line at http://www.archive.org/details/militaryterritory00
thomrich; website home page: http://www.archive.org
(accessed August 13, 2009).
CROSS REFERENCE
Military Law.
MILITARY LAW
Military law refers to 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
the international law of 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 such as 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
main-tain 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 COURTconfirmed 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 ofMARTIAL LAW in situations where ordinary law is insuffi-cient 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 reser-vists,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, compensa-tion, 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 (United States v Grimley,
137 U.S 147, 11 S Ct 54, 34 L Ed 636[1890])
Although PERSONAL SERVICE contracts are gener-ally 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-enlist-ment suits (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
MILITARY LAW 61
Trang 5applied 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 reser-vists 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 Con-gress’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 Ithrough WORLD WAR II, the KOREAN WAR, and theVIETNAM 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”
(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 appoint-ments 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 withoutDUE PROCESS
OF LAW(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 circum-stances 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 fullCOURT-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 rea-sons, guidelines, and procedures for adminis-trative 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 accommo-date 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 stan-dards 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 homo-sexuals from the military
During the 1980s, the military discharged service members for homosexual orientation as well as homosexual conduct In 1993, President
BILL CLINTONattempted 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 sepa-ration from service of individuals who volun-tarily declare their homosexuality, but bars military personnel from inquiring into a service
62 MILITARY LAW
Trang 6member’s sexual orientation This became
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 (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 (later called the U.S Court of
Appeals for the ARMED SERVICES) held that “the
BILL OF RIGHTSapplies 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
congressio-nal 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 judg-ments, attachjudg-ments, or garnishments; protection against foreclosures on real orPERSONAL 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’ Educa-tional Assistance Program (1976) (38 U.S.C.A
ch 32) and the NewGI 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 Assis-tance 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 per-sonnel may seek compensation from the federal government for injury or death that occurs during service under theFEDERAL 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
MILITARY LAW 63
Trang 7country 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, insubordina-tion, 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 mem-bers outside U.S jurisdiction
The jurisdiction of the military courts is established when the court is properly con-vened, 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 courts-martial—summary, general, and special—
comprise the trial level of the military justice system Courts-martial were originally autho-rized 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 with-out confinement for not more than 45 days, restriction to specified limits for not more than two months, orFORFEITUREof 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 protec-tions 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 TheDEFENDANTin 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
64 MILITARY LAW
Trang 8The 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
two-thirds 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 dis-charge, 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 theJUDGE ADVOCATEgeneral
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
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is exclusively an appellate criminal court The court consists of three civilian judges appointed
by the president, with the advice and consent of theSENATE, 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 gen-erally 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 anINJUNCTION 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 authority is limited to the review of sentences imposed by courts-martial and appellate decisions by the Court of Crimi-nal Appeals
Law of Armed Conflict TheINTERNATIONAL LAWof 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 governmen-tal 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
BENEFICIARYcould collectDOUBLE INDEMNITYunder
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, uncondi-tional 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 theGENOCIDEConvention 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
66 MILITARY LAW
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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 theCOMMON 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
custom-ary 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
Unit-ed States, have codifiUnit-ed 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 theSEPTEMBER 11,2001,ATTACKS
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 initiated his WAR ON
TERRORISM As part of this military action, Bush
signed a military order on November 13, 2001,
that, among other provisions, authorized the
United States to try suspected terrorists before a
military tribunal, rather than before a federal
district court
The order authorized the secretary of
defense to establish military commissions, along
with special rules governing procedures, evi-dence, and other matters The DEFENSE DEPART-MENT issued regulations in 2002 Many of the provisions in the regulations were similar or analogous to rules that apply in the civilian courts but evidentiary standards were changed
to favor the prosecution As the United States engaged in military action in Afghanistan, most suspected members of the Taliban regime and the al-Qaeda organization were held at a special detention facility at Guantanamo Bay in Cuba
The legality and constitutionality of the military commission regulations and proce-dures were challenged by military defense lawyers in federal court The U.S Supreme Court overturned the procedures promulgated
by the Defense Department in 2006, and later threw out a 2006 federal statute that sought to retain much of the executive order’s procedures
The first trial of a Guantanamo Bay prisoner was held in 2008 The commission convicted Salim Hamdan, the driver of Osama Bin Laden, for providing material support forTERRORISM In
2009 the Obama administration announced that it would move the detainees to the United States and would revise the military commission rules Moreover, the administration planned to try as many detainees as possible in the federal courts However, as of October 2009, it was unclear when such changes would begin
FURTHER READINGS Bishop, Joseph W., Jr 1974 Justice under Fire: A Study of Military Law New York: Charterhouse.
Denbeaux, Mark, and Jonathan Hafetz 2009 The Guanta-namo Lawyers: Inside a Prison outside the Law New York: NYU Press.
Falvey, Joseph L 1995 “United Nations Justice or Military Justice ” Fordham International Law Journal 19.
Gilligan, Francis A 1990 “Civilian Justice v Military Justice ” Criminal Justice 5 (summer).
U.S Department of Defense 2008 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.
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