Military Justice

Purposes and Scope

The U.S. Supreme Court recognized in 1955 in United States v. ex. rel. Toth v. Quarles (350 U.S. 11) that “it is the primary business of armies and navies to fight and to be ready to fight wars should the occasion arise.”

A critical element of the military's ability to carry out its assigned “primary business” can be summarized in one word:discipline. Servicemembers who question the authority of a superior run the risk of criminal sanctions. Obedience to the leader and team-work among servicemembers are indispensable ingredients for an effective military establishment. Thus, a compelling concern of commanders is whether they will be able to maintain discipline in carrying out their mission.

Military justice is one component of military law, which includes a wide range of statutes and regulations governing the military system. The criminal law component of military law, or military justice, is used to enforce the military establishment's norms. Those norms consist of statutes, regulations, and directives and tend to receive the most public attention.

The public's concerns about the military justice system arise out of several factors: First, military justice terminology is arcane to most citizens who have had little or no contact with the military. Second, servicemembers may be convicted and sentenced by a court-martial for conduct that has no counterpart in civilian criminal justice systems. Those defending the system point out that the U.S. federal courts have found the system to be constitutional and to provide ample due process for servicemembers. Critics of the system point out the command environment of rigid discipline and limited exercise of constitutional rights.

Constitutional and Statutory Bases

Article I, section 8, clause 14 of the U.S. Constitution explicitly authorizes Congress to create rules for the governance of the armed forces. Exercising that power, Congress enacted the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 801 (2000). Article 36 of that Code authorizes the president to create rules of procedure for courts-martial. In addition, Article II of the Constitution vests the president with the powers of commander in chief of the armed forces. Presidents have exercised that authority in the Manual for CourtsMartial. The Manual, promulgated and amended through executive orders, provides detailed guidance on military criminal procedures, modeled to some extent on federal criminal procedures. The Manual includes the Military Rules of Evidence, standard forms, and other appendixes. The bulk of the book is devoted to the Rules for Courts-Martial, which detail procedural rules for conducting pretrial, trial, and posttrial proceedings. The services—Air Force, Army, Coast Guard, Marine Corps, and Navy—promulgate individual regulations that further govern the military justice system.

...